1975 P Cr (PLP)

Dil Muhammad (45), his brother Muhammad Ali (33) and their per sonal servant Muhammad Shafi (27), appellant, were convicted under section 304/34, P. P. C. and sentenced to transportation for life by the Additional Sessions Judge, Lahore, vide his order dated 19-6-1971, for causing the death of Fazal Din. They have filed this appeal against their conviction and sentences.

2. The prosecution case as disclosed by Fazal Din (deceased) is as follows, After the Partition of the country he alongwith his family settled Mauza Keer Khurd. His real brother Umar Din was temporary allotted Khasra No. 397, measuring 31 kanals and he was allotted 8 kanals and 1.0 marlas of land on temporary basis out of which 4 kanals and 10 marlas were in forcible occupation of his brother Urnar Din but he was paying the land revenue. A case was pending in the Court of Malik Khurshid Ahmad, ADC (R) Lahore and the next date of hearing was 3-9-1969, The relations between Fazal Din (deceased) and his brother Umar Din were strained, On the day of occurrence, I.e., 31st of August 1969. Fazal Din (deceased) went to the office of the Patwari, who was not available and at about 12-midday, he was passing in front of the gate of the Haveli of his brother t1mar Din when all of a sudden Dil Muhammad alias Dillo appellant ,caught hold of him from behind. Muhammad Ali and Muhammad Shafi appellants caught hold of the legs of Fazal Din and they bodily lifted him and carried him inside the Haveli. Fazal Din raised hue and cry and all the three appellants belaboured him. Din Muhammad appellant was armed with an iron Wadan (hammer) (P. 4), and Muhammad Ali accused had a 'akwa (P. 3) while Muhammad Shafi had a dang (P. 5). All the accused inflicted as many as 23 injuries on the person of Fazal Din with their respective weapons. Din Muhammad and Muhammad Shafi accused then opened the door of the Haveli and came out. Din Muhammad had a gun (P. 2) with him while hammer was with Muhammad Shafi accused. They soared away the people who had gathered in front of the gate. Muhammad Ali accused, however, remained inside after closing the gate. The occurrence was witnessed by Bashir Ahmad (P. W. 12), Mss. Sardaran (P. W. 13), Sher Muhammad (P. W. 14). Ali Muhammad (P. W. 17) and Allah Din (P. W, 15). The statement (Exh. P. B.) of Fazal Din was recorded by S. I. Nazir Hussain (P. W. 19) at the spot on 31st of August 1969 at 1-40 p.m. and the formal F. I. R. (Exh. P. B./1) was recorded at P. S. S out the Cantt. Lahore, by A. S. I. Tayyub Ahmad (P. W. 8), on the same day at 2-15 p.m., at a distance of 1 j< miles from the spot. S.1. Nazir Russain (P. W. 19) recorded the statement (Exh. P. 13.) which is the dying declaration of the deceased. He prepared the injury statement and took into possession blood-stained earth from the Haveli of Dil Muhammad accused. He also took into possession blood-stained string P. 10/1-2, brick (P. 6), Sohage (P. 7) and tractor (P. 9). Muhammad Ali accused under arrest got recovered Takwa (P. 3), from the bathak of the HAveli, which was blood-stained. On 7-9-1969, Muhammad Shafi while in custody got recovered lathi (P. S) from a room of the Haveli. On 9-9-1969 Dil Muhammad accused got recovered Wadan (hammer) (P. 4) from the mosque near their hoaselCothu. Dil Muhammad accused also got recovered gun (P. 2) from the northern side of the same mosque. These recovery memos were attested by Sardara (P. W. 18), Khushi Muhammad (given up) besides the Sub-Inspector. According to the report (Exh. P. X.) of the Serologist, two pieces of ropes, earth, brick-bat, Takwa, stick (sots) and hammer, were stained with human blood.

4. Dr. Nasser Ahmad, on 31-8-1969 at 4-15 p.m., medically examined Fazal Din and found as many as 23 injuries. All the injuries were caused by blunt weapon, within six hours. The injured was shocked, semi conscious and vomiting. Ho expired on the same day. Injuries 7 and 15 were declared grievous and dangerous and the rest were kept under observation.

5. Dr. Nusratullah, on 1-1-1 969, at 3 p.m., conducted the post-mortem examination on the dead body of Fazal Din and found the same number of injuries as noticed by Dr. Naseer Ahmad. The cause of death in tile opinion of the doctor was shock and haemorrhage caused by multiple fractures due to injuries 1, 2, 7, 11, 12, and 19, which were sufficient in the ordinary course of nature to cause the death. All the injuries were anti mortem and caused by a blunt weapon fine between injuries and death was within few hours and between death and post-mortem was within 21 hours. In the cross-examination the doctor had admitted fitted that none of the fractures on the body of the deceased was on the vital part. The fractures were not sufficient to cause death individually but they were sufficient to cause death in the ordinary course of nature collectively.

