' RAJA AFRASIAB KHAN, J.--- Muhammad Arshad alias Achha (38) and Abad All (42) were tried by Mr. Muhammad Aslam Khan, learned Additional Sessions Judge, Sahiwal, for the murder of Muhammad Ameen (30). By judgment, dated 3-5-1989, Muhammad Arshad and Abad All were convicted under section 302/34, P.P.C. By the learned trial Judge. Muhammad Arshad was sentenced to death plus a fine of Rs,10,000 or in default to suffer R.I. For three years. He was directed to pay a sum of Rs,10,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to suffer 6 months' R.I. Abad Ali was sentenced to life imprisonment plus fine of Rs,10,000 or in default thereof to suffer R.I. For three years. He was also directed to pay a sum of Rs,10,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof to undergo six months' R.I. The appellants challenged their conviction and sentence by filing a joint Criminal Appeal No,387 of 1989 while the learned trial Judge sent a reference under section 374, Cr.P.C. For confirmation of death sentence of Muhammad Arshad. We propose to dispose of both the matters together by this judgment.
2. The prosecution case is that Dilawar Hussain complainant and his brother Zulfiqar together took Bakar Mandi, Sahiwal, on lease, for the year 1987-88. Said market was held daily from 6 a.m. To 4/5 p.m. Banaras Hussain also worked as commission agent in the Bakar Mandi. On 26-5-1987 Dilawar Hussain, his brother Zulfiqar and Ameen were collecting the commission fees on sale of animals from the owners. At about 10-00 a.m. Abad All and his brother Muhammad Arshad accused reached the spot. Abad Ali was empty handed while Muhammad Arshad alias Achha was armed with a Chhuri. They started abusing Dilawar Hussain as to why he did not allow them to pitch a tent in the centre of Bakar Mandi. Muhammad Ameen went ahead whereupon Abad Ali held him in his clasp from behind and exhorted Muhammad Arshad to finish him. Muhammad Arshad inflicted a Chhuri blow which landed on the chest of Muhammad Ameen. On alarm, Zulfiqar, Hakim Ali, Abdul Sattar and Gulzar came there and witnessed the occurrence. Muhammad Ameen died on the spot.
Motive is that Abad All and Muhammad Arshad had been demanding the payment of a share of income for the lease of Bakar Mandi from the complainat party regarding the last two years but the complainant party refused to do so. It is further mentioned that Abad All and Muhammad Arshad wanted to set up their tent in the centre of the cattle market. The accused were neither given the share of lease money nor they were allowed to fix their tent in the middle of Bakar Mandi.
In consequence of this grudge, the accused murdered Muhammad Ameen.
2. On 26-5-1989 Muhammad Rafique, S.H.O. Police Station Ghala Mandi P.W.9 recorded the statement of Dilawar Hussain Exh.PA. Near Pull Bazar, Sahiwal and on the basis of the statement, formal F.I.R. Exh.PA./1 was recorded by Muhammad Ameen Moharrar Head Constable on the same day at 11-50 a.m. The Police Officer visited the spot. He went to D.H.Q. Hospital, Sahiwal, prepared injury statement Exh.P.C./1 and inquest report Exh.P.C./2 of Muhammad Ameen deceased. The dead body was sent for post-mortem examination to the mortuary through Abdul Qadir, Constable. Last worn clothes of Muhammad Ameen deceased Kurta P.1, Chaddar P.2, were taken into possession vide memo. Exh.P.E. Muhammad Arshad, was arrested by the Sub-Inspector on 30-5-1987. On 1-6- 1987, while in police custody he led to the recovery of Chhuri P.3 from near an octroi post from a Aak bush. The weapon was found to be blood-stained. It was taken into possession vide memo.
Exh. P.D. Site-plans Exh. P.B and its duplicate Exh. P.B./1 were got prepared from Mirza Ashfaq Beg Draftsman P.W.3. Abad All was arrested by the Sub-Inspector on 26-6-1987. The Investigating Officer conceded that Shabbir Hussain retired Police Inspector was accompanying Dilawar Hussain, complainant, when he approached him for registration of the case. Positive reports of the Chemical Examiner Exh. P.G. And that of Serologist Exh. P.H. Were tendered in evidence.
3. Dr. Muhammad Javed P.W.5 conducted the post-mortem examination on the dead body of Muhammad Ameen on 27-5-1987 at 7.30 a.m. He found the followng injury on the deadbody:--
(1) Incised wound 3 c.m. x 1 c.m. Deep going on front of left chest, 3 c.m. Below and inward to the left nipple.
' In the opinion of the Doctor, death occurred due to shock and heamorrhage as a result of injury No,1 which was sufficient to cause death in the ordinary course of nature. Probable time between injury and death was within about two hours and between death and post-mortem examination was about 24 hours.
4. Eye-witness account was furnished by Dilawar Hussain P.W.6 and his real brother Zulfiqar P.W.7.
Abad Ali accused, made a statement under section 342, Cr.P.C. Denying the allegation levelled against him and took the plea that he was not present on the spot. He stated' that he was declared innocent by the investigating officer. Muhammad Arshad accused while making a statement under section 342, Cr.P.C. Took the plea that Muhammad Ameen deceased was in fact the aggressor. According to his statement, on the day of occurrence, he had gone to Bakar Mandi to do his business as Commission Agent as usual. He stated that he and his brother Abad All worked as the Commission Agents in the year 1987 in the Bakar Mandi. He deposed that at about 8-00 a.m.
On the day of occurrence he was present at his platform which was allotted to him by the Municipal Corporation, Shahiwal and was doing his business. According to him Muhammad Ameen was a vagabond and that he used to collect Jagga tax from the Commission Agents working in the Mandi. He disclosed that Muhammad Ameen also demanded the payment of Jagga tax from him.
