1982 P Cr (PLP)

JAVID IQBAAL, J.-Muhammad Sharif son of Imam Din, aged 45 years, armed with laths, has been convicted under section 302, P. P. C. for the murder of Khurshid Muhammad, aged 40 years, and vide judgment dated 22nd October, 1978 of the Additional Sessions Judge, Faisalabad, was sentenced to death plus fine of Rs. 1,000 or in default to undergo six months' rigorous imprisonment with a direction that if the fine was realized from him, it should be paid as compensation to the heirs of the deceased. Muhammad Shafi co-accused, who was stated to be armed with Gandhala and was nephew of Muhammad Sharif convict was given the benefit of doubt and acquitted. The appeal of the convict as well as Reference for the confirmation of death sentence awarded to him are being taken up and disposed of together by this judgment which shall also dispose of Criminal Revision No. 6 of 1980 against the acquittal of Muhammad Shafi co-accused.

2. The occurrence took place at 7-00 a. m. on 27th February, 1976 in a street of Chak No. 23/GB, at a distance of six miles from Police Station Jaranwala, District Faisalabad. F. I. R. Exh. P. R. was lodged by Allah Din P. W. 7, Salha and Behnoi of the deceased at 1-00 p. m. on the same day and it was recorded by Abdul Majid A. S. I., P. W. 9.

3. The motive for crime, as stated in the F. I. R. is that there were pillars constructed by the appellant in front of his own house for laying a chhappar. A day before the occurrence Mahboob Ali P. W. 6, real brother of the deceased, passed on a cart from the street and in this course one of those pillars was damaged when the cart had struck against it. The appellant is stated to have threatened Mahboob Ali P. W. that if he passed in the same manner again, he would kill him. This motive has been dis believed by the trial Court.

4. The prosecution has produced two eye-witnesses of the occurrence, namely, Allah Din P. W. 7 Salah and Behnoi of the deceased, and Muhammad Shakir P. W. 8, uncle of the deceased being first cousin of his father. Muhammad Yasin, another Behnvi of the deceased was given-up as unnecessary.

5. Both the appellant and the acquitted co-accused wore arrested by the investigating Officer on 28th February, 1976. The appellant got recovered lathi (not blood-stained) P. 4 which was taken into possession vide memo. Exh. P. Q. and the acquitted co-accused got recovered Gandhala (not blood-stained) P. 3 which was taken into possession vide memo. Exh. P. O. Both these recoveries were effected on 28th February, 1975 and are attested by Ismail P. W. 5, who being first cousin of Muhammad Shakir P. W. is uncle of the deceased, Shahab-ud-Din (not produced) and Abdul Majid A. S. I., P. W. 9.

6. In the F. I. R. the occurrence is reported to have taken place in the following manner : On the fateful day Allah Din P. W. alongwith the deceased was going to his land in a cart while the deceased was driving the cart. When they arrived near the house of the appellant and the acquitted co-accused, both of them, armed as described above came there raising lalkaras to the effect that they would not let the cart pass therefrom. Then they attacked the deceased. The appellant gave a laths blow which fell on the head of the deceased and the acquitted co-accused gave a Gandhala blow which fell on the fore-head of the deceased. The deceased fell down on the ground. Then both the appellant and the acquitted co-accused gave further blows with their respective weapons of offence on his back, thumb, leg and ankle. On the alarm of Allah Din P. W. and the deceased, Muhammad Yasin (not produced) and Muhammad Shakir P. W. 8 rushed to the scene of crime and witnessed the same. They then assisted Allah Din P. W. in rescuing the deceased from the hands of the appellant and the acquitted co-accused. The deceased, by this time, had become unconscious. He was taken to Jaranwala hospital and after obtaining medico-legal report about the injuries sustained by him Allah Din P. W. proceeded to lodge the report.

