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Criminal Appeal No. 198 and Criminal Revision No. 614 of 1984, decided on 10th December, 1986.

---Ss. 304, Part I, 323 & 325--Sudden fight--Conviction and sentences not challenged--Sentences whether excessive--Accused party cutting bushes from land jointly owned by both parties--No evidence showing land from where bushes were cut, as belonging exclusively to complainant--Two of accused also injured in occurrence--No past enmity between parries shown--Sentence of two accused convicted under 5.304, Part I reduced from life imprisonment to seven years and amount of compensation enhanced--Sentences of other accused convicted under Ss.323 & 325 reduced to one already undergone and fine also imposed.

Sardar Ali's case 1983 P Cr. L J 1992 and Muhammad Ramzan's case P L D 1983 Lah. 510 ref.

Hafiz Muhammad Yousaf for Appellants.

Ashraf Khan for the State.

Shahid Hussain Kadri for the Complainant.

Date of hearing: 10th December, 1986.

Sheru and his three sons, Anwar, Mehnga and Sarwar Masih were tried by an Additional Sessions Judge of Bhakkar with regard to the murder of Rafiq Masih, deceased, and attempt on the lives of Allah Rakha and Khalid Rafique P.Ws. 5 and 6. Sheru, Anwar, Mehnga and Sarwar Masih were charged under section 302/34, P.P.C. for the murder of Rafique Masih, deceased. Sheru and Anwar were also charged under section 307/34, P. P. C . for attempt on the life of Allah Rakha P. W . 5 and Anwar was also charged under section 307/34, P.P.C. for making an attempt on the life of Khalid Rafique P.W. 6. The learned trial Judge, by his judgment dated 21-4-1984, convicted Mehnga and Sarwar Masih under section 304-I, P.P.C. and sentenced them to imprisonment for life each and to pay a fine of Rs.2,000 each or in default thereof to undergo further rigorous imprisonment for one year each. He convicted Anwar under section 323, P.P.C. on two counts for causing injuries to Allah Rakha P.W. 5, and Khalid Rafique P.W. 6 and sentenced him to six months' simple imprisonment on each count. He convicted Sheru under section 325, P.P. C. for causing grievous injuries to Rafique Masih, deceased, and under section 323, P.P.C. for causing simple injury to Allah Rakha P.W. 5 and sentenced him to two years' rigorous imprisonment and one year's rigorous imprisonment respectively under the said sections. The sentences awarded to Anwar and Sheru were ordered to run concurrently. All the convicts were granted the benefit of section 382-B, Cr.P. C. The joint appeal (Cr. A. 198 of 1984) preferred by the four convicts against their conviction and sentences and a private revision (Cr. R. 614 of 1984) filed by Allah Rakha, petitioner, for the enhancement of the sentences of the convicts under section 302/ 34, P . P . C . are both now before me for disposal.

2. The brief facts of the case are that, on 14-5-1982 at 12-30 noon Sheru, Anwar, Mehnga and Sarwar Masih, accused, were cutting Kurry bushes from Lot No. 113 Rakh Hyderabad, the land belonging to Allah Rakha, complainant P.W.5. The accused were cutting the Kurry bushes and stocking them near their hay stack. Rafique Masih, deceased, the son of the complainant, went from his house situate on the Lot to restrain them. Mehnga, Sarwar Masih and Sheru, accused, armed with hatchets, and Anwar, accused, armed with a Dang, were present near their hay stacks. The deceased went and protested against the cutting of Kurry bushes, which were giving them shade and shelter in summer. The accused abused him and then launched an attack on him. Mehnga, accused, gave a hatchet blow on the left side of the head of the deceased. Sarwar Masih, accused, gave a hatchet blow above the left ear of the deceased. Sheru, accused, gave a hatchet blow on the right calf of the deceased. The deceased collapsed and fell down on the spot. The accused then belaboured him. Allah Rakha, complainant P.W. 5 and Khalid Rafique P.W. 6, the son of the deceased, went forward to rescue the deceased. Sheru, accused, gave a hatchet blow on the right side of the head of the complainant and Anwar, accused, gave a Dang blow on his back. Thereafter, Anwar, accused, also injured Khalid Rafique P.W. 6.

3. Apart from Rafique Masih, deceased, Allah Rakha P.W. 5 and Khalid Rafique P.W. 6, who were found to be injured on the side of the complainant party, Sheru and Mehnga, accused, were found to be injured in the same occurrence on the side of the accused party.

