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Criminal Appeal No. 748 of 1980, decided on 19th January, 1983.

----S. 302 read with S. 326-Murder--Offence, alteration of---F. I. R. lodged promptly, disclosing name of accused, names of eye-witnesses, weapon used by accused as well as fact that accused apprehended on spot-Ocular testimony also in consonance with probabilities and confidence inspiring-Motive for crime also prov ed--Accused, however, causing two incised wounds on thigh of victim, out of which one declared as simple while other one result ing in death of deceased-Injury responsible for death of deceased not having been caused on vital part of body, held, it would be a case of grievous hurt as punishable under S. 316, P. P. C. ---Conviction under S. 302; P. P. C. altered to one under S: 326, P. P. C. in circumstances.

Ikramul Haq for Appellant.

Habib Ahmed Ansari for the State.

Date of hearing: 18th January, 1983.

This criminal appeal arises from the judgment of the learned Additional Sessions Judge, Sahiwal whereby he on 12-5-1980 while acquitting Mukhtar, convicted Niaz Ahmad under section 302, P. P. C. for causing the death of Muhammad Rafiq and sentenced him to imprisonment for life and a fine of Rs. 20,000 in default thereof to further R. I. for 6 months, with, the direction that the fine if realised shall be paid to the legal heirs of the deceased.

2. The occurrence took place, on 30-4-1978 at sunset time on the bank Rajbah 12-L, Chichawatni Town. The F. I. R. Exh. P. E. was lodged by Jan Muhammad P. W. 6, the husband of the sister of the deceased at P. S. Chichawatni, which was recorded at 7-45 p. m. on the same day by S. I. Muhammad Shafi P. W. 9. The motive as alleged by the prosecution, is that the appellant and acquitted co-accused used to stand in front of the house of Muhammad Rafiq deceased which was objected to by Muhammad Rafiq and this annoyed the appellant and his co-accused. The prosecution case is that Jan Muhammad complainant P. W. 6 and Ghulam Muhammad were present in a lane in front of their houses when they heard alarm coming from 12-L Rajbah. On hearing the same the complainant and Ghulam Muhammad ran towards Rajbah. They saw that Mukhtar Alam acquitted accused had caught hold of Muhammad Rafiq deceased and Niaz Ahmad appellant gave two churri blows to the deceased in their view who fell down. This occurrence was allegedly seen by Wali Muhammad and Khadim Ali P. Ws. The accused persons after inflicting injuries to the deceased threw blood-stained churris on the spot and started running towards jungle but the witnesses apprehended them. The deceased in injured condition was removed to Civil Hospital, Chichawatni and thereafter, when he under the advice of the doctor was being removed to the District Head-quarter Hospital, Sahiwal, he expired near Harappa before reaching the hospital.

3. The post-mortem was conducted by Dr. Shamshad Hussain P. W. 5, who found the following injuries on his person:-

(1) An incised wound 2 x 1" x cutting muscles and vessels and going deep of front 1n outer aspect of uppermost part of left thigh, corresponding cut on Shalwar.

(2) An incised wound 1 " x cutting muscles vessels going deep on back and upper most part of left thigh. A corresponding cut is present on Shalwar.

In the opinion of the doctor the cause of death was due to shock and haemorrhage resulting from injury No. 1 which was sufficient to cause death in the ordinary course of nature. Injury No. 2 was declared simple and both the injuries were caused by sharp-edged weapon. The time between injuries and death was 2-3 hours. It is remarkable that the deceased when he was alive in injured condition was medically examined by Dr. Syed Shamshad Hussain who had found the aforementioned injuries on his person.

4. After recording the F. I. R. the Investigating Officer Muhammad Shafi P. W. 9 left for the spot. On reaching there, he was informed that the injured had been removed to the hospital. The Investigating Officer then went to the hospital He moved an application Exh. P. C. 4 inquiring from the doctor whether the injured was in fit condition to make the state ment. The doctor replied in the negative. He then sent the injured for medical aid to Sahiwal under the escort of Muhammad Arshad, F. C., P. W. 2 and himself left for the spot. He found the appellant and his co-accused under the private custody of the witnesses. He arrested them. Niaz Ahmad appellant produced blood stained churri Exh. P. 4 before hire which was taken into possession vide memo. Exh. P. F.

5. In order to prove its case, the prosecution examined as many as 9 witnesses, Jan Muhammad P. W. 6 and Khadim Ali Chowkidar, P. W. 7 have given the ocular account of the occurrence. Jan Muhammad com plainant has reiterated the version given by him in the F. I. R. He stated that he saw that co-accused Mukhtar had caught hold of the deceased when Niaz Ahmad appellant gave him two Churri blows on his person and that the appellant and his co-accused were apprehended on the spot. Khadim Ali, P. W. 7 has supported Jan Muhammad P. W. 6 on all material particulars. It is to be noted that the eye-witnesses of the occurrence namely, Wali Muhammad and Ghulam Muhammad mentioned in the F. I. R. were not produced and given up as unnecessary. Jan Muhammad P. W. 6 and Khadim Ali P. W. 7 have also supported the recovery of blood-stained Churri Exh. P. 4 from Niaz Ahmad appellant. The Serolo gist's report Exh. P. M. shows that churri Exh. P. 4 was stained with human blood. The rest of the evidence is more or less of formal nature.

