Find a Lawyer

Criminal Appeal No. 1160 of 1979, decided on 8th October, 1980.

-- S. 410 read with Penal Code (XLV of 1860), S. 304, Part II-Appeal (criminal)-Murder-Conviction, alteration in-Eye-witnesses interested and even distantly related to deceased and their testimony not supported by any independent corroborative evidence--State ment of accused that deceased first grappled and brick--batted them and they also threw brickbats at deceased in return, without any intention to kill him, appearing mare plausible--Conviction of accused under S. 302, P. P. C. altered to one under S. 304, Part II, in circumstances.

Ch. Muhammad Hussain for Appellants.

Sh. Naseerud Din for A.-G. for the State,

Date of hearing : 8th October, 1980.

Mansha, Manzoor, Nazar Muhammad and Nawaz were tried by the Additional Sessions Judge, Sahiwal, for the murder of Mansab. The trial Judge by his judgment dated 21st October, 1979, acquitted Nawaz and Nazar Muhammad; Mansha and Manzoor were convicted under section 302/34, P. P. C. and sentenced to imprisonment for life and fine of Rs. 2,000 each; or in default of payment thereof to one year R. I. The convicts have filed this appeal against the judgment of the Additional Sessions Judge.

2. Case against the appellants and the acquitted accused was register ed on the report Exh. P. C. lodged by Alia at Police Station Depalpur, which was recorded by Muhammad Iqbal A. S. I. on 23rd May, 1976, at 10.45 p. m.

3. Prosecution evidence in this case consists of motive, ocular testi mony, evidence of recovery and doctor's evidence.

4. Motive for the alleged attack on Mansab was that one Mammi Machhi, resident of Tootwala, Police Station Noor Shah came to live in Chak No. 42/D, about two years before the occurrence. He stayed with Nazar Muhammad (since acquitted). Mammi Machhi was a bad character. He used to pass indecent remarks to the women. Hence Mansab deceased told him not to pass through his street.

On the day of occurrence at morning time, Mammi again passed through the street of Mansab. He objected to that. Both abused each other. Later on Mammi told Nazar Muhammad about that. It was this grievance which led to the attack on Mansab as a result of which he died.

5. Alia (P. W. 6), Muhammad alias Mamman (P. W. 7) and Akbar (P. W. 10) were examined by the prosecution as eye-witnesses. Alia deposed that about 3 years ago, the time was Degerwela. He, Sultan, Muhammad and Akbar had come out of the mosque on hearing raula. They saw Mansab deceased and the accused standing outside the mosque. Nazar Muhammad was empty-handed, while the remaining three were armed with dangs. Nazar Muhammad raised lalkara that the enemy had come and he be taught a lesson for insulting Mammi Machhi. At this Mansha and Manzoor inflicted one dang blow each on the head of Mansab while Nawaz gave blows on the right eye and the right flank of Mansab. The witnesses tried to rescue the deceased but were threatened with dire consequences. As the witnesses apprehended danger they could not do much. Mansab fell down. He was bleeding. He became unconscious. The accused ran away towards their house carrying their weapons, Sooba arid Sooja, brothers of Mansab and Bashir son of Mansab, came to the spot. Mansab was placed on a cot and was being carried to Civil Hospital, Depalpur, when he expired in Chowk Pakpattan in Depalpur City.

The aforesaid statement of Alia is supported by the remaining two eye-witnesses.

6. The next important piece of evidence is the post-mortem report. Dr. S. M. Dilbar Hassan, who on 24th May, 1976 at 8.00 a. m. conducted the post-mortem found the following injuries:-

(1) A contused wound, 3/4" x 1/8' bone deep, on the forepart of bead, slightly on the left.

(2) A swelling 6" x 4" on the right side of the head, going on to the top.

(3) Right upper eyelid was swollen and bruised.

(4) Contusion 2 " x, 1/2" just above the left anterior superior Iliac spine.

Injury Now, 1 and 2, according to the opinion of the doctor, which led to shock and intracranium haemorrhago, were sufficient to cause death in the ordinary course of nature,

7. Now, I shall rotor to the statement of the appellants. Mansha denied the allegation of murder, but admitted that Karam Bhari daughter of Nazar Muhammad's niece was the wife of Akbar P. W. axed that Zohran, daughter of Nazar Muhammad a niece is the wit's of Akbar P, W. He also admitted that Zohran was abducted by the laid P.W,

Rest of the allegations wore denied by him and when questioned why this case against you and why the P. Ws. have deposed against you", his answer Was as follows --

"The occurrence did not take place as alleged by the prosecution, In fact Mansab deceased grappled with Mammi Machni. I separated them, Mansab deceased hurled filthy abuses at me and also threw brickbats at me and Mammi Machni. I got aside. I and Mammi Machni threw brickbats at hint in return without any intention to kill him, The so-called eye-witnesses were not present at the time of occurrence, the remaining accused ware also not present at the time of occurrence:"

Similarly, Manzoor denied all the allegations, admitted that Zohran was abducted by Akbar P.W. He said that the P.Ws had deposed against him due to enmity and that he was not present at the time of occurrence. He declined to produce any evidence in defence:

8. Learned counsel appearing on behalf of the appellant contended that the ocular version does not inspire confidence because the eye-witnesses are interested and related to the deceased He further submitted that Mansha had given reasonable as to how Mansab was injured and there is no reason to disbelieve his statement:

9. I have also heard the learned counsel for the State who supported the judgment of the trial Court:

10. The eye witnesses are interested They are even distantly, related to the deceased: Therefore in this case, it is necessary to look for some independent corroborative evidence There is no evidence of recovery of weapons: The only other evidence is the doctor's statement: If that is to be believed that I think would not advance the prosecution ease an further, because these injuries could he caused in the manner in which Mansha said in his statement,

After examination the prosecution evidence and taking into consideration the statement of Mansha, I am of the view that the statement of Mansha is more plausible.

11. Having accepted the statement of Mansha, the legal consequences would be that the conviction of the appellants under section 302 P.P.C. shall have to be set aside and I hereby do the same. Their conviction is altered to section 304 (II), P. P. C. and the sentence is reduced to one already undergone.

The amount of fine is not at all reasonable. I, therefore, gave notice to the counsel for the appellants to show cause why the same be not enhanced. He accepted the notice. I accordingly enhance the same to Rs. 10,000 each, which shall be paid as compensation to the legal heirs of Mansab deceased. Collector concerned should take immediate steps for realization of this amount and when paid should inform the Registrar of this Court.

The appeal is disposed of accordingly.

Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.