' Muhammad Hussain, aged 68 years, his sons Ihsanul Haq, aged 25 years, Altaf Hussain, aged 14 years, along with his daughter, Mst. Shehnaz Kausar, were tried under section 307/34 PPC, by Magistrate Section 30, Khushab, for having launched murderous assault on Hafiz Ahmad Ali (PW 2) and his son Nasir Ahmad (PW 3), in their house, in Chak No, 2/TDA; at a distance of nine miles from Police Station Mitha Tiwana at 7/8 p.m. On 19-6-1987. The learned Magistrate convicted all three of them under section 307/34 PPC vide judgment dated 28-2-1989 and awarded sentences as follows:--
(1) Ihsanul Haq and Altaf Hussain; sentenced to five years each, plus to pay a fine of Rs, 10,000 each, in default whereof to undergo R.I. For six months each.
(2) Muhammad Hussain has been sentenced to two years' R.I. Plus to pay a fine of Rs, 5,000 in default whereof to undergo R.I. For three months.
' Out of the fine, on realization, Rs, 5,000 have been directed to be paid to each of the injured PWs.
' Mst.. Shehnaz Kausar was acquitted vide the same judgment.
2. The convicts have filed appeal.
3. The FIR was lodged at Police Station Mitha Tiwana by Sultan Mahmood (PW 1), real nephew of Ahmad Ali at 9-30 p.m. On 20-6-1989. It was recorded by Muhammad Aslam, MHC (PW 7).
' According to FIR, Muhammad Hussain, Altaf Hussain and Mst. Shehnaz, armed with Sotis, accompanied by Ihsanul Haq, armed with Kulhari, had entered the house of Hafiz Ahmad All and launched attack saying that they had come to teach a lesson for killing their she-goat. Both the injured PWs came out of the house. Muhammad Hussain gave a Soti blow to Hafiz Ahmad AR on the upper part of the left arm. Mst. Shehnaz inflicted a Soti blow on his back. Ihsanul Haq gave a Kulhari blow on his head. He fell down. When Nasir Ahmad went ahead to rescue his father, Muhammad Hussain, Mst. Shehnaz and Altaf Hussain gave him blows with Sotis, hitting his left shoulder, left arm and legs. Ahmad Ali was given more blows while lying on the ground by the accused armed with Sotis.
' Motive for the occurrence, mentioned, is, that she-goat of Muhammad Hussain died on 19-6-1987 He suspected that she-goat was killed by Nasir Ahmad PW.
4. Statements of 7 PWs were recorded at the trial. The ocular account was deposed to by Sultan Mahmood (PW 1), Hafiz Ahmad Ali (PW 2), Nasir Ahmad (PW 3) and Ghulam Rasul (PW 4).
Sultan Mahmood repeated the facts given by him in the FIR. All the other three witnesses corroborated him. The suggestions put to PWs 2 and 3 that Mst. Safia daughter of Muhammad Hussain and her younger brother had gone to their house to lodge a protest for having injured the she-goat and they had attacked and caused injuries to them, were denied by them. Further suggestions put to them that the villagers on hearing alarm of Mst. Safia and her younger brother reached the spot and had given blows to them by brickbats, were also denied by them. The suggestions put to all the eye-witnesses that they had made incorrect statements on account of being interconnected and also for being annoyed with them were denied by each of them.
5. Dr. Muhammad Alam, who had medically examined Nasir Ahmad and Hafiz Ahmad Ali on 20-6- 1987 appeared as PW 5. He had noted a lacerated wound on the head of Nasir Ahmad (PW 2), a contusion on the upper side of the left shoulder, an abrasion on the left hand-joint, and an abrasion on the back of left forearm. All the injured were opined to have been caused by blunt weapon and were declared simple.
' Hafiz Ahmad Ali was found to have suffered a lacerated wound on the left side of head, another lacerated wound also on the left side of the head above the ear, an incised wound on the back side of the head, two lacerated wounds on the right arm, a contusion on the left hand, a contusion on the left shoulder and a contusion on the chest. All the injuries except the incised wound, were opined to have been caused by a blunt weapon. The injury described as incised wound, was opined to have been caused by a sharp-edged weapon. The two contusions noted on the right arm were declared grievous, after X-ray examination. Rest were declared simple.
6. Manzur Ahmad, ASI, who had investigated the case appeared as PW 6. He also deposed about the recoveries of Sotis at the poiviting out of Muhammad Hussain and Ihsanul Haq.
