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Criminal Appeal No. 10 and Murder Reference No. 31 of 1982, heard on 16th June, 1985.

‑‑‑S. 302/307/34‑‑Dispute existing between parties over possession of land and accused not happy over it and nursed ill‑will against complainant party‑‑Presence of eye‑witnesses, who received injuries during occurrence, established‑‑Duration of their injuries tallying with that of deceased‑‑First Information Report, lodged within half an hour of occurrence containing names of eye‑witnesses, all necessary details of occurrence and part played by each of accused‑‑Statement of eye‑witnesses standing corroborated by medical evidence‑‑Dying declaration which was recorded about one and a half hour of occurrence, a reliable piece of evidence and lending corroboration to ocular testimony‑‑Recoveries of weapons of offence stained with human blood and a strong piece of evidence against accused‑‑Prosecution witness testifying recoveries, quite disinterested and no contradiction pointed out in his statement‑‑Participation of accused in occurrence, held, fully established in circumstances.

‑‑‑S. 302/307/34/326‑‑Conviction‑‑Deceased receiving two injuries, one grievous and other simple‑‑One of doctors stating that any of said injuries could be dangerous to life or sufficient to cause death‑‑Deceased dying after 13 days of occurrence in hospital due to infection of wound and development of gangerene and peritonitis‑‑According to doctor injuries of deceased became septic after he had been operated upon and that peritonitis and gangerene could not occur if proper treatment was given to an injured person‑‑Accused charged for grievous hurt in place of murder and his conviction altered from section 302/34, P.P.C. to one under section 326/34, Penal Code, and his sentence of death reduced to seven years' rigorous imprisonment in circumstances.

Muhammad Rahim v. Aajeerullah and another 1968 S C M R 1368 rel.

‑‑----S. 302/307/34‑‑Appreciation of evidence‑‑Mere relationship of eye‑witnesses with deceased, held, not sufficient by itself to discard their evidence.

‑‑‑S. 302/34‑‑Common intention‑‑Except main accused all others not alleged to have caused any injury to deceased‑‑All accused, held, could not be said to have shared common intention of murdering deceased.

Sardar Muhammad Latif Khan Khosa for the Appellants.

Shabbir Lali for the State.

Dates of hearing: 8th, 9th, 10th, 15th and 16th June, 1985.

Muhammad Anwar son of Fateh Muhammad (22), Muhammad Irshad alias Bagga son of Khushi Muhammad (27) and Muhammad Ashiq son of Khushi Muhammad (25) were tried alongwith Fateh Muhammad alias Fatta son of Abdullah (70) and Bashir Ahmad son of Khushi Muhammad (27) for the murder of Muhammad Hussain (25). The learned Additional Sessions Judge, Sahiwal by his judgment dated 3‑1‑1982 convicted and sentenced them as under:‑

3. Fateh Muhammad alias Fatta and Bashir were, however, given the benefit of doubt and acquitted.

The convicted accused have filed appeal while the learned trial Court has made a reference for confirmation of the death sentence of Muhammad Anwar. Both the matters shall be disposed of by this judgment.

2. Muhammad Irshad alias Bagga and Muhammad Ashiq are real brothers. Muhammad Anwar appellant is married to their sister. Fateh Muhammad accused (since acquitted) is father of Muhammad Anwar appellant. He is also uncle of Muhammad Irshad appellant. Bashir (since acquitted) is also married to a sister of Muhammad Irshad and Muhammad Ashiq.

3. The prosecution case is that one Umar Din died two and a half years prior to the occurrence leaving behind four daughters, namely Mst. Rahmon, Mst. Fajjan, Mst. Aisha and Mst. Sairan. He owned four acres of land. He had transferred one Killa each to his daughters in his life time. Mst. Rahmon mother of Muhammad Ashiq and Muhammad Irshad alias Bagga appellants were in possession of the entire land. Mst. Fajjan, mother of Shaukat Ali P.W.5 and wife of Faqir Muhammad P.W.6 asked for the delivery of possession of her land but Mst. Rahmon refused to do so. Consequently, Mst. Fajjan and her husband Faqir Muhammad filed a suit against Mst. Rahmon for the possession of their land.

