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Criminal Appeal No. 540 and Murder Reference No. 133 of 1980, decided on 15th March, 1983.

‑‑‑S. 302/34 Evidence discarding of‑‑Evidence of recovery of weapons of offence from accused and dying declaration recorded by Investigating Officer, discarded, by Trial Court‑‑Nothing wrong with reasoning advanced by Trial Court could be found‑‑No case made out for differing with conclusion arrived at‑‑Trial Court, held, had rightly discarded evidence of recovery of weapons and dying declaration.

‑‑S. 302/34‑‑Ocular evidence, appreciation of‑‑Motive, not seriously contested rather partly admitted by accused‑‑Delay in lodging F.I.R. satisfactorily explained-‑Complainant, son of deceased‑‑Presence of complainant, recorded in medico‑legal report, the first document prepared in case by doctor, an independent witness‑‑No suggestion from accused of complainant having joined his father after occurrence‑‑ Complainant not having been injured, held, could not be a ground to believe that he had not seen occurrence or was not present at spot.

‑‑S. 302/34‑‑Chance witness‑‑Witness residing at distance of 6 furlongs from spot having gone there to purchase cotton‑‑Cotton season not denied‑‑Witness nether related to complainant nor inimical to accused‑‑No substance, held, could be found to rule out his evidence in circumstances.

‑‑‑S. 302/34‑‑Substitution of assailant. whether possible‑‑Deceased having enmity with some others also and attacked by his nephews few days earlier‑‑Matter with nephews compromised‑‑No case registered‑ No reason for sparing other enemies if they were assailants‑‑Possibility of false implication, held, could be considered but substitution was rare phenomena in circumstances.

‑‑‑S. 302/34‑‑Intention to kill‑‑Deceased dying after four days of receiving injuries‑‑No injury on vital parts of body, found grievous‑‑One of accused armed with hatchet‑‑Only injury caused by sharp‑edged weapon found simple‑‑Deceased completely on mercy of accused and within their grip during occurrence, yet no grievous injury on any vital part of body‑‑Intention to commit murder‑held, could not be safely concluded without any doubt and for safe a ministration of justice benefit of any doubt appearing should be given to accused‑‑Conviction under S. 302/34, P.P.C. converted to one under Ss. 323, 324 & 325/34, P.P.C. in circumstances.

Aitzaz Ahsan and Ch. Fayyaz for Appellants.

Muhammad Rafiq Butt for A.‑G. for the State.

Date of hearing: 15th March, 1983.

‑‑Appellants Zafar (22), Asghar (27) and Akram (30) sons of Rehmat Ali have filed this appeal against the order, dated 26‑4‑1980 of Additional Sessions Judge, Multan whereby the learned Additional Sessions Judge convicted the appellants under section 302/34, P.P.C. and sentenced each of them to death. Each of them has also been sentenced to pay a fine of Rs.3,000 in default whereof to suffer one year's R.I. each. The amount of fine if recovered, has been ordered to be paid as compensation to the heirs of the deceased.

The learned Sessions Judge has sent up Murder Reference No. 133 of 1980 for confirmation of death sentence. As both the matters arise out of the same judgment, they are being disposed of by the ensuing judgment.

2. The occurrence in this case took place on 24‑10‑1978 at 6‑ 30 a.m. in the area of village Maripur on the path leading from village Maripur to Kabirwala near the cotton crop of Mehr Salabat Sargana. Formal F.I.R. Exh. P.G./1 was recorded at Police Station Sarai Sidhu, District Multan at 6‑10 p.m. On the same day on receipt of statement Exh. P.G. made by Muhammad Aslam P.W. 12 to Muhammad Nawaz A.S.I. P.W. 17 at Adda Chaupar Hatta at 5 p.m. According to the F.I.R. on the day of occurrence the complainant and the deceased were going on a bicycle to Kabirwala. When they reached near the cotton crop of Mehr Salabat Sargana at 6‑30 a.m., appellants Muhammad Akram and Asghar armed with Sotas and Zafar armed with hatchet, came out of the cotton crop. All of them raised a Lalkara. Muhammad Akram appellant gave a Sota blow on the head of the deceased which fell on the back side of the head. He fell down from the bicycle. Asghar appellant gave a Sota blow on the left leg of the deceased. Muhammad Akram appellant gave the second Sota blow on the right arm. As a result of these injuries the leg and arm of the deceased were broken. Muhammad Akram appellant gave another Sota blow on the left hand of the deceased. Zafar appellant struck a hatchet blow on the right ear of the deceased. Thereafter, more injuries were caused by the appellant Zafar from the wrong side of the hatchet and by Asghar and Akram appellants with Sotas on the head, right leg, right thigh. The occurrence was seen by P.W. 11, Khan Muhammad and given up P.Ws. Khuda Bakhsh and Ramzan.

