RAJA AFRASIAH KHANJ.- Allah Ditta son of Wali Muhammad, Sarwar son of Masta, Taj son of Allah Ditta and Noor Muhammad son of Haji Muhammad, were tried by Mr. Nazeer Ahmad Ansari, learned Additional Sessions Judge, Okara for the murder of Jalal Din. By judgment dated 30.9.1987, the learned trial Judge convicted and sentenced Taj and Noor Muhammad under sections 302/34 PPC. Taj was sentenced to death plus a fine of Rs. 10,000/- or in default to suffer two years R.I. It was directed that in case of recovery of fine, half of it shall be paid to the legal heirs of Jalal Din. Noor Muhammad, was sentenced to life imprisonment plus a fine of Rs. 10,000/- or in default to suffer two years R.I. Taj and Noor Muhammad were also convicted under section 452 PPC and sentenced to five years' R.I. Plus a fine of Rs. 1,000/- each or in default to undergo three months' R.I. Each.
Benefit of section 382-B Cr.P.C was also given to Noor Muhammad. It was observed that his sentences of imprisonment shall run concurrently. Allah Ditta and Sarwar co-accused, were however, acquitted by the learned trial Judge, vide the same Judgment. Taj and Noor Muhammad challenged their conviction and sentence through Cr.A.No.518/87. While the learned trial court sent a reference for confirmation of death sentence of Taj. Lai Din complainant filed a revision for enhancement of fine. We propose to decide the above matters together by this Judgment.
2. The prosecution case is that Lai Din and jalal Din lived together in one house in village Kolhapur 45/SP, District Okara. On 27.9.1986 at 8.00 a.m., Noor Muhammad, Taj, Allah Ditta parked a Truck in order to load cotton in it right in front of the house of Lai Din. They were asked not to park their Truck in front of the house of Lai Din because it violated the privacy of his house. Hot words were exchanged between Noor Muhammad etc. And Jalal Din. However, nothing untoward happened.
Noor Muhammad etc., left the place while issuing serious threats. After some time, Noor Muhammad, Taj, Allah Ditta and Sarwar, all armed with sticks returned to the spot and while entering the house of Lai Din, shouted that the complainant parly would not be left alive. Noor Muhammad appellant held Jalal Din in his clasp while Taj inflicted a sota blow on his head. Jalal Din fell down. Lai Din and Ghulam Farid went ahead to rescue Jalal Din whereupon Sarwar, Allah Ditta and Noor Muhammad inflicted stick blows to Chulam Farid. The occurrence was witnessed by Muhammad Sadiq and Muhammad Hanif. Ghulam Farid and Jalal Din, in an injured condition were taken to hospital Haveli. Ghulam Farid was admitted in the said hospital whereas Jalal Din was advised to be shifted to General Hospital, Lahore, for his treatment. However. Jalal Din on his way to General Hospital, succumbed to his injuries near Thing More.
Motive is that 2/3 months ago, Taj abducted the daughter of Muhammad Sharif Joya. The abductee was, however, returned to her father because of the efforts of Jalal Din. On account of this grudge, the accused murdered him.
3. Muhammad Musa S.I. PW11 recorded FIR Ex.PH on the statement of Lai Din PW7. He went to Civil Hospital Depalpur where he prepared the injury statement Ex.PK and inquest report Ex. PL of Jalal Din. He visited the spot and colleted blood-stained earth from the place of occurrence and took it into possession vide memo Ex.PB. Last worn clothes of the deceased PI to P3 were taken into possession vide memo Ex.PA on 24.9.1986. Allah Ditta, Sarwar, Taj and Noor Muhammad were arrested by the S.I. On 29.9.1986. Site-plans Ex.PC and Ex.PC/1 were prepared by Saleem Ullah PW5 on the instructions of the investigating officer. On 7.10.1986 sotas P4 to P7 were recovered at the instance of Taj, Allah Ditta, Noor Muhammad and Sarwar, vide mamo Ex.PD, PE, PF and PG, respectively. The? Police Officer also got Allah Ditta medically examined on 28.9.1986. Positive reports of the Chemical Examiner Ex.PO and that of Serologist Ex.PO on blood stained earth were tendered in evidence.
