' In this case there are two accused namely Sher Ahmad and Nazir Hussain. Sher Ahmad expired during the pendency of this appeal. Hence to that extent the appeal has become infructuous, therefore, dismissed. Nazir Hussain is present before the Court. He was awarded sentence under section 304, Part 1/34, P.P.C., life imprisonment and a fine of Rs,10,000, in default whereof to undergo further 2 years' R.I. Under section 307/34, P.P.C., 3 years' R.I. And a fine of Rs,1,000, in default whereof to undergo further 6 months' R.I. And under section 324/34, P.P.C. Two years' R.I.
2. The present appeal is to challenge the order, dated 13-4-1986 passed by the learned Sessions Judge, Jhelum and convicting the appellants in a case F.I.R. No,69 of 1985 registered at Police Station Sohawa, District Jhelum, offence under sections 302, 307 and 324/34, P.P.C.
3. Briefly stated the facts of the case are that Sher Ahmad accused (deceased) and the present appellant Nazir Hussain were charged under sections mentioned above for the murder of Ghulam Sarwar deceased, and for murderous assault on Sher Ahmad P.W., who received grievous injury on his head and for causing simple injuries to Muhammad Anwar P.W. With hatchets. The occurrence took place, according to the prosecution story, on 3-5-1985 at 7-30 a.m. Within the area of Dhoke Chaudhrian, Police Station Sohawa in furtherance of their common intention. After framing the charge both the accused pleaded not guilty and the prosecution was called upon to produce the evidence.
4. According to F.I.R., Fazal Karim son of Nek Muhammad is resident of Dhoke Chaudhrian Dakhli Pind Mattay Khan. Sher Ahmad and Nazir Hussain (accused) and Ghulam Sarwar (deceased) are related to the complainant. Both the parties have a joint Banna located near their Dhoke. Some time back there was some dispute about the Banna between the parties. On the date of occurrence, the complainant and Muhammad Sadiq were standing near the disputed Banna. Sher Ahmad and. Nazir Ahmad accused dismantled the disputed Banna. Meanwhile Ghulam Sarwar deceased and his son Muhammad Anwar came to the spot and inquired about the dismantling of the Banna. They insisted them to mend the said Banna. On this Sher Ahmad and Nazir Hussain who were armed with hatchets gave blow to Ghulam Sarwar which landed on his head, left arm, right shoulder, left flank and he fell down. Muhammad Anwar tried to rescue his father, but he also received simple injury at the hands of the accused. Fazal Karim complainant and Muhammad Sadiq P.W. Rescued Ghulam Sarwar and Muhammad Anwar. After the occurrence; their Bradri got effected compromise between the parties and the complainant was not allowed to go to police station to lodge report. On 4-5-1985, the condition of Ghulam Sarwar became precarious. Feeling danger about his survival, he was taken to Civil Hospital, Jhelum and the complainant reached the Police Station Sohawa for report against the accused. As such the matter was reported vide F.I.R.
No,69 under section 308/34, P.P.C., at 4-40 p.m.
5. Saghir Ahmad, S.-I. P.W.13 recorded the F.I.R. After getting the case registered, the reached at the spot, which was located at two miles away from the police station. At the spot supplementary statement of Fazal Karim complainant was also recorded. He prepared rough site plan and recorded the statements of the witnesses under section 161, Cr.P.C. And the offence converted from section 308 to section 307, P.P.C.
6. On 5-5-1985, Ghulam Sarwar injured expired in the D.H.Q. Hospital, Jhelum. The Investigating Officer reached there and prepared inquest report Exh.P.J. And handed over the dead body of the deceased to P.W.9 Zahoor Ahmad, F.C. Who escorted it to the mortuary for post-mortem examination. On death of Ghulam Sarwar section 302/34, P.P.C. Was added. After the autopsy Zahoor Ahmad, F.C. Produced blood-stained clothes of the deceased, Shalwar P.1 and Chadar P.2 before the Investigating Officer and the same took into possession vide memo. Exh.P.A./1 and made them into sealed parcel. According to the prosecution version, Sher Ahmad appeared before the police and produced blood-stained hatchet P.3, on 7-5-1985, which took into possession vide memo. Exh.P.F. And made sealed parcel. Sher Ahmad accused was arrested by him. Widow of the deceased alongwith his son produced bloodstained clothes of the deceased, which the deceased was wearing at the time of occurrence, which took into possession vide memo. Exh.P.K. And made sealed parcel. All the sealed parcels were kept and deposited with Muharrar H.C. Muhammad Akbar P.W.7.