3. Motive for the occurrence was that the deceased had obtained a decree of Rs.12,000 against the father of the appellants and as he had failed to pay the decretal amount, after having Rs. 4,000 the deceased got his tube‑well attached. Whereafter, Rehmat Ali paid another sum of Rs.1,000 but again stopped paying the amount. It is stated that the father of the appellants had threatened the deceased that he will teach him a lesson of getting insulted.

4. Muhammad Nawaz A.S.I. P.W. 17 after recording statement Exh. P.G. inspected the spot. He also recorded the statement of the deceased at Nishtar Hospital, Multan on 25‑10‑1978 under section 161 of the Code of Criminal Procedure. Zafar and Asghar appellants were arrested on 31‑ 10‑ 1978 by Raja Muhammad Khan, Sub‑Inspector P.W.10. On the same day Zafar appellant got recovered hatchet P.8 which was taken into possession vide memo. Exh. P.M. while Asghar appellant led to the recovery of Sota P.9 which was taken into possession vide memo. Exh. P.O. Both the recovery memos. were attested by Shah Muhammad P.W. 9 and Khuda Bakhsh P.W. (not produced). Muhammad Khan S.I. P.W. 10 also attached the recoveries. Akram appellant was arrested on 25‑11‑1978. He led to the recovery of Sota P. 6 on the same day, which was taken into possession vide memo. Exh. P.J., attested by Abdul Rashid P.W. 8, Wariam P.W. (not produced) and Muhammad Khan S.I. P.W. 10.

5. Wahid Bakhsh deceased died in Nishtar Hospital, Multan. The post -mortem was conducted by Dr. Imtiaz Ahmad Khan P.W. 2. At the time of post‑mortem examination he did not note the injuries with specifications and dimensions. In the relevant column he recorded that all the injuries were present on the dead body, which were noted in the medico‑legal report (No. 35/78, dated 24‑10‑1978) issued by the Medical Officer, Civil Hospital, Kabirwala. According to his opinion death was due to septicemia, toxiemia, and haemorrhage on the brain, and fat‑embolism resulting from injuries Nos. 1, 2, 8, 9, 11 and 12.

6. The deceased was medically examined on 24‑10‑1978 by P.W.1 Dr. Syed Zia‑ud‑Din Zaidi, Medical Officer, Civil Hospital, Kabirwala. He noted 18 injuries on the person of the deceased. According to his opinion, excepting injury No. 7 all other injuries were caused by blunt weapons. Injury No. 7 was declared to have been caused by sharp‑edged weapon. Injuries Nos. 8, 9, and 11 were declared to be grievous. Injuries Nos. I to 6, 10 and 14 were kept under observations, while the rest were declared simple.

7. Muhammad Aslam complainant (P.W. 12) son of the deceased who had lodged the First Information Report has given the eye‑witness account. He has corroborated his statement Exh.P.G. on the bass of which the F.I.R. was recorded, except one change that after receiving the first injury on the head, the deceased has ran a little whereafter the rest of the injuries were caused by the appellants. His eye‑witness account has been corroborated by Muhammad Khan P.W. 11 on all counts. No question has been put on behalf of the appellants to Muhammad Aslam complainant that except the civil litigation between the parties, there was any other dispute between the parties, so as to make out a case of false implication on any other ground. Muhammad Khan P.W.11 has denied the suggestion put to him in cross‑examination that six years before the occurrence he wanted to purchase land from one Ali Muhammad but father of the appellants intervened and purchased the same for his nephew Shaukat.

8. Statement Exh. P.S. of Wahid Bakhsh deceased recorded under section 161, Cr.P.C. during investigation was tendered in evidence as dying declaration.

9. The evidence of recovery of weapons of offence said to have been effected at the instance of the appellants has also been produced.

10. The appellants in their statements under section 342, Cr.P.C. denied the charges. They have set up the plea of false implication. They have also examined Dr. Elahi Bakhsh in defence. D.W. 1 Dr. Elahi Bakhsh has stated that he had examined Wahid Bakhsh (deceased) on 13‑10‑1978 at 4‑00 p.m. and had found 7 injuries on his person which included 2 swellings, 3 contusions, one incised wound and one dislocation of joint of left ring finger. He had opined that these injuries had been caused within six hours.