On 9‑12‑1980 at 4‑00 p.m. Siddique Muhammad P.W.4 (complainant) brother of Muhammad Hussain deceased was sitting in the village Chowk alongwith his nephew Bashir Ahmad P.W.7 where a water tank for the mosque was under construction. Muhammad Hussain deceased and his nephew Shaukat Ali P.W.5 were working at the water tank as labourers. In the meantime, Muhammad Anwar appellant armed with a dagger, Muhammad Ashiq and Muhammad Irshad appellants armed with hatchets, Bashir and Fateh Muhammad (since acquitted) armed with Sotas arrived there. Fateh Muhammad raised a Lalkara that Shaukat Ali P.W. and Muhammad Hussain deceased should not be spared whereupon Muhammad Anwar appellant inflicted a dagger blow in the abdomen of Muhammad Hussain deceased as a result of which his intestines protruded out. Muhammad Hussain fell down. Siddique Muhammad P.W. rushed towards him whereupon Bashir accused (since acquitted) inflicted Sota blows on him hitting him on his head and left hand. Muhammad Ashiq and Muhammad Irshad appellant inflicted hatchet blows to Shaukat Ali P.W. hitting him on his head, neck and hand. They also gave blows to Bashir Ahmad P.W.7. The occurrence was witnessed by Rafiq son of Allah Ditta, Rafiq son of Nur Muhammad, Muhammad Anwar (not examined) and Nazir Hussain P.W.8. They rescued the deceased and his companions. Muhammad Hussain deceased and Shaukat Ali P.W. were removed to Civil Hospital, Arifwala from where Muhammad Hussain deceased was later removed to District Headquarter, Sahiwal where he died on 21‑12‑1980 i.e. 13 days after the occurrence. After getting himself medically examined Siddique Muhammad P.W.4 left for the police station Arifwala and lodged the F.I.R. Exh. P.H.

After recording the F.I.R. Sher Din S.I. P.W.13 left for Civil Hospital, Arifwala from where he had received a message to make arrangement for recording the dying declaration of Muhammad Hussain deceased. Consequently, he contacted Mr. Muhammad Yar, M.I.C., P.W.10, Arifwala and took him to the hospital. Mr. Muhammad Yar, M.I.C. recorded the dying declaration Exh. P.B./5 of Muhammad Hussain deceased on 9‑12‑1980 at 6‑24 p.m. after enquiring from the doctor about his fitness to make the statement. The S.I. examined Shaukat Ali and Bashir Ahmad P.Ws. on 10‑12‑1980. He then visited the spot and collected blood‑stained earth from there. He arrested the appellants on 10‑12‑1980.

Muhammad Anwar appellant led to the recovery of blood‑stained dagger P.5 from a Chappar of his house through memo. Exh. P.M. while Muhammad Ashiq appellant led to the recovery of blood‑stained hatchet P.6 from his residential Ihata through memo. Exh. P.N. Muhammad Irshad alias Bagga got recovered blood‑stained hatchet P.7 from his house through memo. Exh. P.O. Bashir accused (since acquitted) led to the recovery of Sota P.8 from his cattle shed through memo. Exh. P.Q.

On the night between 21/22‑12‑1980 at 12‑30 midnight the S.I. received a telephonic message from the District Headquarters, Sahiwal about the death of Muhammad Hussain deceased on which he proceeded to the hospital and prepared the inquest report Exh. P.S. of the deceased. He completed the investigation and challaned the accused.

The dagger and hatchets recovered at the instance of the appellants were found to be stained with human blood by the Serologist vide his report Exh. P.U.

4. Dr. Fazal Meeran Chaudhry, P.W.1 medically examined Muhammad Hussain deceased (25) on 9‑12‑1980 at 6‑00 p.m. and found the following injuries on his person.

(1) Stabbed wound 3 c.m. x 2 c.m. going deep on the left lower abdomen. Portions of the intestines were protruding outside Mouth was bleeding.

('2) Stabbed wound 2 c.m. x 1 c.m. x going deep on the back and middle of left thigh.

I

The injuries, were caused by long sharp‑edged weapon. Injury No.1 was grievous.

He also examined Shaukat Ali P.W.5 (24) and found the following injuries on his person:‑

(1) An incised wound 8 c.m. x 4 c.m. x bone deep which was cut completely on left side of head, 7 c.m. above the left ear.

(2) An incised wound 1 c.m. x 8 c.m. x skin deep on the middle part of pinna of right ear on outer surface.

(3) An incised wound 3 c.m. x 5 c.m. x muscle deep on palmer side of left ring finger on first diget.

(4) An incised wound 1 c.m. x 2 c.m. x muscle deep on palmer side of root of middle finger.

(5) Two abrasions 1 c.m. x 1 c.m. each on right side of neck upper part.

