RIAZ AHMAD J.- Appellant Talib hussain alias Goga along with his brothers Suleman and Nazar Hussain and his father Abdul Hameed were tried by the learned Additional Sessions Judge at Faisalabad on the charge under section 302 read with section 34 of the Pakistan Penal Code for having committed the murder of Sadiq Ali deceased.
2. Vide his judgment, the learned Additional Sessions Judge found only the appellant Talib Hussain alias Goga guiIty on the said charge, and acquitted the co-accused, namely, Suleman, Nazar Hussain and Abdul Hameed. Accordingly, the appellant Talib Hussain alias Goga was convicted on the aforesaid charge, and was sentenced to death, and to day a fine of Rs. Five thousand, or in defauIt of the payment of fine, to suffer a term of one year rigorous imprisonment. It was also directed, that in the event of recovery of fine, the same shall be paid as compensation to the heirs of the deceased as compensation under section 544-A Cr.P.C.
3. Aggrieved by his conviction, the appellant Talib Hussain alias Goga has assailed the same through Criminal Appeal No. 529 of 1985, while the case has also been referred to us under section 37.4 Cr. P.C. Complainant Fazal Din PW-8 has also filed a Criminal Revision bearing No. 602 of 1985 against the appellant for the enhancement of the fine and compensation. This judgment shall dispose of the appeal, the revision and the Reference.
4. The unfortunate occurrence resuIting into the death of Sadiq Ali deceased took place on 10th of September, 1987 at 9/10 a.m. On the Watt of Killa No. 21 and 22 in chak No.62-RB situated at a distance of 11 miles from police station Khurarianwala. Occurrence was reported by Fazal Din PW-8 at the police station, vide Fir Exh. PH recorded at 3.00 p.m. By SHO/Sub Inspector Ata Muhammad PW-10.
5. In brief the complainant in the FIR stated, that he was a resident of Chak No.62-RB, and was owner of 10 Killas of land in square No.41. Adjacent to Killa No.21 owned by the complainant, Killa No.22 was under the cuItivation of Abdul Hameed, who had sown Chari and Bajra in the aforesaid Killa. On the western Watt, Abdul Hameed had planted Jantar trees, the branches of which were bending towards Killa No.21 in such a way, that the complainant side faced difficuIty in driving the tractor. According to the complainant, four days prior to the occurrence, his son Sadiq Ali deceased while driving the tractor in Killa No. 21 diverted the obstructing branches of Jantar trees towards Killa No.22. The acquitted co-accused Abdul Hameed feIt ill of it, and thus, exchange of abuses look place between Abdul Hameed and Sadiq Ali deceased. Muhaammad Yaqoob PW-7 intervened, and pacified Abdul Hameed and the deceased. According to the complainant, Sadiq Ali deceased returned to his home having ploughed the land, but Abdul Hamid re-diverted the branches of Jantar trees towards Killa No.21. On the fateful day at about 9/10 a.m., the complainant and his son Niamat Ali were digging grass from an area of about 2/3 Marlas of Killa No.21, in which chillies had been sown and his deceased son Sadiq Ali at that time was ploughing tractor in Killa No.21, where he again noticed the obstruction on the Watt of Killa No. 21 and 22 created on account of the branches of jantar trees. The deceased slopped the tractor, and told his nephew Muhammad Yasin PW-9 to drive the tractor, so that in the meantime, he would divert the branches of the Jantar trees, so that no obstruction was faced in driving the tractor. Whereupon. Muhammad Yasin a nephew of the deceased started driving the tractor, while the deceased started rediverting the branches of Jantar trees towards Killa No.22, when in meanwhile, the appellant Talib alias Goga reached then having noticed the deceased dealing with the aforcssaid branches of the Jantar Treas went towards his Dera. Soon thereafter, the appellant Talib alias Goga armed with a spear, Sulcman armed with a hatched, Nazar Hussain armed with Sola and Abdul Hameed empty handed while raising Lalkaras reached there, and told the deceased that he would be taught a lesson for having destroyed the branches of jantar trees. Appellant Talib alias Goga at once gave a spear blow on the left side of the chest of Sadiq Ali deceased, who after the receipt of the said injury, fell on the ground. The complainant and his son Niamat Ali rushed towards the scene of occurrence, but in the meantime, the appellant, his brothers and his father escaped towards their Dera. Complainant and his son Niamat Ali removed the injured to their Dera, and while they were making arrangements for taking Sadiq Ali deceased to the hospital, he succumbed to his injuries at their Dera.
