' SARDAR MUHAMMAD DOGAR, J.--Muhammad Tahir (21) and Shahid (16-17) real brothers were tried by the Sessions Judge, Toba Tek Singh, alongwith their father Muhammad Munir, for having murdered Muhammad Arif (son of real brother of Muhammad Munir), on 7-12-1986 at 3-30 p.m., in thee Ihata near their house, in Chak No, 395/G.B., at a distance of 6 miles from Police Station, Sadar Toba Tek Singh.
' Learned trial Judge, vide judgment dated 2-8-1987, convicted Muhammad Tahir and Shahid under section 302/34, P.P.C. And awarded sentences as follows:-- Muhammad Tahir: Death; Shahid: Imprisonment for life; ' Both sentenced to pay a fine of Rs,10,000 each in default whereof to undergo R.I. For one year each.
They have also been directed to pay a sum of Rs,15,000 each, as compensation to the heirs of the deceased, each in default of payment of which to undergo Si. For six months each.
' Co-accused Muhammad Munir (their father) was acquitted vide same judgment.
2. The convicts have filed appeal. Learned Sessions Judge has made a reference for confirmation of death sentence awarded to Muhammad Tahir. The State has filed appeal against the acquittal of Muhammad Munir while the complainant has filed criminal revision, wherein prayer has been made for enhancement of sentence of Shahid from imprisonment for life to death, and for awarding enhanced compensation. As all the matters arise out of the same judgment, they are being disposed of together.
'
3. F.I.R. Exh.P.G. Was recorded by Muhammad Sadiq, S.I. P.W.12 at 5-05 p.m. On 7-12-1986 on the statement of Muhammad Saleem P.W.9.
' According to F.I.R. Muhammad Arif son of the complainant who was a student of Engineering University, Lahore had come home. The complainant along with Muhammad Arif his son started digging foundations in the vacant Ihata, adjacent to the house of Muhammad Munir on 6-12-1986, for constructing a house. Muhammad Munir, Muhammad Tahir and Shahid came there and estopped them from digging the foundations, whereupon exchange of abuses took place amongst Muhammad Arif and Muhammad Tahir etc. The complainant separated them and hushed up the matter. On the following day, Muhammad Arif was digging the foundations at 3-30 p.m. There came Muhammad Munir armed with a spear, Muhammad Tahir armed with a hatchet and Shahid armed with a Chhuri. Muhammad Tahir gave a lalkara that they have come there to avenge abuses and the insult hurled by him. Feeling afraid, Muhammad Arif came out of the foundations leaving the Kassi there. Shahid appellant gave a Chhuri blow which resulted in injury on the palm of left hand of Muhammad Arif, on his having made an attempt to ward off the blow. The spear blow given by Muhammad Munir (acquitted accused) struck him on the right knee. Shahid appellant gave a Chhuri blow on the back while Muhammad Tahir gave 3 successive blows with hatchet on the right side of face, left side of head and back. Muhammad Arif fell down, whereafter Munir gave a spear blow on his right flank and left shoulder.
' The occurrence, apart from the complainant, was also witnessed by Muhammad Rafi (given up P W) and Abdur Rashid P.W. 10, Muhammad Arif died on the way, while being taken to Civil Hospital, Toba Tek Singh on a car. The complainant went to lodge the report after placing the dead body, in the Civil Hospital.
4. Muhammad Sadiq, S.I. After recording statement went to the hospital. He entrusted the deadbody to Muhammad Ashraf, Constable for post-mortem examination, after preparing injury statement Exh.P.L. And inquest report Ex.P.M. Thereafter, he went to the spot, wherefrom he collected blood-stained earth and four broken teeth P.6/1-4, vide memo Exh.P.E.
' All the accused were arrested on 12-12-1986. Blood-stained spear, produced by Muhammad Munir, blood-stained hatchet produced by Muhammad Tahir and blood-stained Chhuri produced by Shahid on the same day, were taken into possession vide memos. Ddis.P.H., P.J. And P.K.
Respectively. The challan was submitted to Court after completion of necessary investigation.
4. Statements of ten P.Ws were recorded at the trial. Reports Ex. P.O. From the office of the Chemical Examiner and P.O. From the office of the Serologist were also tendered in evidence. The remaining witnesses were given up as unnecessary.Dr. Abdul Jabbar who had performed autopsy at 8-00 a.m. On 8-12-1986, appeared as P.W.B. He had noted following injuries on the body of the deceased:--
(1) An incised wound 8 c.m. x 2 c.m. On right cheek going into oral cavity cutting all upper right teeth through and through.