7. The appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole, and contended that on the day of occurrence, Mst. Safia and her younger brother had gone to the house of Hafiz Ahmad Ali to lodge a complaint for having injured their she-goat, where both of them were given injuries and that on their alarm some persons came there and caused injuries to Ahmad Ali and Nasir Ahmad.
' Muhammad Hussain appeared as his own witness as DW 3 and produced MLRs (Exs.DW-3/A and DW-3/B) of Altaf Hussain, his son, and Mst. Safia.
8. Ghulam Ali, SI was examined as DW 1 in support of the plea that Mst. Shehnaz had been declared innocent during investigation, while Dr. Muhammad Afzal, DHO was examined as DW 2 in support of the plea that Dr. Muhammad Sarfraz had gone abroad and was not likely to come back in the near future.
9. The Contention of the learned counsel for the appellants that the prosecution had failed to prove the motive for the occurrence stands negative from the suggestions put on behalf of the appellants about the occurrence having happened, on account of damage to the she-goat. The conclusion arrived at, therefore, by trial Court that the motive set up by the prosecution stood proved, is based on correct appreciation of evidence and does not call for any interference.
10. The argument of the learned counsel for the appellants that the FIR in this case was lodged after unexplained delay, examined in the light of record also does not appear to have any force. Apart from the fact that the FIR was lodged after the medical examination and admission of the injured PWs in the hospital, the other important aspect is that no undue advantage of the delay appears to have been taken by the prosecution.
11. The contention that the ocular account has been furnished by interested witnesses also lacks force, in view of the fact that the occurrence was initiated in the house of Hafiz Ahmad All and his son Nasir Ahmad and so they were the natural witnesses. Moreover, both of them had suffered injuries and so their presence cannot be doubted. The presence of the complainant (PW l), being real nephew of Ahmad Ali, at the spot can also not be doubted. Moreover, there was no history of enmity between the witnesses and the appellants prior to the dispute about she-goat. In the circumstances, their testimonies cannot be termed as interested or biased.
12. The contention of the learned counsel that although according to the witnesses Ihsanul Haq had allegedly used Kulhari but only Soti was recovered from him, does not destroy the prosecution case, as deposed to by the eyewitnesses. The contention is, therefore, repelled.
13. The defence version put forth by the appellants at the trial is devoid of any force. Firstly for the reason that they had failed to produce the doctor at the trial, who had allegedly examined Mst.
Safia and Altaf Hussain. But even if that was forgone, the entries in their MLRs also are contradictory to the stand taken by the appellants. The stand taken by the appellants that the PWs had suffered injuries as a result of the brick batting by other villagers is contradictory to the medical evidence produced by the prosecution. The injuries clearly appear to have been caused by regular weapons, particularly one which was found to have been caused by a sharp-edged weapon. The defence version obviously seems to be an afterthought.
14. The ocular account is fully corroborated by the medical evidence as well as by the evidence of motive. In the circumstances, the convictions of the appellants under section 307/34 PPC are maintained.
15. However, there appears to be force in the contention that the sentences awarded in this case are not in conformity and proportionate to the crime committed.
Only one injury specifically has been assigned to Muhammad Hussain with Soti. The same was found simple. He was admittedly 66 years at the time of occurrence. In the circumstances, I am convinced that sentence of one year's R.I., plus to pay a fine of Rs, 1,000 in default whereof to undergo R.I. For three months will meet the ends of justice. The sentence awarded to him, therefore, is reduced accordingly.
' Altaf Hussain was 14 years of age at the time of trial, which means he would be 13 at the time of occurrence. No specific injury to any of the two injured PWs has been assigned to him. His sentence, in the circumstances, is also reduced to one year R.I. Plus to pay a fine of Rs, 1,000 in default whereof to undergo R.I. For three months.
' The sentence of five years' R.I. Plus to pay a fine of Rs, 10,000 to Ihsanul Haq is obviously excessive, in view of the fact that the injury found to have been caused by him with Kulhari was found simple.
His sentence, therefore, is also reduced to two years' R.I., plus to pay a fine of Rs, 2,000 in default whereof to undergo R.I. For six months.
' Half of the fine, on recovery from each of the appellants, shall be paid in equal share to both the injured PWs.
' The appellants shall be given the benefit of the provisions of section 382-B, Cr.P.C.