1990 P Cr (PLP)

(3) Contused wound 2-1/2" x 1/3" bone deep on the occipital region. Its margins were irregular. (4) Abrasion with contusion 1-1/2" x 1/2" on the left frontal region. (5) Reddish contusion 3" x 1-1/2" on the posterior aspect of the left shoulder region. (6) Reddish contusion 3" x 1" below injury No.5. Injury No.2 was by a sharp-edged weapon, the rest by blunt and on X-ray no fracture of the skull or shoulder was observed. Injury No.2 was grievous and dangerous to life. However, on the following day i.e. 28-7-1974 the condition of Ashiq Hussain deteriorated. Operation was performed and peritoneum was found ruptured and faecal matter spreading over. Intestines were also ruptured at two points. He sent letter (Exh.P.I.) to the S.H.O. Rayya. He also sent a letter to the Duty Magistrate who deputed Pervaiz Aktar Khan, Naib Tehsildar/Magistrate 1llrd Class (P.W.5) to record the dying declaration of the deceased.

2. The Naib-Tehsildar reached the hospital and on 28-7-1974 at 10-00 a.m. recorded the statement of the deceased (Exh.P.A.) which was read over to him and he acknowledged it to be correct.

3. The version given in the dying declaration was that Rafi alias Saeen accused called him (the declarant) at his house in connection with the payment of some money. In the very next sentence this version was changed to say that he was called to the Thara of Ch. Sardar. On reaching there when the declarant demanded the money Rafi accused called him a bad character and threatened him to run away. The version goes on that in spite of it they (the deceased and others but who those others were is not mentioned) stood there silent while RaG went to his house brought out a gun, knife and Lathis and gave one Lathi blow in the head of the deceased. In spite of being empty-handed, the deceased continued the struggle and the fight continued for about 15/16 minutes. Later on Chacha Mehr Din son of Muhammad Bakhsh (it seems to be PW.9) got the fight called off. In ending the fight Zafarullah son of Ismail and Faqir Hussain son of Nabi Bakhsh had also helped. According to the declarant the assailants were Manzoor appellant as well as Rafi, Mushtaq, Boota and Anwar accused. It is also there that thereafter the deceased and others came to their house.

4. There is a second part of the statement (EX.P.W.1) which after putting the date and signatures of the Magistrate starts over again. According to this portion Baqar had also been injured with the deceased. The deceased had been given Lathi blow in the head by Anwar Teli and knife blow in the abdomen by Manzoor appellant. Rafi had given him a Lathi blow in the back.

5. From the statement of Dr. Abdul Jabbar Akhtar (P.W.6) it also appears that Manzoor appellant was also injured and this very doctor medically examined him on 26-7-1974 at 10-00 p.m. He had two incised wounds on the temporal region and three abrasions, on the right eye, fingers and one on the left thigh. The former two injuries were kept under observation and later on declared as grievous. The abrasions were declared simple in nature.

6. Rafi accused in his statement, at the close of the trial, gave the counter version of the occurrence which was adopted by his co-accused. According to him, while passing in the Bazar at 4-30 p.m. he, Manzoor appellant and Anwar co-accused found the-deceased giving a beating to Muhammad Boota and when asked why he was doing so, the deceased replied that Boota was not paying his money. On this the appellant asked him that it was not the way to recover the money. On it the deceased hurled filthy abuses to Manzoor appellant and on it they exchanged fist blows. The deceased had felt offended. Thereafter Rafi, Anwar and Manzoor appellant went to the Chobara of the latter. At about 5-00 p.m. Mehr Din with a Dang, Baqar Hussain and Ashiq Hussain deceased with knives reached the Chobara. Mehr Din gave a Dang blow on the hands of Manzoor appellant who caught hold of the Dang. The appellant pelted brickbats to defend himself but was over powered by Mehr Din. Then Baqar Shah took out his knife and gave a blow on the head of the appellant followed by another knife blow by Ashiq Hussain deceased. The appellant snatched the knife from Baqar Shah and acted in self-defence. According to him Boota accused was not there while Mushtaq had only seen the occurrence. He also claimed that he lodged the counter-F.I.R. but the police did not oblige and so he had filed a complaint in Court (Exh.D.F.) which was undertrial with the Court.

