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Criminal Appeal No. 221 of 1984, decided on 20th April, 1986.

‑‑‑Ss. 302 & 326‑‑Offence, alteration of‑‑Injury caused on leg of deceased though grievous yet not found fatal and deceased died on account of slow progressive haemorrhage resulting from absence of medical help‑ Deceased lying injured and helpless at mercy of accused yet harmed no more‑‑Accused, held, having no intention to murder deceased‑‑Conviction of accused under S. 302, P.P.C. altered to that under S. 326, P.P.C. in circumstances.

Faiz Muhammad Khosa and Asif Saeed Khan Khosa, Barrister-at- Law for Appellants.

Mrs. Tasneem Sarwar for the State.

Date of hearing: 20th April, 1986.

The prosecution case as set up in the F.I.R. in brief was that on 25‑8‑1983 Imam Bakhsh complainant, his mother Mst. Aisha, his son Naseer Khan and his cousin Ghulam Hassan deceased were proceeding from Bait Palohan to Basti Bohar. At about sunrise time, they reached Dhand Mongrawal. All of a sudden Hassan and Allah Bakhsh accused armed with hatchets and Ata Muhammad accused armed with Chhura came out of Kundar bushes and raised Lalkara. At this they tried to run to save themselves but in the meantime Ata Muhammad accused gave Chhura blow to Ghulam Hassan deceased on left hand. Hassan accused inflicted hatchet blow on left leg of Ghulam Hassan who fell down where-after Allah Bakhsh accused gave another hatchet blow on his leg. He gave more hatchet blows from wrong side to the deceased. The accused then left the spot alongwith their weapons. There was no Abadi near the place of occurrence. The complainant went to various Bastis to collect some persons to stop haemorrhage and help. Thereafter, Ghulam Hassan was placed on a cot and taken towards Civil Hospital, Taunsa Sharif. However, he died in the way at about 4 p.m.

The motive was stated to be that Mst. Haziran was the wife of brother of Ghulam Hassan deceased. She was residing with Ramzan, an uncle of Hassan accused who refused to return her in spite of efforts of Ghulam Hassan deceased. This had resulted in quarrel between the parties prior to the present occurrence.

The dead body of Ghulam Hassan was taken to Taunsa Sharif Hospital. Imam Bakhsh complainant then went to police station Taunsa Sharif about 10 miles from the place of occurrence in village Dih within Bait Palohan and lodged F.I.R. Exh.P.II on the same day at 5.30 p.m. recorded by S.I. Mahmood Ahmad P.W.10.

2. The police after registration of the case undertook investigation. The dead body of Ghulam Hassan aged 38 years was sent for post‑mortem examination which was conducted on 25‑8‑1983 at 6 p.m. by P.W.1 Dr. Faiz Ali. The Medical Officer found an incised wound 10 c. m. x 4 c. m. cutting the whole thickness of left leg above ankle. Only flap of skin was intact. "Injury No.2 was" an incised wound 7 c.m. x 2 c.m. x muscle deep on inner side of right lower foot. "Injury No.3 was" penetrating wound 1 c.m. x I c.m. x muscle deep on back of left upper arm. "Injuries No.4 and 5 were, multiples bruises on back of left shoulder and on left buttock.

On internal examination the heart and its chambers were found empty. Blood vessels of left leg were cut. In the opinion of medical officer the death was the result of "shock and slow progressive haemorrhage" from blood vessels of left leg due to injury No.1 which was of grievous nature. Injuries Nos. 1 to 3 had been caused by sharp‑edged weapon while injuries Nos. 4 and 5 had been caused by blunt weapon. Injury No.l was grievous and the rest of the injuries were simple. The time between injuries and death was about 10 hours and post‑mortem was conducted in about two hours of death.

3. In cross‑examination the medical officer stated that due to loss of blood the dead body was pale and that rigor mortis or post‑mortem stainings were not present. He admitted that "the survival chances of injured person were there if proper treatment could be provided to him in time".

4. S.I. Mahmood Ahmad P.W.10 collected blood‑stained earth, vide memo. Exh.P.D. during inspection of place of occurrence on 26‑8‑1983.

The accused were arrested on 28‑8‑1983.

