1989 PLP 4959 (MLD)

5. Dr. Syed Sajid Ali conducted post mortem examination on the dead body of Mst: Barkat Bibi deceased on 24‑10‑1987 at

10. A.M. and found the following injuries on her body: (1) Circular wound of 1/3" diameter abraded and inverted margins on front of right side of chest, upper part 3" above and lateral to the right nipple. (2) Abrasion 1/4" x 1/4" on tip of the nose. Injury No.1 was grievous and dangerous to life and had been caused by fire arm. Injury No.2 was simple m nature caused by blunt weapon. Dr. Arif Mahmood PW.2 medically examined Muhammad Suleman and Muhammad Malik P.Ws and found one Simple injury on each of them.

6. The prosecution examined Muhammad Suleman P.W. 10 and Muhammad Malik PW. 11 as eye witnesses. Taj Din PW.6 and S.I. Bashir Ahmad PW.12 were examined to prove the recoveries.

7. At the trial, the accused pleaded not guilty to charge. Khushi Muhammad, Waris Ali and Said Bibi stated that they were not present at the spot at the relevant time. Khushi Muhammad and Waris Ali stated that on the day of occurrence they were at Kharian Cantt, adding that the land in dispute was in their occupation and the complainant party wanted to forcibly occupy it. Said Muhammad appellant stated that Khasra No.302 was in his possession since long as a joint owner. He had constructed a Pacca house and used to live there. The complainant party had trespassed into the said land which led to a scuffle between him, Muhammad Suleman and Muhammad Malik. He hurled brick bats to scare them away. Muhammad Sulenjan P.W. who was carrying carbine fired 2/3 shots from it. Mst. Barkat Bibi deceased who had per chance stepped forward was hurt by the carbine shot. Khushi Muhammad and Waris Ali examined Sabir Hussain DW.1 in their defence. According to him both of them had stayed at Kharian Cantt. as guests of Muhammad Boota Naik from 22‑10 1987 to 25‑10‑1987. He also produced certificate Exh. DW1/A issued by Maj. Mumtaz Muhammad Khan in this respect.

8. Relying on the motive and ocular account the learned trial Court convicted and sentenced Khushi Muhammad, Waris Ali and Said Muhammad as described above but acquitted Mst. Said Bibi. Recoveries of the weapons were however, disbelieved.

9. It is contended that the eye witnesses were closely related to the deceased and had been disbelieved in respect of Mst. Said Bibi and should not have been relied on against the appellants without some independent corroboration. It is further stated that the motive was not proved. Instead of the appellants the complainant party had a motive against the appellants because they wanted to take, forcible possession of the land m dispute. The ocular evidence was in conflict with the medical evidence and further that the plea of alibi advanced by Khushi Muhammad and Waris Ali was not given proper consideration. According to Khadim Hussain Patwari PW.8 land measuring 20 kanals and 10 marlas falling in Khasra Nos. 259, 260, 298, 299, 301 and 302 was in the cultivating possession of Muhammad Suleman and Muhammad Malik P.Ws. Khushi Muhammad and Said Muhammad appellants were owners to the extent of 4/7 shares. Khurshid Bibi sister of Khushi Muhammad and Said Muhammad had sold her share of 20 kanals and 10 marlas to Suleman and the mutation of the said sale had been sanctioned on 11‑10‑1986. He also admitted that there was a residential Kotha in Khasra No. 302 but he could not say who owned or resided therein. From the above it stands established that the land in dispute was in the cultivating possession of Muhammad Suleman P.W. This also proves the motive set up by the prosecution that the appellants wanted the complainant party to vacate it. But it would not be out of place to mention here that according to Khadim Hussain Patwari the land was jointly owned by Khushi Muhammad, etc. and there is nothing to indicate that there had been any partition of the land with specific shares of each owner.

10. As regards the occurrence, Muhammad Suleman and Muhammad Malik P.Ws were examined to prove the same. Both of them were injured and the duration of their injuries tallies with that of the deceased. Their presence at the spot cannot thus be doubted. Learned defence counsel has tried to shatter their evidence by the recovery of a pellet from the wound of the deceased. According to him this fact falsifies their version that Said Muhammad had fired a revolver shot at the deceased. Being illiterate persons they might not have been able to distinguish between a revolver and carbine. Since as per FIR only Said Muhammad was said to carry fire arm, there was no question of any confusion in this respect. This circumstance, therefore, does not materially affect the prosecution case. The acquittal of Mst. Said Bibi had no material bearing on the prosecution case because she was empty handed, and only a proverbial Lalkara had been attributed to her. Both the eye‑witnesses have given a consistent and coherent account of occurrence. Muhammad Malik being a nephew of Muhammad Suleman P.W could be expected to be present in his house at the material time. Moreover he is an inured P.W. He has corroborated Muhammad Suleman P.W on all material points. The plea of alibi advanced by Khushi Muhammad and his son Waris Ali was rightly discarded by the learned trial Court because Muhammad Boota Naik, their host at Kharian Cantt. was not examined. Furthermore the officer who had issued the certificate Exh.DW.1/A was also not examined. In all probability the occurrence took place on account of the visit of Khushi Muhammad and his brother Said Muhammad to their land. Since there had been no partition of land between the various owners Khushi Muhammad and Said Muhammad might have gone there innocently. On the objection raised by the complainant party to their visit hot words must have been exchanged between them leading to the present occurrence. Being co‑owners Khushi Muhammad and Said Muhammad could not be said to be the trespassers. Since the quarrel ensuing between the parties was sudden and without premeditation, therefore, each accused would be individually liable for his act. They did not act in a cruel or unusual manner or took undue advantage of the situation. One simple injury each was caused to Muhammad Suleman and Muhammad Malik P.Ws with a blunt weapon while only one fire arm injury was caused to the deceased. Muhammad Suleman and Muhammad Malik P.Ws though present at the spot were not fired at. The fatal injury to the deceased is attributed to Said Muhammad appellant while the injuries of Muhammad Suleman and Muhammad Malik P.Ws are attributed to Khushi Muhammad appellant only. I, therefore, alter the conviction of Said Muhammad appellant from section 302/34 P.P.C. to 304 Part II P.P.C. and sentence him to ten years' R.I. plus a fine of Rs. 7000.00 or in default to undergo two years' R.I. with benefit of section 382‑B, Cr.P.C. The fine if recovered shall be paid to legal heirs of Mst. Barkat Bibi deceased. His convictions and sentence under section 323/34 PPC is set aside. Khushi Muhammad appellant is convicted under section 323 P.P.C. and sentenced to the period of imprisonment already undergone by him plus a fine o Rs.500.00 or in default to undergo one month R.I. for the hurt caused to Muhammad Malik P.W. He, is acquitted of the charge under section 323/34 P.P.C. for causing injuries to Muhammad Suleman P.W. as the same are not characteristic of Dang blow and might have been suffered by a fall or brickbat. The fine, if recovered shall be paid to Muhammad Malik P.W. as compensation. He is acquitted of the charge under section 302/34 P.P.C. Waris Ali accused is acquitted of the charges, for, he is not alleged to have caused injury to anybody. Moreover, his name does not find mention in the F.I.R. The appeal is disposed of in the above terms. S.A.K/207/L Order accordingly.