11. The learned trial Court has disbelieved the dying declaration and the evidence of recovery of weapons of offence at the instance of the appellants.

12. We have examined the reasoning advanced by the learned trial Court for ruling out the evidence of recovery of weapons of offence at the instance of the appellants, and the dying declaration of the deceased recorded by the Investigating Officer. We do not find anything wrong in the reasoning advanced by the learned trial Court and no case for differing with the conclusions arrived at has been made out. We feel that the learned trial Court has rightly discarded the evidence of recovery of weapons of offence and the dying declaration.

13. The motive for the occurrence has not been seriously contested before us. In fact the appellants in their statements under section 342 of the Code of Criminal Procedure have admitted that there was, civil litigation and a decree was passed against their father on the suit filed by the deceased, as such we agree with the finding of the learned trial Court that the appellants had the motive to attack the deceased.

14. The contention of the learned counsel for the appellants that the F.I.R. was recorded with an unexplained delay of 12 hours, does not find favour with us. The delay stands explained. The deceased was removed to the hospital at Kabirwala where he was medically examined at 11‑30 a.m. He was removed on a cot which shows that the distance was covered on foot and so it cannot be termed that any unusual time was wasted by the complainant in carrying his father to the hospital. The Medical Officer, Kabirwala who had examined the deceased, had advised, that the injured should be shifted immediately to Nishtar Hospital, Multan, in pursuance of which the complainant had taken his father to Nishtar Hospital, Multan, the same day. In such circumstances, the natural conduct of the son would have been to try to save the life of his father than to run after the police for registration of the case. The complainant after having got his father admitted to the Nishtar Hospital, Multan, proceeded to Sarai Sidhu where he made the statement at 5‑00 p.m. which means that he had reported the matter within 10‑1/2 hours after having taken his father firstly to hospital at Kabirwala and then to the Nishtar Hospital, Multan.

15. The contention of the learned counsel for the appellants that the occurrence was not seen either by Muhammad Aslam complainant or by P.W. Khan Muhammad, and that they have falsely deposed, is also without any substance. The presence of Muhammad Aslam complainant with his father at Civil Hospital, Kabirwala is recorded in the column of medico‑legal report Exh. P.A. No substantial argument has been advanced to believe that Muhammad Aslam complainant was not present on the spot. The only argument advanced is, that had he been on the spot, he would have definitely received some injuries, at least while ma king attempt to save his father. We do not think that the fact of the complainant, having not been injured at the spot, can be a ground to believe that he had not seen the occurrence. Medico‑legal report Exh. P.A. of the deceased which was the first document prepared in this case by P.W.1 Dr. Syed Zia‑ud‑Din Zaidi, an independent person, shows that the complainant was present with his father in the hospital. There is no suggestion on behalf of the appellant, on the record, that the complainant had joined his father some time later than the occurrence. As such we are not inclined to agree with the learned counsel for the appellants that Muhammad Aslam complainant was not present on the spot.

16. The contention of the learned counsel for the appellants that Muhammad Khan P.W. 11 was a chance witness, also is devoid of any force. He place of residence was at a distance of about 6 furlongs from the spot. He was coming to see Salabat, near whose land this occurrence has taken place. According to him, he wanted to purchase some cotton from Salabat and it is not denied that it was a cotton season. He is neither related to the complainant nor inimical to the appellants, as such we do not find any substance to rule out his evidence.

17. The argument of the learned counsel for the appellant that the deceased had a dispute with the other parties also and that he was attacked 7 days earlier to the present occurrence by his nephew, for which D.W. 1 Dr. Elahi Bakhsh had medically examined him, showed that the deceased might have been attacked and caused injuries by some other persons or his nephews who had earlier also given him injuries, does not find favour with us for the reason that the matter with his nephews stood compromised as a result of which no case was registered. Moreover, one can consider the possibility of false implication but substitution is a thing of very rare happening. If the deceased had been attacked by anyone of the other so‑called enemies, why should, after all the complainant had spared them

18. Lastly, the learned counsel for the appellants have contended that even if the prosecution evidence is believed, no case under section 302/34, P.P.C. is made out. He has contended that intention to murder does not appear. According to him the closer examination and scrutiny of the injuries suffered by the deceased showed that at the best the appellants had the intention to cause grievous and simple injuries to the deceased and that the deceased had died 4 days after the injuries, during which interval he had remained conscious. We think that for the examination of this contention of the learned counsel for the appellants, even at the cost of slight repetition the medical evidence may be noted at this stage in detail. P.W.1 Dr. Syed Zia‑ud‑Din Zaidi had noted the following injuries on the person of the deceased at the time of medical examination:‑

(1) A contused wound on the vertex of the head 2" x 1/4" x bone deep obliquely.

