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Criminal Appeal No. 72 of 1978, decided on 13th May, 1985.

---Ss. 302, 325/34 & 323/34--Appreciation of evidence--Delay in lodging F.LR. having been satisfactorily explained by complainant--Eye witnesses though related to deceased but were also related to accused persons--Said eye-witnesses having no enmity with accused and successfully standing test of cross-examination--No material contradic tion/discrepancy found in statements of said eye-witnesses--No inherent infirmity seen in their evidence--Way in which said witnesses had given evidence found to be very impressive--Number of injuries found on person of deceased and complainant commensurated with number of persons named by eye-witnesses as assailants--Defence version not appealing to reason--Accused not laid down any foundation for their substitution for real culprits--Accused also failed to rebut prosecution and its evidence--Conviction maintained in circumstances.

---Ss. 302, 325 & 323/34--Nature of offence--Accused persons giving fists, kicks, shoe and knee blows to deceased and complainant--One of accused giving Danda blows to deceased--No serious enmity found between parties--Deceased was husband of sister of, two accused--During talk between parties all of a sudden accused started beating with fists and kicks--Fact that which injury was caused by Danda picked up by one accused from spot, not clear--Doctor could not give cause of death even after post-mortem and no clear cause for perforation given in report of bacteriologist--No exception, held, could be taken to conviction of accused under S. 325, P.P.C.--Prayer of complainant for retrial of accused under S. 302, P.P.C. declined.

---Ss. 302 & 325--Criminal Procedure Code (V of 1898), S.382-B--Accused giving fists and kick blows to deceased--Trial Court convicting accused under S, 325, P.P.C. and sentencing them three to five years' R.I.-- Sentence awarded to accused, held, was inadequate--Benefit of S.482-B, Cr. P. C. not given to accused circumstances.

Ch. Asghar Ali for Appellants.

Muhammad Bashir for the State.

Date of hearing: 13th May, 1985.

This Criminal Appeal No. 72 of 1978 by Saghir Hussain, Abid Hussain and Dilawar Hussain and the connected Revision No. 44 of 1978 by Syed Zaneer-ul-Hassan for retrial of the accused, under section 302, P.P.C. arise from the judgment of learned Additional Sessions Judge, Lahore. whereby he on 14-1-1978 while impliedly acquitting Saghir Hussain, Abid Hussain and Dilawer Hussain of the charge under section 302 34, P.P.C. convicted them under section 325/34. P.P.C. for causing the death of Niaz Ali and causing injuries to Zaheer-ul-Hassan P.W. and sentenced them to 5 years' R.I. and a fine of H.8.1,000 in default thereof one year's R.I. under section 325/34, P.P.C. one to one year's R.I. each under section 323/34, P.P.C. with the direction that the sentences shall run concurrently. I propose to dispose of them through single judgment.

2. The occurrence took place on 26--7-1976 at 11-30 a.m. in village Chad Rai of P.S. Kahna. The distance between place of, occurrence and the police station is five miles. The F.I.R. Exh.P.D. was lodged by Zaheer-ul-Hassan on the following day at 9-15 a.m.

3. The background of the occurrence was that Niaz Ali deceased and Zaheer-ul-Hassan complainant were married to Mat. Shahnaz Bano and Mat. Parveen, the two sisters of Abid Hussain and Saghir Hussain appellants. The relations between Mst. Shahnaz Bano and Niaz Ali deceased became strained so she came to the house of her brothers. In the meantime, Mst. Kishwar, sister of the wife of the deceased died. Niaz Ali did not come for condolence. He, however, attended Chehlum of Mst. Kishwar on 25-7-1976. Zaheer-ul-Hassan and Rehmat Ali P.Ws. also attended the Chehlum. On the next day at 11-30 a.m. the appellants enquired from the deceased and Zaheerul Hassan complainant as to why Mst. Shahnaz Bano had left the house of her husband and at the same time they opened attack on Niaz Ali. threw him, on the ground and started giving him fists, kicks and knees blows. When Zaheer-ul-Hassan complainant tried to intervene. Dilawar Hussain appellant gave him shoe blow on his head whereas Saghir Hussain and Abid Hussain gave him fist and kicks blows. Thereafter, Saghir Hussain appellant picked up a Danda and gave blows with the same on the person of Niaz Ali who became unconscious. Niaz Ali was removed to Civil dispensary, Manga. Ghulam Sarwar P.W. 1 gave him first aid. Niaz Ali succumbed to the injuries at mid-night.

4. Muhammad Ali S.I. arrested Saghir Hussain and Abid Hussain on 1-8-1976. He arrested Dilawar Hussain on 6-8-1976. Saghir Hussain got recovered Danda Exh.P.l from his house on 5-8-1976. Dilawar Hussain got recovered pair of shoes Exhs:P.2/1 and 2 on 8-8-1976.

