' SYED SAKHI HUSSAIN BOKHART, J.---This judgment shall dispose of Criminal Appeal No,1887 of 2004 and Criminal Appeal No,1964 of 2004 as both these appeals arise out of the same judgment.
2. Altaf Hussain, Ilyas and Abbas have filed these appeals against the judgment dated 30-10-2004 passed by learned Additional Sessions Judge, Sheikhupura whereby they were convicted under section 324/34, P.P.C. And sentenced to suffer 10 years' R.I. Each and to pay Rs,15,000 each as fine and in default whereof to suffer further S.I. For three months' in case F.I.R. No,2/99 dated 3-1-1999 under sections 337-A(ii), 337-F(i), 337-H(ii), 324, 34, P. P. C. Registered at Police Station Khanqah Dogran.
3. The prosecution story as appearing from the testimony of Jamshed Ali, complainant (P.W.1) is that about three years and 10 months back at 1-00 p.m., he was present at the shop of his brother, Arshad Ali. He (Arshad Ali) was also present in his shop. Abbas Ali and Ilyas armed with hatchets, Altaf armed with .12 bore gun and Walayat armed with `Toka' reached the spot and Walayat raised `Lalkara' that Arshad be taught a lesson for abusing his wife, Mst. Fatima Bibi. Abbas gave 'hatchet' blow on the head of Arshad. Ilyas also gave 'hatchet' blow on the right side of forehead of Arshad.
Meanwhile Amjad Pervaiz (complainant's cousin) also reached the spot. Ilyas raised `Lalkara' that he should not be spared and gave 'hatchet' blow (from its blunt side) on his head. Altaf gave 'butt' blow on the ribs of Amjad Pervaiz. Walayat gave `Toka' blow (from its blunt side) to Amjad Pervaiz, which hit him on his ribs. On hearing their alarm Niamat Ali and Ahmad Ali, P.Ws. Reached the spot and witnessed the occurrence and rescued them from the accused. Arshad Ali injured was shifted to Civil Hospital, Hafizabad whereas complainant took Amjad Pervaiz to Civil Hospital Sheikhupura.
Arshad .Was referred to General Hospital, Lahore. He remained in General Hospital for about two months but thereafter doctor refused to give him further treatment due to his precarious condition and advised to get him treatment from any other Hospital whereupon complainant took him to Allied Hospital, Faisalabad. The Medical Officer of Allied Hospital also showed his inability for treatment of Arshad Ali and advised to shift him to his house. They were proceeding to their village but Arshad All expired before reaching the village due to the injuries received by him during occurrence. On the following day of the occurrence, complainant appeared before police and made statement, Exh.PA, which was read over to him and he signed the same in token of its correctness. He informed the S.H.O. Concerned about the death of his brother and requested him to add section 302, P.P.C. Who promised to add the same but later on submitted challan under sections 324, 34 and 337-H(ii), P.P.C. He (complainant) came to know about the same when he came in the Court. On his statement present case was registered against the accused.
' Muhammad Siddique, S.-I. (P.W.3) is the I.O. In this case. He stated that on 3-1-1999 Jamshed, complainant appeared before him and made statement, Exh.PA which was read over to him and he signed the same. He sent complaint, Exh.PA to the police station for registration of a case. On the same day he reached the spot and prepared rough site-plan of the place of occurrence, Exh.PB and recorded statements of witnesses. The complainant produced before him MLRs of Amjad Pervaiz and Arshad Ali. He went to General Hospital, where Arshad All injured stood admitted for recording his statement and for taking operation notes into possession. The I.O. Submitted application, Exh.PC before Medical Officer but he could not record his statement as according to report of doctor Arshad Ali was not in a position to make statement. On 4-1-1999 he submitted application, Exh.PD for recording statement of Arshad Ali but doctor reported that he was not in a position to make statement. He obtained operation notes from General Hospital. The I.O. Recorded statement of Amjad Pervaiz, injured. On 8-1-1999 he arrested Walayat, Ilyas, Altaf and Abbas, accused. On 19-1-1999 Altaf, accused led to the recovery of gun .12 bore, P.1 from his house which was taken into possession vide memo, Exh.PE. On the same day Ilyas led to the recovery of 'hatchet'
P.2 from his house which was taken into possession vide memo., Exh.PF. He also prepared rough site-plan of the place of recovery Exh.PG. Altaf, Ilyas and Walayat were challaned while Abbas accused was found to be innocent. After completion of investigation the accused were challaned.
