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Criminal Appeal No. 32 of 1980, decided on 26th October, 1985.

(On appeal from the judgment of the Lahore High Court, dated 18‑4‑1978, in Criminal Appeal 161 of 1976).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860). S. 302/34‑‑Leave to appeal granted to re‑assess evidence on account of certain features appearing in case and also to evaluate criminal liability of convicts where alleged crime weapons were recovered from accused on fifth day of occurrence; explanation for delay of four days in lodging First Information Report to effect that complainant had received injuries on his knees as a result of which he was unable to walk; explanation was not supported by medical evidence which indicated no such injuries; injured witness did not testify to presence of complainant at time of occurrence and finally no specific part was attributed to any of accused persons and what was individual liability of each culprit, particularly when evidence indicated that there was a sudden flare up on Warabandi and it was not possible to determine who caused fatal blow or even grievous injury to deceased /prosecution witness.

‑‑‑S. 302/34‑‑No enmity existing between deceased and accused‑‑Dispute arising over distribution of water from Government water‑course‑‑Sudden quarrel taking place between parties each claiming a right to flow of water in his own respective field‑‑Accused not coming to scene of occurrence with premeditation or with preconcert to commit murder of deceased‑‑Possibility that witness arrived at scene on hearing news about occurrence not ruled out‑‑Prosecution witnesses not witnessing occurrence but arriving there on hearing abut incident‑‑Medical report showing only one injury on deceased which resulted in fracture of scalp and which was sufficient in ordinary course of nature to' cause death of deceased but no reliable evidence as to who caused injury available‑‑First Information Report lodged with unexplained delay after complainant had opportunity of consultation and particulars as to who inflicted fatal injury to deceased or what specific part played by individual accused not disclosed therein‑‑Occurrence taking place on a dark night‑‑Only common intention that could be attributed to accused in circumstances was at the most of a grievous hurt to deceased and on evidence on record accused guilty of an offence under 5.325, Penal Code read with S.34‑‑Conviction of accused altered from 5.302/34, P.P.C. to S.325/34, Penal Code and sentence reduced.

Shaukat Ali, Senior Advocate Supreme Court for Appellants.

Mian Inamul Heq, Advocate Supreme Court with Rae Muhammad Yousaf Khan, Advocate‑on‑Record for the State.

Date of hearing: 26th October, 1985.

This is an appeal by leave of this Court against the judgment of a division bench of the Lahore High Court, dated 18th April, 1978, whereby the appeal of the present appellants against their convictions and sentences awarded by the trial Court was dismissed.

2. Faiz Muhammad, Said and Khan, all real brothers aged 30, 25 and 13/14 at the time of incident, were tried and convicted by the learned Additional Sessions Judge, Sheikhupura, vide judgment, dated 29th January, 1976, under sections 302/34, 323/34 and 325/34, P.P.C. Under the first count appellant Faiz Muhammad was sentenced to death and fine of Rs.1,000 or in default 10 months' R.I., whereas the other two appellants were sentenced to life imprisonment and fine or in default imprisonment as in the case of the first mentioned appellant. Under sections 323/34, P.P.C each of the appellants was sentenced to pay fine of Rs.100 or in default undergo one month's R.I. Lastly under section 325/34, P.P.C. each appellant was sentenced to two years' R.I. and fine of Rs.200 or in default to undergo R.I. for two months. All substantive sentences imposed on appellants Said and Khan were ordered to run concurrently. From the fine if recovered, a sum of Rs.1,500 was ordered to be paid to the legal heirs of Muhammad Boots deceased, Rs.300 to Abdul Satter P.W. and Rs.150 to Mukhtar Ali.. P.W. As already stated, the convicts appealed to the High Court but their appeal was dismissed and their convictions as well as sentences were maintained.

3. Leave was granted in this ease in order to reassess the evidence on account of certain features appearing therein and also to evaluate the criminal liability of the convicts in all the circumstances of the case. The circumstances appearing in the evidence in this behalf were that the alleged crime weapons, namely, two blood‑stained Sotas were recovered from Said and Khan appellants and Dang Bansi, with disintegrated blood marks was secured from Faiz appellant, on the fifth day of the occurrence, that the explanation for the delay of four days in lodging the F.I.R. to the effect that the complainant had received injuries on his knees as a result of which he was unable to walk, was not supported by the medical evidence which indicated no such injuries, that injured witness Abdul Satter did not testify to the presence of complainant Mukhtiar at the time of occurrence and finally no specific part was attributed to any of the appellants, view of these circumstances the main question was as to the individual liability of each culprit, particularly when the evidence indicated that there was a sudden flare up on Warabandi and it was not possible to determine who caused the fatal blow or even the grievous injury to Abdul Satter P.W.

