M.S.H. QURESHI, J.----This appeal and the connected reference made under section 374, Cr. P. C., arises from the judgment, dated 20th November 1972, of the Sessions Judge, Lyallpur, whereby Muhammad Siddique and his father Beer Din appellants, were convicted under section 302/34, P. P.
C. For the murder of Faiz Muhammad deceased and sentenced to death each and also to pay a fine of Rs. 5,000 each or in default to undergo R. I. For three years each. The sentence of imprisonment was to take effect only in the event of the death sentence not being confirmed.
2. The aforesaid murder took place on 11 December 1971, at 8-30 a,m. In the area of Chak No. 246/G. B. About fifteen miles from P. S. Rajana in the district of Lyallpur. Faiz Muhammad deceased alongwith his father Ghulam Muhammad complainant, was at that time digging the water channel in Killa No. 9/1 and was throwing the freshly dug earth on either side of the channel. The appellants, who owned the adjoining land, came each armed with a dang and abused the deceased for throwing earth into their and. The deceased returned the abuse at which both the appellants delivered two dang blows each at the head of the deceased who fell down unconscious. The alarm raised by Ghulam Muhammad attracted Irshad---ul-Haq and Bashir Ahmad P. Ws. Who were coming from the village on a bicycle. On seeing the occurrence, they got down from the bicycle and rushed towards the deceased, at which the appellants ran away towards their dhari. The three witnesses removed the deceased in an injured condition to the Primary Health Centre, Rajana. Dr. Muhammad Bashir, the Medical officer who examined the injuries at 1-15 a.m., made over the medico-legal report to Ghulam Muhammad who, along with Irshad-ul-Haq and Bashir Ahmad, went to P. S. Rajana and made a report at 12 noon.th
3. The police arrested the appellants the next day, i.e., 12th December 1971, at 1 p.m. And recovered dang (Exh. P. 1) from the possession of Muhammad Siddique appellant, and dang (Exh. P.2) from the possession of Beer Din appellant. The deceased succumbed to his injuries at the Health Centre, Rajana, on 13th December 1971, at 8-45 p.m, whereupon the offence was converted from 307/34 to 302/34, P. P. C.
4. The deceased when first examined at the Health Centre at Rajana was found to have the following injuries on his person:---
(1) Lacerated wound 1' x -- skin deep on the left temporal part of the head, 4' from left ear.
(2) Lacerated wounds 1--' x --' skin deep on the top of the head.
(3) Lacerated wound 1-- ' X --' skin deep on the top of the head half inch from injury No. 2.
(4) Lacerated wound 1' x -- x skin deep on the back of the head left side.
He was in a state of semi-unconsciousness. The injuries had been caused by blunt weapon and their duration was about four hours. The post---mortem examination conducted by Dr. Khurshid Ahmad Khan, Medical Officer, Toba Tek Singh, on the 14th of December 1971, at 11-45 a.m., con-- firmed the presence of the aforesaid four injuries. The doctor found the injuries to have been caused by a blunt weapon. Both parietal and occipital bones were fractured and a big clot was present under the fractured bone. The death in the opinion of the doctor, had been due to internal haemorrhage and compression of brain resulting from injuries Nos. 2, 3 and 4 which had been ante-mortem and sufficient to cause death in the ordinary course of nature.
5. The prosecution case, apart from the medical evidence, rested mainly on ocular testimony furnished by Ghulam Muhammad (P. W. 6) com--plainant, Irshad-ul-Haq (P. W. 7) and Bashir Ahmad (P. W. 8). Ghulam Muhammad who also furnished the evidence regarding motive, deposed that about two years prior to the occurrence he had purchased two killas of land (Nos.4/1 and 9/1 in square No. 59) from one Ibrahim, a nephew of Beer Din appellant, and as the land adjoined that of the appellants, they felt annoyed and threatened with revenge. The recovery of the dang was proved by Muhammad Sarwar (P. W. 10) and Sher Muhammad, A. S. I. (P. W. 11) the Investigating Officer. The appellants who had pleaded not guilty to the charge, had, in their statements under section 342, Cr. P. C. Admitted the purchase of the adjoining lands by Ghulam Muhammad but asserted that they had no grudge on that account. Both of them had denied the recovery of the dangs from them. Muhammad Siddique gave no reason for his involvement, but Beer Din came out with the following explanation:--- "In fact on the day of occurrence in the morning I saw Faiz deceased alone digging earth in my wheat crop, with which it was damaged. I went to Faiz and asked him not to damage my crop. He abused me. I also returned the abuse. Faiz tried to hit me with a kaki. I stepped back. Faiz again started throwing earth in my crop. I again asked him not to do so. He again abused me and when I returned the abuse, he wanted to hit me with a kahi. I got back and found a sanga lying there. I picked it up and hit Faiz deceased therewith to save myself. Myself and only Faiz were present at that time. The complainant implicated me and my son falsely in this case."
The learned trial Judge rejected the defence version on the ground that no damage to the crop, as asserted by Beer Din appellant, had been proved, that considering the disparity in the ages of the deceased who was 30 and Beer Din appellant who was 70, the injuries could not be one-sided, and that the possibility of the injuries having been inflicted by sanga had been repelled by the medical evidence of Dr. Muhammad Bashir. The learned trial Judge discarded the recovery of the dangs as being of no corroborative value. He also rejected the factum of the purchase of the land by Ghulam Muhammad as providing motive for the crime. In his view the occurrence had taken place at the spur of the moment. He accepted the rest of the prosecution story which was, in his view sufficient to prove the guilt of the appellants.
