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Criminal Appeal No. 475 of 1983 and Criminal Revision No. 713 of 1983, heard on 8th November, 1986.

---S. 302--Conviction and sentence- Names of accused not mentioned in F.I.R. being not known to complainant--Complainant knowing them by face as sons of his neighbour--House of accused adjoining house of complainant--Complainant giving names of accused in supplementary statement recorded after F.I.R.--Complainant knowing accused by face, thus could not be doubted in circumstances.

---S. 302--Ocular evidence, appreciation of--Two of eye-witnesses brothers of deceased--Witnesses having no animosity with accused--Third eye-witness independent, neither related to deceased nor inimical to accused--Depositions of witnesses consistent having ring of truth--Evidence on record and circumstances had proved participation of accused in occurrence and infliction of fatal injury to deceased by him Non- examining of any other witness or non-mentioning of names of accused in F.I.R. would not, therefore, adversely react on prosecution in circumstances.

---S. 302--Delay in lodging F.I.R.--Injured rushed to hospital from place of occurrence--Exploratory surgery done under anaesthesia--Doctor not sending any intimation to police--Investigation Officer receiving information of occurrence, rushed to place of occurrence, then to the hospital and recorded statement of injured complainant in the hospital- Delay in lodging F.I.R., held, was sufficiently explained in circumstances.

---Ss. 302 & 304, Part I--Sentence, quantum of--Parties engaged in sudden fight over a sudden quarrel--Complainant also apparently using some force--Accused losing control in melee--Solitary injury caused to deceased--Accused, held, was guilty under S.304, Part I and not under S.302, P. P. C. in circumstances--Conviction and sentence altered accordingly.

Ch. M.A. Majeed Bajwa for Appellant.

Rafiq Butt for A.-G. for the State.

Kh. Muhammad Sharif for the Complainant.

Date of hearing: 8th November, 1986.

-- Mushtaq Masih, Rahmat Masih and Hidayat Masih were tried by a learned Additional Sessions Judge of Lahore under section 302/34, P.P.C. for the murder of Arif Lewis, deceased. The learned trial Judge convicted Mushtaq Masih under section 302 , P . P. C . and sentenced him to imprisonment for life and a fine of Rs.10,000 or in default thereof to undergo further rigorous imprisonment for five years. He also ordered Mushtaq Masih to pay compensation of Rs.1,000 to the heirs of the deceased under section 544-A, Cr.P.C. or in default thereof to undergo further rigorous imprisonment for six months. The benefit under section 382-B, Cr.P.C. was also granted to Mushtaq Masih, appellant. Rahmat Masih and Hidayat Masih were given the benefit of doubt and acquitted. The appeal (Criminal Appeal No. 475 of 1983) preferred by Mushtaq Masih, convict, against his conviction and sentence and the private revision (Criminal Revision No. 713 of 1983) filed by 1anveer Sadiq, complainant, for the enhancement of the sentence of Mushtaq Masih, convict, which revision petition was admitted for hearing by this Court, are both now before us for disposal.

2. Brief facts of the case are that on 10-9-1982 at 7 p.m Tanveer Sadiq, complainant, P.W.8 alongwith his uncle Ammunal Francis (given up P.W.) and one of his friends namely Gabrial, P.W.10, were solving some sums in the house of his said uncle, which is quite adjacent to his house, when he heard some noise of the boys on the roof of his house. His younger brother, namely, Asif P.W.9 was asking the boys to step down from the roof of the house, who were quarrelling over a kite, but the aforesaid boys did not agree, who later on came down from the roof hurling abuses. Shortly, thereafter, the complainant and his uncle Ammanual Francis, (given up P.W.) came out from the house and asked what was the matter from Asif P.W.9, who told that the sons of Raba Chanan had hurled abuses on the roof of the house. Asif P.W.9, suggested that he would go to Baba Chanan and ask him to forbid his sons from abusing them. Accordingly, Asif P. W.9 came out from the house for the said purpose, followed by the complainant and his uncle. Meanwhile, when Asif P.W.9 began talking with the eldest son of Baba Chanan, whose name he did not know, Arif also came there. An altercation then ensued and the sons of Baba Chanan, whose names the complainant stated he would give on identification, grappled with the said Asif P.W.9. The complainant alleged that he and his brother Arif stepped forward to separate them, when one person caught hold of him in his clasp. He had a brickbat in his hand, which the complainant snatched from him. The complainant further alleged that a person who had sharp-pointed moustaches, thin physique and dark complexion and who was wearing a Shalwar and shirt and was aged about 20/22 years, first of all gave a stick blow to Muhammad Arif and then took out a Chhuri from the fold of his Shalwar and gave Chhuri blow to Arif, which hit him on the back side of his shoulder, with the result that the blood gushed out from there. He further alleged that the said persons also caught hold of Asif P.W.9. Meanwhile, a friend of Asif P.W.9 per chance passed from there, who took Arif on his motor cycle and got him admitted in the hospital, in an injured condition. The complainant further alleged that the sons of Baba Chanan had committed high handedness with his brother, so necessary legal action be taken against them. On 10-9-1982 at 8-30 p.m. Dr. Azam Yousif medically examined Arif Lewis, injured, and found an incised wound 11-5 c. m. x 1.5 c. m. on the back of left chest inflicted by a sharp-edged weapon. Injury was declared to have been freshly inflicted. The injury was kept under observation.