4. Dr. Muhammad Afzal PW10 conducted the postmortem examination of the dead body of Jalal Din. He found the following injury on it:
1. Dressing of the wound on the Head was present and removed for examination. An unstitched wound contused 3/1/2 c.m. x 1 c.m. x bone deep on the front of right side of head kissing mid-line about 7 c.m. Above the inner end of right eye-brow. Margins were crushed with faint swelling around."
It was opined by the Doctor that there was an extensive fracture of the vault of skull on right side under injury, involving frontal, right parietal and right temporal bones as shown in the diagram and fracture line was extending on to the face of skull in the middle cranial fossa forming-of roof of right middle ear. Death occurred on account of shock and haemorrhage as a result of injury to skull which was sufficient to cause death in the ordinary course of nature. The injury was antemortem. It was caused by a blunt weapon. Probable time that elapsed between injury and death was within 6 to 8 hours and between death and post-mortem was within 24 hours.
5. On 28.9.1986 at 12.30 p.m., the said Doctor examined Allah Ditta accused and found the following injury on his person:-
1. A semi-healed .Wound 2 c.m.. Long and 1/4 c.m. Wide on the back of head over mid-line.
The injury was declared simple and was caused by blunt weapon. Its probable duration was within two weeks.
6. Dr. Muhammad Iqbal Shameem PW12 examined Jalal Din on 27.9.1986 at 10/30 a.m. And found the following injury on his person:-
1. Contused wound 4/1/2 c.m. x 1 c.m. Bone deep on the top of head in the front part. The direction of wound was oblique.
On the same day the Doctor examined Muhammad Farid PW and found the following injuries on his person:
1. Red contusion 10 c.m. x 3 c.m. On the right shoulder blade.
2. Abrasion 2 c.m. x 2 c.m. On the upper part of left shoulder.
3. Red contusion 20 c.m. x 3 c.m. On the lower back.
4. Red contusion 10 c.m. x 2 c.m. On the back of right forearm in the middle.
5. Abrasion 2 c.m. x 1 c.m. On the back of left wrist joint.
6. Red contusion 10 c.m. x 3 c.m. On the outer part of left thigh in the middle.
7. Abrasion 2 c.m. x 2 c.m. On the outer part of left leg in the upper part.
According to Doctor, all injuries were simple and. Were a used by blunt weapon within the duration of four hours.
7. Lai Din PW7, Ghulam Farid PW8 and Muhammad Sadiq PW9 witnessed the occurrence. Taj Muhammad appellant while making a Statement under section 342 Cr.P.C, pleaded that he exercised his lawful right in order to save the life of his father Allah Ditta. He made a detailed statement in that behalf. He deposed that his father Allah Ditta was loading a truck while the children of Jalal Din and Lai Din were stealing cotton from the said Truck. Allah Ditta gave beating to the children whereupon Ghulam Farid and Jalal Din came out from their house and started quarrelling with Allah Ditta. On an alarm, the appellant Taj also came there and gave a sota blow to Jalal Din in order to save the life of his father. Jalal Din injured Allah Ditta with a stick. According to the statement, Ghulam Farid PW fought with the labourers and received two injuries from them.
The appellant stated that he would not have attacked Jalal Din in case he had not intended to repeat the blow to Allah Ditta. Allah Ditta while making a statement under section 342 Cr.P.C, supported the statement made by his son Taj. He deposed that Jalal Din deceased caused a head injury to him and that he wanted to repeat the blow. Taj came to his rescue and gave a blow to him in order to save his life. He disclosed that Ghulam. Farid PW was injured by the labourers who were loading cotton in the Truck. Noor Muhammad stated that he was not present at the time of occurrence and pleaded his implication beealtse of his relationship with Allah Ditta and Taj. Sarwar stated that he had been involved because he was related to his co-accused. He pleaded his innocence. Muhammad Hanif appeared as CW1. He supported the defence plea. The learned trial Judge convicted and sentenced the appellant while believing the ocular account, medical evidence and a part of motive as set up by the prosecution.
8. Learned counsel contends that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. Learned counsel maintains that Taj appellant acted in his self-defence and also in defence of his father Allah Ditta who was attacked by Jalal Din deceased. Learned counsel urges that no offence whatsoever has been committed by the appellant. Learned :State counsel defended the conviction and sentence of the appellant.
