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Criminal Appeal No. 528 of 1984, decided on 21st October, 1985.
‑‑‑S. 304, Part II‑‑Appreciation of evidence‑‑Relationship of eye‑witnesses with deceased, held, was no ground to reject their testimony if otherwise they had told the truth‑‑No evidence found to show that accused was falsely implicated or substituted for real culprit‑ Ocular evidence believed in circumstances.‑‑[Witness].
‑‑---‑S. 304, Part II‑‑Accused causing death of deceased by giving head blows on forehead, cheek and back side of head of deceased‑‑Ocular evidence believed‑‑No conflict found between ocular and medical evidence‑‑Incident believed to have taken place as deposed by eye‑witnesses‑‑Accused, held, was responsible for murder‑‑Conviction maintained in circumstances.
‑‑‑Ss. 304, Part II, 323 & 325‑‑Accused causing death of deceased by giving head blows on forehead, cheek and head of deceased‑‑Deceased dying instantaneously‑‑Contention that offence fell under S. 323, P.P.C. or at most under S. 325, P.P.C. repelled‑‑Accused, held, was rightly convicted under S. 304 Part II.
‑‑‑S. 304, Part II‑‑Sentence‑‑Accused killing a young man of 23 years of age without any rhyme or reason‑‑No ground, held, was present for reduction of sentence of 10 years‑‑Sentence maintained.‑‑[Sentence].
Ch. A. Waheed Saleem for Appellant.
Ali Zafar and Altaf Muhammad Khan for the State.
Date of hearing: 9th October, 1985.
Anwar son of Allah Bakhsh, caste Pawli, resident of Chak No. 15‑JB, Tehsil Chiniot, District Jhang was tried by the Additional Sessions Judge Jhang for the murder of Nasir Iqbal. The trial Judge held Anwar guilty under section 304, Part li, P.P.C. He was accordingly sentenced to 10 years' R.I. and a fine of Rs.5,000 or in default 2 years' R.I. The convict has appealed to this Court.
Blund Iqbal real brother of the deceased lodged report Exh. P.C. at the Police Station Chiniot with regard to the incident which was recorded by Khadim Hussain A.S.‑I.
The motive for the murder of Nasir Iqbal was dispute with regard to the purchase price of wheat.
On 28‑7‑1983, at 11.00 a.m., Nasir Iqbal alongwith his brother Blund Iqbal were going towards their land from village Abadi. They met Anwar appellant and his brother Zafar. They complained to Nasir Iqbal that he was purchasing wheat at the rate of Rs.62 per maund while they were buying at the rate of Rs.61 per maund. Nasir Iqbal was warned not to purchase wheat at that rate. However, Nasir Iqbal ignored the warning and told them that he would purchase the wheat on the same rate. The appellant and his brother threatened the deceased and told him that he would be taught a lesson.
On 29‑7‑1983, at about 12.00 noon, Nasir Iqbal was going towards the village mosque to take bath. When he reached near the Mosque, Anwar came there. He challenged Nasir Iqbal and told him that he would teach him a lesson for not listening to him. Anwar caught hold Nasir Iqbal and hit him with his head on the left side of his forehead, right cheek and back side of his head. Nasir Iqbal fell down. Inayat and Zulfiqar reached there and saw the occurrence. Nasir Iqbal died there and then.
The other eye‑witness who supported Blund Iqbal is Zulfiqar. The deceased was son of his maternal‑aunt. He deposed that he. Blund Iqbal and Inayat were sitting in the shop while Nasir Iqbal had gone to take bath. Nasir Iqbal met Anwar Anwar told him that he would teach him a lesson for purchasing wheat at the rate of Rs.62 per maund. Thereafter, Anwar gave head blows to Nasir Iqbal. He was hit on the right cheek, left side of the forehead and back side of the head. Alarm was raised. Zulfiqar, Blund lqbal and Inayat came to the spot. They saw the occurrence. Nasir Iqbal died at the spot. Anwar took to his heels. The witness also corroborated the statement of Blund Iqbal regarding the dispute about the purchase price of the wheat.
Dr. Nazir Ahmad who conducted the post‑mortem on 30‑7‑1983, at 7 a.m. noticed swelling on the left portion of forehead, on the right side of face and on the back side of head of the deceased.
On opening the head, the doctor found haemorrhage in brain. He also found four ounces of blood in the base of skull: The bones of skull were intact. Doctor did not notice any through and through fracture.
According to the doctor, the death was due to shaking and concussion of brain which resulted in "intra‑cranial haemorrhage and shock. The probable time between injuries and death was 15 minutes.
Appellant denied the allegation of murder. He pleaded not guilty.. He gave his own version of the incident, which is to the following effect:‑
"Nasir Iqbal deceased was a peevish, quarrelsome and a dominant type of man. He had pressed me so many times that I should purchase household articles from his shop. On the day of occurrence I purchased some wheat from the shop of Gulzar and I was coming back to my house with the said wheat and the Trazoo (scale). Nasir Iqbal came there. He abused me as to why I have purchased wheat from the shop of said Gulzar. He tried to give a blow with his head on my person. I tried to ward off the blow‑as a result of which his head struck against the scale and he fell flat. I have nothing to do with his death.
Learned counsel for the appellant contended that the two eye‑witnesses were close relatives of the deceased. Their evidence as such was not reliable especially when it was not corroborated by any independent source.
Learned counsel also challenged the motive and submitted that there was no motive and if at all there was any motive then the prosecution failed to prove that.
It was further submitted that F. I. R. was lodged after deliberation.
Learned counsel argued that there was a conflict between the medical and the ocular evidence.
Last of all it was argued that the conviction under section 304, Part II, P.P.C. was not in accordance with law. If the allegation of the prosecution is accepted then it will be a case under section 323, P.P.C. or at the most under section 325, P.P.C. As such the sentence of ten years is too harsh.
I have gone through the evidence of the two eye‑witnesses. I have also taken into consideration the statement of the appellant. No doubt, the two eye‑witnesses are relatives of the deceased but this is not a good ground to reject their testimony if otherwise they have told the truth. There is no evidence to show that the appellant was falsely implicated or substituted for the real culprit.
I have also considered whether the deceased could receive the, injuries in the .way which the appellant alleged before the trial Court. But I do not think it is so.
I have not come across any conflict between the ocular and the medical evidence. The incident took place as deposed by the two witnesses. The appellant is responsible for the murder of Nasir Iqbal.
The next point to be considered is the conviction and sentence. I do not agree with the counsel for the appellant that it is a case under section 323, P.P.C. nor that it would fall within the ambit of C section 325, P.P.C. In my opinion the appellant has been rightly convicted under section 304, Part II, P.P.C.
I do not think there is any scope for further reduction in the sentence. He killed a young man of 23 years of age without any rhyme or reason. This appeal is accordingly dismissed. The entire amount of fine shall be paid to the legal heirs of the deceased. The appellant has already been given concession under section 382‑B, Cr.P.C.
H. A. K. Appeal dismissed.
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