' Muhammad Anwar son of Sher Khan 40 years, Allah Wasaya son of Nawaz Khan 22 years, Hamid son of Anwar Khan 12 years were sent up for trial in a case registered against them vide F.I.R.
No,144/93, dated 15-6-1993 under section 302/34, P.P.C. At Police Station Harrapa District Sahiwal.
Sessions Judge, Sahiwal vide judgment, dated 5-1-1994 convicted under section 302(b)/34, P.P.C.
And sentenced them for imprisonment for life each besides directing them to pay compensation of Rs,10,000 each under section 544-A, Cr.P.C. To the heirs of the deceased or in default to suffer six months' R.I. Each. The appellants were also given the benefit of section 382-B, Cr.P.C. The convicts have filed Criminal Appeal No,12 of 1994 while Ghulam Muhammad complainant has sought enhancement of the sentence through Criminal Revision No,39 of 1994 which will be disposed of by single judgment.
2. Prosecution story in brief as disclosed in F.I.R. Exh.P.F. By Ghulam Muhammad complainant P.W.5 son of Khan Muhammad (deceased) was to the effect that Khan Muhammad father of the complainant had been allowed to graze his cattle in the fields of Dilawar Khan where maize crop was standing. Khan Muhammad had gone to the said field with his buffalo on 2-6-1993 at about 11/12 a.m. Hamid son of Anwar accused was already present in that field with his buffalo. Hamid stopped Khan Muhammad from grazing his buffalo in the field of Dilawar. Khan Muhammad deceased and Hamid accused grappled with each other during the altercation. Hamid left the spot administering threats to Khan Muhammad. The complainant accompanied by Manzoor Khan and Nazir Khan P.Ws. (not produced) were going to the said field to inquire about Khan Muhammad on receiving information of the previous altercation. When they reached at a distance of about 1 Acre from the said field they saw Anwar Khan armed with hatchet, Allah Wasaya and Hamid Khan armed with Sotas in the said field. Hamid Khan caused injuries to Khan Muhammad with Sota.
These injuries felled him on the ground. Anwar Khan caused injuries to Khan Muhammad with his hatchet while Allah Wasaya caused injuries to Khan Muhammad with his Sota while he was lying on the ground. The complainant accompanied by Manzoor Khan and Nazir Khan P.Ws. (not produced) in the meanwhile reached at the spot and the accused managed to get away from the spot with their respective weapons.
3. The motive behind the occurrence is the previous altercation between Khan Muhammad and Hamid Khan as mentioned in the F.I.R.
4. The occurrence took place on 12-6-1993 at 11/12 a.m. In the field of Dilawar at the distance of 18 Km. From Police Station Harrapa. F.I.R. Exh.P.F. Was lodged by Ghulam Muhammad P.W.5 on 15-6- 1993 which was recorded by Abdul Jabbar S.I./S.H.O. P.W.10.
5. Abdul Jabbar S.I./S.H.O. P.W.10 after recording the F.I.R. Exh.P.F. Went to Civil Hospital, Harrapa.
Khan Muhammad injured was still alive in the hospital. He had submitted application to the Medical Officer Exh.P.B. As to whether the injured was fit to make a statement. The doctor had opined that the injured was not fit to make statement. Thereafter, he had gone to the place of occurrence. He had recorded the supplementary statement of the complainant and had also examined the P.Ws. He had inspected the place of occurrence. He had prepared site plan of the place of occurrence without scale Exh.P.J. He received information from the police station that the injured had expired. The copy of the report is Exh.P.K. He straightaway proceeded to the hospital, where he examined the dead body of Khan Muhammad and prepared injury statement Exh.P.L. And inquest report Exh.P.M. The dead body was despatched to the mortuary for post-mortem through Muhammad Nisar, Constable. He returned to the place of occurrence for the search of the accused. He got prepared site plans of the place of occurrence by Bashir Ahmad Patwari Exhs.P.C., P.C./1 and P.C./2, these site plans bear his notes in red ink and also bears his signatures.
Muhammad Nisar, Constable had delivered to him the last worn clothes of the deceased, postmortem report and other papers vide recovery memo. Exh.P.D. And Exh.P.E. All the three accused had appeared before him at the police station on 4-7-1993. Anwar Khan had produced before' him hatchet P.3 at the police station at the time of his arrest, the same was taken into possession by him vide recovery memo. Exh.P.G. Allah Wasaya had produced Sota P.4 vide recovery memo. Exh.P.H. While Hamid Khan had produced Sota P.5 vide recovery memo. Exh.P.1.
