Muhammad Ashraf (25), and his brother Muhammad Aslam (201 were tried by Additional Sessions Judge, Khushab, alongwith their father Wali Muhammad and uncle Allah Dittta for having murdered Sher Muhammad on 15-7-1989 at 7-45 a.m. Near Railway Station Mitha Tiwana at a distance of five kilometres from Police Station Mitha Tiwana.
Learned trial Judge vide judgment, dated 16-9-1990 convicted Muhammad Ashraf and Muhammad Aslam under section 304, Part II, P.P.C. And sentenced each of them to undergo R.I. For ten years plus to pay a fine of Rs.10,000 in default to undergo R.I. For one year each. Whole of the fine, on recovery, was directed to be paid as compensation to the heirs of the deceased. Their father and uncle were acquitted vide the same judgment.
2. The convicts have filed appeal.
3. F.I.R. Exh. P.C. Was lodged on 15-7-1989 at 4-15 p.m. By Muhammad Mansab Khan (P.W.8) and was recorded by Qaiser Raza Zaidi A.S.I. (P.W.4). During investigation, Sotas were recovered from the appellants and acquitted accused Allah Ditta.
Apart from Sher Muhammad, deceased in the case, Allah Ditta and Wali Muhammad (acquitted accused) had also suffered injuries during the occurrence, for which they were medically examined.
4. At the trial, statements of 11 P.Ws. Were recorded. Dr. Rab Nawaz, who had medically examined Sher Muhammad deceased while still alive on 15-7-1989 and had performed autopsy on his expiry on 17-7-1989 and had also medically examined the acquitted accused; appeared as P.W.7. He had noted two injuries on the head region of the deceased and a contusion on the right eye-ball.
According to his opinion, death had occurred due to injuries on the head.
Wali Muhammad was found to have suffered a lacerated wound on the occipital region while Allah Ditta was found to have suffered two contusions on the wrist joint and middle of right arm. Injuries on both of them were declared simple.
5. Ocular account was deposed to by Muhammad Mansab Khan complainant (P.W.8) and Muhammad Nawaz (P.W.9). Mansab was nephew of the deceased while Muhammad Nawaz was not related to the deceased. Both the eye-witnesses while corroborating the version given in the F.I.R. Stated that Sher Muhammad was clearing the rainy water when the appellants armed with Sotas accompanied by Allah Ditta armed with a Sota and Wali Muhammad empty---handed had launched attack on him. They stated that Wali Muhammad had caught the deceased from the collar while Muhammad Ashraf had given a Sota blow on his head and Muhammad Aslam had inflicted a Sota blow on the right side of the deceased near the ear. Allah Ditta, according to them, had given injury on the right eye-brow. They stated that apart from them, the occurrence was witnessed by Alamsher also.
6. Ahmad Hussain Shah, A.S.I. Who had investigated the case appeared as P.W.10 and gave the details of the investigation. Muhammad Nawaz Khan S.I. During whose custody the accused had led to the recovery of Sotas and had submitted the challan after completing necessary investigation appeared as P.W.11 and gave that account.
7. The appellants during statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. Wali Muhammad (acquitted accused) took up the plea that the deceased had picked up quarrel with him and had caused injuries to him and his brother Allah Ditta. He stated that his sons had not participated in the occurrence. Allah Ditta while corroborating the stance taken by Wali Muhammad also stated that after the deceased had caused injuries to him and his brother Wali Muhammad, he had inflicted Sota blows to him in defence.
Neither the appellants nor the acquitted accused produced any evidence in defence nor did they make statements on oath under section 340(2), Cr.P.C.
8. Learned trial Judge while coming to the conclusion that the appellants, only, were liable for having taken part in the occurrence and that they were guilty under section 304, Part II, P.P.C. Ruled out the version put forth by the appellants He also did not believe the version of the prosecution that the occurrence had occurred due to pre-meditation. ;
9. Learned counsel for the appellants did not challenge the conviction of the appellants under section 304. Part 11, P.P.C. He, however, submitted that the sentences awarded to the appellants are disproportionate, and prayed for reduction in the sentences.
10. Notwithstanding the fact that the learned counsel for the appellants has not challenged the conviction of the appellants, I have perused the evidence and gone through the impugned judgment.
Although one of the eye-witnesses was related to the deceased, but the other witness Muhammad Nawaz was a disinterested person. The reliance placed by the learned trial Judge to the extent of the liability of the accused having caused injuries to the deceased, in my view, is not questionable.
In the circumstances, there is nothing to consider that the appellants have been convicted inappropriately. The same is, therefore, maintained.
11. Learned trial Judge has awarded maximum sentence to the appellants for offence under section 304, Part 11, P.P.C. The circumstances, in my view, did not merit that. The sentence of imprisonment of ten years' R.I. Each, is, therefore, reduced to R.I. For eight years each. The sentence of fine and the direction for payment of the same, on recovery, as compensation to the heirs of the deceased is maintained. Benefit of section 382-B, Cr.P.C. Will also be given to the appellants.