The appellant Wali Muhammad was tried by the learned Sessions Judge, Okara on the charge under section 302/307/452, P.P.C. For having committed the murder of Sardaran Bibi were of Muhammad Shafi injured P.W.10. Vide judgment dated 11-1-1989, the learned trial Judge found the appellant guilty under section 304, Part-I, P.P.C. And sentenced him to ten years' rigorous imprisonment, and a fine of Rs. Five thousand, or in default thereof, to further undergo rigorous imprisonment for one year. The learned Sessions Judge further directed that in the event of recovery of fine, half of the same shall be paid to the legal heirs of the deceased.
2. Aggrieved by his conviction and sentence, the appellant has preferred this appeal, while the complainant has also instituted a Revision Petition assailing the acquittal of the appellant on the charge under section 302, P.P.C. This judgment shall dispose of both the appeal as well as the Revision.
3. The unfortunate occurrence resulting into the death of deceased Sardaran Bibi were of Muhammad Shat took place on 10-12-1987 at 5-30 p.m. On the roof of the house of the complainant Abdul Gliani in Chak No.10/1-L situated at a distance of 9-1/2 kilometres from Police Station Saddar Renala Khurd.
4. F.I.R. Exh. P.G. In this case was got recorded by Abdul Ghani P.W.9 at 6-30 p.m. At the Police Station, and the same was recorded by Muhammad Yamin Khan, Inspector S.H.O. Police Station, Renala Saddar, Renala Khurd. The prosecution case, in brief as disclosed by the complainant in the F.I.R., is that the son of the first informant lived in front of his house; and this house adjoins the house owned by one Wali Muhammad son of Budhay Khan, and there exists a common wall between the two houses. Wali Muhammad appellant started constructing the Pacca house by demolishing the Katcha house. The son and the daughter-in-law of the complainant restrained the appellant from so doing, and the appellant by constructing a separate wall raised his own house, and on the day of occurrence, the roof of the said house was being completed. At about 5-30 p.m., the son and the deceased daughter-in-law of the complainant and Nazir Ahmad another son of the complainant were putting earth on the roof of their Katcha Kotha, and the appellant forbade them to do so, which resulted into exchange of abuses from both sides. Thereafter, both the sons and the deceased, referred to above, again started putting the earth, and while the deceased and her husband were still on the roof, when in the meantime, the appellant while armed with a wooden Bala ascended the roof of their house, and raised a Lalkara to the effect that he would teach them a lesson for putting the earth in spite of his repeated warnings. The appellant then inflicted a Bala blow on the head of Mst. Sardaran; Muhammad Shafi the husband of the deceased came forward to rescue his were. When the appellant also gave a Bala blow on the upper part of his arm. On the hue and cry raised by both of them, Nazir Ahmad, Abdul Ghafoor and Babu rushed to the scene of occurrence, and within their sight, the appellant again inflicted Bala blow on the left thigh and the head of Muhammad Shat. Both the son and the daughter-in-law of the first informant fell on the roof of their house. Before reaching the eye-witnesses at the roof of the house, the appellant while leaving the Bala at the spot jumped down the roof, and escaped therefrom. The deceased was taken to the hospital at Renala Khurd, but no sooner she arrived there, she breathed her last.
5. On 11-12-1985 at about 1-30 p.m. Dr. Sarfraz Hussain, Medical Officer, D.H.Q. Hospital, Okara conducted the post-mortem examination on the dead body of the deceased, and noticed the following injuries on her person: (1)An abrasion 1-1/2 c.m. x 1-1/2 c.m. On the bridge of nose. There was bleeding from both the nostrils.
(2)A lacerated wound 3/4 c.m. x 1/2 c.m. x bone deep with swelling 4 c.m. x 3 c.m. On the middle part of head 17 c.m. From left ear.
(3)Swelling 10 c.m. x 8 c.m. On right side of head 9 c.m. From right ear.
There was multiple skull fracture under injuries Nos.2 and 3. In the opinion of the doctor, the death had occurred due to intercranial haemorrhage and shock as a result of injuries Nos.2 and 3 which were sufficient to cause death in the ordinary course of nature. The doctor was cross-examined at length, but he denied the suggestion, that the injuries could have been received on account of fall.
