1981 P Cr (PLP)

(2) A contused swelling 2 " x " on the right side of the head 1" in front of the right ear. Post-mortem was conducted on the dead body of Muhammad Nawaz deceased by Dr. Arif Saeed (not examined). He fount the same injuries on his person. In his opinion, death occurred due to the injuries to vital organs i.e. brain as a result of Injuries Nos. 1 and 2 These injuries were dangereous to life, ante-mortem, caused by blunt weapon and sufficient to cause death in the ordinary course of nature. Prohabia time between injuries and death was about 6 hours and that between death and post-mortem about 12-24 hours. The post-mortem report Exh. P. W. 11/A of this doctor was proved by Khadim Hussain Dispenser P. W. 11.

7. On 25thApril, 1977 Dr. Mushtaq Ahmad Sheikh, P. W. 1 also examined Haq Nawaz P. W. 9 and found seven contused wounds on different parts of his body. All the injuries were simple except Injury No. 7 which was found grievous. All the injuries were caused with blunt weapon within the duration of two hours. On the same day he examined Haq Nawaz son of Wahid Bakhsh P. W. and found nine injuries on his person, out of which four were abrasions and five contused wounds. Injury No. 4 was kept under observation and advised X-ray whereas rest of the injuries were found simple caused with blunt weapon within the duration of about two hours. This doctor, similarly examined Khuda Bakhsh appellant on 26th April, 1977 and found one incised wound in the palmer aspect of right thumb and a contusion on the back of right chest. Both the injuries were simple caused with sharp and blunt weapons within the duration of about one day. He also examined Muhammad Shafi accused on the same day and found one abrasion and one contusion on left cheek and lumbar region, respectively. Both the injuries were simple having been caused with blunt weapon within the duration of about one day. He, similarly, the same day, examined Rahim Bakhsh appellant and Hassan Bakhsh co-accused. A contusion on the right knee was found on the person of Rahim Bakhsh whereas Hassan Bakhsh had two contusions on his person. He, also, complained of pain in the right eye, injuries on the persons of both the appellants were simple, caused with blunt weapon within duration of about one day.

8. Accused at the trial, denied the allegations and pleaded self- defence. They admitted their relationship inter se. Appellant Rahim Bakhsh gave his own version of the occurrence. He stated:- "Mst. Sharman aged about 15 years is my daughter. I wanted to get her married and therefore had the necessary arrangement for preparing her dowry in this connection. I got prepared six silver bangles from Muhammad Nawaz deceased for my daughter a few days earlier to the time of occurrence for a consideration of Rs.

30. I had paid the amount of Rs. 20 and the remaining money had yet to be paid to Muhammad Nawaz deceased. A little prior to the time of occurrence, Muhammad Shafi and Khuda Bakhsh accused were coming to their houses after taking bath from Multan Canal and passed near the place of alleged occurrence which is situated nearby, my house when Muhammad Nawaz deceased demanded Rs. 10 from Muhammad Shafi accused who is my son. Muhammad Shafi accused expressed his inability to make the payment of the said balance amount to the tune of Rs. 10 to Muhammad Nawaz deceased which resulted into an altercation. At this Haq Nawaz Daya and Haq Nawaz Bhatti P. Ws. arrived there armed with dangs. The deceased to the meanwhile picked up a taqwa' from his shop. I and Hassan Bakhsh accused hearing the alarm raised at the spot arrived there and thereafter the deceased as well as Haq Nawaz Daya and Haq Nawaz P. Ws, opened murderous assault upon us. They injured us with their respective weapons: I and Hassan Bakhsh thereupon finding no alternative for our safety used sticks in self defence thus injuring Muhammad Nawaz deceased. Haq Nawaz Daya and Haq Nawaz Bhatti P. Ws. Muhammad Nawaz lambardar and Ashiq P. W. were not present there. The local Police has brought the present case falsely against us because they collaborated with the complainant party, and finding us poor and helpless challaned us in this case." The remaining accused adopted the statement of Rahim Bakhsh. No evidence was led in defence.

9. Prosecution at the trial relied on the ocular evidence given by Ashiq Muhammad P. W

7. Haq Nawaz Bhatti P. W. 9, Haq Nawaz Daya P. W. 10. and Malik Muhammad Nawaz P. W. 12: the motive; the incriminating recoveries and finally the medical evidence.

