(a) Penal Code (XLV of 1860)--
---Ss. 302, 323 & 148/149--Accused attributed simple injury given to deceased and not charged of sharing common intention with co-accused--Accused not repeating blow--Conviction and sentence altered from under Section 304, Part II, P.P.C. to S. 304, P.P.C, in circumstances.
(b) Penal Code (XLV of 1860)--
--Ss. 302, 323 & 148/149--Quantum of sentence--Accused attributed fatal injury on head of deceased--Rest of injuries found simple--Accused not repeating injury on head or any other vital part--Conviction under S.304, Part II, P.P.C. maintained but sentence of 10 years' R.I. was found excessive which was reduced to seven years' R.I. in circumstances.
A.R. Tayyab for Appellants.
Shaheen Masood Rizvi for the State.
JUDGMENT
Bata, Moonda, Ashiq son of Saleh and Khadim Hussain were tried alongwith Ashiq son of Bali and Dost Muhammad (since acquitted by Sessions Judge, Bahawalnagar, on charges under sections 148, 302/149 and 323/149, PPC. Learned trial Court, vide judgment dated 30-8-1978, convicted Bata and Khadim Hussain under section 304 Part-II, PPC and sentenced each of them to 10 years' rigorous imprisonment and a fine of Rs.1,000 or in default to undergo 1 year's rigorous imprisonment, while Moonda and Ashiq son of Saleh were convicted under section 323, PPC and sentenced to 4 months' rigorous imprisonment and a fine of . Rs.200 each, or in default of payment of fine to further undergo rigorous imprisonment for 1 month. It was also directed that the fine if recovered shall be paid to the heirs of Ali Muhammad, deceased, as compensation under section 544-A, Cr.P.C. Feeling aggrieved the convicts have filed the instant appeal challenging their conviction and sentence.
2. The occurrence took place on 22-6-1975 at 11 a.m., in the area of Chak No. 41 / 3-R within the local limits of Police Station Dahranwala and report Ex.PA was made by Muhammad Sharif (PW 9) son of Ali Muhammad (deceased) in Chak No.42/3-R to SI Rashid Ullah Khan (PW 14), the same day, at 1 p.m.
3. The prosecution case as disclosed at the trial by Muhammad Sharif (PW 9) is that Ashiq son of Bali (acquitted accused) and Sadiq jointly owned Square No.37 in Chak No.41/3-R, half of which was under lease with Ali Muhammad (deceased). Under a mutual agreement Ali Muhammad vacated 121 Acres of land in Square No.37 and against this purchased 6 Killas and few Kanals of land from Sadiq in Square No.38 and another 6 Killas he got on lease. Mutation of sale was sanctioned and about 21 months before the occurrence they obtained physical possession of said land and sown crop thereon. On the day of occurrence the deceased alongwith the witness (complainant) and Muhammad Younas (injured PW) were irrigating their land at about 11 a.m., when Ashiq, son of Bali, Dost Muhammad (both acquitted), Bata, Moonda, Ashiq son of Saleh and Khadim Hussain (appellants) came there. At that time, Khadim Hussain was armed with hatchet and the rest with Lathis. Ashiq son of Bali shouted at them saying that they should not cultivate the land and that the same would be cultivated by previous- tenant Bata. Ali Muhammad(deceased) replied that he had purchased 6 Killas and the other 6 Killas he had obtained on lease and had sown crop thereon 2 months ago, therefore, how can he now hand over that land to the previous tenant Bata for cultivation. At this Dost Muhammad snatched Kassi from the hands of Ali Muhammad and in the process he got his hand slightly injured. The accused party then diverted the flow of water. Ashiq son of Bali started abusing Ali Muhammad and said that he would not allow them to cultivate the land. Ali Muhammad (deceased) reiterated that he had purchased the land by paying Rs.36,800 and had also paid a sum of Rs.5,000 as lease money and had obtained its