Muhammad Arif (23) was tried by the Additional Sessions Judge, Gujrat for having murdered Nazir Ahmad on 29-1-1987 at 3-00 p.m. In the fields in the area of village Puran at a distance of 12 miles from Police Station Sarai Alamgir.
2. Learned trial Judge vide judgment dated 2-5-1989 convicted him under section 302, P.P.C. And sentenced to undergo imprisonment for life plus to pay a fine of Rs.20,000, in default whereof to undergo S.I. For one year.
3. The convict has filed appeal. The complainant has filed revision petition wherein prayer has been made for enhancement of the sentence from imprisonment for life to death. Both the matters are being disposed of together.
4. F.I.R. Exh.P.D/1 was registered at Police Station by Msar Ahmad, Constable at 1-15 a.m. On 30-i- 1987 on receipt of statement Exh.P.D. Of Mst. Qamar-un-Nisa (P.W.2) recorded by Fateh Khan A.S.I.
(P.W.5) at Rural Health Centre, Sarai Alamgir at 1-00 a.m. On 30-1-1987.
5. According to F.I.R. The complainant was married in her own village, i.e. Puran. Her younger sister Mst. Nasreen Akhtar was married to Muhammad Arif, co-villager 1-1/2 years before the occurrence.
Muhammad Arif and Mst. Nasreen used to quarrel often. On the day of occurrence, Arif beat Nasreen Akhtar at 7/8 a.m. She went crying to the house of her father and informed him about that.
Her father (deceased) went to the house of Arif and admonished him.
5-A. At 3-00 p.m. The complainant along with her brother Khalil accompanied by their father Nazir Ahmad were going to the fields to bring fodder. When they were walking on the passage on the eastern side of the village, Muhammad Arif came from behind running, holding hockey. He hurled abuses saying that he will teach a lesson for being insulted in the morning. Simultaneously he gave a blow on the forehead of Nazir Ahmad. He fell down. He gave the second blow on his nose. Nazir Ahmad started bleeding. A number of people reached the spot hearing hue and cry of the complainant and Khalil Ahmad. Nazir Ahmad was taken to Civil Hospital, Sarai Alamgir with the help of Abdul Qudoos where he died.
6. Fateh Khan A.S.I. After despatching statement Exh.P.D. To Police Station for registration of the case, sent the dead body for post-mortem after preparing the inquest report. Thereafter, he went to the place of occurrence and inspected the same. He arrested the appellant on 7-2-1987. Hockey P.1 got recovered by him (appellant) on 10-2-1987 was taken into possession vide memo Exh.PA.
Challan was submitted to Court after completion of necessary investigation.
7. Statements of 8 P.Ws. Were recorded at the trial.
8. Dr. GA. Saleem who had medically examined the deceased whilst alive on 29-1-1987 at 6-00 p.m.
Appeared as P.W.6. He had noted bleeding through the nose and swelling with contusion 5 x 2.5 c.m. On the upper eye-lid as a result of contusion on the left temporal region. The injured was restless and semi-unconscious at that time. The injuries were opined to be dangerous to life and were opined to have been caused with blunt weapon within a duration of 4 to 6 hours.
9. The deceased died in the hospital on the same day at 9-00 p.m. The doctor sent the information through a letter to the S.H.O.
10. Dr. Arshad Ali Shah who had performed autopsy at 12-15 a.m. On 30-1-1987 was not available.
Statement of Dr. GA. Saleem was recorded to prove the post-mortem report by way of secondary evidence.
11. He stated that Dr. Arshad Ali Shah had been his colleague and so he was well versed with his handwriting and signatures. According to him, post--mortem report Exh.P.H. And diagram Exh.P.H./I was in the hand of Dr. Arshad Ali Shah and bore his signatures.
12. According to post-mortem report the deceased had died due to shock and haemorrhage resulting from injuries Nos.1 and 2. Dr. Arshad Ali Shah had noted two injuries in the post-mortem report. One on the temporal region and the other is swelling 6 c.m. x 4 c.m. On the right temporal region. On opening, he had found left frontal bone and occipital bone fractured. According to his opinion, the deceased had died due to shock and haemorrhage resulting from the injuries.