(2) An incised wound 7 c.m. x 2 c.m. x deep up to muscle on front of right side of chest just below and medial of right nipple oblique, corresponding cuts were present on sweater, shirt and vest.
(3) An incised wound 15 c.m. x 4 c.m. x deep up to cranial cavity cutting parietal and temporal bones through and through on the right side of head 3 c.m. From mid-line upto left ear.
(4) An incised wound 4 c.m. x 2 c.m. x muscle deep on the outer aspect of upper end of left shoulder, horizontally corresponding cuts were present on the shirt and vest.
(5) An incised wound 3 c.m. x 1 c.m. x deep up to bone on the inner aspect of left palm.
(6) An incised wound 8 c.m. x 2 c.m. x going up to abdominal cavity on right border of abdomen.
Intestines were coming out of the wound. On dissection cuts were found on peritoneum and right lobe of liver was cut under the injury. Peritoneal cavity was full of blood.
(7) An incised wound 12 c.m. x 5 c.m. On the back of lower part of right chest with corresponding cuts on shirt, vest and sweater. On dissection, it was found that right ribs Nos. 7 and 8 were cut through and through upto abdominal cavity. Right lobe of liver was cut under this injury.
(8) An incised wound 3 c.m. x 1 c.m. x skin deep on the inner aspect of right knee. Corresponding cut was present on the shalwar.
' Scalp, skull, mebrances and brain were found injured under injury No,
1. Death was opined to have occurred due to shock and haemorrhage resulting from injuries Nos. 3, 6 and 7, which were opined to be individually sufficient to cause death in the ordinary course of nature. Injuries Nos. 1, 3, 6 and 7 were declared grievous while the rest were declared simple. The injuries were opined to have resulted from sharp-edged weapon.
' Probable time between injuries and death was opined to be about half an hour while the time between death and post-mortem was opined to be about 12 to 18 hours.
' During cross-examination he stated that he did not find any lacerated edges in the depth of injuries Nos. 4, 6, 7 and 8.
' The ocular account was deposed to by P.W.9 Muhammad Saleem and P.W.10, Abdur Rashid.
' Muhammad Saleem P.W. Repeated the facts given by him in the F.I.R. During cross-examination he gave the distance of his house from the place of occurrence to be 300 feet. He stated that he had three sons and a daughter, and that Muhammad Javed the eldest one, was also a student of Engineering University. He gave out that Muhammad Arif deceased had not committed excess in exchange of abuses. While admitting that Mohammad Arif had gone to dig the foundations, he denied that he had gone armed with a hatchet also. He admitted that the foundations were being dug near the wall of the house of the accused, when the quarrel started. He denied the suggestion that Muhammad Arif deceased,on account of rivalry wanted to demolish the wall of the deceased by digging. He stated that on the first day, they had dug foundations to a depth of one foot. He gave out that half of the foundations dug, had been filled by them when the draftsman had visited the spot. He admitted that bricks had not yet arrived at the place of occurrence for construction: He, however, added that he had ordered for that. He also admitted that mud had not been prepared at the spot for construction of wall. According to him, Muhammad Munir had given spear blows in a thrusting and stabbing manner. He gave out that Rashid was his nephew. On being asked specifically he expressed inability to say as to what pecuniary loss would have occurred to them if the deceased had not dug the foundations. He denied the suggestion that Muhammad Rafi and Abdur Rashid had not witnessed the occurrence and that they had set up a false case.
7. Abdur Rashid P.W.10 corroborated the statement made by P.W.9 with regard to the happening of the occurrence. During cross-examination he admitted that P.W. Rafi was his maternal-uncle.
Although he denied that he had stated before the Police in his statement Exh. DA that he alone was present near the place of occurrence and had gone to the spot on hearing alarm, yet on confrontation he was found to have stated so at portion A to A. He stated thal all the three injuries given with spear by Munir were in thrusting fashion. He denied the suggestion that he had not witnessed the occurrence and made a false statement on account of relationship. He also denied the suggestion that quarrel had taken place amongst the deceased and Muhammad Tahir only and that the other two accused were not present at the time of occurrence.
8. Muhammad Irshad, who, according to the prosecution, had witnessed the recovery of blood- stained weapons at the instance of the three accused, appeared as P.W.11. He stated that each of the accused had' produced the weapon, of his own, at the time of arrest.
' During cross-examination he was found to have given a different story about the recovery of weapons, while making statement Exh. D.0 before a Magistrate. In that, he was found to have stated that each of the accused had led to the recovery of weapons, from different places.