possession, therefore, he cannot be dispossessed. At this, Khadim Hussain (appellant) suddenly gave a hatchet blow on the back side of the head of Ali Muhammad. Then Bata (appellant) gave a Sota blow on his head as a -result of which he fell down. All the accused, therefore, gave further blows to him. He (the witness) and Muhammad Younas PW raised alarm and also intervened. Ashiq son of Saleh and Moonda gave Sota blows to Muhammad Younas PW. Their alarm attracted Arif and Sarwar PWs to the spot who also witnessed the occurrence. The accused party then ran away. Ali Muhammad died after about half an hour of the occurrence. Leaving the dead body in the custody of the witnesses, the complainant (Muhammad Sharif) went to the police station for report but in the way he met SI Rashid Ullah Khan PW in Chak No.42/3-R where he was present in connection with investigation of a case under section 147, Cr.P.C. The Sub-Inspector recorded his statement Ex.PA and sent the same to the police station for formal registration of the case and himself proceeded to the spot. He prepared the injury statement Ex.PR/3 and inquest report Ex.PR/'1 of Ali Muhammad (deceased) and sent the dead body for _ post-mortem examination under police escort. He then prepared the injury statement Ex.PS/2 of Muhammad Younis (PW 10) and sent him to the hospital for medical examination and treatment. He arrested Bata (appellant) on 23-6-1975 who led to the recovery of blood-stained Dang P.4 from his A/a which was taken into possession under memo Ex.PF. Khadim Hussain and Moonda (appellants) were arrested on 24-6-1975. Khadim Hussain led to the recovery of blood-stained hatchet P.7 from his Kothri and Moonda got recovered Soti P.8 from his cattleshed which were taken into possession vide memos Exs.PJ and PK respectively. On 27-6-1975 he took into possession an application of Bata Ex.PU from Muhammad Afzal Patwari. He also secured report No.232 Ex.PY and after completing the investigation challaned them to Court. It may be mentioned that the Dang P.4 and hatchet P.7 were found to be stained with human blood vide reports Exs.P2 and P4 of the Chemical Examiner and the Serologist, respectively.
4. Dr. Ajab Khan Afraidi (PW 1) medically examined Muhammad Younis PW on 23-6-1975 at 10.15 a.m., and the following injuries on his person:-
(1) A contusion 2" x 1" on the front of right thigh at its lower third.
(2) An abrasion 1/4" x 1/4" on the inner aspect of left forearm at the middle 1/3rd.
(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 / LConviction altered.
Bata, Moonda, Ashiq son of Saleh and Khadim Hussain were tried alongwith Ashiq son of Bali and Dost Muhammad (since acquitted by Sessions Judge, Bahawalnagar, on charges under sections 148, 302/149 and 323/149, PPC. Learned trial Court, vide judgment dated 30-8-1978, convicted Bata and Khadim Hussain under section 304 Part-II, PPC and sentenced each of them to 10 years' rigorous imprisonment and a fine of Rs.1,000 or in default to undergo 1 year's rigorous imprisonment, while Moonda and Ashiq son of Saleh were convicted under section 323, PPC and sentenced to 4 months' rigorous imprisonment and a fine of . Rs.200 each, or in default of payment of fine to further undergo rigorous imprisonment for 1 month. It was also directed that the fine if recovered shall be paid to the heirs of Ali Muhammad, deceased, as compensation under section 544-A, Cr.P.C. Feeling aggrieved the convicts have filed the instant appeal challenging their conviction and sentence.
2. The occurrence took place on 22-6-1975 at 11 a.m., in the area of Chak No. 41 / 3-R within the local limits of Police Station Dahranwala and report Ex.PA was made by Muhammad Sharif (PW 9) son of Ali Muhammad (deceased) in Chak No.42/3-R to SI Rashid Ullah Khan (PW 14), the same day, at 1 p.m.