9. We have heard the learned counsel for the parties at considerable length and have gone through the record with utmost care. The learned trial Judge disbelieved the recoveries of sticks and partly flic motive as set up by the prosecution. Recoveries of sotas P4 to P7 were discarded on the ground that these were not stained with blood and further that those were recovered from the places accessible tc general public. Motive regarding abduction of daughter of Muhammad Sharif Joya by the appellant Taj was also not believed. The occurrence was not denied by Taj appellant in his detailed statement under section 342 Cr.P.C. He confessed to have inflicted a sota blow to Jalal Din. He stated that Jalal Din gave a sota blow to his father Allah Ditta. He further deposed that Jalal Din (deceased) intended to repeat the blow and that he in order to save the life of his father, gave a solitary blow to him. The question is whether Taj was justified in killing Jalal Din in order to save the life of his father in the given circumstances. The fact that Truck was stationed in front of the house of Lai Din and that cotton was being loaded in it was admitted by Taj appellant in his statement. The fact of giving a single blow to Jalal Din is also confessed by Taj appellant. Lai Din PW7 and Ghulam Farid PW8 have supported the prosecution version. According to the evidence of Lai Din, Noor held Jalal Din in his clasp while Taj appellant caused a sota injury to Jalal Din.
According to the evidence, Sarwar, Allah Ditta and Noor Muhammad inflicted injuries to Ghulam Farid PW on his thigh, shoulder and both arms. Ghulam Farid PW8 is an injured witness. He received as many as seven injuries on his person. In the circumstances, presence of Ghulam Farid on the spot cannot be doubled. He deposed that Noor Muhammad held Jalal Din in his clasp and facilitated Taj to injure him with his weapon. The witness deposed that the accused entered the house of Lai Din where Noor Muhammad caught Jalal Din in his clasp. He stated that he went ahead to save Jalal Din whereupon he was given injuries by Allah Ditta, and Noor Muhammad.
Muhammad Sadiq PW9 also supported the prosecution case. From the close scrutiny of the prosecution evidence and the defence version, it is established that there was no background of enmity between the parties. The occurrence appears to have taken place at spur of the moment on account of parking the Truck in front of the house of Lai Din. Allah Ditta accused and Ghulam Farid PW8 were also injured during the occurrence. Injuries on the person of Allah Ditta have not been explained by the prosecution. In our view, the parties quarrelled with each other over parking of the Truck. The possibility therefore, cannot be ruled out that the parties in the first instance fought in the Street in front of the house of Jalal Din where Allah Ditta was injured.
10. From the facts and circumstances of the case, it appears that accused entered the house of Lai Din PW7 where Taj Din inflicted a dang blow on the head of Jalal Din causing his death. Blood- stained earth was also taken into possession from the house of Jalal Din. We, therefore, hold that Major occurrence took place inside the house. We believe the prosecution version that Taj and Noor Muhammad while armed with deadly weapons entered the house of Jalal Din and indicted injuries on him and Ghulam Farid. The question arises as to what offence in the above circumstances was committed by the accused? Taj, appellant, indicted a solitary injury on the head of Jalal Din. He did not repeat the blow. There was no enmity between the parties. There is no evidence to show that there was premeditation among the accused to kill .Miraj Din. Accordingly we hold it to be a case of individual liability and each shall be responsible for his individual act committed in the commission of the crime. In the circumstances, the case of the appellant Taj does not fall under section 302 P.P.C. He indicted a blow with stick on the head of Jalal Din and as such he is held guilty of culpable homicide not amounting to murder. Accordingly we, alter his conviction from section 302 PPC to one under section 304-1, PPC, and sentence him to 10 years R.I.
Plus a fine of Rs.10,000/- or in default to undergo 2 years R.I.
His death sentence is NOT confirmed.
11. Noor Mohammad appellant admittedly did not inflict any injury on the deceased. As observed earlier, there is no evidence of preconcert among the accused and as such we alter his conviction from section 302 to section 323 PPC and sentence him to undergo one year's R.I. Plus a fine of Rs.1,000/- Or in default to undergo three months R.I. The conviction and sentences of Taj and Noor Muhammad, appellants, under section 452 PPC are maintained, but their sentences are reduced from five years R.I. To three years R.I. Plus a fine of Rs.1,000/- each or in default to undergo three months R.I. They will be given the benefit of section 382/B, Cr.P.C. Thus appeal succeeds and is allowed in part. The sentences of imprisonment of both the appellants shall run concurrently.
In view of the acceptance of the criminal appeal, there is no substance in the revision petition which is dismissed.