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Criminal Appeals Nos. 373, 458 and Criminal Revision No. 460 of 1979, decided on 2nd July, 1983.

‑‑‑Ss. 302, 323 & 452/34‑‑Bungling in investigation, effect of‑-F.I.R. admittedly not lodged at police station‑‑Investigating Officer stating to have finished preparation of injury statement and inquest report before 9‑30 p.m.‑ ‑Formal F.I.R. at police station at distance of 9/10 miles at 10‑15 p.m.‑‑Inquest report bearing number of F.I.R‑‑Deceased dying at spot‑ Dead body allegedly despatched to mortuary for post‑mortem examination on same day‑‑Constable escorting dead body, contradicting this version‑‑Post‑mortem conducted after inordinate delay of 36 hours‑‑No explanation of delay coming forth‑‑When F.I.R. was not lodged at police station, ordinary presumption, held, would be that it was made at spot after preliminary investigation‑‑Mentioning of F.I.R. number on inquest report purporting to be prepared before formal F.I.R. and unexplained delay. in despatching dead body to mortuary were glaring examples of bungling m investigation which would cast serious doubts on genuineness of prosecution version.

‑‑‑Ss. 302, 323 & 452/34‑‑Ocular account‑‑Occurrence taking place in village Abadi‑‑Witnesses closely related inter se and to deceased, having strained relations with accused‑‑Injured witness, admittedly having molested sister of two accused a day earlier‑‑Case under S. 354, P.P.C. registered against witness by third accused‑‑No unconnected person cited as witness‑‑Evidence of eye‑witnesses, held, would require corroboration from unimpeachable source in circumstances.

‑‑‑Ss.302, 324 & 452/34‑‑Recoveries, evidence of‑‑Blood‑stained hatchet and Sotas recovered from accused‑‑Witnesses to recovery closely related to complainant‑‑Large number of persons admittedly present at time of recovery‑‑No independent witness cited‑‑Witnesses stating accused was arrested on next day of occurrence and recoveries effected from them on same day‑‑Investigating Officer showing arrest after 5 days and recoveries made after 3 days further of their arrest‑‑Evidence of recoveries, held, was highly unsatisfactory in circumstances.‑‑[Recovery].

‑‑‑Ss.302, 324 & 452/34-‑Defence version‑‑Three persons armed with hatchet and Sotas allegedly going to avenge insult to their sister causing only three simple injuries to wrong doer‑‑Fatal injury attributed to person who lodged report against him‑‑Injury allegedly caused by hatchet, ultimately found by blunt weapon‑‑Prosecution, held, had not proved its case and defence version of one accused having participated in occurrence was found correct‑‑Other two accused acquitted in circumstances.

‑‑‑Ss. 302, 324 & 452/34‑‑Nature of offence‑‑Accused admitting his participation in occurrence under impulse of grave and sudden provocation to avenge insult to his sister‑‑Accused a mason by profession his measuring tape and letter addressed to him picked up from spot and produced before police by complainant‑‑No provocative act or language used by witness in presence of accused‑‑Incident of molesting his sister taking place day earlier‑‑Accused not suffering any injury at hand of injured witness‑‑Accused causing single injury to deceased, mother of witness‑‑Injury not repeated‑‑Accused having no motive against deceased‑‑Intention to kill, held, could not be inferred but he could be burdened with knowledge that low on vital part of body was likely to cause death‑‑Conviction and sentence altered to one under S. 304 Part II, P.P.C. in circumstances.

Ch. Rehmat Ali for Appellants.

Ch. Imtiaz Ahmad for the State.

Dates of hearing: 30th March and 4th April, 1983.

Faqir Sain (60) son of Bhola, and his nephews Khurshid alias Said (22) and Sakhawat Ali (20) sons of Muhammad Sharif, Cultivators, residents of Kotli Lala, Police Station Phillaura, District Sialkot, were tried by the learned Additional Sessions Judge, Sialkot under sections 452, 302 and 324/34, P.P.C. on the allegations that on 9‑1‑1978 at about evening time they trespassed into the house of Nazar Bibi deceased having made preparation for causing hurt and at the same time and place, in furtherance of their common intention, committed the murder of aforesaid Mst. Nazar Bibi and caused simple injuries to her son Muhammad Arif P.W. By judgment, dated 4th March, 1979, they were convicted under sections 452, 323 and 302/34, P.P.C. and were sentenced to R.I. for one year each under section 452, P.P.C. R.I. for one year each under section 323/34, P.P.C. and imprisonment for life and a fine of Rs.2,000 each under section 302/34, P.P.C. with the direction that all the sentences shall run concurrently. Khurshid alias Said and Sakhawat Ali appellants have filed Criminal Appeal No. 373 of 1979 and Faqir Sain appellant has filed Criminal Appeal No. 458 of 1979 to challenge their conviction and sentences. Fazal Ahmad complainant filed Criminal Revision No. 460 of 1979 for enhancement of sentence which was ordered to be heard alongwith the criminal appeals. All these matters shall be disposed of by this judgment.