3. The prosecution case as disclosed at the trial by Muhammad Sharif (PW 9) is that Ashiq son of Bali (acquitted accused) and Sadiq jointly owned Square No.37 in Chak No.41/3-R, half of which was under lease with Ali Muhammad (deceased). Under a mutual agreement Ali Muhammad vacated 121 Acres of land in Square No.37 and against this purchased 6 Killas and few Kanals of land from Sadiq in Square No.38 and another 6 Killas he got on lease. Mutation of sale was sanctioned and about 21 months before the occurrence they obtained physical possession of said land and sown crop thereon. On the day of occurrence the deceased alongwith the witness (complainant) and Muhammad Younas (injured PW) were irrigating their land at about 11 a.m., when Ashiq, son of Bali, Dost Muhammad (both acquitted), Bata, Moonda, Ashiq son of Saleh and Khadim Hussain (appellants) came there. At that time, Khadim Hussain was armed with hatchet and the rest with Lathis. Ashiq son of Bali shouted at them saying that they should not cultivate the land and that the same would be cultivated by previous- tenant Bata. Ali Muhammad(deceased) replied that he had purchased 6 Killas and the other 6 Killas he had obtained on lease and had sown crop thereon 2 months ago, therefore, how can he now hand over that land to the previous tenant Bata for cultivation. At this Dost Muhammad snatched Kassi from the hands of Ali Muhammad and in the process he got his hand slightly injured. The accused party then diverted the flow of water. Ashiq son of Bali started abusing Ali Muhammad and said that he would not allow them to cultivate the land. Ali Muhammad (deceased) reiterated that he had purchased the land by paying Rs.36,800 and had also paid a sum of Rs.5,000 as lease money and had obtained its possession, therefore, he cannot be dispossessed. At this, Khadim Hussain (appellant) suddenly gave a hatchet blow on the back side of the head of Ali Muhammad. Then Bata (appellant) gave a Sota blow on his head as a -result of which he fell down. All the accused, therefore, gave further blows to him. He (the witness) and Muhammad Younas PW raised alarm and also intervened. Ashiq son of Saleh and Moonda gave Sota blows to Muhammad Younas PW. Their alarm attracted Arif and Sarwar PWs to the spot who also witnessed the occurrence. The accused party then ran away. Ali Muhammad died after about half an hour of the occurrence. Leaving the dead body in the custody of the witnesses, the complainant (Muhammad Sharif) went to the police station for report but in the way he met SI Rashid Ullah Khan PW in Chak No.42/3-R where he was present in connection with investigation of a case under section 147, Cr.P.C. The Sub-Inspector recorded his statement Ex.PA and sent the same to the police station for formal registration of the case and himself proceeded to the spot. He prepared the injury statement Ex.PR/3 and inquest report Ex.PR/'1 of Ali Muhammad (deceased) and sent the dead body for _ post-mortem examination under police escort. He then prepared the injury statement Ex.PS/2 of Muhammad Younis (PW 10) and sent him to the hospital for medical examination and treatment. He arrested Bata (appellant) on 23-6-1975 who led to the recovery of blood-stained Dang P.4 from his A/a which was taken into possession under memo Ex.PF. Khadim Hussain and Moonda (appellants) were arrested on 24-6-1975. Khadim Hussain led to the recovery of blood-stained hatchet P.7 from his Kothri and Moonda got recovered Soti P.8 from his cattleshed which were taken into possession vide memos Exs.PJ and PK respectively. On 27-6-1975 he took into possession an application of Bata Ex.PU from Muhammad Afzal Patwari. He also secured report No.232 Ex.PY and after completing the investigation challaned them to Court. It may be mentioned that the Dang P.4 and hatchet P.7 were found to be stained with human blood vide reports Exs.P2 and P4 of the Chemical Examiner and the Serologist, respectively.
4. Dr. Ajab Khan Afraidi (PW 1) medically examined Muhammad Younis PW on 23-6-1975 at 10.15 a.m., and the following injuries on his person:-
(1) A contusion 2" x 1" on the front of right thigh at its lower third.
(2) An abrasion 1/4" x 1/4" on the inner aspect of left forearm at the middle 1/3rd.
(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 / LConviction altered.
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