1989 PLP 4609 (MLD)

This appeal is directed against the judgment, dated 5‑1‑1988, by, which Sessions Judge, Layyah, convicting Sadiq Hussain Shah appellant under section 326 P.P.C., sentenced him to 10 years' R.I. and a fine of Rs. 5,000 or in default to its payment to further undergo one year R.I. The fine, if realized, was directed to be paid as compensation to the heirs of Muhammad Hussain (deceased) under section 544‑A, Cr. PC. He was also extended benefit of section 382‑B Cr. P.C. He, however, acquitted Tanvir Abbas co‑accused on benefit of doubt.

2. The prosecution story in brief is that the appellant Sadiq Hussain Shah and his acquitted co‑accused Tanvir Abbas dealt in narcotics and the former had been arrested by the police sometime prior to the occurrence. He and his acquitted co‑accused suspected that the police had raided and arrested them on the secret information supplied by Ishaque Hussain complainant and despite his assurance that he had no hand in the matter, he could not remove their impression. Therefore, Tanvir Abbas acquitted co‑accused launched a murderous assault on Ishaque Khan complainant who escaped unhurt and in that incident the former was injured at the hands of the latter and it led to the registration of a case under section 324 PPC. This incident further aggravated the matter and the appellant and his acquitted co‑accused became sworn enemies of the complainant.

3. In this inimical background on 28‑6‑1985 at 4 p.m. when Ishaque complainant accompanied by his father Muhammad Hussain (deceased) and his brother Inayat Hussain PW besides Rab Nawaz PW were returning to his house after saying Zohr prayers in the mosque and reached near the shop of Sheikh Khadim Hussain, a grocer at village Kotla Haji Shah, Tehsil and District Layyah, the appellant and his acquitted co‑accused surprised them by raising `lalkara' after overtaking them saying that they would not spare the complainant. Sadiq Hussain Shah appellant was armed with a `chhuri' while Tanvir Abbas was carrying a revolver. Seeing them in ferocious mood, the complainant and his brother Inayat Hussain PW ran for their life but they were fired at by Tanvir Abbas acquitted accused. Muhammad Hussain (deceased) intervened and held Tanvir Abbas co‑accused whereupon Sadiq Hussain Shah appellant dealt a `chhuri' blow to Muhammad Hussain (deceased) hitting him on his left thigh, causing him fatal injury, as a result of which he fell down, but he was still holding revolver of Tanvir Abbas co‑accused and in that scuffle Tanvir Abbas caused him injury with the butt of revolver. Then both the assailants left the place of occurrence raising `lalkara'. The occurrence was also seen by Maqbool Hussain and Ghulam Shabbir PWs. The injured was removed to the hospital but he succumbed to his injuries while still on the way. Ishaque Hussain complainant then proceeded to police station and lodged the report embodying the above facts. 4.The case was investigated by S.I. Qadir Bakhah, Additional S.H.O., police station Layyah, who went to Civil Hospital, Layyah, prepared the injury statement (Exh. PH) and inquest report (Exh. PJ) of the dead body of Muhammad Hussain and despatched it to the mortuary for post‑mortem examination under the care of Nazir Ahmed Constable. He went to the spot, collected blood‑stained earth, recorded the statements of Inayat Hussain and Rab Nawaz PWs. He also recorded the supplementary statement of Ishaque Hussain complainant whiz had earlier lodged written complaint (Exh. PD/1)

5. On 29‑6‑1985 he received last worn clothes of the deceased given to him by the constable who had in turn received the same from the doctor conducting the post‑mortem examination on the dead body. On 30‑6‑1985 he arrested Sadiq Hussain Shah appellant and Tanvir Abbas. During his physical remand the former led to the recovery of blood‑stained chhuri P. 4 from his residential Kotha which was seized vide recovery memo. (Exh. PE) after making it into a sealed parcel. He also led to the recovery of an unlicensed revolver for which a separate case was registered against him. He got prepared the site plan of place of occurrence by Abdul Khaliq Draftsman. In this way he completed the investigation, submitted the challan to the Court concerned and sent up the accused for trial.

6. On the commencement of trial the appellant and his acquitted co -accused were charged under section 302/34 PPC and on their pleading not guilty the prosecution led evidence against them by producing as many as nine witnesses. Dr. Ghulam Sarwar (PW.5) gave the details of following injuries on the dead body which he noticed during the course of post‑mortem:‑ (1) A contusion mark 4 cm x 2 cm on left side of forehead. (2) A contusion mark 3 cm x 2 cm on the lateral side just below" left side of left eye. (3) A stab wound 2 cm x 1 cm into bone deep cutting the femoral artery on the frontal medial aspect of left thigh having clutted blood also. In his opinion, the death of Muhammad Hussain occurred due to massive haemorrhage as a result of injury No. 3 to femoral artery which also caused shock. Injuries No. 1 and 2 were caused by blunt‑edged weapon while injury No. 3 by a sharp‑edged pointed weapon which was sufficient to cause death in the ordinary course of nature. The time between the receipt of injuries and the death was about l to 2 hours and between the death and post‑mortem examination was 14 to 18 hours. He proved the post‑mortem report Exh. PB) and the diagrams of injuries (Exh. PB/1) and (Exh. PB/2).

7. Ishaque Hussain complainant PW. 7 and Rab Nawaz PW. 8 gave the eye witness account and their statements find reflection in the above narration of the prosecution story.

8. Ishaque Hussain complainant P.W, 7 was the witness of recovery and S.I. Qadir Bakhsh PW. 9 gave the detail of the investigation. His role as investigating Officer has already been outlined. The rest of the witnesses were formal and their testimony needs no mention. Sadiq Hussain and Tanvir Abbas acquitted co‑accused in their statements recorded under section 342 Cr. P.C. denied their participatiu6, in the occurrence and alleging their false implications, professed innocence.

9. The learned trial Judge on the conclusion of the trial held that the prosecution had failed to prove the motive alleged by it. He was of the view that by adducing reliable ocular evidence corroborated by medical evidence the prosecution had succeeded in proving the infliction of fatal injury caused by a sharp‑edged weapon by Sadiq Hussain appellant to Muhammad Hassan deceased with chhuri (P.4) and since it was not an intentional murder he was guilty of‑commission of offence under section 326 PPC. He therefore convicted and sentenced him accordingly. He, however, acquitted Tanvir Abbas co‑accused on benefit of doubt.

10. It is argued on behalf of the appellant that from the facts and circumstances of the case an offence punishable under section 326 PPC could possibly be made out against him and he seemed to have been rightly convicted thereunder but he was awarded excessive sentence which needs to be reduced substantially. In the opinion of the learned counsel, the sentence of five years' R.I. would serve the ends of justice and this duration of sentence he has already undergone. In support of his contention he has quoted Muhammad Asif v. The State (1972 P. Cr. LJ 1160).

11. In my opinion, the sentence of seven years would serve the ends of justice in this case and thus where the conviction of the appellant under section 326 PPC is maintained, his sentence is reduced from ten years' R.I. to seven years' R.I. with all the benefits of section 382‑B Cr. P.C. However, his sentence of fine and the imprisonment in lieu thereof is left intact. Only to this extent his appeal is accepted. He should be informed accordingly through Jail Authorities. H.B.T./S‑563/L Order accordingly.