' This criminal appeal has been filed against the judgment dated 26-1-1992 passed by the learned Additional Sessions Judge, Rahimyar Khan whereby the appellant was convicted and sentenced under section 326, P.P.C. To undergo R.I. For 10 years and a fine of Rs,15,000, in default whereof to suffer R.I. For 3 yeaRs, The appellant was also extended the benefit of section 382-B, Cr.P.C.
2. The appellant alongwith six co-accused was tried for the murder of Rehmat Masih and making murderous assault on Mst. Sardaran (P.W.1), Jouzaf Masih (P.W.2) and Shafqat Masih (P.W.6) and Sattar Masih P.W. (given up) in prosecution of the common object of all. The co-accused were acquitted of the charge and the appellant was convicted and sentenced accordingly.
3. Briefly the prosecution case is that on 6-8-1982 at 5-00 p.m. At Chak No,116/1-L, Jaimas Masih had obtained land on temporary cultivation basis who was later arrested in a case under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 .And handed over the said land for cultivation to Khurshid Masih and the complainant. For one year Khurshid Masih continued cultivating the land with the complainant and thereafter his brother cultivated the land. The appellant was given his share and the appellant had also obtained money for pursuing his case.
The appellant after his release from the jail demanded back the land, which was in possession of the complainant for cultivating the same. The complainant demanded back his amount and stated that after harvesting the crops the possession of the land would be restored, but the appellant did not agree and on 5-8-1982 there was turn of water of the complainant, he alongwith his brothers Shafqat Masih and Sattar Masih went to water the land and also to give fodder to the bullocks, but the bullocks were not present at the Dera. The appellant was alleged to have watered the land alongwith his brothers to take possession of the land. The appellant alongwith his brothers had frightened the complainant and his brothers during the night. The deceased alongwith his brother Jauzaf Masih reached back and narrated the incident to his brothers, when the complainant alongwith his brothers Jauzaf (P.W.5), Shafqat Masih (P.W.6), mother Mst. Sardaran (P.W.1) and Sattar Masih P.W. (not produced) at about 10-15 p.m. Went to the land and found their bullocks missing. The complainant went in the Dera, and checked the articles. Meanwhile appellant Jaimas Masih armed with Barchhi, Khadim Masih armed with a hatchet, Inayat Masih, Hidayat Masih, Younus Masih armed with Sotis, Saleem Masih and Sarfraz Masih armed with Sotis attacked the complainant party. Khadim Masih had inflicted hatchet blow from the wrong side, Inayat Masih, Hidayat Masih and Younus Masih inflicted Soti blows on the shoulders and backside of the complainant. The appellant had caused Barchhi blow in the abdomen of the complainant and intestines of the complainant bulged out. The complainant fell down and the accused continued giving injuries on his brotheRs, The accused/appellants witnessing the complainant in a precarious condition escaped. The brothers of the complainant wrapped clothes around the abdomen of the complainant and brought him on a cot to the Chak, and as no vehicle was available at night, the accused beseeched and stopped the complainant party to reach the police station to lodge the report. The accused had handed over the bullocks to the Lamberdar. P.W.12 who on receipt of the information of the present occurrence had reached the spot and drafted the complaint Exh.P.F. On the statement of Rehmat Masih deceased and sent the same to the police station, where formal F.I.R. Exh.P.F./1 was recorded by P.W.8 Muhammad Maqbool, A.S.I.
4. The appellant alongwith his co-accused was challaned and sent up for trial. The accused were charged on 22-10-1983 by the learned Additional Sessions Judge under section 302/307/148/149/452, P.P.C. To which they denied and claimed trial. Thereafter, after the transfer of learned Additional Sessions Judge, Mr. Manzoor Ahmad Kamboh, learned Additional Sessions Judge, Syed Muhammad Mumtaz Hussain Shah again framed charge against the accused on 9- 8-1984 under four heads i,e. Section 148, P.P.C. Read with section 149, P.P.C.,section 452, P.P.C. Read with section 149, P.P.C., section 307, P.P.C. Read with section 149, P.P.C. And section 302, P.P.C. Read with section 149, P.P.C. To which the appellants had denied and claimed trial.
5. I have heard the parties and have perused the record. Rehmat Masih complainant had died on 3-10-1982 and section 302, P.P.C. Had been added to the case already registered against the accused.
6. The prosecution examined P.W.1 Mst. Sardaran, mother of the deceased, P.W.2 Jauzaf Masih, brother of the deceased and P.W.6 Shafqat Masih, brother of the deceased as eye-witnesses of the occurrence. They had unanimously supported the statement Exh.P.F. Of the complainant, on the basis of which formal F.I.R. Exh.P.F./1 was recorded. The appellant was arrested on 28-8-1982 and led to the recovery of Barchhi P.1 on 2-9-1982 which was secured by P.W.12 Ghulam Mustafa S.H.O. Vide memo. Exh.P.B. Attested by P.W.7 Yaqoob Masih. Barchhi P.1 was not blood-stained and had no corroborative value.