6. Abdul Jabbar S.I./S.H.O. P.W.10 had conducted the investigation of the case. Dr. Muhammad Raheel Siddique P.W.1 medically examined Khan Muhammad (deceased) on 12-6-1993 at 4-00 p.m.
Exh.PA. And Exh.PA./1 are carbon copies of M.L.R. And diagram showing injuries. Dr. Salamat All Ch. P.W.4 has conducted the post-mortem examination on the dead body of Khan Muhammad (deceased) aged 71 years. Carbon copy of post-mortem report is Exh.P.E. Ocular account was furnished by Ghulam Muhammad P.W.5 and Nazir Ahmad P.W.6.
7. At the conclusion of prosecution evidence, the appellants were examined without oath. They refuted the prosecution allegations. Muhammad Anwar and Allah Wasaya accused have totally denied their involvement in this occurrence. They have denied the motive set up by the prosecution. They have also denied the production of weapons of offence by them before the Investigating Officer. They have asserted that they have been falsely involved in this case due to enmity. They declined to produce any evidence in their defence and to make statement under section 340(2), Cr.P.C.
8. Hamid accused had stated that the field in which the occurrence had taken place had been cultivated by them. The deceased had driven his cattle in that field without the permission of the accused and that of Dilawar. The accused had rounded up the cattle of the deceased with intent to take them to the cattle pond. The deceased Khan Muhammad had attacked the accused with a Sota and the accused had caused injuries to the deceased with his hatchet. He has denied the production of Sota by him before the Investigating Officer. He has also declined to produce any evidence in his defence and to make statement under section 340(2), Cr.P.C.
9. It is contended by the learned counsel for the appellants that there is an inordinate delay of three days in lodging of F.I.R.; that the prosecution has failed to prove the motive; that eye- witnesses Ghulam Muhammad P.W.5 and Nazir Ahmad P.W.6 are interested being related to the deceased Khan Muhammad; that non-production of independent witnesses admittedly present at the spot creates doubts; that there is no premeditation or preplanning that the occurrence took place on the spur of the moment; that there are major contradictions between the statements of Ghulam Muhammad P.W.5 and Nazir Ahmad P.W.6; that the prosecution evidence is without corroboration which also creates doubts; that the offence does not fall within the ambit of life imprisonment.
10. The contentions are opposed by learned State counsel as well as by the learned counsel for the complainant.
11. I have heard the arguments and gone through the file. The prosecution in order to establish its case has mainly relied upon ocular account furnished by Ghulam Muhammad P.W.5 and Nazir Ahmad P.W.6. Both of them have given a detailed account of the occurrence ascribing specific role of each appellant. Each of them stated that appellants injured Khan Muhammad (deceased) in their presence who ultimately succumbed to his injuries. Both the witnesses were put to the test of cross-examination but nothing could be brought on record to suggest that they were not present at the spot or had not witnessed the occurrence. A convincing explanation with regard to their presence was given by each of them. The manner in which the evidence was given by them inspires confidence. Therefore, it is held that witnesses were present at the spot and safely be relied upon. Though, they are related to the deceased Khan Muhammad, but not inimical towards the appellants. The plea of self-defence taken by Hamid is not convincing. I, therefore, disbelieve him.
The motive is not proved. There is no pre-meditation or pre-planning. The occurrence took place on the spur of the moment. Offence under section 302(c)/34, P.P.C. Is made out against the appellants beyond any shadow of doubt. I, therefore, partly accept the Criminal Appeal No,12 of 1994, alter the conviction from section 302(b)/34, P.P.C. To section 302(c)/34, P.P.C. And sentence the appellants for 10 years' R.I. Each plus a fine of Rs,10,000 (Rupees ten thousand only) each in default whereof to undergo R.I. For further six months each. Whole of the fine on realization shall be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C.
Is also extended to the appellants.
12. Since the conviction under section 302(b)/34, P.P.C. Of the appellants has not been maintained.
The question of enhancement of sentence does not arise. The revision petition is, therefore, dismissed.