(2) Contusion mark on the back of head near right ear 2‑1/2" x 1‑1/4" obliquely.

(3) Contusion mark on the forehead above right eyebrow 1‑1/2" x 1" transversely.

(4) Contused wound on the root of the nose 3/4" x 1/4" transversely.

(5) A lacerated wound on the left side of the nose 3/4" x 1/4" x 1/4".

(6) Contused wound below right eye curved in shape 1‑1/4" x 1/4" bone deep.

(7) Incised wound on the outer side of injury No. 6 vertically 1" x 1/5" x 1/2".

(8) Contused wound on the palmer surface of left hand and little finger 3" x 1/2" x bone deep with fracture of the bone underneath.

(9) Contusion mark on the back of right fore‑arm 3" x 1" transversely.

(10) Contused wound on the front of left leg lower one‑third with compound fracture of Tibia bone measuring 1‑1/2" x 1/2" bone deep obliquely.

(12) Contused wound on the mid point of left leg on front 1‑1/4" x 1/4" x 1/2"vertically.

(13) Contused wound on the front of left leg 1" x 1/4" x 1/2" vertically.

(14) Contusion mark on the front of right leg mid point 4" x 1" transversely.

(15) Contusion mark on the front of right thigh 5" x 1" vertically.

(16) Contusion mark on the front of right thigh transversely 3" x 1".

(17) Contusion mark crossing injury No.16 2‑1/2" x 1".

(18) Contused wound above right ankle joint 1/2" x 1/4" x 1/4" vertically.

According to his opinion, he had declared injuries Nos. 8, 9 and 11 to be grievous, kept injuries Nos. 1 to 6, 10 and 14 under observation and declared the rest of the injuries to be simple. In cross‑examination he stated that he was positive about the fracture of injuries Nos. 1 and 2, and so had advised X‑ Ray.

19. Dr. Imtiaz Ahmad Khan P.W. 2 who had conducted the post mortem examination, had stated in cross‑examination that there was no fracture of skull. Although he has stated that clotted blood was present on the skull and brain but he has categorically stated that, it is incorrect that the immediate cause of death was clotting of blood'.

20. The close examination and scrutiny of the injuries shows that none of the injuries on the vital parts of the deceased including the head was found grievous even at the time of the post‑mortem examination. In fact no damage was found to have been done at the seats of the injuries Nos. 1 to 6, 10 and 14 at the time of post‑mortem examination, which would bring any of these injuries within the purview of being grievous injuries. Injury No. 8 was a fracture of little finger, injury No. 9 was a fracture of ulna bone, while injury No. 11 was a fracture of Tibia bone.

21. One of the appellants was stated to have been armed with a xulhari. The only injury opined to have been caused by sharp‑edged weapon was declared simple. From the statements of the eye‑witnesses that none of them intervened, it is apparent that the deceased was absolutely in the grip of the appellants and was completely at their mercy. If in spite of this mystery over the situation they have not caused any grievous injury on any vital part of the deceased, then it cannot be safely concluded without any doubts that they had the intention to commit murder. For safe administration of justice benefit of any doubt appearing) has to be given to the accused.

In the above analysed situation doubts have arisen in our mind regarding the intention of the appellants to commit the murder of the deceased. The conviction of the appellants under section 302/34, P.P.C. is, therefore, set aside. They are held liable for having caused grievous and simple injuries with blunt and sharp‑edged weapons. They are convicted under section 325/34, P.P.C. for having caused grievous injuries, sentenced to undergo 7 years' R.I. each and to pay a fine of Rs.1,500 each, in default whereof to suffer one year's R.I. They are also convicted under section 324/34, P.P.C. sentenced to undergo one year's R.I. each and to pay a fine of Rs. 500 each, in default whereof to suffer 6 month's R.I. They are further convicted under section 323/34, P.P.C. for having caused simple injuries to the deceased, sentenced to undergo one year's R.I. each and to pay a fine of Rs. 500 each, in default whereof to suffer R.I. for 6 months. All the sentences shall run concurrently. Whole of the fine when recovered shall be paid as compensation, to the heirs of the deceased. The Collector, Multan shall be directed to take steps for the recovery of the fine.

The appellants shall be given the benefit of the provisions of section 382‑B of the Code of Criminal Procedure and the period of their contention during the trial shall be counted towards the sentence already undergone.

S.A./Z‑9/L Sentence altered.

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