MUHAMMAD FARRUKH MAHMUD, J.---Khan Muhammad son of Allah Ditta along with Faiz-ul- Hassan, Zahid Hussain, Mukhtar Ahmad, Abdul Ghaffar and Khadim Hussain, accused, was sent up to face trial for causing murder of Abdul Aziz and causing injuries to the P.Ws. Vide judgment dated 3-10-1998, the learned Additional Sessions Judge, Rahim Yar Khan, acquitted the co---accused namely Faiz-ul-Hassan, Zahid Hussain and Abdul Ghaffar co-accused Abdul Ghaffar and Khadim Hussain. Co---accused, were, however, convicted under sections 337-A, P.P.C. And 337-F(v), P.P.C.
Respectively for causing injuries on the person of Mst. Noor Khatoon P.W.3 and one Mushtaq Ahmad, who could not be produced during the trial. Abdul Ghaffar sentenced to undergo R.I. For one year with a fine of Rs.2,000 in default whereof he was to further undergo six months' S.I. Khadim Hussain was sentenced to undergo R.I. For two years. Fine of Rs.1,000 was also imposed upon him, in default whereof he had to further undergo four months' S.I. Abdul Ghaffar and Khadim Hussain did not prefer appeal against the judgment and have already served out their sentences. Khan Muhammad-appellant was convicted under section 302(b), P.P.C. For causing death of Abdul Aziz and sentenced to life imprisonment. He was also convicted under section 337-D, P.P.C. For causing injuries to Ali Sher, who did not appear before the trial Court since he died before the commencement of trial, and sentenced to five years' R.I. Fine of Rs.3,000 was also imposed upon him and in default thereof, he was to further undergo S.I. For one year Both the sentences were to run concurrently. Benefit of section 382-B, Cr.P.C. Was extended to him.
2. Feeling aggrieved, the appellant Khan Muhammad has preferred the instant appeal, while Ahmad Din-complainant filed Criminal Revision No.94 of 1998 seeking enhancement of sentence inflicted upon Khan Muhammad and co-accused Khadim Hussain, Abdul Ghaffar. However, this revision has not been pressed to the extent of Khadim Hussain and Abdul Ghaffar, as they have already served out their sentences. I propose to decide both these matters through this single judgment.
3. Ahmad Din P.W.1 reached Police Station Saddar, Rahim Yar Khan on 3-6-1993 a: 12-15 p.m. (noon).
On the basis of his statement F.I.R. No.261 of 1993 Exh.PA was recorded by Noor Muhammad, S.-I. P.
W.14 for offences under sections 324; 148/149, P.P.C. Subsequently, section 302, P.P.C. Was added after the death of Abdul Aziz. It was stated in the F.I.R. That the complainant worked at Deherki (Sindh) as driver and on the occasion of Eid-ul-Azha had come to his house situated in Mouza Tibi Laran. His mother Mst. Noor Khatoon owned five Kanals of agricultural land in Mouza Tibi Laran.
Khan Muhammad, Allah Ditta, Mukhtar Ahmad (accused), the relatives of Mst. Noor Khatoon by posing themselves as owner wanted to take possession of the land.
Mst. Noor Khatoon after obtaining stay order from the Civil Court, Rahim Yar Khan, had sown "Jantar" and "Jawar" crops in the fields. On the fateful day at about 11-00 a.m. The complainant accompanied by Abdul Aziz (deceased), Ali Sher and Mst. Noor Khatoon (father and mother of the complainant) were cutting the grass in the fields, when Khan Muhammad armed with Wohoola (an instrument for digging the fields), Mukhtar Ahmad armed with hatchet, Khadim Hussain armed with hockey, Abdul Ghaffar armed with hatchet and Zahid Hussain armed with Churri, reached the spot and started abusing to the complainant party. They were stopped by the complainant, thereafter Mukhtar Ahmad caused injuries with his hatchet to the complainant. Khan Muhammad (appellant) gave Wohoola blow on the head of Abdul Aziz (deceased), who fell down. Khan Muhammad also caused injuries with Wohoola to Ali Sher, father of the complainant, on his head, neck and ribs. The complainant party raised alarm, which attracted Mushtaq Ahmad, Muhammad Din and Mithan Mai (brothers and sister of the complainant) to the scene of occurrence. Khadim Hussain caused injuries to Mushtaq Ahmad with hockey. Muhammad Din received injuries at the hands of Zahid Hussain. Mst. Mithan Mai received injuries on her head caused by Abdul Ghaffar with hatchet. Mst.