2. The F.I.R. version of the occurrence is that on 8‑1‑1978 Muhammad Arif P.W. went to the house of Mst. Razia (sister of Khurshid alias Said and Sakhawat Ali and niece of Faqir Sain appellants) and disgraced her by catching her arm. On 9‑ I‑1978 at about evening time Faqir Sain armed with hatchet and Khurshid alias Said and Sakhawat Ali armed with Sotas trespassed into the house of the father of Muhammad Arif P.W. in order to take revenge of the earlier incident. Muhammad Arif P.W. and his mother Mst. Nazar Bibi were present in the courtyard of their house. Faqir Sain appellant gave a hatchet blow on the head of Mst. Nazar Bibi who succumbed to her injury there and then. Fazal Ahmad complainant and Muhammad Arif P.W. tried to intervene, upon which IChurshid alias Said and Sakhawat Ali gave one Sota blow each to Muhammad Arif and thereafter all of them fled away from the spot raising Lalkara.

After the occurrence Fazal Ahmad complainant started for police station to lodge the report. On the way he met Ghulam Rasul A.S.I. at village Mehrajke and reported the occurrence to him at 8‑45 p.m. vide his statement Exh.P.E. on the basis of which formal F.I.R. was recorded at Police Station Philaura at 10‑15 p.m.

3: After recording the statement of the complainant, the A.S.I. reached the spot at 9 a.m. He prepared the injury statement Exh. P.L. and inquest report Exh. P.M. of the dead body of Mst. Nazar Bibi deceased and despatched it to the mortuary for post‑mortem examination. He also prepared injury statement Exh. P.N. of Muhammad Arif P.W. and got him medically examined. Then he secured some blood‑stained earth from the spot and made it into a sealed parcel vide memo. Exh. P.K. Fazal Ahmad complainant produced before him an envelope and a Feeta (Mason's tape) vide memo. Exh. P.J. He arrested the accused persons on 14‑1‑1978. On 17‑ 1‑ 1978 Faqir Sain, Khurshid alias Said and Sakhawat Ali appellants, while in custody, led to the recovery of hatchet (P.6), Sota (P.7) and Sota (P.8) vide memos. Exhs. P.G., P.H. and P.I., respectively. The hatchet was blood‑stained and was made into a sealed parcel. After the investigation the appellants were challaned.

4. On 10th January, 1978, at 3‑50 p.m. Dr. Muhammad Hussain, Medical Officer, Health Centre Chawinda, examined Muhammad Arif P.W. and found two lacerated wounds and a contusion mark on his person, simple in nature caused by blunt weapon.

On 11th January, 1978 the same doctor conducted the autopsy on the dead body of Mst. Nazar Bibi and found a lacerated wound on the middle part of head 2‑1/2" x 3/4" x bone deep. Two adjacent bones below the injury were fractured. There was coagulated blood in the brain cavity. In the opinion of the doctor death was due to shock and haemorrhage as a result of the above injury which was sufficient to cause death in ordinary course of nature. The probable time between injury and death was within half to one hour and between death and post‑mortem within two days.

5. In support of its case the prosecution examined three eye‑witnesses, namely, Fazal Ahmad complainant, Muhammad Arif and Muhammad Iqbal. It also relied on the evidence relating to motive and recoveries.

6. The appellants pleaded not guilty to the charge. They admitted their relationship inter se and also that on 8th January, 1978 Muhammad Arif P.W. had molested Mst. Razia Bibi. Faqir Sain appellant stated that since he was an eye‑witness in the case under section 354, P.P.C. our entire family has been involved in this case'. Sakhawat Ali appellant stated that he was involved due to his relationship with other co‑accused and enmity with the complainant‑party. Khurshid alias Said appellant admitted his participation in the occurrence but gave a different version as under:‑

"I work in the city as a mason. I usually do not return to my village every day. On 9‑1‑1978 on my return from the city in the evening I came to know about the molestation of my sister Mst. Razia by Arif P.W. and I further learnt that my father had already left for the police station to lodge a report. When my sister Mst. Razia narrated me the disgrace done to her by Arif. I lost my self control and in the grave and sudden provocation I armed myself with a Danda and proceeded to the house of Arif P.W. and gave him one injury. He also picked up an iron rod in order to assault me and his mother intervened and in the course of that she received an injury on her head only by an accident. I am not sure whether it was my injury or the injury of her son Arif, but I was acting in grave and sudden provocation. Faqir Sain and Sakhawat were not present there. I never had any grievance against Mst. Nazar Bibi."

