1992 PLP 1522 (MLD)

3. Charge under section 302, P.P.C. was framed against the appellant to which he pleaded not guilty and claimed a trial. At the trial the prosecution examined Ihasan‑ul‑Haque H.C. (P.W.1), Ghulam Fareed (P.W.2), Abdul Ghani (PM.3), Abdul Wahid (P.W.4), Haque Nawaz Niazi S.H.O. (P.W.5), and Dr. Hamid Ali (P.W.6).

4. The appellant denied 9ach and every allegation put to him in his statement recorded under section 342, Cr.P.C. He examined himself .on oath (D.W.1). He also examined Murad Bux (D.W.2) and Fateh Muhammad (D.W.3) in his defence.

5. On the assessment of evidence available on record the learned Additional Sessions Judge found the appellant ‑guilty and convicted him accordingly.

6. The evidence against the appellant was two‑fold. Firstly, there was the statement of eye‑witnesses, namely, Ghulam Fareed (P.W.2), Abdul Ghani (P.W.3), and Abdul Wahid (P.W.4), and, secondly there was recovery of the Chhuri from the possession of appellant, which on examination by the Chemical Examiner was found stained with human blood.

7. Out of the three eye‑witnesses, Abdul Wahid (P.W.4) whose name finds place in the F.I.R. (Exh.5/A) has not supported the case of the prosecution and was declared hostile. According to his version deceased Muhammad Nisar was found by him lying injured and unconcious on Tannery Road and he carried to him to Civil Hospital Karachi, where he died. His evidence shows that no one was present near injured Muhammad Nisar when he saw him there. Admittedly Ghafoor Hotel is near the place of occurrence and it was open at that time. In such a situation the version of Abdul Wahid (P.W.4) that nobody was present near injured Muhammad Nisar does not appeal to reason. A witness who is unwilling to speak the truth when he is called by the prosecution to support its case loses his credibility.

8. Complainant Ghulam Fareed (P.W.2) has testified the same facts which I have reproduced in the narrative part of the judgment. His evidence makes it clear that the incident took place all of a sudden and the appellant who had a Chhuri with him caused only one blow to deceased Muhammad Nisar and then bolted away. Although Ghulam Fareed (P.W.2) is related to deceased Muhammad Nisar, there is no reason to suppose that his evidence was not true. There are no important contradictions in his evidence and the discrepancies pointed out by learned counsel for appellant about his visit to police station and other allied matters, are not really contradictions of a nature which would shake the probative value of the evidence, but these were errors in his statement which were bound to appear in the testimony of a witness who was deposing to an incident which took place long back.

9. The delay in F.I.R. is again made a basis by learned counsel for the appellant in his attempt to show that Ghulam Farced (P.W.2) was in fact set up afterwards. It may be recalled that the condition of deceased Muhammad Nisar was serious and the anxiety of this witness was to save his life. He, therefore, rushed to Civil Hospital where deceased Muhammad Nisar was operated upon. It was only after the death of Muhammad Nisar that the police was informed about this incident. The delay in such circumstances does not create doubt about the manner in which the incident took place, specially when there was no previous enmity between the parties and the incident took place all of a sudden.

10. Abdul Ghani (P.W.3) also figures as an eye‑witness. tic has testified the same facts as unfolded by complainant Ghulam Fareed (P.W.2) in his evidence. He has made it clear that immediately after the incident he had gone to the house of deceased Muhammad Nisar and informed his mother Mst. Naz Bibi about this incident. He then went to Lyari Hospital alongwith mother of deceased Muhammad Nisar and then to Civil Hospital Karachi, where Muhammad Nisar died in operation theatre. No doubt this witness is also interested in deceased Muhammad Nisar but his evidence cannot be discarded for this reason alone as obviously there was no previous hostility between the parties and the incident took place all of a sudden.

11. The evidence of Abdul Ghani (P.W.3) is seriously. assailed by the learned counsel for the appellant on the ground that his name is not disclosed in the F.I.R. although it was lodged by an eye‑witness. When people observe, under stress of emotion, an occurrence, for a short space, from different angles, such lapses arc bound to occur. Abdul Ghani (P.W.3) has made it clear that he had rushed to the house of deceased Muhammad Nisar immediately after the incident and the possibility that Ghulam Fareed (P.W.2) did not notice him at that time, therefore, cannot be ruled out. The statement in the F.I.R. is not a piece of substantive evidence and undue importance should not be attached to this omission.

12. There is also evidence of recovery of crime weapon, viz. Chhuri from the possession of appellant, which on examination by the Chemical Examiner was found stained with human blood vide report (Exh.9/C). The recovery is proved from the evidence of Ghulam Fareed (P.W.2), and Haq Nawaz Niazi S.H.O. (P.W.5). Both of them have testified that the appellant was found in possession of a Chhuri at the time when he was arrested. The evidence of al police officer cannot be doubted or suspected for the reason that he belongs to police‑force.

13. In fact the presence of all the three eye‑witnesses at the time of incident is admitted by the appellant himself and the suggestions made to Ghulam Fareed (P.W.2) in his cross‑examination make it clear. In cross -examination to complainant Ghulam Fareed (P.W 2), some suggestions were put to him on the above lines which he replied as follows:‑‑ "It is incorrect to suggest that at that time the accused after offering prayers in the mosque was coming and I and the deceased tried to catch hold of him (accused) and that while chasing the accused Nisar fell down and received the injury."

14. Thus, from whatever point of view the evidence against the appellant may be looked at, it leads to a conclusion that the appellant and none else was responsible for causing injury to deceased Muhammad Nisar, which ultimately proved fatal. The defence built up by the appellant on the basis of an admission made by Dr. Hamid Ali (P.W.6) that this injury could be the result of fall on the ground is absurd on the face of it. The damage to the eyeball of deceased Muhammad Nisar was so extensive that it had protruded out. The opinion of the expert must be supported by reasons and it has to be examined like any other evidence that might be adduced in a case. Thus a sweeping statement that the injury suffered by deceased Muhammad Nisar could be the result of fall without giving data in support of this opinion does not inspire confidence.

15. The evidence which has come on record shows that the incident took place in a sudden fight. The help of Exception 4 to section 300, P.P.C. which is a defining section can be invoked, if and only if, death is caused‑‑ (a) without premeditation, (b) in a sudden fight, in the heat of passion upon a sudden quarrel, (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. (See Penal Law by Dr. Gour).

16. Admittedly there was no previous hostility between the parties. There was exchange of hot words followed by grappling by both deceased Muhammad Nisar and the appellant. The appellant had not taken undue advantage of the situation and he caused only one injury which unfortunately proved fatal. Thus the case of the appellant squarely falls under Exception of 300, P.P.C. punishable under section 3040), P.P.C. The contention o E Mr. M. I1yas Khan, learned counsel for the appellant that the offence, if any, would fall under section 324, F.P.C. is not tenable because the injury on the face of it was grievous. The cases reported as Muhammad Abu Toha alias Raja v. The State PLD 1966 Dacca 491, and Muhammad Arif and another v. The State PLD 1983 Pesh. 87, are clearly distinguishable.

17. Having regard to the above factual and legal position, I would convert the conviction of appellant from section 302, P.P.C. to section 304 (I), P.P.C. The appellant is sentenced to suffer R.1 for ten years and to pay a fine o F Rs.10,000 or in default to suffer R.I. four six months more. The fine of recovered be paid as compensation to legal heirs of deceased Muhammad Nisar. The benefit of section 382‑B, Cr.P.C. is also extended to appellant.

18. In the result the appeal is partly accepted. N.H.Q./A‑1197/K Order accordingly.