1. ' A case under section 302/34/109, P.P.C. Was registered with Police Station Bahlalc, District.
2. Faislabad, against Suleman (40), Mammi (35), Malla (50), Bakhsha (52) Noora (70), All Sher (26) and Mamrez (60) for the murder of Suleman son of Saidullah. Sessions Judge, Faislabad, vide his judgment dated 5-7-1987 gave benefit of doubt and acquitted Malta, Bakhsha and Noora of the charge. The trial Court, however, found guilty Suleman, Mammi, All Sher and Mamraiz under section 302/34, P.P.C. And convicted and sentenced each of them to imprisonment for life with a fine of Rs,5,000 or in default one year's R.I. Each. It was further directed that the fine, if recovered, whole of it shall be paid to the legal heirs of the deceased. The convicts have appealed. This judgment shall dispose of the same.
2. According to the prosecution story, as given in the complaint Exh.P.B. Lodged by Barkhordar, P.W., seven/eight years earlier, his elder brother Suleman's bullock was stolen. Said Suleman suspected Malta, Mamman son of Noora and Noor son of Karmal. A case with regard to the said theft was also got registered which was being investigated by C.IA. During investigation it was agreed that if one Amanullah was to state on oath with regard to the involvement of the accused persons they would accept it and the Investigating Officer shall have the bullock restored. Said Amanullah gave oath in a mosque about the involvement of the accused persons but the Investigating Officer backed out and did not have the bullock restored, for which Suleman used to give applications to different authorities. Presently, an application before the D.S.P., Samundari was pending before whom he had to appear on 27-1-1985. On the said date, the first informant with his brother Suleman and Amanullah alongwith one Tausif were going towards Samundari at 7 a.m. When they reached near the metalled road near a school, appellants 'armed with Sotas emerged out of standing crops.
3. They raised a Lalkara that Suleman be taught a lesson for giving applications, and started belabouring him. The assailants gave number of injuries with Sotas and thereafter left the spot. The first informant with the help of other witnesses took the injured to hospital Tandlianwala, where the doctor was not available, therefore, they took him to Faisalabad when he expired on the way. It was further stated that the assailants had committed the occurrence on the instigation of their co- accused. F.I.R. Exh.P.B./1 was lodged by Barkhordar P.W.7, brother of the deceased, with Police Station Bahlak on 27-1-1985 at 3-30 p.m. With regard to an occurrence which had taken place the same day at 7 a.m. Distance between the place of occurrence and Police Station Bahlak was 14 miles.
4. ' Ahmad Salim, Inspector, after recording the statement Exh.P.B. Prepared injury statement Exh.P.H.
5. And inquest report Exh.P.J. Of the deceased in the hospital. He came to the spot and secured blood-stained earth vide memo. Exh.P.C. And thereafter, he was transferred.
6. ' Idrees Ali, S.I. Had arrested Bakhsha accused on 29-9-1985.
7. ' Dr. Ghulam Rasul, Senior Medical Officer, Civil Hospital, Samundari, P.W.4, on 27-1-1985 at 4 p.m.
8. Conducted the post-mortem examination on the dead body of Suleman and found the following injuries:--
(1) An abrasion mark 2 c.m. x 1/2 c.m. Upon outer end of left eye-brow.
(2) Two contusion marks 10 c.m. x 2 c.m. And 6 c.m. x 1 c.m. Upon back side of right chest.
(3) An abrasion mark 5 c.m. x 2 c.m. Upon back of right forearm.
(4) A contused wound 2 c.m. x 1 c.m. x skin deep on the back of right hand.
(5) A contused wound 3 c.m. x 1 c.m. x 1 c.m. On the back of metacarpo pyolengeal joint of right index finger. Head of 4th metacarpal bone was fractured.
(6) An abrasion mark 5 c.m. x 2 c.m. On the back of left forearm.
(7) A contused wound 7 c.m. x 3 c.m. x bone deep on the back of left forearm. Underlying left radius bone was fractured.
(8) A contusion mark 6 c.m. x 2 c.m. On the back of left hand underlying 5th metacarpal bone was fractured.
(9) A contusion mark 12 c.m. x 2 c.m. On the outer side of left thigh.
(10) A contusion mark 10 c.m. x 2 c.m. Upon the outer side of left thigh below injury No,9.
(11) Multiple contusion marks in an area 9 c.m. x 8 c.m. Upon the front of left lower leg below knee, underlying left tibia and fibula bone were fractured.
(12) Three contused wounds ranging from 2 c.m. x 1 c.m. x bone deep to 3 c.m. x 1/2 c.m. x bone deep upon front of left lower leg, underlying bone left tibia and fibula bones were fractured.
