1993 PCr (PLP)

Accused Yar Muhammad examined himself as his own witness on oath (Exh.26) and he stated that he was time-keeper at Taxi Stand K.N. Shah and there had been dispute between him and complainant party over time keeping due to which he was falsely implicated. D.W.3 Gul Muhammad was called as defence witness by accused Ali Nawaz. He was a fruit-seller on a Rehra at K.N. Shah Bus Stand. He stated that on 6-1-1987 at 8-00 a.m. Imam Bux and others came for a Faisla regarding Pick-up, where accused Ali Nawaz and others were present. There was a Faisla between Ali Nawaz and Imam Bux. Drivers present at the bus stand decided' that as Imam Bux and others failed to make payment to Ali Nawaz, they were not entitled to, retain the Pick-up till instalment? was paid to the owner Ali Nawaz (accused). Under the Faisla, Pick-up was returned to Ali Nawaz.

5. On assessment and appraisal of evidence the learned trial Court convicted the accused Ali Nawaz and Manthar as stated above and acquitted co-accused Yaroo giving him benefit of doubt.

6. Mr. Abdul Mujeeb Pirzada, learned Advocate for appellants raised the following contentions:

(a)??????? Case of appellant Manthar is different from the case of Ali Nawaz, inasmuch as allegation against Manthar is that he overran the deceased Muhammad Bux while Ali Nawaz was seated in the said Van and had instigated Manthar to drive away the vehicle. The evidence against Ali Nawaz is similar to that against co-accused Yaroo, who is given benefit of doubt and is acquitted and the same concession should have been extended to Ali Nawaz as well. (b)??????? Motive is not proved through evidence of the eye-witnesses and the important witness Azizullah who is said to have purchased the vehicle from Manthar is not examined. (c)??????? There is no corroboration to the ocular evidence as neither the blood at the Wardat was collected nor the wheel marks as per memo. of Wardat could be said to be of the same vehicle which accused Maathar allegedly had driven away. (d)??????? F.I.R. was lodged after thorough investigation and it was tainted and could not render corroboration to ocular testimony: (e)??????? For appellant Manthar, the trial Court has erroneously held that since he did not examine himself on oath, it would be a circumstance against him regarding. his guilt. (f)???????? Even if the case of prosecution is believed to be true, it could be at the most a case falling under section 304-A, P.P.C. and not under section 304, P.P.C. as held by the trial Court. (g)??????? The ocular evidence is believed by medical evidence. (h)??????? Since the appellants had allegedly taken away the vehicle by force, complainant had a reason to file a false case. In support of these contentions the learned Advocate referred to: (i) Mst. Ameer Khatoon v. Faiz Muhammad and others P L D 1991 SC 787, where while dealing with the import, effect and implication of amendments made in section 340, Cr.P.C. on the rights of accused facing trial it was held that no adverse inference can be drawn if accused does not opt to make a statement; (ii) Bakhshal and others v. The State 1990 P Cr. L J 1, where a D.B. of this Court held that one tainted piece of evidence cannot corroborate another tainted piece of evidence. It was also held that if medical evidence belies ocular evidence then Court would prefer medical evidence because Doctor is not motivated and his finding is based on sure and undisputable theory. It was further held that interested witness is one who has a motive for false implication of an accused person and there cannot be an inflexible rule that testimony of an interested witness can never be accepted without corroboration; (iii) Naseemuddin Khan and others v. The State 1985 S C M R 510, where the Honourable Supreme Court observed that in a criminal case, it is the duty of the Court to review the entire evidence that had been produced by the prosecution and the defence. If after the examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case and in these circumstances the accused is entitled to the benefit of doubt not as a matter of grace but as a matter of right because the prosecution has not proved its case beyond reasonable, doubt; (iv) Muhammad Nawaz v. The State 1984 S C M R 190, where the Honourable Supreme Court held that where there was acquittal of 2 accused and conviction of appellant and the circumstances of case and tenure of trial Court judgment showing that acquittal of co-accused in reality was due to false implication, it was held that accused/ appellant could not be convicted without corroboration which was not available and lie was, therefore, entitled at least to benefit of doubt; (v) Abdul Hameed v. The State 1985 P Cr. L J 1992 where a D.B. of this Court held that conviction of accused cannot be sustained on the evidence of those witnesses who had falsely implicated the acquitted accused unless such evidence of witnesses was corroborated by independent piece of evidence worth reliance. The conviction in these circumstances was set aside; (vi) Bagh Ali v. Muhammad Anwar and another 1983 S C M R 1292, where the Honourable Supreme Court held, that where there was apparent contradiction in medical report and ocular testimony, the prosecution, and not accused was obliged to clarify the position. It was further held that the version of witness being inconsistent with material facts and circumstances of unimpeachable character, the fact that such witness was inimical to accused would be of no avail against accused; (vii) Yousuf v. The State P .L D 1988 Kar. 521, where a D.B. of this Court held that where contradictions exist between medical report and ocular testimony, the prosecution and not accused is obliged to clarify the position. In this judgment the earlier referred authority, 1983 S C M R 1292 was relied upon; (viii) Hasna v. The State 1983 P Cr. L J 172, where it was held that where first Information Report was not prepared at time and place reported to have been written but drawn at place of occurrence presumably after primary investigation, the First Information Report in the circumstances was held to be shady and the Court should be alert and appreciate ocular account with great care and caution; (ix) Ahmed etc. v. The State 1982 S C M R 1049, where the Honourable Supreme Court held that the corroboration should be looked for and found not only in case of interested witness but also where ocular testimony by itself, is not so sound and doubt-free as to independently suffice for conviction of accused; (x) Liaq Shah v. The State 1990 M L D 581, where it was held that a witness may prima facie appear to be disinterested but that alone is not sufficient to- consider him worthy of credence unless his statement rings true and he is not belied or contradicted by other facts and circumstances of the case and he does not suppress material facts going in favour of defence; (xi) Safdar Ali v. Crown P L D 1953 FC 93, where it was held that, in criminal cases, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after the examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution. In these circumstances, the accused is entitled to benefit of doubt not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt; (xii) Subhanuddin v. The State 1983 S C M R 653, where the Honourable Supreme Court held that where F.I.R. was lodged after preliminary investigation, the same was not substantive evidence. Mr. Jalaluddin Baloch, the learned Advocate appearing for the State, has not supported the conviction of appellant Ali Nawaz on the ground, that on similar evidence, accused Yaroo was acquitted. For appellant Manthar his contention is that he is guilty of offence under section 304-A, P.P.C. and not under section 304, P.P.C. and that his sentence may be altered. It is also contended that the 3 eye-witnesses Imam Bux, Rajab Ali and Hamzo are close relatives and no independent witness of the village was examined although it had come in evidence that some villagers were attracted. It is next contended that the review of entire prosecution evidence would show that it has gone unresolved as to how the Datsun, was started when its keys were with Azizullah. His last contention is that the medical evidence is contradictory to ocular evidence.

