1986 P Cr (PLP)

The first informant, in his statement, stated that at the time of occurrence, he alongwith his brother Shah Muhammad as well as Umer Hayat and Ali Bahadur (P.Ws.) was going towards Phularwan Railway Station. They had to attend the Court. When they reached near the Dera of Muhammad Sharif Bhatti, the four accused, named above, emerged from a sugarcane field with Sotas in their hands. They raised Lalkara that they had come to take revenge of the beating to Motalli. The complainant and his companions started running to save their lives. Shah Muhammad was surrounded. Faiz was first to open the attack. He inflicted blow on the back side of the head of Shah Muhammad. Then Gulzar gave him blows on the right leg. Sarang Inflicted Sota blow on the back. Thereafter, Yara gave a Sota blow to the right arm of Shah Muhammad. He fell down. Then all the accused started giving blows to him. Ghulam Rasool, Umar Hayat and Ali Bahadur tried to rescue Shah Muhammad. The accused ran away. Shah Muhammad was taken to the hospital in injured condition. He died in the hospital the same day. The motive, as alleged by Ghulam Rasool, complainant, was that six months prior to the occurrence, he and Shah Muhammad, deceased had given Sota blows to Motalli son of Jalal, father‑in‑law of Faiz an Gulzar. In that case, Ghulam Rasool and Shah Muhammad were challaned. Ghulam Rasool, brother and Umer Hayat, brother‑in‑law of Shah Muhammad, appeared as eye‑witnesses. Ghulam Rasool on oath affirmed the version‑given by him in his statement before the police. He stated that they were going to catch train from the Railway Station. At a distance of two squares from the station, the accused attacked them. Umar Hayat supported the version given by Ghulam Rasool. He stated that on the night preceding the occurrence, the complainant and the deceased, alongwith Ali Bahadur, stayed at the house of Umer Hayat. On the next morning, he as well as Ali Bahadur and the complainant and Shah Muhammad, deceased, left for Bhalwal in order to attend the Court. When they reached opposite to the Dera of Sharif Bhatti in the area of Porana Phularwan, the accused came out from a sugarcane field. They challenged them. Ghulam Rasool and Umar Hayat escaped; but Shah Muhammad was captured. He was given beating by the accused. On 8‑3‑1981 at 7‑45 a.m. Dr. Inayat Ullah medically examined Shah Muhammad and found 19 injuries on his person. Those were lacerated wounds, abrasions, bruises as well as compound fracture of right lower forearm and left knee. Most of the injuries were on the legs and arms. Fracture of right forearm and left knee and multiple bruises with swelling on outer part of left upper arm were found as grievous injuries. All other injuries were simple. The injuries were caused with blunt weapon. On the same day Shah Muhammad died. His autopsy was conducted by Dr. Rahim Paracha, Medical Officer, Civil Hospital, Bhalwal. The doctor found the same injuries. He found the fracture of patella, tibia and fibula of the right leg as well as of left patella bone. He further noticed fracture of ulna and radius of the left forearm. In this opinion, the death was due to pain and shock produced mainly by the fractures. Those, according to the doctor, were sufficient to cause death in the ordinary course of nature. All the injuries were with blunt weapon and were ante‑mortem. Gahra P.W. 9 and Bashir P.W. 11 testified the recovery blood‑stained Sotas from Gulzar and Faiz, appellants. The appellants in the statements before the trial Court denied the allegations. They stated that the case was due to enmity. The 'declined to lead any evidence in defence. Learned counsel for the appellants contended that the trial Court acquitted Sarang and Muhammad Yar. Hence same evidence could not, be used against the appellants for conviction. This was not in accordance with law. While dealing with the ocular evidence, learned counsel submitted that the two eye‑witnesses were close relatives of the deceased They were thus interested witnesses. Their evidence as such was not reliable. Last of all, learned counsel submitted that keeping in view the nature of the injuries, conviction and sentence under section 302/34, P.P.C. was not justified in law. I am not prepared to disbelieve Ghulam Rasool and Umer Hayat on the ground that they are relatives of the deceased. Both of them were cross‑examined at length. Defence did not succeed in bringing out any contradiction in their statements. As a matter of fact, nothing useful for the defence was brought out in the cross‑examination. Ocular evidence finds corroboration from the motive, the medical as well as the recovery evidence. The mere fact that two of the accused were acquitted does not mean that the appellants are also entitled to acquittal as a matter of right. The case of each accused is to be determined keeping in view the part played by him, his liability in the commission of the crime and the evidence which connects him with the offence. This leaves me to examine the question of conviction and sentence. I am clear in my mind that it is not a case where conviction was to be recorded under section 302/34, P.P.C. The weapon used was Sota. The grievous injuries, which resulted in death, were not on a vital part. It is more a case of homicide not amounting to murder and comes within the ambit of section 304, Part I, P.P.C. I, therefore, alter the conviction from sections 302/34 to 304, Part 1, P.P. C., and sentence the appellants to 10 years' R.I. each. They shall be given the benefit of section 382‑B, Cr. P.C. The sentence of fine is maintained. The entire amount shall be paid as compensation to the legal heirs of the deceased. The appeal is disposed of accordingly. S.A. Appeal dismissed.