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Criminal Appeal No. 196 and Criminal Revision No. 258 of 1984, decided on 29th April, 1987.

---S. 304, Part 1--Presence of witness at spot admitted even by defence--Neither witness having any motive nor deceased had any reason to falsely implicate accused--Statements of witnesses regarding co-accused suffering from contradictions-Possibility of defence version being true not existing--Immediate cause of occurrence not available and scuffle taking place between parties per chance resulting in incident--Conviction of accused under S. 304 Part I, Penal Code maintained but sentence of imprisonment for life reduced to ten years.

Raja Muhammad Anwar for Appellant.

M. Rafiq Butt for the State.

Dates of heraing: 22nd and 23rd February, 1987.

Mazhar (24/25), - Akhtar (28), Nasir (25), Shoaib (18) and their father Chiragh (65) residents of village Rustam Sargana, Police Station Shorkot, were tried by the learned Sessions Judge, Jhang, on the allegations that on 11-6-1981 at 7-8 a.m. they formed themselves into an unlawful assembly with the common object of committing the murders of Haq Nawaz deceased, Zulfiqar and Mst. Noor Bhari and in prosecution of that common object of the said unlawful assembly actually committed the murder of Haq Nawaz deceased and made murderous assault on Zulfiqar and Mst. Noor Bhari, in The area of village Rustam Sargana. By judgment, dated 11-1-1984, Akhtar, Nasir, Shosib and Chiragh accused were acquitted of all the charges while Mazhar was convicted under section 304, P.P.C. and sentenced to imprisonment for life and a fine of Rs.10,000 or in default in the payment thereof to undergo further R.I. for three years. The fine, if recovered, was ordered to be paid to the heirs of the deceased as compensation. The convict has appealed and Zulfiqar complainant has filed Cr.R. No. 258 of 1984, praying that the judgment of the trial Court be set aside, Mazhar accused be convicted under section 302, P.P.C. and other accused be dealt with in accordance with law. Both these matters shall be disposed of by this judgment.

2. The brief facts of the prosecution case are that Haq Nawaz deceased and his brother Zulfiqar, complainant, used to cultivate the land of their co villager Haji Zulfiqar P.W. On 11-6-1981 at about 7/8 a.m., they and their mother Mst. Noor Bhari were present in their Behk situate in the said land when acquitted accused Chiragh and his sons Mazhar, Nasir Akhtar and Shoaib came there. Chiragh was empty-handed, Mazhar had a gun, Nasir, Akhtar and Shoaib were armed with Kassi, Vahola and Lathi, respectively. Chiragh accused exhorted his sons to kill Haq Nawaz deceased, upon which, Mazhar accused fired at them causing injuries on the abdomen, left arm and left hand as a result of which, he fell down. His brother Zulfiqar reached forward to rescue him whereupon Nasir, Akhtar and Shoaib caused him injuries with their weapons. Then their mother Mst. Voor Bhari went forward and entreated the accused to spare her sons but Nasir gave her a Kassi blow on the right arm and Akhtar gave her a Vahola blow on the right wrist. In the meantime Shah Baig and Allah Yar reached the spot and rescued the injured from the accused persons.

The motive for the occurrence was that Chiragh accused owed Rs.3,200 to Namdar, uncle of Haq Nawaz deceased. Deceased's brother Manzoor demanded the money upon which Chiragh and his sons gave him beating. The deceased got a case registered against them at Police Station Shorkot, over which they got annoyed with him.

The deceased was taken to DHQ hospital, Jhang, in injured condition, where he reported the occurrence to Abdul Majeed, A.S.I. Police Post, Civil Lines, Jhang, on the same day at 12-15 noon, vide his statement Ex.P.J. On the basis of that statement formal F.I.R. Ex.P.J. /1 was recorded at the police station at 2-00 p.m.

3. After recording the statement of Haq Nawaz deceased the A.S.I. made application Ex.P.D./2 before the Assistant Commissioner, Jhang, for recording the dying declaration of the deceased. The Assistant Commissioner marked the application to Mr. Ameer Ali, Magistrate 1st Class, who reached the hospital and inquired from the doctor if Haq Nawaz injured was in a fit condition to make the statement to which the doctor replied in the affirmative. The Magistrate then recorded the dying declaration Exh.P.D./4. On the same day Muhammad Bakhsh, A.S.I. Police Station Shorkot, reached DHQ Hospital, Jhang, where he recorded the statements of P.Ws. under section 161, Cr.P.C. Then he reached the spot and secured some blood-stained earth which was made into sealed parcel vide memo. Exh.P.M. He also secured crime empty P.2 and live cartridge P.3 from the place of occurrence vide memo. Ex.P.N. the crime empty was made into a sealed parcel. On 12-6-1981, he received information that Haq Nawaz had expired. He prepared his injury statement Ex.P.S. and inquest report Ex.P.S./1 and despatched the dead body to the mortuary for post-mortem examination. On 16-6-1981, Charagh, Nasir and Akhtar accused appeared before him. Nasir and Akhtar accused produced Kassi P.5 and Vahola P.6 before him vide memo. Ex.P.Q. and P.R., respectively. He arrested Mazhar and Shoaib accused on 19-6-1981. On 22-6-1981 Mazhar accused, while in custody, led to the recovery of gun P.4 from his house which was made into a sealed parcel vide memo. Ex.P.O. This gun was licensed in the name of his father Charagh. After the investigation the accused persons were challaned.