7. I have gone through the judgment of trial Court, the evidence on record and perused the case-law. The ocular evidence of P.Ws. Imam Bux, Rajab Ali and Hamzo Khan is in line -with prosecution case and there is no incoherence or infirmity, but is confidence inspiring. The case of appellants that they are falsely implicated is not proved. Nor it is proved that after a "Faisla" by the drivers at the bus-stand of K.N. Shah, the Datsun Pick-up was returned to appellant Ali Nawaz and since incident was unwitnessed, accused were falsely implicated. Appellant Ali Nawaz admittedly sold the vehicle to Azizullah and since payment of price was not made within due date, he took co-accused Manthar and Yaroo to village of Azizullah for recovery of amount but as Azizullah was not in the village, they all forcibly drove away the vehicle, which was registered by deceased, who was run over. Merely because other villagers did not act as witnesses, those present at Wardat and examined, cannot be discredited merely because they are close relations of deceased.

8. Faisla for the return of vehicle to appellant Ali Nawaz was effected on 8-1-1987, while F.I.R. was registered on 7-1-1987. An unsuccessful attempt was made by defence to, correct the date of Faisla by putting questions to appellant Ali Nawaz during his evidence on oath under section 340 of Cr.P.C., but with no fruitful consequence. The defence plea regarding Faisla is an afterthought and is not consistent with the line of cross-examination.

