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Criminal Appeal No.144 and Murder Reference No.168 of 1981, decided on 28th June, 1982.

---Ss. 302, 148 & 149--Chance witness--Occurrence taking place 4/5 squares away from village Abadi in front of Bheni of accused---Witnesses residents of village coming after performing their jobs--Witnesses not inimical to accused--Mere association with deceased, not amounting to even relationship, would not be accepted as basis for ruling out evidence of witness who could not be held to be chance witness in circumstances.--[Witness].

----Ss. 302, 148 6 149--Evidence Act (I of 1872) S. 32--Dying declaration--Value of--Statement of deceased tendered in evidence- Statement not recorded by Magistrate nor made under expectancy of death--Such statement, held, would not be ruled out of consideration, however, alone it could not form basis of conviction unless corroborated by some other evidence.

---Ss. 302, 148 & 149--Common intention--Proof of--Dying declaration corroborated by eye--witness account and evidence of motive had proved beyond reasonable doubt that accused attacked deceased and caused him injuries with common intention--Conviction upheld in circumstances.

---Ss.302, 148 & 149--Knowledge or intention to kill--Motive, exchange of abuses over trivial remark--No threat extended by accused at parting time--Deceased himself not taking matter seriously and passing by Bheni of accused unattended and unarmed--Most of injuries found on non-vital parts of body of deceased--No history of any previous enmity between parties present--Accused held, could not be burdened with intention of having formed unlawful assembly to murder deceased, nor with knowledge that he would die of injuries--Conviction and sentence altered to one under S. 326/149. P.P.C. in circumstances.

Sardar Faiz Muhammad Khosa for Appellant.

Khalid Alvi for A.A.-G. for the State.

Dates of hearing: 28th and 29th June, 1982.

.--Muhammad Hanif son of Sultan Ahmad, aged 65 years, Muhammad Ashraf son of Muhammad Hanif, aged 30 years, Muhammad Tufail son of Muhammad Hanif, aged 28 years, Muhammad Latif son of Muhammad Sharif, aged J6 years and Ghulam Sarwar son of Ghulam Rasul, aged 32 years, have filed this appeal against the order dated 27-7-1981 of the Additional Sessions Judge, Multan, whereby the learned Additional Sessions Judge convicted the appellants under section 302/149, P.P.C. for having committed the murder of Muhammad Fazil and- sentenced each of them to death and a fine of Ra.5,000, in default to suffer two years R.I. Half of the fine, if recovered, has been ordered to be paid to the heirs of the deceased.

2. The occurrence in this case took place on 25-7-1980, at Asarwela, near the Bheni of Muhammad Ashraf appellant, in the area of Chak No.66/M, at a distance of 12 miles from Police Station, Jalalpur Pirwala. F.I.R. Exh.P.N./1 was recorded by Mehr Din P.W.9 at 12-30 a.m. on 26-7-1980, on receipt of statement Exh.P.N. of Muhammad Fazil deceased, recorded by Nek Muhammad, A.S.I. P.W.12, in Civil Hospital, Jalalpur Pirwala, at 12-15 a.m. on the same day. The case was registered under section 307/326/325/324/148/149, P.P.C. The deceased died on the same day at 5-15 p.m. and the offence under section 302, P.P.C. was added.

3. Briefly the facts of the case as set out in the statement of Muhammad Fazil deceased Exh.P.N. are that when he was returning from village Kinwan, where he had gone to inquire about the health of Manzur son of Abdul Aziz, who had been bitten by a snake he was attacked by Muhammad Tufail, armed with Gandhala and by the other appellants armed with Dangs, when on return he reached near the Bheni of Ashraf appellant at Asarwela. Ghulam Sarwar appellant after saying that they will teach him a lesson for having abused him in the Panchayat on the previous night gave Sota blows on the head of Muhammad Fazil. Abdul Latif and Muhammad Ashraf appellants gave injuries on the right arm with Sotas, Muhammad Tufail appellant caused injuries with Gandhala on both the arms, Muhammad Hanif appellant also gave him Sots blows. Muhammad Fazil fell down and p.11he appellants gave him injuries. On his shrieks, Allah Ditta P.W.1, Inayatullah P.W.4 and Faqir Muhammad not produced reached the spot and released the deceased by beseeching the appellants. Whereafter, Muhammad Fazil was removed to the Civil Hospital, Jalalpur Pirwala, where he made the statement Exh.P.N.