4. On 11-6-1981 Dr. Muhammad Afzal, Medical Officer, DHQ Hospital, Jhang, examined Haq Nawaz deceased, when alive, and found the following injuries on his psrsons: -

(i) A fire-arm wound of entrance oval in shape 7 x 6 c.m. x unprobed on front of right abdomen (Right hypochondrum) with intestine coming of the wound.

(ii) A fire-arm wound 4 x 3 c.m. into bone deep on back of left hand of the base of left index finger crushing of soft tissues and bone. Wound of entry an exit could not be distinguished.

(iii) A fire-arm wound with blackening of margins 3 x 0.5 c. m. x skin deep on front of left upper arm near elbow. All the injuries were caused by fire-arm. Injury No. 1 was dangerous to life and the rest were kept under observation.

On 12-6-1981 the same doctor conducted the autopsy on the dead body of Haq Nawaz and found the same injuries on it. On opening the abdomen, peritcnium .vas found punctured under injury No.l, diaphram w-as perforated on right side near the liver, small intestines and large intestine were found punctured at multiple places. Liver and right kidney were injured. In the opinion of the doctor death was clue to shock and haemorrhage resulting from injury No. 1 which was sufficient to cause death in the ordinary course of nature. Injury No. 2 was grievous and No. 3 was simple.

On 11-6-1981 the same doctor examined Zulfiqar P.W. and found three abrasions and two contusion marks on his person. The abrasions were on right hand, right forearm and left wrist and contusion marks on right leg and left upper arm. All the injuries were simple in nature, caused by blunt weapon.

On the same day Dr. Ismat Begum, W.M.O., DHQ Hospital, Jhang, examined Mst. Noor Bibi P.W. and found a bruise mark on the back of her right forearm and another similar mark on right arm middle part. Both the injuries were simple in nature caused by blunt weapon.

5 In support of its case the prosecution examined three eye-witnesses, namely Zulfiqar (P.W. 10), Mst. Nur Bibi (P.W.11) and Shah Beg (P.W.12). The prosecution also relied on the dying declarations (Exs.P.J. and P.D./1) and recovery of weapons from Mazhar appellant and acquitted accused Nasir and Akhtar.

6. The accused persons pleaded not guilty to the charge and denied the prosecution allegations against them. Mazhar appellant when asked why this case against him, made the following statement:-

"On the night preceding the day of occurrence my brother Nasir and Mali Qurban were irrigating our fields. During our turn on the said night Zulfiqar P.W. and Haq Nawaz deceased diverted water of our Wari to their own field. My brother Nasir and Qurban when went to the said field for checking the irrigation of our field they had an altercation with Zulfiqar P.W. and Haq Nawaz deceased for the diversion of our Wari. Haq Nawaz and Zulfiqar assaulted Nasir with their Kassis. To save the life of Nasir, our Mali Qurban who had a gun, fired which hit Haq Nawaz deceased, In the same altercation, Zulfiqar ,P.W. also sustained some injuries. Mst. Noor Bhari was not there at all. None of the other P.Ws. in this case was present at that time. For this reason Zulfiqar and Haq Nawaz have implicated all the male members of my family, falsely in this case." He produced certified copies of Khasra Girdawari Ex.D.D. and Ex.D.E. and a certified copy Ex.D.F. of the contour plan maintained by the Irrigation Department.

7-8. After examining the evidence on record, the learned trial Judge observed that according to the dying declaration Ex.P.J. and P.D./4 and the statements of P.Ws. Zulfiqar and Mst. Noor Bibi the occurrence took place at the Behk of the complainant party but this version was belied by the documentary evidence on the record. He, therefore, declined to accept the dying declarations Exs. P.J. and P.D. /4 and the evidence of Zulfiqar and Mst. Nur Bibi with regard to the place of occurrence. He further observed that a large number of relatives of Haq Nawaz accompanied him to the hospital and possibility of his having been tutored at least with regard to the number of accused could not be ruled out though at the same time he could not be said to 'haqe substituted his actual assailant Mazhar for some body else'. He accepted the prosecution version of the motive and came to the conclusion that due to previous heart-burning a scuffle took place per chance between Haq Nawaz and Zulfiqar on one side and Mazhar and his co-accused on the other during which Mazhar fired at Haq Nawaz resulting in his death while the role attributed to other accused was somewhat doubtful. He, therefore, convicted and sentenced Mazhar appellant as mentioned above and acquitted the remaining accused by giving them the benefit of doubt.

