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Criminal Appeal No. 20 of 1983, decided on 13th May, 1986.

---S. 323--Eye-witnesses supporting case of prosecution and their evidence discussed in detail Accused not proving any enmity with such witnesses--Evidence of complainant corroborated by medical evidence- Contention of defence that accused also sustained injuries but same were not explained by prosecution--Injuries sustained by accused, minor, simple and appearing to be self-inflicted--Prosecution thus proved case against accused beyond reasonable doubt--Conviction maintained- Accused however given benefit of 5.382-B, Cr.P.C. which was not given by Trial Court.

Usman Ghani Rashid for Appellants.

Zaheer Qureshi for the State.

Date of hearing: 13th May, 1986.

Appellants were tried for the offences punishable under -action 302/34, P.P.C. and have been convicted and; section 323, P.P.C. by the Additional Sessions Judge, Karachi, vide judgment, dated 1-2-1983. Appellant Shamim has been sentenced R.I. for 4 months and to pay R.s.500 as compensation to the legal heirs of deceased. While appellants Pervaiz and Moid are sentenced to suffer R.I. for two months each and directed to pay Rs.250 each as compensation to the legal heirs of Iqbal. In case of default in payment of compensation, the appellant Shamim has been ordered to undergo R.I. for two months while Moid and Pervaiz to undergo for one month each.

2. Briefly the case of prosecution is that complainant Muhammad Aslam and P.W. Mohammad Afzal were standing in front the shop of P.W. Sher Ali in Korangi No. 2, when all the accused came and asked him to go away from that place. On their refusal there were exchange of abuses and appellant started giving blows. During the fight one Iqbal came there when appellant Pervaiz and Moid caught hold while Shamim gave him Danda blow. In the meanwhile P.W. Rafiq and other Mohallah people came and saw the incident. It is alleged that complainant Aslam also sustained injuries. Mohammad Iqbal and complainant Mohammad Aslam went and lodged report at Police Station Korangi Karachi. The report was incorporated in Roznamcha as non-cognizable offence. The injured was referred to the Jinnah Hospital and subsequently Iqbal died and case was challaned under section 302/34, P.P.C.

3. Prosecution in support of the case examined 4 eye-witnesses namely Mohammad Aslam complainant Exh.7 who produced the report. Mohammad Rafiq Exh.4 Mohammad Afzal Exh.6 and Sher Ali Exh.9 P.W. Bashir Ahmed is Mashir of inquest report, Mahmood Ali Exh.14 is Mashir of recovery of Dahda and blood-stained clothes of the deceased. He produced Mashirnamas as Exhs. 14/A and 14/B. Andal Khan Exh.10, Tapedar has produced Sketch as Exh.18/A, Ashfaq Hussain Exh.13 and Habib Shah Exh.19 are Investigating Officers. Habib Shah produce F.I.R. Exh.19/A and Chemical Examiner's report Exh.19-C. Dr. Saghir Ahmed Exh.10 has been examined in place of Dr. Khalid. He has produced death certificate of lqbal as Exh.20 and injuries certificate of appellant Moid at Exh.20-B. Dr. S.M. Farooqi Exh.20 produced injuries certificate of deceased lqbal issued by Dr. Rabani. He has also produced injuries certificate of complainant Aslam. These certificates are Exhs.25-A and 25 B. All the appellants in' their statement under section 342, Cr.P.C. have simply denied the prosecution case. They have not examined any person in their defence.

4. I have heard Mr. Usman Ghani Rashid for the appellants and Zaheer Qureshi for the State.

5. It is contended by Mr. Usman Ghani Rashid that appellants Moid also sustained injuries during the fight and prosecution has failed to explain his injuries, therefore, the case is not free from doubt, and there are material contradictions in the evidence of the eye-witnesses, therefore, case has not been proved. The learned counsel appearing for the State has supported the conviction and submitted'-that the prosecution has been able to prove the case.

6. The injuries on deceased Iqbal and complainant Mohammad Aslam are not disputed and there is evidence of Doctor and eye-witnesses. Moreover, the learned counsel appearing for the appellant has not controverted this point. The learned Additional Sessions Judge has believed the evidence of eye-witnesses and has come to the conclusion that Shamim caused Danda blow to deceased Iqbal while co-accused caught hold of him.

I have gone through the evidence of the eye-witnesses. They have supported the case of prosecution and the learned Sessions Judge has discussed their evidence in detail. The appellants have not been able to prove any enmity with these witnesses. It has also come on record that immediately after the fight complainant Aslam and deceased Iqbal A reached at the police station and report was lodged in which names of the three appellants were given. Their evidence has been corroborated by the medical evidence. The learned Additional Sessions Judge hold that fight was sudden on provocation, therefore, he came to the conclusion that offence falls under section 323, P.P:C.

The fight is not disputed. The trend of cross-examination is that there was sudden flare up between the parties and there was no intention on the part of appellant to commit the murder. This has already been, considered by' the learned Additional Sessions Judge. The only point argued by Mr. Usman Ghani Rashid is about the injuries of appellants Moid. None of the witnesses have stated that appellant Moid also sustained) injuries at the hands of complainant party. Not only this even appellant Moid has not taken the plea of self-defence in his statement before the committal Court or in the Sessions Court. He has not stated that the sustained injuries at the hands of complainant. Therefore, there is no such evidence that complainant party caused injuries to Moid. The injuries are minor and simple, which could be self-suffered or self-inflicted. Eye-witnesses have fully supported the case.

For the reasons stated above I am of the view that prosecution has proved the case beyond reasonable doubt and appellants are rightly been convicted. The appeal is dismissed.

Mr. Usman Ghani Rashid in the alternate submitted that appellants may be given benefit of section 382-B, Cr.P.C. He has argued that appellant Shamim remained in jail for about two years while other appellants were in jail as under-trial prisoners for about 9 months. The learned State counsel has not denied this factual position. He has no objection if they are given benefit of section 382-B, Cr.P.C. Appellants immediately after the judgment moved an application under section 382, Cr.P.C. before the learned Additional Sessions Judge, the same dismissed on the ground, that it is a function of the trial Court to consider. Looking to the circumstances, of the case the appellants are allowed benefit of section 382-B, Cr.P.C.

With the result they have already served out the sentence awarded as such they cannot be remanded to custody. They are on bail. Their bail bonds stand cancelled.

M.Y.H./M-149/K Conviction maintained.

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