On that very day Ata Muhammad accused while in police custody led to his house and got recovered blood‑stained Chhura P.6 which was taken in possession, vide memo. Exh.P.E. by S.I. Mahmood Ahmad P.W.10 in presence of Hafiz Ghulam Siddique P.W. 7 and Ramzan P.W. not examined.

On the same day Hassan accused while in police custody led to the recovery of blood‑stained hatchet P.7 from his house, vide memo. Exh.P.F. in presence of same witnesses.

On the same day Allah Bakhsh, accused, while in police custody led to the recovery of blood‑stained hatchet P.8 from his house, vide memo. Exh.P.G. in presence of same witnesses.

The crime weapons P.6, P.7 and P.8 were found stained with human blood, vide report of the Chemical Examiner Exh.P.L. and that of Serologist, Exh.P.M. The accused were challaned after completion of investigation.

5. The prosecution in support of the case examined 10 witnesses in all. Imam Bakhsh P.W. 8 a cousin of the deceased and Naseer Khan P.W.9 son of the deceased were examined as eye‑witnesses. Mst. Aisha mother of the deceased, another eye‑witnesses, was given up as unnecessary. The incriminating recoveries were witnessed by Hafiz Ghulam Siddique P.W. 7 who was married to a sister of the deceased. Similarly his sister was married to Ghulam Hassan deceased. The medical evidence was furnished by Dr. Faiz Ali P.W.1 as given in detail above. The case was investigated by S.I. Mahmood Ahmad P.W.10. The evidence of rest of the witnesses was of formal nature.

The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. They denied recoveries of incriminating articles at their instance. They tendered in evidence copy of F.I.R. Exh .D.13. dated 29‑4‑1983 regarding the injuries to Allah Bakhsh a son of Sardar complainant of that case by Faiz Muhammad, Ghulam Hassan (deceased of this case), Hamid, Tagga and Suleman to prove that Ata Muhammad accused‑appellant was a prosecution witness. An affidavit of Mst. Nazir Mai was tendered as Exh.D.C. to show that she was married to Muhammad three years prior to her affidavit, dated 16‑3‑1982 and that he being minor was not in a position to discharge marital obligations for which reasons she was residing with her uncle Ramzan. It was stated by her that Hassan a brother of her husband was of bad character and had raped her. Exh.D.B. is copy of plaint in the suit for dissolution of marriage by Mst. Nazir Mst. Exh.D.E. is the copy of the list of witnesses in the said suit in which Ghulam Hassan accused is mentioned as one of the witnesses. Exh.D.F. is the copy of order allowing bail to Ghulam Hassan deceased in the rape case against him. The accused did not produce any other evidence in defence.

The learned Sessions Judge, D.G. Khan placed reliance on the evidence of motive, recoveries of crime weapons and eye‑witnesses and sentenced the three appellants to imprisonment for life and fine of Rs.7,000 or in default two years' R.I. under section 302/34, P.P.C., vide judgment, dated 27‑9‑1984. It was ordered that half of the fine, if recovered will be paid as compensation to heirs of the deceased. Hence this appeal.

6. It is contended on behalf of the appellants that F.I.R. was lodged after an unexplained delay of about 12 hours. Secondly, that P. Ws. were interested and, therefore, not reliable. Thirdly, that the prosecution story is improbable and if the witnesses had been present the deceased would not have remained alive at the place of occurrence bleeding unattendingly. Fourthly, that the recoveries of incriminating articles from the appellants were doubtful. Fifthly that the medical evidence did not indicate that it was a case of intentional murder a, as such even if the prosecution evidence is believed then also only offence under section 326 or 304, P.P.C. could be said to have been made out against the accused. The learned counsel for the state controverted the contentions on behalf of the appellants.

7. I have perused the record and have considered the arguments addressed on behalf of the appellants.

8. As stated above the two eye‑witnesses were closely related the deceased but they had no direct enmity against the accused falsely implicate them in this case. Hassan accused is maternal‑uncle Allah Bakhsh accused and Ata Muhammad accused is his friend. Ramzan is an uncle of Hassan accused. Mst. Nazir Mai is wife of Muhammad a of Haider, a brother of Ghulam Hassan deceased. About four months before the present occurrence Ghulam Hassan deceased and others had caused injuries to Allah Bakhsh for which they were being prosecuted in a case under sections 307 and 326, P.P.C. Ata Muhammad accused was a witness in the said case. Again on 20‑3‑1982 a case was registered against Ghulam Hassan deceased for rape on Mst. Naziran mentioned above, a cousin of Hassan accused. It is, therefore, clear that to accused had a motive to assault Ghulam Hassan deceased. On the other hand the two eye‑witnesses did not have any motive to falsely implicate the present appellants.

