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Criminal Appeal No. 572 of 1971, decided on 29th April 1974.
‑‑ S. 302/34‑Murder‑Eye‑witnesses alleging accused causing a single injury to deceased on shoulder but no such injury found' on person of deceased‑Direct conflict between medical evidence and ocular testimony remaining unresolved‑Accused, held, not responsible for any injury, in circumstances‑Conviction set aside.
----S. 300, Exception 4 read with Ss. 302 & 304, Part II‑Murder -Sudden tight‑Dispute arising suddenly amongst members of family over petty matter resulting in death of one on complainant's side‑Conviction under S. 302, P. P. C. altered to one under S. 304, Part II.
Major Waheed‑ud‑Din for Appellants.
Ch. Muhammad Anwar Khan for the State.
Date of hearing : 29th April 1974.
The following pedigree‑table will facilitate to appreciate the facts of the case:‑---
Amir Khan
---------------------------------------------------------------------------------------
Asadullah Abdullah Muhammad Khan
(P. W. 12)
Bashir --------------------- --------------
Raj Ali Ahmad Ali Yaqub Yusuf
(Appellant) (Appellant) (deceased) (P. W. 11)
2. According to the prosecution, three brothers, namely Abdullah (father of the appellants) and Muhammad Khan (father of Yaqub deceased and Yusuf P. W.) and Asadullah P. W. used to five jointly in one Iha1a. Several years ago, Asadullah P. W. left his share for his remaining two brothers, namely, Abdullah and Muhammad Khan and the 1hata was partitioned between these two brothers. Later on, a dispute arose between Abdullah and Muhammad Khan as the former was alleging that the latter had obtained more than his due share. He was, therefore, demanding a fresh partition, while Muhammad Khan was not agreeing to it. On 4‑6‑1970 at Ishawela, both these brothers again quarrelled and Abdullah again demanded fresh partition of the Maw to which Muhammad Khan did not agree. This led to an altercation between them. In the meantime, Asadullah P. W. and Mst. Bibi, wife of Muhammad Khan also came out. After hearing the noise Ahmad Ali and Raj Ali appellants also came out of their house. Raj Ali was armed with hatchet (Exh. P. 4) while Ahmad Ali was carrying a knife (Exh. P. 3.) Raj Ali gave blows with his, hatchet to Muhammad Khan on his right arm, left arm and left shoulder. Ahmad Ali gave him a knife blow on his chest, In the meantime, Muhammad Yusuf P. W. and Muhammad Yaqub deceased (sons of Muhammad Khan) also came out. Yusuf was given a hatchet blow by Raj Ali, while Ahmad Ali gave him a knife blow on his thigh. Yaqub was given two knife injuries by Ahmad Ali on his right arm and chest. Raj Ali gave a hatchet blow on the right shoulder of Yaqub. The injured fell down. Bashir and Ahmad Ali arrived on the spot and they claim to have witnessed the occurrence. The appellants went to their house and bolted it from inside. Yaqub died on the spot. The injured persons were removed to the District Headquarters Hospital for treatment. Asadullah P. W. went to the police station where he lodged the F. I. R. (Exh. P. A.) at 10 p. m. on 4‑6‑1970. It was recorded by A. S. I. Aftab Ahmad P. W. After recording the report he reached the spot at 3‑00 a. m. and prepared the injury statement (Exh. P. G.) and inquest report (Exh. P. W.) of the dead body of Yaqub and despatched it to the mortuary at Lyallpur for post mortem examination. He collected blood‑stained earth from the lane in front of the house of Muhammad Khan P. W. vide memo. Exh. P. B. and sealed it into a parcel. He arrested Raj Ali and Ahmad Ali appellants on 5‑6‑1970. Raj Ali appellant was found wearing blood‑stained chader (Exh. P. 1) and blood‑stained shirt (Exh, P. 2). The Investigating Officer removed these clothes from his person and sealed them into a parcel vide memo. Exh. P. C. Ahmad Ali appellant produced blood‑stained knife (Exh. P. 3) before him at the time of his arrest. It was taken into possession and sealed into a parcel vide memo. Exh. N. D. Raj Ali appellant at the time of his arrest produced blood‑stained hatchet (Exh. P. 4) which was taken into possession and scaled into a parcel vide memo. Exh. P. E. The Investigating Officer also got prepared site plan (Exh. P. F.) by Aurangzeb Draftsman. The Investigation was later verified by Ch. Nazar Muhammad Sub‑Inspector. After the usual investigation, the police challaned the present appellant who were tried by the Sessions Judge, Lyallpur. The learned Sessions Judge vide his impugned judgment dated 104‑1971, found both the appellants guilty under section 302/34, P. P. C. for the murder of Yaqub deceased and sentenced each of them to transporta tion for life. The appellants were further held guilty under section 324/34, P. P. C. on two counts for causing injuries to the prosecution witnesses and each of them was sentenced to rigorous imprisonment for one year on each count. All the sentences were ordered to run concurrently. The appellants have challenged their convictions and sentences through the present appeal.
