' The appellants herein namely Rehmat Ali alias Rehma, Shan Muhammad alias Shana and Ilyas, besides two others, were tried by the learned Additional Sessions Judge, Sheikhupura, for committing the murder of Muhammad Waris son of Ghulam Qadir and for launching murderous assault of Muhammad Afzal P.W. In the prosecution of the common object of the unlawful assembly that they had constituted for this purpose on 23-5-1983 at 9-10 a.m. In the area of Sheroke, Police Station Farooqabad, District Sheikhupura. On the conclusion of the trial, vide judgment dated 18-10-1986, they were convicted under section 302/34, P.P.C. And each of them was sentenced to imprisonment for life and a fine of Rs,10,000 or in default to further undergo two years' R.I. They were also convicted under section 307/34, P.P.C. And sentenced to three years' R.I.
Each and a fine of Rs,5,000 each or in default of its payment to suffer six months' R.I. Each. Their substantive sentences were directed to run concurrently and out of aggregate fine, Rs,15,000 were directed to be paid to the heirs of Muhammad Waris (deceased), and Rs,5,000 to Muhammad Afzal P.W. As compensation for injuries.
2. The prosecution case was that on 23-5-1983 at 9-10 a.m. Muhammad Waris (deceased) accompanied by his brother Muhammad Afzal P.W. Rounded up a bullock belonging to the accused party from their field when it was damaging their crop and brought it to their Behak. After some time the appellants and their acquitted co-accused armed with hatchets, excepting Muhammad Aslam acquitted co-accused, who was empty handed, came to the Behak of the complainant party, where the bullock stood tethered, and demanded its return. The controversy led to an altercation between Muhammad Aslam acquitted accused and the deceased and his brother Muhammad Afzal. They fell out with each other and Muhammad Aslam acquitted co- accused held Muhammad Waris (deceased) in his clasp while Rehmat Ali alias Rehma appellant gave a hatchet blow on the right side of his head, followed by Shan Muhammad alias Shana appellant, who dealt two successive blows with his hatchet on his left side. As a result of these injuries, Muhammad Waris (deceased) fell down. His brother Muhammad Afzal P.W. Stepped forward to rescue him but he was attacked by Muhammad Ilyas appellant, whose hatchet blow fell on the left side of his head. He too fell down and when he was so lying, Rehmat Ali alias Rehma appellant gave him a hatchet blow on his right leg. Mushtaq acquitted accused also came there.
' Then all the assailants ran away towards their Dhari. Muhammad Hayat P.W. (not produced) had also witnessed the occurrence. The injured were removed to the hospital, where they were medically examined. However, Muhammad Waris died on the following day in General Hospital, Lahore.
3. The matter was reported to the police by Ghulam Qadir, the father of Muhammad Waris (deceased) and Muhammad Afzal P.W. At Police Station Farooqabad on the same day at 7-30 p.m.
And a case under sections 302, 307, 148/149, P.P.C. Was registered against the appellant and their acquitted co-accused. After the completion of investigation, they all were sent up for trial and on its commencement they were charged for the above-mentioned offences. On their denial, the prosecution produced as many as 12 witnesses against them.
4. Muhammad Mansha (P.W.1) the identifier of the dead body of Muhammad Waris at the time of autopsy; Shaukat All F.C. (P.W.2), F.C. Gui Sher (P.W.3), A.S.I. Mushtaq Ahmad (P.W.5), Siraj Din Paiwari (P.W.4) and Muhammad Ashraf (P.W.6) were the formal witnesses.
5. Dr. Abdul Rahim Arain (P.W.7) had medically examined Muhammad Waris when he was in semi- conscious state and Muhammad Afzal P.W., finding three contused wounds on the head of the former and three injuries on the person of the latter, out of which two were contused wounds located on his head and one was a contusion on the right leg.
6. Dr. Muhammad Salim Akhtar (P.W.10) had carried out the autopsy of Muhammad Waris (deceased) and noticed five stitched wounds on the head. On internal examination he had found temporal parietal and occipital bones fractured and a piece of skull bone had been removed. In his opinion, out of five injuries, three were caused by a blunt weapon and two by a sharp-edged weapon, the latter probably due to surgical operation and they were sufficient to cause death in the ordinary course of nature. He proved the post-mortem report.
7. Ghulam Qadir complainant (P.W.8), Muhammad Afzal (P.W.9), Khan Muhammad (P.W.11) gave the eye-witness account. Their testimony finds reflection in the above narration of the prosecution case. The last witness was S.I. Nazir Ahmad (P.W.12). He gave the details of the investigation.
