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Criminal Appeal No.52 of 1985, decided on 22nd March, 1987.

---Ss.302, 307 & 34--Defence version--Whether probable--Complainant party having motive against accused over dispute of land--Defence alleging complainant party going to Dera of accused, attacking women folk present there who in retaliation throwing stones on them hurting deceased and witnesses--Dimension of injuries showing them to be caused with sticks and not stones--Blood-stained earth collected from field and not from Dera of accused--Complainant party receiving grievous and fatal injuries--Ladies of accused party though allegedly attacked by complainant party, receiving not a single scratch--Defence version, held, was not true and rightly rejected by Trial Court in circumstances.

---Ss.302, 325 & 34--Nature of offence--Disputed Khasra ;number comprising of 54 Kanals of land--Accused and complainant party, his brothers and sisters shown as co-owners of land---Transfer of title under gift deed to accused not effected in revenue record-Parties still disputing as to which part of land is covered by gift deed or sale-deed--Deceased and witnesses going to place of occurrence to assert their right of ownership by ploughing land--Accused party resisting and causing injuries with ordinary sticks--Blows on vital parts of body of deceased and witnesses, not repeated--Accused, held, could not be burdened with intention to kill deceased w they had knowledge that they were likely to cause death--Accused would be responsible for causing grievous injury to deceased and; witness and simple injuries to other witness--Sentence altered accordingly in circumstances.

Ehsan-ul-Haq Chaudhry for Appellants.

Raja Abdul Ghafoor for A.A.-G. for the State.

Iftikhar Hussain Chaudhry for the Complainant.

Date of hearing: 22nd March, 1987.

Mehr Shah son of Lal Hussain caste Syed and his two sons Sadiq Hussain Shah and Hasan Shah have been tried on the charges under section 302/307/34, PPC by Sessions Judge, Jhelum, who vide judgment dated 12-3-1985, convicted them on both counts and sentenced them to imprisonment for life and a fine of Rs.5,000/- each or in default to undergo 1 year's R.I., under section 302/34, PPC, and to 3 years' R.I., and a fine of Rs.5,000/- each or in default to undergo 1 year's R.I., under section 307/34, PPC. Both the sentences were ordered to run concurrently and the amount of fine if realised was ordered to be paid to the legal heirs of the deceased as compensation. Feeling aggrieved thereby, the convicts have filed Criminal Appeal No.52/1985 challenging their conviction and sentence and Mst. Zohra Khatun, complainant has filed Criminal Revision No.79/1985 seeking enhancement of the sentence awarded to the appellants by ,e trial Court. Both these matters are disposed of by this single judgment.

2. On 12-4-1984 at Uchi Deegerwela Mst. Zohra Khatun complainant (PW.7) with her husband Fazal Hussain Shah (PW.8) was working on her well while her son Nazar Abbas (deceased) was ploughing the land in Khasra No.254 of village Bhelowal, district Jhelum, when all of a sudden Mehr Shah and Sadiq Hussain Shah (appellants) armed with sticks and Hasan Shah (appellant) armed with an iron pipe came there and hurling abuses fell on Nazar Abbas. Fazal Hussain Shah with his brother Mahbood Shah tried to rescue Nazar Abbas but they too were beaten down. Thereafter, the appellants fled away. The occurrence was witnessed by Muhammad Anar (PW.9) and Muhammad Nawaz PW (not produced). The matter was reported by Mst. Zohra Khatun (PW.7) on the following day at 6-30 a.m., at police station Lilla district Jhelum at a distance of 9 miles from the place of occurrence through FIR Ex.PM recorded by SI Ejaz Hussain Shah (PW.10).

3. SI Ejaz Hussain Shah (PW.10) having recorded the FIR Ex.PM went to the spot. tie removed blood-stained earth from there. He prepared inquest report Ex.PO of the deceased lying there and sent the dead body for post-mortem examination under police escort. Fazal Hussain Shah (PW.8) and his brother Mahboob Shah PW (not produced) who also lay on the spot were sent after preparing their injury statements to hospital for medical examination and treatment. He secured yokes P.8 and P.9 from the spot. On 13-4-1984 he recorded the statements of Fazal Hussain Shah and Mahboob Shah P.Ws. after obtaining opinion of the doctor that they were fit to make statement. On 14-4-1984 he arrested all the accused. Mehr Shah got recovered Soti P.10, Hasan Shah iron pipe P.11 and Sadiq Hussain Shah Soti P.12 bearing no blood stains which were secured under different memos. After completion of investigation they were challaned to Court.

