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Criminal Appeal No. 25 of 1979, decided on 8th October,

1985.

(On appeal from the judgment and order of Lahore High Court, dated 9‑8‑1977 in Criminal Appeal No. 1068 of 1975)

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), Ss. 302 & 148/149‑‑Leave to appeal granted to examine questions; whether recovery of incriminating articles could be accepted as against two accused when same witness had been disbelieved in regard to recovery of same articles as against other acquitted accused and whether in absence of an explanation by prosecution as to how accused sustained injury and delay in lodging report, prosecution version could be relied on in context of definite finding that acquitted accused had been falsely implicated.

‑‑‑Ss. 302 & 148/149‑‑Ocular account, recovery of blood‑stained hatchet from co‑accused, injury on person of accused and statement by him at trial showing his presence at time of occurrence‑‑Prosecution witnesses as to recoveries from accused stating that they led police to recovery of weapons of offence from their houses whereas Investigating Officer, appearing as prosecution witness, stating that accused produced their respective weapons in a School‑‑Recovery evidence against co‑accused in view of material contradiction in statements of two recovery witnesses, rendered doubtful and seemed to be planted‑‑Prosecution witness deposing as to recoveries against accused that after first recoveries accused got recovered a blood‑stained hatchet from his house and same was corroborated by Investigating Officer in all material particulars regarding time and place of recovery‑‑No reason existing to disbelieve their evidence and recovery of blood‑stained hatchet at instance of accused was a pointer towards his guilt‑‑Delay in lodging first information report not appearing to have been caused with an intention of fabricating a false case against accused‑‑Conviction of accused, being based on correct appraisal of evidence, maintained.

‑‑‑S. 302‑‑Law Reforms Ordinance (XII of 1972), Sched., Item 18‑‑Sentence‑‑Offence committed before amendment brought by Law Reforms Ordinance, 1972 in S.302, Penal Code, whereby words 'transportation for life' were substituted by words 'imprisonment for life'‑‑Sentence of accused converted from imprisonment for life to transportation for life.‑ [Sentence].

Muhammad Hanif, Advocate Supreme Court for Appellants.

Ch. Ghulam Ahmad, Advocate Supreme Court with Rao Muhammad Yusuf, Advocate‑on‑Record (absent) for the State.

Date of hearing: 8th October, 1985.

On 27‑1‑1972 at 2 p.m. while Mukhtar complainant/P.W. 7 and Anwar P.W. 8 were cutting fodder in their field in the area of village Tamboli, P.S. Wahndo and Akbar deceased was coming towards them for helping them to lift the fodder, the accused appellants, alongwith their acquitted co‑accused, armed with hatchets and Sotas, attacked the deceased and Anwar P.W. 8. Mukhtar complainant/ P. W. 7 ran for some distance to save himself from the assault, and witnessed the occurrence. The deceased was carried to the D.H.Q. Hospital, Gujranwala in unconscious condition, but in view of his serious condition Akbar deceased was transferred to the Mayo Hospital, Lahore where he succumbed to his injuries on 30‑1‑1972. Mukhtar P.W. 7 left for the police station and on the way, met Nawabuddin S.H.O. who recorded his report Exh. P.A.

2. All the accused were tried by the learned Additional Sessions Judge, Gujranwala under sections 302, 148/149. P.P.C., who, vide his judgment, dated 29‑10‑1975, convicted and sentenced Nazir and Bashir the accused/appellants to imprisonment for life and a fine of Rs.5,000 each or in default of payment of fine, to suffer 5 years R.I. each. They were also sentenced to undergo R.I. for one year each and a fine of Rs.500 under section 324, P.P.C. for causing injuries to Anwar P.W. 8 or in default of payment of fine, to suffer further R.1. for 6 months. Out of total amount of fine a sum of Rs.5,000 was ordered to be paid to the heirs of the deceased as compensation under section 544‑A, Cr.P.C. The other co‑accused were given the benefit of doubt and were acquitted vide the same judgment.

3. The accused /appellants filed an appeal before the Lahore High Court but the learned High Court dismissed the appeal and maintained the conviction and sentence of the accused /appellants vide, the impugned judgment, dated 9‑8‑1977. Thereafter the accused /appellants filed a petition seeking leave to appeal against the impugned judgment and leave I was granted by this Court vide order, dated 1‑3‑1979 on the ground that whether the recovery of incriminating articles should be accepted as against the two accused /petitioners when the same witness has been disbelieved in regard to the recovery of the said articles as against the other acquitted accused; and in the absence of an explanation by the prosecution as to how Muhammad Bashir accused/appellant sustained injury; delay in lodging the report; and whether the prosecution version can be relied on in the context of a definite finding that the acquitted accused had been falsely implicated.

4. Akbar deceased, when brought to the District Headquarter Hospital, Gujranwala was examined by the Medical Officer Dr. Muhammad Iqbal P.W. 12 on 27‑1‑1972 at 4‑30 p.m. who found as many as 13 injuries of various dimensions out of which injury No. 4 was found to have been caused by sharp edged weapon. Injuries Nos. 1, 2 and 3 were declared grievous vide X‑Ray reports Nos. 125 and 126, dated 29‑1‑1972 showing fractured left parietal and frontal bones. Akbar deceased was not in a fit state of mind on 28‑1‑1972 vide the doctor's report Exh.P.M/1.