3. Munir Ahmed A.S.I. P.W.13 who was present in Bahar Colony on patrol duty, having received information about the occurrence, proceeded to Mayo Hospital, Lahore, where he recorded the statement Exh.P.G. of. Tanveer Sadiq, complainant, P.W.8 at 00.50 a.m. (past mid-night) on 11-9-1982. On the basis of the said statement, formal F.I.R. Exh.P.G./1 was recorded at Police Station Model Town, Lahore, at 2 a.m. -by Muhammad Aslam M.H.C. P.W.6. After recording the statement, Munir Ahmed A.S.I. P.W.13 proceeded to the spot, where he recorded the statements of the witnesses. After day break, he collected blood-stained earth from the spot, vide memo. P. H .

4. On 12-9-1982, Hidayat Masih, accused, was arrested by Munir Ahmed, A.S.I. P.W.13.

5. On 16-9-1982, Mushtaq Masih and Rahmat Masih, accused, were arrested by Iftikhar Ahmed Inspector P.W.11. The same day at 4-55 p. m. Arif Lewis, injured, died at the Mayo Hospital, Lahore.

6. On 17-9-1982, Dr. Muhammad Farooq Akmal P.W.2 conducted the post-mortem examination on the dead body of Arif Lewis, deceased, and found a stab wound on the back of his left chest and a multiple abrasion on the dorsum of the toes of the left foot, each measuring 2 c.m. x 1 c.m. He also found two other wounds which were surgical wounds. The death was due to the injury on the back of the chest, which he held to be individually sufficient to cause death in the ordinary course of nature. In cross-examination, the doctor stated that the possibility could not be overlooked that the cause of death of Arif Lewis, deceased, was the negligence of the doctor who had conducted operation on him.

7. On 19-9-1982, Mushtaq Masih, accused led to the recovery of a blood-stained knife P.3, from a room of his house, which was taken into possession vide memo. P.F in the presence of Kamran Jehangir P.W.5, Iftikhar Ahmed Inspector P.W.11 and Jecob Francis (given up P.W.). The said knife was found to be stained with human blood by the Chemical Examiner and the Serologist.

8. At the trial, the prosecution produced Tanveer Sadiq P.W.8, Asif Sadiq P.W.9 and Gabrial P.W.10 in proof of the motive and ocular account, Kamran Jehangir P.W.5 and Iftikhar Ahmed Inspector P.W.11 in support of the recovery and Dr. Muhammad Farooq Akmal P.W.2 and Dr. Azam Yousaf P.W.12 in corroboration of the medical testimony.

9. At the trial, all the accused denied the accusations that were levelled against them and all of them imputed their false involvement by the complainant.

10. The learned trial Judge relying upon the motive, the occular account, the recovery and the medical testimony, convicted and sentenced Mushtaq Masih, as stated in para. No.1 above, and acquitted Rehmat Masih and Hidayat Masih.

