1986 PLP 2641 (MLD)

(3) A lacerated wound 8 c.m. x 2 c.m. scalp deep on vault of skull with fracture of underlying bone with bleeding from nose and ears. (4) A contusion 10 c.m. x 2 c.m. on medical side on the left lower leg. (5) A lacerated wound 2 c.m. x 1 c.m. x bone deep on right shin. (6) A contusion 12 c.m. x 1 c.m. on frontal region of the right thigh. (7) A contusion 7 c.m. x 2 c.m. on lateral side of right thigh. (1) Skull ‑was fractured. (2) There was blood in the cranial cavity, and concussion of brain. (3) Blood was oozing from nose and mouth. (4) Stomach contained semi‑digested food and mucus. (5) Small intestine contained semi‑digested food and gases. Opinion: "From the external examination as well as internal examination of the dead body of Ghulam Raza son of Karim Bux Sonio by caste I am of the opinion that death of deceased occurred due to shock intracranial haemorrhage as result of concussion of medical surface, of both the hemispheres of brain matter. Injuries were caused with some hard blunt substance and were antemortem. Injuries Nos.l and 3 collectively and individually were sufficient to cause death in ordinary course of nature. Probable time between death and injury about 15 minutes and time between death and post‑mortem 2 to 3 hours, I, issued such certificate which I produce as Exh.37 it is same correct and bears my signature." The death of the deceased has not been disputed. As regards the actual incident the prosecution relied upon the ocular testimony of Ghulam Qasim, Allahdino, Ameer Bux, Ghutto and Began. Ghulam Qasim in his deposition has stated that accused Nazar Hussain sitting in the tractor loudly called his companions to come saying that heir enemy had come and should not be spared. This was at about. 6‑45 p.m. Audho armed with iron bar, Momin armed with iron pipe, Shaman with iron plated rod, Nabidad, Bangul and Sharpan armed with Lathis came out of fish market at the call of accused Nazar Hussain. Audho and Momin first gave blows to his brother Ghulam Raza, then the other co‑accused caused blows to his brother with their respective weapons. He Ameer Bux, Allahdino and Bagu got down from Tonga and raised cries. Allahdino and Amir Bux had joined their Tonga from the hospital. Ghulam Raza fell down after attack and was struggling. On his cries about 100‑150 persons gathered at the Wardat, in the meantime .his brother Muhammad Moosa also came. After the incident the accused fled towards bungalow side in a tractor. At the gate of police station his brother died. The statement of P.W. Ghulam Qasim has been fully corroborated by the medical evidence. The learned trial Judge has taken; into consideration that Allahdino and Began P.Ws. do not belong to the caste of complainant party. They are independent and most reliable, and there is no reason as to why the evidence of two witnesses who have fully corroborated the prosecution case should not be believed. Mere relationship of witnesses with deceased is no ground to discredit their evidence. Their statements inspire confidence and fit in the prosecution case. The F.I.R. was lodged without any delay and contains correct narration of the facts. The accused themselves admitted about the first incident which had occurred in the morning. The plea of alibi taken by Nazar Hussain was rightly rejected by the trial Judge. He was known to. the witnesses, he was driving the tractor and blocked the path on which the deceased and witnesses were coming to town. The defence evidence has been rightly discarded by the learned trial Judge. Incriminating articles secured from the appellants were not blood‑stained and they were not sent to the expert. As such these recoveries were not considered as the corroborating evidence. However ocular testimony fully established the guilt of the appellants. The next question for consideration is that‑‑what offence the appellants have committed? According to Dr. Ali Nawaz injuries were caused with some hats blunt substance and were antemortem. Injuries Nos.l and 3 collectively and individually were sufficient to cause death in ordinary course of nature. Injury No.5 was on shin. The other injuries Nos.4, 5, 6 and 7 are not on vital part. Even injury No.2 was only contusion. There are six assailants who were armed with weapons. There are six appellants, it is alleged that except Nazar Hussain five appellants had attacked the deceased and caused him injuries with their respective weapons. It appears that two appellants had caused two injuries each and others had given one injury each to the deceased. After receiving the injuries the deceased had fallen down from Tonga. There is no evidence that the appellants repeated the attack. The deceased was all alone, there was no body to prevent the accused from repeating the attack. There would have been more attacks from their side if they wanted to kill the deceased. There were six accused anti they were and with Lathis and iron bars only seven injuries had been caused. There is only one injury on the vital part of the body. The nature of injuries and place of injuries would have no doubt in mind that there was no intention to take the life of the deceased. In these circumstances the conviction recorded under sections 302/149 anti 148 cannot be maintained. The learned counsel has referred to a Supreme Court judgment in Criminal Appeal Ro.10‑K of 1985, and Criminal Appeal No.77 of 1985 passed by this Court. In Supreme Court case it has been observed that "it is highly improbable that the four appellants who had equal grievance with the deceased, would only inflict one injury each, one by one and not resort to successive blows with their weapons in the course of the occurrence". In the instant case also the number of injuries when examined with the number of the assailants the only conclusion would be that the case does not fall under section 302 but falls under section

325. Consequently, their conviction is altered from section, 302/149/148, P.P.C. to section 325/34, P.P.C. and sentenced to five years' R.I. each and fine of Rs.2,000 each in default of payment fine to suffer R.I. for six months each. If fine is recovered the entire amount shall be paid to the heirs of' the deceased. The appellants are also entitled to the benefit of section 382‑B, Cr.P.C With this modification in conviction and sentence, the appeal is dismissed. These are the reasons‑in support of the short order. S. G. D. Order accordingly.