' This criminal appeal preferred by Sher Muhammad, Muhammad Anwar and Muhammad Sarwar appellants, assails the judgment dated 28-11-1987 passed by the learned Sessions Judge, Bahawalpur, whereby he convicted and sentenced the appellants under section 302/34, P.P.C. To undergo imprisonment for life each and a fine of Rs,5,000 each, in default whereof to suffer R.I. For one year each. The appellants were also convicted and sentenced under section 323/34, P.P.C. For causing simple injuries to Muhammad Hussain (P.W.6) to undergo R.I. For one year each and a fine of Rs,1,000 each, in default whereof to suffer further R.I. For six months, each. The sentences in default of payment of fine shall run consecutively, but the other sentences shall run concurrently.
The fine was ordered to be paid as compensation under section 544-A, Cr.P.C. In both cases.
Benefit of section 382-B, Cr.P.C. Was also extended to them. Connected Criminal Revision No,93 of 1987 arising out of the same judgment shall also be disposed of by this judgment.
2. The occurrence in this case took place on 12-5-1987 at 12-30 p.m. (night time) in the area of Chak No,100/DB at a distance of 8 kilometres from Police Station Yazman, District Bahawalpur. F.I.R.
Exh.P.E. Was recorded on 12-5-1987 at 6-30 a.m. At Police Station Yazman by P.W.11 Muhammad Abdullah, S.I. At the instance of P.W.6 Muhammad Hussain. It was stated by P.W.6 in his report/F.I.R.
Exh.P.E. That his father Noor Muhammad deceased was a Lamberdar of Chak No,100/DB and deceased's maternal-cousin Sher Muhammad was also living with his family in Chak No,100/DB.
The land of the complainant and that of Sher Muhammad was adjacent to each. Other. About 26/27 years ago the deceased had contracted second marriage with Mst. Rasoolan Bibi, who was sister-in-law of Sher. Muhammad and she was putting on with her husband. Muhammad Sadiq, a son who was alive, was born from the wedlock of Mst. Hakam Bibi and Sher Muhammad. An inheritance dispute of the land was pending between Muhammad Sadiq and said Sher Muhammad. The deceased used to help Muhammad Sadiq. The deceased was stopped by Sher Muhammad and his son that he should not help Muhammad Sadiq, but the deceased had stated that Muhammad Sadiq was right, he would definitely help him. The Tehsildar had mutated the land in the name of Sher Muhammad, but Muhammad Sadiq filed an application with the A.C., on which A.C. Had decided in favour of Muhammad Sadiq. Sher Muhammad and his sons had a grievance against the deceased and on the preceding night of the occurrence, deceased Nazar Muhammad after Traveeh prayer went from his house to cattleshed for guarding the cattle. About 12 o'clock night time Muhammad Mansha son of Muhammad Ali informed the complainant that their Nakka had broken and the water had entered in the fields from the eastern side. On this information, the complainant proceeded to inform the deceased Nazar Muhammad and when he reached near the Dera at about 12-30 p.m. (night time), he heard Dhar, Dhar of his deceased father. The complainant went running and witnessed in the moonlight that Sher -Muhammad, Muhammad Anwar and Muhammad Sarwar appellants armed with hatchet and Sotis respectively were injuring the deceased and were also saying that they would teach him a lesson for helping Muhammad Sadiq.
P.W.6 started raising hue and cry, on which Sher Muhammad and Muhammad Anwar also started injuring him. On hue and cry of P.W.7 Abdul Qadir and P.W.8 Muhammad Boota, who were crushing sugarcane in a Belna (crushing machine) at their land nearby rushed and witnessed the occurrence. Sher Muhammad appellant inflicted Soti blow on the left side of chest of Nazar Muhammad deceased who fell down and on the fallen Nazar Muhammad deceased the appellant inflicted blows with their respective weapons on the chest and other parts of his body. P.Ws.7 and 8 while reaching near them tried to apprehend them, on which the appellants also threatened them to kill and escaped. The P.Ws. Witnessed that the deceased had succumbed to his injuries after some time at the spot. All Muhammad, Allah Rehm and other persons of the village reached the spot. Sher Muhammad Lamberdar of Chak No,90/DB who had relations with the P.W.6 was informed and after his arrival leaving behind All Muhammad and Allah Rehm to guard the dead body of the deceased, P.W.6 proceeded to the police station and lodged F.I.R. Exh.P.E. P.W.11 Muhammad Abdullah S.I. Reached the spot and collected blood-stained earth vide memo. Exh.P.J.