4. The motive of the occurrence was that in a Panchayat which was held previous evening to decide the dispute of water between Faqir Muhammad and one Aslam son of Inayat, the deceased had told Ghulam Sarwar appellant not to commit mischief by joining the party of Aslam etc. When the matter was being settled, on which Sarwar appellant abused the deceased and the deceased had also returned the abuses.

5. Nek Muhammad, A.S.I. P.W.12 reached the hospital on receipt of Ruqqa Exh.P.B. from the doctor of Civil Hospital, Jalalpur Pirwala, about the admission of the deceased in an injured condition. He recorded the statement Exh; P. N. of Muhammad Fazil deceased after having solicited the opinion of the doctor Exh.P.C./1 on application Exh.P.C., that the deceased was fit to make a statement. Nek Muhammad P.W.12 reached the spot on the same day and collected blood-stained earth from the place of occurrence vide memo. Exh.P.E. He also prepared rough site plan Exh.P.Q. of the place of occurrence. The investigation of the case was taken over on the same day, i.e. 26-7-1980, by Javid Hussain, S.I./S.H.O. P.W.11. The Sub-Inspector after receiving information about the death of Muhammad Fazil, reached the hospital and after preparing inquest report Exh.P.O., despatched the dead body for post-mortem examination. On 8-8-1980, the Sub-Inspector arrested the appellants when they were produced by Ch. Bashir Ahmad. On 11-8-1980, Muhammad Hanif appellant led to the recovery of blood-stained Sota P.2, from his residential Kotha, which was taken into possession vide memo. Exh. P.F. The same day Muhammad Tufail appellant, while in custody, led to the recovery of blood-stained Gandhala P.1, from his house, which was taken into possession vide memo. Exh.P.K. Muhammad Ashraf appellant, on the same day, led to the recovery of blood-stained Sota P.6 from his house, which was taken into possession vide memo. Exh.P.J. Abdul Latif appellant, on the same .day, led to the recovery of blood stained bamboo stick P.7 from his residential Kotha, which was taken into possession vide memo. Exh.P.L. Ghulam Sarwar appellant led to the recovery of blood-stained Sota P.8 from his house which was taken into possession vide memo. Exh.P.M. The recovery memos. were attested by Inayatullah P.W.4, Faqir Muhammad (not produced) apart from Javid Husssain, S.I. /S.H.O. P.W.11. After necessary investigation, the challan was put to Court.

6. At the trial prosecution in all examined 12 witnesses. Allah Ditta P.W.1 and Inayatullah P.W.4 have furnished eye-witness account. Statement Exh.P.N. made by the deceased to A.S.I. Nek Muhammad P.W.12, on which F.I.R. Exh.P.N./1 was recorded was tendered in evidence as dying declaration under section 32 of the Evidence Act Iayatullah P.W.4 also gave evidence of recovery of weapons of offence said to have been effected at the instance of the appellants. The other public witness of recovery, Faqir Muhammad was given up. S.I. Javid Husain P.W.11, who had given an account of the investigation had also deposed about the recoveries. The motive for the attack is stated in the dying declaration of the deceased. Allah Ditta P.W.1 and Inayatullah P.W.4 have also stated regarding the exchange of abuses between the deceased and Ghulam Sarwar appellant during the previous night while both were present in the Panchayat which has been stated to be the motive for attack by the appellants.

7. Dr. Abdul Aziz Shah Bukhari P.W.2, who had medically examined the deceased at the time of his admission, also conducted the post-mortem examination of the deceased. He noted the following injuries at the time of post-mortem examination:----

(1) Stitched incised wound, 1/2" x 1/8" on the back of right fore-arm, bone deep fracture of lower end of ulna felt clinically. It was 1" above the wrist-joint.

(2) Stitched incised wound, " above right elbow-joint.

(3) Stitched incised wound, " on back of left upper arm 3" above left elbow-joint.

(4) Stitched lacerated wound, 1-3/4" on right parietal area of head 3 " above right eye-brow and 4" above right ear.

(5) Stitched lacerated wound 1-3/4" on left parietal area of head 2 " above left ear.

(6) Swelling, deformity of left fore-arm with multiple contusion in the middle of both radious and ulna.

