1987 PLP 3114 (MLD)

Shabbir Ahmad, appellant, and his brother Munir Ahmad (since acquitted) were tried for murdering Muhammad Anwar and making, murderous assault on Mukhtar etc. P.Ws., by Sessions Judge, Bahawalnagar, who, vide his judgment dated 7-3-1984, while acquitting Munir Ahmad, convicted Shabbir Ahmad under section 302 P.P.C. and sentenced him to imprisonment for life and a fine of Rs. 5,000, in default whereof to undergo further rigorous imprisonment for 1 year. He was further directed to pay Rs. 10,000 as compensation to the heirs of Muhammad Anwar, deceased, or in default to undergo 6 months rigorous imprisonment. He was allowed benefit of the provisions of section 382-B, Cr.P.C., i.e., the period for which he remained in jail before his conviction would be deducted from sentence of imprisonment awarded to him. He was however, acquitted from the charge under section 307 P. P. C. He has filed the instant appeal challenging both his conviction and sentence.

2. The occurrence took place at Maghrib-wela on 24-10-1982 near the Dera of Muhammad Anwar, deceased, in the vicinity of Chak No. 65/Murad at a distance of 17 k.m. from police station Dahranwala, district Bahawalnagar. Report Ex-PE was lodged by Mukhtar Ahmad (PW.7), real brother of Muhammad Anwer deceased, the same day at 7.10 p.m., at the police station which was recorded by S.I. Nazir Ahmad (PW.6).

3. According to the prosecution Muhammad Akram (PW.8), a 12/13 years old boy, was employed as servant by Shabbir Ahmad, appellant. About 3 days prior to the occurrence. Muhammad Akram PW left service of the appellant and came to the Dera of Muhammad Anwar, deceased, and started working there as his servant. This was not taken in good taste by the appellant. On the day of occurrence at evening time Mukhtar Ahmad (PW.7) with his brother Muhammad Yousaf PW (not produced) were sitting in their Dera and Muhammad Anwar deceased and their servant Muhammad Akram PW were putting fodder to their cattle when Shabbir Ahmad, appellant, armed with stick and his brother Munir Ahmad armed with a pistol came there. They caught hold of Muhammad Akram for taking him to their Dera. Muhammad Akram started weeping, Muhammad Anwar intervened to get Muhammad Akram released whereupon Shabbir Ahmad appellant inflicted a Sota blow on his head as a result of which he fell down. Munir Ahmad (since acquitted) fired a shot from his pistol but nobody was tit. The appellant and his co-accused then fled away. The occurrence was witnessed by Mukhtar Ahmad (PW.7), Muhammad Akram (PW.8) and Muhammad Yousaf PW (not produced). Muhammad Anwar was then placed on a cot and removed in a tractor-trolley to police station Dahranwala, where Mukhtar Ahmad lodged F.I.R. Ex. P.E.

4. S.I. Naz r Ahmad (PW.6) after recording FIR (Ex. PE) under section 307/34 P.P.C. dictated by Mukhtar Ahmad (P.W.7) prepared the injury statement of Muhammad Anwar and sent him to Civil Hospital Dahranwala for treatment. He then visited the spot and collected blood-stained earth from the place of occurrence. He also visited the hospital for recording the statement of Muhammad Anwar injured but the doctor opined that he was not fit to make statement. The injured was then referred to Chishtian hospital by Medical Officer, Dahranwala, where he died on 25-10-1980. On receiving information about the death of Muhammad Anwar the S. I. went to the hospital and after preparing inquest report Ex. PH of the deceased sent the dead body for post mortem examination. He arrested the appellant on 12-11-1982 an recovered from him stick P.5 which was not stained with blood After usual investigation he challaned the appellant and the acquitted accused under sections 302/307/34 P.P.C. to Court.

5. Dr. Irshad Ahmad (PW.2) on 25-10-1982 at 1 p.m. conducted post-mortem examination on the dead body of Muhammad Anwar am found one head injury on his person which was described as lacerate wound oblique in direction 5 c.m. long 2-3/4 c.m. wide and scalp deep. On dissection a big haematoma was detected below the scab and also there was 15 c.m. transverse fracture in the skull bone starting from the middle going towards the right bonymeatus of ear According to the doctor, concussion, compression and laceration u the brain caused by injury No. 1 was ante-mortem and was sufficient to cause death in the ordinary course of nature. Time between injury and death was within 18 hours and between death and post-mortem was within 7 hours. The doctor however stated that there was no external bleeding from the injury.

6. At the trial, prosecution examined 9 witnesses in all, of whom Mukhtar Ahmad (PW.7), Muhammad Akram (PW.8) and Muhammad Younas (PW.9) are witnesses of the occurrence. Dr. Irshad Ahmad (PW.2) proved that Muhammad Anwar had died of violence and S.I. Nazir Ahmad (PW.6) narrated about the investigation. The appellant when examined under section 342 Cr.P.C., in reply to question No. 10 stated as under:- "I am innocent. Muhammad Ashraf brother of Muhammad Akram was servant of Muhammad Anwar. He had to proceed on leave, therefore, he with my permission took Muhammad Akram to the dera of Muhammad Anwar to provide him as his substitute, for two days. He failed to return after the expiry of two days, therefore, I went to the dera of Muhammad Anwar to inquire as to what was the cause of non-return of Muhammad Akram. When I reached the dera of Muhammad Anwar, Muhammad Akram on seeing me started weeping and advanced to accompany me to my dera but Muhammad Anwar caught hold of him and felled him to the ground and sat upon his chest and tried to throttle him to death who cried out and I to save his life picked up a driving stick lying there and inflicted a blow with the same to Muhammad Anwar which landed his head and thus I secured the release of Muhammad Akram. I threw down the stick there and went to my dera. None else had seen the occurrence. Munir Ahmad had not accompanied me to the dera of Muhammad Anwar. I am aged 16/17 years." He, however, produced no witness in defence. Munir Ahmad co-accused denied his presence and participation in the occurrence.

