2003 PLP 1409 (MLD)

MIAN MUHAMMAD JAHANGIER, J.

By this judgment Criminal Appeal No.1076 of 1998 and Murder Reference No.311 of 1998 are being disposed of together, which have emerged from the judgment passed by Malik Nazir Hussain Awan, learned Sessions Judge, Sargodha, dated 29-9-1998 whereby Muhammad Nawaz son of Allah Bakhsh, Muhammad Iqbal son of Bati Khan and Imran Haider son of Manzoor Hussain were convicted under section 302(b), P.P.C. and sentenced as under:-- Under section 302(b), P.P.C. Muhammad Nawaz appellant to death subject to confirmation by this Court, Under the same section Muhammad Iqbal and Imran Haider had to suffer life imprisonment. All the three appellants were directed to pay Rs.20,000 as compensation to the legal heirs of the deceased under section 544-A, of .Cr.P.C., in default of which they had to undergo six months each.

2. This case is related to F.I.R. bearing No.312 of 1997 (Exh.P.A./1) registered under sections 302/34, P.P.C. with Police Station Kot Momin, District Sargodha, on the statement of Bashir Ahmad son of Fazal Ahmad, caste Sheikh, resident of Haveli Mian Sher Ali (Exh.P.A.), who disclosed that on 30-5-1997 he and Muhammad Akram son of Sartaj Khan, caste Sheikh, resident of Bhabhra, caste Sheikh, his nephew, who was labourer on a cart after delivering wheat-bin in Wahn Miana, were-going back to village Bhabarra and when they at about 8-00 a.m. reached at bridge of Water Logging Nullah near Wahn Miana, Muhammad Nawaz son of Bakhsha, caste Sheikh, Muhammad Iqbal son of Baati, caste Aasi, and Imran Shah son of Manzoor Shah, caste Syed, residents of Wahn Miana came there. Muhammad Nawaz raised Lalkara to tell the taste of abusing to Muhammad Akram and while catching arm got down M. Akram from the cart and Muhammad Nawaz, etc., started giving fist and kicks blows to Muhammad Akrma. Bashir Ahmad stepped forward to separate but in the meantime Muhammad Nawaz gave a right foot's kick's blow to Muhammad Akram and also by catching the testicles of Muhammad Akram pulled the same due to which he fell down. On hue and, cry of. Bashir Ahmad, the complainant, Muhammad Nawaz son of Muhammad Hayat and Allah Bakhsh son of Rehman, caste Sheikh, resident of Haveli Mian Sher Ali attracted to the spot and witnessed the occurrence while the accused fled away. The motive behind the occurrence was that a few days earlier Muhammad Nawaz had an altercation with Muhammad Ikram on the rent of car. Muhammad Ikram had abused to Muhammad Nawaz and due to this grudge Muhammad Nawaz, Muhammad Iqbal and Imran Shah in furtherance of their common intention gave beating to Muhammad Ikram who became unconscious at the spot. Some efforts were made to restore his senses but all were in vain, last of all Muhammad Ikram died at the spot. Muhammad Nawaz and Allah Bakhsh as mentioned above were left at the spot and Bashir Ahmad himself proceeded for making report.

3. Anwar Hussain Shah, S.-I. (P.W.9) while posted as Incharge Police Post Bhabarra drafted complaint (Exh.P.A.) and sent it to Police Station Kot Moman for registration of the case. He partly conducted investigation by preparing Injury Statement (Exh.P.F.) and Inquest Report (Exh.P.G.) and dispatched the dead body for post-mortem examination.

4. Muhammad-Azam, S.-I. (P.W.8) Incharge, Police Station Kot Moman further conducted the investigation in this case. He prepared rough sketch (Exh.P.E.), recorded the statements of the prosecution witnesses, took into his possession the last-worn clothes of the deceased and on 6-6-1997 arrested Muhammad Nawaz, Muhammad Iqbal and Imran Haider accused. On 6-6-1997 he got the site-plan (Exh.P.C.) prepared from Akhtar Hayat Patwari. After completion of necessary investigation he submitted the challan for trial of the accused, mentioned above.

5. In order to prove its case the prosecution produced nine oral witnesses out of whom Bashir Ahmad complainant (P.W.1) and Allah Bakhsh (P.W.2) furnished the ocular account. The relevant parts of examination-in-chief of their statements in verbatim are as under:-- "Iqbal and Imran Shah accused are friends of Muhammad Nawaz accused. One year ago at about 8 a.m. Ikram deceased and I were coming to our house from Wahn Miana after delivery wheat-bin. When we reached Bridge Sam Nala situated at Wahn Miana. Nawaz, Imran and Iqbal accused present in the Court came there, Nawaz accused raised Lalkara that they would teach lesson to Ikram for the abuses, Nawaz caught hold of Ikram from his arm and caught him down from the cart. All the three accused started giving blows to Ikram with their heads' fists hitting at the different part of the body of Ikram. I came down from the cart and made request to the accused. Muhammad Nawaz accused caught hold of Ikram deceased from his testicles and pulled iris testicles to kill him. Ikram fell down and expired at the place of occurrence. Aflah Bakhsh and Muhammad Nawaz son of Hayat reached the spot and witnessed the occurrence on our hue and cry. Motive for the occurrence was that Ikram deceased gave abuses to the accused 10 days prior to the occurrence.

