' MIAN ABDUL KHALIQ, J.--- This criminal appeal preferred by Muhammad Nawaz appellant assails the judgment, dated 15-4-1987 passed by the learned Sessions Judge, Bahawalpur, whereby he convicted and sentenced the appellant under section 302, P.P.C. To undergo imprisonment for life and a fine of Rs,5,000 in default whereof to suffer further R.I. For one year. The sentence in default of payment of fine was directed to run consecutively. The amount of fine, if recovered, was ordered to be given to the legal heirs of the deceased as compensation. The appellant was also extended the benefit of section 382-B, Cr.P.C. Connected Criminal Appeal No,117 of 1987/BWP, Criminal Revision No,61 of 1987/BWP filed by the State and Criminal Revision No,35 of 1987/BWP filed by the complainant shall also be disposed of by this judgment.
2. Khan Bahadur son of Shah Din, Mahmood and Barkat Ali, co-accused were tried by the learned trial Court alongwith the appellant, but they were acquitted vide the impugned judgment. The occurrence in this case took place at 7-30 p.m. On 28-9-1986 in the lands of acquitted co-accused Khan Bahadur of Chak No,47/DNB about 14 kilometres from Police Station Yazman, District Bahawalpur. F.I.R. Exh.P.G. Was recorded on the same night at 12-10 a.m. (29-9-1986) at Police Station Yazman by S.I. Bashir Ahmad (P.W.10) at the instance of Murad Ali (P.W.7). It was stated by P.W.7 in his report (F.1.R. Exh.P.G.) that his land and the land of Khan Bahadur accused were situated adjacent to each other. Khan Bahadur used to irrigate his land first and after him on Sunday at about 9-25 p.m. The turn of his water for irrigating his land started. On the night of occurrence, he alongwith his deceased son Jalal Din alias Anwar and Umer Hayat (P.W.8) went to irrigate their land according to the turn of their water. At about 9-26 p.m. His son Jalal Din deceased had diverted canal water to his land, Muhammad Nawaz alias Pappi appellant, Mahmood son of Khan Bahadur armed with Kassis, Barkat Ali son of Nazir Ahmad armed with Datar and Khan Bahadur accused (empty handed) reached. Muhammad Nawaz appellant had asked Jalal Din deceased that why he had diverted the water to his land before time, about which P.W.7 and the deceased told the appellant that they had diverted the water at the right time at about 9-26 p.m., but the appellant had asked them that the deceased had diverted the water before the start of the turn and that the appellant had come to teach him a lesson for the same. The appellant delivered a Kassi blow with its right side on the middle of head of the deceased, who fell down after receiving grievous blow, Barkat Ali, co-accused gave Datar blow to the deceased while he was in fallen condition, which landed on his left shoulder, Mahmood co-accused had also delivered Kassi on the wrist and the arm of the deceased. P.W.7 Murad Ali and P.W.8 Umer Hayat tried to rescue the deceased, but the accused had threatened them with life. They did not go near the deceased due to fear of death and had witnessed the occurrence while standing there. Barkat Ali, Muhammad Nawaz and Mahmood, co-accused had inflicted injuries to the deceased with their weapons within the view of P.W.7 and co-accused Khan Bahadur stood there shouting Lalkara that the deceased should not be spared on that day and had asked his co-accused to finish him. On hue and cry of P.Ws., P.W. Sadiq (given up), brother of P.W.7 reached and witnessed the occurrence. Thereafter the accused escaped with their respective weapons. The P.W. Witnessed that the deceased had succumbed to his injuries. After the occurrence Shaulcat Ali and Muhammad Ashraf P.W. (given up) came to the spot alongwith other inhabitants of the village. P.W.7 Murad All left them at the spot to guard the dead body and himself proceeded to the police station where he lodged F.I.R.
Exh.P.G.
3. The dead body of deceased Jalal Din was sent for autopsy which was conducted by P.W.9 Dr. Syed Bilal Hussain on 29-9-1986 at 11-00 a.m. Who found the following injuries on his person:--
(1) An incised wound on right side of head probably parietal area of 3-1/2" x 1/2" x bone deep. It started about 2-1/2" supro posteriorly to the right ear extending towards the top of head towards the median line which it touches of crosses. It light transversely, slightly and obliquely to the median line. Clinically fracture was seen with unaided eye on skull from that wound, when its edges were separated.