7. The appellant, in his statement before the trial Court, denied the prosecution version as incorrect. He stated that on the day of occurrence the acquitted co-accused was not present and that only he was present in front of his house. The deceased passed by that way alone in a cart which struck against the pillar of his chhappar, and as a result chhappar fell down. He protested against the negligent action of the deceased and placed his hand upon yoke of his bullock for reprimanding him as to why he had damaged the pillar. Thereupon the deceased inflicted two sotas blows on his hand and also jumped over him and started grappling with him. Then he snatched the driving stick from the hand of the deceased and caused one blow upon his back. But the deceased still continued grappling with him. Therefore, he pushed him with his full force towards the cart and in the process his head struck against the cart twice acciden tally. Thus, without any intention of causing injuries to the deceased the appellant, in order to get rid of him had pushed him back and in the process the deceased sustained injuries. However, the complainant party lodged a false F. I. R. against him and his nephew after the death of the deceased. The acquitted co-accused supported this version. It may be pointed out at this stage that the acquitted co-accused had no injury on his person whereas the appellant had injuries on his hand, sustained in the course of the occurrence, and he was medically examined. Muhammad Shafi, acquitted co-accused, had further stated that although he was not present at the time of the occurrence, he had been falsely implicated by the complainant side because there was litigation in respect of certain landed property between the complainant-party and one Msr. Ruqqiyaa, who had, after the death of her husband, marred Mehrban, a relative of the acquitted co-accused whom he had supported during the litigation.

8. Dr. Ahmad Saeed P. W. 1 medically examined the deceased while he was still alive on 27th February, 1976 and found on his person a con tused wound bone-deep on the right side of fore-head, a swelling with contusion on right side of head, a contusion mark on left back, an abrasion on left thumb, another abrasion on the right chin and an abrasion on the right ankle. The patient was unconscious and his condition was very serious. The first three injuries were kept under observation while others were simple. All injuries had been caused by blunt-weapon within six hours. The X-ray report of the injuries hearing the same date indicated that there was fracture of skull under injuries 1 and 2 and consequently the first two injuries were declared as grievous. The patient remained unconscious throughout and died at 11-00 p. m. on 27th February, 1976 in the hospital. The same Medical Officer conducted post-mortem examination on the dead body of the deceased at 8-10 a. m. on 28th February, 1976 and noted the same injuries on his person. Death, in his opinion, was due to haemorrhage and shock and injury to the brain caused by the first two injuries each one of which was individually sufficient to cause death in the ordinary course of nature. On 28th February, 1976 at 4-00 p. m. he medically examined the appel lant and found on his person a contused wound skin deep on left index finger, an abrasion on left middle finger, -another abrasion on left ring finger and an abrasion on the left little finger. All the injuries were simple and were caused by blunt-weapon within 24 to 36 hours. In the cross-examination he stated that the first two injuries on the person of the deceased had caused separate fractures which did not com municate with each other and, therefore, these injuries were the result of separate blows.

9. We have heard learned counsel for the parties and carefully perused the record with their assistance. The only witness of motive produced, in the instant case, is Mahboob Ali P. W. 6, who is real brother of the deceased. However, the motive has been rightly disbelieved in the instant case for the reasons stated in para 12 of the judgment of the trial Court. If Mahboob Ali P. W. had been responsible for damaging the pillar of the appellant, then naturally the appellant had a motive as against him and not against the deceased. Moreover, Mahboob Ali P. W. had stated before the Police that his cart had struck against the pillar in the evening of the day preceding the occurrence whereas in his, statement before the trial Court be gave the time of incident as Assar praying time. In his statement before the police he had only named the appellant for having held out a threat to him and had not named the acquitted co-accused. But before the trial Court he stated that both the appellant and the acquitted co-accused had issued threats to him. It was for these reasons that the trial Court rightly arrived at the conclusion that the version of Mahboob Ali P. W. to the effect that the accused-party had murdered his brother because Mahboob Ali P. W. had damaged their pillar was not convincing at all. Thus, the motive, as set up by the prosecution is not established. It is reasonably probable that the motive was introduced only in order to create an element of premeditation. In this respect the defence version as given by the appellant to the effect that at the time of the occurrence while he was present in front of his house the deceased had passed by that way in a cart which struck against the pillar of his chhappar and led to the occurrence appears more probable. Any way, there is no background of previous enmity between the parties. From the perusal of the record it is evident that the occurrence took place as a sudden flare up. The deceased was driving a cart possibly negligently when it struck against the pillar of the chhappar of the appellant which as a result fell down. This might have led to altercation between them and it was in the course of the same that injuries were caused by the appellant to the deceased. It may be pointed out at this stage that the recovery evidence has no corroborative value because the recoveries, in the instant case, were not blood-stained. The eye-witness account comes from close relation of the deceased, namely, Allah Din P. W. 7 and Muhammad Shakir P. W.