4. The accused appeared before trial Court and charge was framed against them to which they pleaded not guilty and claimed trial whereupon prosecution evidence was recorded. The prosecution examined 7 witnesses in all to prove its case. Thereafter accused were examined under section 342, Cr.P.C. Wherein they denied the allegations levelled against them by the prosecution and pleaded their innocence. After hearing the parties, learned trial Court convicted the appellants and sentenced them as mentioned above. Hence these appeals.
5. I have heard the arguments and perused the record.
6. The prosecution case is that on 1-1-1999 at about 1-00 p.m. Appellants and co-accused, Walayat while armed with different weapons caused injuries on the persons of Arshad Ali and Amjad Pervaiz. However the case of Altaf and Ilyas, appellants is that actually complainant party gave beating to their mother (Mst. Fatima Bibi) and Mst. Haleema Bibi etc. And they obtained fictitious MLRs of Arshad Ali and Amjad Pervaiz after self-suffered injuries. However the case of Abbas accused is that he has been falsely implicated in this case due to enmity with complainant party and during investigation he was found to be innocent.
7. As stated earlier the prosecution case is that on 1-1-1999 at about 1-00 p.m. Appellants and their co-accused, Walayat while armed with different weapons caused injuries on the persons of Arshad Ali and Amjad Pervaiz. The prosecution examined two eye-witnesses (P.W.1 Jamshed Ali, complainant and P.W.2, Amjad Pervaiz, injured). These witnesses have fully supported the prosecution version. P.W.2, Amjad. Pervaiz is injured witness. The other injured witness (Arshad Ali) died during trial. According to statement of I.O. (P.W.3, Muhammad Siddique, S.-I.) he submitted applications- before Medical Officer concerned for recording statement of Arshad Ali injured who reported that he was not in a position to make statement. There is no material contradiction or discrepancy in the statements of P.W.1 and P.W.2. Even otherwise heir statements are convincing and confidence inspiring and there is nothing on record to disbelieve the same.
8. The case of prosecution is that accused caused injuries on the persons of Arshad Ali and Amjad Pervaiz with different weapons. He prosecution examined P.W.4, Dr. Muhammad Anwar Neuro Surgeon, General Hospital, Lahore. His statement reads as under:-- "On 6-1-1999 I was posted as Senior Registrar Neuro Surgeon Unit-II, LGH, Lahore when I issued this certificate which is as under: To whom it may concern ' Certified that patient Arshad son of Nazar Muhammad resident of District Sheikhupura aged 30 years was admitted rough emergency on 1-1-1999 via Registration No,14-LGH-1999. He was admitted due to history of fight. Patient was very serious with G.C.S. 4/5 (deeply unconscious).
X-ray skull=Fracture skull present. C.T. Scan brain = Big extramural haematoma left front otemperoparital region + subdural haemotoma bifrontal region.
Operation.
2-1-1999.
' Evacuation of left front oparietal extradural haemotoma 400 cc and right front oparietal bur hole and evacuation of subdural haemotoma 20 cc.
Operation No,2.
2-1-1999.
' Re-exploration and removal of left fonto temperoparietal haematoma. Haemostasis secured.
Incision closed.
' Post opertatively patient has improved a bit but still was very serious being treated in I.C.U. Ward No,
19. Original certificate Exh.PH is in my hand and bears my signatures. Application for seeking permission for recording the statement of injured Arshad Ali Exh.PD is signed by Dr. Muhammad Khalid and I verify his signatures on this application."
' Dr. Zameer-ul-Hassan appeared as P.W.6 and stated that on 1-1-1999 he medically examined Arshad Ali and found following injuries on his person:-- "(i) Contused swelling 10 x 6 c.m. On the right side of head.
(ii) Lacerated wound 3 1/2 x 1/2 c.m., bone deep, on the left side of front of head, 12 c.m. From the left ear.
' Patient was unconscious, deep not responding to deep stimuli and was suffering from tonic, clonic fits of right side of body. Pulse was 100 per minute and blood pressure was 100/70 mm H.g. Injury No,1 was kept under observation for X-ray skull AP/lateral view while injury No,2 was declared as Shujja Madiahah.
' The probable duration of injury was about 2 to 3 hours and the kind of weapon was blunt.
' Vide operation notes of Dr. Muhammad Anwar Chaudhry Senior Registrar Neurology Unit No,2LGH, on X-ray examination, fracture skull bone seen. On C.T. Scan there was big extradural haemotoma on frontoparietal region and subdural haemotoma on frontal region. Haemotoma was evacuated by operation. Hence, injury No,1 was declared as Shujja Ammah 337-A(v). I also observed the following identification marks on the body of injured Arshad Ali:- (i) A tinny black mole on right side of forehead (ii) Black mole on front of right clavicular area. MLR No,2/99 Exh.PI is a true carbon copy of original which is in my hand and bears my signatures. Date of arrival of the patient before me was erroneously written down as 1-1-1998 and date of examination was also written erroneously two dates are 1-1-1999. Diagram of the injuries in Exh. PI/1 which is in my hand and bears my signatures."