(2) Multiple wounds on left side of face and on left ear. There was mark of swelling seen on left side of face. Those were as follows:--
(a) An incised wound about 1" lateral of left corner of mouth of 1" x 1/8" x muscle deep.
(b) An incised wound 3/4" x 1/4" x muscle deep 1-1/4" lateral to above injury.
(c) An incised wound of 1/2" x 1/8" x muscle deep about 3/4" supro lateral to injury mentioned as (b) above.
(d) An incised wound 1/2" x 1/8" x muscle deep 1/2" infro lateral to injury (b) above.
(e) A lacerated wound on back surface of left ear in lower half area of 1-3/4" x 3/4" into cartilage deep.
(f) An abrasion-cum-lacerated wound on supro latero anterior surface of left ear of 1/2" diameter area into cartilage deep.
(3) An incised wound on left forearm medially and posteriorly about 1-1/2" below medial border of left elbow of 7" x 2-1/4" x bone deep. The muscles and other tissues plus ulna bone were seen through the wound.
(4) An abrasion on posterior surface of left forearm about 2" below elbow supro lateral of injury No,3 of 2-1/4" x 1-1/4" x superficial.
(5) An incised wound on left shoulder laterally about 2-1/2" below the top of left shoulder of 1" x 1/3" x unknown depth.
(6) An incised wound on left upper arm about 1/2" infro posterior to injury No,5 of 1/2" x 1/2" x unknown depth.
(7) An incised wound on left upper arm about 1/2" posterior to injury No,6 of 1/2" x 1/2" x facia deep.
(8) An incised wound on left upper arm of 3/4" x 1/3" x unknown depth about 1/2" infro posterior to injury No,7.
(9) Multiple superficial abrasions were seen in and around the wounds on left shoulder as described above on left upper arm laterally in area of 8" x 3" probably.
(10) Multiple abrasions were seen on back of chest on left side on and around the left scapula in area of 10" x 6" probably.
(11) A linear superficial injury on the right upper arm laterally about 3-1/2" below top of right shoulder of 2-1/2" x 1/6" x superficial obliquely placed.
(12) An abrasion on left side of chest anteriorly about 4" below left nipple of 1" x 1/2" x superficial.
(13) A superficial scratch on left thigh laterally about 3-1/2" blow left iliac crest of 4" x 1/10".
(14) A superficial scratch of left side of abdomen about 5" lateral to umblicus of 2" x 1/10".
(1) Scalp
(a) A haemotoma was seen in scalp about 2" superior to right ear on right side of 1-1/2" diameter probably.
(b) A hacmotoma was seen on left side of scalp about 1/2" left of median line at the back of head on left side superiorly of 1-1/2" diameter probably.
(2) Skull ' A fracture on skull on the left side.
' Injuries Nos.14, 13, 12, 11, 10, 9 and 4 were caused with blunt weapon. Injuries Nos.2(e) and 2(1) were also caused with blunt weapon. Patient died due to injury No,1 which was enough to cause death in the ordinary course of life by raising intra-cranial pressure abnormally, due to massive intra- cranial haemorrhage leading to abnormally high disfunction of brain leading to shock paralysis and terminating into death. Probable time that elapsed between injuries and death was within three hours and between death and post-mortem was less than 24 houRs, Exh.P.H. Is the carbon copy of the postmortem report.
4. The Investigating Officer P.W.10 Bashir Ahmad, Inspector/S.H.O. During inspection of the place of occurrence on 29-9-1986 secured bloodstained earth vide memo. Exh.P.C. And made it into a sealed parcel. He recorded the statements of P.Ws. Muhammad Nawaz appellant alongwith the acquitted co-accused namely Khan Bahadur, Mahmood and Barkat Ali were arrested by him on 10-10-1986. The appellant on the same day while in police custody led to the recovery of Kassi blood-stained P.4 from his residential Kotha which was secured by P.W.10 Bashir Ahmad, S.H.O. Vide memo. Exh.P.D. Attested by P.W.6 Muhammad Rafiq and Abdul Ghani P.W. (given up), and had prepared sealed parcel of the same. On 23-10-1986 Barkat Ali, co-accused while in police custody led to the recovery of Datar P.5 from his residential Kotha which was secured by P.W.10 Bashir Ahmad, S.H.O. Attested by the same witnesses. On the same day Mahmood co-accused while in police custody led to the recovery of Kassi P.6 secured by P.W.10 Bashir Ahmad, S.H.O. Vide memo.