The recoveries of crime weapons P.6 to P.8 were witnessed by Hafiz Ghulam Siddique P.W.7. It is correct that he was related to the deceased but certainly had no enmity with the accused. The recoveries have also been supported by S.I. Mahmood Ahmad P.W.10. It was contended on behalf of the appellants that Siddique P.W.7 was resident of a place about 4/5 miles from the place of recovery, that no independent person was associated in the recovery proceedings and that there were material discrepancies in the statements of the two recovery witnesses. Ghulam Hassan deceased was related to Siddique P.W. 7 and it was, therefore, natural for him to be present with the police to know the progress of investigation. I have gone through the evidence of the two recovery witnesses. There is no material discrepancy in their statements. They consistently supported the recoveries at the instance of the accused. I, therefore, do not find anything to disbelieve the evidence on recovery of the three crime weapons which were found stained with human blood by the Serologist. It was pointed out by the learned counsel that according to P.W.5 H.C. Muhammad Zainan the Investigating Officer had delivered him four sealed parcels for safe custody in Police Malkhana on 27‑8‑1983 whereas the alleged recoveries 'were effected on 28‑8‑1983. It was, therefore, argued that the statement of H.C. Muhammad Zaman belies the recovery of crime weapons on 28‑8‑1983. I do not find any force in this argument, because, it appears to be a misstatement by H.C. Muhammad Zaman, P.W.10. S.I. Mahmood Ahmad clearly stated the these recoveries were effected on 28‑8‑1983. He further stated that on 27‑8‑1983 he had deposited the parcel containing blood‑stained earth and on 28‑8‑1983 he deposited the parcels of three crime weapons in Malkhana police for safe custody. The recoveries crime weapons corroborate the ocular account furnished by the two eye‑witnesses in this case.

The eye‑witness account has been furnished by P.W.8 Imam Bakhsh and P.W. 9 Naseer Khan. As held above they had no enmity against the accused. It is stated by Imam Bakhsh P. W. that they were residents of village Bohar and used to come to village Bait Palohan during flood season At the time of occurrence they all were proceeding to their village Bohar. They were natural witnesses. After the occurrence the complainant tried to contact various persons for help which was a natural conduct. It must have taken some time to arrange removal of Ghulam Hassan deceased to Civil Hospital for treatment which was about 10 miles from the place of occurrence. Ghulam Hassan died on his way to hospital at about 4 p. m. This version is supported by the medical officer who did not find any rigor mortis or post‑mortem staining on the dead body. I do not consider that the delay in lodging of the F.I.R. in this case materially affected the merits of this case. In my view, the two eye‑witnesses were present at the spot and witnessed the occurrence.

Only injury No.1 was grievous while all other injuries were of simple nature. Dr. Faiz Ali P.W.1 did not state that injury No.1 was sufficient to cause death in the ordinary course of nature. This injury was grievous in nature but not fatal. It was not on vital part of the body. The medical officer stated that there were chances of the survival of Ghulam Hassan if treatment had been provided in time. Ghulam Hasan died on account of "slow progressive haemorrhage". He fell down after receipt of injury on his leg. The accused did not cause any injury can any vital part of his body though he was lying helpless before them. It indicates that the accused only wanted to cause grievous injuries and had no intention to murder him. I am, therefore, of the view that the offence under section 302/34, P.P.C. could not be said to have been made out against the accused‑appellants.

9. As a result of the above discussion the conviction of the three appellants is altered from 302, P.P.C. to 326/34, P.P.C. I accordingly sentence Hassan, Allah Bakhsh and Ata Muhammad accused to 7 years' R.I. and fine of Rs.2,000 each or in default one year's R.I. under section 326/34, P.P.C. The entire amount of fine, if recovered, will be paid as compensation to heirs of Ghulam Hassan deceased. The three appellants are allowed benefit of section 382‑B, Cr.P.C.

10. With the above modification this appeal fails and is accordingly dismissed.

S.G.D. Order accordingly.

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