5. The same doctor examined Anwar Khan P.W. 8 and found eight injuries of vairous dimensions of which injuries Nos. 2 and 3 were found to have been caused with a sharp‑edged weapon.

6. Dr. Muhammad Iqbal also examined Muhammad Bashir accused/ appellant on 27‑1‑1972 and found a lacerated wound 1 " x " x scalp deep on the right parietal region just lateral to the mid line; and an incised wound 5" x 1/3" x superficial with another incised wound 1 " x 1/6" superficial just along it on the inner aspect of the left forearm vertical in direction.

7. Dr. Sabir Ali, Deputy Surgeon Medico‑legal, P.W. 16 performed the post‑mortem examination, on 31‑1‑1972 at 1‑30 p.m. on the dead body of Akbar Khan and confirmed the injuries earlier noted by Dr. Muhammad Iqbal. According to Dr. Sabir injuries Nos. 2, 3 and 13 were sufficient to cause death in the ordinary course of nature. Clotted blood on the under‑surface of the scalp was found against injuries Nos. 2 and 3 right temporal, parietal and left temporal, left parietal bones were fractured. The fracture on the left side was extending towards the middle cranial fossa. There was depressed fracture of the right parietal bone. Coronal suture was found separated against injury No. 13. There was a big extra dural clot on both the temporal regions. Sub‑dural haemorrhage was present on the right side and the brain on the right side was lacerated under the depressed fracture.

8. Prosecution case consists of the ocular testimony of Mukthar P.W. 7 who besides giving account of the actual occurrence also furnished motive for the crime that one Abdul Ghafoor Arain was murdered in the village sometime before the present occurrence. Akbar deceased used to visit the accused in that case. The accused /appellants and the acquitted accused were on friendly terms with the complainant‑party in that case, and they resented friendly visits of the deceased to the accused in that case, and had threatened the deceased to refrain from interfering in the murder case of Abdul Ghafoor Arain on behalf of the accused in that case.

9. The other witness examined is Muhammad Anwar Khan P.W. 8 a real brother of the deceased who had also sustained injuries as mentioned above, in the same occurrence. According to him, he was busy in cutting the fodder in his field alongwith Mukhtar P.W. 7 who called Akbar deceased to help them in lifting the fodder when in the meantime the accused /appellants and their acquitted accused came and started beating the deceased. Ghulam Hussain, Muhammad Hussain, Bashir and Ghulam Nabi were armed with sotas while Nazir accused /appellant was armed with hatchet. First of all Ghulam Hussain inflicted a sota blow to the deceased and second blow was given by Bashir accused. Thereafter, all the accused except Sardara who was empty handed, started beating the deceased with their respective weapons. Sardar accused had been raising lalkaras to kill the deceased. He tried to intervene and was injured by the accused. Mukhtar, P.W. 7, out of fear, ran and stood at a distance of about 10 Karams and witnessed the occurrence. Rehmat, Jamil and Mamrez (all given up) also witnessed the occurrence.

10. Jamil P.W. 9 also made a statement having witnessed the occurrence. He was, however, disbelieved by the learned trial Court and by the learned High Court Judges, as well.

11. Nazar appellant, when examined under section 342, Cr.P.C. by the learned trial Judge, denied the charges and pleaded not guilty. Muhammad Bashir, accused /appellant, however, in reply to a question by the trial Court stated as follows:‑‑

"I am living quite separate from Sardara and other accused. I have a separate Haveli on the south‑east corner of the place of occurrence on the outer border of abadi near well of Christians. On the day of occurrence, at about Chahvela, I tethered my buffaloes for giving them water to drink. One of them got astray in the field of Akbar, who was armed with a Dang, fell upon me. I raised alarm, many persons including strangers with muffled faces, came to rescue me, and inflicted injuries on them. None of the remaining accused was present there. Mukhtar and Jamil P.Ws were also not present nor Sattar and Rehmat P.Ws. My father's name is Sadda. I have no relationship with the rest of the accused, nor have I been brought up or adopted by Sardar accused. In my statement before the C.M. I was put compound questions. I never helped the prosecution in Ghafoori murder case nor I ever asked Akbar to desist from helping the accused in that case."

12. Dealing with the question raised by the learned counsel, we refer to the judgment of the learned Additional Sessions Judge, who; in paragraph 12 of the judgment, observed as follows:‑‑

"First of all I shall consider the implications of the recoveries of the alleged weapons of offence. Muhammad Ibrahim P.W. R stated that Ghulam Nabi, Bashir, Siddiq, Ghulam Hussain and Muhammad Hussain led to police to the recovery of weapons of offence from their house. The Investigating Officer appeared as P.W. 10 and stated that these accused produced their respective weapons in the school. In view of this material contradiction in the statements of these two recovery witnesses I am not prepared, to rely on the recovery evidence. These recoveries are doubtful and seem to be planted.