Injury Nos. 1, 2, 3 and 4 were caused by sharp edged weapon and injury No.5 with blunt weapon. Injury No.1 was grievous and the rest simple.

On the same day he medically examined Bashir Ahmad P.W.7 (28) and found the following injuries on his person:

(1) An incised wound 3 mm x 3 mm x muscle deep on the palmer side of left middle finger at middle part.

(2) An incised wound c.m. x 2 mm x skin deep on pulp of left ring finger.

(3) An incised wound 22 mm x 2 mm x skin deep on pulp of left index finger.

All the injuries were caused by sharp edged weapon and were simple

He also examined Saddique Muhammad P.W.4 (35) and found the following injuries on his person:

(1) An abrasion 2 cm x 1 cm on the left side of head 9 cm above left ear.

(2) Bruise radish 6 cm x 4 cm on the back and middle of left forearm.

Both the injuries were caused by blunt weapon and were simple.

5. Capt. Dr. Javid Mahmood Akhtar P.W.2 conducted the post‑mortem examination on the dead body of Muhammad Hussain deceased on 22‑12‑1980 and found the following injuries thereon:

(1) Stitched operation wound 15 cm x 1 cm on left side of abdomen 3 cm left to the umblicus.

(2) A septic wound 3 cm x 3 cm on the lower left abdomen 1 cm left to injury No.1.

(3) A septic wound 2 cm x 1 cm on the back middle left thigh.

On opening the abdomen he found all the small and large intestines gangerenous and blackish with multiple perforation. Peritoneum way also gangerenous.

Death occurred due to toxic shock and peritonitis. In cross -examination he stated that peritonitis occurs due to infection of the wound while gangerenous due to lack of blood supply to the organs. He admitted that peritonitis and gangerene do not occur if proper treatment is given to the injured person. He stated that injuries Nos. 2 and 3 of the deceased had become septic after he had been operated upon in the Hospital.

6. The appellants pleaded not guilty to the charge and denied the prosecution allegations. Muhammad Ashiq appellant admitted that his maternal grand‑father had transferred his four Killas of land to his daughters in equal shares. He also admitted that his mother Mst. Rehman was in cultivating possession of the entire land. According to him she had been paying share of Batai to other co‑sharers. He also admitted that Mst. Fajjan the mother of. Shaukat Ali P.W. had filed a suit against his mother but according to him it was dismissed prior to the present occurrence. He stated that the occurrence had taken place in the darkness of the night and it was a blind murder and that he had been involved due to suspicion and enmity. Muhammad Anwar and Muhammad Irshad alias Bagga also made similar statements.

No evidence was called by the accused in their defence.

7. The prosecution examined 13 witnesses in support of its case. Siddique Muhammad P.W.4 (injured), Shaukat Ali P.W.5 (injured), Bashir Ahmad P.W.7 (injured) and Nazir Hussain P.W.8 furnished the ocular account. Siddique Muhammad P.W.4 also deposed about the motive. Nazir Hussain P.W.8 also testified to the recoveries of weapons of offence from the accused. Mr. Muhammad Yar Khokhar, M.I.C. recorded the dying declaration of the deceased. Sher Din S.I., P.W.13 carried out the investigation of the case.

8. Relying upon the motive, the dying declaration, the eye‑witnesses and the recoveries, the learned trial Court convicted and sentenced the appellants as described above.

9. Learned counsel contends that the motive does not stand proved. According to him since the appellants were in possession of the land and the suit filed by the complainant party had been dismissed it was the complainant party who could nurse a grudge against the appellants. It is further argued that the ocular evidence is highly interested and the eye‑witnesses are closely related to the deceased. Siddique Muhammad P.W.4 is brother of the deceased while Shaukat Ali and Bashir Ahmad P.Ws. are his nephews. The dying declaration is not a reliable piece of evidence because other people were also present near the deceased when it was recorded, it is added. The recoveries also do not stand proved. There are a number of material contradictions in the statements of Nazir Hussain P.W.8 and S.I. Sher Din P.W.13. Lastly it is argued that the death of Muhammad Hussain was not the direct result of injuries but was due to toxic shock and peritonitis.