6. The appellant when examined under section 342, Cr. P. C. denied all the incriminating circumstances. In reply to the question as to why this case against him Niaz Ahmad appellant stated;

"After the imposition of Martial Law, a body of individual of Chichawatni belonging to Chichawatni were picked up and detained by the police. They having been allegedly involved in subversive activities, such as derailment of train and schools, etc. They included some of the relatives of the complainant and his brother hood. Since I belong to the opposite political faction, the brother hood of the complainant has ever since been nourishing a grouse against me for having been an instruments for the involvement of the above said People's Party workers in the above said cases Rafiq deceased had been attacked by some unknown assailants at Isha time. I has been involved falsely to wreak-vengeance."

It is to be noted that when Niaz Ahmad was askew to explain his arrest by the witnesses on the spot, he simply denied his arrest on the spot and did not explain as to from where he was arrested. The appellant, however, did not produce any evidence in defence. Mukhtar, the acquitted co-accused also denied all the incriminating circumstances and produced Haji Ghulam Muhammad as D. W. 1, who stated that Mukhtar was a man of good moral character.

7. The learned counsel contends

(i) that the appellant had no motive to do away with the deceased;

(ii) that in fact the alleged eye-witnesses did not see the occurrence and did not apprehend the accused on the spot.

(iii) that the evidence as to ocular account as well as recovery is not be reliable; and lastly.

(iv) that the prosecution case accepted at its face value, the offence if any committed by the appellant would fall within the purview of section 326, P. P. C.

As against this, the learned counsel for the State assisted by the learn ed counsel for the complainant has vehemently defended the judgment of the trial Court.

8. I have considered the arguments, advanced by the learned counsel for the parties and have gone through the record. After having appreciated the case in accordance with the guiding principles laid down by the superior Courts. I am inclined to believe the prosecution case that Muhammad Rafiq deceased died at the hand of Niaz Ahmad appellant and none else, for the reasons that it is a case of prompt and concrete F. I. R. that the name of appellant, the names of the witnesses, the weapon used by the appellant and the fact that the appellant was appre hended on the spot are mentioned therein. Although the witnesses were subjected to lengthy cross-examination, yet the defence has not been able to shake the genuineness of this document. The motive stands proved and except for some minor omissions; there is nothing on the record to discard the evidence of motive. As for the ocular evidence, I find that Jan Muhammad P. W. 6 and Khadim Ali P. W. 7 have given cogent reasons for their presence at the spot at the time of occurrence. No doubt, Jan Muhammad is related to the deceased but it is well-established that more relationship is not sufficient to reject the testimony of witness. The appellant has not been able to prove any enmity or ill-will of this witness against him. As for Khadim Ali, he is a Chowkidar of Farm Service Centre, Co-operative Societies and has given plausible reason for his presence at the place of occurrence. No doubt, he has tried to conceal some admitted facts but that would not be sufficient to discard his statement as a whole because he has no enmity whatsoever, with Niaz Ahmad appellant. It is remarkable that both witnesses have been subjected to lengthy cross-examination but nothing advantageous could be elucidated. As for the recovery, Khadim Alt P. W. 7 has explained that when the police came on the spot, the churri was lying on the ground and that Niaz Ahmad picked it up and produced it before the police. I do not see anything unnatural in it. The statements of the eye-witnesses appears to be in consonance with the probabilities and confidence inspiring and although, implicit reliance can be placed upon their evidence, yet their is a strong confirmatory circumstance that the appellant was apprehended on the spot. In his statement under section 342 Cr. P. C., the appellant has simply denied his arrest on the spot but has not explained as to wherefrom he was arrested. He did not care to adduce any evidence to show that he was arrested from a place other than the spot. For all these reasons I am fully convinced that it was the appellant who inflicted injuries on the person of the deceased which ultimately resulted in his death.

9. As for the nature of offence, the learned counsel for the State has submitted that the offence made out against the appellant was that of murder. I have not been able to persuade myself to agree with him inas much as the injuries were not inflicted on the vital part of the body; out of 2 injuries inflicted by the appellant, injury No. 2 has been declared simple; the death was due to shock and haemorrhage resulting from injury No. 1 alone and as such it was reasonably argued by the learned counsel for the appellant that the offence was not one of murder and that the appellant could only be presumed to have intended to cause grievous hurt with a dangerous weapon. To my mind, from nature of the injury inflicted on the person of the deceased it would be legitimate to infer that it was hurt which endangered the life of victim and as such the appellant has to be convicted under section 326, P. P. C.

10. For what has been stated above, the conviction of the appellant under section 302, P. P. C. is set aside and the same is altered to one under section 326, P. P. C. He is sentenced 7 years' R. I. He would also get the benefit of section 382-B, Cr. P. C. With this modification, this appeal is dismissed.

M. Y. H. Order accordingly.

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