1986 PLP 2922 (MLD)

The motive for the occurrence was that three/four days before, there was a dispute between Faiz and Fazil, accused, with Sajawar brother of Muhammad Bashir complainant P.W.7 Sajawar had abused Faiz and Fazil, accused and thereafter a compromise was effected in the Punchayat, but Faiz and Fazil, accused, took the matter seriously and to avenge the same had inflicted injuries on the complainant party.

3. On 14-8-1981 at 11-40 p. m. Dr. Muhammad Afzal P . W.2 medically examined Ahmad Yar (won over P.W.) and found a contused wound on the left side of his head, a swelling on the left side of his forehead, another swelling on his left cheek and a contusion on the back of his left thumb. All the injuries were simple and caused by blunt weapon within eight hours of the examination. The same doctor then examined Gulzar, (won over P.W.) and found two contused wounds on his head, contusion marks on the back of his left shoulder, the back of his lumbar region, his right elbow, a lacerated wound on the back of his right scapula, a swelling on his right forearm and an abrasion on the root of his left index finger. All the injuries were simple and inflicted by blunt weapon within eight hours. The same doctor then examined Muhammad Bashir P.W.7 and found contusion marks on the back of his left and right chest, back of right lumber region, back of left scapula, left shoulder, left forearm and upper arm, middle of back, right and left wrists, right and left thighs and right and left hips, the right buttock and the right leg. All the injuries were simple and inflicted with blunt weapon within eight hours of the examination.

4. On 15-8-1981 at 2-00 a.m. Dr. Muhammad Afzal P.W.8 sent a Rukka to Police Station Depalpur informing them of the arrival of the dead body of Barkhurdar, deceased, and the three injured witnesses. Accordingly; Nazir Ahmad A.S.I. P.W.10 reached Civil Hospital Depalpur at about 4-00 a.m. and recorded the statement Exh.P.G./1 of Muhammad Bashir complainant P.W.7 at 4-30 a.m. On the basis of the said statement, formal F.I. R, was recorded at Police Station Depalpur by Qasim All Shah M.H.C. P.W.4 at 4-45 a.m.

5. On 15-8-1981 at 11-00 a.m. Dr. Muhammad Afzal P.W.2 conducted the post-mortem examination on the dead body of Barkhurdar, deceased, and found eleven contusion marks (of which five were multiple) on the left scapula, back and outer side of chest, right chest, right scapula, back of right chest, back of left lumbar region, both the right and left buttocks and thighs and left side of face, a swelling on the left side of the chest and abrasions on the left elbow, right knee and front of left leg. Under two of the contusion marks on the outer left chest and back of left lumbar region, four ribs were found fractured and pleura, left lung, and paritonium were found bruised. The stomach was full of semi-digested food: Bladder was full of urine. Death was due to shock and haemorrhage as a result of fracture of the rib and rupture of the spleen under injuries Nos.5 and 8 which were sufficient to cause death in the ordinary course of nature. All the remaining. injuries were simple. All the injuries were by blunt weapon. Probable duration between injuries and death was within eight hours and that between death and post-mortem examination about twelve hours.

6. On 16-8-1981 all the seven accused were arrested by Mirza Munawar Hussain S.I. P.W.5. At the time of their arrest, Fazil, Ramzan, Saeed, Pehlwan, Jabbar, Zahid and Faiz, accused produced their respective Sotas P.4, P.5, P.6, P.7, P.8, P.9 and P.10, which were taken into possession vide Memos. P.J, P.K, P.L, P.M, P.N, P.O and P.K, respectively in the presence of Mirza Munawar Hussain P.W.5, Sardar Ali P.W.9 and Muhammad Bashir (given up P.W.).

7. After completing the necessary investigation, the challan against the accused was sent up.

8. At the trial, the prosecution produced Muhammad Bashir complainant P.W.7 in proof of the motive and the ocular account. Mirza Munawar Hussain S.I. P.W.5 and Sardar Ali P.W.9 in proof of the recoveries and Dr. Muhammad Afzal P.W.2 in corroboration of the medical testimony. All the accused denied the accusations that were levelled against them and imputed their false involvement to enmity and suspicion. They pleaded that the occurrence had taken place after sunset in the darkness of the night and that the incident was unwitnessed. They also denied the recoveries that were alleged to have been effected at their instance.

