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Criminal Appeal No. 910 of 1980, decided on 15th April, 1987.

‑‑‑S. 302‑‑Appreciation of evidence‑‑Both parties inimical towards each other and involved in many criminal cases‑‑Held, it could not be said that accused had no motive to assault complainant party.‑‑[Motive].

‑‑‑‑S. 302‑‑Appreciation of evidence‑‑Murder case registered against witnesses at the instance of accused‑‑Fact that such witnesses and deceased were coming back to their homes together after hearing of the case proved‑‑Such witnesses being natural witnesses, their evidence, held, could not be excluded against accused in circumstances.

‑‑‑Ss. 302/34 & 323/34‑‑Appreciation of evidence‑‑Deceased was found to be suffering from tuberculosis‑‑Medical report showing that injuries caused shock in hot weather to the deceased who was suffering from tuberculosis‑‑No evidence on record available to show that accused knew that deceased was a patient of tuberculosis‑‑Only allegation against one of the accused person being that he, held deceased from his hair and other accused gave stick blow on the back of left hand of the deceased‑‑One of the accused dragged the deceased alongwith other accused‑‑In F.I.R. as well as during trial, eye‑witnesses mentioned only seven injuries on the person of deceased‑‑In trial medical examination of deceased also indicated seven injuries on the person of deceased‑‑During post‑mortem, it was for the first time that two injuries on the chest and head were noticed by the medical officer‑‑ Medical Officer did not state that any of nine injuries was of grievous nature but were said to be simple in nature‑ No evidence available to show that injuries were kept under observation and found to be grievous in nature‑‑Radiologist was not examined as witness during trial‑‑Accused, held, did not intend to cause death of deceased but intended only to cause simple blunt weapon injuries on the person of deceased‑‑Accused not knowing that injuries being caused by them were likely to cause death, could not be held guilty under S. 302/34, P.P.C.‑‑Conviction of accused under S. 302/34, P.P.C. was set aside and instead were sentenced to imprisonment already undergone by them plus fine of Rs.5,000 or in default one year's R.I.,each under S. 323/34, P.P.C. in circumstances.

Sh. Muhammad Yaqoob for Appellants.

Muhammad Shah Nawaz Khan for the State.

Date of hearing: 15th April, 1987.

Muhammad Ramzan 45, Muhammad Iqbal 28 and Zahoor Ahmad 26 alongwith three others faced trial before learned Additional Sessions Judge, Sialkot for the murder of Abdul Aziz aged about 50 years. They, vide judgment, dated 29‑6‑1980 were sentenced to imprisonment for life and fine of Rs.5,000 or in default three months S.I. each under section 302/34, P.P.C. It was ordered that the fine, if recovered, be paid as compensation to heirs of the deceased. Muhammad Ramzan filed Criminal Appeal No. 910 of 1980 while Muhammad Iqbal and Zahoor Ahmad filed Criminal Appeal No. 911 of 1980 to challenge their conviction and sentence. The two appeals being directed against one judgment will be decided together.

Muhammad Ibrahim 70, Zaheer Ahmad 25 and Yameen 45 were acquitted by the same judgment.

2. Briefly stated the facts of this case are that on 18‑6‑1979, at about 2‑30 p.m., Muhammad Boota complainant and Abdul Aziz deceased were returning home after attending Court hearing in the Court of A.C., Narowal in a case under section 107/151, Cr.P.C, In the way, Abdul Aziz got Rs.1,085 from Barkat Ali commission agent for installation of tubewell. When they reached near Jhajhri nullah, they met Hussain Khan and Natha P.Ws. When they reached in the area of village Dogar while proceeding to their own village Manak, all of a sudden. Yameen, Zaheer, Iqbal, Ramzan, Ibrahim and Zahoor armed with sticks came out from ambush. They raised Lalkara. Yameen gave Sota blow on the right leg of Abdul Aziz. Zaheer gave another blow on the right leg of Aziz who fell down. Iqbal gave Sota blow on the back of left hand of Aziz. Yameen inflicted Sota blow on the knee of the deceased. Zahoor caught Abdul Aziz from his hairs while Ibrahim and Ramzan started dragging him. Rs.1,085 fell out of the pocket of Aziz which were taken away by the accused. The occurrence was also witnessed by Zahoor Ahmad and Muhammad Sharif P.Ws. The accused left the spot. Abdul Aziz went unconscious. He was taken to Civil Hospital, Narowal. A.S.I. Mushtaq Ahmad P.W. 12 reached the hospital at 4‑20 p.m. and recorded statement Exh. P.F. at the instance of Muhammad Boota P.W.9. It was sent to Police Station, Narowal, about 2 miles from the place of occurrence where formal F.I.R. Exh. P.F/I was recorded on the same day at 4‑30 p.m. by H.C. Muhammad Bashir P.W. 6.