11. We have heard the arguments of the learned counsel for the appellant, the complainant and the State and have perused the record. The learned counsel for the appellant has not challenged the motive, but has made the following submissions with regard to the ocular account. First, that the names of all the accused were not mentioned in the F.I.R. and that from a bare reading of the F.I.R. only two can be said to be involved in the crime. Second, that the F.I.R. was delayed by seven to eight hours, which has not been explained. Third, that four/five Mohalladars, who were present and were independent witnesses, were not produced and that this, therefore, reacts against the prosecution case. As regards the first submission, it is true that the names of the three accused were not initially given by Tanveer Sadiq, complainant P.W.8, as he then did not know their names, but it cannot be doubted that he knew them by sight as they were the sons of his neighbourers Chanan Masih, whose house was adjacent to his house. The supplementary statement of the complainant Exh.D.A. was recorded some time after the earlier statement Exh. P. G., wherein he gave the details of the names of the three sons of Chanan Din and also gave the details of the parts played by each of them. It is true that Tanveer Sadiq, complainant P.W.8 and Asif Sadiq P.W.9 are the brothers of the deceased, but otherwise they have no enmity or animosity with the appellant or the acquitted accused. Gabrial P.W.10 is an independent witness. He is neither related to the deceased nor inimical to the appellant or the acquitted accused. Their evidence is consistent and has a ring of truth. The failure on the part of the complainant to give the names of the three assailants in his statement Exh.P.G., therefore, does not defeat the prosecution case. With regard to the second submission raised by the learned counsel, it cannot be doubted that Arif Lewis, deceased, was rushed to the Mayo Hospital, Lahore, from the place of occurrence. It appears from the statement of Dr. Azam Yousaf P.W.12 that exploratory surgery was done on the injured under anaesthesia, which must have taken sufficient time. It appears that the said doctor did not send any intimation to the Police Station Model Town, Lahore. It was not until Munir Ahmad A.S.I. P.W.13 received intimation about the incident at about 8-00/9-00 p.m. in Bahar Colony, when he was on patrol duty that he first proceeded to the spot and then having come to know from the womenfolk that the injured had been rushed to the Mayo Hospital, he proceeded to the Mayo Hospital, where he recorded the statement of Tanveer Sadiq, complainant P.W.8 at 00-50 a. m. (past mid-night). The delay, therefore, has been sufficiently explained. With regard to the third submission raised by the learned counsel for the appellant, the same has no merit, for Gabrial P.W.10 is an independent witness and the need for examining any further independent witness did not arise. The evidence on the record and the surrounding circumstances, therefore, clearly show that Mushtaq Masih, appellant, did participate in the occurrence and was the very person who inflicted fatal knife blow to Arif Lewis, deceased.

12. The only question that now remains is that relating to sentence. The learned trial Judge held that a sudden quarrel took place over a kite on the roof of the house of the deceased. It is also apparent from the evidence that a sudden quarrel took place later also, when both the parties met in the grassy plot on the ground floor. It is in evidence that when Arif Lewis tried to entreat the appellant and the two acquitted accused, they started exchanging hot words and grappled with Asif Sadiq P.W.9 and when Tanveer Sadiq complainant, P.W.8 and Arif Lewis stepped forward to separate them, Rehmat, acquitted accused, had a brickbat in his hand, which Tanveer Sadiq P.W.8 snatched away from him. Some show of force on the part of Tanveer Sadiq P.W.8 is, therefore, apparent. Therefore, there appears to be a melee in which Mushtaq Masih, appellant, lost control and inflicted the solitary injury to Arif Lewis, deceased, with a Chhuri. It is obvious that the parties, were engaged in a sudden fight upon a sudden quarrel. Mushtaq Masih, I appellant, therefore, appears to be guilty under section 304-I, P.P.C. His conviction under section 302, P . P. C . , therefore, deserves to be set aside. We, therefore, sentence Mushtaq Masih, appellant, under section 304-I, P.P. C. to ten years' rigorous imprisonment with a fine of Rupees ten thousand (Rs.10,000) or, in default thereof, to further undergo rigorous imprisonment for two years. Mushtaq Masih, appellant, shall also pay Rupees one thousand (Rs.1,000) as compensation to the heirs of Arif Lewis deceased, under section 544-A, Cr.P. C. In default of payment of compensation, he shall undergo further rigorous imprisonment for six months. The amount of the fine and compensation, if realised, shall both be paid to the heirs of Arif Lewis, deceased. The appellant shall also be granted the benefit of section 382-B, Cr.P.C.

13. The appeal of Mushtaq Masih appellant, therefore, stands partly accepted, in terms of alteration of conviction and reduction in his sentence, as stated above.

14. There being no merit in this revision petition (Criminal Revision No. 713 of 1983) filed by Tanveer Sadiq for enhancement of the sentence of the appellant, the same is dismissed.

S. A. Appeal partly accepted.

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