' SARDAR MUHAMMAD DOGAR, J:---Allah Ditta (25) and his brother Muhammad Sharif (22) were tried by Sessions Judge, Okara, for having murdered Ali Ahmad at 2.a.m. During night between 21st/22nd December, 1985, in their Chapper, at a distance of one acre from their house in the area of Chak Shah Niwaz, at a distance of 12 miles from Police Station Depalpur.
' The learned trial Judge vide judgment dated 12-10-1987, convicted both of them under section 302/34, P.P.C, and sentenced each of them to death, plus to pay a fine of Rs,10,000 each, in default whereof to undergo R.I. For one year each.
2. Learned trial Judge has made reference for confirmation of death sentence. The convicts have filed appeals. Both the matters are being disposed of together. (It may be noted here that the appellants had first preferred CrA.73/J of 1988, from jail and Allah Ditta filed Cr. Appeal No,574 of 1988, through Advocate also).
3. F.I.R. (Exh.PA) was recorded by Ghulam Farid, Inspector S.H.O. (P.W.12). At 12-50 p.m. On 22-12-1985, on the statement of Siraj Din (P.W.2). The case was originally registered under section 307/34 P.P.C.
But on the expiry of Ali Ahmad, on the same day, offence under section 302 P.P.C. Was also added.
' According to F.I.R., the complainant and his deceased son, who were working at Depalpur, had social relations with Allah Ditta appellant. They had got him employed with Khurshid Ahmad Bodla 3/4 months prior to the occurrence. At the time of employment, Khurshid Ahmad Bodla had paid Rs,3,200 in advance as remuneration on the surety of the complainant and his son. Allah Ditta, however, deserted Khurshid Ahmad Bodla, after one month. They got him employed with Najja (Nazar Qasab). He was also made to pay by them a sum of Rs, 2,000 in advance, as remuneration, but Allah Ditta ran away from that employment as well. As the complainant had stood surety, for advance payments, both the employers were to be paid the advance amount by him.
' On the evening of the night of occurrence, the complainant went to the house of Allah Ditta alongwith his brother Mirza (P.W.3) and his son Ali Ahmad deceased, asking for return of the money. Allah Ditta was not present in his house. His brother Muhammad Sharif was, however, there.
He told them to wait for Allah Ditta. They stayed in their (appellants') Chappari, where a hurricane was also burning. At 2.Am (midnight) Allah Ditta returned home. On seeing them sitting in the Chappar, he lost temper and while hurling abuses told Ali Ahmad that he had no money and nor he was going to pay the same. In return, Ali Ahmad said:{{URDU TEXT}} ' Whereupon Allah Ditta picked up a Thapa and Muhammad Sharif picket a Sota. Both of them attacked Ali Ahmad, after thereatening the P.Ws. Allah Ditta gave injuries with the Thapa to Ali Ahmad on the left a'rm, shoulder, chest, left side of the chin, nose and left thigh, while Sharif caused injuries with the Sota on the right and left side of the back, right thigh, left foot and buttocks.
Thereafter the appellants turned towards the witnesses, who receded. The witnesses rescued Ali Ahmad by beseeching. The complainant and Mirza P.W. Removed the deceased on a donkey cart to Civil Hospital, Depalpur and got him admitted there.
4. Ghulam Farid; S.H.O., after recording the F.I.R., reached Civil Hospital, Depalpur. On being informed that All Ahmad had expired, he examined his dead body and sent the same for post-mortem examination. After preparing injury statement (Exh.P.L and inquest report (Exh.P.K). Thereafter, he went to the spot wherefrom he collected lanterin (P.1) and took the same into possession vide memo. Exh.P.E.
The appellants were arrested by him on 23-12-1985. On the same day, Allah Ditta led to the recovery of Thapa (P.3) from his house, which was taken into possession vide memo. Exh.P.D. Sota (P.2) got recovered by Sharif appellant, on the same day, from his residence, was taken into possession vide memo. Exh.P.C.
' Challan was submitted to Court on completion of necessary investigation.
5. Statements of 12 P.Ws. Were recorded at the trial.
6. Dr. Raja Muhammad Masoud Sadiq, who had performed autopsy on 22nd of December, 1985 at 4-30 p.m. Appeared as ' P.W.10. He had noted following injuries on the body of the deceased:--
(1) A contusion mark, 2-1/2 c.m. x 2 c.m., on the bridge of nose on the right side.
(2) A lacerated wound, 3-1/2 c.m. x 1/2 c.m. x hone deep at the centre of the chin.
(3) A contusion, 1-1/2 c.m. x 1/2 c.m. On the left tempro-mandible joint.
