ABDUL SHAKURUL SALAM, J.-Mustafa Shah appellant has been convict. Ed under section 302, P. P.
C. For the murder of Mubarak Shah and sentenc--ed to death subject to confirmation by this Court, with a fine of Rs. 5,000 to be paid to the heirs of the deceased, if realised, and in case of default to further undergo two years' R. I. By the. Learned Additional Sessions Judge, Multan vide order dated 13th August, 1979. He has filed Criminal Appeal No. 925/79. The reference under section 374, Cr. P. C.
Is Murder Reference No. 311/79. The complainant has filed a revision petition for increasing the fine imposed on the appellant being Crl. Rev. No. 1016/80. All these matters were heard together and are being disposed of by this order.
2. The relevant facts are that Ishtiaq Hussain P. W. 7 lodged a report Exh. P. B. To the effect that on 29th September, 1978 at 64 a. m. He was present in front of his house with Masood Ahmad P. W. 8 and Ghulam Shah (not produced having been won over) when Mubarak Shah (deceased) his uncle came there and told him that on the previous evening, Mustafa Shah (appellant) had taken a bullock cart (Rehri) for carrying manure from one Abdul Ghafoor P. W. 9 who had asked for the return but the rehri was not returned and, on the other hand, he was given slap and fist blow.
Therefore, he (Mubarak Shah) was going to Mustafa Shah (appellant) to fetch rehri on the asking of Abdul Ghafoor. A little later, he (the complainant) heard noise and went alongwith his companions to the front of the house of Mustafa Shah, who was abusing Mubarak Shah and saying that he was his enemy on account of turn of water and there was dispute going on between them for sometime, how bad he become to take bullock and rehri? This conversation prolonged. Mustafa Shah pulled out a phatti (plank of the rehri) and raising a lalkara that he (Mubarak Shah) would not go alive attacked him hitting on the right side of the head of Mubarak Shah. A second blow was given which hit on the right ear. Thereupon, Mubarak Shah fell on the ground and became unconscious. He and his companions besought the life of Mubarak Shah from Mustafa Shah, who threw away the photti of the Rehri and went away to his house. Mustafa Shah had attacked his uncle Mubarak Shah on account of the previous dispute about the turn of water so as to kill him and had given grievous injuries on his head. The F. I. R. Was recorded by Taj Mohammad, M. H. C, P.W. 2 at 10.15 a. m. The same day, i. e. 29th September, 1978 and a case under section 307, P. P. C.
Was registered.
3. Qasim Ali Shah, -A. S. I., P.W. 10 visited the spot and took into possession phatti Exh. P. 3 vide memo. Exh. P. F. In the presence of Masood Ahmad P. W.
8. He recorded the statements of Masood Ahmad, Ghaus Shah and Abdul Ghafoor P. Ws. He arrested the accused on 6th October, 1.978.
Mubarak Shah injured was examined by Dr. Mohammad Ashraf, P. W. 1 at 10.30 a. m. On 29th September, 1978 and he found the following injuries on his person "(1) A swelling 4" x 5" on the right side of the face with blackening of the right eye.
(2) A swelling with contusion mark 3" x 2----- on the right side of the bead 2" above the right ear."
He deposed that "injuries were kept under observation for X-ray Injured was unconscious, shocked and condition precarious. The time of injuries was within six hours and were caused with blunt weapon. Exh. P. A. Is the carbon copy of my medico-legal report wihch is in my hand and signed by me. Exh. P. A./1 is diagram showing the location of injuries. I have used word precarious at about the nature of injuries by which I mean that the injuries were dangerous to life.
I converted P. M. To -A. M. Against date of examination and similarly against date and hour of arrival in Exh. P. A. Inadvertantly, by a slip of pen. I mentioned the word dangerous underneath the expression preca--rious on Exh. P. A. On 29th September, 1978 at the asking of the investigating officer. The width of weapon of offence may be four to five inches in view of the dimension of injuries. The width of weapon of offence by which injury No. 1 was caused may (be) three inches minimum. It is not necessary that the dimension of the weapon of offence may be different for causing injuries Nos. 1 and 2. Both the injuries may be caused with one weapon. The patient remained under my treatment for four or five days. Thereafter the patient was removed to the Nishtar Hospital Multan. I have recommended the removal of the patient to Nishtar Hospital on the bed ticket of patient. The possibility of getting injury No. 1 and 2 by a forceful impact of wooden sides of bullock-cart cannot be ruled out."
4. Mubarak Shah died in the Nishtar Hospital, Multan on 8th October, 1978. The same day, Dr. Allah Nawaz, Medical Officer, Civil Hospital Multan P. W. 6 conducted the P. M. Examination. He deposed on dissection under injuries Nos. 1 and 2 fracture of right temporal bone opening of right temporal suture. Blood clot was present under the brain membrance and brain matter. Two operation wounds 4"-3" stitched on the right and left side of head with nine and eleven stitches. Operation triphyaning hole on the left temporal bone. Brain matter was congested."
