1984 P Cr (PLP)

The appellant above-named, being aggrieved by judgment, dated 17th August, 1978 of the learned Second Additional Sessions Judge, Larkana, in Sessions Case No. 1363 of 1976, whereby appellants have been convicted under section 302/34, P.P.C and sentenced to suffer imprisonment for life and to pay fine of Rs.2,000 or in default to suffer further R. I. for one year, have preferred the above appeal, on the following facts and grounds:- That on 10th August, 1976 at about 1-00 or 2-00 p.m. deceased Lai, complainant Ghulam Ali, P.Ws. Khair Muhammad and Mst. Allah Bachai were present in their house. Deceased Lai was sleeping on a cot and at that time both the appellants namely Chakar and Ghulam Hussain came in their house. Both of them were armed with hatchets. Appellant Ghulam Hussain inflicted hatchet blow on the head of Lai and appellant Chakar also gave a hatchet injury on the head of deceased Lai. The inmates of the house raised cries and they could not save as they were empty-handed and the appellants were armed with hatchets. On cries P.Ws. Muhammad Ilyas and Beg Muhammad came at the Vardat and saw the appellants going out of the house of the deceased at the outer door. Lai became unconscious due to hatchet injuries. Both these witnesses namely Muhammad Ilyas and Beg Muhammad informed the complainant, that they had seen both the appellants armed with hatchets going out of the house. Comp lainant Ghulam Ali took his father on a cot and went to the Police Station. Police recorded F.I.R. on the dictation of complainant Ghulam Ali and prepared Mashirnama of injuries on the head of Lai Khan at Police Station in presence of the Mashirs and sent the injured to the Hospital for examination, treatment and certificate. The S.H.O. then proceeded to the Vardat alongwith complainant, Ghulam Ali. the vardat is situated in the house of deceased Lai Khan and complainant Ghulam Ali. There were blood-stains on the cot and also there were blood stains on the ground. The S.H.O. secured the blood-stained earth and blood-stained turban and rope of the cot. He sealed those articles on the spot, in presence of Mashirs Dhani Bux and Haji. The S.H.O. then examined P.Ws. Beg Muhammad, Khair Muhammad, Mst. Allah Bachai, Ilyas and Manthar. On 14th August,1976 he arrested appellant Chakar Ali from village Jalab Jatoi and secured one hatchet from his possession in presence of Mashirs Sobdar and Hidayat and on the same day the S.H.O. arrested appellant Ghulam Hussain from the door of his house in village Jalab Jatoi and appellant Ghulam Hussain voluntarily led the police to his house and produced a blood-stained hatchet, which was concealed by him on the roof of his house. The hatchet was secured in presence of Mashirs Sobdar and Hidayat and the same was sealed on the spot, in presence of same Mashirs. On 2nd September,1976 complainant Ghulam Ali produced the death certificate of his father Lai Khan before the S.H.0, as Lai Khan had expired on 31st August, 1976 at Jinnah Hospital, Karachi. On the basis of death certificate produced by complainant Ghulam Ali, the S.H.O. referred the matter to Medical Officer, Civil Hospital, Larkana, for final certificate. The Medical Officer, Larkana, on the basis of that certificate issued death certificate showing the cause of death. On 8th September,1976 the Investigating Officer got 164, Cr.P.C., statements of P.Ws. Beg Muhammad, Khair Muhammad, Ilyas and Mst. Allah Bachai recorded before Resident Magistrate, Larkana, and on 2nd October,1976 final challan against both the appellants under section 302/34, P.P.C. was submitted. The blood-stained earth, hatchet and other articles were sent to Chemical Analyser, Karachi, through S.P. Larkana. The report of the Chemical Analyser is positive and after usual investigation both the appellants were sent upto stand their trial in trial Court. On the other hand both the appellants in their 342, Cr.P.C. state ments had denied the prosecution allegations and stated that they have been implicated falsely and all the witnesses are interested, hostile and. set up. Therefore, both of them claimed innocence. The prosecution examined P.W.1 Ali Nawaz (R.M.O.) Exh.5, P.W.2 Khair Muhammad Exh.10, P.W. Mst. Allah Bachai Exh.11, P.W.4 Sobdar Exh.13, P.W.5 Muhammad Ilyas Exh.17, P.W.6 Dhani Bux Exh.20, P.W.7 Ali Bux Exh.22 and P.W.8 Manzoor Ali (Investigating Officer) Exh.24 in support of its case. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants above-named as hereinbefore mentioned and consequently the appellants have filed the above appeal on the grounds mentioned in the memo of appeal. The learned Advocate for the appellants in support of the above appeal submitted as under:-- (a) That all the prosecution witnesses are inter-related and one of them namely P.W.3 Mst. Allah Bachai was not named in the F.I.R and/or challan and as such no reliance can be placed on their statements without independent corroboration, which at least in the case of appellant Chakar is not at all available. (b) That alleged recovery of blood-stained hatchet from appellant Ghulam Hussain cannot be taken into consideration, as the Mashir of the said recovery is not an independent Mashir, as he is related to the complainant side and further-more the said mashir is not the resident of the locality. In view of this the mandatory provisions of section 103, Cr.P.C. have been violated. (c) That no post-mortem was performed on the body of the deceased and furthermore deceased died 21 days after the incident and as such there is nothing on record to show that the injuries received by the deceased were sufficient in ordinary course of nature to cause death and consequently the offence, if any, committed by the appellants would at the most