7. P.W.1 Dr. Shaukat Mehmood, medically examined Ghulam Sarwar deceased, when he was alive.
While Dr. Shaukat Ali Shah, P.W.14 medically examined the P.Ws. Nazar Hussain was also examined by the said doctor. Postmortem examination was conducted by Dr. Abdul Ghaffar P.W.3. Dr. Nasir Ahmad medically examined Sher Ahmad accused. Post-mortem report including blood-stained hatchet and other material were taken into possession and all the three parcels were handed over to Muhammad Iqbal H.C. P.W.5, who kept them in safe custody and on 28-5-1985 handed over all the three parcels to Ehsan Gul F.C. P.W.6 for taking them to the Chemical Examiner, Lahore in tact, which was accordingly delivered. Muhammad Zar, Patwari P.W.4 prepared site plans and gave red notes thereon.
8. On 6-7-1985, Nazir Hussain was arrested from his Unit No,71 Signals at Rawalpindi and got medically examined, by Dr. Shaukaf Ali Shah P.W.14. The accused led to the recovery of the blood- stained hatchet on 6-7-1985, while he was in the custody of the police. Blood-stained hatchet P.4 was got recovered from his residential house and later on deposited the same with Muhammad Akbar, M.H.C. P.W.7. It was also sent to the Chemical Examiner for analysis, intact. Chemical Examiner mentioned in his report that all the articles were blood-stained. According to the Serologist report it was human blood.
9. Dr. Shaukat Mahmood, P.W.1 medically examined Ghulam Sarwar (deceased) when he was alive and observed the following injuries on his person:--
(1) Three inches stitched wound on the top of head, half inch left to midline, extending antero- posteriorly.
(2) About one inch stitched wound extending horizontally at midline 1/3 medial part of left forearm.
(3) About 1/4" stitched wound along mid axillary line just 1/2" above upper part of iliac crest.
(4) About 5" x 3" black coloured bruise, at the back of right shoulder.
(5) Clotted blood in left ear.
(6) Abdomen tender.
10. According to doctor's opinion, which he gave before the Court that injuries Nos.1 and 6 were caused with sharp-edged weapon. The rest of injuries were simple in nature, caused by blunt weapon.
11. Dr. Nasir Ahmad P.W.2 medically examined Sher Ahmad accused and found injury No,1 on the right side of the vertax and the other was on the right little finger, on his person. Both injuries were simple in nature and caused by blunt weapon.
12. Dr. Abdul Ghaffar P.W.3 conducted post-mortem examination and observed the following injuries on the person of the deceased:--
(1) A stitched wound opened on the top of head 1/2" left of midline, actor posterior in direction, wound was incised 3" x 1/8" bone deep.
(2) An incised wound on posterior-medically on middle 1/3" of left forearm, 1" x 1/8" x 3/4" deep.
(3) A piercing wound along mid axillary line 1/2" above left iliac crest 1/4" x 1/4" x 3/4" deep.
(4) 5" x 3" black colour bruised area on the back of right shoulder.
13. According to the doctor who carried out autopsy, the injury No,1 was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem.
14. Muhammad Anwar P.W. Was also medically examined on 5-5-1985 by Dr. Shaukat Ali Shah P.W.14. He had also suffered certain injuries. There was no sign of injury or any violence on the body of Nazir Hussain. The prosecution produced 14 witnesses in support of his version.
15. After the close of prosecution evidence, the accused were examined under section 342, Cr.P.C.
Who denied the prosecution version and stated that because of their family settlement ancestral land was got partitioned measuring 4 Kanals. According to them, both the parties were having their own shares independently. They erected there a regular independent Balm on the boundaries of the land. They denied that they were demolishing the Banna on the day of occurrence.
