1989 PLP 2688 (MLD)

6. The ocular account was deposed to by Ghulam Mustafa P.W.5 real brother of the deceased and Shabbir Hussain P.W.6 paternal-uncle of the deceased. Iftikhar Ahmad younger brother of the deceased and Nazar Hussain maternal-uncle of the deceased, named in the F.I.R. as eye-witnesses were given up as unnecessary. Ghulam Mustafa P.W.5 repeated the facts given by him in the F.I.R. During cross-examination he admitted that on being asked to go to the Police Station to lodge the report, Shabbir P.W. had gone there (police station). He stated that he (Shabbir) had come to the place where he had made statement to the S.I. and told of having informed the police about the occurrence. According to him the deceased was removed to the hospital in injured condition in a car. He disclosed that the doctor was not available when they had reached there and by the time the doctor arrived, his brother had died. The occurrence, according to him, had ended in one or one and a half minutes. He admitted that the villagers had collected 42 kilograms of rice for `Khatam of Giarhvin Sharif. He denied the suggestion that the whole rice was collected by the appellant alone. He also denied the suggestion that 14 kilograms of rice, which was left over, was given to the Imam Masjid or that the same had been taken back on the objection raised by the appellant that the rice collected for `Khatam of Giarhvin Sharif' could not be given to the Imam Masjid. He denied that on that account the deceased and the appellant had quarreled wherein the deceased had caused injuries to the appellant and the appellant in turn had given an injury to the deceased in defence. The witness on being asked the question, `whether you know about Witr', had remained silent. Shabbir Hussain P.W.6 corroborated the statement made by P.W.5 in examination-in-chief. During cross-examination he stated that he was present near cot of the deceased in the hospital when the police had arrived there at 10-30 p.m. According to him the Thanedar after examining the injuries of the deceased had enquired from all of them and then had taken them to the place of occurrence where he recorded the statement of Ghulam Mustafa P.W. According to him the deceased was removed to the hospital, on foot, on a cot. The doctor according to him was available and he had told them on examining Ghulam Murtaza, that he had expired. Both the witnesses denied the suggestion that they had not witnessed the occurrence. Muhammad Khan, S.I. who had arrested the appellant, appeared as P.W.9. He deposed about the recovery of dagger at the instance of the appellant which has been corroborated by Shabbir Hussain P.W.11 son of Haji Muhammad. Shabbir Hussain admitted in cross-examination that he had been tried in a murder case. He also admitted that he had joined the recovery proceedings, on receipt of a message from the S.I. The statements of the remaining witnesses are more or less of a formal nature.

7. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. He stated as follows in answer to the question, do you want to say anything else':- "I am innocent. The case is false. The P.Ws. are close relatives of the deceased. They have given false evidence against me. Actually the occurrence took place m this manner; that I alongwith Mushtaq, Said Muhammad and other co-villagers had collected 42 Kilos of rice from different residents of the village and out of these we got cooked two Degs of Plaow for the Khatam of Ghiarvin Sharif and the remaining 14 kilos were given by the deceased Murtaza to Maulvi Nazar Hussain, Imam Masjid and when I came to know about this, I agitated the matter in the mosque before certain residents of the village, my opinion was that since the rice had been collected for Khatam of Ghiarvin Sharif, the same could not be given to Imam Masjid. My opinion was supported by other co-accused villagers and Imam Masjid was forced to return the rice. The deceased due to above incident felt insulted and minded my role. On the fateful night the deceased armed with stick attacked me and caused me injuries and in exercise of right of self-defence caused one injury to the deceased with a small knife. I was even medically examined and the doctor had found four injuries on my person." He examined in defence Dr. Iftikhar Ahmad D.W.1. Dr. Iftikhar Ahmad stated that he had examined the appellant on 26-6-1985 at 10-30 p.m. and had noted a contusion 7 x 3 c.m. on the outer side of left eye, a contusion 4 x 3 c.m. over left side of head, a contusion 7 x 3 c.m. over back of middle of the left chest and a contusion 6 x 2-1/2 c.m. over back of middle of right chest. The injuries were opined to have been caused with a blunt weapon within 12 days. During cross-examination he stated that the duration could be extended to 3 days on either side.

