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Criminal Appeal No.131 of 1984, decided on 15th December, 1986.
‑‑‑S. 302/34‑‑Ocular evidence, appreciation of‑‑Wife and mother of deceased as eye‑witnesses‑‑Occurrence in compound of Haveli, jointly occupied by parties as residents‑‑Quarrel over cutting of water‑‑No previous enmity between parties‑‑Witnesses natural inmates of house‑ Statements of witnesses inspiring confidence‑‑Medical evidence, corroborating such statements‑‑Delay in F.I.R. satisfactorily explained‑ No question of mistaken identity‑‑Wife and mother of deceased, held, would not substitute real culprit and their evidence could not be branded as tainted‑‑Conviction sustained in circumstances.
‑‑‑S.302/34‑‑Sudden affair‑‑Quantum of sentence‑‑Quarrel over diversion of water‑‑ Occurrence in compound of common house‑‑Deceased attacked during exchange of abuses in heat of passions without premeditation‑‑Occurrence, held, was sudden affair falling under S.304, Part I, P.P.C.‑‑Sentence altered from life imprisonment to 10 years' R.I. in circumstances.
Zafar Pasha Ch. for Appellant.
Ijaz Ahmad Ch. for the State.
Date of hearing: 22nd April, 1986.
Appellants Muhammad Sarwar and Inayat both real brothers and sons of Noor Muhammad residents of Taragarh were tried by Additional Sessions Judge, Sheikhupura, on a charge under section 302/34, P.P.C. for having caused the murder of Shah Muhammad deceased.
2. Vide judgment dated 22‑10‑1984 the learned Additional Sessions Judge held them guilty on the said charge. The appellants were sentenced to undergo life imprisonment and to pay a fine of Rs.5,000 each or in default to suffer further R.I. for a period of one year each. In the event of the realisation of fine the same was ordered to be paid to the heirs of the deceased.
Aggrieved by the aforesaid conviction the present appeal has been preferred. The occurrence resulting into the death of Shah Muhammad deceased took place on the evening of 2nd September, 1981 in the house of the deceased situated in village Taragarh at a distance of 12 miles from Police Station Nankana.
The case against the appellants was registered on the basis of the statement of Mst. Bashiran Bibi (EXh.P.B.), widow of the deceased which was recorded by Muhammad Akmal S.I./S.H.O. P.S. Nankana at 6‑30 a.m. , on 3‑9‑1981 in village Taragarh. On the basis of this statement formal F.I.R. Exh.P.B./1 was drawn on the same day at the Police Station at 7‑45 a. m.
3. The prosecution case, briefly, is that three years prior to the occurrence the complainant Mst. Bashiran alongwith her deceased husband Shah Muhammad shifted from More Khunda and settled in village Taragarh. The deceased husband of the complainant Shah Muhammad obtained 9/10 Killas of land for cultivating paddy therein from one Syed Abid Hussain as tenant. The appellant Muhammad Sarwar was also a tenant under Syed Abid Hussain and he was also cultivating paddy adjacent to the land of the deceased. The appellant Sarwar and the deceased were living in the same Haveli in the village. It was alleged that on the evening of the day of occurrence, the deceased was cutting fodder, with machine with the help of his wife Mst. Bashiran complainant when the appellant Muhammad Sarwar also came there and started abusing the deceased and asked him as to why he had diverted his share of water (appellant's share) to his own land. The deceased denied the allegation and told the appellant that he had not diverted the water, with the result that an altercation ensued between the appellant and the deceased. They also exchanged abuses. The mother of the deceased Mst. Sahi P.W. 10 and one Wali Muhammad another relative present in the house took the deceased to his room. It was alleged that after a short while Sarwar appellant armed with a Dang and Inayat appellant armed with a Sots appeared in the compound where the deceased was sitting. Sarwar appellant allegedly inflicted Dang blows on the head of Shah Muhammad while Sota blows were inflicted by Inayat appellant on the head of the deceased whereupon Shah Muhammad fell down and more blows were given by both the appellants to Shah Muhammad while he was lying on the ground, Mst. Sahi P. W. 10, mother of the deceased intervened to rescue her son but she was also given blows, as a result of which she sustained injuries. The occurrence was allegedly witnessed by Mst. Sahi, Wali Muhammad and one Rehmat.
The deceased was brought to Lahore for treatment but on the bridge of Ravi he succumbed to his injuries and thus he was taken back to the village.
4. Dr. Muhammad Akhtar Hussain Chatha, P. W. 8 conducted post‑mortem examination on the dead body of the deceased and the following injuries were noticed:‑---
(1) A contused wound 7 c.m. x 1 c.m. bone deep on the left parietal region of skull 9 c.m. above from left ear.
(2) A contused wound 7 c. m. x 1 c.m. bone deep on the left frontal rigion of skull 2 c.m. above from No.1.
(3) A contusion 8 c.m. x 3 c.m. on the back of chest medial to right scapule.