According to their version, Ghulam Sarwar committed criminal trespass in their fields and started demolishing the Banna, which was existed there since long and was only mended by them. The accused stated that mischievously the deceased demolished a part of it. He attacked with the hatchet, which he was carrying at that time. His son also admitted that he was present there at that time. The accused Sher Ahmad admitted that they were present there with their Kassies and they were working in their fields. They pleaded their case as of self-defence. Similar statement is of the other accused Nazir Hussain. They did not like to make statements under section 340(2), Cr.P.C.
16. All the P.Ws. Supported the prosecution version. Muhammad Zar, Datwari P.W.4 stated while appearing before the Court that .Admittedly the Banna was freshly dismantled. Fazal Karim P.W.10/complainant had admitted that Sher Ahmad and Nazir Ahmad accused are his Mamoon Zad. His sister Mst. Rehmat Bi was married to Sher Ahmad accused. Ghulam Sarwar deceased was also his Mamoon Zad and his sister Mst. Sakina Bi was married to the deceased.
17. After examining the prosecution witnesses and recording the statements of the accused, the trial Court fixed the case for arguments. Learned defence counsel vehemently argued that there was delay in lodging the report. All the eye-witnesses are closely related to the deceased. No independent and disinterested witness had been produced in this case to support the prosecution version. He further stated that it was a case of self-defence to the person and the property.
Hatchets P.4 and P.5 were not recovered from the accused at their instance.
18. On the other hand, learned State Counsel argued that prosecution has explained the delay in lodging the report. There is no previous enmity between the parties, whereas they are close relatives to each other. Learned State Counsel sought that the order of the trial Court be maintained. He stated that the eye-witnesses have fully supported the prosecution version in to.
The present occurrence almost had been admitted by the defence by putting forward the plea of self-defence. The plea of self-defence could have been accepted if the accused party had brought on record some cogent evidence that they had not dismantled the Banna, but they failed to show that the Banna belonrd to them.
19. I have heard the arguments of the learned counsel for the parties and gone through the record.
Place of occurrence has been admitted by both the parties, even by the eye-witnesses. Causing of injuries by the accused to the deceased and the P. Ws. Have not been denied. No doubt that the eye-witnesses are related to the deceased but admittedly both the parties are related to each other coupled with the fact that there was no previous enmity, except the present occurrence.
Regarding this occurrence, a case was registered with some delay but explanation is there.
Regarding delay it was stated that due to the interference of Bradri the complainant could not report Ole matter to the police. When the condition of Ghulam Sarwar (deceased) became precarious and feeling danger about his survival, the complainant reached the police station and reported the- matter. On his statement F.I.R. Under section 308/34, P.P.C. Was recorded. After the death of Ghulam Sarwar section 308 was converted into section 302/34, P.P.C. These circumstances of the case compel to saw that there was no previous enmity between the parties.
Thus, the deposition of thee prosecution witnesses is not doubtful. I, therefore, believe the prosecution evidence. In this case, there is an important factor, it is to be pointed out that though plea of self-defence was taken by the accused but they failed to prove l that Banna belonged to them. They cannot take benefit of defence of property unless proving it that they were the owners of the property/Banna in question. There were certain injuries on the person of the accused. They too, were medically examined though there was no mark of violence on the person of the present appellant.
20. In this case, the prosecution failed to prove the motive by producing consistent and believable evidence with regard to the ownership of Banna. Failure to prove motive part of the case, makes it .' case of mitigating circumstances to reduce the punishment awarded to the appellant by the learned trial Court.
21. Sher Ahmad accused (now died) has suffered injuries which were not explained by the prosecution at the outset. Failure on the part of the prosecution to produce the evidence with regard to the ownership of Banna. These all facts do speak in favor of the accused and, as such, sentence awarded to the appellant under section 304, Part 1/34, P.P.C. Is reduced from life imprisonment to 10 years' R.I. However, the sentence of imposition of fine is maintained. Similarly, the conviction ordered under sections 307/34 and 324/34, P.P.C. Is maintained. All the sentences shall run concurrently. The appellant is also given benefit of section 382-B, Cr.P.C. With the aforesaid modification, the appeal is dismissed. Nazir Husain appellant is present before the Court on bail. He be taken into custody and sent to jail for undergoing the remaining punishment awarded to him by this Court.
Sentence reduced.