9. The learned trial Judge held that the motive and the recoveries did not stand proved, but relying upon the ocular account and the medical testimony, he convicted and sentenced the seven accused, as stated in para. 1 above.

10. I have heard the arguments of the learned counsel for the appellants, the complainant and the State and have also perused the record. The evidence as regards the motive is furnished by Muhammad Bashir P.W.7. According to his testimony, Faiz and Fazil, appellants, had a dispute with his brother Sajawar three to four days prior to the occurrence, which was compromised in Panchayat between the parties, but Faiz and Fazil, appellants, took the matter seriously and to avenge the insult they launched a concerted attack on him and his father on 14-8-1981. In cross-examination he stat8d that this earlier occurrence took place in the fields of 'Faiz and Fazil, appellants, as the sheep of Sajawar, his brother, had slipped into their fields and that he came to learn of that incident about one/one and a half hour thereafter. In reply to a leading question, Muhammad Bashir P.W.7 admitted as correct that Faiz and Fazil had given shoe-beating to his brother Sajawar. He also voluntered by stating that his brother Sajawar had also given shoe-beating to Faiz and Fazil appellants and had also indulged in altercation with them. He further stated that Sajawar, his brother, had told about that incident to his father. It is surprising that the Public Prosecutor did not call Sajawar to give evidence in that connection. However, the earlier occurrence stands admitted by the leading questions put by the learned counsel for the appellants. In answer to a leading question as to whether it was correct that the accused Faiz and Fazil, appellants, had given shoe-beating the Sajawar in that earlier occurrence, Muhammad Bashir P.W.7 replied in the affirmative. In answer to a question when Sajawar, his brother, and informed his father about the occurrence, Muhammad Bashir P.W.7 replied by stating that it was after coming back from that occurrence. It is true that in the statement Exh.P.G./1, Muhammad Bashir P.W.7 did not refer to the shoe-beating given by two of the appellants to Sajawar, but this was stated by Muhammad Bashir P.W.7 in his cross-examination in answer to a leading question. Taking his evidence as a whole and the leading questions put by the appellants' counsel to this witness, the motive stands adequately proved on the record, though it does not show that murder was the intention of the appellants, but perhaps only to give a good beating.

11. The ocular account in this case is furnished by Muhammad Bashir P.W.7, who is the son of the deceased. Ahmad Yar and Gulzar, the paternal-uncle and paternal-cousin of Muhammad Bashir P.W.7, who had also witnessed the occurrence, were not produced as they had been won over. The account of the occurrence as narrated by Muhammad Bashir P.W.7 already stands reproduced in para. 2 above and need not be repeated. There is no past enmity between Muhammad Bashir P.W.7, and any of the appellant.

12. However, the following submissions have been made with regard to his testimony by the learned counsel for the appellants. First, that the statement Exh.P.G./1 of Muhammad B7shir P.W.7, which was recorded twelve hours after the occurrence, was recorded after deliberation and consultation, and, therefore, the statement has no sanctity in law. Second that the occurrence is an unwitnessed occurrence. In this connection it is submitted that Barkhurdar, deceased, died some time between 11-00 p.m. on 14-8-1981 and 2-00 a.m. on 15-8-1981 and since the stomach of the deceased was found to contain semi-digested food and the doctor had opined that the deceased must have taken his last meals within two/three hours before the infliction of the injuries, the deceased must have died between 9-00/10-00 p.m. in the darkness of the night. Third that the occurrence did not take place in the manner as stated by Muhammad Bashir complainant P.W.7. In this connection it is submitted that the receipt regarding the purchase of the cow which Muhammad Bashir P.W.7 stated was with his father Barkhurdar, deceased, was not taken into possession by the police. It was further suggested that the cow was not taken into possession by the. police. It further contended that no blood stained earth was recovered from the spot. It is also contended that though Muhammad Bashir P.W.7 stated that he and his father were injured at the same place, yet the site plan Exh.P.H. shows the distance of an acre in between the place where both of them were injured. It is lastly contended that Ahmad Yar and Gulzar (won over P.Ws.) specially did not come forward to support the case, because they knew that it was a trumped up one and morally they did not feel justified in supporting a false case.

