1988 P Cr (PLP)

Prosecution examined complainant Javid Akhtar Ex.2, Riaz Ahmad Ex.4, Inamullah Ex.5. Dr.Abdul Majeed Ex.10, Mohammad Anwar Ex.11, Ghulam Khan Ex.15, and Maqbool Hussain Shah, Investigating Officer Ex.

18. The case proceeded. Learned Additional Sessions Judge acquitted co‑accused Ismail and Mohammad Ali whereas appellant has been convicted under section 325, P.P.C. only. Appellant Mohammad Hanif in his statement under Section 342 Cr.P.C. Ex.22 has denied the allegations and stated that witnesses are relatives of the deceased and have been set up by the police. He has not examined any witness in his defence. Complainant Javid Akhtar Ex.2 has stated that on the day of incident he was present when on the turn of water Ismail abused his brother and threw his container on protest of his brother Ismail gave him slap. In the meanwhile appellant Mohammad Hanif and' co‑accused Mohammad Ali came. Appellant was armed with Danda and he gave blow on the head of deceased Qamar Iqbal due to which he fell down and went unconscious. He has stated that co‑accused Mohammad Ali gave kick blow to the deceased whereas Ismail caught hold on him. On cries Riaz, Anwar and Ghulam Khan came at `the Wardat and saw the accused. Thereafter they took the deceased to Police Station Baldia, Karachi where he lodged report and such entry was made in Roznamcha. At that time his brother was unconscious. From the police station they were referred to Abbasi Shaheed Hospital where doctor declared his brother dead. Prosecution witness Riaz Ahmed Exh. 4 has stated that he had not seen the incident. He stated that he and Anwar at that time were going from house of Anwar when they reached at the street, they saw Qamar Iqbal being removed by people of the Mohallah to his house. He brought the taxi. This witness has been declared hostile by the prosecution and was cross‑examined. P.W.5 Ghulam Khan Ex.15 is eye‑witness of the incident. He has stated that on the day of incident at about 3.30 p.m. he was in his house when he heard cries from the water pump fixed in the street. He saw Ismail who caught hold of deceased Qamar Iqbal whereas accused Mohammad Ali asked Mohammad Ismail to kill Qamar Iqbal. Accused Hanif inflicted Danda on the head of deceased Qamar Iqbal who fell down on the ground. He has stated that accused Mohammad Ali gave kick blows to deceased. Many persons collected there. Accused ran away. Qamar Iqbal went unconscious. He took him to the house and from there to the police station in taxi. Brother of Iqbal lodged report at the police station. Thereafter they took Iqbal to Abbasi Shaheed Hospital where Doctor declared him dead. Police arrived at the hospital and prepared memo of dead body. Ex.8 with bears his signature. He has stated that inquest report Ex.9 was also prepared. He acted Mashir of the Wardat and Mashirnama Ex.12 bears his signature. He has testified Mashirnama Ex.13 regarding arrest of accused Ismail. He was also Mashir of arrest of Hanif and produced the Mashirnama Ex.16. He has stated that appellant had produced nothing in his presence. However, he has admitted that Hanif produced Danda as shown in Mashirnama Ex.14. He has stated that except P.W. Javed no adult male or female had come at the Wardat but children and some women were available there. In his cross‑examination he has stated that he reached at the Wardat first. He stated that Javed might be present at the Wardat earlier. P.W. 4 Mohammad Anwar Ex.11 has stated that about a year back he alongwith Riaz was coming from the house of Riaz. When they passed from the street they saw number of persons in the street. They went to the house of Qamar Iqbal and saw him lying injured. He was in senses but there was no talk with the deceased. They took him to hospital. On the way brother of deceased got down at the police station for report. They took Qamar Iqbal to Abbasi Shaheed Hospital where Doctor declared him as dead. This witness has declared hostile. Dr. Abdul Majeed Ex.17 stated that on 18‑7‑1980 he was Incharge Medico‑legal Department, Abbasi Shaheed Hospital, Karachi, where he received dead body of one Iqbal s/o Zakaria from Baldia Police Station through P.C. Ghulam Shabir for post‑mortem. He