2. Dr. Safdar Ali on 5-6‑1970 at 1 p. m. performed the post‑mortem examination on the dead body of Muhammad Yaqub deceased and found the following injuries on it:
(1) An oblique incised wound 4' X 2' x 2' deep on the front of right chest, upper part, clavicular region, 2' from shoulder, 2 ' from nipple and 2 ' from the middle. Profuse haemorrhage was present in and around the wound. The wound was just on the lower border of right clavicle‑ Muscles and artery and vein and nerves were cut. No fracture of ribs was present.
(2) An incised wound 1' x 1/3' x skin deep on the front of middle of left forearm.
(3) An incised wound 1 ' x ' x skin deep on the front of left elbow joint.
In the opinion of the doctor death was due to injury No. 1 which caused shock and haemorrhage. Injuries Nos. 2 and 3 were simple. All the injuries were inflicted by a sharp‑edged weapon. Injury No. 1 was sufficient in the ordinary course of nature to cause death, Probable time that elapsed between the injuries and death was immediate and between death and post‑mortem examination was within 24 hours.
3. Dr. Muhammad Rafique Anjam on 5‑6‑1970 medically examined Muhammad Khan P. W. and found the following injuries on his person :‑---
(1) An incised wound 1 ' X ' x muscle deep on the outer, side of right elbow.
(2) An incised wound 2' x ' x on the outer side of left upper arm 2 below the shoulder, vertical.
(3) A stab wound 1' x ' x not probed, on the front of the chest in the midline, lower part.
(4) An incised wound 2 ' x '' x muscle deep on the top of right shoulder transverse.
Injury No. 3 was kept under observation and the rest of the injuries were simple, caused by a sharp‑edged weapon within the duration of 3 hours.
4. On the same day at 1‑25 a. m. he also medically examined Muhammad Yusuf P. W. and found the following injuries on his person.
(1) An incised wound 2 ''x ' x bone deep on the outer side of left upper arm 3' below the shoulder, vertical.
(2) An incised wound 3/4' x ' x muscle deep vertical on both eyelids of the left eye.
Both the injuries were simple in nature.
5. The appellants when examined under section 342, Cr. P. C. denied the prosecution allegations. Ahmad Alt appellant when asked why this case was made against him stated as under--- ‑
"My brother 1taj Ali divorced the daughter of Asadullah P. W. and Mst. Bibi wanted the possession of the whole 1hata. They have colluded to falsely implicate us."
Similarly, when Raj Ali appellant was asked this question he stated as follows :‑---
"I divorced Asadullah P. Ws. daughter. Mst. Bibi wanted whole the Ihata to be in her occupation and wanted us to go. We have been implicated due to that enmity.
However, the appellants led no evidence in defence.
6. In support of its case, the prosecution produced three eye‑witnesses, namely. Muhammad Khan (P. W. 10), Muhammad Yusuf (P. W. 11) and Asadullah (P. W. 12). The recoveries in this case are supported by Ahmad Khan (P. W. 8) and Dost Muhammad (P. W. 9). The other witnesses are more or less formal.
7. The learned counsel for the appellants has frankly conceded before me that he does not subscribe to the defence suggestion that some dacoits had attacked and killed the deceased and injured the P. Ws. He has further conceded that the present appellants alone were responsible for causing injuries to the deceased and the P. Ws. He has, however, vehemently argued that Raj Ali appellant cannot be held responsible for causing any injury to Yaqub deceased. He has taken me through the statements of the eye‑witnesses. According to the statement of Muhammad Khan (P. W. 10), Yaqub deceased was given two knife blows by Ahmad Ali accused, one on the arm and the other on the chest. As regards Raj Ali appellant, 6e stated in examination‑in‑chief as under ;‑
"Raj Ali gave a hatchet blow on the right shoulder of Yaqub deceased".