8. Learned trial Judge before coming to the conclusion of holding the appellant guilty under section 304, Part 1, P.P.C. did not believe the evidence of recovery of weapon of offence. He observed that the F.I.R. in this case appears to have been recorded after preliminary investigation. The version put forth in defence by the appellant was also not believed by him.

9. I have gone through the reasoning advanced in this regard by learned trial Judge. The conclusion of the trial Judge about recording of the F.I.R. after preliminary investigation is based on the admissions made by P.W.6 during cross?examination, which have been noted above, and the same do not call for any interference. The circumstances noted for disbelieving the plea put forth by the appellant that he had been attacked and caused injuries, are also available on the record. In that, learned trial Judge rightly noted that if the appellant had suffered injuries at the time and date of occurrence, he would not have kept away from the doctor for so many days, and rather would have got himself medically examined at the earliest and appeared before the police. The fact of the appellant having not appeared before the police for 4 days even after medical examination has also been given the correct weight because if the appellant had acted in self-defence, as claimed by him, he would not have avoided his appearance before the police at least after having got himself examined. The reasons given for disbelieving the recovery of weapon of offence also do not call for any interference.

10. Learned counsel for the complainant has not been able to point out any material to set aside the acquittal of Amjad Ali and Muhammad Sadiq under section 302, P.P.C. Both of them, even according to the complainant, were empty-?handed. They had not only been declared innocent during the investigation but were got discharged too. The motive set up against Muhammad Sadiq and the part assigned to both of them has rightly been disbelieved. The prayer for setting aside their acquittal, therefore, possesses absolutely no weight.

11. Learned counsel for the complainant has also not been able to give any valid reason for setting aside the acquittal of the appellant under section 302, P.P.C. Learned trial Judge had not believed motive for the occurrence nor did he believe the stance of the appellant having approached and pressed for voting for a candidate of their choice. In fact it is on record that the candidate who was choice of the appellant, had succeeded while the candidate whom the complainant party was supporting, had lost the security. In that view of the matter the appellant could have no grudge against the complainants. It is also on record that there were many other candidates also. In the circumstances, there appears to be no force in the revision petition. The same is dismissed.

12. The question that remains to be examined is whether the appellant has rightly been convicted under section 304, Part I, P.P.C. or not. There is hardly any material to hold that he had not inflicted the injury. The injury was on a vital part. It had done extensive damage too. The conviction of the appellant, therefore, recorded under section 304, Part I, P.P.C. cannot be addressed to be illegal by any means. The observations made by learned trial Judge before coming to the conclusion of holding him guilty under section 304, Part I, P.P.C. that the deceased and the appellant seemed to have quarreled over the matter of return of rice, given to Imam Masjid which was collected for Giarhvin Sharif, also finds some support from the evidence on record. His conviction under section 304, Part I, P.P.C. in the circumstances, does not call for any interference. However, I find weight in the argument of learned counsel for the appellant that since the occurrence had resulted without any premeditation and the appellant had not attempted, even to repeat the blow after causing one injury, the sentence of imprisonment for life awarded to him and the fine of Rs.20,000 is an excessive punishment. The sentence of imprisonment for life awarded to him is, therefore, altered to imprisonment for 10 years' R.I. while the sentence of fine of Rs.20,000 is reduced to Rs.10,000, in default whereof he will suffer further R.I. for two years. Whole of the fine, on recovery shall be paid as compensation to the heirs of the deceased. The appeal stands dismissed with the above modification in sentence. The appellant shall also be given benefit of the provisions section 382-B of the Code of Criminal Procedure. H.B.T./A-601/L. Order accordingly.