No evidence was led in defence.

7. The learned trial Judge accepted the prosecution evidence against the appellants and convicted and sentenced them as mentioned above.

8. The learned counsel for the appellants contended that the F.I.R. was recorded at the spot after the preliminary investigation and there was inordinate delay in the post‑mortem examination which clearly suggests that time was gained for deliberation to build up a story. They further argued that the recoveries are fake and the entire investigation is dishonest, therefere, uncorroborated testimony of the alleged eye witnesses who are closely related to the deceased and inimical towards the appellants, was not sufficient to warrant the conviction. The learned State counsel supported the judgment of the trial Court. He submitted that the prosecution evidence has been rightly relied upon by the trial Court.

9. It is the proseciftion's own case that the complainant reported the occurrence to Ghulam Rasul A.S.I. at village Mehrajke which is a fifteen minutes walk from the place of occurrence. Since the report was not lodged at the police station the ordinary presumption is that it was made at the spot after the preliminary investigation.

I have noted with great concern that in this case the Investigating Officer in his anxiety to build up a case resorted to padding. In cross -examination he stated that after recording the statement of the complainant in village Mehrajke, he started for the place of occurrence and covering the distance within fifteen minutes, reached there at 9‑00 p.m. He further stated: the first thing at the spot which I did was the preparation of injury statement Exh. P.L. and that of inquest report Exh.P.M'. He took 2/3 minutes in the preparation of the injury statement and 10/15 minutes in the preparation of the inquest‑report meaning thereby that both these documents were completed before 9‑30 p.m. The distance of Police Station Phillaura from village Mehrajke is 9/10 miles. The formal F.I.R. was recorded at the Police Station Phillaura at 10‑15 p.m. It is interested to note that the number of the F.I.R. is mentioned in the inquest‑report which, according to the Investigating Officer, had ‑been prepared before 9‑30 p.m. at the spot. This is a glaring example of bungling on the part of the Investigating Officer.

10. According to the prosecution the deceased died at the spot on the evening of 9‑1‑1978. The post‑mortem examination was, however, conducted on 11‑1‑1978 at 8 a.m. No explanation has been offered by the prosecution for this delay. Muhammad Hanif F.C. who escorted the dead body to mortuary, stated that the dead body remained at the place of occurrence on the night between 9/ 10‑1‑1978 and he took it to the mortuary on the following day at 3/4 p.m. Fazal Ahmad complainant who identified the dead body, stated that it was despatched to the mortuary soon after the arrival of the police at the spot which means some after 9 p.m. on 9‑1‑1978. Muhammad Iqbal another eye‑witness of the occurrence stated that the police came at the spot at about 9‑30 p.m. and the dead body was despatched to the mortuary half an hour after the arrival of the police. The Investigating Officer also stated that the dead body was despatched during the same night i.e. the night between 9/10‑1‑ 1978. Had it been so, the post‑mortem examination must have been conducted on 10‑1‑1978 but it was performed on 11‑1‑1978 with inordinate delay of about 36 hours for which no explanation is coming forth. The despatch of the dead body appears to have been deliberately delayed obviously for the reason that the Investigating Officer first wanted to build up a case and then incorporate the same in the inquest report before sending the dead body for post‑mortem examination. The facts and circumstances of the case clearly show that the dead body was not despatched on the arrival of the police at the spot but much later either in the forenoon on 10‑1‑1978 as alleged by Muhammad Hanif F.C. or on 11‑1‑1978 in the early hours of the morning. If it had been despatched on the night of 9‑1‑1978 the post‑mortem examination must have been conducted on the following day. This circumstance throws serious doubts on the genuineness of the prosecution version.

11. At the trial Fazal Ahmad complainant, Muhammad Arif and Muhammad Iqbal furnished the ocular account of the occurrence. They are closely related inter se and also to the deceased. Fazal Ahmad and Muhammad Iqbal are real brothers. The husband of the deceased is their nephew and Muhammad Arif P.W. is the son of the deceased. It is prosecution's own case that a day prior to the occurrence Muhammad Arif P.W. had molested the sister of Khurshid alias Said Ahmad and Sakhawat Ali appellants and a case under section 354, P.P.C. was registered against him on the day of occurrence. Faqir Sain appellant is an eye‑witness in the aforesaid case. The relations between the parties were thus extremely strained and in that view of the matter the evidence of the eye‑witnesses would require corroboration from an unimpeachable source but the same is lacking in this case.

