' Imam Din and his three sons namely Asghar, Akbar and Sarwar and Ahmad Din alias Ahmi, were committed for trial before the Additional Sessions Judge, Sheikhupura, for offences under sections 148, 302, 323, 149, P. P. C. For committing rioting and forming an unlawful assembly and in the prosecution of their common object, committing the murder of Nazir and causing simple injuries to his brother Bashir.Vide his judgment dated 29-11-73 the learned trial Judge while acquitting Akbar, Asghar and Imam Din, found Sarwar and Ahmad Din guilty under section 304/34, P. P. C. And sentenced them to seven years' R. I. Each with a fine of Rs, 1,000 each or in default thereof to undergo further one year's R. I. Each.
2. Sarwar and Ahmad Din have filed this appeal against their convictions and sentences.
3. The brief facts of the case as disclosed by Sakhi Muhammad P. W. 8 in his statement before the Police while lodging report Exh. P. A. Are as under,
4. According to Sakhi Muhammad P. W., Ahmad appellant was a desperate character who owned no land in the village and used to make his both ends meet by cultivating some land of others.
Despite the fact that he was landless person, he would overawe and browbeat the other members of village community and would thus cause harassment among them. Nazir, a younger brother of the complainant who was an educated person, highly resented this attitude of Ahmad and admonished him and told him plainly that he would not allow him to either on coerce the village folks any further. This resulted into an altercation between the two, 10/15 days prior to this occurrence where Nazir deceased once more told Ahmad appellant that he would stand no nonsense from him. On the fateful day i,e, 19-11-1970 at degarwela when Nazir was coming back to his house after attending to his fields, he was confronted with Ahmad and Sarwar appellants and their co-accused Asghar and Akbar sons of Imam Din, who were armed with dangs. They were also being followed by Imam Din himself who was raising laikaras and was exhorting the assailants to finish Nazir deceased once for all. At that time the complainant alongwith his younger brother Bashir Ahmad, was proceeding towards his fields in order to cut fodder. When they saw that the assailants were bent upon beating the deceased, they also ran for his rescue. Within their sight, Sarwar appellant inflicted a dang blow which hit Nazir deceased on the back of his neck. Second blow was given by Ahmad appellant which also fell on his first injury and later on the rest of them also started belaboring the deceased. Imam Din co-accused was raising lalkaras. The occurrence was witnessed by Walayat Labrador and Sadiq son of Amir. On the approach of these witnesses the assailants ran away. The deceased as well as the injured persons were taken on charpais to the hospital where they were admitted at about 10/11 at night and the case was registered next morning with the police at 8-30 a.m.
5. All the five accused including the appellants were arrested on 23-11-1970 by Mahboob Alam S. H.
0. P. W.
13. Some sotas were recovered from them by various memos. But as the learned trial Court has not relied on this piece of evidence, therefore, it would be no use to burden the file by the evaluation of this aspect of the case.
6. The deceased on medical examination was found to have suffered three injuries in all, out of which two were on the neck and one was on the arm. One injury on the head proved fatal while the rest were declared simple. Bashir Ahmad P. W. Received four simple injuries caused by a blunt weapon.
7. The case of the prosecution is supported by the evidence of Sakhi Muhammad P. W. 8, brother of the deceased, Bashir Ahmad P. W. 10, the injured witness and another brother of the deceased, Walayat Ali P. W. 9, an independent witness, Nawab P. W. 11, a common Mueen of the village supported by the evidence of motive and the medical evidence.
8. The case of the defence on the other hand was that of bare denial and no defence was led by the appellants.
' The learned trial Court acquitted Imam Din co-accused on the ground that he was empty- handed and was seventy years old. Learned trial Court considered the case of the prosecution doubtful against Asghar and Akbar co-accused as no specific injury was attributed to them and for the reason that fatal injuries received by the deceased were three in number, out of which two have been explained as caused by the appellants.
9. I have heard the learned counsel for the appellants as well as for the State and have perused the record of the case carefully with their assistance.
