Muhammad Tufail and his son Meer Hassan appellants were tried by a learned Additional Sessions Judge at Faisalabad for committing the murder of Allah Bakhsh in furtherance of their common intention on 6-4-1985 at 6-45 p.m. In the area of Chak No.208/R.B., Tehsil and District Faisalabad.
On the conclusion of trial they, vide judgment dated 27-10-1986, were convicted under section 302/34, P.P.C. And sentenced to imprisonment for life and fine of Rs"500 each or in default to its payment to undergo one month's R.I each. They were directed to pay Rs.5,000 each as compensation to the heirs of Allah Bakhsh (deceased), failing which to undergo six months' R.I.
Each. They were also given the benefits of section 382-B, Cr.P.C.
2. The brief facts of the case are that six months prior to the occurrence Allah Bakhsh (deceased) had purchased a buffalo on credit from Mohammad Tufail appellant for a sum of Rs.4,000. After some time he paid half of the Price to Muhammad Tufail appellant and undertook to pay the remaining half in easy instalments. On 5-4-1985 Muhammad Tufail appellant came to the house of Allah Bakhsh (deceased), where his maternal-cousin Muhammad Sharif complainant was also present and demanded the remaining amount of Rs.2,000 in lump sum. Allah Bakhsh (deceased) insisted on paying the money in easy instalments and this led to an altercation between them.
Muhammad Sharif complainant intervened and Muhammad Tufail appellant left the house of Allah Bakhsh (deceased) with a threat.
3. On the following day at about 6-45 p.m. When Allah Bakhsh (deceased) and his son Mushtaq P.W. Were bringing their buffalo near the Poultry Farm of Nasrullah Rajput in the area of Chak No.208/R.B. Muhammad Tufail appellant armed with a `Lathi' and his son Meer Hassan with a `hatchet' confronted them near the turn of the road. Muhammad Tufail appellant raised a `Lalkara' and attacked Allah Bakhsh (deceased). In that process Meer Hassan inflicted a `hatchet' blow on the forehead of the victim, followed by Muhammad Tufail appellant who gave a `Sots' blow on his head. Meer Hassan appellant repeated the `hatchet' blow again hitting him on his head, as a result of which he (deceased) fell down. Meanwhile Mushtaq P.W. Picked up a few brickbats and hurled the same on Muhammad Tufail appellant, hitting him on his leg. Meer Hassan appellant, gave the third `hatchet' blow to Allah Bakhsh (deceased) when he was lying on the ground with blunt side on his left ear. Muhammad Tufail appellant repeated the `Sots' blow hitting the back of the fallen victim. Muhammad Sharif complainant, who accompanied by his friend Muhammad Yaqub, was riding a cycle, happened to pass near the place of occurrence and hurriedly went there but the assailants, seeing them come, made their escape good. As a result of injuries so sustained by him he breathed his last on the spot. Leaving Mushtaq P.W. To watch over the dead body of his uncle, Sharif P.W. Went to Police Station (Saddar) Faisalabad, where he lodged the report.
4. The police, after the registration of the case under section 302/34, P.P.C. Against the appellants, carried out its investigation and ultimately arresting them, sent them up to the Court of Session for trial.
5. On the commencement of the trial the appellants were charged for the murder of Allah Bakhsh, and on their pleading not guilty, the prosecution produced as many as 13 witnesses.
6. On the completion of the prosecution evidence the appellants were examined under section 342, Cr.P.C. Meer Hassan appellant altogether denied his participation in the occurrence. Muhammad Tufail, however, stated that Allah Bakhsh (deceased) had taken a buffalo on credit from him and on the day of occurrence he was taking it towards the town, perhaps for selling it. According to him, since he was returning from the fields after having a round of the crop with a `panda' in his hand, he happened to come across the deceased near the place of occurrence and stopped him. The controversy over the buffalo led to a fight and both of them gave beating to each other. During the fight the buffalo ran away. He alleged that no one had seen the occurrence as none else was present and he was falsely implicated. He also made statement on oath under section 340(2), Cr.P.C.
7. On the conclusion of the trial both the appellants were convicted and sentenced in the manner aforesaid.
8. It was argued on behalf of the appellants that Muhammad Sharif complainant and Muhammad Yaqub, P.W. Were on friendly terms with each other and were chance witnesses and they had no occasion to be present at a place situated sufficiently away from the village Abadi, particularly when the latter belonged to a different village. It was argued that had they seen the occurrence, they, particularly Muhammad Sharif complainant who was a near relation of the deceased, would have definitely done something to rescue him from the assailants but they did nothing. It was contended that it was a sudden right which took place on the spur of moment when Muhammad Tufail appellant saw the deceased taking the buffalo towards the town, presumably for selling it, without paying its price to him and the controversy between them on this point led to a fight during which they gave blows to each other. In his opinion, it was at the most a case falling within the ambit of section 304, P.P.C and Muhammad Tufail appellant could be convicted and sentenced accordingly. He was of the view that Meer Hassan appellant was not present and he was roped in merely on account of his close relationship with his co--appellant.
9. The learned counsel appearing on behalf of the State was of the view that the appellants felt annoyed on the non-payment of the price of the buffalo to them by the deceased and a quarrel in that respect had taken place a day prior to the occurrence. He submitted that it was a premeditated murder and the appellants were rightly convicted and sentenced.
10. The presence of injuries on the person of Muhammad Tufail indicated that the deceased was also armed and a fight took place between them at a place in the fields sufficiently away from the village Abadi. It is doubtful that at that juncture Muhammad Sharif complainant and his friend Muhammad Yaqub P.W. Could be present. Both of them appeared to be chance witnesses, having made a false statement: Even the presence of Mushtaq P.W. And Meer Hassan appellant was doubtful. Being a sudden quarrel in some background of annoyance of not very serious nature, Muhammad Tufail appellant in my opinion, was guilty of culpable homicide not amounting to murder. Therefore, his conviction and sentence under section 302, P.P.C is set aside but he is convicted under section 304, Part I, P.P.C and sentenced to ten years' R.I and fine of Rs.10,000 or in default to further undergo two years' R.I. He is also directed to pay compensation of Rs.10,000 to the heirs of the deceased as contemplated under section 544-A, Cr.P.C. Failing which he will have to undergo six months' R.I. He shall also be entitled to the benefit of section 382 B, Cr.P.C. So far as Meer Hassan, appellant is concerned, his presence at the time of occurrence being doubtful, he is acquitted of the charge of murder on A benefit of doubt.
11. Since Muhammad Tufail appellant is on bail, the learned District Magistrate, Faisalabad, is directed to cause his arrest and send him to the prison for' serving out his remaining sentence.