9. Case of appellant, Ali Nawaz is not identical to case of acquitted accused Yaroo, inasmuch as, there is direct evidence of instigation against Ali Nawaz, who got seated in the vehicle and directed appellant Manthar to drive on, unmindful of the consequences that might have ensued. He can, therefore, not be given benefit of doubt, a concession extended to acquitted accused Yaroo.

10. I am also not inclined to agree with appellant's learned Advocate, that at the most it might be a case under section 304-A, P.P.C. and not under section 304, P.P.C. Section 304-A of P.P.C. provides causing of death of any person by doing any rash or negligent act not amounting to culpable homicide. The element of knowledge and intention is not necessarily to be proved. In section 304 of P.P.C., intention and knowledge of causing death or such bodily injury as is likely to cause death arc clearly manifested. The act of appellant therefore, will not fall within ambit of section 304-A, P.P.C.

11. The ocular evidence is not belied by medical evidence. Learned Advocate's contention that since wheel marks were not visible at the seat of injuries, it could not be precisely said that the injuries were the result of causing death under wheels of a vehicle, is also without any force. The doctor has given an obliging reply to a question by defence Advocate, but that does not in any manner prove inconsistency between ocular testimony and medical evidence.

12. Incident took place in village Phulji of Taluka Johi, which is 20 miles from Police Station Johi, where F.I.R. is registered. Dadu was the nearest place where the injured Muhammad Bux could be taken for treatment and where there is a Civil Hospital. Dadu Police informed Johi Police regarding the death of Muhammad Bux in Dadu Hospital. Since the incident occurred within the jurisdiction of Johi Police, A.S.I. Ahmed Khan rushed to Dadu and repared memo. of dead body, inquest report and then took complainant to Johi where F.I.R. was lodged. This does not amount to conducting investigation before registration of F.I.R. Unless memo. of dead body and inquest report were prepared in the Civil Hospital Dadu, the dead body could neither have been removed from Hospital, nor delivered to its relations.

13. I am in agreement with learned Advocate that trial Court could not draw presumption of guilt against appellant Manthar who did not examine himself on oath under section 340, Cr.P.C. The law is well-settled on this point. Such finding is unwarranted and it is to be then seen, whether there was sufficient evidence against Manthar to connect him with the offence.

14. The appellants had gone to complainant's village for recovery of price of vehicle and when Azizullah did not meet them, they forcibly took away the vehicle and in that process Muhammad Bux, who resisted, was run over. The appellants may not have had motive to cause Muhammad Bux's death but they had the motive to take away the vehicle if money was not paid. Even otherwise it is not necessary that there should be motive for commission of every offence.

15. I am also not inspired by the contentions of learned Advocate appearing for the State who has suggested alteration of sentence from 304 to 304-A, P.P.C. Nor do I find any justification in treating case of appellant Ali Nawaz as being identical to case of acquitted accused Yaroo, who is given benefit of doubt for the reasons already stated.

16. There is yet another aspect of the case to which I would like to advert. Section 304 of P.P.C. reads as under:-- "Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention, of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death."

17. There are two parts of this section. In the first part, offence of culpable homicide would not amount to murder, if the act by which death is caused is done with the intention of causing death or such bodily injury as is likely to cause death. In the second part, word "knowledge" has been used and the word "intention" has been excluded. In both situations, the punishment provided by section 304, P.P.C. is different. In cases falling under first part, the offender can be sentenced to imprisonment for life, while? part, sentence could extend to 10 years or with

18. The case of appellants is covered by second part of section 304, P.P.C., as they did not intend to cause death of Muhammad Bux, but they had the knowledge that in forcibly driving away the vehicle, death of Muhammad Bux, who resisted, was likely to be caused. The appellants were rightly convicted by the trial Court under section 304 read with section 34, P.P.C. but sentence awarded to them needs to be altered. Both appellants Manthar and Ali Nawaz shall suffer R.I. for 7 years each and to pay fine of Rs.15,000 each, and in default of payment of fine to suffer further R.I. for one year. The entire amount of fine, or any part thereof if recovered, shall be paid to the heirs of deceased as compensation. Appellants shall be entitled to benefit of section 382-B of Cr.P.C. The appeal stands disposed of, with above alteration in sentence. N.H.O./M-1719/K????????????????????????????????????????????????????????????????????????????? Sentence reduced.