4. Dr. Muhammad Sharif Khan Bhatti (PW.1) performed post-mortem examination on 13-4-1984 at 12-40 p.m., on the dead body of Nazar Abbas and found the following injuries on it: -

(1) An abrasion 2" x 1" on the midback of left forearm.

(2) A bruise 4" x 1" straight, uniform and regular, on the back and lower part of left, upper arm.

(3) A .bruise 8" x 1" straight, uniform regular and longitudinal on the midback of right chest.

(4) A bruise 4" x 1" on the right epigastrium. It is oblique, straight, regular and uniform.

(5) An abrasion 11" x 1" on the right lateral and lower part of chest.

(6) An abrasion 1" x 3/4" on left side of face, 2" in front of left ear.

(7) An abrasion 2" x 1" on left lower jaw upper part.

(8) An abrasion 1" x 1" on the mid-cuter of left side neck.

(9) An abrasion 3/4" x " on the mid of left mastoid region.

Blackish colour blood was coming from the left ear. The left mastoid was fractured.

The cranial cavity was full of blood and there was a fracture of left side mastoid bone. All the organs in the thorax and visceras of the abdomen were healthy. In the opinion of the doctor the death occurred due to intracranial haemorrhage caused by injury No-9 caused by blunt weapon which was sufficient to cause death in the ordinary course of nature. The remaining injuries were caused with blunt, weapon and simple in nature. Probable time between injuries and death was few minutes and between death and post-mortem examination was 18 to 24 hours.

5. The same doctor on the same day at 1 p.m., medically examined Mahboob Shah PW and found the following injuries on his person: -

(1) A contused wound 2" x I" bone deep on the right side of head, 4 " above- right ear and 1l" above the junction of hair.

(2) A reddish bruise 5" x 1" straight, regular, uniform and transverse on the mid-right back of chest.

(3) A reddish bruise 5 " x 1" oblique, straight, uniform and regular on mid-back of lumber region.

(4) Complain of pain in front of chest but no external mark of injury was seen.

(5) Complain of pain in right glutial region but no mark of external injury was seen.

All the injuries were caused with blunt weapon within the duration of 1,2 to 24 hours. On X-Ray of injury No.l liner fracture of right parietal bone was detected, so this injury was declared grievous. The rest of injuries were simple in nature.

6. The same doctor on the same day medically era 'fined Fazal Hussain Shah (PW.8) and found the following injuries on his person: -

(1) A lacerated wound 3/4" x 1/8" cartilege deep on front and lower part near the right lobule.

(2) A lacerated wound 3/4" x 1/8" x muscle deep on the anterior part of right mastoid region.

(3) A lacerated wound 3/4" x 1/8" cartilege deep on the mid-back of right ear.

(4) An abrasion " x " on the right parotid region.

(5) A swelling on 1" circumference, 2" back of right ear.

(6) An abrasion 1 " x 1/8" on inner side of left wrist.

(7) A reddish wound 9" x 1" transverse, regular, uniform and straight on lower part and back of chest.

(8) Two marks of reddish bruises 5" x 1" and 3 " x 1", regular, straight, uniform and dissecting each other at middle on right side of chest.

(9) An abrasion " x " on the back of right shoulder joint.

(10) A reddish bruise 4 " x 1" straight, regular and uniform on right shoulder. It was slightly oblique.

(11) A reddish wound 1-3/4" x 1" on right groin.

All the injuries were caused with blunt weapon within the duration of 12 to 24 hours and were simple in nature.

7. The prosecution case, as disclosed at the trial was that Mehr Shah (appellant), Fazal Hussain Shah (PW.8) and Mahboob Shah PW (not produced) are the sons of Lal Hussain Shah and Mst. Aisha Bibi and Mst. Mehr Bibi are his daughters. Lal Hussain Shah owned 221 Kanals of land in the village. He died in the year 1979. It is alleged that about 6 days before his death Mehr Shah (appellant) fraudulently got the entire land of Lal Hussain Shah gifted in his own name depriving his other sisters and brothers from their share in the property. Feeling aggrieved of this, Fazal Hussain Shah, Mahboob Shah and their sisters filed a civil suit against Mehr Shah. This suit was withdrawn by the plaintiffs about two years before the occurrence as according to them Mehr Shah had taken oath on Holy Qur'an in the mosque that he would give them their due share from the said land but he did not fulfil his promise though number of "Jirgas" were taken to him by the complainant party. Over this dispute the parties fought for a number of times and several cases were registered against each party and preventive proceedings under section 107/151, Cr.P.C., were initiated against both parties who were bound down to keep peace two months before the occurrence.

