1981 PLP 132 (PCRLJ)

GHAUS ALI SHAH, J.-This appeal under section 410, Cr. P. C. is preferred from the jail against the judgment dated 30-I-1978 of the learned Sessions Judge, Sanghar, whereby he acquitted co-accused Rafiuddin, Zafaruddin and Mahmood and convicted the appellant Shamsuddin under section 302, P. P. C. and sentenced him to imprisonment for life.

2. The brief facts of the case are mentioned in the F. I. R. lodged by one Muhammad Siddique on 18-10-1972, at Police Station Tando Adam of District Sanghar, which reads as under:- "I and injured Usman are real brothers Inter se. We both brothers have got weaving factory. Our third brother Hafiz Abdul Rahim is Pesh-Imam of the mosque Every year in month of Ramzan, he leads "Taraveeh" prayers in Mubarak mosque in Kundanpur Mohalla and occasionally, he also leads prayers. Moulvi Abdul Waheed is permanent pesh imam of the Mubarak mosque. From the start of this "Ramzan" Shareef, my brother Abdul Rahim leads "Taraveeh" prayers and I lead "Taraveeh" prayers in mosque of Allahyar village. Last night, after offering the "Taraveeh" prayers, I came to hotel of Ismail and accused namely Shamsuddin, Rafiuddin Mahmood and Zafaruddin were already sitting there They told me that my brother Hafiz Abdul Rahim had taken over control of Mubarak mosque. I told them that my brother Abdul Rahim only leads "Taraveeh" prayers whereas Moulvi Abdul Waheed is the pesh imam whereupon all the four accused abused me and gave me fists and kicks. In the meantime, Qasim Ali and Karimuddin intervened and rescue, me and I went away. To night after finishing prayers in village Allahyar, I came to hotel old Ismail to take tea where my brother Usman also came there. We both brothers placed order for tea. In the meantime, Moulvi Abdul Waheed also came there. The above said accused were sitting in the hotel and also other people were sitting. I told Moulvi Abdul Waheed that on the last night on his account, I had been abused and was fought with. We were talking to each other. Immediately accused namely Shamsuddin, Rafiuddin, Mah mood and Zufaruddin who were armed with knives and from amongst them Shamsuddin have a knife blow to my brother Usman on his left flank whereas accused Rafiuddin, Mahmood and Zafaruddin attacked me with knives but I ran away and saved my life. On account of receiving knife blows, my brother fell down. The above incident was witnessed by moulvi Abdul Waheed, Naseebuddin and Qasim Ali hence I have come to the police station and lodged complaint that the above accused have fought with its at the instance of Munshi Rahimuddin. Justice be done."

3. The F. I. R. Exh. 19 was recorded by Shamim-Rehman, Additional S.H.O. who was incharge of Police Station Tando Adam. The injured Usman was also brought at the Police Station and he immediately referred to him to hospital as his condition was serious. He then went to the hospital and prepared mashirnama of injuries Exh. 49 in presence of mashirs Imamud-din and Din Muhammad. He had a knife injury on his person but was still in senses and he therefore recorded his statement Exh.

50. This statement has been signed by the injured. The Medical officer has also certified the injured to be in senses and in a position ;o make such statement but he then gave hint a letter that the condition of the injured was such that his dying declaration be got recorded. The S.H.O. then wrote such a letter to the Resident Magistrate, Tando Adam to record the dying declaration of the injured in the hospital, who recorded it accordingly. The Additional S.H.O. then proceeded to scene of offence and inspected it in presence of mashirs Naseeb Khan and Mushtaq. It was shown to hire by P.Ws. Karimuddin and was situated in front of the hotel of Ismail. He secured pieces of cement which were stained with blood under mashirnama Exh.

13. He thereafter recorded statements of P.Ws. Karimuddin. Nasibuddin, Qasim Ali and Hafiz Abdul Rahim. He then arrested the appellant Shamsuddin, Rafiuddin and Zafaruddin and prepared such mashirnama Exh.

41. The appellant Shamsuddin volunteered to produce the blood-stained knife and led the police and mashirs to his house where from he produced a knife which was stained with blood. He secured it sealed the same and prepared such mashirnama Exh. 41-A. The acquitted accused Zafaruddin and Rafiuddin also voluntarily produced a knife each from their respective houses and he prepared such mashirnama Exhs. 42 and 43 respectively. Both the knives were not stained with blood. He then arrested the acquitted accused Mahmood and prepared such mashirnama Exh. 44 in presence of mashirs Gul Zaman and Ali Muhammad. This accused also voluntarily produced a knife front his house in presence of same mashirs under mashirnama Exh. 45, which was also not stained with human blood. It was on 25-10-1972, when he was informed by the H. C. Sardar Ali of Market Police Station that the injured had expired in the L. M. C., Jatrishoro. He then changed the section from 307, P. P.C. to 302, P. P. C. and issued such special report. He again arrested the accused in presence of same mashirs and prepared such mashirnama Exh.

51. He then got statements of P. Ws. Karimuddin, Nasibuddin, Qasim Ali, Muhammad Ismail and Abdul Waheed recorded tinder section 164, Cr. P. C., and then challaned all the four accused in the Court on 4-11-1972. The blood-stained pieces of, cement were sent to the chemical analyser whose report has been produced as Exh.