13. With regard to the fist submission of the learned counsel fog the appellants. It is clear from the statement of Sajawar P.W.8 that the injured and the deceased reached the hospital between 11-00/11-15 p.m His statement that the police arrived in the hospital at 12-00 mid-nigh cannot be accepted, as Dr. Muhammad Afzal P.W.2 did not send the Rukka Exh.P.B. to the S.H.O., Police Station Depalpur, till 2-00 a.m on 15-8-1981. According to Muhammad Nazir A.S.I. P.W.10, he reaches the hospital at about 1-00 a.m, on 15-1-1981 on receipt of the Rukka. It is, therefore, clear that when the statement Exh.P.G/1 of Muhammad Bashir P.W.7 was recorded at 4-30 a.m. on 15-8-1981, the injury statements were in the hands of Muhammad Nazir A.S.I. P.W.10. It is doubtful whether half hour which Muhammad Nazir A.S.I. P.W.10 hats from 4-00 to a.m., could have been privately utilised for the clandestine operation of deliberation and consultation to build up a false story. It is true that some of the witnesses could have gone to the Police Station earlier. Even taking the case at its worst, the late recording of the statement Exh.P.G/1 would not destroy the case of the prosecution. At best it would only put one on guard to appraise the evidence with greater care and caution.

14. With regard to the second submission, it is clear from the statement of Muhammad Bashir P.W.7 that his father Barkhurdar, deceased, became senseless and some other persons took him his father and the other injured witnesses to the village and from there they were removed to the Civil Hospital at Depalpur, where his father died. Sajawar P.W.8 (who should not be confused with Sajawar the brother of Muhammad Bashir P.W.7) stated that the deceased and the injured witnesses were taken from the village at about 8-00/9-00 p.m. to the hospital and that they reached 'the hospital between 11-00/11-15 p. m. Muhammad Bashir P.W.7, Ahmad Yar (won over P.W.) and Gulzar (won over P.W.) were medically examined by Dr. Muhammad Afzal P.W.2 at about 11-40 p.m. If Barkhurdar, deceased had been alive, he would have been so medically examined by the said doctor. It is, therefore, clear that Barkhurdar, deceased, died in the hospital some time between 11-00 and 11-40 p. m. However, the fact that the 'stomach of the deceased was found full of semi-digested food by Dr. Muhammad Afzal P.W.2 does not advance the case of the appellants, for it is not known how long the deceased remained unconscious after he received the injuries and no question was put to any witness to elicit any answer as to when the deceased had last taken food. Very likely Barkhurdar, deceased after he was taken to his house, regained consciousness and was administered food and liquid to refresh and revive his depressed state. If this be so, the semi-digested food found in the stomach of the deceased would be the one administered by his family members between 7-00/8-00 p.m. The presence of the food in the stomach does not unequivocally advance the contention of the appellants' counsel that the occurrence took place at 9-00 p. m. The injuries found on Muhammad Bashir P.W.7, Ahmad Yar and Gulzar (won over P.Ws.) were found to have been inflicted within eight hours of the examination at 11-40 p. m. This clearly shows that the occurrence took place some time near 4-00 p. m. This submission of the learned counsel, therefore, has no merit.

15. With regard to the third submission of the learned counsel for the appellants, the same has no merit. Since the deceased and the three injured witnesses were taken to the village from the place of occurrence, very likely the receipt was left in the village. Since Muhammad Nazir A.S.I. P.W.10 first examined the deceased when he was dead, it did not strike him to search or inquire about the receipt. Muhammad tlazir A.S.I. P.W.10 was not put any question as to why he had not taken the receipt from Muhammad Bashir P.W.7 or made a search for the same. In these circumstances, nothing turns on the absence of the receipt. As regards the cow which was purchased, Muhammad Bashir P.W.7 clearly mentioned that after the occurrence the cow travelled back to village Jewan Wala. Again no question was put to Muhammad Nazir A.S.I. P.W.10 to explain why he did not take possession of the cow. As regards no blood-stained earth being found at the spot, the same is understandable as none of the injuries on the deceased or the three injured witnesses appear to be of a type which would have led to profuse bleeding. All the four persons were given severe beating with Sotas, which resulted mainly in contusions. The absence of bloodstains at the spot is, therefore, understandable. It is urged that site plan Exh. P.H. shows that Muhammad Bashir P.W.7 and Barkhurdar, deceased, were injured at two different places almost an Acre apart, whereas according to the statement of Muhammad Bashir P.W.7, he and his father received injuries almost at the same place. During an occurrence where seven assailants are assaulting two persons, one would imagine that the victims would try and run to save themselves. Barkhurdar, being aged 50 years, perhaps was not able to run, but Muhammad Bashir P.W.7 being younger did perhaps run about 70 yards whilst under assault. The site plan does not displace the truth of the prosecution case. Muhammad Bashir P.W.7, though related to Barkhurdar, deceased, has otherwise no past enmity with any of appellants. The occurrence, therefore, substantially took place in the manner as alleged and it cannot be said that circumstances opine otherwise.