9. Muhammad Sadiq, S.I. Who had registered the case, arrested the accused, and submitted the challan after completion of investigation, appeared as P.W.12 and deposed those facts. During cross-examination, he admitted that on spot inspection he had noted the depth of foundations dug, as two feet. He stated that foundations had been dug along with the wall of house of Muhammad Munir accused. He added that he had not found any material lying at the spot for construction purposes. The statements of the remaining P.Ws. Are more or less of a formal nature.
10. The appellants, as well as the acquitted accused during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence.
' Muhammad Tahir appellant in answer to the question, 'It is in evidence an Ihata belonging to complainant Saleem was lying vacant on the eastern side of your residential house and a day before the occurrence P.W. Saleem and deceased Arif visited the Ihata and dug the foundation for constructing their house and you and co-accused reached there and prohibited them from doing the work, what have you to say?', stated as follows:-- ' We did prohibit them from digging the foundation as it was likely to result in the demolishing of our wall. The Ihata did not exclusively belong to the complainant. It was jointly owned by my father and his six brothers and was kept as a common open space."
' Similar reply was given to the same question, by appellant Muhammad Shahid.
' Muhammad Tahir appellant in answer to the question, 'have you anything else to say', stated as follows:- "Deceased Arif by nature was aggressive and short-tempered. On account of quarrel which had taken place a day earlier, the deceased Arif came to the spot at the time of occurrence and in addition to kassi, he had brought a hatchet with him. Deceased Arif started digging the earth along with the boundary wall of our house having placed the hatchet nearby. Co-accused Munir and Shahid were not present in the house. No witness was present. On hearing the noise of digging, I came out of my house and prohibited the deceased from digging the foundation and deceased started abusing me and deceased tried to pick up the hatchet but I got hold of the hatchet. Since the handle of the hatchet was in my hand, so the blade of the hatchet struck his hand. The deceased Arif then advanced towards me with his kassi to injure me and I gave him hatchet blows.
The deceased kept on abusing me and I gave him hatchet blows. When the deceased became silent, then I informed the lambardar who took me to the police station and I produced the hatchet before the thanendar."
' None of them made statement on oath under section 340(2) of the Code of Crriminal Procedure, nor produced evidence in defence.
11. Learned counsel for the appellants after having taken us through the evidence, while contending that the defence version put forth during the trial was more probable and nearer the truth, submitted that he did not subscribe to the claim of Muhammad Tahir that he alone had acted in defence of person as well as property.
' Learned counsel argued that Muhammad Tahir as well as Shahid appellants both clearly seemed to have acted in defence of property and person. Learned counsel frankly submitted that he had to concede that keeping in view the fact that it was clear from the medical evidence that the injuries found on the body of the deceased had been caused by two different weapons.
' While arguing the case of Muhammad Munir respondent in the appeal filed by the State, learned counsel stated that it was clear from the medical evidence that none of the injuries on the body of the deceased could have resulted from a spear and as such no case for interference in the judgment of acquittal was made out. Learned counsel added that even otherwise the defence version put forth by son of Muhammad Munir which appeared to be more probable, excluded the participation of Muhammad Munir (acquitted accused).
12. Learned counsel for the State/complainant defended the judgment of the trial Court and contended that the prosecution had fully proved the case. Both the learned counsel while arguing the case against the acquitted accused pointed out that injury No, 5 clearly appears to have been inflicted by a spear.
13. Although the complainants claimed that vacant plot on which they wanted to construct a house belonged to them exclusively yet the same was denied by the accused, one of whom is real brother of the complainant. Their case at the trial was that the plot belonged in, equal share, to the complainant, Munir accused and five other brothers. Nonetheless, for determination of the dispute before us, we need not give a verdict about exact ownership of the plot, in that, it is prosecution's own case as admitted by P.Ws 9 and 10 that the foundations being dug were right close to the wall of the house of the accused. For that matter, even if the accused had absolutely no share in the plot, they had a right to stop the complainants from digging the foundations in a manner which would damage or destroy their house. It is on record through the statement of the Investigating Officer that the earth had been dug to the depth of 2 feet, right close to the wall of the house of the accused. The length of the ditch was given by the complainant himself to be 10-12 feet. It is apparent that a ditch of such a depth and length could have led to the fall of wall of the house of the accused. The complainants had not made any preparations for immediate construction of the house and as such there were no arrangements for filling of the ditch by raising a new foundation.
