1989 PLP 1684 (MLD)

During the trial accused Sher Mohammad s/o Mohd. Sadiq died and, therefore, the judgment was given against the present appellants and co‑accused Sadiq. The learned trial Judge while taking into consideration the evidence produced by the prosecution convicted the present appellants as described above while co‑accused Sadiq was acquitted. I have heard Mr. Mohammad Hayat Junejo, learned counsel appearing for the appellants, Mr. S. Murtaza Hussain, learned counsel appearing for. the State, and have gone through the R & P of the case. It was contended by Mr. Mohammad Hayat Junejo, learned counsel appearing for the appellants that as far as appellant Ghulam Hussain was concerned the only allegation against him was that of instigation and there was no independent corroboration available to prove his participation that it appears to be a case of sudden fight on which accused Yakoob had also sustained injury and, therefore, each accused will be responsible for his individual act. That appellant Dando alias; Bilawal is alleged to have caused grievous injury to complainant with blunt side of the hatched and, therefore, he was at the most liable under section 325 PPC. He has further contended that complainant Ramzan had died before he could be examined in the Session Courts, and his lower Court deposition which was brought on record was inadmissible in evidence was led by prosecution to prove his death. In support on his contention, he has relied upon A.I.R. 1946 P.C. page 1 and P.L.D. 1958 S.C. page

392. He has further contended that as far as appellant Yakoob was concerned he will be at the most liable under section 304 Part II PPC as there was no intention to kill. Mr. .S. Murtaza Hussain, learned counsel appearing for the State has contended that the occular evidence was reliable and the learned trial judge had rightly convicted the appellants. However, he conceded that it was a case of sudden fight and, therefore, each accused will be responsible for his own act. " I have considered the contentions of the learned counsel. Dr: Mohammad Siddique, P.W.11 has deposed that on 14‑5‑1972 he was Medical Officer in Medico Legal Section LMCH Hyderabad, on that day he conducted post‑mortem on the body of deceased Khan Mohammad son of Feroze. He found the following external injuries on his person:‑ Incised wound 2" x 1/2" x bone deep op the left Parietal region on its middle. The injury was anti‑mortem and appeared to hate been caused by a sharp cutting weapon such as hatchet: On external examination he found the following damage: --‑ Haemotoma 2" x 1" was present under the scalp. There was fracture of the left parietal bone 4‑1/2 in length. The clotted blood was present, under the duramater. The stomach contained semi‑digested food. Rest of the organs were normal. From external and internal examination, he was of the opinion that the cause of death was shock and intracranial heamorrhage and the injury to brain substance as a result of fracture of left parietal bone due to external injury No.1. This injury was sufficient to cause death in ordinary course of nature. The probable time between injury and death was about 1/2 an hour, and the probable time between the death and post‑mortem was about 5 to 6 hours. He produced the post‑mortem report as Ex.

43. He has further deposed that on 15‑5‑1972, he had received injured Mohammad Ramzan son of Jan Mohammad from the same police station for examination, treatment, and certificate. He found the following injury on his person:

‑ Swelling of left forearm at its middle and lower part about 2‑1/2" x 1" (with suspected fracture of the bone. The nature of injury was kept under observation. This injury appeared to have been caused by some hard substance and probable duration of injury was abort 29 hours. He has produced medical certificate as Ex.

44. According to him he had issued final certificate in respect of the said injury a: grievous as there was fracture of bone. The final certificate has been produced. From the above medical evidence, the death of deceased Khan Mohammad stands proved. Medical evidence is further supported by eye?witnesses Mohammad Ismail, Misri and Jan Mohammad. Even the, learned counsel appearing for the appellants has not disputed this fact. As far as the incident was concerned, complainant Mohammad Ramzan has supported the contents of his F I R. in the lower Court and his deposition was brought on record as Ex.