6. On 14-12-1987, the appellant was arrested by Muhammad Yamin Khan, Inspector P.W.12. On the day of occurrence, the Investigating Officer visited the spot, and. Took into possession Bala P.5 from the roof of the Kotha of Muhammad Shari P.W., vide Memo Exh.P.E. Attested by Muhammad Ibrahim P.W.6 Abdul Sattar (not produced) besides the Investigating Officer P.W.12. The aforesaid Bala P.5 was sent to the Chemical Examiner and the Serologist; and according to the report of the latter, the same had stains of human blood thereon.
7. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Abdul Ghani P.W.9, father-in-law of the deceased and Muhammad Shari P.W.10 the husband of the deceased and son of the first informant and P.W.11 and other son of the complainant namely Nazir Ahmad The other eye-witnesses cited in the F.I.R. Were not produced.
8. When examined under section 342, Cr.P.C., the appellant admitted the occurrence: and made the following statement:-- "Prior to the occurrence, I had asked Muhammad Shat to construct common wall, but he did not agree though the Katcha wall in between our houses was common, and half of this belongs to me, but I did not take it ill, and was constructing my own Pakka Kothha. On the day of occurrence, Muhammad Shafi and Sardaran committed criminal trespass at the site which was owned by me and were committing mischief by filling earth in between my wall and the katcha wall, and by which process there was every likelihood of damage to my wall. I asked them to stop it but Shaf did not resist on which, scuffle took place between me and Shah. Mst. Sardaran deceased came on the roof of the Kotha and tried to intervene. In that process per chance she fell on the heap of Malba lying in my Kotha because there was no roof on the walls of my Kotha and Balas and brickbats were lying there. The witnesses are closely related. Nazir, Abdul Ghafoor, Baboo and Abdul Ghani were not present at the spot. The present story against me about the occurrence has been fabricated after preliminary investigation and is false. I received injuries during scuffle with Shafi:'
9. With the assistance of the learned counsel for the appellant, the State and the complainant, I have carefully perused the entire record of this case, and have heard the various contentions raised by the learned counsel at length. The crucial question falling for determination in this case is whether the defence plea should be believed or rejected in toto. The prosecution case, as disclosed in the F.I.R., and the statements of the eye-witnesses is a pointer towards the dispute between the deceased and the appellant over the construction of a wall. According to the complainant, the appellant had started putting earth on the roof of his house and he was restrained from doing so.
On the other hand, according to the defence version the appellant had restrained the complainant from putting the earth on their roof, which led to a dispute. Judging the background of the dispute in the light of the evidence when both sides claim the dispute over laying the earth on the roofs, 1 have no hesitation to conclude, that both the sides were bent upon laying earth which led to the dispute between them. According to the appellant, the scuffle had taken place, whereas, according to the prosecution, exchange of abuses had taken place. Although the medico-legal examination of the appellant was not brought on record but the Investigating Officer admitted, that the appellant had also received injuries, and was thus got medically examined. This circumstance leaves no room to doubt that the scuffle as well as exchange of abuses had taken place; and it was not a premeditated murder, but the parties boiled with rage at the spur of the moment. This is also on the record, that the deceased was also putting earth alongwith her husband, when the exchange of abuses and scuffle had taken place. It was, therefore, quite natural for the deceased to have intervened in the entire episode. The learned Sessions Judge had rightly concluded that there was no background of enmity between the parties or deep-rooted motive so as to compel the appellant to commit the murder, and in any case, had the earth not been put, the occurrence would not have taken place. It is, therefore, obvious, that it was a sudden affair, and the appellant inflicted a solitary blow on the head of the deceased; hence, no undue advantage was taken by the appellant. The learned Sessions Judge brought the case of the appellant within the purview of Exception I to section 300, P.P.C., but I would differ with the learned Sessions Judge, and in my opinion, the case of the appellant squarely falls within Exception 4 to section 300, P.P.C. In this view of the matter, I hold that the appellant was rightly convicted under section 304-1, P.P.C. And I .Do not find any merits and substance to hold otherwise, because the prosecution case stands amply proved on the record of this case. The occurrence is admitted and there was hardly any reason for the eye-witnesses to substitute or falsely implicate the appellant in this case. Therefore, this appeal fails, and the same is hereby dismissed
10. Adverting to the Revision Petition filed for calling in question the acquittal of the respondent/appellant under section 302, P.P.C., I find no substance in the same, because the facts and circumstances of this case clearly indicate that it was a sudden affair, wherein, without premeditation and without taking the undue advantage, the fight had taken place as a result of which, the deceased had lost her life. Accordingly this petition has no merits, and the same is hereby dismissed