It is in evidence that neither bricks had been collected there nor mud for that purpose had been prepared. The Investigating Officer also clearly stated that no building material was found lying at the spot. In fact the statement made by the complainant that they had closed the ditch to a great extent, 2/3 days after the occurrence, shows that they also thought that if the ditch remained as it was, it might do damage to the wall, although the complainant denied that they had filled the ditch for that apprehension. His denial in our view, was just by way of caution, otherwise there could have been no reason for them to have filled the ditch.
14. The argument that the appellants and the acquitted accused could have a recourse to law instead of going there in person and stopping the complainants from doing that, in our view, does not possess any weight in the circumstances of this case, the reason being that when the complainant party had started digging the earth a day before the occurrence, they had stopped the same on the objection raised by the appellants party. Even though they had done so after a little bit of quarrel and exchange of abuses. In the circumstances, the appellants could have no knowledge that the complainant party would start digging again at 3-30 p.m. On the next day. No such indication had been given by them while leaving on the first day. In the circumstances noted above, in our view, the accused party had cleat4y a right of defence of property.
15. We are, however, neither inclined to accept the plea put forth by Muhammad Tahir appellant of having acted in self-defence as well, nor the argument of learned counsel for the appellants that both the appellants had acted in their personal defence. Our reasons for that are, that if the deceased according to Tahir appellant had gone there armed with a hatchet, he would not have allowed the appellants to inflict so many injuries to him without having at least reacted in a manner resulting in some injuries at least to one of them, if not both. Moreover, we cannot visualise that father of the deceased would have allowed his son who was a student of Engineering University to go alone armed with a hatchet because he could have visualised that if he goes there with that intention any harm could come to him and that if he does any harm to the other party, that will also be to his own kith and kin. We have formed this view for the reason that except the incident that happened a day before the occurrence of murder, there was no differences or enmity between the two families. The unfortunate brothers, i,e, complainant and Muhammad Munir (acquitted accused) prior to this occurrence, were, it appears, living in peace. The plea that the appellants had acted in self-defence as well, therefore, in our view, fails being without any force.
16. Since we have reached the conclusion that the right of defence of property had accrued to the appellants and they acted in defence of the same, they cannot be held, liable for having committed culpable homicide amounting to murder. Their convictions under section 302/34, P.P.C., are, therefore, set aside. However, in our view, while acting in defence of property, they clearly appear to have exceeded. They are, therefore, convicted under section 304 Part I, P.P.C. And sentenced to undergo imprisonment for life, plus to pay a fine of Rs,5,000 each, in default whereof to undergo R.I. For one year each. While awarding sentences, the number, nature and seats of injuries, suffered by the deceased at the hands of the appellants, weighed with us coupled with the fact that he was their own blood and was on path to make a good career not for himself only but for enhancement of status of the whole family too. Whole of the fine, on realisation, shall be paid as compensation to the heirs of the deceased. The appellants shall also be given benefit of the provisions of section 382-B, Cr.P.C.
17. Adverting to the appeal filed by the State against the acquittal of Muhammad Munir, we would like to note that the trial Judge did not believe the evidence of recovery of weapon from him as well as the convicted accused. After C having gone through the reasons noted by the trial Judge and considering the evidence in that regard, we feel that no fault can be found with that. The evidence of ocular account thus, as against him, does not find any corroboration from the evidence of recovery of weapon.
We have not been able to find any cogent reasons to differ with the trial Judge in declaring that any of the injuries found on the body of the deceased could have resulted from spear as alleged against him by the eye-witnesses. The argument of learned counsel for the State/complainant in that regard that injury No,5 appeared to have resulted from spear, in our view, was without substance. In that regard, apart from the fact that the injury was neither noted to be a stab nor D pierce wound, the other important aspect is that size of the bullam (spear), per sketch prepared by the Investigating Officer said to have been recovered from him, on examination clearly showed that injury of such dimensions could not have been inflicted by that. In fact, learned counsel for the complainant also could not argue otherwise, on having seen the size of the spear given in the sketch. The accused who had put up the version of having acted in defence, also excluded his participation in the occurrence.
In the circumstances, we are convinced that no good case has been made out for interference in the judgment of acquittal, qua him. The appeal filed by the State, for the said reasons, stands dismissed.
18. Since we have not maintained the conviction of the appellants under section 302/34, P.P.C.
(respondents in the revision petition) question of enhancement of sentence of Shahid from imprisonment for life to death, and a direction for payment of enhanced compensation, does not arise. The revision petition, therefore, also stands dismissed.