Attested by P.W.10 Muhammad Anwar and All Muhammad P.W. (given up) and made the same into a sealed parcel. P.W.11 had also secured cot P.7, pillow P.8, Khais P.9 and shoes P.10 of the deceased vide memo. Exh.P.K. Attested by P.W.10 Muhammad Anwar and All Muhammad P.W. (given up).
3. P.W.5 Dr. Muhammad Sher-uz-Zaman Bhatti on 12-5-1987 medically examined Muhammad Hussain (P.W.6) complainant and found the following injuries on his person:--
(1) An abrasion 4 c.m. x 1 c.m. In the direction of the arm at the back of left wrist joint.
(2) An abrasion 4 c.m. x 1/2 c.m. On the ulnar side of mid of the left forearm.
(3) A reddish contused swelling 5 c.m. x 5 c.m. At the back of the left hand, and also extending at the back of the left middle finger.
(4) A contused swelling 5 c.m. x 5 c.m. At the back of the right shoulder.
(5) A contused swelling 5 c.m. x 5 c.m. At the back of the right leg.
(6) A contused swelling 5 c.m. x 5 c.m. At the back of the mid of left leg.
(7) A contused swelling 4 c.m. x 3 c.m. At the top of the left knee joint.
' All the injuries were caused by blunt weapon and were simple in nature within duration of 9 to 10 hours.
4. On the same day, at about 2-30 p.m. P.W.5 had conducted the postmortem examination on the dead body of Nazar. Muhammad and found the following injuries on his person:--
(1) An incised wound 4 x 1-1/2 c.m. x 1-1/2 c.m. On a front of the lower end of the right leg.
(2) A contused reddish swelling 10 x 3 c.m. Oblique in direction on the outer side of mid of the right thigh.
(3) A contused reddish swelling 7 x 4 c.m. Verticle in direction on the back of left thigh.
(4) A contused swelling 5 x 5 c.m. At the back of the ulner side of the left hand.
(5) A contused reddish swelling 12 x 3 c.m. In the direction of ribs on the right side of front of chest below the right nipple.
(6) A contused reddish swelling 12 x 3 c.m. In the direction of ribs on left side of front of chest below the left nipple.
(7) A contused swelling 4 x 4 c.m. On the ulner side of right wrist joint.
(8) A contused reddish swelling 10 x 5 c.m. At the left buttock in horizontal direction.
(9) A contused reddish swelling 8 x 4 c.m. At the right buttock.
(10) A reddish contusion 12 x 3 c.m. In the direction of ribs at the back of the lower part of the left side of chest.
(11) A reddish contusion 12 x 3 c.m. In the direction of ribs just below the injury No,10.
(12) A reddish contusion 12 x 3 c.m. Just below injury No,11.
' In the opinion of the doctor, injury No,1 was caused by sharp-edged weapon, while all other injuries were caused by blunt weapon. Injuries Nos.5, 6, 10, 11 and 12 were dangerous to life and were sufficient to cause death in the ordinary course of nature individually while the rest of the injuries were simple in nature. All the injuries were ante-mortem. In his opinion the cause of death was due to trauma to lungs and haemorrhage into and outside the both lungs and shock. Probable time elapsed between injuries and death was between 20 and 40 minutes and time elapsed between death and post-mortem was 13 to 14 hours.
5. Muhammad Anwar, Muhammad Sarwar and Sher Muhammad appellants were arrested by P.W.12 Munawar Alam Leghari, Inspector/S.H.O. On 20-5-1987 and 24-5-1987. On 27-5-1987 Muhammad Sarwar appellant led to the recovery of hatchet P.4 which was secured by P.W.12 vide memo. Exh.P.F. Attested by P.W.9 Bashir Ahmad and Bahu P.W. (given up). On the same day Sher Muhammad appellant led to the recovery of Soti P.5 secured by P.W.12 vide memo. Exh.P.G. Attested by the same witnesses. On the same day Muhammad Anwar appellant had also led to the recovery of Soti P.6 secured by P.W.12 vide memo. Exh.P.H. Attested by the P.Ws. Cited above. The incriminating articles P.4, P.5 and P.6 were not blood stained. The report of the Chemical Examiner and that of the Serologist in respect of the blood-stained earth Exhs.P.O. And P.O., respectively in respect of blood-stained earth was positive. The recovery of blood-stained earth from the place of occurrence was witnessed by P.W.10 Muhammad Anwar, P.W. Ali Muhammad (given up) and P.W.11 Muhammad Abdullah. P.W.9 Bashir Ahmad and P.W. Bahu (given up) had witnessed the recovery of hatchet P.4, Soti P.5 and Soti P.6 at the instance of appellants Muhammad Sarwar, Sher Muhammad and Muhammad Anwar respectively on 27-5-1987.
