1995 PLP 677 (MLD)

(5) Complaint of pain in right thumb.

6. According to him injuries Nos.2, 3 and 5 were simple in nature. Injuries Nos.l and 4 were kept under observation. All injuries were caused with blunt weapon and the time between the injuries and the medico‑legal examination was two hours. On 15‑12‑1991 as per the X‑ray report injury No.l was declared to be grievous which was a fracture of left parietal bone. On the same day i.e. 15‑12‑1991 at 8‑15 a.m. he conducted the post‑mortem examination of the dead body of Qasim deceased. According to him injury No.l was sufficient to cause the death in the ordinary course of nature.

7. The ocular account of the prosecution case was furnished by F.W.4 Hafiz Elahi Bakhsh and P.W.8 Abdul Hameed Muhammad Sadiq who was cited as an eye‑witness to the F.I.R. was not produced by the prosecution. He was, however, summoned by the trial Court as C.W.2. He supported the prosecution case to the extent of the involvement of Muhammad Siddiq appellant. He did not mention co‑accused Muhammad Amin to be present during the occurrence. Bashir Ahmad D.S.P. (Hqr.) Rahimyar Khan who partly investigated the case was also summoned as C.W.1. He stated that during his investigation Muhammad Amin accused was found innocent. In his statement during; the trial, P.W.4 Hafiz Elahi Bakhsh confirmed the contents of F.I.R. Exh.PE. In cross‑examination, he admitted that the deceased was real brother of his wife and that Abdul Hameed (P.W.8) is from his brotherhood. However, he added that the said Abdul Hameed is neither related to him nor to the deceased. He further admitted that Qasim deceased was a young and healthy man and Muhammad Siddiq appellant was a weak and old man and that if Muhammad Amin co-accused had not caught hold of the deceased it would have been difficult for Muhammad Siddiq appellant to injure Hafiz Qasim.

8. Abdul Hameed while appearing as P.W.8 corroborated the statement of Elahi Bakhsh (P.W.4) and stated that on the fateful day and time he was standing alongwith the complainant and Muhammad Sadiq when they heard the alarm. He reached the spot alongwith the complainant. They heard Hafiz Qasim deceased telling the appellant and the co‑accused Muhammad Amin that they indulged in the sale of Heroin and due to their act, the residents of Mohallah were very much concerned. Within his view Muhammad Amin accused caught hold of Hafiz Qasim whereafter Muhammad Siddiq appellant inflicted Danda blow on the head of Hafiz Qasim deceased. As Hafiz Qasim fell down, Amin accused gave 3/4 Danda blows on the face. According to the witness he alongwith P.W.4 and C.W.2 rescued Hafiz Qasim deceased from further attack. In cross‑examination, he admitted that the deceased was a healthy young man and if Amin co‑accused had not overpowered the deceased, it would not have been possible for Siddiq appellant to inflict injury to the deceased.

9. Muhammad Anwar (P.W. 10) and Nazir Ahmad Sohail, S.I. (P.W.12) are witnesses of recovery of Danda (P‑1). Bashir Ahmad who also signed the recovery memo. was, however, not produced. P.W.12 Nazir Ahmad Sohail S.I. verified his investigation and submitted that he correctly recorded the statements of the witnesses under section 161 of the Cr.P.C.; recovered Danda (Exh.Pl) and got prepared site plans Exh.PC and Exh.PC/1.

10. Nazar Abbas Inspector (P.W.13) appeared to state that he received Chemical Examiner's Report Exh.Pl.

11. The appellant and the co‑accused Muhammad Amin were examined under section 342, Cr.P.C. who denied the prosecution story and attributed false implication to political rivalry.

