RAJA ABDUL AZIZ BHATTI, J.- In this case there are two accused namely Sher Ahmad and Nazir Hussan. Sher Ahmad expired during the pendency of this appeal. Hence to that extent the appeal has become infructuous, therefore, dismissed. Nazir Hussan is present before the Court. He was awarded sentence under Section 3()4. Part-1/34. PPC, life imprisonment and a fine of Rs.10,000/-, in default whereof to undergo further 2 years' R.I. Under Section 307/34, PPC, 3 years' R.I. And a line of Rs.1000/-, in default whereof to undergo further 6 months' R.I. And under Section 324/34. PPC. 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 FIR No.69 of 1985 registered at Police Station Sohawa District Jhelum, offence under Sections 302, 307 and 324/34, PPC.
3. Briefly stated the facts of the case are that Sher Ahmad accused (deceased) and the present, appellant Nazir Hussan were charged under sections mentioned above for the murder of Ghulam Sarwar deceased, and for murderous assault on Sher Ahmad PW, who received grievous injury on his head and for causing simple injuries to Muhammad Anwar PW with hatchets. The occurrence took place, according to the prosecution story, on 3-5-1985 at 7:30 AM within the area of Dhoke Cliaudhrian, P.S. 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 FIR, Fazal Karim son of Nek Muhammad is resident of Dhoke Chaudhrian Dakhli Pind Mattay Khan. Sher Ahmad and Nazir Hussan (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 Hussan 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 PW rescued Ghulam Sarwar and Muhammad Anwar. After the occurrence, their Braird 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 hs survival, he was taken to Civil Hospital,' Jehlum and the complainant reached the police station Sohawa for report against the accused. As such the matter was reported vide FIR No.69 under Sections 308/34, PPC. At 4:40 PM.
5. Saghir Ahmad, SI PW13 recorded the FIR. After getting the case registered, he 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 controverted from Section 308 to Section 307 PPC.
6. On 5-5-1985, Ghulam Sarwar injured expired in the DHQ Hospital Jhelum. The I.O. Reached there and prepared inquest report FZx. P.1 and handed over the dead-body of the deceased to PW9 Zahoor Ahmad, FC who escorted it to the mortuary for post-mortem examination. On death of Ghulam Sarwar Section 302/34. PPC was added. After the autopsy Zahoor Ahmad, FC produced blood-stained cloths of the deceased, Shalwar PI and Chadar P2 before the I.O. And the same took into possession vide memo Ex.PA/1 and made them into sealed parcel According to the prosecution version. Slier Ahmad appeared before the Police and produced blood stained hatchel P3, on 7-5-1985, which took into possession vide memo Ex.PF and made sealed parcel. Slier 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 Ex.PK and made sealed parcel. All the sealed parcels were kept and deposited with Moharrar HC Muhammad Akbar PW7.
7. PW1 Dr. .Shauka! Mehmood. Medically examined Ghulam Sarwar deceased, when he was alive.
While Dr. Shoukat Ali Shah, PW14 medically. Examined the PWs. Nazar Hussan was also examined by the said Doctor. Post-mortem examination was conducted by Dr. Abdul Ghaffar PW 3. Dr. Nasir Ahmad medically examined Slier 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 HC, PWS, who kept them in safe custody and on 28-5-1985 handed-over all the three parcels to Ehsan Gul EC PW6 for taking them to the Chemical Examiner. Lahore, intact, which was accordingly delivered. Muhammad Zar Patwari PW4 prepared site plans and gave red notes thereon.
8. On 6-7-1985, Nazir Hussan was arrested from his Unit No.71 Signals at Rawalpindi and got medically examined, by Dr. Shauka! Ali Shah PW14. The accused led to the recovery of the blood- stained hatchet on 6-7-1985 while he was in the custody
9. Dr. Shaukat Mahmood. PW1 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 min-axillary ine 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 Doctors opinion, which he gave before the Court that injuries No. I and 6 were caused w with sharp-edged weapon. The rest of injuries were simple in nature, caused by blunt weapon.
