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Criminal Appeal No. 35 of 1985, decided on 25th February, 1986.

‑‑‑S. 302/34‑‑Appreciation of evidence‑‑Mere relationship of witnesses with deceased, held, would not be ground to discredit evidence.‑ [Witness].

‑‑‑S. 302/34‑‑Testimony of prosecution witnesses fully corroborated by medical evidence and inspiring confidence‑‑First information report lodged without delay and containing correct narration of facts‑ Accused's plea of alibi and defence evidence not believable‑‑Ocular testimony fully establishing guilt of accused‑‑No evidence showing that accused repeated attack and there was only one injury on vital part of the body of deceased‑‑Nature of injuries and place of injuries leading to conclusion that accused had no intention to take life of deceased‑ Number of injuries when examined with number of assailants showing that case did not fall under S. 302, P.P.C. but under S. 325, Penal Code‑ Conviction of accused altered from S. 302/148/149, P.P.C. to S. 325/34, P.P.C. and their sentence of life imprisonment reduced to five years.

‑‑‑S. 302‑‑Recoveries‑‑Corroborative value‑‑Incriminating articles secured from accused not found stained with blood and they were not sent to expert‑‑Such recoveries, held, could not be considered as having any corroborative value.‑‑[Recovery].

Muhammad Hayat Junejo for Appellants.

Abdul Ghafoor Mangi, A.A.‑G. for the State.

Date of hearing: 16th February, 1986.

This appeal is directed against the judgment, dated 23‑1‑1985 passed by the learned IInd Additional Sessions Judge, Khairpur by which he convicted the appellants under section 302/ 149, P.P.C. and sentenced them to undergo imprisonment for life and to pay fine of Rs.1,000 in default of payment of fine to undergo imprisonment for further period of six months. The appellants are also convicted under section 148. P.P.C and sentenced to undergo imprisonment for one year each. The sentences were directed to run concurrently. It was further directed that half of the amount of fine if recovered, be paid to the heirs of deceased.

The facts in brief are that on 18‑6‑1982 at about 8‑00 a.m, complainant Muhammad Moosa brought deceased Ghulam Raza injured to the Police Station Kotdiji. At the gate of police station Ghulam Raza succumbed to injuries. He lodged the F.I.R. Exh. 12. The W.H.C. P.S. Kotdiji after recording the F.I.R. inspected the dead body of deceased Ghulam Raza and prepared the Mashirnama of injuries Exh. 42. He also prepared the inquest report of the deceased Exh. 43 in presence of Mashirs Mehboob Ali and Faqir Muhammad and referred the dead body to Medical Officer Kotdiji for conducting post‑mortem. S.H.O. Noor Muhammad Chandio was out of station he, therefore, sent the papers to S.H.O. Manzoor Ahmad. The case set out in the F.I.R. by the complainant is that there was dispute existing with Nazar Hussain, Nabidad and others for about two years for the reasons that finding them to be of bad character, they had prohibited them from passing by their houses. On the day of incident accused Nazar Hussain and others had opened gun fire and given hatchets and Lathies blows to his maternal uncle's son, sons of his mother's sister namely Nazar Hussain alias Toto, Muhammad Hussain and his maternal uncle Allah Bachayo, with intention to murder them, and thereby caused them injuries. During the quarrel, Lal Bux and Meechel who are relatives of Nazar Hussain also received injuries. Injured were admitted in the hospital and, therefore, on the same day in evening his brother Ghulam Raza, Ghulam Qasim and their cousin Ameer and Allahdino gone to the hospital to visit Malik Ghulam Akbar and others, while he was at his machine near Sorah Chowk. He after finishing the work at his saw machine, at sunset time, also proceeded towards hospital by his cycle to visit Ghulam Akbar and others. When at about 7‑30 p.m. he reached at the tonga‑stand he found accused Audho, Shaman and Momin who were armed with iron bars and Nabidad and Bangul who were armed with Lathies were going towards Bungalow on the tractor of Nazar Hussain and Nazar Hussain was driving the tractor. He found that his brother Ghulam Raza had fallen down from the tonga and he had received the injuries on his forehead, head and on other parts of the body. His brother Ghulam Qasim, cousin Ameer and Allahdino Malim, Bagho Khaskheli Tongawala were sprinkling water over him and were trying to get him up while giving support, and many people of town had gathered there. His brother Ghulam Qasim narrated the facts to him which formed part of the F.I.R. After usual investigation the accused persons were sent up to stand trial before the IInd Additional Sessions Judge, Khairpur. The appellants did not plead guilty to the charge.

In order to bring home the case against the appellants, the prosecution examined Muhammad Moosa, Ghulam Qasim, Ameer Bux, Began, Allahdino, Tapedar Ghulam Sarwar, Atta Hussain Shah, Zawar Imdad Ali, Ghutto, Dr. Ali Nawaz, S.H.O. Manzoor Ahmed, Mehboob Ali, Qurban Ali and Ghulam Nabi. In their statements all the accused denied the allegations. The accused Nazar Hussain has stated that on the day of incident at early morning there arose dispute between his caste fellows anti complainant party. The complainant party also complained against him and others. He was discharged during the investigation by police. Due to this enmity he and other relatives were involved in this case. The murder took place as a result of dispute between two brothers of complainant party. In fact he was not present at the time of incident at Wardat. In defence he examined two witnesses Haji Allah Wasayo and Rehmatullah. Accused Adho also denied the allegations of prosecution. He further stated that he and his relatives did not pass through village of complainant party. The other accused have also denied the charge. Accused Momin has stated that there is long standing dispute over the rotation of irrigation water and their relations with complainant party are strained.

Dr. Ali Nawaz who performed the post‑mortem on the dead body of the deceased found the following injuries on the person of the deceased:‑

(1) A lacerated wound measuring 5 c.m. x 1 c.m. bone deep on the frontal region on the head.