fall under section 326, Cr.P.C. and not under section 302, P.P.C as held by the learned trial Court. (d) That according to medical certificate the injury on the person of deceased was only one and as such in the absence of any conclusive evidence regarding the appellant who caused the said injury, the conviction of both appellants in the absence of any evidence to attract the provisions of section 34, P.P.C. is unwarranted. In support of the above contentions the learned Advocate for the appellants relied upon cases reported in P L D 1966 Kar.637 and P L D 1966 Dacca 491 and submitted, that the prosecution has failed to establish its case against either of them, beyond reasonable doubt. The learned Advocate appearing for the State at the outset submitted, that while supporting the impugned judgment on facts, in his opinion, the offence committed by the appellants would fall under section 326, P. P. C. and not under section 302, P. P. C., in the absence of post-mortem examination of the deceased body. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R 8 P of the learned trial Court as well as the impugned judgment and the authorities cited by the learned Advocate for the appellants. No doubt all the prosecution eye-witnesses are interrelated, including Mashir of the arrest and alleged recoveries made from the appellants. However, mere relationship, in the absence of enmity by itself, does not make their statements unreliable." It may be noted, that all the eye-witnesses are natural and one of them namely Mst. Allah Bachai is the mother of appellant Ghulam Hussain. I have gone through the statements of these eye-witnesses and find them straight forward and convincing. The contention of the learned Advocate for the appellants, that Mst. Allah Bachai was not named as prosecution witness in the F.I.R. as well as challan does not in any way made her statement weak, in my opinion I find from the F.I.R. that although P.W.3 Mst. Allah Bachai has not been specifically named but presence of the other inmates of the house is mentioned in F.I.R. In addition to this statement of Mst. Allah Bechai under section 161, Cr.P.C. as well as 164, Cr.P.C. was recorded soon B after the incident and as such mere non-mentioning of her name as prosecution witness in F.I.R. and challan does not made her statement unworthy for reliance. In addition to the above conclusion of mine I find that hatchet[ produced by appellant Ghulam Hussain was blood-stained and as the same, was produced soon after his arrest, corroborates the prosecution case No doubt the Mashir of the arrest and recovery of both the appellants is relation of the deceased, but in the absence of any specific enmity, his evidence cannot be ignored, in view of the statement of the Investigating Officer. The presence of P.W. Sobdar, the Mashir of the arrest and recovery cannot be doubted, in view of the facts of the present case, no C doubt strictly speaking he cannot be considered as the resident of the locality. In my opinion the statements of the eye-witnesses by themselves are sufficient to prove the prosecution case against the appellants. As I find that the statements of these eye-witnesses were not at all shaken in their cross-examination and the appellants have not alleged any specific enmity against them. Both the appellants came duly armed in the house of the deceased according to the eye-witnesses and its clear from this fact that both of them came with the common intention to cause injuries to the deceased and as such the provisions of section 34, P.P.C were D attracted and consequently appellant Chakar has been rightly held to be responsible for causing injuries to the deceased, under the provisions oft section 34, P.P.C. The only question which requires consideration in the present case is, that in the absence of post-mortem report and any evidence to prove that the injuries received by the deceased were sufficient in the ordinary course of nature to cause death and keeping in view that the deceased died 21 days after the incident, after going from Hospital to Hospital and the admitted fact, that deceased had only one injury, the offence committed by the appellants, in my opinion, would fall under section 326, P.P.C E and not under section 302, P.P.C. as held by the trial Court. In this connection, the contentions of the learned Advocate for the appellants as well as the learned Advocate for the State are fully supported by case reported in P L D 1966 Dacca

491. Except for this contention of the learned Advocate for the appellants, I find no force in the other contentions of the learned Advocate of the appellants. Therefore, while dismissing the above appeal on merits, l alter the conviction of the appellants under section 302/34, P.P.C to under section 326/34, P.P.C. and consequently reduce the sentences of imprisonment awarded to them from life imprisonment to seven years' Rigorous Imprison ment and maintain the fine of Rs.2,000 imposed on each one of them and in default of payment of fine to suffer further R.I. for one year. I also direct that the benefits of the provisions of section 382, Cr.P.C. be given to the appellants in respect of their period of detentions as undertrial prisoners, after due verification by the jail authorities towards their substantive sentences, in addition to all other remissions to which the appellants may be entitled, in accordance with rules. The appellants are on bail and as such their bail bonds are cancelled and the learned trial Court is directed to issue non-bailable warrants for their arrest and on their arrest to ramand them back to judicial custody to serve out the remaining sentence The above appeal stands disposed of in terms of the above judgment. M. Y. H . Order accordingly