(7) Swelling with contusion of tip of finger right finger also blacking on nail.

(8) Swelling with contusion of right ulnar side of right hand with fracture of 1st phalanx of right little finger.

(9) A linear contusion 6" x 1" on the back and left lateral side of chest and last ribs.

(10) Multiple contusions of left buttock, front and left lateral side of left thigh.

(11) Swelling with contusion of left ankle-joint, more on outer side.

(12) A contusion 3" x 1 " with an abrasion " x " in it on front of right knee-joint.

(13) A contusion on front and lateral side of right leg just in its middle.

These injuries sincronise with the injuries noted by the doctor at the time of medical examination, except that at the time of post-mortem, the doctor noted one injury less than the injuries noted at the time of medical examination which was not of much significance.

According to the opinion of the doctor, the deceased died because of shock and anaemia, which was due to internal and external haemorrhage collectively from injuries Nos. 1 to 6. Injuries Nos. 1 to 6 and 10 were sufficient in the ordinary course of nature to cause the death.

8. The appellants in their statements under section 342, Cr.P.C. have denied the charges, all of them have stated that they had been falsely implicated in this case due to enmity and party faction. They have also denied the recovery of weapons.

9. Learned counsel for the appellants has contended that Allah Ditta P.W.1 and Inayatullah P.W.4 are chance witnesses and that they had not seen the occurrence. He has contended that they had become witnesses because of their friendship with the deceased. With regard to the statement of the deceased, which has been tendered as dying declaration, learned counsel has laid stress on the fact that the statement was not recorded as a dying declaration and that the deceased himself was also not under the expectancy of death and as such his statement cannot be given the weight of a dying declaration envisaged by law. His contention is that such a dying declaration cannot be made the basis of conviction unless corroborated by an independent evidence. He has further contended that the recoveries in this case have been planted, independent witnesses who were available from the vicinity were neither named nor produced and that the manner in which recoveries are stated to have taken place does not inspire confidence. He has also pointed out that the learned trial Court did not rely on evidence of recoveries and has ruled out the same. Learned counsel has also contended that the prosecution has not been able to prove motive. Lastly, it has been contended on behalf of the appellants that even if evidence is considered worth reliance, no case under section 302, P.P.C. is made out and that at the best the appellants can be held liable for causing grievous injuries to the deceased.

10. We have considered the arguments of the learned counsel for the appellants. Learned counsel during arguments I took us through various portions of the statements of the eye-witnesses and pointed out some discrepancies in an attempt to prove that the witnesses were interested and chance witnesses. Having considered the evidence, we do not feel inclined to agree with these contentions of the learned counsel for the reasons that both the P.Ws. Allah Ditta and Inayatullah were residents of the same village and it is in evidence that the occurrence took place 4/5 squares away from the Abadi. The fact that both the witnesses stated that each of them was coming after performing his own errand, is no reason to hold that they were chance witnesses because if they were out to become false witnesses they could as well have stated that after hearing the noise they reached the spot from village. Moreover, the occurrence took place at the Bheni of Muhammad Ashraf appellant, none else than the appellants were putting up there and if the contention of the learned counsel for the appellants is accepted that the persons of the village within the area of which the occurrence had taken place are chance witnesses, that would amount to holding that anyone who would have seen the occurrence would be a chance witness. With regard to the association of the P.Ws. pointed out by the learned counsel, enough to say that there is not allegation that they were inimical to the appellants. Mere association not amounting to even relationship has never been accepted as a basis) for ruling out the evidence of the witnesses. We have considered the contention of the learned counsel regarding worth of evidence of the statement of the deceased Exh.P.N. tendered in evidence as dying declaration. We do not find ourselves in agreement with the learned counsel that the statement should be ruled out of consideration as the same was not made under expectancy of death or that it was not recorded by a Magistrate. However, we find some force in the argument of the learned counsel that the statement of tire deceased alone in this case cannot form the basis of conviction of the appellants and the statement cannot be fully relied upon unless corroborated by some other evidence. As observed above, we do not find any reason to rule out the statements of P.Ws. 1 and 4, as such they are available for consideration as corroboratory evidence of the statement of the deceased. We have also considered the contention of the learned counsel with regard to the evidence of recoveries and have also gone through the reasons advanced by the trial Court. We do not find any reason to differ with the finding of the trial Court. The evidence of recoveries has been ruled out by the trial Court for sufficient and good reasons and we do not find anything to differ with these findings. However, ruling out of the evidence of recovery does not taken the case of the prosecution and we feel that the dying declaration corroborated by the eye-witnesses account is sufficient to hold that the appellants as alleged had attacked and caused injuries to the deceased beyond any reasonable doubt. We have considered the contention of the learned counsel for the appellant with regard to motive. Learned counsel in an invain attempt has tried to prove that in fact no Panchayat was held or that if any Panchayat was held, the deceased had not participated in the said occurrence. His main thesis was that non-production of Faqir Muhammad P.W. and Muhammad Aslam for the dispute of whom inter se Panchayat was held, makes the whole story of the Panchayat and exchange of abuses doubtful. We do not think the deceased would have manufactured such a detailed story naming different persons belonging to different castes only to bring out a false motive. As such, without holding as to how much the incident of exchange of abuses was the reason for this occurrence, we hold that the incident of exchange of abuses had taken place between the deceased and Ghulam Sarwar appellant and to this extent dying declaration of the deceased which is corroborated by the eye-witnesses finds further corroboration from the evidence of motive, and as such we are inclined to hold that the prosecution has proved beyond and reasonable doubt that the appellants had attacked the deceased near the Bheni of Ashraf appellant and caused him injuries with a common intention.