6. AIter the registration of the case, the investigation thereof commenced, and the dcadbody of the deceased Sadiq Ali was sent to the mortuary for postmortem examination.
7. On 11th of September, 1982 Dr. Muhammad Ajmal Mian PW-5 conducted the postmortem examination on the dcadbody of the deceased, and noticed the following injury on his person:- 1). A stab wound 2 x 3/4 cm chest deep situated on left front of chest 11 O, clock position of left nipple just close to it cutting left chest wall, left pleura, left lung, pericardium and heart at left upper vauIt directive backward and inward passing through the third and fourth ribs interspace.
Left lung, upper part of the heart were cut. In the opinion of the doctor, the deceased died due to shock and haemorrhage resuIting from injury No.1, which was sufficient to cause death in the ordinary course of nature. Injury had been caused with sharp edged pointed weapon, and was declared grievous in nature.
8. On 13th of September, 1982 the investigating Officer PW-10 arrested the appellant, and the acquitted co-accused, and all of them except Abdul Hameed produced their weapons of offence before the Sub Inspector Ata Muhammad PW-10 the Investigating Officer.
9. Appellant Talib alias Goga produced bloodstained spear P.3 which was taken into possession vide Memo. Exh. PD attested by Muhammad Asghar Pw-4 and one Munir Ahmad (not produced) besides the Investigating Officer PW-10. The aforesaid spear was sent to the Chemical Examiner and the Serologist, vide report of the Serologist Exh. PM, the spear was found to be stained with human blood.
10. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by the complainant Fazal Din PW-8 father of the deceased and Muhammad Yasin PW-9 a nephew of the deceased, while an other son of the complainant PW8 viz Niamat Ali though named in the FIR as an eye-witness was given up. In addition to the ocular testimony, the prosecution also placed reliance upon the recovery of bloodstained spear produced by appellant Talib alias Goga before the Investigating Officer.11. When examined under section 342 Cr.PC., appellant Talib alias Goga made the following statement-The case is false. Actually at the time of the occurrence, I was present in Killa No.22 which is owned by my father, and I was repairing my Khal. Sadiq Ali deceased was ploughing his land situated in Killa No.21 with tractor, and while ploughing was trespassing into our land.I objected and abused him, upon which Sadiq Ali deceased feIt insuIted and infuriated. He left the tractor, and brought a spear and attacked me with the spear. I tried to snatch the spear from him, upon which, there was scuffle between Sadiq Ali deceased and myself. Myself and Sadiq Ali deceased were trying to snatch the spear from each other, and in that process, Sadiq Ali deceased got himself injured aecidcntly with the spear."
12. With the assistance of the learned counsel for the appellant, the State and the complainant, we have gone through the evidence on the record, and we have also heard the various contentions raised by learned counsel at length.
13. It was vehemently contended by the learned counsel for the appellant, that the statement made by the appellant Talib w'as nearer the truth, and it was in the exercise of the right of self defence, that the appellant had killed the deceased, otherwise, x x x x the appellant would not have survived. It was thus contended, that the appellant deserved acquittal, because the ight of self defence commenced the moment the deceased had brought the spear to attack the appellant with it.
14. We have carefully examined the ocular testimony on the record of this case. Statements of all the witnesses are consistent, and nothing has been brought on the record, so as to infer, that they had not seen the occurrence, and the witnesses were falsely implicating the appellants. Plea in their testimony is further strengthened by the fact, that there was no background of enmity between the parties. It was further contended that in view of the relationship of the eye-witnesses, their evidence required to be considered cautiously, as already observed earlier, we have minutely examined the inherent worth of the testimony of all the eye-witnesses, and we do not find any flaw therein. Muhammad Yaqoob PW-7 is from the brotherhood of the complainant, it was further argued, that the prosecution had failed to produce any independent witness so as to lend strength to its case. In our view all the eye-witnesses produced by the prosecution are the most natural witnesses, and know the circumstances of the case, none else could have been present on the spot, because the occurrence had taken place in the field of the complainant adjoining to the field of the appellants. In this view of the matter, only the complainant, his sons and the accused party could have been present at the spot.