52. The appellant Shamsuddin also filed the counter report on the same day at the same Police Station which was accordingly, recorded and has been produced on record as Exh. 53.

5. The prosecution case is mainly based on the ocular testimony, evidence of motive, dying declaration, medical evidence and the recovery of blood-stained knife.

6. The appellant has admitted to have given a 'danda' blow to the deceased when the deceased along with the complainant Siddique, Sharafuddin and Haji Abdul Salam entered his house. Haji Abdul Salam, out of them was armed with a gun and others with 'dandas'. They at the instigation of Abdul Salam started beating him. The complainant Siddique and the deceased Usman gave 'danda' blows to him. He was hit above his hands and arms. His wife Mst. Basheeran intervened but she too was given 'danda' blows by the deceased Usman. It was after this when the appellant picked up a 'danda' with a fixed nail on its head and hit Usman on his abdomen. The people from outside came An the house on commotion and averted fight. The assailants thereafter went to the hotel of Ismail whereas the appellant went to police station and lodged his F. I. R. The Police sent him as well as his wife to the Medical Officer for examination, treatment and certificate. His case is that on the night preceding the incident there was an altercation between him and Rafiuddin on one hand and Sharafuddin, Usman (deceased) Siddique (complainant), Abdul Rahim and Hafiz Wahab on the other on account of Hafiz Abdul Rahim leading "Taraveeh" prayers in place of Hafiz Abdul Waheed. The altercation followed a fight outside mosque and there was even exchange of blows but people intervened and separated them. He has examined his wife Mst. Basheeran D. W. 1 and Dr: Muhammad Ismail Soomru, Medical Officer, Health Centre Nasibpur, D. W. 2 in his defence. Mst. Basheeran has supported the appellant to the extent that the appellant on return from Mubarik mosque, after prayers, was followed by Siddique (complainant) Usman (deceased), Sharafuddin and Abdul Salam, who was armed with a gun and others had lathis. Haji Abdul Salam told the appellant as to why he had abused him last night and asked his three companions to beat him. The complainant Siddique and Usman (deceased) on this gave lathi blows to him. She intervened to rescue her husband whereupon Usman (deceased) gave lathi blows on her back and her arm. She was not able to work for about two months as a result of injuries. She has also stated that the deceased Usman had also given blows to the appellant Shamsuddin who picked up a lathi with a nail at its' top and gave blow to him on his abdomen, The lathi in question wits an instrument of weaving. Such report was lodged by the appellant and the police had referred her to the Medical Officer for treatment, examination and certificate. The police had also inspected the scene of offence and examined her injuries.

7. Dr. Muhammad Ismail Soomro D.W.2 has also supported the appellant to the extent that Mst. Basheeran wife of the appellant and the appellant himself were referred to him by Tando Adam Police for examination, treatment and certificate. He found the following injuries on their persons "Mst. Basheeran.-(1) Swelling 1' x ' on the right wrist joint. (2) Contusion 1' x " on her right arm. The above injuries were simple in nature and appeared to have been caused by hard blunt substance such as a piece of lathi. The probable duration of injuries was about 18 to 24 hours. 1 had examined her at 12-30 p.m. I issued such Medical Certificate which I produce as Exh. 79, it bears my signature. Shamsuddin. (1) Abrasion 1' x ' on the right knee joint anteriorily. (2) Abrasion ' x ' on the right knee joint. The above injuries were simple in nature, appeared to have been caused by hard blunt substance such as lathi or by fall on the ground and were about 24 hours in duration at the time of examination. I have not mentioned the time of examination of the injured in the certificate and therefore I do not remember at what time I had examined him. I produce medical certificate Exh.

80. It bears my signature. I Produce the letters sent to me by police referring the 2 injured separately Exh. 81 and 82."

8. There is no doubt that the deceased Muhammad Usman died as a result of injury received by him on the day and place of incident as stated in the F. I. R. Dr. Muhammad Siddique, who performed the autopsy has been examined. He has stated that cause of death appeared to be of injury to pleura and collapse of the left lung and the injury to the spleen causing peritonitis shocks and acute abdomen as a result of external injury, which appeared to have been caused by sonic sharp cutting weapon. This injury was sufficient in ordinary course of nature to cause death.

9. Dr. Muhammad Ismail who was Medical Officer, Tando Adam has also been examined and he ha, stated that the injured Usman was sent to him by Tando Adam police for examination, treatment and certificate. He examined him and found the following injuries on his person:- "(1) An incised wound horizontal 2' x 1' x cavity deep, at the level 9th, 10th rib left side of chest. The patient was referred to after taking the dying declaration to L.M.C.H. fur expert treatment. I produce certificate Exh. 10-A. It is same, correct and bears my signature. The injury appeared to have been with sharp cutting weapon like a knife car a dagger. I kept my opinion reserved due to report from L. M. C. H. till report of external change is received. The police officer examined the injured in my presence and I attested and injured also signed it. I produce it Exh. 10-B. It also bears my signature. I also wrote a letter to the S. H. O. Tando' Adam to get the dying declaration of injured recorded through Magistrate. I produce letter Exh. 10-C. It bears my signature. I had endorsed on the dying declaration recorded by Magistrate of injured Muhammad Usman that he was able to give statement. I produce dying declaration Exh. 10-D bearing my endorsement."