8. It is correct that both these eye-witnesses had no previous background of enmity with the accused party and consequently had no motive to falsely implicate them. However, the fact cannot be ignored that being closely related to the deceased and coming forward as eye-witnesses of the occurrence they exaggerated the version so as to include not only the appellant but also the acquitted co. accused as assailants of the deceased. Learned trial Court, in the instant case, unconsciously applied the principle of sifting of evidence and in the light of evidence on record rightly gave the benefit of doubt to Muhammad Shaft co-accused and acquitted him. The important point which requires consideration is that the appellant had simple injuries on his hand sustained in the course of occurrence possibly in a scuffle/ grappling with the deceased before the fatal injuries were caused to him. This establishes the presence of the appellant on the spot and corroborates the ocular version so far as his participation is concerned. Furthermore, the appellant himself does not deny that he had not participated in the occurrence although he gave his own version of the same. But so far as the acquitted co-accused is concerned, there was no injury on his person and consequently the trial Court correctly arrived at the conclusion by sifting of evidence that there was reasonable probability that he might have not participated in the occurrence. In the light of the above discussion, we are convinced in our mind that the prosecution has succeeded in establishing its case as against the appel lant and, therefore, his conviction under section 302, P. P. C. was quite proper and it is accordingly maintained. It, was vehemently argued by learned counsel for the appellant that the eye-witnesses being close relatives of the deceased were interested witnesses and their testimony should be discarded in the same way as the version about motive of Mahboob Ali P. W. has been disbelieved. He argued on the basis of the version given by the appellant of the occurrence and submitted that the case of the appellant was covered by Exception IV to section 300, P. n. C. His reasoning was that the occurrence had taken place not only in a sudden flare up but also as a sudden fight in the course of which the appellant sustained injuries at the hands of the deceased, and A then in retaliation he caused injuries to the deceased which resulted in his death. It is consequently argued that he could, at the most be convicted under section 304, Part I or II, P. P. C. We have carefully considered this aspect of the case, but we do not agree with learned counsel. The nature of the injuries on the hand of the appellant only indicated that he might have sustained the same in the course of scuffle/grappling with the deceased. Therefore, in our view, it is not a case of sudden fight covered by Exception IV to section 300, P. P. C. But in the light of the evidence on record, as we have observed above, the appellant was rightly convicted under section 302, P. P. C. However, there remains the question of sentence. Since it was a sudden flare up and no element of premeditation was involved and furthermore since due to negligent driving of the cart by the deceased a pillar of, the appellant had been damaged which resulted in a scuffle and thereafter injuries to the deceased we consider the same as a mitigating circumstance and are of the opinion that in the circumstances the awarding of lesser penalty would be sufficient to meet the ends of justice. The result is that the conviction of the appellant under section 302, P. P. C. is maintained but the sentence of death .is altered to that of imprisonment for life. The sentence of fine is maintained. With this modification the appeal is dismissed. In the light of the above discussion, we do not find any substance in the Criminal Revision which is accordingly dismissed. Petition dismissed.