7. Manzoor appellant alongwith Raft, Anwar Teli, Mushtaq and Boota accused were tried by learned Sessions Judge, Sialkot and vide judgment, dated 30-9-1981 Mushtaq and Boota accused were acquitted while Anwar Teli and Rafi were convicted under section 323 P.P.C. and were sentenced till the rising of the Court while the appellant was convicted under section 326, P.P.C. sentenced to two years' R.I. and a fine of Rs.500 or in default thereof three months' R.I. Only the appellant has come up in appeal which was admitted and notice for enhancement on 7-10-1981 was issued by the Court. The notice. is the subject of Criminal Revision No-517 of 1988. It is proposed to dispose of the appeal as well as the revision petition by this single judgment.

8. Learned counsel for the appellant contended that from the evidence produced no case was made out and in any case, if at all it was a free fight, the appellant in view of the protracted trial and the hearing of the appeal, the sentence already undergone would suffice. Learned counsel appearing for the State tried to defend the judgment. After hearing them and going through the record the later part of the argument needs consideration.

9. As indicated above, the occurrence took place on 2ti-7-1974 at 5-00 p.m. but till the condition of Ashiq Hussain deceased deteriorated in the hospital on 28-7-1974 no report was made to the police in spite of the fact that Baqar Shah the companion of the deceased who was injured in the occurrence, Faqir Hussain, Mehr Din (P.Ws.8 and 9) and other relatives of the deceased were present in the village as well as in the hospital with him. It is so admitted by the two eye-witnesses, namely, Faqir Hussain and Mehr Din produced at the trial. When the condition of the deceased deteriorated a 'Magistrate (P.W.5) reached and recorded the dying declaration. The dying declaration is also in two parts and even then does not give the necessary details as noted above. Faqir Hussain (P.W.8) gave the motive part of the story and it is nearly the same as given by Rafi accused in his statement at the close of the trial i.e. the dispute between Boota and the deceased over the demand of money in which Manzoor appellant intervened and then fist blows were exchanged by the deceased and the appellant.

10. According to the dying declaration Rafi had called the deceased to his house which was then corrected as the Thara of Sardar. Who were accompanying him, there is no indication in it. In the later portion it was mentioned that Baqar was also injured with him. Neither Baqar, the injured P.W. nor Zafarullah son of Ismail and Faqir Hussain son of Nabi Bakhsh, the persons mentioned in the dying declaration as the eye-witnesses have been produced at the trial. Both the eye witnesses told in their statements that Rafi took the deceased to the Chobara of Sultan Gujjar. Their version before the police in their statements under section 161, Cr.P.C. was that it was the Chobara of Manzoor appellant. They were properly confronted and contradicted. Ghulam Hussain (P.W.10) is a relative of the deceased. He told in cross-examination that bricks were taken into possession by the Investigator from a Chobara of a Gujjar which, however, was in possession of Manzoor appellant. It is also clear from his cross-examination that the deceased was a desperate fellow and engaged in nefarious activities like smuggling, black-marketing etc. Even Muhammad Tufail, S.I. (P.W.11), the Investigator stated in cross-examination that the place of occurrence was the Chobara of Manzoor appellant wherefrom blood-stained bricks were also recovered. He also admitted that a cross-case vide F.I.R. No.73 under sections 452, 324/34, P.P.C. was registered at the police station against Baqar Shah, Mehr Din and Ashiq Hussain deceased at the instance of Muhammad Rafi accused on 27-7-1974 at 3-00 p.m. The perusal of the evidence also indicates that it was the appellant who reached the hospital first and he even reported the occurrence to the police which does not seem to have been challaned. The F.I.R. in the present case was not lodged by the deceased or his witnesses or relatives till his condition deteriorated on the next day when he made the dying declaration which in itself is not a full account of the occurrence. The two eye-witnesses produced at the trial have given no explanation of the injuries to the appellant two of which were grievous and by sharp-edged weapon. The occurrence also took place at his Chobara. So, taking the worst case for the appellant that he acted in self-defence and exceeded the right, there being only one injury in the abdomen which originally was observed to be simple by the doctor but on the next day during operation intestines and peritoneum having been found injured, the same was declared grievous, the sentence already undergone would suffice.

11. The result is that the appeal against conviction is dismissed but the sentence already undergone would suffice. The notice for enhancement is discharged and consequently, the revision petition stands dismissed. N.H.Q./M-2302/L Order accordingly.