10. Learned trial Judge has not accepted the motive set up by the prosecution. He observes in this regard:- "At the outset it may be remarked that the motive set up by the prosecution is evidently scanty of its proper proof. Muhammad Bakhsh shopkeeper who could be the most material and indepen dent witness with regard to the factum of motive has not been produced by the prosecution. The altercation between Muhammad Shafi accused and Haq Nawaz Daya, which resulted into a quarrel, related to some illicit connection with Mst. Siftan a young girl of a butcher. The Investigating Officer never examined the butcher and his young daughter in this behalf to satisfy himself that the element of motive as asserted by the prosecution in this behalf was whether supported by any independent source or not. Short of any other corroboration natural or independent evidence we are simply left with the statement of Haq Nawaz Daya P. W.

10. According to him he had no illicit connection with Kist. Siftan. There was no earthly reason for Muhammad Shah accused to pick up a quarrel with the said P. W" in case he had no such relation with Mst. Siftan The statement of Haq Nawaz Daya P. W. 10 relating to the factum of motive is not supported by any independent source. His statement to that aspect of' the matter does not sound true intrinsically as well." He rejected the defence plea also and proceeded to hold:- "As regards the defence version adduced by the accused. I find no force in the same; firstly, that Rahim Bakhsh accused being old man and Hassan Bakhsh his co-accused could not be solely responsible for causing the injuries to the deceased as well as to Haq Nawaz Bhatti P. W and Haq Nawaz Daya P, W. with a concerted attack having been opened by Muhammad Nawaz deceased armed with a Takwa as well as Haq Nawaz Daya and Haq Nawaz Bhatti P. Ws, armed with sofas: and secondly, that the deceased and the injured P. Ws. could cause only four injuries to Muhammad Shafi and Khuda Bakhsh accused when the former were armed with deadly weapons and were three in number. It may be pointed out that Injury No. 2 on the person of Muhammad Shafi accused is simply an abrasion on the cheek. The version adduced by the defence is impossible on the face of it and appears absolutely to be fetched up one. I, therefore, disbelieve the same."

11. Learned counsel for the appellants, in view of the position taken up by the appellants and the fact that the ocular testimony comes from unimpeachable source and the persons who were injured in the Occurrence has not seriously disputed the findings of the learned trial Judge. He however, argued that even on the formulation of the learned trial Judge that each of the assailants is liable of his own acts, conviction of appellant Khuda Bakhsh under section 302, P. P. C. is no called for. Injury attributed to him was not fatal and the fatal injury was attributed to co-accused Muhammad Shafi. Learned State counsel did not dispute this.

12. With a view to appreciate the submission of the learned counsel, I have gone through the evidence with care. In the F. I. R. injuries to the deceased have thus been attributed to the assailants.- Therefore, it is obvious that the injury on the right side of the head was attributed to Muhammad Shah co-accused. This was by wrong side of the hatchet. According to post-mortem report (Exh. P. W. 11/A) the injury on the right side of the head was above and front of right ear." The same has been described as injury No.

2. There is following note in the post-mortem report:- "Haematoma on right side under scalp present. Parietal and temporal bone fractured on right side. Fracture extending down to subdural anterior cranial fossa haemorrhage present. Brain on right side compressed." It is obvious that this note relates to Injury No.

2. The doctor who conducted post-mortem examination was not produced. Therefore, appellant Khuda Bakhsh is entitled to some benefit in this regard. Description of injury No. 2, however, leads one to infer that this was a fatal injury. This is also in line with the finding of the learned trial Judge. Keeping in view the quoted portion of the F. I. R. I have no doubt in my mind that this injury is attributed to Muhammad Shafi. Convic tion of appellant Khuda Bakhsh under section 302, P. P, C. cannot be sustained.

13. The result is that this appeal partly succeeds. Conviction of appellant Khuda Bakhsh under section 302, P. P. C. is set aside. He is however, convicted under section 325, P. P, C. and sentenced to the period already undergone by him. He is also sentenced to a fine of Rs. 1,000 or in default thereof, to undergo further one year's R. I. shall be released forthwith subject to the payment of fine. The fine, if realised shall be paid to heirs of the deceased. The appeal of Rahim Bakhsh, however fails and is dismissed. Appeal partly allowed.