Exh.P.F. Attested by the abovesaid witnesses. P.W.10 deposited the sealed parcels of blood-stained earth and Kassi P.4 with the Moharrir. The blood-stained earth and Kassi P.4 were sent to the Chemical Examiner and Forensic Science Laboratory for examination. The report of Chemical Examiner Exh.P.L. And that of the Serologist Exh.P.N. Are positive.
5. All the accused were challaned after completion of the investigation. Charge under section 302/34, P.P.C. Was framed against the accused, to which they denied and claimed trial.
6. In support of its case the prosecution examined 10 P.Ws. In all to substantiate its case. P.W.7 Murad Ali (complainant) and P.W.8 Umer Hayat were examined as eye-witnesses. Eye-witness Muhammad Sadiq P.W. Was given up as unnecessary. Recovery of blood-stained earth from the place of occurrence was witnessed by P.W. Abdul Ghani (given up) and P.W.6 Muhammad Rafiq.
They had also witnessed the recovery of blood-stained Kassi P.4 at the instance of appellant Muhammad Nawaz, Datar P.5 and Kassi P.6 recovered at the instance of Barkat Ali and Mahmood co-accused respectively on 23-10-1986. C.W.1 Muhammad Ashiq Sukhera, D.S.P. Had partly investigated the case on the orders of D.I.-G. Bahawalpur. He visited the spot twice, recorded evidence of the witnesses and came to the conclusion that Khan Bahadur accused was innocent.
He had agreed with the investigation of Ahsan Mahboob. A.S.P. (C.W.2). He had also recommended that the case against Khan Bahadur, co-accused should be cancelled and that he should be placed in column No,2 of the challan. The other accused were found guilty according to his investigation. C.W.2 Muhammad Ahsan Mahmood, A.S.P. Had stated that he being Circle Officer of Police Station Yuman had supervised the investigation of the case conducted by Bashir Ahmad, S.H.O. (P.W.10) and found it correct. According to the investigation he had found Khan Bahadur (acquitted co-accused) innocent and had recommended that his name should be placed in column No,2 of the challan. He found the co-accused/appellants guilty and directed the S.H.O. To challan them for the murder of Jalal Din alias Anwar deceased.
7. Medical evidence was furnished by the statement of P.W.9 Dr. Bilal Hussain. The case was investigated by P.W.10 Inspector/S.H.O. Evidence of rest of the witnesses was of formal nature.
8. The appellant when examined after close of prosecution evidence denied the charge and in reply to a question "why this case against you and why the P.Ws. Have deposed against you?" had stated that his turn of water lasted until 9-26 p.m. According to the sanctioned Warabandi, but Jalal Din diverted water to his land about 11 minutes earlier at 9-15 p.m. And when he re-diverted the water to his land, Jalal Din attacked him with his Kassi. He warded off his blow and in self- defence of his person and his right of water caused him blows with sharp and blunt side of his Kassi. No other co-accused was present. The complainant, his son Umar Hayat and his brother Muhammad Sadiq were also not present. In fact Umar Hayat son of Rehmat Ali and Allah Ditta shopkeeper had reached the spot and he had told them the incident. He had produced his Kassi before the S.H.O. Next morning when he came to the spot." The learned trial Judge had acquitted the co-accused and convicted and sentenced the appellant vide his impugned judgment as stated above.
9. We have carefully gone through the evidence on record and have heard the learned counsel appearing for the parties. It was contended on behalf of the appellant, firstly, that Muhammad Nawaz appellant had no motive to commit present crime; the occurrence took place without premeditation and was a sudden flare up. The appellant had no intention to murder the deceased.
The two eye-witnesses were interested. They were not present at the relevant time, the appellant had acted in self-defence of his person and property and the sentence awarded to the appellant was not justified in the facts and circumstances of the case.
10. The learned A.A.-G. For the State and the learned counsel for the complainant controverted the above contentions. The motive in this case is stated to be a dispute over the turn of water. P.W.7 Murad Ali complainant has admitted during cross-examination that before 9-26 p.m. It was turn of the water of the appellant which started at 2-25 p.m. In accordance with the sanctioned Warabandi which has been observed since 1978. No evidence has been produced by the prosecution about turn of water of the either party. The time of turn of water has not been established by any document. The accused and the deceased were inter-related, but Khan Bahadur (acquitted co-accused) is son of uncle of P.W.7. The other accused were his nephews.
