1990 P Cr (PLP)

(8) 6 superficial abrasions each measuring of hand. g 1/4 x 1/4 c.m. on the left dorsum (9) Bruise measuring 5 x 2 c.m. on the left outer aspect of middle of forearm. (10) Lacerated wound 4 x 2 c.m. with fractured end of bone lying outside on the right medial aspect of lower leg 9 c.m. above the medial malleolous. (11) Lacerated wound 3 x 2 c.m. x bone deep on the left medial aspect of middle of leg. The underline bone was fractured. (12) Lacerated wound 2 c.m. x 1/4 c.m. x bone deep on the left medial aspect of left leg 3 c.m. above the lateral mallcolous. (13) Superficial .abrasion 1/2 x 1/2 c.m. on the left outer aspect of left forearm. 11 c.m, above, the wrist joint (14) Superficial abrasion 1/2 x 1/4 on the outer aspect of left elbow joint. 15) Bruise measuring 10 x 5 c.m. on the dorsum of right terminal phalanx of thumb. (16) Superficial abrasion 1/4 x 1/4 c.m. on the dorsum of right hand towards the thinner eminence. (17) Superficial abrasion 1/4 x 1/4 c.m. on the dorsum of right terminal phalanx of thumb. (18) Superficial abrasion 1/2 x 1/4 c.m. on the back of middle of forearm. (19) Superficial abrasion 1/2 x 1/4 c.m. on the lateral aspect of right forearm 6 c.m. below the elbow joint. (20) Bruise measuring 10 c.m. x 4 c.m. on the right back of chest running obliquely down. (21) Bruise measuring 5 c.m. x.3 c.m. on the left back of chest running obliquely towards the vertebral column. (22) Bruise measuring 3 x 2 c.m. on the back of right of upper chest. (23) Bruise measuring 5 x 2 c.m. on the right outer aspect of buttock. All the injuries were caused with blunt weapon. Injuries Nos.4, 10 and 11 were grievous while injuries Nos.3, 7, 8, 9, 13, 1.1, 16, 17, 18, 19 and 23 were simple. The rest were kept under observation. On 4-4-1986, at 9 a.m. he also performed post-mortem examination on the dead body of Muhammad Youcuf and found 24 injuries on his person. All the injuries were caused with blunt weapon. Injuries Nos.10, 11, 12 and 24 were sufficient to cause death because of excessive loss of blood from the body and head injury leading to irreversible shock. . The prosecution in support of its case produced 11 witnesses in all. P.W.1, Noor Muhammad, identified the dead body. Muhammad Abbas, A.S

1. P.W.2, recorded the formal F.I.R. Exh.P.B/1 on 3-4-1986. Akhtar Naqash, Draftsman, P.W.5 prepared site plans, Exh. P.C. and P.C./] on the direction of the police and the pointation of the witnesses. Dr. Muhammad Rashid, P.W.6, examined Muhammad Yousuf on 3-4-1980 and on 4--1-1986 conducted the post mortem examination. Muhammad Asghar, P.W.7 witnessed the taking of blood stained earth in front of the house of Ghulam Rasool accused and signed memo Exh P.O. as well The eye-witness account was furnished by Muhammad Latif and Abdur Razzaq, P.Ws. 8 and 9 respectively. Safdar Inayat, Inspector S.H.O P.W.10, challaned the accused. Muhammad Baqir, A.S.I. P.W.11, I investigated the. case and recorded complaint Exh. P.B. The District Attorney tendered in evidence reports of the Chemical Examiner Exh. P.L. and of the Serologist, Exh. P.M., and gave up some of the witnesses. The accused persons at the conclusion of the prosecution evidence were examined under section 342, Cr.P.C. without oath wherein they refuted the prosecution allegation and pleaded innocence. Ghulam Oadir accused in answer to a question stated that litigation of the deceased was going on with one Fazal Ahmed in Which two of his co-accused appeared as prosecution .witnesses. He further stated that the accused persons and some others were declared innocent by the police therefore, Abdur Razzaq filed a complaint which was still pending. He also pleaded false involvement because of enmity and the witnesses being inter-related. It is contended by learned counsel for the appellants that the prosecution had failed miserably to prove its case against the appellants. Contends that none of the eye-witnesses was present at the spot. Submits that the behaviour of the eye-witnesses was so unnatural that no reliance on their statements could be placed. Argues that in any case the enmity of the witnesses with the appellants was established beyond any doubt, therefore, the eye-witnesses should not have been relied upon without corroboration which was not available. The contentions were opposed by learned counsel for the State as well as learned counsel for the complainant. According to the learned counsel for the complainant there were as many as 24 injuries on the person of the deceased out of which five were grievous. Submits that it was a daytime occurrence therefore, there could not be the possibility of mistaken identity or of substitution because the dead body was recovered from the house of the appellants. I have heard learned counsel at length and gone through the evidence with their assistance. The prosecution in order to bring home the guilt of the appellants mainly relied upon the statements of Muhammad Latif and Abdur Razzaq, P.Ws.8 and 9 respectively, who were the eye-witnesses. I have carefully gone through the statements of both the witnesses. Muhammad Latif P.W.8 was uncle of Muhammad Yousuf and was accompanying him while going to the village; he was left behind because he sat in the fields to case himself. Later on, when he was following Muhammad Yousuf he witnessed the occurrence. According to him he saw the appellants giving blows with their