He refused to pay any money to Muhammad Ameen and told him that he was a licence-holder and that the site was allotted to him by the Municipal Corporation to do his business. On reply Muhammad Ameen was highly infuriated. He was armed with Chhuri. He advanced to attack him.
They grappled with each other. The accused stated that in order to save himself from the Chhuri blow he tried to snatch the weapon from Muhammad Ameen and during the struggle Chhuri fell down. He disclosed that Muhammad Ameen was much stronger than him. The appellant was fallen on the ground. Muhammad Ameen (deceased) sat over him. He also tried to strangulate him. The accused in order to save his life, picked up the Chhuri lying nearby and inflicted a single blow on the deceased in exercise of his right of self-defence. According to him, Abad All was not present at the spot and that he was declared innocent by the Investigating Officer. He went on to say that he was first to inform the police about the occurrence. No case was however, registered on his statement because of influence of Shabbir Hussain and Sardar Muhammad Ghuman, two retired Police Inspectors. He pleaded that the eye-witnesses were not present on the spot. No evidence in defence was led by the accused. While relying on the ocular evidence, medical evidence and recovery, the learned trial Judge convicted and sentenced the accused, as mentioned above.
5. It is contended by the learned counsel that the prosecution has failed to prove its case beyond reasonable doubt against the appellants. He argues that Muhammad Arshad was justified in causing a blow to Muhammad Ameen (deceased) in the exercise of his right of self-defence.
Regarding Abad Ali, the contention of the learned counsel is that there is absolutely no evidence to connect him with the commission of crime. Learned counsel maintains that Abad Ali was found innocent during investigation. Lastly, it is urged that there being no premeditation and the occurrence taking place on the spur of moment, conviction could not be recorded under section 302, P.P.C. Against the appellants. The learned State counsel defended the judgment of conviction and sentence of the appellants.
6. We have heard the learned counsel for the parties at considerable length and have perused the record. There is merit in the arguments of the learned counsel for the appellants. Muhammad Rafique Inspector P.W.9 conceded in his evidence that the occurrence took place on the spur of moment over a dispute regarding setting up of a platform in the centre of Baker Mandi. He also conceded that he recorded the version of Arshad Ali accused disclosing that he wanted to fix a wooden platform to run his business which was interfered with by Muhammad Ameen (deceased) and that he was thrown on the ground by Muhammad Ameen. According to the Investigating Officer Muhammad Ameen (deceased) was armed with a Chhuri and that he wanted to kill the appellant. The Investigating Officer went on to depose that some police officials in plain clothes were present who apprehended Muhammad Arshad there and then. The witness conceded that Abad All was found innocent by him during his investigation. It Is confessed by Muhammad Arshad that he killed Muhammad Ameen by inflicting a blow with Chhuri in the exercise of his right of self- defence. The evidence of Dilawar Hussain P.W.6 and his brother Zulfiqar P.W.7 is wholly contrary to the version given by Ivnestigating Officer. Dilawar Hussain P.W.6 deposed that Muhammad Arshad while armed with a Chhuri in the company of Abad Ali reached the spot. They demanded the share of lease money from the complainant party. The demand of the accused was turned down by the complainant. To the same effect is the statement of his brother Zulfiqar P.W.7. In nut-shell, their evidence is that the accused in execution of their common intention reached the spot and killed Muhammad Ameen. The recovery of Chhuri P.3 has not been believed by the learned trial Judge.
From the close scrutiny of evidence it appears that both the parties fought with each other on the spur of the moment over the dispute regarding the setting up of a tent in the centre of Bakar Mandi. Muhammad Arshad accused wanted to set up his tent in the middle of the market which was objected to by the complainant party. In the circumstances, the prosecution has failed to prove pre-meditated murder of Muhammad Ameen. There is nothing on record to show that Muhammad Arshad came with the intention to murder Muhammad Ameen. We, are persuaded to hold that he inflicted an injury to Muhammad Ameen deceased over the dispute having arisen on the spur of the moment. The blow was not repeated although the appellant was certainly in a position to do so. This of course demonstrates the working of his mind. Thus, it was not a case of culpable homicide amounting to murder, falling under section 302, P.P.C. Prosecution has, therefore, failed miserably to prove its case of murder, attracting the said provision. Plea of self- defence of the accused Muhammad Arshad appears to be afterthought. He failed to prove his plea. We are persuaded from the facts and circumstances of the case to reject his version outrightly. He admits in his statement that he killed Muhammad Ameen. As already said occurrence took place on the spur of the moment over the occupation of a site in . The centre of the market. His conviction is accordingly altered to one under section 304, Part I, P.P.C. In the circumstances, Muhammad Arshad is sentenced to seven years' R.I. Plus a fine of Rs,10,000 (Rupees ten thousand) and in default thereof to undergo two years' R.I., under section 304, Part I, P.P.C.
Benefit of section 382-B, Cr.P.C., shall also be given to him. The amount of fine, if recovered, shall be paid to the legal heirs of the deceased as compensation.
Regarding Abad Ali, we are of the view that the prosecution did not succeed to prove its case against him beyond doubt. He did not cause any injury to the deceased. The only allegation against him is that he held the deceased in his clasp. We have not been persuaded from the prosecution evidence that he held the deceased in his clasp and facilitated his co-accused to inflict injury on the deceased. He was declared innocent during investigation conducted by Muhammad Rafique P.W.9. No sufficient material is available to connect him with the commission of the crime beyond all shadow of doubt. We, therefore, proceed to acquit him. His conviction and sentence is set aside. In consequence, the appeal succeeds to his extent. He shall be released forthwith if not required in any other case. The death sentence of Muhammad Arshad is NOT confirmed. The murder reference is answered accordingly.