They were living in the Chak for the last 34 years and no untoward incident had taken place between the parties since then as well as after 1978 when the turn was sanctioned and both the parties were observing timings of Warabandi. P.Ws. 7 and 8 are father and brother of the deceased.
How can it be possible that they could tolerate infliction of injuries on the person of the deceased and did not dare to intervene? It has been brought on record that Khan Bahadur, co-accused was empty-handed, an old man and a lame. As stated by the P.Ws., the parties were there to water their land and it is a common practice in the village that the people go to water their land with at least a Kassi in their hands. P.Ws. Never tried to intervene nor any injury was received by any of them. Their conduct shows that they were not present at the spot. None of the eyewitnesses i,e.
P.Ws. 7 and 8 had stated that the deceased was injured with a blunt weapon, but P.W.9 Medical Officer had conducted autopsy and had found blood-stained weapon injuries on the person of the deceased. The ocular account furnished by the statements of P.Ws.7 and 8 is not in consonance with the medical evidence furnished by the statement of P.W.9. According to P.W.9 as already stated in his statement the probable time elapsed between the receipt of injuries and the death of the deceased was three houRs, P.W.9 had not stated that the deceased died instantaneously.
P.Ws.7 and 8 stated that the fight continued for 3/4 minutes. Thereafter the accused escaped and they witnessed that Jalal Din had succumbed to his injuries. This statement is also in conflict with the medical evidence. It can be easily presumed that P.Ws.7 and 8 were present at their house at the relevant time and at the distance of 4/4-1/2 acres, and after hearing the noise of the occurrence reached there and found the deceased dead. C.Ws.1 and 2 have stated that the complainant party was adamant that all the four accused should be challaned. C.W.1 also stated that he tried to persuade the parties to appoint an arbitrator, but the complainant party did neither agree to accept oath of innocence nor to give oath against the accused. P.W.7 had stated that he did not know if Allah Ditta tailor and Umar Hayat son of Rchmat Ali had appeared and made statements before the A.S.P., Bahawalpur and D.S.P., whereas P.W.8 had stated that they had appeared before the A.S.P./D.S.P. P.W.10 Bashir Ahmad I.O./S.H.O. Had stated that from the very first day the accused had been raising plea that excepting Muhammad Nawaz appellant the other accused were innocent and on the satisfaction of the parties Mushtaq Ahmad Jajja, Syed Ghulam Qadir Shah and Inayat Hussain Bajwa were made members of the Punchayat, but the complainant party later on disagreed. P.W.5 Akhtar Ali, Patwari who prepared site plans Exhs.P.B. And P.B./1 stated that the place of occurrence was in the land of Khan Bahadur accused, whereas P.W.7 Murad Ali complainant stated that the occurrence took place in the Government land which was on lease with Khushi Muhammad, Chowkidar. P.W.7 had dishonestly stated about the place of occurrence as the Nakka of Murad Ali was at a distance of 3 acres from the place of occurrence and if the appellant was present in his land and was irrigating the same from his Nakka, then for what purpose the deceased had gone there. Murad All complainant P.W.7 has stated that Warabandi was sanctioned since 1978 and no untoward incident had taken place during the said period. It is shrouded in mystery that what happened immediately preceding the present occurrence. The statements of eye-witnesses have not been believed. The plea raised by the appellant is also not satisfactorily explained by him. The complainant and the appellant made embroidery in their statements and concealed the real facts which led to the present occurrence.
11. After taking into consideration the evidence on record and the circumstances appearing in the case we are of the view that the occurrence took place due to a sudden flare up, without premeditation and motive. The appellant had no intention to kill and all happened on a spur of moment. There was no previous enmity between the parties and in the circumstances the appellant had committed an offence punishable under section 304, Part I, P.P.C. And accordingly the sentence of the appellant is altered from life imprisonment under section 302, P.P.C. To 10 years'
R.I. Under section 304, Part I, P.P.C. However, we maintain the sentence of fine of Rs,5,000, in default of payment whereof to suffer further R.I. For one year. The fine, if realized, shall be paid as compensation to the legal heirs of the deceased. The benefit of section 382-B, Cr.P.C. Shall also be extended to the appellant.