1984 PLP 1298 (MLD)

Ghosi Khan P.W. made the statement Exh. P.A. on the basis of which the case was registered.

3. Azmat Bari A.S.I. P.W.13 left for General Hospital, Lahore where he recorded the statement Exh. P.J. of Aas Muhammad deceased. He examined Muhammad Asghar P.W. on 9-5-1981. Aas Muhammad died in the hospital on 12-5-1981. The A.S.I. prepared the inquest report Exh. P.M. He arrested the appellant on 14-5-1981. On 18-5-1981 the appellant led to the recovery of dagger P.1 from near the bank of Rohi Nala which was secured through memo. Exh. P.F. attested by Sharaf Din P.W.8 and Sagar Khan. The dagger was sent for chemical examination. The Serologist found it to be stained with human blood.

4. Dr. Bashir Ahmad Khan examined Aas Muhammad (15) on 7-5-1981 and found the following injury on his person. "An incised wound in the region of inner and upper quadrant of the right buttock. Length was 2 c.m. width 1 c.m. depth 1.25 c.m. (could be) may be more on exploration. The injury was caused with a sharp-edged weapon and was dangerous and was caused within two to four hours.

5. He also examined Muhammad Asghar (14) and found an incised wound in the region of groin on the left side, just over and above the left interior superior illiac spine. Length 2 c.m. width 1 c.m. depth 1 c.m. (could be more on exploration). The injury was grievous and caused with sharp-edged weapon within two to 4 hours.

6. Lt.-Col. Syed Mustafa Hussaip Uraizy P.W.9 performed the post mortem examination on the dead body of Aas Muhammad and found three injuries thereon. All the injuries were caused by sharp-edged weapon and were ante-mortem. The death resulted due to toximia as a result of injuries which were sufficient to prove fatal in the ordinary course of the nature.

7. The appellant denied the prosecution allegations and stated to have been involved due to enmity. He stated that there was a party faction on account of election. Din Muhammad and Sharaf Din had approached his father for enlisting support in favour of Sharaf Din but he and his father refused. Hence this case. According to him he was an active supporter of Mushtaq the winning candidate. He further gave out that his father who is a post-master of the village had refused to tamper with the record at the instance of the prosecution witnesses for challenging some persons for keeping radio-set without license. He further gave out that Ghosi Khan, Sharaf Din and Din Muhammad P.Ws had asked his father to sign a complaint against Mushtaq for the can cellation of his depot which his father refused which led to bad blood between them. He did not call any evidence in defence.

8. The prosecution case rests on the evidence of Ghosi P.W.10, Muhammad Asghar P.W.11 (the injured) and Din Muhammad P.W.12 who furnished the ocular account. Sharaf Din P.W.1 testified to the recovery of dagger P.1 at the instance of the appellant.

9. The learned trial Judge considered the presence of Ghosi P.W. at the spot as doubtful. Din Muhammad P.W.12 was also not considered to be so close to the scene of offence as claimed by him. However, Muhammad Asghar was believed in full. The learned trial Court observed that the appellant who was a young boy might have apprehended an assault on his person from the deceased and Muhammad Asghar and finding it difficult to escape caused injuries to Aas Muhammad and Muhammad Asghar who sustained one injury each. He observed that this circumstance negate any intention on the part of the appellant to kill them. The recovery of dagger was disbelieved on the ground that it was made from an open and accessable place.

10. I have heard the learned counsel for the appellant. Muhammad Asghar P.W. stands corroborated by the medical evidence as also Din Muhammad P.W.12. Both of them have given a consistent and coherent account of the occurrence. They were cross-examined at length but their evidence remains unchallenge. The matter was reported to the police immediately. Since it is a case of single accused the question of substitution does not arise. The P.Ws. did not have any direct motive to falsely implicate the appellant. The explanation given by the appellant for his false implication does not appeal to reason. No evidence has been produced to substantiate the plea taken by the appellant. The accused and the injured persons were raw youths and must have flared up at the spur of moment without any previous back-ground of enmity. The trial Court has rightly come to the conclusion that the appellant might have apprehended danger to his life at the hands .of the deceased and Muhammad Asghar P.W. and in that state of mind caused one blow each to the deceased and Muhammad Asghar P.W. without intending to cause the death of anybody. In these circumstances the conviction of the appellant under section 326, P.P.C. was correctly recorded. The sentence has also been properly awarded. However, keeping in view the suddenness of the matter I think that the ends of justice will be met if the two sentences are ordered to run concurrently instead of operating consecutively. I order accordingly. The appellant shall also be given the benefit of section 382-B, Cr.P.C. With the above modification in the sentence the appeal is otherwise dismissed. S. G. D. Appeal dismissed.