9. Learned counsel for the appellant did not press the defence plea but he vehemently contended that the prosecution evidence regarding the place of occurrence and injuries of Zulfiqar and Mst. Nur Bibi having been disbelieved, it should not have been relied upon against the appellant. In the alternative, he submitted that the sentence awarded by the trial Court is excessive. The learned counsel for the complainant submitted that the offence committed by Mazhar accused was covered under section 302, P.P.C. and the acquittal of the remaining accused was fanciful.

The learned trial Judge has rightly observed that in the dying declarations Ex.P.J. and P.D. /4 the deceased had stated that the occurrence had taken place in the Behk of the complainant party. It is however, not true that Zulfiqar P.W.10 and Mst. Noor Bhari P.W.11 had also made similar statements with regard to the place of occurrence. The observation to that effect is based on misreading of evidence. Zulfiqar P.W.10 stated that Haq Nawaz was present on the bank of the 'Canal minor' and the accused persons also came there and attacked him. Mst. Noor Bhari stated that the deceased was standing 'at the place of occurrence' and she was near the said place when the accused persons came there. However, the statements of these two P.Ws. regarding the field in which the Behk had been set up are contradicted by other evidence available on the record. According to Zulfiqar complainant the said Behk was towards the south of 'canal minor' in Killa No. 5 of Square No. 81 which belonged to Haji Zulfiqar P.W. Mst. Noor Bhari also stated that the Behk was in the land of aforesaid Haji Zulfiqar. In the site plans Ex.P.L. and P.L./1, the B-:1K is shown at point ( ) situate on the northern side of the canal ;minor). Ahmad Nawaz Patwari categorically stated that there was no Behk in Kills. No. 5 of Square No. 81 belonging to Zulfiqar aforementioned. Zulfiqar P.W. and Mst. Noor Bhari thus appear to have made a mis-statement with regard to the location of the Behak but this fact per se is not a sufficient ground for rejecting their evidence in toto.

However, the statement of Mst. Noor Bhari suffers from other inherent defects and I have chosen not to rely on it. According to the prosecution, she had gone to the field for assisting her sons in cutting fodder. According to her own showing she was about 80 years of age. It is doubtful that she was in a position to render any assistance to her sons in cutting the fodder. Her statement shows that she was tutored before she entered, the witness-box. She stated that her memory was refreshed by reading out her police statement outside the court-room. In the circumstances, her statement is kept out of consideration.

10. Presence of Zulfiqar P.W. at the spot is admitted even by the defence arid Shah Baig P.W. had absolutely no motive to offer himself as a false witness against the accused. However, their statements regarding the role of acquitted accused suffer from contradictions. According to prosecution, acquitted accused Nasir was armed with Kassi, Akhtar with a Wahola and Shoaib with a Lathi and all the three caused injuries to Zulfiqar P.W. with those weapons, while Nasir and Akhtar also injured Mst. Noor Bhari with their weapons. According to the medical evidence, all the injuries of Zulfiqar and Mst. Noor Bhari had been caused by blunt weapon. At the trial both of them stated that Nasir and Akhtar used their weapons from the wrong side. They were confronted with their statement before the police wherein it was not so recorded. Having gone through the evidence on the record, I agree with the learned trial Judge that possibility of deceased having exaggerated the number of accused cannot be ruled out but there is no reason to believe that he would substitute Mazhar appellant for some one else. If Qurban Mali had fired at the deceased as alleged by Maztiar appellant, there could be no reason for the deceased to spare him and substitute the appellant for him. Thus, there is no possibility of defence version being true. There is no evidence regarding the immediate cause bf the occurrence.

It appears that a scuffle took place between the parties per resulting in this unfortunate occurrence. The conviction of appellant under section 304, Part I, P.P.C. is, therefore, maintained. The sentence of imprisonment for life is excessive and is reduced to R.I. for 10 years and a fine of Rs.10,000 or in default in the payment thereof to undergo further R.I. for two years. The fine, if recovered, shall be paid to the heirs of the deceased as compensation. The appellant shall also be given the benefit of section 382-B, Cr.P.C. The appeal stands disposed of accordingly.

For the reasons stated above, Cr. R. No.258 of 1984 fails and is dismissed.

M.Y.H./M-353/L Order accordingly.

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