6. Before us, no attempt was made on behalf of the appellants to advance their version of the occurrence. Instead their counsel Ch. Nazir Ahmad Khan assailed the ocular testimony on the ground that Ghulam Muhammad P. W. Had not been present at the spot while the other two eye- witnesses, namely, Irshadul Haq and Bashir Ahmad, were merely chance witnesses. He urged that the prosecution version even if accepted sufficiently showed that the appellants had only exceeded their right of private defence of property while attempting to restrain the deceased from throwing earth on their land. He also contended that there was complete absence of motive and that the whole episode, as had rightly been held by the learned trial Judge, had taken place at the spur of the moment and as such there was no material to hold that the appellants had the intention to cause death. He, therefore, argued that the death penalty was not at all called for and that the case actually fell under section 325, P. P. C. Or, at the most under section 304, Part 11, P. P. C.
He also argued against the imposition of the fine as not justified under the circumstance. In support of these contentions, learned counsel relied on Yaya and another v. Emperor (AIR 1929 Lah. 456) and Fazal Din and others v. Rehmat and others (1968 SCMR 18).
7. The presence of Ghulam Muhammad has been assailed only on the ground that there was no kassi at the spot other than that of the deceased. The witness had explained: "At the time of occurrence Faiz deceased was holding a kahee but I was empty-handed. The water channel is dug by kahee as well as bare hands." The presence of the witness in his own land is hardly open to doubt merely on account of the absence of another kassi. There is also no reason to doubt the presence of the other two witnesses. Both are co-villagers of the complainant and had been going at the time of the occurrence to their respective schools where they were teachers. Irshadul Haq had, no doubt, admitted but he used to reside in Chak No. 286 at the time of the occurrence but there is nothing to show that he had severed his connections from his own village, i.e., Chak No. 246/G. B. These witnesses, though related to the complainant had no motive against the appellants and as such their testimony can be believed.
8. As shown in the site plan, the water channel in question runs between Killa No. 9/1 owned by the complainant party on the south and Killa No. 2/2 owned by the appellants on the north, and as such appears to be a common one. The evidence, however, does not show that it was a common channel. In the F. I. R. The complainant had called it. If this was the channel of the complainant party, and there being no reason to hold otherwise, the deceased was not justified in throwing earth in the adjoining land of the appellants. There is, however, no evidence to suggest that any damage had been caused to the land or the crop thereon of the appellants. Muhammad Sultan (P.
W. 5), the Halqa Patwari, had in his cross-examination stated: "I do not remember if the wheat crop of kills No. 2/2 was found sunk under the fresh earth." In the circumstance, we find no force in the contention that the throwing of the earth had involved a question of right of defence of private property, though it had given provocation to the appellants, but in the absence of any material damage; it could not be said to be grave enough to take the offence into one of the Exceptions under section 300, P. P. C. All that had preceded the inflicting of the blows, as is borne out by the evidence on record, is an: exchange of abuses. There is nothing to suggest that the deceased had tried to attack 4 the appellants. There was, therefore, no occasion for the appellants to inflict heavy blows of dangs on the deceased. The intention in causing such blows has to be ascertained from the seat and the intensity of the blows, The appellants had inflicted two blows each. All the four blows had landed on the head, three of which had been responsible for the death. The medical evidence does not show whether the three injuries had been individually or collectively fatal, both the appellants must have inflicted at least one of these three injuries. The blows had been given with sufficient force to have rendered the victim unconscious on the spot from which state he never recovered till his death two days later. This being so, the authorities cited by the learned counsel are of no help In AIR 1929 Lah. 456, no injury had been fatal in itself, no particular individual had been found guilty of causing particular injury and the common intent to cause death could not be inferred. In the other cited case i.e., 1968 SCMR 18, the decision of the High Court which altered the conviction under section 302/34, P. P. C. To one under section 325/34, P. P. C., had been challenged in the Supreme Court but their Lordships had refused to intervene because of the presence of factors indicating an absence of desire on the part of the accused persons to cause death of the deceased and because there was no clear evidence as to which of the accused persons had been responsible for the fatal injuries to the deceased. In Shaman v. State (1972 P Cr. L J 400) where only one blow had been given with the blunt side of a hatchet rendering the victim unconscious and causing his death subsequently, the Division Bench observed that it was well known among the villages of the Punjab that any blow delivered with some force, on the head of a victim, by a dang or the blunt side of a hatchet is generally fatal, and accordingly held that the case fell within the purview of the second clause of section 300, P.P.C , or in the alternative, of the Third and Fourth clauses of the same section. The view so expressed, applies equally to the case before us. The appellants had made a concerted attack on the deceased, had inflicted four heavy blows all on the head region, three of which had been responsible for the death and at least, one of these three injuries is clearly attributable to both of the appellants. The fact that the deceased had died not instantaneously but two days later, is immaterial e so long as his death had been caused by the injuries received at the hands of the appellants. We are, therefore, satisfied that the appellants had been rightly convicted of the murder.
9. We, however, do not agree with the lower Court that the case calls for the award of the maximum penalty. The provocation had come from the deceased by throwing of earth in the field of the appellants to which they had objected. Their protest, on that account, had only resulted in an exchange of abuses. In fact Ghulam Muhammad in his cross-examination admitted: "The dangs were picked up by the accused after Faiz deceased returned the abuse because at that time the accused were at their own dera and had abused from there." The award of the lesser penalty will, therefore meet the ends of justice. The amount of the fine imposed is on the high side and also calls for suitable reduction.
10. We, accordingly, maintain the conviction of the appellants under section 302/34, P. P. C. But reduce their sentences from death to imprison--ment for life each. Both of them shall also pay a fine of Rs. 500 each or in default undergo further R. I. For six months each. The fine if realised, shall be paid to the heirs of the deceased. The death sentences passed against the appellants, are not confirmed and the Reference is answered accordingly.