(13) Three contused wounds 3 c.m. x 1/2 c.m. x bone deep to 4 c.m. x 1 c.m. x bone deep upon front of left lower leg in its middle.
(14) Six contused wounds ranging from 3 c.m. x 1 c.m. x bone deep to 2 c.m. x 1/2 c.m. x bone deep upon front of left lower leg and lower one-third, underlying left tibia and fibula bones were fractured.
(15) A contused wound 3 c.m. x 1/2 c.m. x bone deep upon front of right lower leg below right knee, underlying right tibia and fibula bones were fractured.
(16) Two contused wounds 2 c.m. x 1/2 c.m. x bone deep and 1-1/2 c.m. x 1/2 c.m. x bone deep upon front of right lower leg in its middle, underlying right tibia and fibula bones were fractured.
(17) A contused wound 4 c.m. x 1 c.m. x bone deep upon front of right lower leg in its lower one-third, underlying right tibia and fibula bones were fractured.
9. ' Injuries Nos.5, 7, 8, 11, 12, 14, 15, 16 and 17 were grievous while the rest were simple. All the injuries were inflicted with blunt weapon and were ante-mortem. The injuries were sufficient to cause death in the ordinary course of nature.
3. Prosecution in support of its case produced 15 witnesses in all. P.W.1 Muhammad Iqbal, Patwari, had prepared site plan Exhs.PA. And PA./1 of the place of occurrence. Rehmat Ali, M.H.C., P.W.2, had recorded formal F.I.R. P.W3 Zulfiqar had witnessed the recovery of blood-stained earth and signed the memo. Exh.P.C. P.W.5 Ali Ahmad had deposed about the abetment of the accused persons.
10. Muhammad Hussain, S.I., had arrested Mammi and Suleman, accused, in June, 1985. Ocular account was furnished by Barkhordar and Amanullah, P.Ws.7 and 8, respectively. Muhammad Hayat, P.W.11, the A.S.I., had partly investigated the case and arrested some accused persons.
11. Muhammad Iqbal, S.I., P.W.12, had arrested some of the accused on 2-2-1985. Case was also investigated by Idrees Ali and Ahmad Salim, P.Ws.13 and 14, respectively. Muhammad Ishaq, F.C.
12. P.W.15 was entrusted with the warrants of arrest of some of the accused but they were not available.
4. Learned counsel for the appellants at the very outset submitted that the case against the appellants was not proved at all. Submitted that admittedly the eye-witness account was interested and inimical, on which no reliance could be placed. Similarly, the motive, as set up by the prosecution was too remote to serve as corroboration. Lastly, it was argued that even if the entire prosecution version was accepted, yet it would not be a case under section 302, P.P.C.
13. Because the injuries caused by the appellants were on the non-vital part of the body of the deceased. In such circumstances, if they had the intention to kill, they could have used the vital part of the body as there was no resistance from the other side. Argued that in the absence of resistance, the assailants after causing injuries left Suleman, who died later. If they had intention to kill him, they would have seen to it that the injured was done to death. The contentions were opposed by learned counsel for the State as well as for the complainant.
5. I have heard the learned counsel and gone through the file. The prosecution in order to establish its case mainly relied upon the statements of Barkhurdar and Amanullah, P.Ws.7 and 8, respectively. Both of them supported the prosecution case and withstood the cross-examination.
14. They were present at the spot but did not interfere because of fear. The presence of both the eye- witnesses cannot be ruled out. They, however, admitted that they did not make any effort to rescue the injured or stopped the assailants.
15. ' As far as the contention of the learned counsel for the appellants that even if the entire prosecution is accepted, yet it would fall under section 304, Part II, P.P.C. And not under section 302, P.P.C. Is concerned, it appears to have some force. The appellants had confronted the deceased when nobody was there, except for the eye-witnesses. It is prosecution's own case that the eye- witnesses did not make any attempt to interfere or challenge the assailants. In these circumstances, it can safely be held that the assailants caused injuries without interruption or fear of challenge. I have noticed that even in these circumstances, no injury had been caused on the vital part of the body which could lead to immediate death or knowledge that such an injury was likely to cause death. It is also correct that after belabouring Suleman they left him in an injured state when he was still alive. This would further indicate that the intention was only to cause him injuries for teaching him lesson for filing applications against the assailants rather than to kill him.
16. In these circumstances, I feel the intention to kili has not been proved.
17. ' I convert the conviction and sentence of the appellants from section 302/34, P.P.C. To 304, Part H, P.P.C. And reduced the sentence from imprisonment for life to eight years each. The sentence of fine or in default thereof shall, however, be maintained. They shall also be given the benefit of section 382-B, Cr.P.C. The appeal is disposed of in the terms stated above.