1988 P Cr (PLP)

(3) A contusion 5 " x 1" on the back of lower part of left side of chest. The injuries were caused by blunt weapons and were simple in nature within 24 hours duration.

5. The same doctor conducted the post-mortem examination on the dead body of deceased Ali Muhammad and found the following injuries thereon:- (1) A lacerated wound 1 " x 1/2" x 1/3" deep on the right side of occipital bone of head. (2) An incised wound 3 " x 1/3" x 1/'4" on the left parietal region of head which was 2" above the left ear pinna. (3) A contusion 5" x 2" on the back of right shoulder. (4) A contusion 5" x 2" on the right buttock. (5) A contusion 2 " x 1" on the upper 1/ 3rd of right thigh at its outer aspect. (6) Three contusions 3" x 2" each on the upper middle and lower 1/3rd of left thigh at its outer aspect. (7) A contusion 1" x 1/2" on the back of the left wrist. Underneath injury No.1 the doctor had detected, fracture of right side of occipital bone. There was blood clot over the membrane. The brain was lacerated. He found injury No.1 to be the cause of death while injuries Nos.2 to 7 were simple in nature. All the injuries were ante-mortem. Excepting injury No.2 the remaining were caused with blunt weapon. The probable time between injuries and death was about two hours and between death and post-mortem examination was about 20 hours.

6. At the trial, prosecution case was supported by the eye-witnesses, namely, Muhammad Sharif (PW 9), Muhammad Younas (PW 10), Muhammad Sarwar (PW 12) and Ghulam Ali (PW 13), besides the medical evidence provided by Dr. Ajab Khan Afraidi (PW 1). At the conclusion of prosecution, the accused /appellants when examined under section 342, Cr.P.C., denied the allegations. Ashiq son of Bali (acquitted accused) denied his presence and participation in the occurrence. Bata (appellant) when asked, "why this case against you?" he made the following reply:

"I was tenant of square No.38. The land in dispute long before was sold or leased out to Ali Muhammad deceased and Ali Muhammad deceased wanted to eject me forcibly. I gave an application Ex.DA. on 20-6-1975 to Tehsildar, Fortabbas, against Ali Muhammad deceased 'in this respect. On 22-6-1975 in the morning the Patwari visited the spot and enquired into the matter and submitted his report to the Tehsildar. On the day of occurrence Ali Muhammad deceased alongwith his son Younis P.W. armed with kassi came at the spot while myself alongwith Dost Muhammad co-accused were irrigating our fields, and tried to forcibly eject me by diverting the water. Younis P.W. attacked me while Ali Muhammad deceased attacked with kassi on . Dost Muhammad co-accused which he warded off by raising his hand and the kassi blow of Ali Muhammad hit on the hand of Dost Muhammad accused. During this fight I and Dost Muhammad also inflicted injuries with the back side of our kassis in exercise of our right of private defence of person and property as a result of which both the sides received injuries. After my arrest in this case the son of Ali Muhammad deceased forcibly took possession of the land in dispute. My wife again filed an application in this respect in the Court of Tehsildar which was finally decided in my favour and the restoration of the possession was ordered by the Assistant Collector vide his order dated 1-8-1975. The certified copy of it is Ex.DG. The rest of the accused were not present at the site at the time of occurrence at all and have been involved due to party faction and enmity." Dost Muhammad (acquitted accused) admitted his presence and participation in the occurrence saying that in fact he was attacked and injured and that he with Bata had in the exercise of their right of private defence of person and property caused injuries to the other party. Moonda, Ashiq son of Saleh and Khadim Hussain (appellant) denied their presence but none of them produced any evidence in defence.

7. The learned 'trial Court on consideration of the material on record acquitted Ashiq son of Bali and Dost Muhammad but convicted the rest and sentenced them as indicated above. It may be noted that learned trial Court specifically held that the appellants did not have common intention to kill Ali Mohammad.

8. I have heard learned counsel for the appellants as well as for the State and also perused the record.

9. Learned counsel did not seriously challenge the ocular testimony. He has not objected to the conviction and sentence passed on Moonda and Ashiq son of Saleh (appellants) which to my mind are perfectly justified and are hereby maintained and this appeal to their extent is dismissed.

10. As for Khadim Hussain (appellant) it is contended that he had caused simple injury with hatchet to the deceased. Further stated that section 34, .PPC has not been applied against the appellant and, therefore, he could be convicted for his own individual act and in that perspective he can only be convicted under section 324, PPC. The contention is not without force particularly because Khadim appellant did not repeat the blow and the injury attributed to him was found to be simple-in nature. Consequently, I alter his conviction from section 304, Part II, PPC to section 324, PPC and sentence him to three years' rigorous imprisonment. He is stated to have already been released after serving out his total sentence.

11. As for Bata, appellant, is concerned, he is stated to have caused injury on the head of the deceased which proved fatal. He was, therefore, convicted under section 304, Part-II, PPC and sentenced to 10 years' rigorous imprisonment by the trial Court. Learned counsel appearing for him states that his only grievance that the sentence is excessive. This appellant did not repeat the injury on the head or other vital part of the deceased and the rest of the injuries caused by him were, simple, therefore, while maintaining his conviction under section 304 Part-II, PPC, I am persuaded to reduce his sentence to seven years' rigorous imprisonment. The sentence of fine is, however, maintained. He was arrested on 23-6-1975 and was bailed out by this Court on 28-10-1979. He has, therefore, served out about 4 years and 4 months of sentence. He shall be arrested and sent to jail to serve the remaining sentence. This appeal stands disposed of in the terms indicated above. S . A . / B-33 / L Conviction altered.