He, further, deposed : "that in my opinion death was due to haemor--rhage, injury to the vital organ (brain). Under injuries Nos. 1 and 2. These injuries were sufficient to cause death in ordinary nature.
These injuries were ante-mortem and were caused with blunt weapon. The duration bet--ween injuries and death eight days and time between death and post mortem about six hours."
In cross-examination, he said "The deceased remained under the treatment of doctors of the Nishtar Hospital, I only conducted the post-mortem examination. I cannot give the duration of the operational wounds on the person of the deceased. I cannot say whether the operations were successful or not because I did not conduct the operations. Blood haemorrhage usually occurs during the operation. The death due to excessive haemorrhage of blood during the operation cannot be ruled out. In this particular case I cannot say what was the extent of blood haemorrhage. Operations wounds were regarding injuries Nos. 1 and 2. There was no seeling injuries Nos. I and 2 at the time of P. M. Examination. Operations are usually done where there are chances of survival. In this particular case it can be said that operations were not successful. In this particular case the wounds were operated upon the chances of healing of the injuries and the survival of the deceased were there."
5. At the trial, Ishtiaq Hussain complainant (nephew of the deceased) appreared as P. W. 7 and deposed about the occurrence according to his earlier statement Exh. P. B. In cross-examination he stated that "I reside with Mubarik Shah in the same house ------------Adjacent to our house is the house of Mehar Shah my paternal-uncle. There are eight to ten houses apart from the house of our family members. House of Masood is also situated in the same Basti. There are two Bastis near the place of occurrence and I reside in the Basti towards east of the place of occurrence----. It is correct that the place of occurrence is surrounded with three Bastis towards east, west and north at a distance of about thirty to forty karams ................... None except myself, Maqsood Ahmad and Ghaus Shah P. W.
Witnessed the occurrence. My house is at a distance of 51 karams Basti towards the north of the place of occurrence is about 30 karams away. When we reached the place of occurrence, Rehri of Ghafoor P. W. Was also parked thereat the place of occurrence. It was loaded with manure. At that time there was no bullock with the Rehri. There was no bullock even nearby with the Rehri............. I have seen the flank P. 3 which is the same which was used for the crime at the time of the occurrence and he inflicted flat wise to the deceased ---------.. No blood oozed from the injuries of the deceased. The accused went towards the south after inflicting injuries --------- I have been living in Mauza Bazdarwala since my infancy. Mauza Gill is at a distance of two and a half miles from my Basti ------------.. I have land at Mauza Gill and our votes might have been registered on the voters list at a Mauza Gill but I do not reside there. We also own land at Mauza Bazdar Wala. We voted from the constituency of Mauza Gall. Deceased remained five days in civil hospital Makhdoom Rashid hospital ---...... Wilayat Shah is distant uncle of mine. It is incorrect that Zubeda Mai daughter of Wilayat Shah is 'married to accused Mustafa Shah accused. It is also incorrect to suggest that the accused has divorced Mst. Zubeda Mai about a year ago against my and wishes of my other family. It is incorrect that I had personally gone to accused to persuade him not to divorce him. Mst. Zubeda Mai but he refused. It is correct that there is party friction between the parties and I am not on speaking terms with the accused and his family members and so was the deceased. It is incorrect that I belong to the party of the deceased. It is incorrect to suggest that I never witnessed the occurrence and I am falsely implicating the accused because of our previousen mity."
Masood Ahmad appeared as P. W. 8 and. Supported the previous witness. In cross-examination, he stated that :- "Lal Shah is cousin brother of the deceased. Ramzan Shah is the distant uncle of the deceased. Haji Lal Shah and Ramzan have their landed property in Mauza Gill and Mauza Makhdoon Rashid. I cannot say if Lal Shah and Ramzan also owned land in Mauza Bazdarwala. It is inrorrect that I am a tenant of Haji Lai Shah and Ramzan but however I am their Mustajir (a person who takes land of another for cultivation on rent) of land property of Mauza Gill. Mauza Gill is at a distance of 3 miles from Mauza Bazdarwala. I am Mustajir for the last two years and still continuing mustajiri under Lal Shah and Mohammad Ramzan. Again said my nephew is their Mustajir. At the time of occurrence I was tenant under Mubarik Shah Chah Mariwala at Mauza Bazdarwala. Chah Mariwala is at a distance of 55 karams towards the north of place of occurrence. The place of occurrence is situated in the area of Chah Mariwala. The place of occurrence is killa No. 1/1 of square No. 42. The place of occurrence belongs to one Karim Haider Shah, who is uncle of the deceased. The place of occurrence is vacant place and there is no crops ------------.It is incorrect to suggest that I am resident of Mauza Rangpur, Muzaffargarh ..................It is incorrect that I do not own any agricultural land in Mauza Bazdarwala. I live in the house of Mubarik Shah deceased in Mauza Bazdarwala. The place of occurrence is at a distance of 80 karams from my residence. The place of occurrence is at a distance of 4/5 karams from the passage. The Rehri was parked about one foot away from the deceased. Some manure was in the Rehri and the remaining was on the ground. The accused pulled the plank from behind side of the Rehri. At our beseeching the accused left the spot and threw the plank, and he did not repeat the blow after our request. He denied that he was a stock witness of the police."