2. I left for police station, leaving Muhammad Nawaz and Allah Bakhsh P.Ws. with the dead body. I reached at Police Post Bhabarra and narrated the occurrence before Anwar Hussain Shah, S.I., who reduced into writing my statement as complaint Exh.P.A. which was read over and explained to me. I affixed my signatures at complaint Exh.P.A. in token of its correctness.

3. Police accompanied me to the place of occurrence. Dead body of Ikram was lying there, that was inspected by the Police, Investigating Officer inspected the place of occurrence at our pointation. "About one year back at about 8 a.m., I alongwith Muhammad Nawaz P.W. were coming from Wahn Miana to Pull Sam Nala Ikram and Bashir were ahead of us on a Raree then they reached bridge of Sam Nala Muhammad Nawaz, Iqbal and Imran accused now present in the Court emerged at the place of occurrence. Muhammad Nawaz raised a-Lalkara that they have to come to avenge for the abuses given to them. Muhammad Nawaz got down Muhammad Ikram deceased from Raree all the three accused gave fist blows to Ikram deceased hitting him on his body. Muhammad Nawaz gave a foot kick to Ikram deceased and caught his testicles pulled and twisted the testicles to kill him. Muhammad Ikram became unconscious and died at the spot other than Bashir P.W.1 and Nawaz witnessed the occurrence. I joined the investigation of this case and made the statement."

4. Dr. Akhtar Mehmood, D.M.S., D.H.Q., Hospital, Jhelunm (P,W.3) had conducted the post-mortem examination on the dead body of Muhammad Ikram on 30-5-1997. He found the following injuries:-- (1) Old lacerated wound 2 x 2-1/2 c.m. x 1 c.m. stitched and healing on left side of head, 4 c.m. above left, ear. (2) Contusion marks 4 c.m. x 4 c.m. on front of right chest. (3) Contusion marks 5 c.m. x 4 c.m. on back of right chest. (4) Contusion marks 4 c.m..x 3 c.m. on inner aspect of left thigh. (5) Contusion marks with redness 2-1/2 c.m. x 2-1/2 c.m. on left side of scrotum (left testicle). In his opinion death in this case was occurred due to vaso-vagal shock (vagal inhibition) caused by injury over the testicle which can cause death in ordinary course of nature and according to him No.5 proved fatal while rest of the injuries (fresh) were of nature and that Injury No. 1 was old caused to 5 to 10 days before death. During cross-examination he admitted that the time of death was 11-00 a.m. as reported by police, the congestion of lungs can be the congestion of lungs can be result of asphyxia; that there was no injury on the right side of testical and that the veins of right side of testicle were rightly functioning.

5. The remaining witnesses were formal in nature.

6. At the close of prosecution case the statements of the accused were recorded under section 342, Cr.P.C. They denied the allegations as levelled by the prosecution and professed about their innocence. And when they were questioned as to why this case was registered against them, they submitted the same reply which is as under:-- "All the P.Ws. are personal servant of Mian Manzar Ali Ranjha Ex-M.P.A. and Deputy Speaker, Punjab Assembly, Lahore. I have been involved in this case on account of personal rivalry prevailing in our village at the time of occurrence."

7. Hafiz Muhammad Ashraf Dispenser, Bhabarra Rural Health Centre, District Sargodha was produced as D.W.1. He register EXh.D.W.1/1 to show that in accordance with Entry No.5964 Muhammad Ikram. son of Siraj Din, resident of Bhabara attended the hospital at 8-30 a.m. and died at 10-45 a.m. The cross-examination faced by him in verbatim was as under:-- "I have compared the photostat copy with the original which is correct copy of Exh.D.W.I/1 and exhibited as Exh.D.W.l/2. I have not maintained this register. The entries in the register are not in my hand. This register is in my custody. I have seen whole of the register, there is no where mention of. any time, arrival of the patient, except against this entry. It is correct that the entry of the time 8-30 a.m., is in different ink than the entry made against Entry No.5964. It is also correct that entry of the time 8-30 a.m. is in different ink than the entry death at 10-45 a.m. Death entry at 10-30 a.m. is written against Entry No.5965. Entry of the name of Muhammad Ikram son of Siraj Din is interpolated by using two different inks. It is incorrect that this entry was entered later on just to favour the accused, " The accused persons named above did not get their statements recorded under section 340(2), Cr.P.C.

8. While concluding this case learned Sessions Judge, Sargodha arrived at this conclusion that the prosecution has established its case against the accused persons under section 302(b), P.P.C., Therefore, they were convicted and sentenced as mentioned above.

