1993 P Cr (PLP)

(2) An abrasion on outer side of right buttock 1 c.m. x 1/2 c.m. On internal examination it was found that both the parietal bones of skull were cut corresponding to injury No.l. Membranes, brain, spinal cord and menenges were also cut. According to the information of the doctor the death had occurred due to shock and haemorrhage as a result of injury No.1 which was sufficient to cause death in the ordinary course of nature. The injury had been caused with a sharp-edged weapon and was ante-mortem. Exh.P.H. is the post-mortem examination report while Exhs.P.H./1 arid P.H./2 are diagrams showing the location of injuries.

5. The accused were formally charged under section 302/34, P.P.C. They pleaded not guilty and claimed trial.

6. The prosecution examined twelve witnesses in support of its case including the three eye-witnesses namely Jalal Din P.W.5, Ahmad Khan P.W.6 and Allah Ditta P.W.7.

7. After the conclusion of the prosecution evidence the statements of the accused were recorded under section 342, Cr.P.C. All the three accused made almost similar statements. Their version is contained in the statement of Muhammad Sharif accused. it has been adopted by his-co-accused and is as follows:- .... The real fact is that on 2&12-1982 at 4/5 p.m. Allah Ditta alias Allu P.W. and Bodi deceased were grazing goats near Burgi No.101 Rajba Niazbaig at Upper Bari Doab Canal and were cutting branches of the trees standing on the bank of the canal and feeding to their goats. Shaman accused who is Baildar in the Irrigation Department checked them from cutting branches of the trees but they refused. Then Shaman accused strongly stopped them from cutting branches then they were provoked and they with intention to kill armed with Takwas attacked Shaman accused. Choohar alias Bodi deceased delivered Takwa blow from wrong side which hit Shaman accused's left forearm. Shaman accused raised hues and cries. Ghulam Muhammad my co-accused who was cutting fodder nearby was attracted to the place and grappled with Choohar alias Bodi. Allah Ditta alias Allu with intention to kill delivered Takwa blow which hit Ghulam accused on his head. In the meanwhile Jalal Din P.W. and one Kairoo armed with Dangs came over there. They started delivering Dangs blow to Shaman and Ghulam Muhammad my co accused. Ghulam Muhammad accused received injuries on his right arm right forearm and back. Then Kairoo and Jalal Din P.W. attacked Shaman accused with Dangs and thus Kairoo had caused injuries on right shoulder and right forearm of Shaman accused. Jalal Din P.W. delivered blows which hit on left shoulder and left hand of Shaman accused. Allu P.W. was going to deliver second blow to Ghulam Muhammad accused but that blow fell on Choohar alias Bodi instead of Ghulam Muhammad as at that time both were grappling with each other. Choohar alias Bodi subsequently died because of that injury. Ghulam Muhammad and Shaman my accused raised alarms whereupon Jalal Din son of Shamas, Bashir, Ilyas were attracted to the place and had witnessed the occurrence. I at that time was not present."

8. The accused denied having led to incriminating recoveries of the weapons of offence namely Takwa P.8 and Sota P.7. Ghulaman accused also made a statement under section 340; Cr.P.C. on oath.

9. After considering the evidence on record the learned Additional Sessions Judge, Kasur vide judgment dated 19-11-1985 acquitted Ghulaman and Shaman accused while Muhammad Sharif accused was convicted under section 304 (Part II), P.P.C. and sentenced to seven years' rigorous imprisonment and a fine of Rs.1,000 or in default thereof to further undergo six months rigorous imprisonment. Benefit of section 382-B, Cr.P.C. was also extended to him.

10. Muhammad Sharif accused did not appeal against his conviction and has already undergone his sentence.

11. Jalal Din complainant, however, has lodged a revision petition, which I propose to dispose of by this judgment, for the enhancement of the sentence of Muhammad Sharif accused. He had also challenged the acquittal of Ghulaman and Shaman accused but the revision petition was admitted by my learned brother Sardar Muhammad Dogar, J. only to consider the desirability of the enhancement of sentence and amount of payment of compensation by Muhammad Sharif accused. So, the only question involved in the present revision petition is as to whether this is a fit case for the enhancement of the sentence of Muhammad Sharif accused.