Noor Khatoon also received hatchet injuries at the hands of Abdul Ghaffar. Meanwhile, Muhammad Sadiq, bother of the complainant, Muhammad Ramzan and Muhammad Aslam P.Ws. Also reached the scene of occurrence and rescued the complainant party from the assailants. Abdul Aziz (deceased) who received injury on his head at the hands of Khan Muhammad (appellant) lost consciousness.
The motive as given in the F.I.R was that Khan Muhammad (appellant) accompanied by Mukhtar Ahmad and others, in order to take possession of five Kanals of land belonging to Mst. Noor Khatoon had used force. It was also stated that Khan Muhammad in order to commit murder of Abdul Aziz had given Wohoola blow on his head.
5. After registration of case Noor Muhammad, S.-I. P.W.14 reached the scene of occurrence and collected blood-stained earth vide memo. Exh.PE, which was attested by Muhammad Aslam, P.W.7 and one Muhammad Ramzan, who did not appear before the trial Court. On 26-6-1993 Khan Muhammad appellant was arrested by P.W.14 Noor Muhammad, S.-I., and led to the recovery of Wohoola P.5 on the same day, which was hidden in his residential house and the same was taken into possession vide memo. Exh.PH attested by Muhammad Aslam P.W.7 and one Muhammad Ramzan, who was not produced. It is pertinent to note here that it was not mentioned in Exh.PH that Wohoola was blood-stained but according to the reports of the Chemical Examiner and the Serologist Exh. PX and Exh.PX/1 the recovered Wohoola was stained with human blood.
6. After completion of investigation, the appellant along with other accused were sent to face trial and as they denied the charge, the trial commenced. During trial, in order to prove its case, the prosecution produced 15 witnesses. P.W.1 Ahmad Din, P.W.2 Mst. Mithan Mai, maternal nephew and the niece of the deceased. P.W.3 Mst. Noor Khatoon, sister of the deceased. P.W.4 Muhammad Din, brother of the complainant and maternal nephew of the deceased furnished the ocular evidence as well as evidence relating to the motive. The aforementioned witnesses had received injuries during the occurrence. Muhammad Aslam nephew of Mst. Noor Khatoon appeared as P. W.7. He stated about the occurrence, motive and the recoveries. Dr. Tariq Mehmood, who conducted the post--mortem appeared as P.W.12. Dr. Azhar Iqbal appeared as P. W.10 and narrated about the injuries suffered by P. W .1 and P. W .4. He had also examined Zahid Hussain, Mukhtar Ahmad and Faiz-ul-Hassan accused, who had also received injuries during the occurrence. Dr. Muhammad Bashir Chaudhry had examined Mst. Noor Khatoon and Mst. Mithan Mai and appeared as P.W.5. Dr. Saeed Akhtar, Radiologist, appeared as P.W.11. Nazir Ahmad Patwari, who prepared the site plan appeared as P.W.6. Noor Muhammad, S.-I. Appeared as P.W.14 and stated about the registration of case and the investigation. The rest of the witnesses were formal in nature.
7. After the closure of the prosecution case, the statement of Khan Muhammad-- appellant was recorded under section 342, Cr.P.C., who denied the charge and in reply to question No.9, he stated as under:-- "The disputed property situated in Rectangle No.435/12, Killa No.18 of Mouza Tibbi Larran has throughout been in possession of myself and Muhammad Din P.W. Mst. Noor Khatoon and her relative wanted to take forcible possession, thereby they filed a civil suit in which her possession over it was not established, thereby, stay order vacated on 3-5-1993 from the Civil Court. Later on her suit was dismissed as withdrawn on 19-12-1993. On the contrary in civil suit having been instituted by me and Muhammad Din, stay order regarding the land in dispute was confirmed in our favour on 3-5-1993. On the day of alleged occurrence my were Mst. Behrozan and daughter Mst. Zaina were cutting grass from the disputed filed. P.Ws. Noor Khatoon and Mithan Mai intervened and quarrelled with them, rest of the men of complainant party also came there to take forcible possession. Accused Zahid Hussain and Mukhtar Ahmad were injured. On hue and cry people gathered and expelled the land aggressive of the complainant party. I am innocent and was not present in the alleged occurrence. Due to property disputes, I have been falsely involved."
