1992 PLP 2482 (MLD)

On opening the skull, the wound was found passing through right parietal bone through membrane. Subdural haematoma was present around the wound. A large haematoma amount was found at the base of the skull. Death was opined to have occurred due to the only injury on the head resulting from sharp‑pointed object. Probable time between the injury and the death was opined to be between 8 and 18 hours while the time between death and post mortem was opined to be 12 to 24 hours. During cross‑examination, he stated that the deceased had not been brought to him in the hospital for treatment on 16‑7‑1988.

6. Ocular account was deposed to by Abdul Rahman (P.W.8) and Sher Muhammad (P.W.9). Abdul Rahman while repeating the facts given by him in the F.I.R. stated during cross‑examination that Mst. Taj Bibi was mother of the deceased while Mehr Din was her father‑in‑law. He denied the suggestion that Mst. Taj Bibi and Noor Ahmad alongwith Niaz and Mehr Din had taken the deceased in an injured condition to the hospital on 16‑7‑1988 in his absence. The suggestion that Mst. Taj Bibi had told Dr. Abdul Sattar Gill that the deceased had been killed as a result of accident and so no proceedings were to be lodged against any body was also denied by him. According to him, the shops of the deceased and the appellant were open at the time of occurrence. He denied the suggestion that Jamil owner of the shop, in possession of the deceased, was present at the time of occurrence. According to him, village Abadi was at a distance of 20 Karams from the place of occurrence. He stated that he had reached Faisalabad Hospital alongwith the deceased in injured state at 7‑45 p.m. According to him, the doctor without seeing the injured had advised him to take him to Lahore. He admitted that mother of the deceased was alive and she had brothers also, none of whom was a P.W. in this case. However, he stated that brothers of Yusuf are of tender age. In answer to another question, he stated that Muhammad Yunas, younger brother of the deceased, was fourteen years of age and was a student of third class. He also admitted that Taj Bibi had five brothers but denied the suggestion that they were living in the same village where the occurrence took place. While denying that any machine was installed in the shop of Jamil he also denied the suggestion that Sarya fixed in the machine had struck on head of the deceased accidentally, resulting in his death. He denied‑the suggestion that he had not witnessed the occurrence. The complainant claimed to be the uncle of the deceased.

7. Sher Muhammad (P.W.9) while corroborating the statement made by P.W.8 about the actual occurrence explained that he had met Haji Barkat Ali, who was having a motor‑cycle, at Bus Adda while going to Sammundri and had stopped with him at the shop of Yusuf as Haji Barkat Ali had promised to give him a lift to Sammundri. While stating that he had left the spot before the injured was removed to hospital he declared that the mother of the deceased was not seen by him at the spot. The suggestion that Sarya had accidentally struck on the head of the deceased was denied by him. He also denied the suggestion that he had not witnessed the occurrence and had made statement as the complainants were his Mueens.

8. Nek Muhammad who had witnessed the collection of blood‑stained earth and recovery of screw‑driver P.1 at the instance of the appellant from his shop appeared as P.W.3 and deposed those facts. During cross‑examination, he stated that he had no shop at the Adda and had, joined the recovery proceedings of the screw‑driver on being summoned by the police from his shop. While admitting that the deceased belonged to his village he denied the suggestion that he had made a false statement on that account.

9. Muhammad Fazil S.I. who had registered the case and submitted challan to Court after arrest of the appellant, recovery of screw‑driver from him and completion of investigation, appeared as P.W.10 and deposed those facts. During cross‑examination, he refuted the suggestion that it had come to his notice that the injured had suffered injury on the head accidentally by a Warma used in the machine for making holes. He stated that he had neither joined the mother of the deceased nor her brothers during investigation. While denying the suggestion that he had planted the screw‑driver falsely he also refuted the suggestion that he had challaned the appellant falsely. The, statements of the remaining prosecution witnesses are more or less of a formal nature. Positive reports Exhs.PJ. and P.K. from the offices of the Chemical Examiner and Serologist were also tendered in evidence.

10. The appellant during his statement under section 342, Cr.P.C. while denying the prosecution case stated as follows in answer to the question, 'Why the P.Ws. have deposed against you in this case and why this case had been instituted against you'? "Sher Muhammad P.W. has grudge against me because my elder' brother namely Amir was betrothed to the daughter of Sher Muhammad P.W. Subsequently that betrothal was rescinded by my brother. Sher Muhammad P.W. thereafter had beaten Amir Muhammad, my brother. Due' to that grudge I have been falsely involved in this case and the prosecution witnesses are inimical towards me." He denied to make statement under section 340(2); Cr.P.C. and examined in defence three witnesses.