8. On the fateful day (12-4-1984) at Uchi Deegerwela (4-00/4-30 p.m.) Nazar Abbas (deceased) was ploughing land in Khasra No.954 of village Bhelowal while his mother Mst. Zohra Khstun and father Fazal Hussain Shah P.Ws. were collecting stones on the nearby well. Muhammad Anar and Muhammad Nawaz P.Ws. were grazing their cattle at a short distance. In the meantime, Mehr Shah and Sadiq Hussain Shah (appellants) armed with Sotis and Hasan Shah (appellant) armed with iron pipe came there from the side of their Dera and hurling abuses on Nazar Abbas attacked him. Mehr Shah gave a Soti blow on the left back side of neck of Nazar Abbas as a result of which he fell down. Hassan Shah dealt a blow with iron pipe which fell on his left back side of head. Fazal Hussain Shah came running and laid on Nazar Abbas to save him whereupon Hasan Shah gave him a blow with iron pipe on the back side of his right ear and Mehr Shah gave a blow on the back side of his neck. Mahboob Shah PW (not produced) also reached the spot and when he intervened he was given Soti blow on the head by Mehr Shah (appellant) as a result of which he fell down. Then all the three appellants after giving more blows to

4 these persons fled away with their respective weapons.

9. The prosecution story is supported by Mst. Zohra Khatun (PW.7) mother of the deceased and Fazal Hussain Shah (PW.8) father of the deceased who is the injured witness besides Muhammad Anar (PW.9).

10. It is in the evidence of Fazal Hussain Shah (PW.8) that the accused party and the complainant party live at separate Deras at some distance from each other. Mst. Zohra Khatun (PW.7) stated that their party felt aggrieved of the conduct of Mehr Shah (appellant) as he refused to give their share in the disputed land despite making a solemn promise to do so. She stated that number of fights took place between complainant and the accused party over land dispute and several cases were registered against both parties. She denied the suggestion that the place of occurrence is Ghair Mumkin Bunjer and is not cultivable. She asserted that the place of occurrence is evacuee or Government land but it is in possession of her father and father-in-law since her childhood. Muhammad Ashraf Revenue Patwari (PW.5) proved the site plan Ex.PF to be in his hand. He stated that Khasra No.954 comprised 57 Kanals and 1 Marla of land which is Ghair Mumkin Kass (watercourse) according to Jamabandi of the year 1979-80 and in the column of ownership the names of Mehr Shah, Fazal Hussain Shah and Mahbood Shah sons of Lal Hussain Shah and Mst. Aisha Bibi and Mst. Mehr Bibi daughters of Lal Hussain Shah have been entered. These co-sharers own 8 out of 36 shares and have been described as mortgagors while the Central Government is shown as the mortgagee. He further stated that according to Khasra Girdawari this land was in possession of Ghulam Muhammad etc. vendees, which position continued from Kharif 81 to Kharif 84.

11. The appellants when examined under section 342, Cr.P. C., denied the allegations as well as the recovery of weapons. Their case is that on the day of occurrence when they were away from their house in connection with their agricultural pursuits, the deceased Nazar Abbas, his father Fazal Hussain Shah and uncle Mahboob Shah came to their Dera where their ladies only were present and challenged them to come out. The women had replied that the male members were not present at the Dera. At this the deceased and the P.Ws. started hurling abuses and pelting stones on them. In retaliation, their ladies also threw stones on them as a result whereof the deceased and the P.Ws. were injured. They, however, did not produce any defence evidence.

12. Learned trial Court on consideration of the material on record discarded the defence version and accepting the prosecution case held the appellants guilty, as indicated above, and imposed lesser penalty on them, hence this appeal.