He, however, did not appear as a witness in his defence as envisaged by section 340(2), Cr.P.C. And after producing the certified copies of the plaint titled as Mst. Nooran v. Muhammad Din and others Exh.DB, copy of injunction petition Exh.DC, copy of order dated 17-12-1989 Exh.DD, copy of order dated 19-12-1993 Exh.DE, copy of order dated 3-5-1993 Exh.DF, copy of plaint titled as Muhammad Din and others v. Ali Sher and others Exh.DG, copy of plaint titled Muhammad Din and others v. Ali Sher Exh.DH, copy of order sheet Exh.DJ, copy of order dated 14-12-1992 Exh.Dk, copies of Jamabandi Exhs.DL, DM, DO and DQ and copies of Khasra Girdawari Exhs.DN and DP, closed his case.
8. The learned counsel for the appellant has at the very outset submitted that he would not press this appeal on merits and would seek reduction of sentence as in the circumstances of the case, the conviction should have been recorded under section 302(c), P.P.C. And not under section 302(b), P.P.C. In support of his contention he has argued that the prosecution could not establish that the land where the occurrence took place was in its possession; that the learned trial Court has misread the statement of P.W.6; that in fact perusal of the statement of Patwari P.W.6 reveals that according to Exhs.DB and DD the appellant and one Muhammad Din were in possession of the land; that the stay granted in favour of Mst. Noor Khatoon P.W.3 was vacated vide order dated 3-5- 1993, Exh.DF; that Muhammad Din along with others had filed a suit relating to the land (place of occurrence) on 14-12-1992 and stay was granted in their favour; that there was overwhelming evidence that the land was in possession of Khan Muhammad-appellant; that Wohoola was used from the blunt side and only a single injury was attributed to the appellant; that three accused also received injuries at the hands of the complainant party; that except for the dispute over the agricultural land there was no previous enmity between the parties; that the immediate cause which led to the occurrence was shrouded in mystery; and that Wohoola was a weapon used for digging the ground and was not a weapon of offence.
9. Conversely the learned counsel for the complainant has argued that in fact the appellant and the other co-accused were aggressors; that Wohoola is a heavy weapon and the injury has been caused on the head of the deceased, therefore, it can safely be inferred that the appellant wanted to murder Abdul Aziz and that the copies of the plaints and the orders referred to by the learned counsel for the appellant did not conclusively depict the reality on the ground, as those were based on tentative assessm ent; that no benefit could be given to the appellant, as he did not take the plea of self-defence; and that the P.Ws. Had stated before the trial Court about the injuries sustained by the accused.
The learned counsel for the State has adopted the line of arguments of the learned counsel for the complainant.
11. I have heard the learned counsel for the parties at length and scanned the entire evidence. Faiz- ul-Hassan, Zahid Hussain and Mukhtar Ahmad co-accused were acquitted of all the charges.
Abdul Ghaffar and Khadim Hussain co-accused were acquitted of the charge of murder. Neither the State nor the complainant has challenged the acquittal of the aforementioned co-accused from the charge of murder. In other words they have accepted the verdict of the trial Court that it was a case of individual liability and responsibility. It has been proved during trial that the occurrence took place in Killa No.18-A of Rectangle No.435/12 situated within the area of Mouza Tibbi Larran. Nazir Ahmad, Patwari, appeared as P.W.6 and stated that Killa No. 18-A of the Square was under the cultivating possession of one Atta Muhammad and Khan Muhammad (appellant) with effect from Kharif 1990 till Kharif 1994. He also stated that according to the relevant Register Khasra Girdawari sugarcane crop was mentioned in Killa No .18 whereas Jantar crop was mentioned in Killa No. 18-A. His statement is to be read in the context of F.I.R., wherein it was stated that P.Ws. Were present in the field where Jantar and Jawar crops had been sown. Ahmad Din -- complainant (P.W.1) stated that the place of occurrence was the same place regarding which his mother Mst. Noor Khatoon had sought temporary injunction for maintenance of possession in her favour. The, complainant party and the appellant are related inter se and it appears that both were having battle in the Civil Court relating to the possession of five Kanals of agricultural land.
