P L D 1993 Lahore 293 (PLP)

SH. IJAZ NISAR, J.

Mazhar Masood (23) son of Maqsood Ahmad was tried for the murder of Aziz Ahmad (21). By judgment dated 28-7-1990, the learned Addl. Sessions Judge, Sialkot convicted him under section 302, P.P.C. and sentenced him to death and to pay a fine of Rs. 10,000 or in default to undergo one year R.I. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased. He has appealed. This judgment will dispose of the appeal filed by Mazhar Masood and the reference for the confirmation of the death sentence awarded to him.

2. The prosecution case -is that on 14-7-1988 at about 6.30 a.m. Aziz Ahmad deceased accompanied by his father Ayyaz Azim Ullah P.W3 went to the fields to ease themselves. When they were coming back they found Mazhar Masud appellant sitting at a culvert. As soon as, the deceased neared him, the appellant attacked him from behind with a dagger 'and caused injuries to him on the left shoulder and left buttock. The occurrence was witnessed by Ayyaz Azeem Ullah P.W. 3, Mukhtar Ahmad P.W. 4 and Muhammad Nawaz (not examined). After causing injuries to the deceased, the appellant made good his escape. The deceased was brought in an injured condition to Civil Hospital, Pasroor where he was medically examined. He remained admitted in the hospital till 24-7-1988 where after he left the hospital against medical advice on 24-7-1988 and ultimately died on 27-7-1989.

3. The motive for the offence was that the deceased had forbidden the appellant from roaming about in the Mohallah. Furthermore, there was some litigation between the appellant and Tahir Ahmad, uncle of the deceased.

4. Ayyaz Azeem Ullah made his statement Exh. PC to the police in the hospital on the basis of which formal F.I.R. Exh. P.C/I was recorded.

5. S.I. Muhammad Younis Butt P.W.10 recorded the statement of Ayyaz Azeem Ullah and later prepared his inquest report Exh. P.N. He arrested the appellant on 7-8-1988 and on his pointing out recovered dagger PA from near a culvert vide memo. Exh. PL attested by Ihasan Ullah P.W.9.

6. Dr. Muhammad lmdad P.W. 6 medically examined the appellant on 14-7-1988 and found the following injuries on his person:-- (1) Stab wound 2-1/2 x I x 6 c.m. on the back of left shoulder 6 c,m downward to top of the left shoulder. (2)Stab wound 2-1/2 x 1-1/2 x 2 c.m. just front to the injury No.1 on the back of left shoulder. (3)Stab wound 1-1/2 x 1/2 x 2 c.m. on the left shoulder on back side 3 c.m. forward to the injury No.2. (4) Stab wound 1 x 1/2 x 2 c.m. on back of left shoulder 3 c.m. behind injury No.3. (5) Stab wound 1 x 1/2 x 3 c.m. on the left pelvis on upper side and lateral side. (6) Stab wound 1-1/2 x 1/2 x 1 c.m. on the left lateral side of the chest on - upper side. ~v On 27-7-1988, he conducted autopsy on the dead body of Aziz Ahmad and found the following injuries thereon:-- (1) Semi-healed wound 2 x 1 c.m. on the back of left shoulder 6 c.m downward to top of the left shoulder. (2) Semi-healed wound with granulation tissue 2 x 1 c.m., just front to the injury No.1, on the back of left shoulder. (3) Semi-healed wound with granulation tissue 1-3/4 x 1/2 c.m. on left shoulder on back side 3 c.m. forward to injury No.2. (4) Semi-healed wound with granulation tissue 2 x 1/2 c.m. on the back of left shoulder 3 c.m. behind injury No.3. (5) Septic wound I x 1/2 c.m. on the left pelvis on upper and lateral side just above the left illiac cres. (6) Septic wound 1-1/2 x 1/2 c.m. on the left lateral side of the chest on upper side 4 c.m. below axilla. On dissection left side pleaura inflamed.. In the course of cross-examination, he stated that Aziz Ahmad had left the hospital on 24-74988 against his advice where after he did not come to the hospital again.

7. The dagger recovered at the instance of the appellant was found to be stained with human blood by the Serologist.

8. The prosecution produced 11 P.Ws. to prove its case. Ayyaz Azeem Ullah P.W. 3 and Mukhtar Ahmad P.W.4 furnished the ocular account. Ihsan Ullah P.W. 9 testified to the recovery of blood-staitied dagger PA at the instance of the appellant. S.I. Muhammad Younis Butt P.W.10 investigated the case.

9. The appellant denied the prosecution allegations and attributed the case to enmity and suspicion. In his statement under section 340, Cr.P.C. he denied his involvement in the offence.

10. Relying on the ocular testimony and the recovery of dagger PA and the motive, the learned trial Court convicted and sentenced the appellant as stated above.

11. It is contended that it was an unwitnessed occurrence and that Ayyaz Azeem Ullah P.W.3 father of the deceased and Mukhtar Ahmad P.W.4 his Phophar have deposed against the appellant on account of Amity. The recovery of dagger PA is assailed on the ground that Ihsan Ullah P.W.9 who was examined to prove it was closely related to the complainant party.

12. No doubt, both the eye-witnesses, examined by the prosecution are closely related to the deceased but in the absence of any direct enmity with the appellant their evidence cannot be discarded merely for that reason. There is nothing on record to indicate that they had any motive to falsely implicate the appellant in a case of the. present nature. The version given by them stands corroborated by the medical evidence. The recovery of blood-stained dagger at the instance of the appellant lends further corroboration to their testimony. The motive also stands established against the appellant.

13. The question of conviction of the appellant under section 302, P.P.C. needs a careful consideration. According to the prosecution, the occurrence had taken place on 14-7-1988 whereas the deceased died on 27-7-1988 after having left the hospital on 24-7-1988 against the medical advice. Two of the injuries suffered by him had become septic while the rest of the injuries were declared simple. He died due to the wounds becoming septic.

14. It is not understandable as to why the deceased left the hospital when he was being treated for the injuries. His conduct in leaving the hospital against medical advice had also contributed to his death. The doctor who conducted autopsy does not say that the injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death. The offence thus committed bv the appellant in such circumstances would more appropriately fall under B section 304, Part 11, P.P.C. We order accordingly and alter his conviction from Section 302, P.P.C. to section 304, Part-11, P.P.C. and sentence him to 10 years: R.I. and to pay a fine of Rs.25,000 or in default to undergo 6 months' R.I. with benefit of section 382-B, Cr.P.C. The fine, if recovered, shall be paid to the legal heirs of the deceased as compensation. The appeal is disposed of in the above terms. N.H.Q./M-900/L. Order accordingly.