13. In the first place, it is contended by learned counsel for the appellants that the motive lay on the side of complainant party which had felt aggrieved of the conduct of Mehr Shah (appellant) who allegedly had got his father's land transferred in his own name through a fraudulent gift depriving his brothers Fazal Hussain Shah (PW.8), Mahboob Shah PW (not produced) and his sisters and further he made them withdraw their suit filed in this connection against him by making a false promise of giving them their due snare in the land. Learned counsel, therefore, urged that with this background the defence story appears to be probable that it was the complainant party which in order to take revenge from Mehr Shah went to his Dera and finding his womenfolk there attacked them who in retaliation q and in self-defence pelted stones on them causing grievous hurt to Mahboob Shah and fatal injuries to Nazar Abbas (deceased). The argument is without force for variety of reasons, i.e., firstly, dimension of injuries of Nazar Abbas (deceased) and Mahboob Shah PW (not produced) shows their length between 4" to 8" which appears to have been caused with sticks and not with stones; secondly, the blood-stained earth had been found and collected from Khasra No.954 and not from appellant's Dera; and thirdly, it is not believable that the complainant party comprising armed male members who had gone to the Dera of the appellants with intention to take revenge from Mehr Shah were unable to cause a scratch to the ladies and instead grievous and fatal injuries at their hands. The defence version appears to be as untrue and the trial Court had rightly thrown it away.

14. Learned counsel next submitted that the story of prosecution that Nazar Abbas (deceased) was assaulted while ploughing the land in Khasra No.954 is not true because saccording to Muhammad Ashraf, Revenue Patwari (PW.5) the said Khasra number is Ghair Mumkin Kass (water course), therefore, it was not cultivable and furthermore this land was in possession of Ghulam Muhammad, etc., during the days of occurrence. It may be pointed out that Khasra number in question comprised 54 Kanals of land and it is not stated .that Kass (water course) covered the whole of this Khasra number. If it were so then how it was shown to be in cultivating possession of Ghulam Muhammad etc. vendees. The Patwari has stated that in the column' meant for entering the name of owner bears names of Mehr Shah (appellant) as well as his brother Fazal Hussain Shah (PW.8) and their sisters as co-owners which means that change in revenue record reflecting the transfer of title to Mehr Shah (appellant) under gift deed or to Ghulam Muhammad as its purchasers had not y-t been effected, therefore it appears to me that the complainant and the appellants parties still disputing as to which part of the land was covered by the gift deed or the sale-deed, therefore, Nazar Abbas (deceased), an Army man, who was on leave during the days of occurrence, appears to have gone to the place of occurrence with his father Fazal Hussain Shah and uncle Mahboob Shah to assert their right of ownership by ploughing the land to which the appellants raised objection and when the deceased, Fazal Hussain Shah and Mahboob Shah P.Ws. insisted to plough they were attacked obviously with ordinary sticks to prevent them from ploughing the land and, therefore, there was no intention on their part to kill any of them. I have minutely seen the injuries and find that blow on the vital parts of the body of the deceased and the PWs had not been repeated. I am, therefore, of the view that in the circumstances the appellants cannot be burdened with intention to cause death of Nazar Abbas nor they had knowledge that they were likely to cause death of Nazar Abbas (deceased) . At the most, they are responsible for causing grievous hurt to Nazar Abbas (deceased) and Mahboob Shah P.W. and simple hurt to Fazal Hussain Shah P.W. Resultantly, I would alter the conviction of the appellants from section 302/34, PPC to one under section 325/34, PPC and sentence them to 7 years' R.I., and a fine of Rs.10,000/- each or in default of payment of fine, to undergo 2 years' R.I. each, for causing ,injuries to Nazar Abbas (deceased) and to 7 years' R.I., and a fine of Rs.5,000/- each of in default of payment of fine to undergo one year's R.I. each, for causing injuries to Mahboob Shah PW, and to one year's R.I. each under section 323/34, PPC for causing simple hurt to Fazal Hussain Shah PW. All the sentences of imprisonment shall run concurrently. The fine imposed on the appellants regarding the injuries of Nazar Abbas (deceased), if realised, shall be paid to the heirs of the deceased and the fine imposed on them regarding the injuries of Mahboob Shah PW, if realised, shall be paid to him in full. The appeal is partly accepted in the terms indicated above. For the same reasons, the criminal revision is dismissed.

S.A./M-258/L Order accordingly

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