16. As regards the last submission of the learned counsel for the appellants, the same has no merit and must be rejected outright. Ahmad Yar and Gulzar (won over P.Ws.) both received injuries in the occurrence. They should have been the first persons to have come forward to support the prosecution case. The fact that they have not only shows that they have received heavy compensation to make theme resile from their moral obligation. Taking all circumstances into consideration, the evidence of Muhammad Bashir P.W.7 cannot be disbelieved under any circumstances. His evidence is natural, clear and convincing and has the ring of truth.

17. The evidence as regards recovery is furnished by Mirza Munawwar Hussain A.S.I. (P.W.5) and Sardar Ali (P.W.9). Nothing has been brought in their evidence to suggest that they were related to or interested in the complainant party or inimical to any of the appellants. The fact that the Sotas were not found stained with human blood, does not destroy their incriminatory value as the deceased and the injured witnesses did not receive wounds which were found to be bleeding. The recoveries, therefore, are not without significance and support the ocular account.

18. The upshot of the above discussion is that the motive, the ocular account, the recoveries and the medical testimony clearly prove the case of the prosecution to the hilt against the appellants.

19. The only question that now remains is as regards the offences committed by the appellants. It cannot be denied that the motive, a3 suggested, does not show that the appellants wanted to murder Burkhurdar, deceased or any member of the complainant party. What they were smarting under was their hatred and vengeance and their desire to give a good beating to the relatives of Sajawar. Unfortunately, Sajawar himself was not present, but his father Barkhurdar, deceased, and his brother, Muhammad Bashir (P.W.7), were present. When they saw them, they pounced upon them with all the hate at their command. Even Ahmad Yar and Gulzar (won over P.Ws.), who came to their rescue, were not spared. Almost all the injuries on the deceased and the three injured witnesses are simple, except two on the deceased, which are internal. Basically, the case is one where the appellants wanted to cause grievous hurt to the complainant party. Two of the injuries apparently have proved serious, causing internal fracture and rupture. The appellants are guilty of offences under sections 325/149 and 148, P.P.C. Their conviction and sentences under sections 302/149 and 307/149, P.P.C are set aside and they are held guilty under sections 325/149 and 148, P.P.C. Faiz and Fazil, appellants are the persons who had the earlier dispute with Sajawar, brother of Muhammad Bashir, P.W.7, which led to this heinous assault. They appear to be the prime movers behind the assault. Faiz and Fazil, appellants, are, therefore, sentenced to seven years' rigorous imprisonment each with a fine of Rupees five thousand (Rs.5,000) each or in default thereof to undergo one year's rigorous imprisonment each under section 325/149, P.P.C. and Saeed.,. Zahid, Ramzan, Pehlwan and Jabbar appellants, are sentenced to three years' rigorous imprisonment each with a fine of Rupees four thousand (Rs.4,000) each or in default thereof to undergo one year's rigorous imprisonment each under the said section. All the seven appellants are sentenced to one year's rigorous imprisonment each under section 148, P.P.C. The substantive sentences shall run concurrently.

20. For the foregoing reasons, this appeal is partly accepted, in terms of alteration of conviction and reduction in the sentences, as stated above.

21. Zahid and Jabbar, appellants, are on bail. They shall be taken into custody to serve out the remaining portions of their sentences.

22. The benefit of section 382-B, Cr.P.C. shall be granted to the appellants while calculating their sentences. S. A. Appeal partly accepted.