17. The prosecution story is further supported by eye?witness Mohammad Ismail P.W. 2, Misri P.W. 3, Jan Mohammad P.W. 4, their evidence has not been seriously challenged by Mr. Mohammad Hayat Junejo, learned counsel appearing for the appellants. However, so far as the evidence of complainant Ramzan was concerned the process server was not examined in order to prove the death of complainant Mohammad Ramzan and, therefore, his lower Court deposition was clearly, inadmissible in evidence. In the case of Chainchal Singh v. Emperor A.I.R. 1946 P.C. page 1, it was observed by their Lordships that:‑ "Where it is desired to have resource to section 33 of Evidence Act on the, ground that a witness is incapable of giving evidence that fact must be proved and proved strictly." In the case of Ali Haider vs. The State P.L.D. 1958 S.C. (Pak) page 392, the trial Judge had brought on record the lower Court deposition of certain witnesses on the application moved by the Public Prosecutor in order to avoid unnecessary expenses to the State. Their Lordships of the Supreme Court were pleased to observe that :‑ "We are constrained to observe that there was a flagrant disregard of the provisions of section 33 of Evidence Act in transferring the evidence of the three witnesses to the Sessions record without laying the foundation for that purpose by adducing strict proof that the witnesses were incapable of giving evidence or that their presence could not be secured without an amount of delay or expense which under the circumstances of the case, the Court could justifiably regard as unreasonable." In view of the above fact that the process server was not examined and the deposition of complainant Mohammad Ramzan was brought on record on the application of the teamed counsel appearing for the State without having resort to the provisions of section 33 of the Evidence Act 1 am of the view that the lower Court deposition of Mohammad Ramzan is inadmissible in evidence. However, the evidence of other witnesses namely Muhammad Ismail, Misri and Jan Mohammad appears to be straight‑forward, natural and reliable. It is further corroborated by medical evidence and injury on the person of Yakoob. Even the learned counsel for the appellants has not seriously challenged the same, and therefore, I am of the considered view that the prosecution has proved its case beyond reasonable doubt against the appellants Yakoob and Dando alias Bilawal. As far as appellant Ghulam Hussain was concerned, the only allegation against him was that of instigation, he is said to have been armed with hatchet but there was no allegation that he caused any injury to the deceased or any other witnesses. As far as allegation of instigation was concerned; according to F.I.R. he had instigated his companions not to spare complainant party. There is nothing in the words used that he instigated the co‑accused to kill deceased Khan Mohammad. Even Khan Mohammad was not present at the time when the incident started. Under these circumstances and the fact that the words used by Ghulam Hussain do not indicate to kill Khan Mohammad, he could not be made responsible for the death of Khan Mohammad, therefore, I allow his appeal, set aside his conviction and sentences, and he is acquitted of the charge. He shall be released forth with if not required in any other case. As far as Dando alias Bilalwal was concerned, he is said to have caused greivous injury to the complainant Ramzan with blunt side of the hatchet and, therefore, he will be liable under section 325 PPC. He has remained in custody for some time as under‑trial prisoner, and for nearly five months after his conviction. Therefore, his conviction is altered from section 326 PPC to section 325 PPC, and his substantive sentence is reduced to one already under gone. The sentence of fine is also reduced from Rs. 3,000 to Rs. 1,000 (One thousand). In default he shall suffer R.I. for three months. As far as appellant Yakoob was concerned, he is alleged to have caused? one hatchet injury to deceased Khan Mohammad. As observed in the earlier part of this judgment the deceased was not available at the wardat when the fight Started. He came on cries of the complainant and intervened to save the, complainant party when he received the injury. Looking to the nature of injury and opinion of the Medical Officer the appellant can be burdened with the knowledge that the injury was likely to cause death in the ordinary course of nature but there is no evidence to show that he had intention to kill Khan Mohammad. In the case of Emmanuel Bahadur Joseph vs. Paul Jackson and another, 1981 S.C.M.R. page 663: it was observed by their Lordships of the Supreme Court that:‑ "Section 302 will apply only if it is beyond doubt established that accused struck the blow with intent to kill deceased. If in the circumstances it is more proper to impute to accused knowledge rather than intention, the offence would fall under section 304 Part II, than under section 302 or section 304 Part I PPC:" In view of the above factual as well as legal position, the conviction of appellant Yakoob is altered from section 302 PPC to section 304 Part II PPC and sentence is reduced for imprisonment for life to five years, the sentence of fine of Rs. 8,000 (Eight Thousand) is maintained, in default of payment of fine he shall suffer further R.I. for six months. Appellant Yakoob shall be given benefit of section 382‑B Cr.P.C. The fine if recovered from the appellant Yakoob, the same shall be paid to the heirs of deceased Khan Mohammad, while the fine if recovered from appellant Dando alias Bilawal the same shall be paid to the heirs of Ramzan. M.Z.S./Y‑34/K. ????????? Order accordingly.