4, The occurrence in this case took place on the night between 29th and 30th September, 1973, at 11‑55 p.m. in the area of village Karian at a distance of two miles from Police Station Mananwala, District Sheikhupura. According to the prosecution, the lands in Chak Karian were irrigated from a Government water‑course. The appellants were cultivating their ancestral lands in this Chak. There was a private Warabandi mutually agreed upon between the landowners and was in force since long. Mukhtar Ali complainant, Boots deceased and Abdul Satter P.W.9 used to cultivate land jointly in the same area. Their turn of water used to commence from 7‑30 p.m. upto 12‑10 a.m. every Saturday‑

5. On 29th September, 1973, the deceased, accompanied by the complainant and Abdul Satter P.W., went to his lands in order to supervise the water turn. While he was irrigating his lands at 11‑55 p.m. (only 15 minutes before the end of turn period) the flow of water was abruptly diverted by the appellants towards their own lands. On account of this the three men went to the Nakka to ascertain as to what had happened. They found the three appellants present at the Khal armed with Dangs, and questioned them as to why they had interrupted the water flow to the lands of the deceased. Then Boots deceased stepped forward to divert the water again to his own lands, upon which the appellants struck him blows with their Dangs. When Mukhtar Ali complainant and Abdul Satter P.W., tried to intervene they were also belaboured. Upon the cries of the injured Muhammad Khan and Sardar reached the spot and witnessed the occurrence. The assailants then decamped from the scene after giving injuries to all three persons.

6. The witnesses then brought Boots deceased in injured condition to the village and from there took him to the Civil Dispensary, Mananwala, for medical treatment. They were then referred to the District Headquarters Hospital, Sheikhupura, where Boots deceased was admitted. So was Abdul Satter P.W., but Mukhtar Ali complainant was not admitted in the hospital, as he had not suffered any serious injury. On 6^th October, 1973, Boots deceased sccumbed to his injuries and died in the hospital at 4 or 5‑30 p.m.

7. The F.I.R. was lodged by Mukhtar Ali complainant on 4th October, 1973, while Boots deceased was still alive. Initially a case under section 325, P.P.C. was registered by the police but, later on when the deceased expired, the charge was altered to one under sections 302, 307, 325/34, P.P.C.

8. The appellants were arrested on 5th October, 1973,and during the investigation a Deng was secured from Faiz appellant which was found to be blood‑stained. Said and Khan appellants also produced their Sotas before the police which were seized and subsequently found to be stained with human blood. The Dang said to have been produced by Faiz Muhammad appellant, had disintegrated blood upon it.

9. At the trial reliance was placed by the prosecution on the oral testimony of Mukhtar Ali complainant, Abdul Satter, P.W. and Muhammad Khan, P.W. Out of them the first two were injured during the course of occurrence. Corroboration was sought from the evidence of recoveries already mentioned. The medical evidence examined at the trial disclosed that Boots deceased had four blunt weapon injuries out of which two wounds were opined to be grievous. One of these was on the head resulting in fracture of the scalp bone. The other was on the chest also resulting in the fracture of the ribs on the left side. Abdul Satter P.W. had received three abrasions and five contused wounds out of which one was a grievous injury causing deep fracture of left terminal phalanx of left finger. Mukhtar Ali complainant had received minor injuries on the back of the left hand and on the little finger of the right hand.

10. The appellants in their statements under section 342, Cr.P.C. denied the allegations of the prosecution and proclaimed their innocence. They alleged that the prosecution witnesses were deposing against them due to enmity.

11. The trial Court accepted the testimony of the three alleged eye witnesses and found the appellants guilty on the oral testimony of these witnesses supported by the recoveries and the medical evidence. The High Court affirmed the finding of the trial Court on the testimony of two eye‑witnesses, namely, Mukhtar Ali and Abdul Satter alongwith the supporting evidence of recoveries. The convictions and sentences awarded to the appellants were upheld and the death sentence inflicted on Faiz Muhammad appellant was confirmed.

