1976 P Cr (PLP)

Meraj Din son of Nathu, Muhammad Hussain alias Maria son of Nathu and Nathu son of Kala Gujjar have preferred this appeal against the judgment dated 5‑6‑74 delivered by the learned Additional Sessions Judge, Lahore, whereby Meraj Din was convicted under section 3049(I), P. P. C. and sentenced to life imprisonment and a fine of Rs. 300 or to undergo three months simple imprisonment in default of payment of fine, for causing the death of Muhammad Jamil with a churri and the rest of the appellants. Muhammad Hussain alias Mana and Nathu were convicted under section 323/34, P. P. C. for causing injuries to Muhammad Jamil by brick batting in the same transaction. They were sentenced to three months' R. I. each and a fine of Rs. 100 each. In default of payment of fine they were directed to undergo one month imprisonment each.

2. The facts of the prosecution case briefly are that Muhammad Iqbal was unloading bricks in the street in which his house under construction was situated. 'The appellant passed from there on a Rehra and gave a slap to Muhammad lqbal for having blocked the street. 'The appellant proceeded to his adda followed by Muhammad Iqbal. At the shop of the appellant Muhammad Jamil alongwith Ghulam Haider P. W. were present for purchasing milk. Muhammad Iqbal complained to the deceased against the appellant for having given him a slap. When the deceased enquired from the appellant why he had slapped Muhammad Iqbal, an altercation took place between the two. Nathu father of the appellant who was sitting at his adda instigated the appellant to stab Muhammad Jamil deceased and finish the matter whereupon the appellant stabbed the deceased below the left side of the chest with his churri. Nathu and Muhammad Hussain alias Mana are alleged to have thrown bricks at the deceased whereas Accha acquitted appellant fired his pistol at Muhammad lqbal P. W. Muhammad lqbal run to his house. The deceased fell down on receiving the chary injury and was removed to hospital in a rickshaw by Ghulam Haider P. W.

13. Mr. Muhammad Ansari A. S. I. of Police Station. Akbari Gate, Lahore on receiving the information rushed to the hospital but he could not record the statement of the deceased because he was not in a fit condition to make statement. He, however, recorded the statement Exh. P. E. of Muhammad Iqbal upon which the case was registered. The statement of Muhammad Jamil deceased, however, is alleged to have been recorded on 18‑8‑72 under section 161, Cr. P. C., Meraj Din appellant was arrested on the following day of the incident and a case under section 307, P. P. C., was registered. Blood stained churri P. 1 is alleged to have been recovered at the instance of the appellant. 'Ube deceased expired in the hospital on 25‑10‑72 after more than two months of the incident whereupon the offence was converted to sec tion 302, P, P. C. After that churri P. 1 is alleged to have been sent to the Serologist and human blood was found on it. All the four persons stated above were challaned under section 302, P. P. C. Achha was acquitted and the other two persons as described above were convicted under section 323/34, P. P. C. The deceased was operated upon also in the hospital. As many as seven injuries were found on his person. Four injuries were lacerated wounds, one injury i. e. injury No. 5 was an incised wound. Injury No. 6 was a bruise. Injury No. 5 was found to have been caused with a sharp‑edged weapon and was grievous. The remaining were declared to be simple. Muhammad Iqbal and. Ghulam Haider who were examined as the eye witnesses fully supported the prosecution case.

3. The appellants denied the charge and contended that the deceased was running a gambling house in Noor Gali upon which Meraj Din appellant had an altercation with Muhammad Iqbal P. W. who attacked him with a churri. Muhammad Jamil tried to intervene but received churri blow at the hands of Muhammad Iqbal P. W. No evidence in defence was produced by the appellants.

4. Learned counsel for the appellants has argued that not at the hands of the appellant but at the hands of Muhammad Iqbal P. W. the deceased was injured. Ho says that this is not believable that Muhammad Iqbal after being given a slap quietly followed the appellant to his adda and complained to the deceased. According to him the plausible story can be that Muhammad Iqbal P. W. after being given a slap brought churri from his house and went to the adda of the appellant where he attempted to give a blow to the appellant but since the deceased intervened so he was injured at the hands of Muhammad lqbal. Learned counsel has put forward quiet a different story which the appellant No. 1 did not state in his statement. Meraj Din appellant said that since the deceased was running a gambling house in Noor Gali, therefore, he (the appellant) had an altercation with him and Muhammad lqbal a close associate of the deceased attacked him with a chary but the deceased was injured when he intervened. If what the learned counsel for the appellants has said had been correct, the appellant No. 1 would have stated so instead of coming forward with a different story. Since the version given by appellant No. 1 is not plausible and believable even according to the opinion of the learned counsel for the appellants, therefore, he has put forward quite a different version. No suggestion was made to any witness that the deceased was running a gambling house in Noor Gali nor any evidence has been produced in defence to that effect. As in Noor Gali there was no person to whom Muhammad Iqbal could complain, therefore, this is believable that he followed the appellant to complain to come respectable person against his high bandedness. As the deceased was found at the adda of the appellant who may be known to Muhammad Iqbal, therefore, the latter complained to him. This is not believable that Muhammad Iqbal wanted to cause injury to the appellant and that the deceased received injury on account of his intervention. If any person wants to prevent a person from caused injury to another he either grapples him from behind or holds his arms in order to prevent him from using the weapon. No man can come in between the aggressor and the person to be attacked because he can realise that in this manner he would not succeed in saving the person attacked and rather may receive an injury. When an injury cannot be warded off in any other manner parents, particularly mothers usually come in to receive the injury upon themselves in order to save their children but the appellant not being closely related to the deceased this is not believable that the latter decided to receive the injury on his own person In order to save the appellant. I, therefore, come to the conclusion that there is no force in the argument of the learned counsel for the appellants.