6. P.W.6 Muhammad Hussain complainant, P.W.7 Abdul Qadeer and P.W.8 Muhammad Boota were examined as eye-witnesses. P.W.6 stated that on 12-5-1987 his father Nazar Muhammad deceased went to the cattleshed situated in his land after Isha prayer to sleep there to guard the cattle heads. Muhammad Mansha had told him at his house that the breach had occurred in the canal.
He went to his father to inform him about the breach of canal. When he was at a distance of one acre from his father, he heard a noise of Dhar Dhar. He saw Sher Muhammad appellant armed with Lathi, Muhammad Anwar appellant armed with Lathi and Muhammad Sarwar armed with hatchet and all the three were giving injuries to his father. He tried to separate them. Sher Muhammad and Muhammad Anwar appellants started beating him with their sticks. He also raised an alarm which attracted Abdul Qadeer (P.W.7) and Muhammad Boota (P.W.8) to the spot who were present at the distance of two acres from the spot at their Belna (sugarcane crushing machine) in their fields. On the Lalkara of P.Ws. 7 and 8 the appellants ran away. P.W.7 Abdul Qadeer and P.W.8 Muhammad Boota reiterated the eye-witness account stated by P.W.6 Muhammad Hussain complainant. The eye-witnesses are closely related to the deceased.
7. The appellants when examined under section 342, Cr.P.C. Denied the charge against them and had stated that due to enmity and suspicion they had been involved falsely. The witnesses were closely related. They were innocent. They did not make statement on oath as envisaged under section 340(2), Cr.P.C., but produced only D.W.1 Allah Ditta in defence. D.W.1 stated that on the fateful day he was irrigating his land and All Muhammad P.W. (given up) who was tenant of his brother Sardara, forcibly diverted water, although he had yet to irrigate for half an hour more out of his turn. He proceeded to the Chak for informing Lamberdar Nazar Muhammad deceased about it, and at his house P.W.6 Muhammad Hussain complainant came out to inform that his father was at his Dera. D.W., proceeded to Dera of the deceased. He called out twice to Nazar Muhammad deceased, but there was no reply. He then proceeded forward and saw that the cot of Nazar Muhammad was lying on the ground and found the deceased lying dead on the ground. He then returned to the Chak and went to inform Muhammad Hussain (P.W.6) who alongwith others went to the spot. The deceased was his first cousin. Sher Muhammad appellant was the son of his paternal-aunt and after sunrise the police reached the spot and traced the footprints and had covered them. D.W.1 produced copy of Warabandi Exh.D.C. In defence.
8. The learned trial Court had convicted and sentenced the appellants vide its impugned judgment.
9. The learned counsel for the appellants urged that no motive against appellants has been proved on record. The ocular testimony furnished on record by the statements of P.Ws.6, 7 and 8 cannot be relied upon as the same is not in consonance with the medical evidence. The recoveries of incriminating articles at the instance of the appellants have not been proved. The appellants arc innocent and they have been substituted for the real culprits.
10. The motive for the incident has been stated by P.W.6 and P.W.7 i,e. Sher Muhammad appellant had contracted second marriage with the mother of Sadiq after the death of his father. Sher Muhammad appellant had got mutated the land of Ghulam Muhammad, uncle of said Sadiq in his name. Sadiq had asked for his share, but the same was refused by Sher Muhammad appellant, on which an appeal was filed before the A.C. Yazman against the mutation and the same was allowed. P.W.6 and P.W.7. Have stated that Nazar Muhammad deceased was a Lamberdar of the village and used to help Sadiq and due to that the appellants nourished grudge against him. The people in the village take serious view if any person renders help and assistance to their opponent in the cases of land. The motive stated by P.Ws.6 and 7 stands proved on record.
11. P.W.6 Muhammad Hussain complainant is the son of the deceased, whereas P.W.7 Abdul Qadeer and P.W.8 Muhammad Boota who are eyewitnesses, are related to both the parties and all of them stated that at the relevant time i,e. About 10-30 p.m. (night time) Nazar Muhammad deceased was sleeping in his cattleshed. They heard the noise and reached there and witnessed Sher Muhammad and Muhammad Anwar armed with Lathis and Muhammad Sarwar with hatchet and all the three were causing injuries to the deceased with their respective weapons. The P.Ws. Had threatened the appellants who ran away from the spot alongwith their weapons. Muhammad Hussain (P.W.6) complainant was informed about the breach in the canal at his house by one Muhammad Mansha, who proceeded to inform his deceased father at the cattleshed and while on the way he heard the noise (Dhar Dhar) and he reached the spot. Meanwhile P.Ws.7 and 8 who were working at their Bailna (crushing machine) of sugarcane, were attracted to the spot and witnessed the occurrence. No doubt P.W.6 is son of the deceased, whereas P.Ws.7 and 8 are related to the deceased and the appellants as well and nothing has been brought on record that there was enmity between the parties. P.Ws.6, 7 and 8 had given probable cause of their presence at the relevant time at the place of occurrence.
