' Mamora son of Pehlwan has filed Criminal Appeal No, 541 of 1986 and Machia son of Salehoon has filed Criminal Appeal No, 31 of 1987 through jail against the judgment dated 22-7-1986 passed by Sessions Judge, Toba Tek Singh, whereby both of them are convicted under section 302/34, P.P.C.
For the murder of Nur Muhammad, deceased, and sentenced to imprisonment for life plus fine of Rs,1,000 or in default to undergo one year's R.I. Each besides paying compensation of Rs,15,000 or in default to undergo six months' RI. Each. Benefit of provision of section 382-B, Cr.P.C. Was also allowed to them. I propose to dispose of both the appeals by this single judgment.
2. Machia, appellant is real brother of Mst. Sabban (P.W.13), the mother of Nur Muhammad deceased while Mamora appellant is husband of Mst. Sakina, daughter of Mst. Sabban aforementioned and sister of Nur Muhammad deceased. Manzoor Hussain (P.W.14), is brother of the deceased while Mst. Sabban is mother of the deceased.
3. The occurrence took place at 4 p.m. On 10-10-1985 near the Dera of Machia, appellant, within the revenue limits of Chak No, 321/GB, nine miles away from Police Station Chutiana, District Toba Tek Singh. F.I.R. (Exh.P.H.) was lodged at the said police station by Mukhtar Ahmad (P.W.12), Chowkidar of the village, at 5 p.m. Next day i,e, 11-10-1985, recorded by Muhammad Hanif A.S.I. (P.W.15).
4. The motive for the occurrence was that 15/16 years before the occurrence Mst. Sakina, sister of Nur Muhammad, (deceased) was married to Mamora, appellant who resided in Chak No, 322/GB.
On 9-10-1985 said Mst. Sakina fell out with her husband Mamora, appellant and came to live with her parents in Chak No, 321/GB. On the fateful day, at 9/10 a.m. Mamora and Machia, appellants, went together to the house of Mst. Sabban (P.W.13) where Nur Muhammad deceased was also present and asked Nur Muhammad and Mst. Sabban to send Mst. Sakina with them. Nur Muhammad deceased refused to send Mst. Sakina with them saying that Mamora, appellant, had given her beating. At this both the parties exchanged hot words. Nur Muhammad deceased, allegedly abused them and turned them out of the house. Both the appellants resented this and left the place holding out threats to them to avenge their insult.
5. As for the main occurrence, as disclosed at the trial was that at 4 p.m. On the day of occurrence, Nur Muhammad deceased happened to pass in front of the house of Machia appellant while his mother Mst. Sabban and brother Manzoor P.Ws. Were following him at a distance of two Killas.
Mamora appellant at that time was standing outside Machia's Dhari who held him in his grip, while Machia appellant coming out of his Dhari armed with Sota dealt number of blows with it to the deceased as a result of which he fell down. This occurrence was witnessed by Mukhtar Ahmad (P.W.12), Mst. Sabban (P.W.13) and Manzoor Ahmad (P.W.14). The appellants thereafter decamped from the scene. Nur Muhammad deceased was removed by the witnesses for medical treatment to Pir Mahal Hospital from where he was referred to Civil Hospital, Faisalabad. In view of his precarious condition he (deceased) was further referred to General Hospital, Lahore where he ultimately died on 11-10-1985 at 10-40 a.m. After the deceased had died, Mukhtar Ahmad Chowkidar (P.W.12) repaired to the Police Station Chutiana, and lodged report Exh.P.H. There.
6. Dr. Ghulam Dastgeer (P.W.10) Medical Officer, Primary Rural Health Centre, Pir Mahal, who had examined Noor Muhammad injured on 10-10-1985 at 5-30 p.m. Found the following injuries on his person:--
(1) A lacerated wound 6 c.m. x 1 c.m. x bone deep on the right side of head 14 c.m. Above the right ear and oblique in direction. The head was depressed on the right side and swollen on the left side.
(2) An abraded contusion 8 c.m. x 1 c.m. On the front of left side of chest just on the clavical and below the clavical.
(3) A painful swelling of the elbow of right arm.
(4) A painful swelling 3 c.m. x 4 c.m. On the right temple.
(5) Nail of the middle finger of left hand was crushed and middle finger was swollen with bleeding below the nail.
(6) A contusion 4 c.m. x 3 c.m. On the front side of the left side of chest. According to doctor the patient. Was in coma and unconscious. Injuries Nos.2, 3 and 6, according to doctor, were result of fall. All the injuries were caused with blunt weapon within the duration of one hour.
' Dr. Saeed Ahmad (P.W.16) conducted post-mortem examination on the dead body of Nur Muhammad deceased on 12-10-1985 at 12-15 p.m. And noted 12 injuries on it. According to doctor, left parietal hone of the deceased was fractured which had proved fatal while the remaining injuries were simple in nature. All these injuries were the result of blunt weapon. The head injury was sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was 12 to 24 hours and between death and postmortem examination 20 to 30 hours.
7. Dr. Muhammad Ashraf Javed, Medical Officer, Basic Health Centre Chak No, 333-GB medically examined Mamora (appellant) and noted following injuries on his person:--
(1) An incised wound 2-1/2" x 3/4" x 1/2" over the skull bone, The wound was skin deep 3" from left car canthus and about 3" from left eyebrow.,
(2) A lacerated wound 1-1/4" x 1/2" over lateral aspect of right upper arm 7" away from the right shoulder joint.