5. Dr Muhammad Yousaf Iqbal P.W. 8 had examined Zaheer-ul-Hassan P.W. on 27-7-1976. He found 2 injuries simple in nature caused by blunt weapon. Dr. Tahir Anees P.W.7 conducted post-mortem examination on the dead body of Niaz Ali. He found 7 contusions on his person. The injuries were caused by blunt weapon. On internal examination he found partial fracture of 9th and 10 ribs on right side. He could not give the exact cause of death. He deferred the matter till the receipt of Baeteriologist report. On receipt of report Exh.P.G. given by Dr. Shamim Bokhari Bacteriologist he opined that the death was due to peritonnis and toxaemia due to perforation in small intestine. It may be noted that the report Exh.P.Q. was not clear on the cause of perforation so, the doctor based his opinion on clinical sense and findings.

6. To prove its case prosecution examined 10 witnesses. Zaheer-ul -Hassan P.W. 3 and Rehmat Ali P.W. 4 have given the ocular account of the occurrence. They claim to have seen the three appellants giving fist, kicks and shoe blows resulting in the death of Niaz Ali and injury to Zaheer-ul-Hassan P.W.3 Dr. Tahir Anees had conducted post- mortem examination and Dr. Muhammad Yousaf Iqbal had examined Zaheer-ul-Hassan P.W. with regard to injuries. Akbar Ali P.W.6 stated that Danda Exh.P.1 and pair of shoes Exh.P.2/1 and 2 were recovered from Saghir Hussain and Dilawar Hussain appellants, respectively, Muhammad Ali S.I. P.W. 9 had effected the recoveries from Saghir Hussain and Dilawar Hussain. The rest of the evidence is of formal nature.

7. When examined under section 342, Cr.P.C. the appellants denied all the incriminating circumstances. The defence plea was that Zaheer-ul- Hassan complainant and Niaz Ali deceased had tried to take away the children of Mst. Shahnaz Bano forcibly but the villagers resisted and the appellants received injuries during that scuffle. In defence no witness was produced.

8. Learned counsel for the appellants contends that there is an inordinate delay in lodging the F.I.R. that the eye-witnesses are related; that offence punishable under section 325, P.P.C. made out and at the worst it was a case punishable under section, 323/34, P.P.C. On the other hand, the learned counsel for the State has supported the judgment of the trial Court. Learned counsel for the complainant, however, maintained that the appellant had wrongly been acquitted of the charge under section 302, P.P.C and that the case be sent back for their retrial.

9. I have considered the arguments advanced by the learned counsel for the parties with care, I have not been able to persuade myself to" agree with the learned counsel for the appellant and the learned counsel for the complainant as well. I find that the delay in lodging the F.I.R. has satisfactorily been explained by the complainant. After the occurrence Niaz Ali was removed to Civil Dispensary Manga and it was after covering 40 miles from there that the complainant could lodge report at the police station. The two eye-witnesses are also related with the appellants. They had no previous enmity with them. They have successfully stood the test of cross-examination. The learned counsel has failed to point; out any material contradiction/discrepancy in their statement. I also do not see any inherent infirmity in their evidence. I have been very: much impressed by the way in which they have given evidence. In view of the nature of the injuries, they could easily say that all the appellants had launched attack with Dangs but they did not say so. The number of the injuries found on the person of the deceased and' the complainant, commensurate with the number of the persons named by the eye-witnesses assailants. The defence version that Niaz Ali died at the hands of the villagers, does not appeal to reasons. The appellants have not been able to lay down any foundation for the substitution of the appellants for the real culprits. The appellants have not been to rebut prosecution and its evidence. For all these reasons, I am of the view that the trial Court has rightly field the appellants responsible for the injury resulting in the death of Niaz Ali and hurt to the complainant.

10. This brings me to the nature of offence committed by the appellants. I find that there was no serious enmity between the parties. The deceased was the husband of the sister of the two appellants. It was all of a sudden that during the talk between the parties. The appellants started beating with fists and kicks. It is not clear as to which injury was caused by Danda subsequently picked up by Saghis Hussain from the spot. Even after the post-mortem examination, the doctor could not give the cause of death and that in report Exh. P.G., no clear cause for perforation has been given. In this view of he matter, no exception can be taken to the conviction of the appellants under section 325, P.P.C. The sentence awarded to the is not excessive. It is, rather, inadequate so, I do not desire to give the appellants benefit of the provisions of section 382-B, Cr.P.C.

11. For what has been stated above, the appeal is dismissed. They appellants shall surrender themselves before tire learned Sessions Judge Lahore, who shall issue warrants for the arrest and detention of the appellants to serve out the remaining sentence Resultantly the connected revision fails.

H. A. K. Appeal and revision dismissed.

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