started post‑mortem examination at 9‑05 p.m. and on external examination found following injuries, (1) Lacerated wound about 2" x 1/2" x scalp deep on the posterior side of middle parietal region. (2) Swelling about 2" x 2" on the mid parietal region." All the injuries were ante‑mortem and five and half hours old. In his opinion the cause of death was shock and haemorrhage as the result of injuries caused by some hard and blunt object as the iron bar rod or Danda. He produced post‑mortem notes as Ex.17‑A. P.W. Inamullah Ex.5 stated that 18‑7‑1980 he was Sub‑Inspector Police at P.S. Bidia at about 4.20 p.m. Javed Akhtar produced his brother at police station in unconscious condition. He referred Qamar Iqbal to Abbasi Shaheed Hospital and recorded statement of Javed Akhtar, vide Entry No.25. He produced at Ex.6. 5.00 p.m. he received telephonic message from Doctor Abdul Majeed that Qamar Iqbal was dead. After making such entries in the Roznamcha Ex.36. He lodged F.I.R. on behalf of State on the basis of report of Javed Akhtar. He produced F.I.R. Ex.7. Thereafter he handed over the F.I.R. to S.H.O. Baldia Police Station for investigation. He 'went to Abbassi Shaheed Hospital and prepared memo. of dead body of Qamar Iqbal, which he produced as Ex.8. He also prepared inquest report and produced Ex.9. He gave letter to doctor for post‑mortem. Finally S . H .O came in the hospital and he handed over the police papers for further investigation. Mr. Mohammad Ashraf Kazi, learned counsel appearing for the applicant contended that eye‑witnesses Ghulam Khan, Anwar and Riaz have not supported the case of prosecution and there are material contradictions in the evidence. It is argued that Danda alleged to have been secured from appellant was not blood‑stained. Mr. Niaz Ahmed Khan, appearing for the State, has submitted that appellant has rightly been convicted and looking to the circumstances of the case learned Sessions Judge has already given him benefit by convicting him under section 325, P.P.C. Appellant Hanif alongwith his brother Mohammad Isamil and father Mohammad Ali were tried for the murder charge. The learned Additional Sessions Judge acquitted Mohammad Ali and Ismail and convicted the appellant under section 325, P.P.C. The evidence against the appellant consists of ocular testimony, motive and recovery of Danda. P.W. Jawed Akhtar is brother of deceased. He has supported the case of prosecution and stated that there was dispute between deceased and accused Ismail who gave slap to his brother thereafter Hanif and Mohammad Ali came. Hanif who was armed with Danda gave blow on the head of Qamar Iqbal. Co‑accused Mohammad Ali gave kicks blow to the deceased. P.Ws. Riaz and Anwar have not supported and were declared hostile. There is evidence of complainant Javed Akhtar and Ghulam Khan. Both have supported and stated that appellant caused Danda injury to Qamar Iqbal. The medical evidence fully supports the ocular testimony in respect of injury as well as regarding time between injury and post‑mortem. There is no back ground of enmity. The incident took place due to taking of water at the spur of moment for which the learned Sessions Judge has taken lenient view and convicted appellant for offence under section 325, P.P.C. The report was lodged without any delay. The names oft alleged eye‑witnesses Anwar and Riaz who did not support do not appear in FIR though complainant stated so in the evidence name of P.W. Ghulam Khan who is eye‑witness appears in F.I.R. Appellant has not been able to establish any enmity with complainant and Ghulam Khan. The place of incident, the injury to the deceased at that placed are not disputed. The evidence of two eye‑witnesses whose presence proved at Wardat supported by motive and medical evidence is sufficient to conviction. Their evidence cannot be brushed aside on only minor contradictions in the circumstances of this case. I am of the view that charge against the appellant is proved and he has rightly been convicted. Appeal is dismissed. Appellant has already been given benefit of section 382‑B, Cr.P.C. by the trial Court. Appellant is on bail. He shall be remanded to serve out the sentence. S.G.D./M‑312/K Appeal dismissed.