' Learned counsel for the appellants has laid lot of stress on the delay of 16 hours in lodging the report with the Police by the complainant and has submitted that this fact by itself would be fatal to the case of the prosecution. He has assailed the presence of Walayat Ali P. W. At the spot and dubbed him a chance witness. Lastly it was argued that it was highly unsafe to maintain the conviction of the appellants on the testimony of related witnesses when particularly motive has been found to be very weak, by the learned trial Court.
10. On the other hand, learned counsel for the State has submitted that the case of the prosecution stood fully proved by the evidence of the P. Ws, against whom no suggestion of any kind was made by the defence to show that this witness had any motive to falsely implicate the appellants or to substitute them with some other persons who might be the real culprits. It was further submitted that the presence of Bashir Ahmad P. W. Could not be doubted as he received as many as five injuries at the hands of the appellants and at the same time had no background of any long standing enmity which may actuate or motivate him to nominate them as the culprits whereas some else had committed the crime. As far as the motive was concerned, the learned State Counsel contended that the learned trial Court was not justified to hold that motive was weak as a person of Ahmad's character would certainly try to demonstrate in the village community by his acts of bravadoes that whosoever would come in his way, would be chastised, humiliated and belabored.
11. I have given my anxious thought to all the contentions raised by both the learned counsel and find that the points raised on behalf of the appellants, are hardly tenable. The case of the prosecution has been brought on the record in a straightforward manner, while going through the evidence of the P. Ws. One feels that there is a hallow of truth around their narration. These witnesses have no personal axes to grind against the appellants as there is nothing on the record to show that except the previous altercation between Ahmad appellant and the deceased, there was any other dispute between them. It is neither improbable nor unnatural that an educated person in the village will certainly not take exception to the behaviour of a desperado and by virtue of his education, would feel his moral duty to stand up against him so that the others may follow his example and free themselves from his yoke. This laudable stand goaded unfortunate Nazir (deceased) to come forward although it ended into his tragic death. The delay in this case ex facie may look an impressive factor in favour of the defence but while looking into it deeply with the help of the evidence on the record, I am of the considered opinion that this would not damage the case of the prosecution in any manner. Nazir deceased had received one fatal injury by a clang blow and as stated by the witnesses was not bleeding at the time when he was taken care of by his brothers and other members of his family. So obviously the village folks simple as they are, would not realize the gravity of situation and must have tried to render first aid to him. In cases of such nature, the first reaction of those who come and find their own kith and kin injured, is to look after him and save his life rather to run to the Police Station for lodging an F. I. R. It is also in the evidence of the witnesses that this unfortunate happening occurred during the month of Ramzan and particularly at a time when the Iftar time, had drawn near. Therefore, they would first break their fast ; say their prayer ; arrange for some transport and would then move for the hospital or the Police Station whichever course they decided to take. In the instant case, they decided to go to the hospital first and no one could say that it was not a wise decision. With this analysis of the case, I have no hesitation to hold that delay in lodging the F. I. R. Or going to the hospital, stands fully explained.
12. I must say that while dealing with this case learned trial Court has viewed all its aspects in its true perspective and has taken a quite beneficial view in favor of the defense and has rightly concluded that object of the assault was just to teach a lesson to an educated person in the village who had come forward to challenge the authority of a person who wanted to establish his supremacy by sheer dint of brawns and not by brains. The injuries as given by the witnesses stand fully substantiated by the medical evidence, therefore, it cannot be said that the statements of the witnesses are at variance with the observation of the doctor made by him at the time of performing post-mortem examination. The learned Court has done full justice to all the facts of the case and has rightly concluded that the case of the appellants did not fall under section 302, P. P.
C. But actually it attracted the mischief of section 304, P. P. C. Only as lack of mens re' on the part of the appellants was quite apparent even from the case of the prosecution itself.
13. In the light of the above discussion, I do not feel any justification to interfere with the judgment of the learned trial Court which is based on cogent reasons. Accordingly, I dismiss the appeal and maintain the conviction and sentences of the appellants.