1994 P Cr (PLP)

Saleem Shad for the State. Date of hearing: 30th November, 1992. Habib Ullah son of Riaz, Sarwar Bashir and Shaukat sons of Meher Din were tried for the charge under section 307/34, P.P.C. by the learned Magistrate Section 30, Gojra who vide his judgment, dated 27-10-1991 convicted the appellants and sentenced them to seven years' R.I.

2. The prosecution case in brief as disclosed in the F.I.R. lodged by Abdul Ghani complainant is that in the night between 20th and 21st June, 1986, Muhammad Iqbal, his son and Muhammad Iqbal son of Sardar Ali, his nephew were present at their Dera to look after the animals when at 1-1/2 a.m. Sarwar and Habib Ullah armed with hatchets and the other two empty-handed appeared at the scene. Sarwar and Shaukat caught hold of Muhammad Iqbal injured from his hands and Bashir from his legs whereas Habib Ullah gave a hatchet blow on his neck and as a result thereof his throat was cut. Nisar Ahmad was also attracted to the place of occurrence. On receiving information about the occurrence complainant reached the spot and removed the injured to Civil Hospital, Gojra but the patient was referred to Civil Hospital, Faisalabad. The injured was in a bad condition and therefore, he was immediately removed to Faisalabad. The motive, stated was a dispute between Habib Ullah and the complainant with respect to a piece of land and trees. Proceedings under section 107/151, Cr.P.C. were also initiated and Habib Ullah accused was bound down for a period of one year. Sarwar appellant and Muhammad Iqbal injured had a scuffle, a few days earlier. The appellant having grudge against the injured had attacked him. Muhammad Ibrahim Khan, Inspector/S.H.O. P.W.7 arrested the accused and recovered hatchets, at the instance of Sarwar and Habib Ullah appellants. After completing the usual investigation the challan was submitted by him.

3. The prosecution produced Muhammad Iqbal injured P.W.4 and Muhammad 1qbal, his first cousin P.W.3 as eye-witnesses of the case. Complainant appeared as P.W.1. Apart from the ocular account, the prosecution also placed reliance on the evidence of medical and motive. The appellant denied the charge taking the plea of false implication.

4. The learned counsel for Habib Ullah appellant contends that Abdul Ghani P.W.1 is inimical to Habib Ullah. The enmity over the matter of land and trees is admitted and further the initiation of proceedings under section 107/151, Cr.P.C. was the cause of grievances. He further contends that Habib Ullah appellant is Mughal by caste and has no connection with the other appellants who are Taili by caste, therefore, there seems no reason to join hands with each other. Next contended that according to the injured he was sleeping when received injuries. He, therefore, could not claim while sleeping to see the accused, thus it is not known as to who caused the injuries. He further submitted that Muhammad Iqbal son of Abdul Ghani was sleeping at some distance and reached at the spot subsequently. He lastly argued that the eye-witness account of the case is not confidence inspiring hence it would not be safe to rely upon the same for the purpose of conviction. The learned counsel for the remaining appellants adopting the argument of Khawaja Haris Ahmad added that Sarwar, Shaukat and Bashir appellants have not been attributed any injury to the deceased and as they are empty-handed, the case against them does not appear free from doubt.

5. The learned counsel for the State has supported the conviction and contended that injured P.Ws. have categorically supported the prosecution case which is further corroborated by independent evidence available on the record.

6. I have heard the learned counsel for the parties and have perused the record.

7. It is an admitted fact that there was a dispute between the injured and Habib Ullah appellant over a piece of land and that proceedings under section 107/151, Cr.P.C. were initiated earlier to the occurrence for which matter, the appellant nursed grudge and attacked the injured. The motive, no doubt, is a double-edged weapon but in the present case Habib Ullah appellant was aggrieved of the situation and not the injured and, therefore, it cannot be said that the injured introduced false motive against the appellant.

8. The occurrence took place at the Dera of injured who alongwith Muhammad Iqbal son of Sardar Ali was there to look after his cattles. Both the P.Ws. no doubt were sleeping at short distance from each other when attacked but the evidence on record does not suggest that they remained sleeping throughout, rather it is clear from the evidence that both the P.Ws. on the arrival of the appellant awoke and therefore, the contention of the learned counsel that it was not possible for the injured to identity as to who caused injuries to him in the circumstances is without any force and misconceived. Muhammad Iqbal injured was put a specific question by the defence that the injury was caused to him by Muhammad Sarwar and not Habib Ullah which he denied. Therefore, the causing of injury by Habib Ullah with his identification is free from all doubts. Both the P.Ws. are natural witnesses of the occurrence and there seems no reason with them to drag the appellant in a false case. 9.???????? However, it is in the evidence that Muhammad Sarwar was inimical towards Ghulam Nabi complainant of the case. Shaukat and Bashir are real brothers of Sarwar who was armed with hatchet but has not been attributed any injury. Shaukat and Sarwar were attributed the role of catching the injured empty-handed and without which it would have been easy to cause injuries to the deceased, therefore, it looks highly doubtful that deceased was caught by A Shaukat and Sarwar appellants or they with Sarwar would join Habib Ullah in commission of offence in absence of any special reason. Keeping in view the circumstances, the case against Shaukat, Sarwar and Bashir is not free from doubt. The appeal to their extent is, therefore, accepted, their conviction and sentence is set aside and they are acquitted from the charge. They are on bail and discharged from the bonds.

10. However, the case against Habib Ullah stands on different footing as the fatal injury is attributed to him and injured has categorically deposed against him. The medical evidence and the recovery of hatchet from him further supports the prosecution case.

11. For the foregoing reasons, his appeal fails. The learned trial Court has neither awarded him sentence of fine nor the compensation to the injured as 8 provided under section 544-A, Cr.P.C. The learned counsel for the appellant has submitted that appellant has faced agony of trial for a period of five years and that the sentence of imprisonment may be reduced by awarding adequate compensation to injured. He also accepts notice for imposition of sentence of fine to the appellant. While giving a considerable thought to the matter, I reduce the sentence of the appellant to three years' R.I. with the direction to pay Rs.45,000 as compensation to the injured, in default thereof to undergo R.I. for two years. The appellant is imposed sentence of fine of Rs.5,000 and in default thereof to undergo six months' R.I. The amount of fine, if recovered, shall also be paid to the injured as compensation. I do not consider it a fit case to extend the benefit of section 382-B, Cr.P.C. as the injury caused to the injured in fact has caused serious damage to him which cannot be compensated either in terms of money or otherwise. The prayer for grant of benefit of section 382-B, Cr.P:C. is, therefore, rejected. With this modification in sentence, this appeal is dismissed. N.H.Q./S-497/L????????????????????????????????????????????????????????????????????????????????? Order, accordingly.