3. Dr. Nazir Ahmad P.W.1 on 18‑6‑1979, at 4‑00 p.m. medically examined Abdul Aziz deceased when still alive. He noticed two lacerated wounds on right and left legs; a contusion on right side of knee joint; a swelling on the back of left thumb and hand and three abrasions on front of left knee joint and back of right elbow. The patient was sweating all over the body, semi‑conscious and pale. The injuries had been caused by blunt weapon and were of within three hours duration. Injuries 4 to 6 were simple in nature while remaining injuries were kept under observation. Abdul Aziz died next morning i.e. on 19‑6‑1979, at 7‑30 a.m. in hospital. The same Medical Officer on. 19‑6‑1979, at about 1‑00 p.m. conducted post‑mortem examination on the dead body of Abdul Aziz. Besides the seven injuries which he had noted earlier, he also mentioned two more injuries on the dead body; one was a bruise in front of right side of chest 2" x 1‑1/4" and another wasa swelling 2‑1/2" x 2" on right side of head, about 3" above right ear. There was clotted blood under the scalp above right ear. Ecchymosis was noticed under the skin above right chest. The Medical Officer on opening the thorax found caseaous pus material in both lungs which was typical tuberculous lesions. All other organs were healthy. No fracture of any bone or skull was noticed. In the opinion of the Medical Officer, the death occurred due to shock resulting from injuries 1 to 9 mainly by injuries 7 and 8 (mentioned above) causing tension pnenothorax in very hot day. These injuries were sufficient to cause death in ordinary course of nature. The injuries had been caused by blunt weapon. Time between injuries and death was about 16 hours and post‑mortem was conducted in about six hours of death.

4. The Investigating Officer during inspection of the spot did not find any blood‑stained earth. Barkat Ali P.W.8 produced copies of Khata Register P. 4, Roznamcha P. 5 and Rokar P. 6 on 19‑6‑1979 which were taken in possession vide memo. Exh. P.G. The originals of these were produced by him on 22‑1‑1980 vide memo. Exh. P.H. On 2‑7‑1979, Zahoor Ahmad accused produced Danda P. 7 before D.S.P. Muhammad Akram C.W. 1 which was taken in possession vide memo. Exh. C.W.1/A. This was not stained with blood. No other incriminating recovery was made during investigation.

5. The appellants and their co‑accused were challaned and convicted as stated above. They pleaded innocence in their statements after close of prosecution evidence and examined D.S.P. Muhammad Akram C.W. 1 and D.S.P. Sana Ullah C.W. 2 in their defence. It was stated by D.S.P. Muhammad Akram that in his investigation, only Iqbal and Zahoor were guilty while remaining accused were innocent. D.S.P. Sana Ullah stated that Yameen, Ibrahim and Zaheer accused were found innocent while remaining three accused (appellants) were found guilty.

The learned trial Judge placed reliance on the statement of D.S.P. Sana Ullah C.W. 2. He did not record clear finding as to whether the eye witnesses were reliable or not and convicted the three appellants as stated above.