(3) A tender swelling 2-1/2" x 2" over the skull bone 3" from right ear canthus and 4-1/2" from right eyebrow.
(4) A contused tender swelling 3" x 2-1/2" over the back of left hand with restricted painful movement of whole left upper limb.
(5) There was history of vomiting with tenderness in epigastrium. There was also history of difficult breathing.
(6) A contused tender swelling 3" x 1" over the back of chest just below the lower border of left scapula.
(7) A contusion 6" x 1" over the back of chest about the level of last ribs on left side.
' Injury No, 1 was caused with sharp-edged weapon and the rest with blunt weapon within the duration of five hours.
8. After recording the F.I.R. Exh.P.H., A.S.I. Muhammad Hanif (P.W.15) reached the place of occurrence.
He removed and secured blood-stained earth from the spot vide memo. Exh.P.A. On reaching General Hospital, Lahore, he prepared necessary documents and got the dead body post- mortemed from Dr. Saeed Ahmad (P.W.16). S.I. Khalid Pervaiz (P.W.7) partly investigated the case who arrested both the appellants on 22-10-1985. On 24-10-1985 Machia appellant while in custody, got recovered Sota P.1 (not blood-stained) at his pointation from his house vide memo. Exh.P.B. He challaned both the appellants to Court after completing necessary investigation.
9. At the trial prosecution examined 16 witnesses in support of its case. The appellants, in their statements under section 342, Cr.P.C. Denied the allegations and produced no evidence in defence.
Mamora appellant, while appearing under section 340(2), Cr.P.C. Stated on oath that he had not secured Noor Muhammad deceased in his grips nor facilitated Machia to inflict injuries on the person of the deceased. He said, Machia appellant suspected the deceased as having illicit relations with his wife Mst. Jannat, therefore, he restrained him from passing in front of his house.
On the day of occurrence Machia saw Noor Muammad (deceased) passing that way and attacked him. He (Mamora appellant) tried to rescue the deceased and got injured at the hands of Machia.
Machia appearing under section 340(2), Cr.P.C. Stated on oath that he had been falsely implicated in the case by the police and the complainant party being in collusion with Mamora appellant.
10. Prosecution mainly relied on ocular testimony furnished by Mukhtar Ahmad, Chowkidar (P.W.12), Mst. Sabban (P.W.13) and Manzoor Ahmad (P.W.14) and extra-judicial confession made by Machia appellant before Haitam (P.W.8) and Ghulam Sarwar (P.W.9). Learned trial Court on consideration of the material on record believed the prosecution story and convicted and sentenced the appellants as indicated above.
11. Eye-witnesses, Mukhtar Ahmad (P.W.12), Mst. Sabban (P.W.13) and Manzoor Ahmad (P.W.14) have fully supported the prosecution version. P.W.13 and P.W.14 are closely related to the deceased, whose testimony is corroborated by P.W.12, a Chowkidar of the village who is a disinterested witness. Their evidence inspires confidence and I am convinced that they were present at the time of occurrence and had seen it. They all have admitted that Mamora appellant was injured during this transaction. Mamora suffered as many as 7 extensive and painful injuries which could not be self-suffered. The observation of the learned trial Court made in para. 16 of the impugned judgment, that Mamora had suffered one or two minor injuries and procured false medical certificate is, therefore, not correct. Considering the prosecution case and the statement made by Mamora appellant by placing them in juxtaposition, I find that the statement made by the appellant is not only reasonably probable but also gets supports from statements of Haitum (P.W.8) and Ghulam Sarwar (P.W.9) who stated that Machia appellant has confessed before them to have injured the deceased single-handedly. The fact that the occurrence took place in front of the Dera of Machia lends further support to Mamora's stand. It is, therefore, reasonable to infer that on seeing the deceased passing in front of his house despite warnings. Machia, appellant, assaulted and injured him. Consequently, I hold that Mamora, appellant did not act in concert with Machia rather he got injured while rescuing the deceased. Consequently, Mamora appellant, is given benefit of doubt and his conviction and sentence is set aside and is acquitted. He is on bail.
He is discharged of his bail bond. There is overwhelming evidence on record against Machia, appellant] Muhammad died as a result of injuries he suffered at the hands of Machia. Next question is that what offence has he committed? Since he did not go to the place of deceased to attack him, he did not repeat the blow on the head of the deceased either and most of the injuries are simple in nature, therefore, it appears that he did not intend to kill him but wanted to teach him a lesson for the deceased was suspected to be having affair with his wife. It is, however, evident that the appellant knew that by giving a stick blow on head of the deceased his death would be caused. In the circumstances, I hold Machia, appellant, guilty under section 304, Part II, P.P.C. His conviction is accordingly altered from sections 302 to 304, Part II, P.P.C. And is sentenced to ten years' R.I. And line of Rs,5,000 or in default to undergo one year's R.I. The fine, if realized, shall be paid to the heirs of the deceased as compensation. He is allowed benefit of the provision of section 382- B, Cr.P.C.
13. The result is that the appeal of Mamora, appellant, is allowed and the appeal of Machia, appellant, is partly allowed in the terms indicated above.