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Criminal Appeal No. 669 and Murder Reference No. 192 of 1983, heard on 18th March, 1986.
--‑‑‑S. 302‑‑Witness, reliability of‑‑Prosecution witnesses admittedly closely related to deceased but having no motive to falsely involve accused in a murder case and otherwise their testimony convincing and free from material discrepancies‑‑Mere relationship of witness with deceased, held, would not suffice to discard their testimony in circumstances.
‑‑‑S. 302‑‑Evidence, appreciation of‑‑Sentence, reduction in‑‑Occurrence taking place at spur of moment on chance encounter of parties‑‑Each and every accused, held, was liable to extent of his individual role in crime‑‑Accused giving fatal Sota blow to deceased‑‑Lesser penalty of imprisonment for life imposed in circumstances.‑‑[Sentence].
‑‑‑Ss. 302 & 323 ‑‑Evidence, appreciation of‑‑Sudden fight‑‑Occurrence taking place at spur of moment on chance meeting of parties‑‑Each accused person, held, was liable for his individual act‑‑Accused causing only simple injuries to deceased‑‑ Conviction under S. 302, P.P.C. altered to one under S. 323, P.P.C. in circumstances.
Shah Ahmad Khan Baloch for Appellants.
Altaf Muhammad Khan for the State.
Date of hearing: 18th March, 1986.
Manzoor (45), Muhammad Tufail (35) and Sarwar (26) sons of Muhammad alongwith their brothers Anwar and Khan were tried for the murder of Jaimal (58) deceased. The learned Additional Sessions Judge, Faisalabad vide his order dated 15‑11‑1983 convicted Manzoor, Muhammad Tufail and Sarwar appellants under section 302/34, P.P.C. and sentenced Manzoor appellant to death and a fine of Rs.20,000 or in default to undergo rigorous imprisonment for three years. Muhammad Tufail and Sarwar appellants were sentenced to imprisonment for, life and a fine of Rs.10,000 each or in default to undergo further R.I. for two years. Half of the fine, if recovered, was directed to be paid to the legal heirs of the deceased as compensation. Anwar and. Khan co‑accused were, however, given the benefit of doubt and acquitted.
The convicted accused, namely Manzoor, Muhammad Tufail and Sarwar have filed this appeal which is being disposed of alongwith the connected murder reference.
2. The prosecution case is that a year before the occurrence two bullocks belonging to Muhammad Tufail P.W.9 were stolen. He suspected Anwar and Khan accused (since acquitted). Jaiaial. deceased helped Muhammad Tufail P.W. and got a case registered against Khan and Anwar aforementioned. On 17‑3‑1981 at about Paishiwela Mansha P.W.6 accompanied by his father Jaimal deceased was going to Chak No. 244/ RB for offering Fatehkhawani. When they reached near Chak No. 595/GB the appellants and the acquitted accused armed with Sotas emerged from a wheat crop. Anwar and Khan accused (since acquitted) raised a Lalkara that Jaimal deceased should not be spared whereupon Manzoor appellant gave a Sota blow on the back of the neck of the deceased who fell down. Manzoor appellant repeated the blows on the back of the deceased. Muhammad T'ufail appellant gave Sota belows on his right arm and. wrist. Sarwar appellant inflicted a Sota blow on his back and left knee. Manzoor, Muhammad Tufail and Sarwar appellants gave more Sota blows to the deceased. Mansha P.W. raised an alarm attracting Inayat Ali P.W.7 and Anwar (not examined). An.war and Khan accused (since acquitted) threatened the P.Ws. that if anyone of them came near him he would fleet the same fate. After a short while, the appellants and the acquitted accused left the spot with their Sotas.
After the occurrence the P.Ws. carried the deceased (then alive) to the hospital, Tandlianwala, where he was got medically examined. After getting his medico‑legal certificate Mansha P.W. proceeded to Police Station, Bahlak where he lodged the F.I.R. Exh.P.J.
After recording the F.I.R., S.I. Muhammad Raza P.W.12 left for Civil Hospital, Tandlianwala. The deceased was then alive but was not in a fit condition to make a statement. The S. I. then left for the spot but on his way learnt about the death of Jaimal deceased. Consequently, he returned to the hospital. He prepared his injury statement Exh.P.C. and the inquest report Exh.P.D.
On 20‑3‑1981 the S.I. arrested, Manzoor, Muhammad Tufail and Sarwar appellants. Sarwar appellant while in custody led to the recovery of blood‑stained Sota P.4 through memo. Exh. P.L. Manzoor appellant led to the recovery of Sota P.5 through memo. Exh.P.M. Muhammad Tufail got recovered blood‑stained Sota P.6 through memo. Exh.P.N. Anwar and Khan accused (since acquitted) were arrested on 1‑4‑1983 by the same S.I. The Sotas recovered from Muhammad Tufail and Sarwar appellant were found to be stained with human blood by the Serologist vide his report Exh.P.Q.
3. Dr. Ahmad Saeed P.W.1 medically examined Jaimal deceased (58) on 18‑3‑1981 at 12.30 mid day and found the following injuries on his person:‑
(1) A contusion 5 c.m. x 3 c.m. x on the right side of the back of neck. There was swelling 8 c.m. x 8 c.m.
(2) A contusion with abrasion, 6 c.m. x 4 c.m. on the left side of the chest on its back in the middle.
(3) A contusion with abrasion, 7 c.m. x 4 c.m. on the back of left chest on its lower part.
(4) A contusion, 12 c. m. x 7 c. m. on the upper part of the right buttock.