12. Now the circumstances appearing in the evidence are that there was no previous enmity between the deceased and the accused persons. There was, therefore, no question of premeditated and calculated attack by the accused. There is also no denial of the fact that the water turn of the deceased and his co‑sharers was about to expire at the psychological moment of the occurrence. As the appellants held lands irrigated on the same Mogha, the probability that they arrived at the scene at the time of occurrence cannot be ruled out, as it is common practice among cultivators to supervise the flow of water to their fields.. The cumulative affect of all the circumstances is that, it cannot be denied that there was dispute over water in which the deceased received the injuries resulting in his death. However, the next question is whether the accused, the present appellants' participation in the crime is established by reliable evidence. The participation of the appellants is supported by three witnesses, namely, Mukhtar Ali, complainant, Abdul Satter and Muhammad Khan, P.Ws. So far as Abdul Satter is concerned there is reliable evidence that he received serious injuries which fact is a strong corroboration of his assertion that he was present at the time of occurrence. The value to be attached to his testimony, particularly as to his version regarding the manner in which the deceased suffered injuries is another matter which will be attended to at a later stage. He is the brother of the deceased and there is nothing unusual in his having accompanied the latter to the land at the time of the incident. The time at which he received the injuries is strongly corroborated by the evidence of Dr. Muhammad Aslam who has confirmed having examined his injuries on 30th October, 1973, although no report had by then been lodged with the police.

13. As far as Mukhtar Ali is concerned he claims to have been injured during the occurrence and that he had taken Boots and Abdul Satter injured to the hospital on 30th October, 1973. However, he did not show his injuries to the medical officer who examined the other two injured and did not report the matter to police, although on his own admission, on their way to the hospital they passed near the police station. In attempting to explain the delay in lodging the F.I.R., he made the following statements:

"During our stay in the hospital at Mananwala we did not go to the Police Station Mananwala to lodge the report, because we remained attending the deceased and Satter P.W. From Man anwala we came to Sheikhupura in a Bus via metalled road. From Mananwala Hospital upto Bus stand of Mananwala we came in a Rehra. The police station was on our way. We reached Sheikhupura Hospital at 2 p.m. I remained in the hospital at Sheikhupura for three days and during this period people from our village visited me in the hospital. We waited for three days so that Boots deceased may regain consciousness, and then we should lodged report with, the police. Boots deceased was prominent in our family and he was our elder. Mubarik Ali Lambardar who is a witness in this case saw us in the hospital at Sheikhupura. It is correct that since after three days Boota deceased did not regain consciousness, therefore, I in consultation with Mubarik Ali P.W., decided to lodge F.I.R. with the police."

It is clear from these statements that the complainant side did not take the matter seriously in the beginning as an aggrieved party against whom unjustified aggression was made by the accused. It was only when the injured Boots's condition deteriorated on the fourth day of the incident and there was no hope of his survival, that consultations were made and the F.I.R. was lodged giving the version that unjustified interference was made in the water flow to the land of deceased which led to the quarrel in which he (deceased) was inflicted injuries. The complainant was examined by the doctor on 4th October, 1973. He had only two injuries which consisted of swelling at two places on his hands, and these injuries in the opinion of the doctor, who examined them were simple in nature and could be caused by a fall on a hard substance. The duration of these injuries was also not ascertainable as there were no colour changes. The presence of injuries on the person of Mukhtar Ali complainant, therefore, furnished no corroboration of his assertion that he witnessed the occurrence.

14. There are other circumstances which also tend to throw doubt can his presence at the scene of crime. By his own admission he had nothing to do with the land being cultivated by the deceased, which is clear from the statement that his name is not entered in the revenue record with reference to this land. Abdul Satter P.W. has also stated that only deceased used to cultivate the land. Mukthar Ali's presence at the scene would, therefore, be by way of chance on that particular occasion. He was admittedly not requested to accompany the deceased or to remain in the field. Be that as it may, Abdul Satter P.W. gave a death blow to his testimony by stating as follows:‑

"It is correct that Mukhtar P.W. had not arrived at the scene of occurrence when Boots deceased was attacked and injured. At the time of occurrence, the deceased and the accused were present at the spot and no other person was present. I became unconscious on my first injury which was on the head, towards back 'side. The first three Sots blows were caused to me at my back, shoulder and head from behind and on these Sots blows I fell down. After my fall, I was caused one head injury and on this I became unconscious."

From the above it can be safely inferred that Mukhtar Ali did not witness the occurrence and in all probability arrived much later at the scene upon hearing the news of the occurrence. In any case having regard to the aforesaid circumstances it will be unsafe to rely on his testimony.

15. Similarly Muhammad Khan, P.W., who is said to have had the following turn of water for his lands, was contradicted with his previous statement in which his case was that he arrived at the scene when the deceased was lying in the Khal. His presence at the time of occurrence has not been established.