As observed earlier, this witness is the father of the deceased and Muhammad Yusuf t'. W. The next eye‑witness is Muhammad Yusuf brother of the deceased, and son of Muhammad Khan P. W. In his examination‑in‑chief he attributed one injury to Raj Ali appellant in the following words :‑
"Raj Ali accused gave him a hatchet blow on his left shoulder."
As regards the third eye‑witness, namely, Asadullah (P. W. 12). he stated that he could not see who injured whom. The result is that according to Muhammad Khan P. W., Raj Ali appellant gave a hatchet blow on the right shoulder of Yaqub deceased, ,while according to Yusuf P. W., Raj Ali gave a hatchet blow to the deceased on his left shoulder. As mentioned earlier, according to the post‑mortem examination, there was no injury on either the right shoulder or the left shoulder of the deceased. There were in all three injuries on the person of the deceased‑one on the front of right chest upper part, one on the front of the middle of left forearm and the third on the front of left elbow joint. Thus, according to the doctor there was no injury on the shoulder of the deceased. According to the eye‑witnesses, the injury attributed to Raj Ali was either on then left shoulder or the right shoulder of the deceased. There is thus a direct conflict between the ocular testimony of the eye‑witnesses and the medical evidence. The prosecution has not in any way resolved this conflict. It is well settled now that in case there is clash between the medical evidence and the ocular testimony, preference is given to the former over the latter Acting on this principle I prefer the medical evidence over the oral testimony of the eye‑witnesses. The result is that so far as the allegations of the prosecution that Raj Ali inflicted a hatchet blow of the right/left shoulder of the deceased cannot be believed as there was no such injury found on the person of the deceased. This was the only injury attributed to Raj Ali and no other injury is alleged to have been caused by him. The result is that Raj Ali appellant cannot be held responsible for any injury or injuries caused to Yaqub deceased. Consequently, his conviction under section 302/34, P. P. C. for causing injury to the deceased is set aside. As regards his conviction under section 324/34, P. P. C. on two counts for causing injuries to Muhammad Khan and Yusuf P. Ws. the learned counsel does not challenge the same and states that he was rightly convicted under this section. The sentence awarded to this appellant on each count was one year. That period has already expired, I therefore direct that he should be released forthwith if not required in connection with any other case.
8. Now I take up the case of Ahmad Ali appellant. According to the counsel for the appellants, his case is not covered by section 302, P. P. C. but by section 304, Part li, P. P. C. In this connection, I would like to quote below the observations of the learned Sessions Judge regarding this aspect of the case:‑---
"The circumstances of the case are such that the fight flared up all of a sudden. It was not a premeditated murder. The accused saw their father quarrelling with his brother and picked up arms and attacked them and they inflicted injuries to sons of Muhammad Khan who came later on the same, fit."
The learned counsel for the State concedes that it was a sudden quarrel between the members of the same family and supports the above‑quoted finding of the trial Court. The question which arises for determination is that if it was not pre‑medicated murder, whether the case is covered by any of the Exceptions or not. The learned defence counsel has relied upon Exception IV to section 300 of the Penal Code which deals with sudden right. When confronted with this situation, the leaned counsel for the State has frankly conceded that the case of Ahmad Ali would not fall under sec tion 302, P. P. C. but under section 304, Part II, P. P. C. In view of the above quoted hiding by the trial Court and admission by the learned State Counsel, I alter the conviction of Ahmad Ali appellant from one under section 302, P. P. C. to ore under section 304, Part II, P. P. C. As regard to the quantum of sentence, the dispute arose suddenly amongst the members on the family over a petty matter. Keeping in view the circumstances and back ground of the case, I find that the ends of justice would be met if this appellant is sentenced to six years' rigorous imprisonment. Accordingly while convict ing Ahmad Ali appellant under section 304, Part II, P. P. C., I sentence him, to undergo rigorous imprisonment for six years. His conviction under sec tion 324/34, P. P. C. on two counts has not been challenged. Accordingly, I maintain his conviction and sentences under section 324/34, P. P. C., but the sentences are ordered to run concurrently.
9. With the above modification, this appeal stands disposed of.
Order accordingly.
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