(4) A contusion mark, 2 c.m. x 1 c.m., on the back of right pinna.
(5) A contusion mark 15 c.m. x 3 c.m. On the front and upper part of left side of chest.
(6) A lacerated wound, 1 c.m. x 1 c.m. x bone deep on the back and middle of left fore-arm, with mark swelling 35 c.m. x 20 c.m. On the whole forearm.
(7) A contusion mark of 6 c.m. x 2-1/2 c.m. On the top of left shoulder-joint.
(8) A contusion mark 15 c.m. x 7 c.m. On the outer lower part of left arm.
(9) Multiple contusion mark in the area of 42 c.m. x 20 c.m. On the back of left chest.
(10) Multiple contusion mark in the area of 40 c.m. x 20 c.m., on the back of right chest.
(11) A contusion mark 25 c.m. -x 25 c.m. On 'he left buttock.
(12) A contusion mark 24 c.m. x 21 c.m. On the right buttock.
(13) A contusion mark 10 c.m. x 5 c.m on the back of left knee-joint.
(14) A contusion mark, 5 c.m x 2 c.m. On the front of right knee.
(15) A contusion mark, 2 c.m. x I c.m. On the outer side of right ankle joint.
' On dissection, left ulna was found fractured under injury No,6. All the injuries were opined to have been inflicted by blunt weapons. Death was opined to have occurred due to severe hemorrhage and irreversible hypo volume shock, as a result of the injuries. All the injuries were opined to be sufficient to cause death in the ordinary course of nature collectively. Probable time between injuries and death was opined to be 12 hours while time between death and post-mortem was opined to be 3-1/4 hours.
' The same doctor had medically examined the deceased whilst alive at 1. p.m. On the same day, i,e, 22nd of December, 1985, and had noted the same injuries, which he had found at the time of post-mortem. He had opined the infliction of those injuries with blunt weapons, within probable duration of 12 hours.
6. The ocular account was deposed to by Siraj Din (P.W.2), father of the deceased and Mirza (P.W.3), paternal-uncle of the deceased.
' Siraj Din repeated the facts given by him in the F.I.R., but did not mention the taunting remarks of the deceased to Allah Ditta appellant. He, however, expressed inability to give the seats of the injuries inflicted by each of the accused. He also added that after the deceased had fallen, as a result of the injuries, Allah Ditta had said that "We should remove Allah Ditta otherwise they would murder him there." He stated that thereafter they had taken away Ali Ahmad to Pucca road from where he was removed to Civil Hospital on a Rehri. During cross-examination, he stated that Khurshid P.W. Had obtained writing with regard to the employment of Allah Ditta accused but he did not know if Khurshid had shown that document to Thanedar. He stated that the amount due to Khurshid P.W. Was still outstanding. (The statement was made by the witness on 18-11-1986.) He expressed inability to say as to how many servants Khurshid had. In answer to another question, he stated that the accused had made payment to Najja P.W., after 2/3 months of the occurrence. He stated that Sharif accused had served them with night meals and had also provided charpoys and beddings to stay for the night. He stated that Allah Ditta had come there while they were still talking. He conceded that Allah Ditta had not made any promise of payment of money at that time.
He admitted that neither he nor Mirza P.W. Had suffered any injury during the occurrence. He expressed inability to say whether any blood had fallen at the spot? In answer to another question, he stated that he did not remember, if their clothes were stained with blood while removing the injured to Pucca road. He denied the suggestion that Ali Ahmad was found injured at the hands of some unknown persons, near the canal by servants of Asghar Khan, who had looted him, and that he had lodged a false report against the appellants.
' Mirza (P.W.3) while corroborating the statement made by P.W-2 with regard to their stay at the Chappar of the appellant, and actual happening of the occurrence, also stated that they had caught hold of both the accused and pushed ,them back, when they were injuring All Ahmad, and that the accused had then said that Ali Ahmad should be removed. During cross-examination, he stated that he had never accompanied Siraj P.W. To the accused for demanding money prior to the day of occurrence. He expressed inability to give the location of the injuries caused by each of the accused. He expressed ignorance whether Ali Ahmad had bled from injuries. He stated that the accused did not use abusive language while giving injuries to Ali Ahmad and had also not raised noise. He clarified that the accused had not injured them on thier intervention. He denied the suggestion that servants of Asghar Lambardar had found the deceased lying injured near the canal and that they (P.Ws.) had taken him to Depalpur, on being informed. He denied the suggestion that they had falsely involved the accused.