11. Dr. Nasir Ahmad PW2 medically examined Slier Ahmad accused and found injury No. I on the right did of the overtax and the other was on the right little linger, on his person. Both injuries were simple in nature and caused hy blunt weapon. . ' "
12. Dr. Abdul Ghaffar .PW3 conducted post-mortem examination and observed the following in juries-on the person of the deceased:-
(1) A stitched wound opened on the top of head l 2" left of midline, anteroposterior in direction, wound was incised 3 x I 8" bone deep.
(2) An incised wound on posterior-medically on middle 1/3" of left forearm I x 1/8" x 3/4" deep.
(3) A piercing wound along midaxillary 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 antemortem.
14. Muhammad Anwar PW was also medically examined on 5-5-1085 by Dr. Shaukat Ali Shah PW 14.
He had also sufferred certain injuries. There was no sign of injury or any violence on the body of Nazir Hussan. 4 he 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 Banna-on the boundaries of the land. They denied that they w ere demolishing the Bclnna 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 staled that mischievously the deceased demolished a part of it. He attacked with the hatchery which he was carrying' at that time. His son also admitted that he was present there at that time. The accused Slier Ahmad admitted that they were present there with their Kassies and they were working-'in their fields, fluey pleaded their case as of self-defence. Similar statement is of the other accused Nazir Hussan. They did not like to make statements under Section 340 (ii), Cr.P.C.
16. All the PWs supported the prosecution version. Muhammad Zar Patwari PW4 stated while appearing before the Court that admittedly the Banna was freshly dismantled. Fazal Karim PW1O/complainant had admitted that Slier Ahmad and Nazir Ahmad accused are his Mamoon Zad. His sister Mst. Rehmat Bi his marreied to Slier Ahmad accused. Ghulam Sarwar deceased was also his Mamoon Zad and his sister Mst. Sakina 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 dis-intercsted witness had been produced in this case to support the prosecution version, lie further stated that it was a ease of self-defence to the person and the properly. Hatchets F4 and P5 were not recovered from the accused at their instance.
18. On the other hand, learned Stale counsel argued that prosecution has explained the delaying 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 toto.
'Hie present occurrence almost had been admitted by the defence by puting 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 Benina. But they failed to show that the Banna belonged 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 parlies, even by the eye-witnesses Causing of injuries by the accused to the deceased and the PWs have not been denied. No doubt that the eye-witnesses a/j related to the deceased but admittedly boot-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 Braird the complainant could not report the 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 FIR under Section 308/34, PPC was recorded. After the death of Ghulam Sja/war Section 308 was converted into Section 302/34, PPC. These circumstances of the Case compel to say that there was no previous enmity between the parties. Thus the deposition of the prosecution witnesses is not doubtful. I, therefore, believe the prosecution evidence. In this case, there is an t important factor, it is to be pointed out that though plea of self- defence was taken by the accused but they failed to prove 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 was certain injuries on the person of the accused. They too, was medically examined though there was no mark ot violence on the person of the present appellant.
20. In this case, the prosecution failed to prove the motive by producing consisting and believable evidence with regard to the ownership of Banna Failure prove motive part of the case, make it a case of mitigating circumstances photoreduce the punishment awarded to the appellant by the learned Trial Court.
21. Slier Ahmad accused (now died) has suffered injuries which were not explained 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 favour of the accused and. As such, sentence awarded to the appellant under section 304. Part-1 34. PPC is reduced from life imprisonment to 10 years' R.I. However, the sentence of imposition of line is maintained. Similarly, the conviction ordered under sections 307 34 and 324/34, PPC is maintained. All the sentences shall run concurrently. 4 he appellant is also given benefit of section 382-B, Cr.P.C. With the aforesaid modification, the appeal is dismissed. Nazir Hussan appellant is preset if 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.