Abdul Ghafoor appeared as P. W.
9. And deposed about the Rehri having taken by the appellant.
Qasim Ali Shah, A. S. I. Appeared as. P. W 10 and deposed about the usual investigation.
6. The accused denied the allegations against hint in his examination under section 342, Cr. P. C.
Noor Muhammad Patwari P. W: 5 who had prepared the site plan was re-called as C. W.
1. The accused appellant produced three defence witnesses. Shakar Mohammad, Assessment Recor-- der, Canal Department Multan appeared as D. W. Land deposed about the cultivation of Masood Ahmed P. W. Abdul Khair D. W. 2 deposed that on 7th July, 1976, the appellant had divorced Mst.
Zubeda Mai in his presence. Jahangir Shah appeared as D. W. 3 and deposed about the divorce.
7. Learned counsel for the appellant has vehemently contended that the two eye-witnesses, namely, Ishtiaq Hussain P. W. 7 and Masood Ahmad P. W. 8 are interested being paternal-nephew of the deceased and tenant respectively. The deceased having previous enmity on account of turn of water with the appellant, these witnesses cannot be relied upon without corroboration which is not there. He, next, submitted that the place of occurrence belonged to Karim Haider Shah, an uncle of the deceased, and there was no reason for the appellant to be present there with the Rehri because he could either be at his house or in his field or on the way, therefore, the entire prosecution case against him is false. Lastly, he submitted that the deceased who was admittedly inimical towards the appellant had no business to come to him to ask for the return of Rehri of a third person Abdul Ghafoor. The prosecution has not disclosed as to what exactly happened immediately before the occurrence and may be that the deceased had thrown his weight around and the appellant who was empty handed pulled out a phatti from the Rehri and gave blows on the deceased not even with full force, otherwise, there would have been fracture. Consequently, case of murder is not made out against the appellant.
8. Learned counsel appearing for the State and the complainant have supported the prosecution case.
9. We have gone through the evidence on record with the assistance of the learned counsel for the parties and given our careful deliberation to all the aspects of the case. We are of the view that notwithstanding that the two eye-witnesses are a nephew and a tenant of the deceased and the latter had previous dispute with the appellant on account of the turn of water but we see no reason that the, witnesses would substitute, the appel--lant for the real culprit. It is a case of single accused and substitution is very rare. By the time F. I. R. Was lodged, nobody knew or thought that the injured would die after 9 days. False implication, in the circum--stances of the case, is not borne out from the record.
10. The injured has been operated upon and Dr. Allah Nawaz Khan P. W. 6 who conducted the post- mortem examination said that "I cannot say whether the operations were successful or not because I did not conduct the operations. Blood haemorrhage usually occurs during the operation.
The death due to accessive haemorrhage of blood during the operation cannot be ruled out. In this particular case I cannot say what was the extent of blood haemorrhage. Operations wounds were regarding injuries Nos. 1 and 2. There was no seeling injuries Nos. 1 and 2 at the time of P. M.
Examination. Operations are usually done where there are chances of survival. In this particular case it can be said that operations were not successful. In this particular case the wounds were operated upon the chances of healing of the injuries and the survival of the deceased were there."
Bed notes, operation notes and the doctor who had performed the operation, have not been produced. These lacunae (1968 SCMR 1368) have hearing on the case.
11. Notwithstanding the previous enmity the deceased had chosen to go to the appellant for return of Rehri of a third party. The appellant was empty handed. Hot words were exchanged. He pulled a phatti from the nearby Rehri and gave not very severe blows otherwise the skull on right side of the bead would have been fractured. Therefore, in the circum--stances of the case, it cannot be said that the appellant intended to cause murder. No doubt, he caused grievous injuries which have resulted in death. Reliance may be placed on PLD 1971 SC 720. Therefore, his conviction under section 302, P. P. C. Is not maintainable but he is liable under section 325, P. P. C. He is convicted accordingly and sentenced to seven years' R. I. With a fine of Rs. 5,000 to be paid to heirs of the deceased, if realised. In case of default, the appellant shall suffer further six months' R. I. Sentence of death is NOT confirmed. Revision petition has no force. It is, dismissed. .
The above titled matters are thus disposed of.