7. Nazar Muhammad alias Najja, with whom the complainant got employed Allah Ditta appeared as P.W.7 and stated that father of the accused had paid back his money 2-2-1/2 months after the occurrence. Khurshid Bodla with whom also the complainant had got Allah Ditta employed, on payment of advance remuneration appeared as P.W.B. After making statement that he had paid a sum of Rs,3,200 as advance to Allah Ditta, h,; stated during cross-examination that his amount had been paid to him before the present occurrence.
8. Ghulam Farid, Inspector S.H.O, who had registered the case, investigated the same and submitted challen to Court, after arrest of the accused and recoveries of weapons from them, appeared as P.W-12 and deposed those facts. During cross-examination, he stated that there were struggle marks at the place of occurrence. He denied that the information of the incident was supplied to him by Asghar Lambardar.
9. The appellants during statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. Allah Ditta in answer to the question, "Why this case against you and why the P.Ws. Deposed against you", stated as follows:-- "The P.Ws. Are closely related to the deceased and they have falsely involved me. In fact Ali Ahmad deceased had been murdered by some unknown person while depriving him of his money near Sukh Pur. Ali Ahmad was not of good character and we had forbidden him to visit our house, therefore, I have been falsely involved due to suspicion."
' Muhammad Sharif, in answer to the same question, stated that he had been involved falsely for the reasons stated by his brother Allah Ditta.
' Both of them appeared as their own witnesses in defence, wherein also they pleaded innocence.
During cross-examination, both of them denied to have murdered the deceased.
' The statements of the remaining witnesses more or less are of a formal nature.
10 . We have examined the contention of the learned counsel for the appellants, after going through the evidence and the impugned judgment, that the evidence on record does not make out a case of culpable homicide amounting to murder against the appellants and that at the best they can be held liable of having committed offence under section 304, Part II P.P.C.
' We have also considered the argument of the learned counsel for the State that the prosecution have clearly proved the case against the appellants of having committed intentional murder.
11. It is not the prosecution case that there was any animosity between the appellants and the complainant. In fact, they had good social relations amongst them and for that reason the complainant and the deceased had got Allah Ditta appellant first employed with Khurshid and then with Najja an payment of advance remunerations. Their only grievance was that they were feeling that the appellant had let them down by running away from his employers. They had ostensibly gone to the house of the accused Allah Ditta to ask him to return the amount.
' Sharif appellant, who is real brother of Allah Ditta met them. He not only told them to wait, as Allah Ditta was expected to return, but also entertained them. He served them with meals and provided Charpoys and beddings also to stay for the night. When Allah Ditta had told them that he had neither any money nor he was going to return the same, Ali Ahmad had retorted, that "Had he given any Rishta against the sum? Or was he going to do that? And that it is was thereupon that both the accused had picked up Thapa and Sota and inflicted injuries to Ali Ahmad. It is clear that had the deceased, not, used, such a language, the appellants, particularly Sharif, who had served them as a host....So nicely since their arrival would not have opened the attack. It is also in evidence that when the witnesses had stopped the appellants from inflicting injuries, they had not only stopped but had also told them (P.Ws.) to take away him (deceased) or they would murder him. It is also in evidence (in the statement of P.W-3) that when they, i,e, witnesses, had pushed away the appellants, they had not inflicted any injury to any one of them and rather had asked them to take away Ali Ahmad. It is obvious from the above facts that the appellants at no stage had formed an intention to commit the murder. The seats and the nature of the injuries inflicted by the appellants also lends support to the argument of the learned counsel that the appellants had no intention to commit the murder.
' It is worth noticing that the deceased was found to have suffered in all 15 injuries. Most of them were contusion marks or lacerations. Except fracture of left ulna at lower end under injury No,6, no other injury was found to have caused fracture or any damage causing incapacitation of the part beneath any of the injuries. The deceased had not bled either at the spot or on the road where he was kept lying, waiting for the transport. In fact, his father and uncle expressed inability to say whether the clothes of the deceased were also stained with blood not. In the circumstances, no inference can be drawn either from the seats or ature of the injuries that the assailants had any idea of committing culpable homicide amounting to murder. In the circumstances, we have no doubt in olding that the appellants cannot be held liable for having committed culpable homicide amounting to murder. They can at best be charged of having ed injuries with a knowledge that same were likely to cause death, but intention to cause death or cause such bodily injury likely to cause death. being so, the conviction and sentences of the appellants under section 302 P.P.C. Are set aside. They are instead convicted under section 304 Part II P.F. And sentenced to undergo R.I. For seven years each, plus to pay a fine of Rs, 4,00( each, in default whereof to suffer R.I. For one year each. Whole of the amount _ f fine shall be paid as compensation to the heirs of the deceased.
They shall given the benefit of the provisions of section 382-B, Cr.P.C. As well.
' Sentence of death not confirmed.