11. We have considered the last contention of the learned counsel that 'even if' the appellants are held liable for having attacked and caused injuries, they cannot be burdened with the knowledge or intention that the deceased will die of these injuries and that they were at the best liable for causing grievous injuries. While considering this contention, we have considered and analysed the evidence of motive and we have reached the conclusion that the incident of exchange of abuses though had taker; place but was not such on account of which the appellants would have formed an unlawful assembly to murder the deceased. While reaching this conclusion we have also' considered the conduct of the deceased. It appears-that he himself had also not given much importance to the said incident. We have drawn this conclusion from the conduct of the deceased who in spite of the previous night incident had unattended and unarmed passed by the Bheni of Ashraf appellant, where the occurrence took place. Had he considered the incident of exchange of abuses to be so grave, he would certainly have avoided falling into the hands and trap of the appellants, as such we are inclined to hold that the appellants could not be burdened with the intention of having formed an unlawful assembly to murder the deceased, nor the knowledge that he would die of these injuries. The conduct and intention of the appellants at the time while inflicting injuries also does not seem to be one of causing death of the deceased. Except two simple blunt weapon injuries on the parietal bone, there is no injury on any vital part of the deceased and according to the doctor the death was the result of anaemia and haemorrhage because of seven injuries. The injuries are mostly on arms, buttock and legs. There is no history of any previous enmity except the incident of exchange of abuses between the deceased and Ghulam Sarwar appellant, in a Panchayat where two other persona were arrayed against each other and neither the deceased nor Ghulam Sarwar appellant had any personal interest with an of the parties. The abuses were exchanged just on a trivial remarks of the deceased addressing Ghulam Sarwar that he should not be mischievous wizen the matter was being patched up by the parties. There is no allegation that the appellants while parting had threatened the deceased to avenge for abuses. A careful I consideration of all these aspects of the case and the attending circumstances has brought us to a conclusion that the appellants had neither the intention nor the knowledge of causing death of the deceased while causing injuries to him, as such we are inclined to hold that the appellants cannot be burdened with an offence more than the one of having caused grievous injuries after having formed an unlawful assembly. The conviction and sentence of the appellants under section 302/149, P.P.C., therefore set aside. They are, however, guilty of an offence under section 326/149, P.P.C. All the appellants have caused a large number of injuries with sharp-edged and blunt weapons. They do not deserve any concession or leniency in awarding sentence for the offence they had committed. They are sentenced to undergo ten years R.I. each, under section 326/149, P.P.C. and a fine of Rs.5,000 each, in default to undergo R.I. for two years. Their conviction and sentences under section 148, P . P. C . is maintained. Half of the fine, if recovered, shall be paid to the heirs of the deceased. Both the sentences shall run concurrently. The sentence of death is not confirmed.

12. The appellants shall be given the benefit of the provisions of section 382-B, Cr.P.C. and the period of their custody during trial shall be computed as sentences undergone.

S. A. Sentence altered.

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