7. The motive for the commission of the offence was that the appellant was granted land by the Government under Temporary Cultivation Scheme and under the law, his status was that of a tenant under the Government. P.W.1 and P.W.2 during cross-examination stated that on the allotted land the appellant had constructed a house/Dcra. However, he could not cultivate the land on account of his involvement and arrest in a criminal case of abduction. He had handed over the said land to one Khurshid Masih P.W. (not produced), who cultivated the land for one year as stated by P.W.1. P.W.1 had also stated during cross-examination that said Khurshid Masih cultivated the land for a period of one year and after the arrest of the appellant he alongwith the complainant and Samual Masih went to jail to see Jaimas Masih who demanded Rs,10,000 from him and subsequently they paid the amount to his brother Inayat Masih under the instructions of the appellant without any receipt. Shafqat Masih (P.W.6) has stated that prior to them the land was cultivated by Khurshid Masih and had admitted during cross-examination that presently the land was being cultivated by the appellant. In the circumstances it is clear that at the time of occurrence the land was in possession of the appellant. The revenue record produced in the Court also mentioned the possession and cultivation of the appellant over the said land, vide Exhs.D.E.
And D.F. Even if it is admitted that the land remained in possession of the deceased and it is admitted by the P.Ws. As well as it is the prosecution story that on the day of occurrence, the appellant alongwith his brothers ousted the complainant party from the said land by irrigating the standing crop and turned out the deceased's brothers P.W.6 and Sattar Masih (not produced). It was admitted by the P.Ws. That both the abovesaid P.Ws. Went away at about 10-00 a.m. And remained in their houses situated in the Chak at a distance of 1-1/2 miles throughout the day and returned the following night with the deceased and his brother P.W.2 Jauzaf Masih. The deceased alongwith his brothers P.W.2 and P.W.6 and mother (P.W.1) reached the Dera at 10/11-00 p.m. (night) only to take back the possession. The deceased and the P.Ws. Had already been ousted from the land and could not take back the possession forcibly except in due course of law.
8. The bullocks were procured by P.W.12 through memo. Exh.P.A. After the occurrence the bullocks were handed over to the Lamberdar, who sent the same to the house of the complainant party. The bullocks were produced by Jauzaf Masih (P.W.2) before the Investigating Officer (P.W.12).
Lamberdar appeared as D.W.1 and stated that neither there was any dispute about the bullocks between the accused and the complainant parties nor he had produced the same before the police. The recovery of bullocks has not been proved on record.
9. The appellant when examined under section 342, Cr.P.C. Denied the prosecution evidence against him and stated that he alongwith his brother Inayat Masih was irrigating the land in dispute and were present in the Dera in connection thereof when at about 10 or 11 p.m. Jouzaf armed with hatchet, Shafqat Masih, Sattar, Samual, Sadiq, Iqbal, Saleem Masruf armed with Sotis and Finhas armed with Barchhi forcibly entered into his Dera and opened an attack upon them. On their alarm, Younus Masih and Khadim Masih accused were also attracted. The aforesaid assailants started injuring him and Younus co-accused. Finhas Masih wanted to injure him with his Barchhi which hit Rehmat Masih complainant at his abdomen and he was luckily saved whereupon Rehmat Masih fell down. It was an open fight. Jouzaf Masih also sustained injuries at the hands of appellant party, which were inflicted to him in their defence. The complainant party twisted the facts and got false case registered against the accused party. The complainant party had opened attack on them in order to take forcible possession of the land in dispute. The appellant had produced D.W.1 Maula Bakhsh, Lamberdar who had stated about the theft and production of bullocks, tendered in evidence documents Exhs.D.E. And D.F. And closed his defence. The complainant and the P.Ws. Had not stated about the injuries on the appellant, Younus Masih and Inayat Masih, acquitted co-accused.
10. It has been established on record that the accused party was in possession of the disputed land at the relevant time and the complainant party went armed to take back forcible possession of the disputed land, and at that time a free fight took place between the parties and injuries were received by Inayat Masih, brother of the appellant and also from the complainant side P.W.2 Jouzaf Masih and the deceased received injuries during the occurrence. Keeping in juxtaposition the case of the appellant with that of the prosecution, it is evidently clear that the complainant party and the accused had indulged in free fight for restoration of possession of the land.
11. The complainant was admitted in the hospital for one month and the injury was declared grievous and dangerous to life. P.W.9 Dr. Muhammad Aftab Iqbal who had conducted the autopsy on the dead body of the deceased during cross-examination had stated that the deceased was discharged from the hospital after his wound had been completely healed and was able to walk and take food. The deceased could have survived if the wound did not develop any complication. If the patient acts against the medical advice, the possibility of the wound giving way may occur.
The deceased had died on 3-10-1982.
12. The appellant was specifically attributed grievous and dangerous to life injury given by him on the abdomen of the deceased. There was no premeditation and the injury was caused to the deceased by the appellant during free fight. The appellant was rightly convicted and sentenced by the trial Court under section 326, P.P.C. The learned counsel appearing for the appellant has prayed for leniency in the matter of sentence while not seriously challenging the conviction and sentence of the appellant.
13. The occurrence took place on 5-8-1982, the appellant was arrested on 28-8-1982, and after 2 years he was admitted to post-arrest bail. He was convicted and sentenced on 26-1-1992 in the present case and since then he is in the jail. The appellant has undergone a period of about 3-1/2 years in jail as undertrial and convict. He has been facing the agony of trial since 1982 and I am of the view that the sentence for a period of 7 years' R.I. Shall meet the ends of justice. Accordingly his sentence is reduced to 7 years' R.I. From 10 years' R.I. The fine of Rs,15,000 is reduced to Rs,10,000 as the appellant is a sweeper and does not own any land. In default of payment of fine, the appellant shall suffer further R.I. For one year. The fine, if realized, shall be paid to the legal heirs of the deceased. The appellant shall be extended the benefit of section 382-B, Cr.P.C.
Sentence reduced.