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Criminal Petition No. K‑19 of 1983, decided on 12th January, 1984.

(From the judgment dated 6‑2‑1983 of the High Court of Sind passed in Criminal Appeal No. 49 of 1982).

‑‑ Art. 185(3) ‑ Penal Code (KLV of 1860), Ss. 302/34, 324/34 & 304, Part I‑Contentions (1) that High Court was not justified in excluding evidence of three eye‑witnesses merely for reason of their relationship with deceased and of their statements under S. 161, Cr. P. C. having been recorded belatedly (2) that complainant who had received injuries was not to be doubted and at least his F. I. R. had been recorded promptly (3) that prosecution witness who had not seen the whole occurrence but only a part of it, therefore, there was no conflict between his evidence and that of other eye‑witnesses (4) that medical evidence fully supported prosecution case inasmuch as all injuries could not have been caused by convicted accused alone (5) that no sufficient basis were present for High Court to hold that occurrence had taken place in a sudden quarrel thus justifying alteration of convic tion from S. 302, P. P. C. to S. 304, P. P. C.‑Held, contention raised required consideration‑Leave granted‑Bailable' warrants ordered to be issued against acquitted accused respondents.

Rashid Akhtar Qureshi, Advocate Supreme Court and Advocate‑on‑Record for Petitioner.

Muhammad Hayat Junejo, Advocate Supreme Court with Muzaffar Hassan, Advocate‑on‑Record for Respondents Nos. 1, 2 and 4.

A. Sattar Shaikh, Addl. A.‑G. Sind, with S. M. Abbas, Advocate‑on- Record for Respondent No. 5.

Date of hearing : 12th January, 1984.

he four respondents, namely, Khalil Ahmad, Bashir Ahmad son of Rehmat Ali, Niaz Ahmad and Shadi Khan, had been held guilty of the murder of Bashir Ahmad deceased and of having caused injuries to Wali Muhammad complainant. They had accordingly been sentenced by the trial Court under section 305/34, P. P. C. to imprisonment for life and a fine of Rs. 1,000 and compensation in the like sum each, and under section 324/34, P. P. C. to R. I. for one year and compensation of Rs. 500 each. On appeal, the High Court, however, acquitted Khalil Ahmad, Bashir Ahmad son of Rehmat Ali and Shadi Khan respondents in the case while altering the conviction of Niaz Ahmad respondent from sections 302/34 to 304, Part I, P. P. C., for which he was given R. I. for eight years in addition to the sentence of fine and compensation already awarded. The High Court held him guilty also under section 324 for which the sentence of imprisonment and compensation already awarded was maintained. He was given the benefit of section 362‑B, Cr. P. C: Aggrieved, Wali Muhammad has approached this Court for leave to appeal.

2. The occurrence took place on 8‑2‑1979 at 7‑30 p.m. Khadpara, Tando Adam Town, about one mile from the police station of that Town. The complainant, who was then going with the deceased, was attacked by the four respondents. Bashir Ahmad, son of Rehmat Ali. respondent, gave him a dagger blow which landed near his left nipple, while Niaz Ahmad respondent gave a dagger blow, in warding off which he received injury on the middle finger of his right hand. The deceased, who tried to intervene, was given dagger blows by Niaz Ahmad and Khalil Ahmad respondents and a lathi blow by Sadi Khan respondent, upon which he fell down. As witnesses arrived on hearing the cries, the assailants fled the scene. The deceased died on reaching the hospital. The report was lodged at 8‑30 p.m. the same day. Admittedly, there was enmity subsisting between the parties, which, according to the prosecution, was the motive for the crime. A dagger each was recovered from Niaz Ahmad and Khalil Ahmad respondents, but as the blood stains present on them haft disintegrated, its origin could not be ascertained. However, the shirt and trousers recovered from Niaz Ahmad respondent were found stained with human blood.

3. The post‑mortem examination showed the presence of (1) incised wound, 1" x 1 /4" x cavity deep, over left parietal region 1" medial and above left ear, (2) incised wound, 1/2" x 1/4" x skin deep, over left occipital region, and (3) bruise 3" over back of chest on the person of the deceased. Wali Muhammad complainant was found to have (1) an incised wound. I/2' x 1/4" X skin deep, over right middle finger and (2) an incised wound x 1/8" x skin deep, over chest below left nipple. Niaz Ahmad respondent had a lacerated wound, simple in nature and caused by some blunt substance. The prosecution produced ocular testimony of Wali Muhammad, the injured complainant (P. W. 1), and of Khushi Muhammad (P. W. 2) and Faqir Muhammad (P. W. 3) whose names had transpired in the F. I. R., and Munir Ahmad (P. W. 4). The plea of the respondents was of denial and of false implication. The trial Court did not rely on the recoveries but on the basis of the other evidence found all the respondents guilty. On appeal the High Court acquitted three of them and altered the conviction of the fourth from sections 302/34 to 304, Part I, P. P. C. In arriving at its conclusion, the High Court excluded the eye‑witness account furnished by Wali Muhammad, Khushi Muhammad and Faqir Muhammad for the reason that they were closely related to the deceased and that their section 161, Cr. P. C. statements had been recorded after 3/4 days of the occurrence, for which no cogent explanation had beet; furnished. The High Court, however, relied on the evidence of Munir Ahmad P. W. an independent witness who had implicated Niaz Ahmad respondent only. As in the view of the High Court the offence had been committed in a sudden quarrel between the parties, it held him liable under section 304, Part I, P. P. C. for the death of the deceased and under section 324, P. P. C. for injuries to the complainant.

4. Learned counsel for the petitioner has urged that the High Court was not justified in excluding the evidence of the three eye‑witnesses merely for the reason of their relationship with the deceased and of their statements under section 161, Cr. P. C. having been recorded belatedly. He pointed out that Khushi Muhammad P. W. was directly related to the accused and that in any case the presence of Wali Muhammad complainant who had received injuries was not to be doubted and at least his F. I. R. had been recorded promptly. He further pointed out that Munir Ahmad P. W. had not seen the whole occurrence but only a part of it and, therefore, there was no conflict between his evidence and that of the other eye‑witnesses. The medial evidence, he urged, also fully supported the prosecution case inasmuch as all the injuries could not have been caused by Niaz Ahmad alone. There was also, according to him, no sufficient basis for the High Court to hold that the occurrence had taken place in a sudden quarrel justifying the alteration of the conviction from section 302 to 304, Part 1, P. P. C.

5. The contentions raised require consideration and accordingly we grant leave to appeal. Bailable warrants of arrest shall issue against respondents Khalil Ahmad, Bashir Ahmad son of Rehmat Ali and Shadi Khan in the sum of Rs. 20,000 (rupees twenty thousand only) with one surety in the like sum' each.

M. Z. M. Leave granted.

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