12. Mst. Noor Khatoon, P.W.3, who also received injuries during the occurrence had filed a suit for temporary injunction relating to Killa No. 18-A along with other Killas of Rectangle No.435/12 against Khan Muhammad appellant and others. Vide order dated 3-5-1993 (Exh.DF) passed by the trial Court, the application for grant of temporary injunction filed by Mst. Noor Khatoon was dismissed, as her possession was not proved by any document. Khan Muhammad and two others had filed a suit on 14-12-1992 (Exh.DH) seeking permanent injunction against Muhammad Din P.W.4, his father Ali Sher, who received injuries during the occurrence, Abdul Aziz (deceased) and one Mushtaq Ahmad relating to the same land as mentioned in the suit filed by Mst. Noor Khatoon. Both the cases were being heard together.
13. Perusal of the evidence makes it very clear that due to the existing dispute vas-a-vas the agricultural land, on the fateful day, the matter suddenly flared up between the parties, wherein Abdul Aziz lost his life, while P.W.1, P.W.2, P.W.3, P.W.4 and Ali Sher received injuries from the prosecution side. But on the same hand it could not be overlooked that Faiz-ul-Hassan, Zahid Hussain and Mukhtar Ahmad-accused also received 11 injuries in total on their persons. Their injuries have duly been proved vide statement made by Dr. Azhar Iqbal P.W.10. The injuries of the co-accused were not mentioned at all in the F.I.R. And it was during trial that the P.Ws. Had to admit that the accused had also received injuries during the occurrence. Both, the complainant as well as the accused had suppressed the truth and therefore, the trial Court had to draw its own inferences according to the circumstances of the case in accordance with the principle laid down by the Hon'ble Supreme Court of Pakistan in Syed Ali Bepari's case (PLD 1962 SC 502); thus the trial Court rightly concluded that it was a case of individual liability. It is also noteworthy that Khan Muhammad-appellant caused single blow to Abdul Aziz with the blunt side of his weapon and did not repeat the same.
14. Considering all these circumstances, I am of the opinion that the act of Khan Muhammad- appellant fell under the exception 4 of section 300, P.P.C. (old, prior to amendment). In the case of Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274) it was held that "there should be no doubt that the cases covered by the exceptions to the old section 300, P.P.C. Read with the old section 304 thereof, are cases which were intended to be dealt with under clause (c) of the new section 302 of the P.P.C." Consequently, I set aside, he conviction and sentence of the appellant (Khan Muhammad) recorded under' section 302(b), P.P.C. And convict him under section 302(c), P.P.C. For causing death of Abdul Aziz.
15. Now coming to the quantum of sentence it has been noticed that after his arrest on 26-6-1993, the appellant remained confined in Jail throughout. Benefit of section 382-B, Cr.P.C. Was extended to him and according to the report submitted by the Superintendent of New Central Jail, Bahawalpur, the appellant has already served out 18 years and 8 months out of his sentence of 25 years, therefore, I sentence the appellant to the period already served out by him as the same would meet the ends of justice.
16. At the start of hearing of the appeal, notice was given to the learned counsel for the appellant for payment of compensation under section 544-A, Cr. P. C., which was accepted. Hence the appellant is directed to pay Rs.20,000 as compensation, which would be recovered as arrears of land revenue and would be paid to the legal heirs of Abdul Aziz deceased.
17. Now coming to the conviction and sentence awarded to the appellant under section 337-D, P.P.C. For causing injuries on the person of Ali Sher, who could not be produced before the trial Court, as he had died. It reveals from the perusal of the statement of Dr. Azhar Iqbal that Ali Sher received injuries with the blunt weapon and his 7th and 8th ribs were fractured. The injuries were not caused by any sharp-edged weapon or fire-arm and neither the same were punctured wounds. In these circumstances, the provisions of section 337-D, P.P.C. Are not attracted, therefore, I set aside the conviction and sentence of the appellant under section 337-D, P.P.C. And convict him under section 337-F(v), P.P.C. And sentence him to five years' R.I. He is also burdened with Daman amount to Rs.10,000, which if recovered, would be paid to the legal heirs of Ali Sher, in default whereof he would further undergo S. I. For three months.
18. It is pertinent to note that the trial Court had ordered that the sentences would run concurrently.
The same order is maintained. The appellant in other words has already served out his sentence recorded by this Court under section 337-F(v), P.P.C. He would be released from Jail forthwith if not required in any other case.
19. With the above modifications, this appeal is dismissed.
20. For the reasons recorded above, I find no merit in the revision. Hence the same is dismissed.