1987 P Cr (PLP)

The same Medical Officer on 3‑7‑1984 at 10‑30 a.m. conducted post mortem examination on the dead body of Muhammad Asif. On external examination he noted the same injuries. On internal examination the Medical Officer noted that haemotoma measuring 6 c.m. x 4 c.m. was present in scalp under injury No.

1. Membranes were healthy and intact. The left side of brain was congested. Right pleural surface on back and right lung on back were congested. The injuries had been caused by blunt weapon. The probable time that elasped between‑injuries and death was about 10 days and post‑mortem was conducted after about 24 hours of death. The death was due to shock as a result of head injury which was sufficient in the ordinary course of nature to cause death. In cross‑examination the Medical Officer stated that the injuries of the victim were X‑rayed which was produced before him and that both the injuries were declared simple though the said X‑ray report was not available on file of this case.

4. The Investigating Officer A.S.I. Manzoor Hussain P.W. 6 inspected the spot on 2‑7‑1984. No blood‑stained earth was found present there. Munir Ahmad accused was arrested on 10‑7‑1984. Ghulam Mustafa and Naseer Ahmad accused were arrested on 14‑7‑1984. On 14‑7‑1984 Munir Ahmad accused got recovered Phorha P.1 vide memo Ex. P.B. and Mustafa accused got recovered Danda P.2 vide memo. Exh. P.C. (both not blood‑ stained).These recovery memos were prepared by A.S.I. Manzoor Hussain P.W. 6 and attested by Muhammad Khurshid P.W. 3 and Muhammad Nawaz son of Muhammad Hussain P.W. not examined.

5. The accused were challaned after completion of investigation.

6. In support of its case prosecution examined 7 witnesses in all. Muhammad Nazir P.W.1 and Muhammad Nawaz P.W. 2 were examined as eye‑witnesses. Muhammad Tufail another eye‑witness named in the F.I.R. was given up as unnecessary. The recoveries of crime weapons were witnessed by Muhammad Khurshid P.W.3. The medical evidence was furnished by Dr. Tanveer Ahmad. The case was investigated by A.S.I. Manzoor Hussain P.W.

6. The evidence of the remaining two witnesses was of formal nature.

7. The learned Additional Sessions Judge, Gujranwala placed reliance on the prosecution evidence. He, therefore, vide the impugned judgment, dated 4‑7‑1985 sentenced Munir Ahmad 20 to imprisonment for life and fine of Rs.2,000 or in default two years' R.I. under section 302, P.P.C. He was directed to pay Rs.10,000 as compensation under section 544‑A. Cr.P.C. to heirs of the deceased and in default to suffer one year R.I, Mustafa 27 was sentenced to one year R.I. and fine of Rs.1,000 or in default 3 months' R.I. under section 323, P.P.C. Naseer Ahmad 25 was acquitted b‑,, same judgment. Munir Ahmad filed Criminal Appeal 524 of 1985 to challenge his conviction and sentence. Mustafa accused filed Criminal Appeal No. 439 of 1985 against his conviction and sentence. Both these appeals being directed against one judgment will be decided together.

8. I have heard the learned counsel appearing on behalf of the parties and have also gone through the record. P.W. 1 Muhammad Nazir is father and P.W.2 Muhammad Nawaz is cousin of Muhammad Asif deceased. Though related, these two witnesses hrad no enmity to falsely implicate the accused in this case. A perusal of their statement would show that these two witnesses were subject to sketchy and ineffective cross‑examination. They both made consistent statements during the trial in support of the prosecution case. The recoveries of Phorha P.1 and Danda P. 2 from the appellants were witnessed by Muhammad Khurshid Lumbardar P.W

3. This witness was not related to the deceased nor had any enmity with the accused. The recoveries of crime weapons also corroborate the ocular account of this case. I therefore, do not find any thing to exclude the evidence of the two eye‑witnesses from consideration against the appellants. The occurrence in this case took place on 23‑6‑1984 whereas the F.I.R. was lodged at the police station on 2‑7‑1984 i.e. after about 9 days of the occurrence. In my view this delay stands fully explained in the F.I.R. itself. Muhammad Asif deceased was taken to dispensary on the day of occurrence and to Civil Hospital on 24‑6‑1984. The Medical Officer after necessary treatment discharged Muhammad Asif who was, therefore, brought back home. In the opinion of the Medical Officer the injuries were of simple nature. Muhammad Nazir complainant accepting the opinion of the Medical Officer did not report the matter considering the same to be of minor nature. However, the condition of the deceased deteriorated to 29‑6‑1984 whereafter he was removed to General Hospital, Lahore. He died on 2‑7‑1984 whereafter the present case was registered at the police station. This was a satisfactory explanation of the delay in lodging of the F.I.R.

9. However, I am of the view that in the facts and circumstances of this case Munir Ahmad appellant could not be held guilty under section 302, P.P.C. As stated above the Medical Officer and even the complainant considered it to be case of simple injuries. The parties did not have any enmity except a minor dispute regarding flow of water from near their Haven before the present occurrence. Munir Ahmad accused gave only one injury on the head of Muhammad Asif deceased. He did not repeat blows though Muhammad Asif was lying on the ground in front of him. The injury attributed to Mustafa accused was of simple nature. The motive was of trivial nature. In view of these circumstances it cannot be held that Munir caused single blunt. weapon injury on the person of Muhammad Asif with intention to murder him though he had the knowledge that the said injury was likely to cause death. In these circumstances he could only be held liable under section 304 (II), P.P.C.

10. In view of the above discussion the conviction of Munir Ahmad appellant under section 302, P.P.C. is set aside and instead he is sentenced to suffer 5 years' R.I. plus fine of Rs.2,000 or in default two years' R.I. under section 304 (Il), . P.P.C. He is directed to pay Rs.10,000 as compensation under section 544‑A, Cr.P.C. to heirs of the deceased and in default to suffer six months' R.I. He is allowed benefit of section 382‑B, Cr.P.C. Criminal Appeal No. 524 of 1985 is dismissed subject to above modification.

11. Ghulam Mustafa was convicted only under section 323, P.P.C. vide judgment dated 4‑7‑1985. ‑He remained in judicial lock up during trial for some time and was allowed bail by suspension of his sentence by this Court on 22‑7‑1985. This means that he remained in prison for 18 days. Only one simple injury to the deceased has been attributed to him. As such maintaining his conviction under section 323, P.P.C. I reduce his sentence of imprisonment to one already undergone by him. The sentence of fine of Rs.1,000 or in default three months' R.I. is maintained. He is on bail. He will deposit Rs.1,000 fine within 30 days of this order, failing which he will surrender to serve imprisonment in default of payment of fine. Crl. Appeal 439 of 1985 is dismissed subject to above modification. S.G.D/M‑174/L Order accordingly.