12. According to the prosecution Faqir Sain appellant led to the recovery of blood‑stained hatchet P.6 from he roof of his Dhara while Khurshid alias Said and Sakhawat Ali appellants led to the recovery of Sotas P.7 and P.8. The evidence relating to these recoveries was furnished by Muhammad Shafi (P.W.6), Sardar Ahmad (P.W.7) and Ghulam Rasul (P.W.11). Muhammad Shafi P.W. is the real brother of Fazal Ahmad complainant while Sardar Ahmad is his sister's son. Muhammad Shafi P.W . admitted that a large number of persons were present at the time of recoveries but strangely, enough only two close relatives of the deceased were cited as the recovery witnesses. Muhammad Shafi and Sardar Ahmad P.Ws. stated that the appellants were arrested on the next day of occurrence and they led to the recovery of aforesaid weapons on the same day after their arrest i.e. on 10‑1‑1978. The Investigating Officer has, however, stated a different story. According to him the appellants were arrested on 14‑1‑1978 and the recoveries were effected from them on 17‑ 1‑ 1978. The evidence relating to recoveries is thus highly unsatisfactory.

13. The occurrence took place in the village Abadi. According to the complainant besides the eye‑witnesses, many other persons had seen the occurrence but no unconnected person was cited as an eye‑witness in this case and only close relatives of the deceased who were inimically disposed of towards the accused, have been produced by the prosecution.

14. The defence version that only one person (Khurshid alias Said appellant) participated in the occurrence seems correct because if three persons armed with hatchet and Sotas had trespassed into the house of the complainant‑party in order to take revenge of the earlier incident, they would have caused extensive damage to Arif P.W., who had molested Mst. Razia, but Arif P.W. had only three simple injuries on his person. The argument of the defence that fatal blow was attributed to Faqir Sain appellant because he was a P.W. in the case under section 354, P.P.C. also cannot be lightly ignored. It will also be noted that according to the medical evidence the injury on the deceased had been caused by a blunt weapon whereas in the F.I.R. it was stated that Faqir Sain had given a hatchet to the deceased. However, at the trial the complainant came up with the version that the blow was given from the blunt side. Muhammad Iqbal P.W. stated that Faqir Sain gave a hatchet blow on the head of the deceased. He did not state that it was from the blunt side. After considering the entire evidence on the record I am of the view that the prosecution has not been able to prove its case against Faqir Sain and Sakhawat Ali appellants and they are entitled to acquittal.

14‑A. The case of Khurshid alias Said appellant, however, stands on a different footing. He admitted his participation in the occurrence. He stated that he works in the city as a mason; on the day of occurrence on return from city he learnt that Arif P.W. had molested his sister and that his father had already left for police station to lodge the report; when his sister Mst. Razia narrated the disgrace done to her by Arif, he lost his self‑control and under the impulse of grave and sudden provocation picked up a Danda and proceeded to the house of Arif and gave him one injury. Arif also picked up an iron rod in order to assault him upon which the deceased intervened and in the course she received an injury on her head. He further stated that he was not sure whether she suffered injury from him or at the hand of her son Arif. Fazal Ahmad complainant admitted that Khurshid alias Said appellant is a mason by profession. He further admitted that he works in the city and comes to village daily. It will be noted that mason's tape and a letter containing the address of this appellant were picked up by Fazal Ahmad P.W. from the place of occurrence and produced before the Investigating Officer vide memo. Exh. P.J. The participation of this appellant in the occurrence is, therefore, fully established. However, his statement that Arif P.W. picked up an iron rod and tried to assault him does not ring true. Had it been so, he must have suffered injuries at the hand of Arif but he did not have even a scratch on his body. It is not the case of the defence that Arif P.W. had committed any provocative act or used provocative language in the presence of Khurshid alias Said appellant. The incident regarding the molestation of his sister had taken place a day earlier, therefore, Exception‑I of section 300, P.P.C. is not attracted in this case. However, the facts and circumstances of the case clearly indicate that this appellant had no intention to kill the deceased. He had no motive against her. He gave only one blow to her which unfortunately proved fatal. He did not even attempt to repeat the blow. In the circumstances, the intention to kill cannot be inferred. He can, however, be burdoned with the knowledge that a blow on vital part of the body like head was likely to cause death. He is, therefore, liable under section 304, Part II, P.P.C. Accordingly, I alter his conviction from section 302/34, P.P.C. to section 304, Part II, P.P.C. and reduce his sentence to R.I. for seven years. The sentence of fine imposed on him by the trial Court is maintained. In default of its payment he will undergo imprisonment as ordered by the trial Court. The fine, if recovered, shall be paid to the legal heirs of the deceased. He shall be given the benefit of section 382‑B, Cr.P.C. His conviction and sentence under sections 452 and 323, P.P.C. are also maintained. All the sentences shall run concurrently.

The other two appellants, namely, Faqir Sain and Sakhawat Ali are acquitted of all the charges. They shall be set at liberty forthwith if not required to be detained in any other case.

Criminal Revision No. 460 of 1979 automatically fails and is dismissed.

S.A./K‑12/L Sentence altered.

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