11. Dr. Abdul Sattar, Senior Medical Officer, D.H.Q. Hospital, Faisalabad appeared as D.W.1. He. stated that the deceased had been brought to the hospital in injured condition on 16‑7‑1988 at 7‑55 p.m. and he had admitted him for treatment at Serial No.10628. According to him, he was accompanied by Taj Bibi his mother, and Mehr Din maternal‑uncle. He stated that they had told him that the incident had occurred by chance and they would not lodge any criminal proceedings. He claimed to have obtained thumb‑impressions of Mst. Taj Bibi and the others accompanying the deceased against entry N6.10628 Exh.D.B. copy of the Register of the patients attended on 16‑7‑1988 including the entry of Muhammad Yusuf deceased at Serial No.10628 at 7‑55 p.m. was produced in defence. Below the entry of Muhammad Yusuf are the thumb‑impressions of Mehr Din (maternal‑uncle), Noor Ahmad (friend), Niaz Ahmad (friend), Taj Bibi (mother). He admitted that neither he had signed as against any of the entries nor his dispenser had done that.

12. Barkat Ali who was named as prosecution witness and was given up as won over was examined as D.W.2. He stated that while passing from the Bus Stop Manglanwala he had seen the deceased lying in injured condition in a car. He stated that the persons present had told him that Yusuf had been hit accidentally by a drill. According to him, he informed the mother and maternal‑uncle of the deceased who belonged to his village. He stated that the mother and maternal‑uncle of the deceased had taken him to the hospital but he died while being brought back to the village. He denied the suggestion that the deceased had been murdered by the appellant and he had witnessed the occurrence alongwith complainant and Sher Muhammad P.W.

13. Muhammad Afzal Farooqi who was working as a dispenser in the Emergency Ward of D.H.Q. Hospital, Faisalabad, appeared as D.W.3 and corroborated the statement made by Dr. Abdul Sattar D.W.1.

14. The appeal has been filed through jail, as such, nobody represents the appellant. The appeal is, therefore, being decided with the assistance of the learned counsel appearing for the State.

15. The complainant had no enmity with the appellant. He was not real uncle of the deceased. As such, he could have no motive to lodge a false report. Sher Muhammad P.W., also was not inimical to the appellant in any manner. The stance of the appellant during his statement under .section 342, Cr.P.C. that Sher Muhammad was annoyed with him as his brother had broken his engagement with his (Sher Muhammad) daughter appears to be absolutely an afterthought as no such suggestion was put to Sher Muhammad when he had made statement. Moreover, if Sher Muhammad was to make a false allegation on that account he could have easily chosen the brother of the appellant for that. The statements made by both the eye‑witnesses find corroboration from the recovery of screw‑driver from the shop of the appellant which was later found stained with human blood. The witness from the public who deposed about that was neither related to the deceased nor inimical to the appellant.

16. The version put to the P.Ws. during cross‑examination that the deceased had suffered injury on the head while working at the machine installed in the shop of Muhammad Jamil at the Adda from the Warma of the machine is certainly not commensurate with the form and nature of the injury found on the head of the deceased. If the deceased had been caught in the grip of a working machine he would have certainly suffered injuries of a different nature. Had he been struck on the head by the Warma (screw) of the working machine probably he could not have escaped alive as there is no evidence that any body had come to his rescue and stopped the machine to rescue him. However, the statement of Dr. Abdul Sattar P.W. that the ‑mother and other persons accompanying the deceased told him that the incident had occurred by chance and they do not want to lodge a report cannot be thrown away altogether. Dr. Abdul Sattar did not state that he was told that the deceased had suffered injury on being caught in a machine. It appears that the witnesses wanted to convey that the injury was suffered in a chance encounter. They do not appear to have intended to convey the meaning that the injury was suffered by accident. The word `accident' used in the statement of the defence witnesses seems to have been wrongly translated for Ittefaqia. The exact meaning of which should have been taken `by chance'. What can be inferred from the situation is that the two boys i.e. the appellant and the deceased, having developed difference, quarrelled on the day of occurrence and the appellant during that quarrel picked up screw‑driver (which of course, could have been easily available to him) and inflicted a blow with that on the head of the deceased which later proved fatal. The conduct and attitude of the mother of the deceased, her brothers and brothers of the deceased, including the other relatives in not pursuing the case against the appellant either by appearing as P.Ws. or joining the investigation, to help prosecute the appellant seems to be due to the occurrence having taken place suddenly and by chance. It is worth noticing that none of the D.Ws. stated that Mst. Taj Bibi had declared that the complainant and Sher Muhammad had not witnessed the infliction of the injury to the deceased. In that view of the matter, the claim of the eye‑witnesses i.e. P.W.8 and P.W.9 of having witnessed the infliction of injury by the appellant to the deceased is not required to be thrown out. Having carefully and anxiously applied my mind, I am convinced that the deceased had died in a sudden occurrence as a result of the injury caused to him by the appellant without premeditation to commit murder. The conviction and sentence of the appellant under section 302, P.P.C. is, therefore, set aside. He is instead convicted under section 304(1), P.P.C. and sentenced to undergo R.I. for ten years plus to pay a fine of Rs.5,000 in default whereof to undergo R.I. for one year. Whole of the fine, on recovery, shall be paid as compensation to the heirs of the deceased. The appellant shall also be given the benefit of the provisions of section 382‑B, Cr.P.C. N.H.Q./M‑585/L Order accordingly.