1991 P Cr (PLP)

(3) Contused swelling 2 x 2 c.m. on outer side of base of right index finger. ' (4) Contused swelling 6 x 5 c.m. (elliptical) with teeth mark all around just above the knee on front of left thigh. Injuries Nos. 1 to 3 were opined to have been caused by a blunt-edged weapon, while injury, No.4 was opined to have been caused by a human bill. On the same day he had medically examined Muhammad Sharif P.W. and found the contused swelling 8 x 6 c.m. skin deep with teeth marksrh around. The injury was declared simple and was opined to have resulted from a human bite. The same doctor on the same day had performed autopsy on the dead body of Muhammad Inayat and had noted following injuries thereon: (1) Boggy swelling 10 x 10 c.m. on right side of head in temporal region. (2) Abrasion 1.5 x 0.5 c.m. on right feet. (3) Abrasion 2 x 2 c.m. on outer side of right eye. (4) Abrasion 1.5 x 1 c.m on outer side of right eyebrow. On dissection, temporal is muscle was found bruised, under injury No.l. Cranial cavity contained about 700 c.c. of blood, and the brain was found compressed towards the left side. Death was opined to have occurred due to shock and haemorrhage resulting from injury No.l, which was opined to be sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was opined to be within 30 minutes while the time between death and post-mortem was opined to be within 2 to 4 hours.

6. Ocular account was deposed to by Ghulam,, Rasul P.W.3 brother of the deceased and Muhammad Sharif P.W.6 cousin of the deceased. Ghulam Rasul P.W. repeated the facts given by him in the F.I.R. During cross-.examination he admitted that real sister of his mother was married to brother of Muhammad Sharif P.W. The election, according to him was being contested by Nawab Khan and Shan, Ali. He admitted that the complainant party was inimically disposed towards Khurshid Sikandar and. they had opposed him in the last elections in which he had participated as a candidate. He denied the suggestion that Khurshid Sikandai was inside the `polling station as agent of Shan Ali candidate and that, he (P.W.) had not witnessed the occurrence. He also denied the suggestion that Muhammad Inayat had tried to pull down the polling camp of Shan Ali candidate and that Ahmad Din father of Ghulam Qadir (appellant) had objected, on which they (Inayat etc.) had attacked Ahmad Din and caused him injuries and that in retaliation the party of Ahmad Din had pushed the deceas6d against a wall and rubbed him there, as a result of which he suffered injuries.

7. Muhammad Sharif P.W. corroborated the statement made by Ghulam Rasul complainant, in so far as it pertained to the actual occurrence. He also claimed to have witnessed the recovery of Sotas at the instance of Khurshid Sikandar, Munawar Hussain and Ghulam Qadir appellants. During cross -examination he admitted that the deceased was son of his paternal-aunt. In answer to a question he stated that Muhammad Nawaz and Zafar Hussain (acquitted accused) had caught the deceased by each arm, before he was inflicted injuries. He stated that the deceased was rubbed against the wall from the side of head, where he had received injuries with Sota. He denied the suggestion that he alongwith the deceased and Nazir Ahmad P.W. had pulled down a hook of tent of the polling camp of Shan Ali whereupon father of Ghulam Qadir and his other supporters had resisted or that they had attacked Ahmad Din for that and caused him injuries while the supporters of Ahmad Din had caused injuries to the deceased by striking him against a wall in defence of Ahmad Din. He denied the suggestion that Khurshid Sikandar at that time was inside the polling station being an agent of Shan Ali and that they had falsely involved him.

8. Ghazanfai Ali Shah, S.I. who had recorded the complaint on the basis of which F.I.R. was recorded and had submitted the challan to Court after arrest of the accused and completion of investigation, appeared as P.W.9 and gave the details of the investigation. He denied the suggestion that he had planted the Sotas. He also denied the suggestion that Ahmad Din had been injured during the occurrence.

9. The appellants during their statements under section 342, Cr.P.C. denied the prosecution case and pleaded innocence. Dr. Jamil Ehsan who had medically examined Ahmad Din at 5-45 p.m. on 8-12-1987 and found a healing scratch and a healing laceration on his person, appeared as D.W.1 and gave those facts. During cross-examination he denied that the injuries on Ahmad Din could have been suffered at friendly hands.

10. Ghulam Oadir son of Mirza Khan who appeared as D.W.2 stated that he was inside the polling station as polling agent of Nawab Khan while Khurshid Sikandar was also there as polling agent of Shan Ali candidate, at the time of occurrence. During cross-examination he denied any relationship with the accused.

11. Ahmad Din father of Ghulam Qadir, who according to the defence, had been attacked and caused injuries by the complainant party, appeared as D.W3 and deposed those facts.