Sotas and thereafter they carried him inside the house of Ghulam Rasool appellant. A perusal of the statement of this witness indicates that his behaviour throughout had been extremely unnatural. He saw his nephew being given repeated blows by the appellants yet he did not do anything to rescue him from the clutches of the appellants. According to his evidence when the appellants took Muhammad Yousuf inside the house he just kept on standing at the spot for one and half hour as a silent spectator. He neither went to (lie village to bring people so that Muhammad Yousuf could be rescued nor went to the Police Station for getting help. To the contrary he sent a witness Abdus Sattar P.W. to Gujrat for informing his uncle regarding the incident. This on the face of it is most unnatural. It has also come in .the evidence that Muhammad Yousuf had a licensed gun at home but no effort was made by the witness to bring the said gun in order to rescue Muhammad Yousuf. Muhammad Latif P.W. also made material improvements in the prosecution case. In the F.I.R. he had stated that after injuring Muhammad Yousuf the accused persons dragged him inside their house and gave further beating but in Court he stated that Muhammad Yousuf injured was lifted and taken inside the house. This improvement was made in order to bring his statement in conformity with the medical evidence because the doctor had not noticed any dragging marks on the body of Muhammad Yousuf deceased. He also stated that after injuring Muhammad Yousuf, all the accused persons remained inside the house and kept on raising Lalkaras till the police arrived at the spot. This part of the statement had been belied by the investigating officer. According to him the appellants had already run away when he came to the spot. Similarly, the witness stated that Ghulam Oadir appellant was armed with a gun and kept on firing in the air in order to scare away the witnesses from interfering. It is also in evidence that he was carrying a single barrel gun yet not a single empty was secured from outside the house, nor from inside the house. As far as Abdur Razzaq an eye-witness is concerned, it has come on the record that he had enmity with the appellants. He was relative of the deceased. His conduct was also very unnatural like Muhammad Latif P.W. He had also made material improvements for which he was duly confronted. It is also in evidence that blood-stained earth was secured from outside the house only. In this regard the opinion of the doctor becomes material because according to him the death had occurred because of loss of blood yet the investigating officer did not find any blood inside the house of the appellants. No recovery from any of the appellants was effected which could possibly corroborate the eye-witnesses. As far as Abdur Razzaq P.W. is concerned, admittedly he came on the alarm raised by Muhammad Latif P.W. and witnessed the occurrence when it had already started. In these circumstances what transpired between the appellants and the deceased was not seen by any one, therefore, the origin of fight is not known. The prosecution has been able to prove the recovery of Muhammad Yousuf deceased from the courtyard of the appellants who, admittedly, was in an injured condition for which no explanation has been given by them as to how he was found lying in their house. As far as Ghulam Oadir appellant is concerned, the only role ascribed to him is of being present and firing in the air. In the absence of recovery of gun or of the empty from the spot, I hold his involvement R is doubtful. In these circumstances, giving him the benefit of doubt, I accept his appeal and set aside his conviction. He shall be released from custody forthwith if not required in any other case. As far as the remaining appellants are concerned, the recovery of Sotas may not be very material. The fact that the injured was found inside,, the house of the appellants having 24 injuries; all were caused with blunt weapon, would be a sufficient corroboration of the eye-witnesses. Since I have already held that the origin of fight is shrouded in mystery, therefore, the application of section 302, P.P.C. would be doubtful. A perusal of the medical evidence also indicates that C the injuries caused to the deceased were on his non-vital parts except injury No.24 which was not noticed by the doctor when he examined the injured but surprisingly at the time of post-mortem examination, this injury was found on his person. Since all the injuries were on the non-vital parts of the body of the deceased, therefore, I hold that the appellants' case would fall under section 304, Part 1, P.P.C. For what has been discussed above, I give the benefit of doubt to Ghulam Qadir appellant and acquit him. He shall be released forthwith if not required in any other case. The appeal of the remaining appellants is dismissed but their sentences are converted from section 302/149, P.P.C. to section 304, Part 1, P.P.C. and the same is reduced to five years' R.I. each. The sentences of fine shall, however, be maintained. The conviction under section 365/148, P.P.C. is, however, maintained. All the sentences shall run concurrently. They shall also be given the benefit of section'-182-B, Cr.P.C. The fine if recovered the whole of it shall be given to the legal heirs of the deceased under section 544-A, Cr.P.C. N.H.Q./B-167/L Appeal partly accepted.