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Criminal Appeal No. 300 of 1976, decided on 4th July, 1984.

‑‑‑Ss. 304(11) & 326‑‑Offence, alteration of‑‑Accused attacked deceased, on a chance meeting, with a Chhuri and causing him injury on his thigh‑‑Deceased, however, died after about seven days of occurrence on account of toxaemia‑‑Accused, held, intended only to cause grievous hurt to deceased on a non‑vital part of body‑‑Conviction of accused under S.304(II), P.P.C. altered to one under 5.326, P.P.C. and sentenced to four years' R.I. in circumstances.

Ch. Zamir Ahmad Khan for Appellant.

Hafiz Ghulam Bari for the State.

Date of hearing: 4th July, 1984.

Muhammad Afzal appellant was convicted under section 304(11), P.P.C. and sentenced to seven years' R.I. by learned Sessions Judge, Lyallpur (Faisalabad) by order dated 28‑1‑1976. Hence this appeal.

2. The prosecution case in brief is that Muhammad Afzal accused and Mian Muzaffar deceased are near relatives. Muhammad Arshad complainant is a brother of Mian Muzaffar deceased. Mst. Naseem a sister of Muhammad Arshad P.W. is married to Muhammad Sarwar, a brother of Muhammad Afzal accused‑appellant. Muhammad Sarwar was employed in Kuwait. He did not sufficiently support his wife Mst. Naseem and her children. Muhammad Afzal turned out Mst. Naseem and her children of the house and they were, therefore, residing with Muhammad Arshad P.W. This fact estranged the relations between them. It is stated that on 20‑6‑1973, at about 8‑00 p.m., Muhammad Arshad complainant and his brother Mian Muzaffar deceased were proceeding from their shop in the Bazar towards their house. When they passed from near Jadeed Book Depot, Muhammad Afzal appellant and his brother‑in‑law Muhammad Ishaq were present in the Bazar. Muhammad Afzal challenged and took out a Chhuri while Muhammad Ishaq caught hold of Mian Muzaffar. Muhammad Afzal gave one Chhuri blow on the left thigh of Mian Muzaffar who fell down. Muhammad Afzal took out Chhuri from the wound of Mian Muzaffar and ran away alongwith Muhammad Ishaq. The alarm attracted Muhammad Ashraf and Ghulam Muhammad P.W. who saw the occurrence. Mian Muzaffar was taken to the hospital where he was given medical treatment. The Medical Officer kept the injury under observation and gave the result on 21‑6‑1973. The accused tried to prevail upon the complainant not to report the matter but the complainant did not agree whereafter the present case was registered at 10‑00 a.m. on 22‑6‑1973.

3. After registration of the case, the investigation was taken in hand. Mian Muzaffar died on 27‑6‑1973 and as such, the offence under section 326, P.P.C. was changed to 302, P.P.C. On 28‑6‑1973, the accused Muhammad Afzal led the police and got recovered Chhuri P.2 from his under construction house which was taken in possession vide memo. Exh. P.G. by Ghulam Qadir S.I. P.W. 12 in the presence of Liaqat Ali P.W.6 and Muhammad Shafi P.W.7. This Chhuri (dagger) was found to be stained with human blood vide report of the Chemical Examiner Exh. P.0 and that of Serologist Exh. P.Q. The accused was challaned and convicted as stated above.

4. During the trial, the prosecution examined Ghulam Muhammad P.W.1, Muhammad Arshad P.W.4 and Muhammad Ashraf P.W.5 as the eye‑witnesses. Liaqat Ali P.W.6 and Muhammad Shafi P.W.7 were examined to support the recovery of Chhuri P.2. Dr. Gul Sher had conducted the first examination of Mian Muzaffar deceased and had also conducted post‑mortem examination after he had died. During examination of Mian Muzaffar, he had found an incised wound 1" x 1/3 x depth not proved, on the outer side of the left thigh and another incised wound x 1/3" x depth not proved on the medial side of left thigh. The patient was in shock due to severe bleeding at that time. Both these injuries were declared grievous caused by sharp‑edged weapon of about four hours duration. During post‑mortem it was opined by him that death was due to toxaemia resulting from injury given in the medico‑legal report. It was admitted by him in cross‑examination that the patient had died after amputation of his leg.