(5) A contusion 7 c.m. x 5 c.m. on the left buttock.
(6) A contused wound, 2.5 c.m. x 1 c.m. x bone deep on the back of left elbow on its upper part.
(7) A contused wound 2 c.m. x 1.5 c.m. x bone deep on the outer side of right upper arm.
(8) A contused wound 2 c.m. x 1 c.m. on the back of right elbow on its outer part.
(9) An abrasion 2.5 c.m. x 1.5 c.m. on the back of right farearin.
(10) A contusion with swelling 6 c.m. x 3 c.m. on the back of right wrist.
(11) A contusion 9 c.m. x 3.5 c.m. on the lower part of right buttock.
(12) A contusion 8 c.m. x 5 c.m. on the left knee on its front side.
(13) A contused wound. 2 c.m. x 1/2 c.m. x bone deep on the front side of the left shin.
(14) An abrasion 11 c.m. x 3 c.m. on the front inner side of right skin.
All the injuries were caused with blunt weapons within the duration of 12 to 24 hours. He died on the same day at 9.30 p.m. His post‑mortem examination was performed on the following morning and exactly the same injuries were found on the dead body as mentioned in the medico legal certificate Exh . P.A.
Both the lungs were found congested, 4th cervical vertebra was broken under injury No.1. Death was due to shock and injury No.1. All the injuries, were ante‑mortem and had been caused with blunt weapon. Injury No.1 was fatal. It was grievous and dangerous to life.
4. The appellants pleaded not guilty to charge and denied the prosecution allegations. They did not lead any evidence in defence.
5. The prosecution case rests on the evidence of Mansha P.W.6 and Inayat Ali P.W.7 who furnished the ocular account. Hadayat Ali P.W.11 and Muhammad Raza S.I., P.W.12 were examined to prove the recoveries of Sotas from the appellants. Muhammad Tufail P.W.9 was produced to prove the motive.
6. Relying on the ocular testimony and the recoveries the trial court convicted and sentenced the appellants as described above. The motive as set up by the prosecution was, however, considered to be quite weak.
7. Assailing the judgment, learned counsel for the appellants argued that the eye‑witnesses are interested, chance witnesses and there is absolutely no independent corroboration of their testimony and they were disbelieved qua Anwar and Khan accused (since acquitted). The motive is also said to be not proved. No doubt Mansha P.W.6 is son of the deceased while Inayat Ali P.W.7 is his nephew but this fact alone would not suffice to discard their testimony which is otherwise convincing and without any material discrepancies. They had no motive to falsely implicate the appellants in a case of the present nature. They were cross‑examined at length but no infirmity could be brought out in other evidence. They have advanced cogent explanation for their presence at the spot. According to them they were going to offer Fatehkhawani for one Salabat, a Cousin of Jaimal deceased. The appellants have not been able to show that they had fabricated a lame excuse for their presence at the spot. They stand corroborated bb the medical evidence in all respects. The recoveries of blood‑stained moats at the instance of Muhammad Tufail and Sarwar appellants lend further corroboration to their testimony. Hadayat Ali P.W.11 who deposed about the recoveries is a Lambardar of his village and was not seriously cross‑examined by the appellants. His evidence is quite in line with that of Muhammad Raza, S. I. and there is hardly any ground to disbelieve him.
8. The motive was rightly considered weak by the trial Court. According to the prosecution the theft of bullocks of Muhammad Tufail P.W. took place about a year before the occurrence and if that was so the accused should have been borne a grudge against Muhammad Tufail P.W. more than Jaimal deceased because it was he who had suspected them for the theft of his cattle. The fact that no untoward incident took place during the interval of one year casts a doubt on the genuineness of the motive set up by the prosecution. Thus, the immediate cause leading to the occurrence is not ascertainable. In all probability, it appears that the parties had a chance encounter leading to the occurrence. Only one dangerous and fatal injury was found on the person of the deceased. The rest were contusions and abrasions. The contention of the learned defence counsel that the prosecution had tried to swell the number of the accused is borne out by the fact that five real brothers have been roped in the case. Anwar and Khan accused to whom no injury was attributed were assigned the role of Lalkara. They were found innocent during the police investigation and no recovery whatsoever was effected from them.
The circumstances discussed above show that there was no prior meeting of minds to form a pre‑arranged plan to do away with the deceased and the occurrence took place at the spur of moment. Accordingly, each accused would be liable for whatever injury he had B caused and not for the injuries caused by others. The fatal injury to the deceased is attributed to Manzoor appellant only while simple injuries are attributed to Muhammad Tufail and Sarwar appellants. Consequently, we alter the conviction of Manzoor appellant from section 302/34, P.P.C. to one under section 302, P.P.C and sentence him to imprisonment for life and a fine of Rs.10,000 (Ten thousand) or in default to undergo further R.I. for one year. The conviction and sentences of Muhammad Tufail and Sarwar appellants under section 302/34, P.P.C. are set aside and they are convicted under section 323, P.P.C. for causing simple hurt to the deceased and are sentenced to one years R.I and fine of Rs.1,000 (One thousand) each or in default to undergo three months R.I. The entire fine if recovered, shall be paid to the legal heirs of Jaimal deceased as compensation.
Since Muhammad Tufail and Sarwar appellants have already undergone the period of imprisonment they, shall be released forthwith on payment of fine if not required in any other case.
9. The appeal is disposed of in the above terms.
10. The death sentence of Manzoor appellant is not confirmed.
S.A. Order accordingly.
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