6. I have heard the learned counsel for the appellants. Initially it was argued by them that the eye‑witnesses were not reliable because firstly, they were interested witnesses; secondly, they were disbelieved qua the three acquitted accused; and finally, they are not supported by the medical evidence. After some arguments on merits, the learned counsel for the appellants stated at the Bar that they would not dispute the occurrence in the instant case. It was, however, argued by them that even if the prosecution evidence is accepted, then also no offence under section 302/34, P.P.C. could be said to have been made out against the appellants. The learned counsel for the State controverted the above contentions.

7. Muhammad Boota P.W. is an uncle of Abdul Aziz deceased. Natha and Hussain Khan P.Ws. are not related to the deceased. It is in evidence that a case regarding the death of Mst. Hafeezan Bibi was registered before the present occurrence at the instance of Yameen accused in which Natha and Hussain Khan were also named as accused. Excepting this, there was no other enmity between the accused and these two witnesses. It was admitted by Boota P.W.9 that he had long standing enmity with the accused and even on the day of occurrence, the parties were returning home after attending hearing in proceedings under section 107/151, Cr.P.C., against them. I am not inclined to agree with the learned counsel that the appellants have been involved in this case on account of enmity. It was only a question of taking of chance by any of the parties. Both the parties were deeply inimical towards each other and involved in many criminal cases. As such, it could not be said that the appellants had no motive to assault the complainant party. The witnesses and the accused were returning home after attending hearing in Court. They were, therefore, natural witnesses. I do not find anything to exclude their evidence against the accused. It was correct that in the F.I.R. as well as during the trial the, eye‑witnesses mentioned only seven injuries on the person of the deceased. The initial medical examination of Abdul Aziz also indicated, seven injuries on his person. It was for the first time during post‑mortem examination that two injuries on the chest and head were noticed by the Medical Officer. It was not stated by the Medical Officer that any of the nine injuries was of grievous nature. There is no evidence that the injuries kept under observation were found grievous in nature. The Radiologist was not examined as witness during trial. As such, it cannot be said that the deceased received any grievous injury on his person during the occurrence. There was no fracture of skull or any bone of the deceased. He was found to be suffering from tuberculosis. According to the Medical Officer, the injuries caused shock in hot weather to the deceased who wad suffering from tuberculosis. There is, however, no evidence on record to show that the accused were aware of the fact that Abdul Aziz was suffering from tuberculosis. Excepting injury No. 7 on chest and injury No. 8 on head, all other injuries were on non‑vital parts of the body. Even injuries 7 and 8 did not cause any fracture. All injuries were of simple nature. It is in prosecution evidence that Zahoor, Ibrahim and Ramzan though armed did not cause any injury with Sota on the person of Abdul Aziz. Out of the appellants the only allegation against Zahoor is that he held the deceased from his hair. Iqbal allegedly gave stick blow on the back of left hand of the deceased. Ramzan only dragged the deceased alongwith Ibrahim accused. On consideration of these facts I am of the opinion that the accused did not intend to cause death of Abdul Aziz; that they intended only to cause simple blunt weapon injuries on the person of Abdul Aziz. They did not know that deceased was suffering from tuberculosis. They did not know that injuries being caused by them are likely to cause death of Abdul Aziz and as such, they could not be held guilty under section 302/34, P.P.C.

The three appellants were convicted and sentenced vide impugned judgment, dated 29‑6‑1980. Muhammad Ramzan was admitted to bail by suspension of his sentence on 6‑12‑1980, Zahoor on 9‑12‑1981 and Muhammad Iqbal on 10‑7‑1982. This means that Ramzan remained in prison under the impugned judgment for five months and few days; Zahoor remained in prison for about seven months and Muhammad Iqbal remained in prison for about two years.

8. In view of the above, I set aside the conviction and sentence of the appellants under section 302/34, P.P.C. and instead, sentence them to imprisonment already undergone by them plus fine of Rs.5,000 or in default one year R.I. each under section 323/34, P.P.C. The three appellants are on bail. They will deposit the fine within 30 days of this order failing which they will surrender to undergo imprisonment in default thereof. The entire fine, if recovered, will be paid as compensation to heirs of deceased.

9. Both the appeals are accepted subject to the above modification.

M.B.A./M‑16/L Appeal accepted.

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