5. The accused when examined under section 342, Cr.P.C. denied the charge and pleaded as follows:‑

"What actually happened was that the deceasad passed in front of my house and finding me sitting in front of the house, he hurled an abuse against me; whereupon we started quarrelling, during which quarrel we both exchanged abuses. Then the deceased, suddenly brought out a knife and pounced upon me with a view to cause injury to me. I then picked up a Chhuri from a nearby Rehri and while we were grappling, the Chhuri held by me just struck against the left thigh of the deceased. What I did was in exercise of the right of self‑defence.

The deceased gave abuses to me and pounced upon me because he thought that I was responsible for Ghair Abadi of his sister."

He, however, did not produce any evidence.

6. I have gone through the entire evidence on record with the assistance of the learned counsel for the appellant and learned counsel for the State. The time and place of occurrence and also the presence of the appellant Muhammad Afzal is not disputed. The infliction of Chhuri blow by Muhammad Afzal is also admitted. The only question to be seen in this case is whether it was a case of self‑defence and whether an offence under section 304(11), P.P.C. is made out against the appellant or not.

7. The learned trial Judge disbelieved the recovery of Chhuri P.2 at the instance of Muhammad Afzal appellant. I am not prepared to agree with the learned trial Judge on this point. It is correct that Muhammad Shafi P.W.7 made concessions in favour of Muhammad Afzal appellant on the point of recovery but Liaqat Ali P.W.6 has fully supported the recovery of Chhuri P.2 at the instance of Muhammad Afzal. This witness is not related to the complainant and has no enmity with the accused. There was no reason to discard his evidence and the reasoning given by the learned Sessions Judge is not acceptable. I, therefore, hold that blood‑stained Chhuri P.2 was recovered at the instance of Muhammad Afzal accused.

8. Ghulam Muhammad P.W.1 and Muhammad Ashraf P.W.6 also made concessions in favour of Muhammad Afzal appellant during their state ments before the learned Sessions Judge. They both were declared hostile and duly confronted with their previous statements under section 164, Cr.P.C. These statements were proved by Syed Fazal Hussain P.W.2 who had recorded them when he was working as Assistant Commissioner, Lyallpur (Faisalabad). In their statements under section 164, Cr.P.C., they fully supported the prosecution case. I, therefore, rely on their statements recorded under section 164, Cr.P.C. and discard the concessions made by them in favour of the accused. These two witnesses were not related to the complainant and had no enmity with the accused and were therefore, rightly believed by the trial Court. I am not prepared to accept the finding of the learned Sessions Judge that Muhammad Arshad P.W. was not present at the spot. The reasoning given to discard the evidence of Muhammad Arshad P.W.4 is not correct. Thus, I find that these witnesses were present at the spot.

9. The defence version that Muhammad Afzal had caused injuries to Mian Muzaffar deceased in self‑defence is not borne out from the evidence on record. The statement of Muhammad Afzal accused that Mian Muzaffar deceased wanted to attack him with a Chhuri and apprehending danger he had caused injury to the deceased in self‑defence is not indicated from any circumstance in the prosecution evidence. It is correct that Muhammad Ashraf P.W. 5 admitted this version to some extent in cross examination but this was not so stated by him in his statement under section 164, Cr.P.C. This was only a concession made by him to favour the accused. Ghulam Muhammad P.W.1 did not support this defence version. As such, I discard the defence version of Muhammad Afzal appellant.

10. It was vehemently argued by the learned counsel that the accused Muhammad Afzal inflicted only one injury on the person of Mian Muzaffar; that the said injury was not on the vital part of the body and that the deceased died after about seven days of the occurrence on account of the toxaemia. It was, therefore, argued that the accused did not have any intention to cause the death of the deceased. I agree with these contentions of the learned counsel. I find that from facts and circumstances of this case, it appears that the accused only intended to cause grievous hurt to the deceased on a non‑vital part of the body. Muhammad Afzal accused is, therefore, found to be guilty under section 326, P.P.C. only. I, therefore, set aside his conviction under section 304(11), P.P.C. He is instead convicted under section 326, P.P.C. and sentenced to four years' R.I. He will be given benefit A under section 382‑B , Cr. P. C.

11. With the above modification, the appeal fails and is accordingly dismissed.

S . G . D . Order accordingly.

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