13. Ocular account was deposed to by Mst. Qmar-un-Nisa (P.W.2) and Khalil Ahmad (P.W.4).
14. Mst. Qamar-un-Nisa repeated the facts given by her in the F.I.R. During cross-examination she admitted that Mst. Zainab, sister of the appellant, was married to his brother Dawood. She denied the suggestion that her father used to beat and maltreat Zainab, sister of the appellant, and that her husband (Dawood) used to support Zainab.
15. Khalil (P.W.4) corroborated the statement made by P.W.2.
16. Both of them denied the suggestion that they had not witnessed the occurrence or that they had falsely named the appellant. Khalid also denied the suggestion that no villager had supported their version during investigation. He stated that 15/20 persons had supported the version put forth by them.
17. Evidence of recovery of hockey was deposed to by Mehfooz Ahmad (P.W.1). His statement in that regard was corroborated by P.W.5 Fateh Khan A.S.I. Fateh Khan also had given the details of investigation conducted by him and the fact of having recorded the statement of the complainant as well as effecting arrest of the appellant.
18. Statements of the remaining witnesses are more or less of formal nature
19. It is in evidence that the daughter of the deceased was married to the appellant in exchange ( dj ) of the marriage of his (appellant's) sister to Dawood son of the deceased. Both the families were residing in the same village. Although there is no sufficient evidence to believe conclusively the allegation of beating of the daughter of the deceased by the appellant on the day of occurrence, as Nasreen who was beaten was neither produced during investigation nor at the trial, but there is enough substance to infer that the two unfortunate girls married in both the houses were not having good time. Naturally, such a situation would have created tension in the relationship of the members of both the families.
20. There is no substantial reason to disbelieve the testimony of P.W.2 and P.W.4 to the extent that it was the appellant who had caused injuries to the deceased. The argument of learned counsel for the appellant that both the witnesses being real brother and sister and being issues of the deceased cannot be relied upon, in my view, in the circumstances of this case, does not hold water as it is difficult to believe that the brother and sister would have substituted the appellant for the real culprit knowing fully well that the repercussions of false involvement would ruin the family life of their sister as well as their brother. In the circumstances, it can be safely concluded that the injuries as a result of which the deceased died had been caused by the appellant. The mere fact that there is substantial reason to believe that the deceased had died at the hands of the appellant is no proof that the appellant had intentionally committed the murder of the deceased.
The facts and circumstances rather lend support to the argument that the occurrence had taken place suddenly and the appellant had not caused injuries to the deceased with the premeditated mind to commit murder. The weapon wielded by him particularly speaks of the fact that the occurrence had taken place at the spur of the moment because if the appellant had planned to chase the deceased in the fields to commit his murder, he would have chased him armed with a more dangerous and formidable weapon which it would not have been difficult for him to obtain as it is commonly known that Kulharis and Gandasas, if not fire--arms; are generally available in the houses of the Zamindars in the villages. However, the damage that occurred from the injuries does speak of the fact that he had enough knowledge that the injuries being inflicted by him will in all probability result in the death of the victim. In sequel of the above reasons I am convinced that the appellant cannot be burdened with the liability of having committed cuplable homicide amounting to murder. He can only be held liable for having committed cuplable homicide not amounting to murder. The conviction under section 302, P.P.C. Is, therefore, not maintainable. The same is set aside. Instead he is convicted under section 304, Part I, P.P.C. And sentenced to undergo R.I. For 10 years plus to pay a fine of Rs.5,000, in default whereof to undergo R.I. For 6 months. Whole of the fine, on recovery, shall be paid as compensation to the heirs of the deceased. He shall be given benefit of provisions of section 382-B of the Cr.P.C.
21. Since conviction under section 302, P.P.C. Has not been maintained the question of enhancement of the sentence to death does not arise. The revision petition is, therefore, dismissed.