15. An other criticism about the ocular testimony was, that the complainant side was owner of the land in four different squ;. Es, therefore, all of them could not have been present at the scene of occurrence. We are not convinced with this argument, in asmuchas, in a small village, all the members of a family work together, and particularly in this case, process of weeding was in progress in the chilli's field. Hence, we are not prepared to believe that the witnesses were neither present, nor had seen the occurrence.
16. Lastly, we advert to the defence pleas raised by the appellant. It was contended, that it was improbable, that four persons would have gone to launch an attack on account of insignificant motive, and if at all, appellant Talib had caused any injury, he did not intend to murder, because it was the single blow inflicted by the appellant. Defence version was that in fact an aItercation had taken place between the appellant and the deceased, and the later had brought the spear, and wanted to attack the appellant, ard during the scuffle, the spear hit deceased causing his death.
We have carefully examined this pleas in the light of the evidence of surrounding circumstances of this case, but we regret to repel it. In the circumstances of this case, the defence plea is devoid of truth, and the same is also improbable in view of the nature of the bloodstained spear. We have examined the length of the spear, and in our view, if the spear is directed by the assailant towards the victim, then in course of a scuffle, its direction could not be diverted, so that it could hit or cause any injury to the assailant. Hence, we arc not prepared to believe the defence version, that in course of scuffle, the deceased had received this injury with his own hand. We have vizualized the nature and depth of spear injury inflicted by the appellant, which clearly shows that it was forceful and had been caused to kill. Accordingly, we find no substance in the plea raised by appellant, and the same is rejected.
17. It may be added here, that we endorse the view taken by the learned trial judge to hold the appellant only guiIty, because in the process of sifting the grains from the chaff, this is the only conclusion which could be arrived at, that it was only the appellant who had caused the fatal blow, in the absence of any background of enmity, we are further of the view, that it was one and the same occurrence resuIting into the death of the deceased. While driving the tractor, rediversion of the branches of Jantar trees on the part 6f the deceased was resented to, which resuIted into their fight, in which, the appellant caused a spear blow to the deceased causing his death, it was not a premeditated murder, and the fight had taken place in the above narrated manner. We are therefore, of the view, that the case squarely falls within section 302 PPC, because the ocular testimony is corroborated by the recovery of bloodstained spear. We are thus of the view, that the prosecution has brought guiIt home to the appellant.
18. Adverting to the quantum of sentence, we are of the view, that this is not a case in which extreme penaIty of death should be imposed upon the appellant because there was no background of enmity, and the affair was quite unpremeditated. Accordingly, we arc of the view, that the ends of justice would be met, the lesser penaIty is awarded to the appellant, and thus, we dismiss the appeal preferred by the appellant with the modification that the sentence of death awarded to the appellant is a; ered into life imprisonment, sentence of fine is, however, maintained.
In the pecuhliar circumstances of this case, we would allow the benefit under section 382-B Cr. P.C, to the appellant. In the terms noted above, appeal prefer by the appellant is dismissed,. Reference is answered accordingly, death sentence is not confirmed.
19. Adverting to the Revision Petition filed by the complainant seeking enhancement of fine and compensation. Notice on behalf of respondent in Revision was accepted by Sardar Muhammad Latif Khan Khosa, Advocate for the appellant. After careful consideration of the facts of this case, and after having heard the learned counsel for the complainant and respondent No.1, we are of the view, that a case for the enhancement of fine is made out. Accordingly, in addition to the amount of fine, which has been ordered to be paid as compensation to the hairs of the deceased, we further direct, that respondent No.1 shall pay an other amount of Rs. Ten thousand as compensation under section 544-A Cr.P.C.,to the legal heirs of the deceased.