10. The question therefore for determination is whether the offence was committed by the appellant or some body else? In this regard prosecution led ocular testimony, evidence of motive, medical evidence and recoveries.

11. The complainant Muhammad Siddique P. W.4, Moulvi Abdul Waheed P. W. 5, Muhammad Ismail P. W. 6 and Karimuddin P. W. 7 arc eye-witnesses who have alt stated before the trial Court that it was the appellant who inflicted an injury to the deceased which proved fatal anal the deceased died as a result of it after about a week. As far as inflicting injury to the deceased is concerned, apart from there being ocular testimony, the appellant himself in his statement under section 342, Cr. P. C. has admitted to have inflicted injury to the deceased. The only difference is that his version is different from what has been stated by the eye witnesses. He has shown different circumstances under which he has inflicted an injury to the deceased. According to him, the complainant, the deceased and the eye-witnesses Hafiz Abdul Waheed and others entered his house and inflicted injuries on him as well as on his wife Mst. Basheeran. It was under those circumstances that he inflicted an injury to the deceased. He has however denied to have inflicted injuries with knife. According to him a lathi with a nail in it's top which is an instrument of weaving was used for inflicting him an injury on his person.

12. The motive even according to prosecution was an alter cation between the parties on the previous day, on difference of opinion about leading of "Taraveh" prayers. It has also been admitted that there was altercation but it actually turned into a fight in which apart from exchange of abuses, there was exchange of blows too. As far as dying declarations are concerned, the trial Court has rightly disregarded both of them due to material contradictions in the text of two dying declarations as well as the circumstances under which they have been recorded. The trial Court has also given finding that signatures on both the, dying declarations were quite different from each other. The appreciation as well as finding of the trial Court are well-founded and we do not find any thing to disturb it's findings. Regarding recovery of knife, from the appellant the Additional S. H. O. who recovered the knife from the appellant stated before the trial Court that the appellant led the police and mashies and produced the knife from his house whereas Ali Muhammad mashie P. W. 8 stated before the trial Court that he was called at the Police Station to act as mashie where the appellant produced the blood-stained knife. The recovery of knife as also been denied by the accused/appellant.

13. Mr. R. A. Qureshi, the learned counsel for the State has contended that facts and circumstances lead to only one conclusion that it was the appellant who inflicted the injury to the deceased which proved fatal and resulted in death of the deceased. He has also contended that there was no intention of causing death of the deceased particularly when there was only one injury on person of the deceased. He has also contended that injuries on person of the appellant as well as his wife Mst. Basheeran have not been properly explained. Therefore possibility of the deceased, complainant and others entering house of the appellant and causing injuries to him as well as to his wife there cannot be altogether ruled out. The F. I. R. lodged by the appellant as counter version of the incident and the reference of Police to the Medical Officer for examination, treatment and certificate of the appellant and his wife are circumstances which are bound to create an impression that the appellant has been provoked when he has inflicted injury on person of the deceased. Dr. Muhammad Ismail D. W. 2 has also supported his case regarding injuries on his person as well as on the person of his wife Mst. Basheeran. The learned counsel for the State is therefore not supporting the conviction under section 302, P. P. C. as it was not proper in view of the fact that there was only one injury under the circumstances when it could be safely said that it was not a premeditated fight. He has therefore stated that conviction be altered from under section 302, P. P. C. to one an under section 304(i), P. P. C.

14. We have heard the appellant in person and have also considered the contentions of the learned counsel for the State. There is convincing evidence on the record provided by the eye-witnesses as discussed above coupled with admission of the appellant that it was he who inflicted the fatal injury to the deceased. We have also considered the circumstances of the altercation between the parties on the previous day and this incident which has admittedly occurred as a result of heart-burning of this previous day but under no circumstances with premeditation. The injuries on person of the appellant as well as his wife, supported by the medico evidence certainly create a reasonable doubt in our mind that the injury inflicted on the deceased by the appellant under the circumstances was without any intention to cause death of the deceased. The F. I. R. Exh. 33 was lodged by the appellant giving his version of the incident. After considering both versions of the parties we are of the view that the appellant is not guilty of offence under section 302, P. P. C. He is found guilty of offence under section 304(I), P. P. C. and we therefore alter his conviction from one under section 302, P. P. C. to 304(1), P. P. C. and reduce his sentence to seven years' R. I. He has remained in custody from 19-10-1972 till 30-1-1978 when his trial was concluded. It's period of 5 years and 3 months spent by him in jail as undertrial prisoner, a period of 4 years and six months out of it shall be treated as the period of imprisonment having suffered by him and this shall be deducted from the imprisonment of 7 years awarded to him. We had announced the above order after hearing the appellant in person as well as the learned counsel for the State. These are the-reasons for such order of alteration of conviction and modification of sentence of the appellant passed by us. Sentence reduced.