16. This leaves us with the sole testimony of Abdul Sattar who was injured and as already discussed, his presence is established by the fact that he was injured in the same transaction in which the deceased was done so. He has implicated all the three appellants as assailants. However, as already indicated the question is, does his version inspire confidence and reflect the truth, that it was Faiz who inflicted the fatal blow to the deceased.

16‑A. The pivotal point in the entire prosecution case is the question of water turn of the deceased as it is in order to protect this right that the quarrel ensued between the parties. That the land of the deceased was irrigated from the water‑course on which the dispute started, is not in doubt. It is also not disputed that the appellants held land in the disputed Mogha and had cultivated, at the relevant time, an area of 2J Killas of land. Mukhtar Ali stated that there was an agreement regarding Warabandi among the landowners since long, according to which on the day of incident, deceased was to take his turn from 7‑30 p.m. until 12‑10 a.m. He has asserted that the appellants had not been allotted any right to water by turn, according to 'private' Warabandi agreement which was not in writing. Further, he admits that no person was appointed to keep the time or supervise the Warabandi. This reflects upon the sanctity and the seriousness with which the parties regarded the allocation agreement about water supply. On the other hand, Abdul Sattar P.W., who ought to be more knowledgeable on this matter, being the brother of the deceased, states that he came to know about their Wari on the day of occurrence. In this background the statement of Mukhtar Ali that Khan appellant shouted and informed the deceased that he had diverted the Khal water, assumes a great significance and reflects the mental attitude of the appellants at the time of occurrence. The facts that emerge from all the circumstances clearly indicate that the appellants had a bona fide claim to take water from the Government water‑course and were not consciously interfering with the legal right of the deceased. The agreement of Warabandi was oral and did not have the sanction of any competent authority. There is also no evidence that the appellants or anyone of them was a party to this agreement, so that the same could be said to be mutually binding. In the context of these circumstances it appears to us that the appellants did not come to the scene with the premeditation or with preconcert to commit the murder of the deceased. This seems to be a case of sudden quarrel between the parties each claiming a right to the flow of water in his own respective field.

17. The fact that the appellants were armed with Dangs does not necessarily indicate an intention to kill. However, it is possible to develop common intention on the spur of the moment and, therefore, the question is what was the common intention in furtherance of which the injuries were inflicted. According to the medical evidence there was only one injury on the deceased which resulted in the fracture of the scalp which was sufficient in ordinary course of nature to cause death. But there is no reliable evidence as to who caused this injury. It is in this context that the unexplained delay in lodging the F.I.R. assumes importance. In the F.I.R. which was lodged admittedly after four days of the occurrence and after the complainant had opportunity of consultation, no particulars as to who inflicted the fatal injuries were disclosed. There a general allegation was made that all the appellants attacked and injured the deceased. Similarly no specific injuries with regard to Abdul Sattar P.W. and Mukhtar Ali complainant were disclosed in the F.I.R., with reference to individual accused. In these circumstances, it is difficult to say who gave the fatal blow to the deceased, particularly when the occurrence took place on a dark night. In the circumstances of this case it is also difficult to hold that in inflicting any of the injuries found on the body of the deceased, the three appellants had the intention or knowledge that by doing so they were likely to cause the death of the deceased. The only common intention that can be attributed to the appellants was of causing at the most grievous hurt to the deceased and Abdul Sattar, P.W. On the evidence on record the appellants are, therefore, guilty of an offence under section 325 read with section 34, P.P.C. on two courts and we hold accordingly.

18. In the result the conviction of the appellants under section 302 read with section 34, P.P.C. is set aside and altered to one under section 325 read with section 34, P.P.C. on two counts. The death sentence awarded to Faiz Muhammad appellant is also set aside. The conviction of the appellants under section 323 read with section 34, P.P.C. and sentences awarded to them for causing simple hurt to Mukhtar Ali, P.W. are also set aside and they are given benefit of doubt on this count. The appellants seem to have remained in custody since 5th October, 1973, and as they have already suffered imprisonment for a period of more than maximum sentence prescribed by law for the offence of which they have been convicted, we think that such sentence of seven years of imprisonment already undergone by them concurrently under each count is sufficient punishment and no further sentence can be awarded to them and it is ordered accordingly. But the sentences of fine on each count are, however, maintained so far as convictions on the counts under which the appellants have been found guilty, with the same direction that if realized the amount shall be paid to the heirs of Boots deceased and Abdul Sattar, P.W. in the shares directed by the trial Court. The sentences in lieu of fine shall also be maintained. The appeal is partly allowed in these terms.

M.Y.H. Appeal partly accepted.

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