(2) A contusion 10 c.m. x 5 c.m. on right side of neck.

(3) A lacerated wound 8 c.m. x 2 c.m. scalp deep on vault of skull with fracture of underlying bone with bleeding from nose and ears.

(4) A contusion 10 c.m. x 2 c.m. on medical side on the left lower leg.

(5) A lacerated wound 2 c.m. x 1 c.m. x bone deep on right shin.

(6) A contusion 12 c.m. x 1‑1/2 c.m. on frontal region of the right thigh.

(7) A contusion 7 c.m. x 2 c.m. on lateral side of right thigh.

(1) Skull was fractured.

(2) There was blood in the cramial cavity, and conussion of brain.

(3) Blood was oozing from nose and mouth.

(4) Stomach contained semi‑digested food and mucus.

(5) Small intestine contained semi‑digested food and gasses.

"From the external examination as well as internal examination of the dead body of Ghulam Raza son of Karim Bux Sonio by caste I am of the opinion that death of deceased occurred due to shock intracranial baemorrage as result of concussion of medial surface of both the hemispheres of brain matter. Injuries were caused withsome hard blunt substance and were antemortem. Injuries Nos. 1 and 3 collectively and individually sufficient to cause death in ordinary course of nature.

Probable time between death and injury about 15 minutes and time between death and post‑mortem 2 to 3 hours, I, issued such certificate which I produce as Exh. 37 it is same correct and bears my signature."

The death of the deceased has not been disputed.

As regards the actual incident the prosecution relied upon the ocular testimony of Ghulam Qasim, Allahdinc. Amir Bux, Chutto and Bagan. Ghulam Qasim in his deposition has stated that accused Nazar Hussain sitting in the tractor loudly called his companions to come saving that their enemy had come and should not be spared. This was at about 6‑45 p.m. Audho armed with iron bar, Momin armed with iron pipe, Shaman with iron plated rod, Nabidad, Bangul and Shaman armed with Lathis came out of fish market at the call of accused Nazar Hussain. Audho and Momin first gave blows to his brother Ghulam Raza, then the other co‑accused caused blows to his brother with their respective weapons. He, Amir Bux, Allahdino and Bagu got down from tonga and raised cries. Allah Dino and Amir Bux had joined their tonga from the hospital. Ghulam Raza fell down after attack and was struggling. On his cries about 100‑150 persons gathered at the Wardat, in the meantime his brother Muhammad Moosa also came. After the incident the accused fled towards bungalow side in a tractor. At the gate of police station his brother died. The statement of P.W. Ghulam Qasirn has been fully corroborated by the medical evidence. The learned trial Judge has taken into consideration that Allahdino and Bagan P.Ws. do not belong to the caste of complainant party. They are independent and most reliable, and there is no reason as to why the evidence of two witnesses who have fully corroborated the prosecutions case should not be believed. Mere relationship of witnesses with deceased is no ground to discredit their evidence. Their statements inspire confidence and fit in the prosecution case. The F.I.R. was lodged without any delay and contains correct narration of the facts. The accused themselves admitted about the first incident which had occurred in the morning. The plea of alibi taken by Nazar Hussain was rightly rejected by the trial Judge. He was known to the witnesses, he was driving the tractor and blocked the path on which the deceased and witnesses were coming to town. The defence evidence has been rightly discarded by the learned trial Judge.

Incriminating articles secured from the appellants were not blood stained and they were not sent to the expert. As such these recoveries were not considered as the corroborating evidence. However, ocular testimony fully established the guilt of the appellants.

The next question for consideration is that what offence the appellants have committed According to the Dr. Ali Nawaz injuries were caused with some hard blunt substance and were ante‑mortem. Injuries Nos. 1 and 3 collectively and individually sufficient to cause death in ordinary course of nature. Injury No. 5 was on shin. The other injuries Nos. 4, 5, 6 and 7 are not on vital part. Even injury No. 2 was only contusion. There are six assailants who were armed with weapons. There are six appellants, it is alleged that except Nazar Hussain five appellants had attacked the deceased and caused him injuries with their respective weapons. It appears that two appellants had caused two injuries each and others had given one injury each to the deceased. After receiving the injuries the deceased had fallen down from tonga. There is no evidence that the appellants repeated the attack. The deceased was all alone, there was nobody to prevent the accused from repeating the attack. There would have been more attacks from their side if they wanted to kill the deceased. There were six accused and they were armed with Lathies and iron bars only seven injuries had been caused. There is only one injury on the vital part of the body. The nature of injuries and place of injuries would have no doubt in mind that there was no intention to take the life of the deceased. In these circumstances the conviction recorded under sections 302/149 and 148 cannot be maintained. The learned counsel has referred to a Supreme Court judgment in Criminal Appeal No. 10‑K of 1985 and Criminal Appeal No. 77 of 1985 passed by this Court. In Supreme Court case it has been observed that "it is highly improbable that the four appellants who had equal grievance with the deceased, would only inflict one injury each, one by one and not resort to successive blows with their weapons in the course of the occurrence". In the instant case also the number of injuries when examined with the number of the assailants the only conclusion would be that the case does not fall under section 302 but falls under section 325. Consequently, their conviction is altered from section 302/149/148, P.P.C, to section 325/34, P.P.C. and sentenced to five years R.I. each and fine of Rs.2,000 each in default of payment fine to suffer R.I. for six months each. If fine is recovered the entire amount shall be paid to the heirs of the deceased. The appellants are also entitled to the benefit of section 382‑B, Cr.P.C. with this modification in conviction and sentence, the appeal is dismissed. These are the reasons in support of the short order.

M.Y.H./N‑10/K Appeal partly accepted.

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