12. I have gone through the evidence and considered the contentions raised by learned counsel for the parties.

13. Before proceeding to adjudicate the contentions raised by learned counsel for the parties I would like to note here that Criminal Appeal No.400 of 1989 filed by the State against acquittal of Munawar Hussain, Muhammad Nawaz, Ghulam Hyder, Ghulam (nadir, Zafar Hussain and Muhammad Khan under section 302/.'149, P.P.C. and against the acquittal of Muhammad Nawaz, Ghulam Hyder, Zafar Hussain and Muhammad Khan under section 307/149, P.P.C. was dismissed in limine vide order dated 26-11-1989 of a D.B. of this Court. The revision petition filed by the State seeking enhancement of sentences of Khurshid Sikandar under section 302, P.P.C. from imprisonment for life to death, was also dismissed in limine vide dated 26-11-1989 of the same D.B.

14. Although P.W.3 is real brother of the deceased while P.W.6 was his first cousin, yet that, in the circumstances of this case, is not sufficient to discard their testimony particularly so when the defence has failed to bring anything on record to prove that they had made statements against the appellants for any mala fide reasons. It is appellant's own case that prior to this occurrence, there was no particular animosity amongst them.

15. The stance of the appellants that the, deceased and his associates had caused injuries to Ahmad Din father of Ghulam Qadir appellant (grandfather of Khurshid Sikandar) and that he was caused injuries in defence by the relatives of Ahmad Din, does not find support from the evidence on record. The learned trial Judge rightly observed that the very fact of Ahmad Din having been got examined 8 days after the occurrence from a far-off hospital, itself makes their claim doubtful. Had that fact been true, Ahmad Din could have appeared before the police even without having got himself medically examined at the very first instance when the police came to the village. The stance of Khurshid Sikandar appellant that at the time of occurrence he was inside polling station, although was corroborated by the D.W s., yet does not appear to be true. 1n fact his statement shows that he was very close to the place where the occurrence had taken place. Moreover, the time of the occurrence is also such that the election might not have started even by that time. Still another aspect of the matter is that no document regarding Khurshid Sikandar being polling agent of Shan Ali was produced at the trial. In fact, Shan Ali also was not brought to the Court to state that. The stance of the defence, therefore, of the occurrence having taken place in a different manner and of Khurshid Sikandar having not participated in the same, stands repelled.

16. As noted in the earlier part of the judgment, it is not the case of any of the parties that the were inimically disposed towards each other prior to the occurrence in question. Being co-villagers they were passing their time in peace. In fact neither an from them nor any member of their families was contesting the election on account of which the occurrence is said to have erupted. Although Sotas were recovered from the three appellants; yet none of those Sotas was found,, to be stained with blood.

17. The only injury, which had proved fatal, was a boggy swelling 10 x 10 c.m., on the right side of head in temporal region. The said injury according, to the eye witnesses had been caused by Khurshid Sikandar appellant with a blow of the Sota. No single blow from a Sota could have caused an injury found on the deceased as boggy swelling 10 x 10 C.m. The injury of such dimensions 'cannot occur from a single blow by a Sota. Of course, such an injury could have resulted from a blunt weapon of a considerable width like washing Thopy ( Thopy ) or at the best it could have resulted due to repeated blows at the same point but that is not the case of the prosecution. Moreover, had this blow been caused with a Sota with full force, the skull beneath the swelling would also have been fractured, if not completely, at least some creaks must have appeared. In the circumstances, the argument of learned counsel for the appellants that ultimate impact and shape of the injury seems to have come forth after the deceased was pushed against a wall and rubbed there. That being so, Khurshid Sikandar cannot be held liable for having committed premeditated murder nor can he be burdened with the knowledge that the injury intended to be inflicted by him would certainly result in death. His conviction under section 302, P.P.C. is, therefore, not maintainable. The same is set aside.

18. It appears that Khurshid Sikandar appellant had caused the injury in the heat of passion upon a sudden quarrel that took place during the election, on some account. He also does not appear to have taken undue advantage nor acted in a cruel or unusual manner. He is, therefore, held liable for having committed the offence under section 304, Part I, P.P.C. He is sentenced to undergo R.I. for 7 years (seven years), plus to pay a fine of Rs.5,000 (Rs. five thousand only) in default whereof to suffer further R.I. for six months. Whole of the fine, on recovery, shall be paid as compensation to the heirs of the deceased. He shall be given benefit of the provisions of section 382-B, Cr.P.C. He is on bail. He shall be caused to be arrested through non bailable warrants and lodged in jail for undergoing the remaining sentence.

19. Nazir Ahmad P.W. for launching murderous assault on whom, Ghulam Qadir and Munawar Hussain stand convicted under section 301; P.P.C. was not examined as a witness. The injuries found on his person were declared simple and were opined,, to have been caused by a blunt weapon. Their convictions under section 307/34, P.P.C. in the circumstances, do not appear to be well-placed. The same are altered to one under section 323/34, P.P.C. Both of them had remained in jail during the trial for more than five months and had suffered R.I. also for some time after their conviction. The period already spent by them in jail plus a fine of Rs.500 (Rs. five hundred) each, in default of payment of which to suffer S.I. for 3 months each, in my view, will meet the ends of justice. Order accordingly. Both of them are on bail. They shall be directed to deposit the fine within thirty days. In case of failure to do so they shall be caused to be arrested through non-bailable warrants and lodged in jail to undergo the sentence awarded in lieu of non-payment of Fine. N.H.Q./K-314/L Order accordingly.