4. The prosecution was not able to prove any motive other than a sudden fight over the cutting of Kurry bushes. In view of the injuries on both the sides, the learned trial. Judge held that a sudden fight had taken place and he convicted and sentenced the four accused, as stated in para. 1 above.

5. Hafiz Muhammad Yousaf, Advocate, who appears for the appellants, does not challenge the conviction of the appellants under the various sections of the Pakistan Penal Code, as recorded by the learned trial Judge, but only prays for reduction of their sentences. In this connection, learned counsel for the appellants submits that the sentences of life imprisonment awarded to Mehnga and Sarwar, appellants, under section 304-I, P.P.C. are excessive and they should not be more than five years rigorous imprisonment. In this connection, the learned counsel has cited Sardar Ali's case 1983 P Cr. L J 1992 and Muhammad Ramzan's case P L D 1983 Lah. 510. It is further submitted that Sheru, appellant, is an old man aged seventy years and never participated in the occurrence, but has been convicted under sections 323 and 325, P.P.C. It is prayed that his sentence be reduced to that already undergone, as he remained in jail as an under trial prisoner and as a convict for some appreciable period of time. It is further submitted that Anwar, appellant, has only been convicted and sentenced under section 323, P.P.C. on two counts and his sentence, therefore, should also be reduced to that already undergone, as he also remained in jail as an under trial prisoner and as a convict for some appreciable period of time. On behalf of the complainant and the State, it is submitted that the sentences awarded should be allowed to remain and that in case they are reduced, fine should be increased or imposed and compensation should be awarded.

6. I have heard the arguments of the learned counsel for the appellants, the complainant and the State and have also perused the record. The learned counsel for the appellants does not challenge the conviction of the appellants, as recorded by the' learned trial Judge, but has only made submissions with regard to the reduction of their sentences. It is obvious from the record that Lot No.113 comprises twelve hundred Kanals of land and that Allah Rakha. P.W.5, alongwith Sheru, appellant, and Mehr Din, Ilam Din, Barkat and Miran Bakhsh are partners in the said Lot in equal shares. The complainant was not able to distinctly identify the Killa or rectangle in which Kurry bushes were standing, which were being cut by the appellants, or to show that the said Killa or rectangle were exclusively owned by him. There is no evidence in this regard at all on the file. It is admitted by the prosecution witnesses that Mehnga and Sarwar, appellants, were injured in the fight. According to Khalid Rafique P.W.6, the appellants were cutting the Kurry bushes at about 10-30 a.m. The occurrence took place at about 12-30 noon. It seems that the prosecution witnesses felt that the appellants were cutting much more bushes than what fell to their share, which appears to have led to the sudden fight. There appears to be no past enmity in the case. Taking all circumstances into consideration, I would reduce the sentences of Mehnga and Sarwar, appellants, under section, 104-1, P. P. C. from life imprisonment to seven years rigorous imprisonment each. The fine awarded by the trial Judge shall remain. However, both the appellants shall pay Rupees one thousand (Rs.1,000) each as compensation to, the legal heirs of Rafiqne Masih, deceased, or in default thereof shall undergo further rigorous imprisonment for three months each. The sentences of Sheru, appellant, recorded under sections 325 and 323, P.P.C. are reduced to that already undergone but the said appellant shall pay a fine of Rupees five hundred (Rs.500) in respect of each of the said two offences or in default thereof shall undergo six months rigorous imprisonment in respect of each offence. The sentence of Anwar, appellant, recorded under section, 323, P.P.C on two counts is reduced to that already undergone on both the counts. The said appellant shall pay Rupees two hundred fifty (Rs.250) as fine it respect of each count, or in default thereof shall undergo three months simple imprisonment on each count The sentences awarded to Anwar and Sheru appellants, shall run concurrently. The fine if recovered from Sheru, appellant, shall be paid to the legal heirs of Rafique Masih, deceased, and Allah Rakha P.W.5 in equal shares. The fine, if recovered from Anwar, appellant, shall be paid to Allah Rakah P.W.5 and Khalid Rafique P.W.6 in equal shares. All the four appellants shall be entitled to the benefit of section 382-B, Cr.P.C.

7. For the foregoing reasons, this appeal stands partly accepted, in terms of reduction in sentences, as stated above. Anwar and Sheru, appellants, are on bail. Their bail bonds shall stand cancelled, subject to their paying the fines, as recorded above.

8. There being no merit in the revision petition Criminal Revision No. 614 of 1984 filed by Allah Rakha, complainant, the same is dismissed in limine.

S. A. Appeal dismissed.

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