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Criminal Appeal No.24 of 1994, decided on 13th January, 1986.

‑‑‑S.302/34‑‑Recovery‑‑Recoveries of weapons of offence which were disbelieved by Trial Court, held, otherwise also could not be considered as corroborating evidence as same were not blood‑stained.

‑‑‑S.302/34‑‑Appreciation of ocular evidence‑‑Occurrence taking place in house of accused persons where deceased had gone alongwith eye witnesses‑‑Presence of eye‑ witnesses believed‑‑Medical evidence not in conflict with ocular evidence‑‑Parties closely related to each other‑ Residents of locality who must have seen incident, held, might not have thought it proper to side with any of parties by appearing as witnesses‑‑Eye‑witnesses though were related to deceased believed in circumstances.

‑‑‑Ss.302/34 & 304, Part 11/34‑‑Wife of deceased alongwith her mother and two brothers allegedly causing blunt weapon injuries to deceased in her house where ,deceased had gone for compromise talk Deceased who was an aged person and was suffering from chronic biliary cirrhosis expiring due to shock as a result of injuries‑‑ Occurrence taking place " when there was some kind of row between deceased and male accused‑Only male accused appearing to have given injuries to deceased Accused neither had any knowledge about disease of deceased nor they had intention to murder him‑‑Male accused; held, could not be held guilty of intentional murder of deceased‑‑ Possibility of false implication of ladies in case was not ruled out‑‑Female accused acquitted while conviction and sentence of male accused altered from S.302/34 to S.304, Part II/34, P.P.C. in circumstances.

Irshad Hussain Jaafary for Appellants.

Agha Khuram for the State.

Date of hearing: 13th January, 1986.

This is an appeal, by Mst. Shamim Akhtar 25, Allah Wasai 75, Afzal 32, and Abdul Razzaq 35 against their conviction under section 302/34, P.P.C. by learned Sessions Judge, Multan who vide judgment, dated 25‑1‑1984 sentenced all of them to imprisonment for life and fine of Rs.100 each or in default one year R.I. for the murder of Haji Muhammad aged about 60 years. It was ordered that the entire amount of fine, if recovered, will be paid as compensation to heirs of the deceased.

2. The occurrence in this case took place at 6.30 p. m. on 23‑11‑1982 in the house of accused in Mohallah Raza Abad, about 1i miles from police station Purani Kotwali, Multan. The formal F.I.R. Exh.PB/1 was recorded on 23‑11‑1982 at 7.40 p‑.m. by S.I. Sardar Muhammad P.W.2 on the basis of statement Exh.P.B. recorded by S.I. Ehsanul Haq; P.W.7 at Chowk Ghenta Ghar at the instance of Muhammad Isa P.W.5.

3. Muhammad Isa complainant stated in Exh. P.B. that his brother Haji Muhammad deceased, about 15 years earlier, married Mst. Shamim accused as his second wife. They had two sons and a daughter out of the wed‑lock. About 11 years before the occurrence Mst. Shamim left her husband and children and started living with her brother and mother in Mohallah Raza Abad. She filed a suit for dissolution of marriage at Multan which was fixed for hearing on the day of occurrence on 23‑11‑1982.He further stated that he and Muhammad Aslam P.W. accompanied his brother Haji Muhammad to Multan .who was to attend Court hearing. Mst. Shamim, her mother Mst. Allah Wasai and her brother Razzaq and Afzal were also present in Court for the hearing of the said case. The parties remained in Court premises till 4 p.m. and the case was adjourned. During this time both the parties started negotiating for compromise in the suit. Mst. Shamim, her mother Allah Wasai and brothers asked the complainant party to accompany them to their house for compromise talk. Accordingly Muhammad Isa complainant, Muhammad Aslam P.W. and Haji Muhammad deceased went to the house of the accused. They sat there for some time. Thereafter Isa and Aslam P.Ws. went out to purchase cigarettes. A little before evening they both returned to the house of Mst. Shamim. They saw that the wrists of Haji Muhammad had been tied with a cloth by Razzaq accused. Afzal, Mst. Shamim and Mst. Allah Wasai accused were giving Danda blows to Haji Muhammad. In their presence Mst. Shamim gave three stick blows on the buttock and thigh. Mst. Allah Wasai gave Sota blow on the mouth and Afzal gave stick blows on the knees of Haji Muhammad deceased. The accused asked the complainant and Aslam P. W. to go away. They started raising alarm. Haji Muhammad also started crying. At this Razzaq accused put a turban around the mouth of the deceased. He also pressed his neck with both hands. Haji Muhammad fell on the ground. At this Mst. Shamim brought a glass of milk. Haji Muhammad took some milk but felt exhausted. and left the same. The accused thereafter left their house. Haji Muhammad was taken to Civil Hospital in a rickshaw where he died as a result of the injuries. It was stated by Isa complainant in his statement that Haji Muhammad has been murdered by inflicting injuries and by throttling. He also suspected ' that he was administered poison in milk.

