1991 P Cr (PLP)

2. The prosecution story in brief was that on 25-12-1984 at 8-00 p.m., in the area of Chah Ghulam Muhammad-cum-Shera Kot, Lahore, Muhammad Ashraf appellant armed with a Kassi and his Khalazad Amir acquitted co-accused attacked Muhammad Anwar (deceased) persuant to a dispute over a piece of land. Opening the attack Muhammad Amir acquitted accused raised a Lalkara exhorting Muhammad Ashraf appellant to finish Muhammad Anwar and simultaneously held him in his clasp. Muhammad Ashraf appellant gave 3/4 blows with his Kassi on the head and face of Muhammad Anwar (deceased). He raised alarm attracting Walayat Khan complainant, Haji Muhammad Arshad and Muhammad Siddique P.Ws. who all were returning from village Badroon to their village Shera Kot and happened to pass from near the place of occurrence. As a result of the injuries sustained by Muhammad Anwar, he died on the spot. All the assailants ran away. The motive for the crime was that Muhammad Ashraf appellant was demanding the share of his wife Manawar Bibi in the land owned by her father, from her brother Muhammad Anwar (deceased) and there was a dispute between them over the land.

3. The matter was reported to the police by Walayat Khan (P.W.6) at 8-30 p.m., at Police Station Nawankot, Lahore and case F.I.R. No.850 was registered against the appellant. and his co-accused under section 302/34, P.P.C.

4. The case was investigated by S.I. Bashir Ahmad Bajwa (P.W.11) and on the completion of investigation the appellant and his co-accused were sent up for trial to the Court of Session.

5. On the commencement of trial, in view of the repudiation of the charge by the appellant and his co-accused, the prosecution produced as many as 11 witnesses, including complainant Walayat Khan (P.W.6), Haji Arshad (P.WA) and Muhammad Siddique (P.W.7) who gave the eye-witness account, besides relating the motive.

6. Dr. Anwar Saeed (P.W.8) proved five injuries on the: 'person of appellant vide medico-legal report Exh. P.G.

7. Dr. Zaheer Anjum Sherazi (P.W.9) proved the post-mortem report (Exh. P.H.) containing the details of six injuries out of which five injuries were caused by a sharp-edged weapon and one by blunt weapon. The main cause of death was the head injury.

8. The above-mentioned three witnesses gave the eye-witness account. Their testimony finds reflection in the above narration of the prosecution case and might be subjected to detailed appraisal, if necessary.

9. On the completion of the prosecution evidence, the appellant and his acquitted co-accused both were examined under section 342, Cr.P.C. Both of them in their respective statements denied all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implication, professed innocence.. With regard to the injuries on his person proved by Dr. Anwar Saeed (P.W.8), the appellant stated that on the day of incident at 7-00 p.m., he had gone out to watch his fields and during pitch dark some persons, to whom he could not identify due to darkness, attacked him and caused him injuries. According to him, he raised cries and thereafter he did not know what happened and on the next day when he regained his sense, he found himself lying in the hospital on a bed. Giving his explanation for his involvement in the case, he stated that he demanded the share of his mother from his maternal-uncle Walayat khan complainant as a result of which he suddenly became his enemy and since he had usurped the share of his mother, he wanted to remove him and Muhammad Anwar (deceased) from his way and hatching a conspiracy with his brother-in-law Haji Muhammad Arshad P.W. and his tenant Muhammad Siddique P.W., got him falsely involved in this case in collusion with the police. According to him, his brother-in-law Muhammad Anwar (deceased) was married to Mst. Irshad Begum of Sattoki, the widow of his elder brother, and later divorced her without any valid cause, which made her relations his enemies.

10. The appellant also appeared as his own witness under section 340, Cr.P.C. He produced Muhammad Saeed (D.W.3) and Arshad (D.W.4) in his defence. The former deposed that about a year and 20 days ago when- he was sleeping in his house, Muhammad Irshad D.W. came to him at about mid-night and asked him to arrange for reliable persons to produce them before the police. According to him, the police had informed him that they were to arrest sons of Hakam in connection with a murder in village Sherakot but he told them that his sons did not reside at village Sattoki. He further deposed that the police was accompanied by Walayat Khan complainant. He also testified about the marriage of Mst. Irshad Begum, daughter of Hakam, who was married to Muhammad Boota, the brother of Muhammad Anwar (deceased), who, after the death of his brother had married her but later divorced her. The latter (Irshad D.W.4) corroborated Muhammad Saeed (D.W.3) in his above-mentioned statement.

11. The learned trial Judge, believing the prosecution story, by the impugned judgment, convicted and sentenced the appellant in the manner aforesaid after acquitting his co-accused on benefit of doubt, and aggrieved by it, the appellant has come up in appeal to this Court.

12. The learned counsel for the appellant, first trying to win clean acquittal for his client on the basis of his argument that the occurrence had remained unwitnessed as the eye-witnesses were not present and the appellant had suffered injuries at the hands of some unknown assailants, has eventually come round to the real position. He submits that the appellant and the deceased, as a result of the land dispute, had fought a pitched dual, resulting in a number of injuries to both and where the deceased unfortunately expired, the appellant luckily survived. In his opinion, it was a case punishable under section 304, Part I, P.P.C. and a sentence of 5 years' imprisonment and some fine would meet the ends of justice.

13. The learned State counsel agrees that the offence falls within the ambit of section 304, Part I, P.P.C. but he insists for 10 years' imprisonment and tine besides compensation under section 544-A, Cr.P.C.

14. Agreeing with the learned counsel for the parties, the conviction of the appellant is altered from under section 302, P.P.C. to the one under section 304, Part 1, P.P.C. As regards his sentence, he is awarded the imprisonment for a period of eight (8) years and a fine of Rs.10,000 or in default of its payment to undergo two years' R.I. The fine, if paid or recovered, shall be paid to the heirs of the deceased to be determined by the learned Sessions Judge, Lahore. Since the amount of fine has been converted into compensation, for its non-payment he shall further undergo six months' R.I. and this amount shall be recoverable from him as arrears of land revenue. As the convict had no justification to pick up quarrel with his brother-in-law (deceased) for demanding the future share of his wife in the inheritance of her father, who was still alive, he is not entitled to the benefits of section 382-B, Cr.P.C.

15. Being on bail, he shall be got arrested by the learned District Magistrate, Lahore, to whom a copy of this judgment should be endorsed, for sending him to the prison for serving his remaining sentence and shall actually send him there, under intimation to Deputy Registrar (Judl.) of this Court. N.H.Q./M-2757/L Order accordingly.