12. I have heard the parties learned counsel and have also gone through the record.

13. In the F.I.R. six witnesses namely Jalal Khan, Nazir, Ahmad, Allah Ditta, Muhammad Munir and Majid Khan were cited as eye-witnesses of the occurrence out of whom only Jalal Din P.W.5 (the father of the deceased) Ahmad P.W.6 and Allah Ditta P.W.7 (the two nephews of Jalal Din) were examined. They have supported the prosecution case.

14. Muhammad Sharif accused is the son of Ghulaman accused and nephew of Shamman accused. So, they are closely related inter se.

15. According to the medical evidence a sharp-edged weapon injury on the head of the deceased had caused his death. In other words this is a case of single injury. According to the prosecution version this injury was inflicted on the head of the deceased by Muhammad Sharif accused. Conversely the stance of the accused is that he was not present at the time and place of occurrence and that the said injury had been caused by Allah Ditta alias Allu P.W.7 who actually wanted to hit Ghulaman accused who was grappling with the deceased but accidentally the Takwa blow landed on the head of the deceased.

16. It is to be examined if there is some material on record to justify enhancement of the sentence awarded to Muhammad Sharif accused. The learned trial Court has held him guilty of culpable homicide not amounting to murder and has sentenced him under section 304, P.P.C. Part II. After going through the evidence on record I am satisfied that the conclusion drawn by the learned trial Court was fully justified. The accused was very much present at the time and place of occurrence and had caused the fatal Takwa blow on the deceased. The prosecution has attributed motive to him to show that the killing in question was premeditated. According to the F.I.R., the contents of which have been narrated by Jalal Din P.W.5 before the trial Court, a month before the occurrence paddy belonging to the complainant was stolen from his Dhari and the accused were suspected of stealing it. According to him a Panchayat was convened and Sardar Bashir Ahmad a resident of the village had imposed a fine of Rs.500 on all the three accused as a result of which they were annoyed with him On this point the solitary statement of the complainant finds no corroboration. At least, any member of the Panchayat, who had heard the dispute between the parties, should have been examined as a witness. Sardar Bashir Ahmad, who allegedly pronounced verdict on behalf of the Panchayat, could have been easily produced in Court in. support of the allegation raised by the complainant but this has not been done. In the absence of any such evidence it is very hard to believe this part of the prosecution story. Consequently, I have no hesitation in holding that the accused had no motive to kill the deceased.

17. From the facts narrated in the F.I.R. it is abundantly dear that the initial quarrel. between Shamman accused and Bodi deceased was abrupt and sudden. The deceased was grazing his goats on the canal bank and Shamman accused, who was a Baildar in the Canal Department, forbade him from cutting the branches of the trees on which an altercation took place between them. The deceased was so aggressive that instead of exercising restraint he gave a Takwa blow on the leg of Shamman accused who raised alarm. Ghulaman and Sharif accused, who were working in the nearby fields, rushed to the place of occurrence. When they reached there Bodi deceased gave a Takwa blow from its blunt side on the head of Ghulaman accused. It was after that that Sharif accused hit the deceased with a Takwa on his head. From the aforementioned narration of facts which forms the basis of the prosecution case, it is manifestly clear that there was no premeditation and the occurrence had started all of a sudden. It is also abundantly indicated that Bodi deceased had shown unnecessary and undue aggression. Sharaman accused, who was a Baildar in the Irrigation Department, was justified in asking the deceased not to cut branches from the trees growing on the canal bank. Instead of being reasonable, the deceased took to aggression and injured Shamman accused. On the alarm raised by the latter his brother Gholaman and nephew Sharif accused, who were working in the nearby fields, rushed to the place of occurrence to rescue their co-accused a close relative. The deceased was not deterred. He gave a Takwa blow from blunt side on the head of Ghulaman accused. In these circumstances Sharif accused was justified under the law to inflict injury on him to save the lives of his father and paternal-uncle. He did, not repeat the injury which indicates that actually he did not intend to cause the death of the deceased. In these circumstances, he could not be held guilty of murder. Learned trial Court had rightly held him guilty of culpable homicide not amounting to murder. His conviction under section 304, Part 11, P.P.C. was justified in the circumstances of the case. The sentence awarded to him is also adequate. The circumstances appearing on record do not justify any enhancement in the said sentence. There a no merit in this revision petition which is &missed. N.H.Q./M-987/L Revision petition dismissed.