12. The deceased had suffered 12 injuries on his person at the hands of the appellants. Injuries Nos.5, 6, 10, 11 and 12 were declared dangerous to life and were sufficient to cause death in the ordinary course of nature individually, while rest of the injuries were simple in nature. P.W.6 Muhammad Hussain complainant stated before the trial Court that to save his deceased father he lay down on the deceased and was injured at the hands of the appellants. He had received 7 injuries, all the blunt weapon and simple in nature. It was vehemently contended by the learned counsel for the appellants that even if P.W.6 was injured, he was not got medically examined by the Investigating Officer as he had reached the police station to lodge F.I.R. Exh.P.E. P.W.5 the doctor, who medically examined P.W.6 has stated that he had examined him at 10-15 a.m. On 12-5-1987. P.W.6 has stated during cross-examination that after lodging the F.I.R. Exh.P.E. He reached the spot alongwith the Investigating Officer (P.W.11) as the dead body of his deceased father was lying at the spot and after its despatch to the mortuary he proceeded to the hospital at Yazman and was medically examined. Learned counsel for the appellants also urged before me that the injuries on the person of P.W.6 were inflicted with friendly hand. Surprisingly, no suggestion was put to P.W.5 or P.W.6 about the same and moreover nothing has been brought on record by the defence that P.W.6 had injuries on his person with friendly hand. The ocular testimony furnished on record by the statements of P.Ws.6, 7 and 8 is in consonance with the medical evidence as stated by P.W.5 Dr. Sher-uz-Zaman.
13. Great stress was laid by the learned counsel for the appellants that the recoveries of hatchet and Sotis P.4, P.5 and P.6, respectively at the instance of Muhammad Sarwar, Sher Muhammad and Muhammad Anwar appellants have no evidentiary value as those were not found to be stained with blood. No doubt P.4, P.5 and P.6 were not stained with blood, but P.Ws.6, 7 and 8 had made their statements in a straightforward manner and had no motive to falsely implicate the appellants in the present case. They had no animus against them. Last but not the least, it was also urged that the F.I.R. Exh.P.E. Was lodged after deliberations and preliminary investigation. The incident took place at 12-30 mid-night and the same was reported at 6-30 a.m. At the Police Station Yazman which is at a distance of 5 miles. P.W.6 stated during cross-examination before the trial Court that after he had found his father succumbed to his injuries, he proceeded to inform Sher Muhammad, Lamberdar.Of other village and went on foot there, brought him at the spot and after leaving behind P.Ws. Ali Muhammad and Allah Rehm, he proceeded to the police station on foot as no conveyance was available at that odd hour. In the circumstances I am of the view that the F.I.R. Exh.P.E. Was lodged without deliberations and preliminary investigations, but with promptitude. It is evident that father of P.W.6 had been done to death and he must be under shock at the relevant time. The delay of six hours in lodging the F.I.R. Has been satisfactorily explained by P.W.6. It was also urged on behalf of the appellants that they had been substituted for real culprits.
The substitution is a rare phenomenon. The occurrence took place on a moonlit night. The appellants were previously known to the P.Ws. Who had no motive whatsoever to falsely involve them in the present case.
14. The ocular testimony furnished on record by the statements of P.Ws.6, 7 and 8 is in consonance with the medical evidence made by the statement of P.W.5 and excepting minor discrepancies here and there, nothing has been brought on record that P.Ws. Had made dishonest improvements in their statements. The motive as stated by the prosecution also stands proved on record. The statements of P.Ws. Are confidence inspiring and an implicit reliance can be placed upon their tesimony.
15. Pursuant to the above discussion, I am of the considered view that the prosecution had succeeded in proving and establishing its case against the appellants beyond doubt and no exception can be taken to their conviction and sentence. The appellants are present in Court who shall be taken into custody and sent to jail to undergo the sentence awarded to them. Their bail bonds are discharged. The connected criminal revision for enhancement of sentence has, however, no force, which is dismissed.