(4) A contusion 16 c. m. x 3 c. m. on the back of chest 13 c. m. below from injury No.3.
(5) A contusion 10 c.m. x 3 c.m. on the left back of chest 8 c.m. below No. 4.
(6) A contusion 8 c. m. x 2 c. m. on the left back of chest 3 c. m. below No. 5.
(7) A contusion 18 c.m. x 3 c.m. on the back of chest crossing centre line with contusion already present.
(8) A contusion 3 c. m. x 3 c. m. on the top of right shoulder joint."
The injuries had caused fracture of parieto‑occipital region of the skull on the left side. In the opinion of the doctor, the death took place on account of compression of brain and fracture of base of skull also vault of skull. Doctor further opined that these injuries were sufficient to cause death in the ordinary course of nature.
Muhammad Tufail S.H.O. P.S. Nankana, the Investigating Officer arrested the appellant on 6‑9‑1981. Sarwar appellant while in custody led the police to the recovery of Dang P. 2 which was taken into possession vide memo. Exh.P.K. On the same day Inayat appellant in custody also led the police and got recovered Sota P 3 which was taken into possession vide memo. Exh.P.L. None of the recovery witnesses attesting these memos. entered the witness‑box except Muhammad Tufail P. W. 9 Investigating Officer.
The appellants when examined under section 342, Cr.P.C. denied the charge and stated that they have been involved falsely on account of suspicion and enmity. At the trial the prosecution relied upon the ocular testimony furnished by Mst. Bashiran P.W. 7, the widow of the deceased and Mst. Sahi P.W. 10, the mother of the deceased. The evidence as to the motive and quarrel was also led by the prosecution which was supported by these witnesses.
5. With the assistance of the learned counsel for the parties I have carefully gone through the record of this case. As far as ocular testimony is. concerned there is no doubt about the presence of these witnesses and in my view they are natural witnesses being inmates of the house. Since the occurrence took place in the compound of the Haveli where both sides were living, therefore, the presence of Mst. Bashiran P.W, 7 and Mst. Sahi P.W. 10 the mother of the complainant cannot be doubted. Furthermore, the statement of both these women inspire' confidence. A real mother would not substitute the real culprit and so would be the case of the widow. It is not a case in which the evidence can be branded and tainted inasmuch as no enmity existed between the parties. The quarrel had ensured over the dispute of water which is a normal feature in our rural society. Therefore, the cause of the quarrel resulting into the fateful incident cannot be disbelieved. I am, therefore, convinced that the prosecution evidence is true and the conviction can be sustained thereupon.
6. Careful consideration of the evidence also leads me to infer that in fact it was, only incident in which on account of heat of passions without pre‑meditation over a sudden quarrel this incident took place. I am not prepared to believe that after the altercation and exchange of abuses the deceased was taken into his room and sometime thereafter the attack was launched upon him. In fact it was one continuous incident in which the fatal blows were given to the deceased.
7. As far as medical evidence is concerned, the same corroborates the ocular testimony, inasmuch as the dimensions of the injuries on the person of the deceased lends support to the prosecution version that the deceased was given Dang and Sota blows. Eight injuries in all were caused and the participation of both the appellants is thus further corroborated by the medical evidence.
8. It was argued by the learned counsel for the appellants that there was inordinate delay in lodging the F.I. R. and, therefore, the prosecution must suffer for it. I am afraid, the contention has no force because the delay has been explained. The deceased after having received injuries on the head was rightly transported to Lahore for treatment, but unfortunately he died at the Ravi bridge and hence he was brought back and thereafter the matter was reported to the police. In this background the delay has been satisfactorily explained and, therefore, the contention is devoid of force.
9. It was next contended that the occurrence has taken place in darkness and, therefore, the identification of the appellants was not possible and it was a case of mistaken identity. This contention is also without substance. Both sides knew each other very well. The occurrence took place in the evening time after Maghrab prayers. In this view of the matter it cannot be said that there was total darkness at the time of occurrence so as to rule out the possibility of identification. Even if it was dark both the ladies knew the appellants and since Mst. Sahi had received an injury, therefore, identification by her cannot be considered to be mistaken.
10. Adverting to the question of sentence, in my view the offence under section 302, P.P.C. is not made out. The fight had taken place over the diversion of water, in common compound of the Haveli where the deceased and the appellant lived. As already discussed, in my view, this was a sudden affair in which during the exchange of abuses in heat of passions the deceased was attacked without any premeditation on the part of the appellant, therefore, the offence is covered by section 304, Part I, P.P.C. In this view of the matter I will alter the conviction from section 302, P.P.C. to 304, Part‑I, P.P.C. and accordingly the sentence of life imprisonment is altered to rigorous imprisonment for a period of 10 years under section 304, Part‑I, P.P.C. The sentence of fine is however, maintained.
With this modification this appeal is dismissed.
S.A./M‑46/L Sentence altered.
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