6. The appellants denied their guilt. Dil Muhammad appellant stated that the deceased had come to take away the tractor from Haveli alongwith another man. They had started the tractor when his men two or three in number present inside the Haveli tried to stop them. Fazal Din fell in front of the tractor and his companion escaped. Dil Muhammad' semen belaboured him with dangs. He and Shafi had gone to inform the police but they could not find out the S. H. O. and they returned back and came to know that a report had been lodged against them. They denied that Exh. P. B. was the statement for the deceased. They further asserted that the deceased had enmity with other adjoining owners because he wanted to forcibly keep the lands of the others. They produced Mehdi Khan Malik as D. W. 1.

7. The learned Additional Sessions Judge relying on the dying declaration, motive, ocular evidence medical evidence and the recoveries, convicted and sentenced the appellants, as stated earlier. (8)1 have heard the learned counsel for the appellants and also the learned counsels appearing for the State and have gone through the evidence on record with their help. Learned counsel for the appellants contended that the motive is not proved because the Investigating Officer never probed into the matter about the land measuring 8 kanals and 10 marlas which had been temporarily allotted to the deceased any case was pending before the ADC (R), Lahore and this fact has been admitted by the Investigating Officer. Moreover, I find that Manzar Abbas Patwari (P. W. 11) had stated in his cross-examination that the deceased was not allotted 8 kanals and 10 marlas of land in Khasra No. 397-Min. An area of 4 kanals and 10 marlas was allotted to Fazal Din deceased which was in his possession and under his cultivation, as per record. So the motive in this case remains unproved.

9. Learned counsel for the appellants contended that the dying declaration could not be relied upon because Mst. Sardaran P. W. 13 has admitted that the deceased was unconscious, he was given water and after which he regained consciousness. But this fact is controverted by other eye-witnesses and, the Investigating Officer. No such question has been put to the doctor as to whether the deceased could remain in senses after the receipt of the injuries. So the inference would be that the deceased was in senses when be made the dying declaration in which he bas fully implicated the appellants and has also named the eye-witnesses except Allah Din (P. W. 15), Moreover, I find that the dying declaration was recorded by the Investigating Officer soon after reaching the spot. So I hold that it was the statement of the deceased which was recorded by the Investigating Officer.

10. The ocular evidence has been furnished by Bashir Ahmad (P. W. i_-), a relation of the deceased: Mst. Sardaran (P. W. la), wife of the deceased, Sher Muhammad (P. W. 14) brother of the deceased, Allah Dia (P. W. l :) and Ali Muhammad (P. W. 17), relations of the decease;. All these eye-witnesses, though related to the deceased, 1st their testimony could not be discarded because they are residents of the village and art, also relate to Dil Muhammad and Muhammad Ali appellants, tile deceased being their paternal-uncle. All these witnesses have seen the occurrence and nothing has been or ought out in their cross-examination to discredit their testimony. Moreover, I find that the deceased was found lying injured in the Haveli of Dil Muhammad and Muhammad Ali appellant. So it were the appellants to explain the presence of the deceased inside their Haveli.

11. Lastly it was urged by the learned counsel for tile appellant; that even if the participation of the appellants in this assault on Fazal Din deceased is considered to be proved, even then the offence cannot go beyond that under section 3 5/34, P. P. C. The medical evidence is that the deceased died of shock and haemorrhage caused by multiple fractures of seven ribs. The doctor who performed the post-mortem examination has said that none of the fractures on the body of the deceased was on vital part. The fractures were not sufficient to cause death individually but they were sufficient to cause death in the ordinary course of nature collectively. Upon the above discussion it is not possible to attribute any particular injury to any individual assailant. It is not possible to say that any particular injury was the direct cause of death and 1 find it difficult under the circumstances to hold that the common intent of the assailants must have been to cause such injury as they knew as likely to result in death. Under these circumstances it seems to me that it is not safe to convict the appellants for the offence of murder. The whole of the circumstances are such as to lead to the conclusion that tide appellants formed a common intent to attack Fazal Din and cause him at least grievous hurt and they in fact caused him grievous hurt. All the injuries had been caused by blunt weapon and are not on the vital part of the body.

12. As a result of this discussion I alter the conviction of the appellants from section 301, P. P. C. read with section 34, P. P. C. to section 325/34, P. P. C. and sentence each of them to suffer R. 1. for seven years and a fine of Rs. 1,000 each instead of life imprisonment. The amount of fine, if realised, be paid to the heirs of the deceased as com pensation under section 544-A, Cr. P. C. and in case of default of payment of fine, each one of them shall suffer further R. t. for one year. The appeal stands accepted to the above extent. Order accordingly,