Muhammad Sarwar appellant was tried by the learned Additional Sessions Judge, Chunian, District Kasur on the charge of committing murder of Azhar Hussain and vide his judgment, dated 15-1- 1991, was convicted under section 304, Part I, P.P.C. And sentenced to imprisonment for life with benefits of section 382-B, Cr.P.C. Aggrieved by these findings where the appellant came up in appeal to this Court Nazar Hussain complainant has filed revision for the enhancement of the sentence of the convict and also requesting for awarding him sentence of fine and grant of compensation which the trial . Court had omitted to do.
2. The prosecution case as it gleans out of the evidence led by it is that on 25-6-1993 at about 3-00 p.m. When Nazar Hussain complainant was present at his `Dera' in the land alongwith his brother Azhar Hussain (deceased), some cattle of Muhammad Sarwar appellant strayed into their fields. Of maize and bamboo crops. Seeing the cattle damaging the crops, Azhar Hussain (deceased) went towards the fields in order to drive them away. Reaching there, he was confronted by Muhammad Sarwar appellant. They exchanged some hot words and grappled with each other. Muhammad Sarwar appellant, who was armed with a hatchet, inflicted a blow with it on the head of Azhar Hussain (deceased), as a result of which he received head injury. Then, with the handle of the hatchet he caused him 7 more injuries on his back and legs. The occurrence was seen by Nazar Hussain complainant and Sajjad Hussain P.W., who too was attracted to the spot. Seeing them come, the appellant ran away after leaving his cattle then and there.
3. Nazar Hussain complainant removed his injured brother first to Chunian Hospital and, after getting him medically examined, then to General Hospital, Lahore, where he was referred to. The injured, however, expired on the following day. Meanwhile Nazar Hussain complainant reported the matter to the police and a case was registered against the appellant, originally under section 324, P.P.C. And on the death of the injured under section 302, P.P.C. The investigation was carried out by the police and on its completion, they sent up the appellant for trial.
4. On the commencement of trial, the appellant was charged for the murder of Azhar Hussain and, on his pleading not guilty, the prosecution produced as many as 9 witnesses.Prominent amongst them are Dr. Muhammad Arif Mahmood, Medical Officer, Civil Hospital, Chunian (P.W.5), who had medically examined Azhar Hussain injured and then conducted post--mortem examination after his death, Nazar Hussain complainant (P.W.6) and Sajjad Hussain (P.W.7), who gave the eye- witness account of the occurrence, and A.S.I. Muhammad Ashraf (P.W.9) who gave the details of the investigation. The rest of the P.Ws. Were formal. .
5. Muhammad Sarwar appellant, when examined under section 342, Cr.P.C., admitting his participation-in the occurrence, made the following statement: -- "Actually on the date of occurrence my cattle went to the fields of the deceased just by chance.
The deceased flared up on this incident. He came there and started abusing while using highly objectionable and filthy language. I requested him that he should not abuse me but the deceased kept on abusing that filthy language, upon which Iwent forward and again requested the deceased that he should restrain himself from using this type of language. Deceased then tried to inflict a Sota blow on my head which I stopped while putting my hands in front of that blow. I then lost my temper and inflicted a Sota blow which hit the deceased upon which he fell down. The rest of the injuries were never caused by him. The story narrated in the evidence is totally false."
6. He produced Sardar A.I (D.W.1) and Muhammad Shafi (D.W.2) in support of his defence version.
They deposed that when the cattle of the appellant strayed into the field of the deceased, the latter started abusing the former profusely and even attacked him with a Sota which the former took on his hands and since the deceased was aggressively abusing the appellant, he gave him Sota blow on his head. They claimed that they separated the fighters.
7. On the conclusion of the trial, the appellant, by the judgment now under challenge, was convicted and sentenced in the manner aforesaid and aggrieved by it, he (appellant) came up in appeal to this Court, while the complainant filed a revision.
8. It is argued on behalf of the appellant that once the learned trial Judge had come to the conclusion that the occurrence took place on the spur of the moment, without any premeditation and the appellant had committed an offence under section 304, Part I, P.P.C. He should not have awarded him the penalty of imprisonment for life. He contends that the lands of the parties being 'contiguous, the appellant's cattle strayed into the field of the complainant party and when the appellant was about to drive them out, Azhar Hussain (deceased) appeared on the seen in a ferocious mood and started profusely abusing the appellant who asked him to show restraint as it was not a matter so serious but when the deceased became aggressive and attacked him with a club, only then the appellant retaliated and that too in self-defence and inflicted one blow which happened to hit his head and proved fatal: According to the learned counsel, in fact the deceased invited the trouble himself by aggravating the situation and in the circumstances of the case a sentence of 1.0 years for the appellant would serve the ends of justice. In support of his contention about the quantum of sentence, the learned counsel cited a number of rulings, including Muhammad Salim v. The State 1969 Cr.LJ (SC) 1291 and Anwar and others v. The State'1985 SCM R 1123.
9. On the contrary, the learned State counsel is of the view that the appellant was rightly convicted and sentenced by the trial Court because there was no occasion for him to carry a hatchet while looking after his cattle carelessly as they strayed in the field of the deceased who was empty- handed and objected. To their trespass. According to him, even if the deceased had resorted to the use of some foul language, even then the` appellant was definitely at fault to have used the hatchet by inflicting a fatal blow right on the head of the appellant, resulting in his death, besides giving him reckless beating with its handle.
10. The medical evidence belied the claim of the appellant that at the time of occurrence he was armed with a Sota and inflicted blow with it on the head of the deceased in the heat of passion in a reaction to this opponent's ineffective attack by a Sota accompanied by his profuse abusing. The medical evidence indicated that the head injury of the deceased was an incised wound. It proved the prosecution case that the accused had attacked the deceased with a hatchet. There is nothing on the record, excepting the solitary statement of the appellant himself, that the deceased was armed with a Sota and he attacked him with it but he took it on his hands. It seems that the deceased was empty handed and he went to the spot in order to drive out the cattle of the appellant damaging his crops in the fields. It is possible that the deceased might have resorted to abusive language against the appellant but there was little justification for the latter to pick up a hatchet and kill him by inflicting a heavy blow with it on his head and then giving him beating with its handle causing him a number of contusions on different parts of his body. These circumstances indicate that the appellant had taken up due advantage by attacking the empty-handed deceased with a formidable weapon like hatchet and selected the vital part of his body no less than his head. He also acted in cruel or unusual manner. In fact these aspects of the case would have taken it outside the pale of culpable homicide not amounting to murder punishable under section 304, Part 1, P.P.C. And brought it within the preview of culpable of homicide amounting to murder punishable under section 302, P.P.C., if the provisions of Exception 4 read with Explanation to section 300, P.P.C. Had been correctly applied by the learned trial Judge.
11. So far as the abovementioned rulings of the Supreme Court are concerned, in the 1969 ruling the Supreme Court was pleased, rather to enhance the sentence of the appellant from two years to seven years and in the 1985 precedent the facts of the case were altogether different because in that case the deceased and the prosecution witnesses at the time of encounter were armed with more deadly weapons than their adversaries. Both these authorities are, therefore, not relevant to the facts of the present case.
12. In view of the above, the appellant was rightly convicted and sentenced and his appeal is dismissed. He shall, however, be entitled to the benefits of section 382-B, Cr.P.C. He was also liable to be awarded the sentence of fine, which was illegally omitted by the trial Court, but since he has not been given show-cause notice for the imposition of this additional sentence, I would not like to add it at this stage. As a result, there is no substance also in the revision, which prays for the retrial of the appellant, and the same is also dismissed.