8. The appellants and their acquitted co-accused, while examined under section 342, Cr.P.C.
Denied all the incriminating circumstances figuring against them in prosecution case. Rehmat All alias Rehma appellant, however, admitting his participation in the occurrence, stated that on the day of occurrence his bullock went stray and it was rounded up by Muhammad Waris (deceased) and Muhammad Afzal P.W. According to him, he went to their Behak for getting it back and entreated them for its return, but Muhammad Afzal P.W. Started abusing him and then both the brothers started causing him injuries. He stated that apprehending danger to his life, he caused them injuries with the blunt side of the hatchet in the exercise of his right of self-defence. He examined Dr. Khalid Yazdani Sheikh (D.W.1), who gave the following details of his injuries:-
(1) Contused wound 2 c.m. x 0.5 c.m. x bone deep on the left side of head 9 c.m. Above to the left ear.
(2) A bruise 6 c.m. x 2 c.m. On the left shoulder.
(3) A bruise 7 c.m. x 2 c.m. On the outer side of left upper arm.
(4) A bruise 14 c.m. x 3 c.m. On the back of left forearm.
(5) An abrasion 7 c.m. x 3 c.m. On the back of right forearm.
(6) Swelling 4 c.m. x 3 c.m. On the right thumb.
(7) Swelling 5 c.m. x 4 c.m. On the nose.
9. On the conclusion of the trial, the learned Judge, vide his judgment now under challenge, convicted and sentenced the appellants in the manner aforesaid after acquitting their co-accused on benefit of doubt and aggrieved by it, the former had come up in appeal.
10. It is argued on behalf of the appellants that on the same evidence two of their co-accused were acquitted and in any case the learned trial Judge did not believe the presence of Ghulam Qadir complainant (P.W.8) and Khan Muhammad (P.W11) at the time of occurrence and these findings in fact undermined the prosecution case. According to the learned counsel, the presence of Muhammad Afzal P.W. Was no doubt believed but he resorted to exaggeration by falsely implicating Shan Muhammad alias Shana and Ilyas appellants alongwith Rehmat Ali alias Rehma appellant merely on account of their relationship with him. He is of the view that there was no previous enmity between the parties and the mishap resulting in the death of Muhammad Waris occurred as a result of sudden quarrel between them emanating from the controversy over the tethering of Rehma's bullock by Muhammad Waris (deceased) and his brother Muhammad Afzal P.W. And his demanding its return. In his opinion, Rehma appellant had, at the most, committed an offence under section 304, Part II as he had exceeded his right of private defence when he was attacked by his opponents. He referred to his injuries mentioned in the medico-legal report.
11. So far as Shan Muhammad alias Shana and Ilyas appellants are concerned, the possibility of their false implication on account of their relationship with Rehma appellant cannot be excluded and keeping in view the safe administration of justice they are entitled to the benefit of doubt. Their appeal is, therefore, accepted and they are acquitted of both the charges.
12. So far as Rehmat All alias Rehma appellant is concerned, he admitted his participation in the occurrence and pleaded his self-defence. No doubt Dr. Khalid Yazdani Sheikh (D.W.1) proved seven injuries on his person but all of them were bruises, swellings and an abrasion located on the non- vital part of his body except a contusion wound of a small dimension. These injuries did not give him the right of self-defence on the land of complainant party to cause the death of Muhammad Waris and injury to his brother Muhammad Afzal P.W. He went to their Dera armed with a hatchet in order to obtain forcible release of his impounded bullock, which was found damaging their crop.
Armed with a formidable weapon like hatchet, he went there with a coercive design to retrieve his bullock at any cost and reaching there, instead of making some regretful overture for its release, entered into an altercation and then caused fatal injuries to Muhammad Waris (deceased) and injuries to his brother Muhammad Afzal, who tried to rescue him. In these circumstances, no right of self-defence was available to him nor it was a sudden quarrel taking place on the heat of the moment. He was, therefore, rightly convicted under section 302, P.P.C. But leniently dealt with by the trial Court in the matter of sentence. He, in fact, deserves death penalty but in the absence of any revision or State appeal for the enhancement of his sentence, he is getting undue concession of life imprisonment for the murder of Muhammad Waris (deceased).
13. In view of the above, the appeal of Rehmat Ali alias Rehma appellant is dismissed. Being on bail, a copy of this judgment shall be sent to the learned District Magistrate, Sheikhupura, who shall cause his arrest and send him to the prison for serving out his remaining sentence without any benefit of section 382-B, Cr.P.C. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.