9. We have heard the learned counsel for the parties and have gone through the record placed before us.

10. We see that the alleged occurrence had taken place at 8-00 a.m. while the statement Exh.P.A. was recorded at 11-00 a.m. and when the statement Exh.P.A. was received at Police Station kot Moman, the formal F.I.R. Exh.P.A./1 was recorded at about 12 O'Cl'ock on the same day: The distance between the village Wahn Miana and Kot Moman was 15 kilometres, therefore, the consumption of four hours in recording the F.I.R. was possible.

11. The perusal of Inquest Report (Exh.P.G.) would show that in Column No.3 time as 11-00 a.m. is mentioned, certainly this time was mentioned by Dr. Akhtar Mehmood (P.W.3) in his own record but his version is not correct that time of death was 11-00 a.m. because Column No.3 of the Inquest Report is always in connection with the Time of Information about Death and same thing happened in this case, when the Investigating Officer recorded the date 30-5-1997 and time as 11-00 a.m. in Column No.3 of the Inquest Report. Therefore, the statement of P.W.3 (Medical Officer) creates no confusion about the time of occurrence in this case. In the same way Muhammad Ashraf (D.W.1) tried to create a confusion about time of death of Muhammad Ikram by presenting Entry No.5964 in Register (Exh.D.W.1/1), but he could not face the cross-examination put on him by the prosecutor, therefore, his statement also could not create any doubt in the time of occurrence. As such it is established that time of occurrence in this case was that which was explained by eye-witnesses.

12. Muhammad Nawaz, etc. (appellants), are named in the F.I.R. with an allegation that they gave fist and kicks blows to the deceased and to Muhammad Nawaz the specific role was attributed. The ocular account in details has been furnished by Bashir Ahmad (P. W.1) and Allah Bakhsh (P.W.2). They faced the test of cross-examination but it could not prove that they were inimical towards the appellants. Their statements are quite consistent on all material aspects of the case. Minor discrepancies are bound to occur with the passage of time and the mere relationship is not sufficient to discard the testimony of a witness. The perusal of the evidence produced by the prosecution would show that the ocular account furnished by these two witnesses find full corroboration from the medical evidence. Even on question of motive their statements inspire full confidence.

13. But the learned counsel for the appellant argued that if for the sake of arguments the prosecution version is believed to be correct, even then, it would appear that the appellants had not come at the spot after being prepared to kill Muhammad Ikram deceased and that the assault alleged against them was a fight in routine in which fist and kicks blows were used and that if the statement of Bashir Ahmad (P.W.1) and Allah Bakhsh (P.W.2) are believed to be correct then the first part of the occurrence is proved but there is no convincing evidence on the second part of their statements relating to the motive behind the occurrence. Last of all he argued that if at all it is believed that the prosecution case was established, even then, the offence under section 302(b), P.P.C. could not be constituted and that the provisions of section 315, P.P.C. are attracted as when the testicles were pulled or when the fist and kicks blows were given the intention could only be to cause harm to the body of the deceased, therefore, in any case the conviction cannot be maintained under section 302(b), P.P.C.

14. The learned State Counsel after supporting the prosecution case agreed on this point that in the facts and circumstances of the case the provisions of section 315, P.P.C. are applicable in this case.

15. Even we are convinced that in the facts and circumstances of the case the conviction and sentence could not be passed under section 302(b), P.P.C. for the reason that it is obvious from the evidence on the record that intention of the appellants was to cause harms to the body of the deceased but Muhammad Ikram died as a result of the injuries sustained by him, therefore, Muhammad Nawaz appellant should have beet convicted and sentenced under section 316, P.P.C. while Muhammad Iqbal and Imram Haider under section 337-F(ii), P.P.C. keeping in view the roles played by them.

16. Being so we maintain the judgment passed by the learned trial Court dated 29-9-1998 but alter the conviction and sentence from section 302(b), P.P.C. to section 316, P.P.C. and sentence Muhammad Nawaz appellant to pay an amount of Diyat as prescribed at the relevant time. He' is also punished to undergo R.I. for ten years as Ta'zir while Muhammad Iqbal and Imran Haider are sentenced to pay the amount of Rs.10,000 as Daman recoverable as land revenue and to undergo R.I. for three years as Ta'zir, however, the same is reduced to already undergone.

17. It appears that both the said appellants are on bail. They shall be intimated to furnish the security to the satisfaction of the learned trial Court for the amount of Daman and to pay the same in five instalments each, otherwise the amount of Daman shall be recovered in accordance with law.

18. So far 'as the payment of amount of Diyat is concerned, it may be paid in lumpsum or in instalments before the learned trial Court keeping in view the provisions of section 331, P.P.C.

19. All the appellants shall be given the benefit of section 382-B, Cr.P.C. Appeal is disposed of accordingly. Death Sentence awarded to Muhammad Nawaz appellant is not confirmed. Murder Reference is answered in the negative. H.B.T./M-1897/L Order accordingly.