12. In support of his appeal the learned counsel for the appellant has made the following submissions:‑‑‑ (i) That both the eye‑witnesses are chance witnesses. Both of them are .not residents of Mohallah Safrani where the occurrence in question took place. (ii) That both the ‑eye‑witnesses are shopkeepers and they could not be even there during the business hours at 4‑30 p.m. (iii) That both the eye‑witnesses are related to Hafiz Ghulam Qasim deceased. P.W.4 Elahi Bakhsh is brother‑in‑law of the deceased whereas P.W.8 Abdul Hameed is from their brotherhood. (iv) That the conduct of the witnesses is unnatural and not plausible as none of them attempted to interfere in the fight; they were more in number and they could have easily overpowered the appellant. (v) That both the witnesses have admitted that Muhammad Siddiq appellant is an old man and that if Muhammad Amin accused had not caught hold of the deceased, he could not have inflicted the blow. (vi) That the F.I.R. was lodged after preliminary investigation. (vii) That no witnesses have been mentioned in the site plan and no blood stained earth was taken into possession from the spot. (viii) That C.W.2 Muhammad Sadiq completely exonerates Muhammad Amin accused. (ix) That the recovery of the blood‑stained Danda is doubtful as no sane person would retain a blood‑stained Danda for four days as evidence against him.

13. The learned counsel for the State has defended the judgment by submitting that the ocular account have been furnished by natural witnesses; the same have been corroborated by the medical evidence and the factum of recovery of blood‑stained Danda. He further submitted that it was a broad daylight occurrence; that the F.I.R. was lodged promptly and there was no question of mistaken identity or false implication as no enmity has been suggested or attributed to the complainant party.

14. I have heard the learned counsel for the appellant as also the learned State Counsel and have gone through the evidence on record.

15. The ocular evidence has been furnished by Hafiz Elahi Bakhsh (P.W.4) and Abdul Hameed (P.W.8) Muhammad Sadiq who was cited as an eye‑witness in the F.I.R. was not produced by the prosecution but he appeared as C.W.2. The evidence of all the eye‑witnesses in so far as the role attributed to Muhammad Siddiq appellant is concerned, is consistent on all material particulars. The evidence is to the effect that it was the appellant who opened the attack and gave the fatal blow on the head of the deceased in consequence of which he fell down. The doctor declared this injury to be a fracture of the parietal bone which according to him was sufficient in the ordinary course of nature to cause the death. Elahi Bakhsh (P.W.4) complainant is admittedly related to the deceased Hafiz Qasim but his evidence cannot be brushed aside as he had no motive to falsely implicate the appellant. His testimony is corroborated by the statement of Abdul Hameed (P.W.8) who has in fact close relation with the complainant and also Muhammad Sadiq (C.W.2) who too is not a relative of the complainant. Again the two eye‑witnesses who corroborated the complainant, are neither partisan nor any enmity has been attributed to them by the defence. The F.I.R. Exh.PE was lodged promptly and the accused were specifically named therein. In a case of broad daylight occurrence where F.I.R. was lodged with promptitude and in absence of any enmity the possibility of mistaken identity or substitution is a rare phenomena.

16. The contention of the learned counsel for the appellant that the eye witnesses should be disbelieved merely because P.W.4 complainant is a close relation of the deceased and the other two witnesses are from the brotherhood is not tenable in the facts and circumstances of this case. The ocular account is corroborated by the evidence of the recovery of Danda (P1) and the report of the Chemical Examiner (Exh.Pl) and that of the Serologist (Exh.PJ). Mere relationship of a witness would not make it an interested witness moreso when the witnesses had no reason to falsely implicate the appellant. I am fortified in my view by a judgment of this Court reported in 1984 PCr.LJ 1797.

17. After perusing the evidence in the case, the question now left for determination is as to what offence the appellant has committed in the circumstances of this case. The appellant used an ordinary Danda and he gave a single blow which was not repeated. The incident erupted suddenly as Hafiz Qasim deceased had reprimanded him for his alleged involvement in the narcotics sale. In such a situation, the appellant, it seems, could not keep his cool and flared up. These circumstances would go a long away to show that the appellant had no intention to kill the deceased. However, he can sufficiently be saddled with the knowledge that his act was likely to cause death. His conviction accordingly from section 302‑B, P.P.C. is altered to section 302‑C of the P.P.C. and his sentence is reduced to R.I. for seven years. The sentence of fine is also reduced to Rs.20,000 in default whereof he shall further undergo R.I. for a period of one year. He shall also be given the benefit of the provisions of section 382‑B, Cr.P.C.

18. For aforementioned reasons, the appeal is partly allowed in the abovementioned terms. N.H.Q./M-1920/L Order accordingly.