5. However, there appears to be force in the argument of the learned counsel that the statement of the deceased recorded under section 161, Cr. P. C., is not a genuine document. The doctor gave opinion Exh. P. M./1 that Meraj Din was not in a fit condition to make statement. This opinion is dated 18‑7‑

72. The very occurrence took place much before 18‑7‑72 so obviously Exh. P. M./1 is not a genuine document. Moreover, the date of the statement initially appears to have been given as 10‑8‑

72. The date afterwards was changed to 18‑8‑

72. Another opinion of the doctor is P. 1 dated 10‑8‑72 which is also to the effect that Meraj Din was not in a fit condition to make statement. It appears that while preparing the statement and giving a date as 10‑8‑72 it was forgotten that on the record there was an opinion of the doctor carrying the same date to the effect that the deceased was not in a fit condition to make statement, therefore, afterwards the date was changed from 10 to

18. The doctors who gave opinions P. M. and P. E./1 were not produced so it cannot be said that in reality statement P. W. 16/A is a genuine document and that on the date on which it was recorded the deceased was in a fit condition to make a statement. If the doctor had been examined and had proved his certificates and had stated that the deceased was in a fit condition to make a statement, of course, it could be said that the statement P. W. 16/A might have been recorded. So whatever is written in P. W. 16/A is not helpful w the prosecution.

6. The evidence of the recovery of the churri also appears to have been concocted. Originally the date on the recovery memo was put as 11‑11‑72 and afterwards it appears to have been changed to 11‑8‑

72. It appears that in the beginning the churri was not recovered and when the deceased expired, the evidence of the recovery of the churri was fabricated on 11‑11‑

72. To avoid the objection as to why the churri was recovered after so much delay when the appellant had been arrested only on the following day and the occurrence, the date was tampered with to read as 11‑8‑1972 instead of 11‑11‑

72. So, the evidence of the recovery of the churri could not be used against appellant No. 1.

7. The other defect pointed out by the learned counsel for the appellants is that the doctor who performed the operation was riot produced. He further says that the doctor who performed the post‑mortem examination has not stated that the death was the result of the injuries sustained by the deceased during the occurrence and rather he was opined that he could not gay whether death was the result of the complications of the injuries or due to surgical wounds. There is force in this argument of the learned counsel. As by operation the injuries received by the deceased during the occurrence snare tampered with and as the doctor who performed the operation was not examined nor the operation note was brought on the record and proved, this is unknown what injuries the deceased received during the occurrence. No doubt, left pleura was found adherent and the left lung was airless and exuded forthy serum on cut suction but since the doctor has not said that this occurred due to any injury to the left lung the above‑mentioned phenomena cannot be said to be the result of any injury. The same may be said as regards the right pleura and right lung. Rather the right lung and the right pleura could not receive any injury as the location of the external injury is on the left side. No doubt, diaphragm and the stomach were found repaired but it is not known what was the nature and extent of the injuries caused to the said organs. If the operation was not done properly the complications could be due to the operation. So, it does not stand proved that the death was the direct result of the injuries received by the deceased during the occurrence.

8. However, there is no force in the argument of the learned counsel that Ghulam Haider P. W. 13 did not see the occurrence. This is true that before the committing Court this witness did not state that the appellant caused churri blow to the deceased but the witness appears to have correctly stated when confronted before the committing Magistrate, that he bad stated so before the committing Magistrate. It appears that the committing Magistrate through inadvertence missed to dictate that portion of the reply given by the witness wherein he stated that appellant No. I caused churri blow to the deceased. It has been experienced in many cases that the Magistrates do not read over the statements after completing them to the witnesses and without doing so give the note "read over and admitted as correct". It this provision of law is duly complied with the mistakes and omissions can come to light and can be corrected. From the evidence of the eye‑witnesses, namely Muhammad Iqbal and Ghulam Haider it stands amply proved that appellant No. I caused churri blow to the deceased. No doubt, Muhammad Iqbal and Ghulam Haider P. Ws. stated that Mahmood‑ul‑Hasan and Allah Ditta were not present at the time of the occurrence and the said two persons were cited as eye‑witnesses by the prosecution, but this fact per se is not sufficient to make the evidence of Muhammad Iqbal and Ghulam Haider P. Ws. who have supported the occurrence, as doubtful.

9. As it is doubtful that the death of the deceased was the direct results of the injuries received by him during the occurrence, I convert the conviction from section 304‑A to section 326, P. P. C. As the death occurred after considerable period of the occurrence Meraj Din appellant is entitled to the benefit of this mitigating circumstance. So he is not liable to the maximum dose. I, therefore, reduce the sentence from life imprisonment to 10 years' R. I. and a fine of Rs.

300. In default of payment of fine he would undergo three months' R. I as ordered by the learned Additional Sessions Judge.

10. The punishments of three months' R. I. and a fine of Rs. 100 awarded to Muhammad Hussain and Nathu each under section 323, P. P. C., do not appear to be excessive. I cannot agree with the learned counsel for the appellants that they are entitled to the reduction of sentence to the one already undergone. So, the punishment awarded to them is upheld. Present brother of Meraj Din appellant. Order accordingly.