4. The police after registration of the case sent the dead body of Haji Muhammad for post‑mortem examination which was conducted by Dr. Akhtar Saeed P. W.9 on 24‑11‑1982 at 2 p. m. On, external examination the medical officer found 19 blunt weapon injuries of various dimensions on left side of head, tip 'of nose, upper and lower lips, cheeks, left side of neck, right sub‑mental region, back of right hand, right and left fore‑arms, right and left knee joints, left and right thighs and buttocks. An abrasion was also found on the right wall of anal cleft. No one of these injuries was of grievous nature.

5. On dissection, under injury No. 1 the medical officer found a moderate degree of ecchymosis present underneath this injury. There was ecchymosis under injuries No. 5, 6 and 14 to 18. Under these injuries there was extravasations of blood in tissue spaces and muscle bundle. There was slight bruising of neck muscles.

The Medical Officer sent stomach, gall‑bladder, liver, kidneys to the Chemical Examiner and Government Pathologist for examination. Both the kidneys were congested, larynx and trachea were moderately congested. Both the lungs and bronchial tubes were found congested.

6. On receipt of the reports from Chemical Examiner Exh. P. K and Pathologist Exh. P.L. the medical officer opined that death was due to shock as a result of painful stimuli due to injuries Nos. 1 to 19 to the deceased who was already suffering from bilateral polycystic kidneys and chronic pyelonephtris and liver disease i.e. Chronic biliary cirrhosis.

The probable time between injuries and death was about 1‑2 hours. Post‑mortem was conducted within about 24 hours of death.

No poison was detected in the body of the deceased.

7. Mst. Shamim and Allah Wasai accused were arrested on 25‑11‑1982. Razzaq accused was arrested on 26‑11‑1982 and Muhammad Afzal accused was arrested on 8‑12‑1982.

Muhammad Afzal accused on 9‑12‑1982 led to his Kotha and got recovered stick P.1 vide memo Exh. P.C. in presence of Muhammad Isa P.W.3 son of Chiragh Din and S.I. Ehsanul Haq P.W.7. On 25‑1‑1982 Mst. Shamim Mai from her Kotha got recovered Sota P.2 vide memo Exh. P.D. and Allah Wasai accused got recovered Sota P.3 vide memo Exh. P.E. from her Kotha which were taken into possession by S.I. Ehsanul Haq P.W.7,' in presence of Riaz Hussain P.W.4 (the particulars of Sota P.3 and recovery memo EXh.P.E. were given by learned counsel for appellant. The recovery memo Exh. P.E was not found on the file of this case).

Razzaq accused on 26‑11‑1982 got recovered cloth P.4 which was taken in possession vide memo Exh. P.F. by S.I. Ehsanul Haq P.W.7 in presence of Riaz Hussain P.W.4 and Muhammad Ramzan P.W. (not examined). It may here be stated that the incriminating weapon P.1. to P.4 were not stained with human blood. These recoveries were not believed by the trial Court. Even if these recoveries are accepted then also, being not stained with blood, cannot be considered as corroborating evidence.

The accused were challaned after completion of the, investigation.

8. The prosecution during the trial examined 7 witnesses in support of its case. Muhammad Isa P.W.5 and Muhammad Aslam P.W.6 were examined as eye‑witnesses. The medical evidence was furnished by P.W.9 Dr. Akhtar Saeed. The investigation was conducted by P.W.7, S.I. Ehsanul Haq. The evidence of rust of the witnesses was of formal nature.

9. The accused denied the charge and pleaded innocence. Mst. Shamim Mai accused stated that she was living with her mother since 5 years before the occurrence and had filed a suit for dissolution of marriage against Haji Muhammad. She stated that no one of the parties in the suit for dissolution, of marriage attended the Court on the day of occurrence. It was stated by her that the deceased was brought from Vehari Road by her brother Razzaq accused in unconscious condition. She tried to administer milk. The deceased was then taken to Civil Hospital where he expired. She further stated that the deceased had property and that her children were with the complainant who wants to grab the said property and has, therefore, been falsely implicated in this case. Razzaq accused stated that he was returning from Sind with his truck. He reached New Bus Stand Vehari Road at about 4/5 p.m. and found a person lying on the road on account of which there was traffic blockade. He found the said man to be his brother‑in‑law Haji Muhammad deceased. He brought him to his house where Mst. Shamim administered him milk. He was then taken to Civil Hospital where he died.