10. Admittedly, there was a dispute between the parties over the possession of land. Mst. Rahman, mother of Muhammad Irshad and Muhammad Ashiq appellants was in possession of the entire land left by her father. Even the land falling to the share of Mst. Fajjan, mother A of Shaukat Ali P.W. was occupied by her. Mst. Fajjan wanted her land back from Mst. Rahman. The appellants would not have been happy over it and must have nursed ill‑will against the complainant party. As far the relationship of the eye‑witnesses the mere fact that they area closely related to the deceased is not sufficient by itself to discard their evidence. They had received injuries during the occurrence and) as such their presence at the relevant time cannot be doubted. The duration of their injuries tallies with that of the deceased. Their names find mention in the F.I.R. which was lodged 1 hours after the occurrence. The F.I.R. contains all the necessary details of the occurrence and the part played by each of the appellants. The eye‑witnesses stand corroborated by the medical evidence. The dying declaration Exh. P.B./5 recorded about 21 hours of the occurrence is a reliable piece of evidence and lends corroboration to the ocular testimony. There is no substance in the argument of the learned counsel for the appellants that it was a tutored statement. There is nothing on the record to indicate that anybody was prompting the deceased to make the said statement. It was recorded by a Magistrate who would not have permitted anybody to tutor or prompt the deceased. The recoveries of weapons of offence stained with human blood is another strong piece of evidence against the appellants. Nazir Hussain P.W. who testified to them is a dis‑interested P.W. having no connection with either party. The contradictions pointed out in his statement and that of Sher Din S.I. are not very material and might be due to lapse of time. Taking the above circumstances into consideration it stands fully established that it were the appellants who had taken part in the occurrence.

11. The contention of the learned counsel for the appellants that the appellants could not Le convicted under sections 302/34, P.P.C, because the death was not the direct result of the injuries is, indeed, not without substance. The deceased had received two injuries one grievous and the other simple. None of the doctors stated that any of the said injuries was dangerous to life or sufficient to cause death. The deceased died after 13 days of the occurrence in the hospital due D to infection of the wound and development of gangerene and peritonitis. According to Capt. Dr. Javid Mahmood Akhtar P.W.2 injuries No. 2 and 3 of the deceased had become septic after he had been operated upon in the hospital. He further stated that peritonitis and gangerene do not occur if proper treatment is given to an injured person. In Muhammad Rahim v. Aajeerullah and another, 1968 S C M R 1368 the alteration of conviction by the High Court from section 302 to section 326, P.P.C. of an accused stabbing the deceased in the abdomen with a knife dying 21 days later in the hospital of peritonitis was held to be correct by the Supreme Court of Pakistan. The accused in the said case who had been sentenced to death by the trial Court had been awarded 7 years R.I. by the High Court and the said sentence was not interfered with by the Supreme Court. The facts of the instant case are to a great deal identical to the case referred to above. In this case also there was one grievous injury in the abdomen. The deceased died in the hospital after operation 13 days after the occurrence due to the development of gangerene and peritonitis. This injury is attributed to Muhammad Anwar alone. The other appellants are not alleged to have caused any injury to the deceased. In these circumstances, the appellants cannot be said to have shared the common intention of murdering Muhammad Hussain deceased. They might have intended to cause greivous injury to the deceased. The actual infliction of injury is attributed to Muhammad Anwar appellant. Accordingly, we alter his conviction from section 302/34, P.P.C. to one under section 326/34, P.P.C. and sentence him to 7 years R.I. and a fire of Rs.2,080 or in default to undergo two years R.I. The conviction and sentence of Muhammad Irshad alias Bagga and Muhammad Ashiq appellant are also altered from section 302/34, P.P.C. to section 326/34, P.P.C. and' they are sentenced to three years R.I. each and a fine of Rs.1,000 each or in default to undergo one year R.I. each. The fine, if recovered, shall be paid to the legal heirs of Muhammad Hussain deceased.

The conviction and sentence of Muhammad Anwar, Muhammad Irshad alias Bagga and Muhammad Ashiq appellants under section 307/34, P.P.C. for murderously assaulting Shaukat Ali P.W: is maintained. The fine, if recovered, shall be paid to Shaukat Ali P.W. as compensation. The conviction and sentence of the appellants under section 307/;14, P.P.C. for causing hurt to Bashir Ahmad P.W. is altered to section 324/34, P.P.C. and they are sentenced to one year R.I. each and to pay a fine of Rs. 500 each or in default to undergo further R.I. for 6 months. The fine, if recovered, shall be paid to Bashir Ahmad P.W. as compensation.

12. All the sentences shall run concurrently.

13. In awarding the above mentioned sentences we have taken notice of the period spent by the appellants in detention during the trial.

14. The death sentence of Muhammad Anwar appellant is Not confirmed.

15. The appeal is partly accepted in the terms indicated above.

M.Y.H. Appeal partly accepted

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