' P.W.7, Dr. Muhammad Azam stated that on 1-1-1999, he medically examined Amjad Pervaiz and found following injuries on his person:- "(i) A lacerated wound 5.5 c.m. x 0.5 c.m. x bone deep on right side of top of head, 4 c.m. Apart from mid line.
(ii) An abrasion 4 c.m. x 1 c.m. On front of right knee.
(iii) An abrasion 2 c.m. x.
0.4 c.m. On back of right hand.
(iv) An abrasion 1 c.m. x 0.4 c.m. On back of left hand.
' Injured condition was serious. Bleeding was present from the wounds. Patient was vomiting persistently. Emergency treatment was given and referred to operation theatre for further management.
' Injury No,l was declared Shujjah Mudiah and further kept under observation for X-ray. Injuries Nos.2, 3 and 4 were declared G.J. Damiah. Probable duration between the injuries and time of examination was 3 to 4 hours. All the injuries were caused by blunt weapon. After completing MLR, I handed over a carbon copy to a constable Aftab Ahmad No,l017/C. Medico legal report Exh.PJ is the correct carbon copy of my original which is in my hand and bears my signatures."
' It is clear from the statements of P.W.4, P.W.6 and P.W.7 that they have supported prosecution version. As stated earlier Arshad Ali died during trial. He could not make statement during investigation or trial due to his precarious condition. So I find that medical evidence conforms to the ocular account furnished by eye-witnesses (P.W. 1 and P.W.2).
9. During investigation gun .12 bore P.l was recovered from Altaf, accused/ appellant whereas 'hatchet' P.2 was recovered from Ilyas, accused/appellant. The prosecution examined two recovery witnesses (P.W.3 Muhammad Siddique, S.-I. And P.W.5, Muhammad Ibrahim). These witnesses have fully supported the prosecution version. Their statements are convincing and confidence-inspiring.
So prosecution has proved the recovery of aforesaid weapons.
10. As regards defence, version, the same is baseless. The case of Ilyas and Altqf appellants is that actually complainant party gave beating to their mother (Mst. Fatima Bibi) and Mst. Haleema Bibi etc. And they have been falsely implicated in this case after obtaining fictitious MLRs, Mst. Fatima Bibi (mother of Ilyas and Altaf) had filed cross case (complaint under sections 354-A, 148, 149, 337- H(ii), 337-A(i), 337-F(i) and 337-F(v), P.P.C.) against the complainant party but accused were acquitted vide judgment dated 30-10-2004. It seems that complainant of that case has not challenged the said judgment. Moreover admittedly Ilyas and Altaf were present at the scene of occurrence at the relevant time. Even otherwise they have not produced any evidence in support of their version.
The case of Abbas, appellant is that he has no concern with his co-accused and that during investigation he was found to be innocent. However he has not produced any evidence In support of his version. So there is ex parte evidence of prosecution. He is named in F.I.R. And according to prosecution case, he caused injuries on the persons of Arshad Ali and Amjad Perviaz. A The opinion of I.O. Is not admissible in evidence. As mentioned earlier he has not produced any evidence in support of his case. So in the circumstances of the case, I find that defence version is baseless and the same is accordingly rejected. The appellants gave merciless beating to Arshad Ali and Amjad Pervaiz. As stated earlier, the I.O. Could not record statement of Arshad Ali injured till completion of investigation due to his precarious condition. Later on he (Arshad Ali) died.
The appellants should thank their stars for what has happened in this case. Had the prosecution with the sense of responsibility pursued this case, section 302, P.P.C. Should have been added to the offence with which appellants stood charged. Arshad Ali injured person never regained consciousness after sustaining injuries at the hands of appellants. Undoubtedly he died as a result of the injuries so sustained. The only reason wherefore addition of section 302, P.P.C. Does not seem to have been pressed by the prosecution was that death of injured occurred after submission of challan in the trial Court. It was a fit case for addition of section 302, P.P.C. However since the said section was never added and the appellants never charged with the same, it is too late in the day at this stage hold the appellants responsible for 'Qatl-i-Amd' of Arshad Ali. In these circumstances I find that prosecution has proved its case against the appellants beyond any shadow of doubt and learned trial Court has rightly convicted and sentenced them. There is no illegality or infirmity in the impugned judgment, therefore, there is no justification to warrant interference by this Court.
11. For what has been discussed above, I am of the considered opinion that these appeals have no force and the same are accordingly dismissed.