Muhammad Ibrahim P.W. deposed that about 10‑12 days after the first recoveries Nazar accused got recovered hatchet P.12 from his house which was blood‑stained and seized by the police vide recovery memo. Exh. P.K. He is corroborated by the Investigating Officer on all material particulars regarding the time and place of the recovery. I find no reason to disbelieve their evidence. The recovery of blood‑stained hatchet at the instance of Nazar accused is a pointer towards his guilt. According to the prosecution story Nazar and Siddiq were armed with hatchets and inflicted injuries to the deceased with their respective weapons."

In the same paragraph the learned trial Court also observed as under:

"The ocular account, the recovery of blood‑stained hatchet, the injuries on the person of Bashir and surrounding circumstances are the factors establishing the presence of Bashir and Nazar at the spot. As regards the presence of others, there is no recovery nor any other factor to corroborate the ocular account of the occurrence given by the witnesses."

We also find that the statement of Anwar P. W. cannot be totally ignored. He has undoubtedly tried to involve as many as seven person in this case but still his statement has to be seen and appreciated in, the light of the circumstances of the case. The ocular account, recovery of blood‑stained hatchet from Bashir; the injury on the person of Bashir accused and the statement made by .him at the trial showing his presence at the time of occurrence, fully establish a case against then,. They undoubtedly caused the fatal injuries to the deceased and, therefore, their conviction and sentence under sections 302 read with 324/34 P.P.C. is well founded.

13. Regarding hatchet P. 12 the learned High Court Judge observed as follows:‑‑

"Regarding the presentation of hatchet P. 12 with disintegrated blood by Nazar appellant, there is no such contradiction. In this respect both the witnesses stated that hatchet P. 12 was seized vide memo Exh. P.K and was taken into possession from the house of Nazar appellant"

At another place in the impugned judgment of the learned High Court it was observed:

"There does not appear to be any motive on the part of the recovery witnesses to falsely implicate the appellant. The only hostile suggestion made to Muhammad Ibrahim P.W. 6 that he is normally employed by the police to attest the recovery memos, was denied by the witness. Otherwise, this witness appears to be quite respectable person."

14. As regards the delay in lodging the report, it is recovered that on the day of occurrence the deceased and Anwar. P.W. 8 (the injured) both were taken to the D.H.Q. Hospital where Dr. Muhammad Iqbal P.W. 12 examined the deceased and the injured P.W. Anwar. At the request of the police the said Doctor made a report Exh. P.M. 1 on 28‑1‑1972 that Akbar deceased was not in a fit condition to make a statement. It is established that the deceased was taken to the hospital on the day of occurrence i.e. 27‑1‑1972 where Dr. Iqbal P.W. 12 examined him at about 4‑30 p.m. and recorded the injuries in his medico‑legal report. As a matter of rule the doctor should have immediately reported the matter to the police that a medico‑legal case of serious nature has been admitted in the hospital and the police should investigate the same. Nawabuddin S.I. S.H.O. P.S. Wahndo (P.W. 10) reached the hospital on 28‑1‑1972 and in his statement, at the trial, he stated that no one else was present in the hospital:

"On 28‑1‑1972 I was posted as S.H.O. P.S. Wahndo. On the same day one F.C. from P.P. Civil Lines, Gujranwala brought medico‑legal reports in respect of Anwar P.W. and Akbar deceased. I recorded this fact in Roznamcha and went to the D.H.Q. hospital. Akbar deceased was injured and lying unconscious. I inquired from the doctor if he was in a fit condition to give a statement who reported that he was not fit to make a statement. No one else was present in the hospital to give the account of occurrence. I went back in connection with investigations of a dacoity case-------

It was the duty of the said S.I. to find out the cause of injuries sustained by Akbar deceased either from the doctor or any other source.

Dr. Muhammad Iqbal who had examined the deceased on 27‑1‑1972 has given full name of the deceased and his father, in his Report and these names could not have been ascertained unless there was some‑one who brought the deceased to the hospital in an unconscious condition. It seems that there was no proper investigation in the case. The relatives of the deceased Mukthar P.W. 7 and Anwar P.W. 8 appeared to be worried to save the life of the deceased and, therefore, they took the deceased Akbar on 28‑1‑1972 to Mayo Hospital, Lahore. The delay in lodging the report also does not seem to have been caused with the intention of fabricating a false case against the accused/appellants. Thus, we consider that their conviction is based on correct appraisal of the evidence. However, we find that the learned trial Court has awarded life imprisonment to the accused/appellants in a case where the occurrence took place on 27‑1‑1972 while amendment in section 302 "for words 'transportation for life' the words 'imprisonment for life' shall be substituted was made vide Law Reforms Ordinance XII of 1972,1 published in the Gazette dated 14‑4‑1972. Hence, life imprisonment awarded by the learned trial Court to the appellants is altered to transportation for life. With this modification the appeal is dismissed.

M . Y . H . Appeal dismissed.

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