7. The learned trial Court on consideration of material on record found Munir Ahmad, accused as innocent and acquitted him, but believing the prosecution story qua appellant discarded his defence version, and consequently convicted and sentenced him as indicated above.

8. It is clear from the above narration that the prosecution story and the defence version are largely similar to each other inasmuch a they are at one as to the time and place of occurrence. They also agree that the trouble arose between the parties over taking away on relating of Muhammad Akram P.W. The only difference is that according to prosecution, the appellant tried to forcibly take away Muhammad Akram from the dera of Muhammad Anwar, deceased and when Muhammad Anwar intervened he was given the fatal blow by appellant whereas the defence version is that Muhammad Akram seeing the appellant went towards him to go with him whereupon Muhammad Anwar deceased caught Muhammad Akram PW threw him down and sitting over his chest tried to throttle him to death, and in order to save Muhammad Akram PW, the appellant picked up an ordinary stick lying nearby and inflicted blow with it on the head of the deceased. The question arises, as to which of the two versions is true? The best evidence on the point is that of Muhammad Akram (PW.8). He has given direct lie to the defence and instead supported the prosecution. Learned counsel appearing on behalf of the appellant has laid great stress on the fact that Muhammad Akram PW had at the stage made a statement before the Magistrate supporting the plea of the appellant vide statement Ex. DC dated 24-12-1983 allegedly recorded under section 164 Cr.P.C. It is stated that subsequently the complainant party prevailed upon Muhammad Akram and kept him in their custody till he appeared in the Court and thus coerced him to support prosecution. It is, urged that Akram's statement recorded under section 164 Cr.P.C. should be given preference over the one he made before the trial Court because statement Ex. DC is earlier in time and provides sufficient strength to the plea of the appellant which appears to be reasonably true, hence the appellant is entitled to be acquitted.

9. I have not been able to persuade myself to agree with this contention of the learned counsel for the reason that Muhammad Akram (PW.8) clearly stated that he had made statement Ex. DC before the Magistrate under pressure of Munir Ahmad (acquitted accused) brother of the appellant. Muhammad Akram also stated that he went to hi uncle Wahab in Chak No. 203/Murad after 15/20 days of the occurrence and stayed with him for one month and thereafter Munir (acquitted accused) and one Muhammad Khan took him to Chak No. 66 and kept him there for one year from where police brought him to Chak No. 203/Murad and then took him forcibly to Haroonabad and got his statement recorded in a Court there. Learned counsel submits that endorsement Ex. DC/2 shows that the Magistrate recorded statement of Muhammad Akram PW after satisfying himself that the witness was making the statement as free agent. The argument appears to b feeble for the reason that the appellant failed to produce the Magistrate concerned who had recorded the statement Ex. DC because Muhammad Akram has disputed this statement to be voluntary. Having regard t the facts and circumstances of the case, I am of the view that statement Ex. DC had been obtained from Muhammad Akram PW under pressure because it is not understandable as to why Muhammad Akram whom the appellant had saved from the deceased while being throttled by him had chosen to support the prosecution. Again Muhammad Ashraf, the brother of Akram has not been examined by. defence to prove that he had taken Akram from the appellant's dera for 2/3 days only and that Akram had not left appellant's service for good and joined service of the deceased. I am of the view that the defence version has not only been established rather it does not appear reasonably true. Contrarily the prosecution story stood fully proved

10. The only question now remains is that on these facts what offence had been committed and what should be the sentence. It appears to me that Shabbir Ahmad appellant, in order to bring back Muhammad Akram who had run away from his service had gone to the Dera of Muhammad Anwar. The deceased did not allow him to take the boy back. There occurred argument between the two and in the heat of passions the appellant seems to have dealt single blow to the deceased with a stick which resulted in his death. There is no previous deep rooted enmity between the appellant and the deceased and furthermore the blow was not repeated, therefore, I find that neither was a was premeditation nor intention on the part of Shabbir Ahmad, appellant to kill the deceased. However, he can be easily, burdened with the knowledge that by giving blow with an ordinary stick (usually carried by villagers) on the head of the deceased he was likely to cause deceased's death. It would, therefore, follow that the appellant is guilty of committing an offence under section 304 Part-11 P.P.C. 1 would. therefore, alter his conviction from section 302 P.P.C. to 304 Part-II P.P.C. and reduce the sentence to 10 years' R.I. and a fine of Rs. 5,000 in default of payment of fine the appellant shall undergo further. R.I. for one year. The fine if realised shall be paid to the heirs of the deceased as compensation. Compensation of Rs. 10,000 ordered to be paid by- trial Court is also reduced to 5,

000. This appeal in the result is partly accepted in the terms indicated above. Benefit of section 382-B Cr.P.C shall be given to the appellant. S.A. /S-104/L Conviction altered.