D.W.1 Muhammad Afzal S.I. and Shabbir Ahmad D.W.2 Head Constable were examined in defence to prove the receipt of Zimnies in this case at the police station.

The learned trial Judge placed reliance on the evidence of motive and the eye‑witnesses and convicted the accused as stated above.

10. I have gone through the record of this case. It was contended on behalf of the appellant that the eye‑witnesses were related to the deceased and as such not reliable; that both the parties did not attend tearing in civil cases at Multan as is clear from the documents Exh. D.A to Exh. D.D. and as such there was no occasion for these witnesses to visit the house of the accused; that there was conflict between the medical evidence and the ocular account of the case and finally that the persons residing in the locality who also had seen the occurrence were not examined during the trial. It was, therefore, argued that the accused be acquitted. The learned counsel for the State controverted these contentions on behalf of the appellants.

11. Isa P.W. is a brother of. Haji Muhammad deceased while Muhammad Aslam P. W. is married to a daughter of Isa P. W. The two witnesses are, therefore, related to the deceased.

Mst. Allah Wasai accused is mother of Mst. Shamim, Razzaq and Afzal accused. Mst. Shamim was the wife of Haji Muhammad deceased.

It is in evidence of the two eye‑witnesses that both the parties were present in Court premises on the day of occurrence i.e. 23‑11‑1982 in connection with the suit for dissolution of marriage. It was pointed out by the learned counsel that in the interim orders Exh. D. A. in quit for dissolution of marriage and Exh. D.B. in suit for restitution of conjugal rights, presence of parties was not noted. The presence of their counsel was only noted. It was, therefore, argued that the prosecution story that the parties were present in Court premises is belied by documentary evidence. I am not prepared to accept this argument on behalf of the appellants. A perusal of the two interim orders would show that the Presiding Officer was on leave on 23‑11‑1982. The cases were, therefore, adjourned to another date for evidence. It, therefore, appears that only the presence of the respective counsel was noted and the presence of the parties was not recorded in those interim orders. One fact, however, is established that the civil suits between the parties were fixed for hearing on 23‑11‑1982. The suit for dissolution of marriage was adjourned for evidence of plaintiff. The schedule of witnesses Exh. D.C. indicates that Razzaq, Afzal and Allah Wasai accused besides other witnesses were to be examined by Mst. Shamim in support of her case. Similarly, as indicated in list of witnesses Exh. D. D. Muhammad Isa P.W. besides other witnesses was to be examined by Haji Muhammad deceased in support of his case which was fixed for evidence on 23‑11‑1982. However, the evidence could not be recorded as the Presiding Officer was on leave. These documents prove that the parties must have gone to Court premises on the day of occurrence in connection with the civil cases. The dispute between the parties was of personal nature and, therefore, hey might have thought of resolving the same by mutual negotiation. It was for this reason that the deceased 'along with two eye‑witnesses went to the house of the accused.

I have carefully gone through the medical evidence. I do not find it in conflict with the statements of the eye‑witnesses. The learned counsel for the appellant was not able to point out any such disparity/conflict between the two. Parties were closely related to each other. The residents of the locality who must have been the occurrence might not have thought it proper to side with any of the parties on account of which they were not produced by either of the parties during the trial of this case.

It appears that when the two eye‑witnesses went out of the house to purchase cigarettes there was some kind of row between Razzaq and Afzal accused on one side and Haji Muhammad deceased on the other side when they were talking about the compromise. At that time it appears, that only Razzaq and Afzal accused gave injuries to Ha' Muhammad who‑ was an aged person. The accused did not know that he was suffering from any disease. They had no intention to murder Hap Muhammad deceased. They even did not know that those injuries would result in his death. Mst. Allah Wasai and Shamim accused did no cause any injury to Hap Muhammad. If Mst. Shamim or Allah Wasai had caused any injuries to the deceased, there was no question o administering milk to Hap Muhammad deceased by Mst. Shamim. The two ladies seem to have been involved in this case falsely .by the two eye‑witnesses who reached the spot at the end of the occurrence.

In view of the above discussion Mst. Shamim and Allah Wasai accused are acquitted. Their conviction and sentence is set aside. They both are on bail. Their bail bonds and sureties shall stand discharged.

Razzaq and Afzal accused cannot be held guilty of intentional murder of Hap Muhammad. I accordingly acquit them from the charge under section 302/34, P.P.C. and instead sentence them under section 304 Part II/34, P.P.C. to undergo 7 years, R.I. and a fine of Rs.1,000 or in default one year R.I. each. The fine if recovered, will be paid as compensation to the heirs of the deceased. They will be given benefit of section 382‑B, Cr.P.C.

With this modification their appeal fails and is accordingly dismissed.

H . A . K Appeal partly accepted.

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