Laaiq Ali alias Jugnoo, son of Inayat Ali, aged 20/21 years, has been convicted under section 302, P.
P. C. For the murder of Riaz Gill aged 31 years and vide judgment dated 21st January, 1980 of Additional Session Judge, Lahore, he was sentenced to life imprisonment plus a fine of Rs. 5,000 or in default to undergo four years' rigorous imprisonment with the direction that if the fine was realised from him, it should be paid as compensation to the heirs of the deceased. He was also convicted under section 307, P. P. C. For murderous assault on Noor Din (P. W. 6) and sentenced to one year's rigorous imprisonment. The sentences of imprisonment were ordered to run concurrently. Tae appeal of the convict is being disposed of by this judgment.
2. The occurrence took place at 12.15 p. m. On 14th November, 1978 in the Main Bazar Dharampura at the shop of Noor Din (P. W. 6) at a distance of 21 miles from Police Station Mogbalpura, Lahore.
State--ment (Exh. P. 3.) of Noor Din (P. W. 6) was made at the hospital at 3-05 p. m. On the same day and it was recorded by Mushtaq Hussain A. S. I. (P. W. 3) who came to the hospital on the receipt of telephonic message from the Casualty Ward. On the basis of the a aforesaid statement formal F. I. R. (Exh. P. 2) was registered at Police Station Moghalpura on the same day at 4 p. m. By Muhammad Alam A. S. 1. (P. W. 7). Initially case was registered under section 307, P. P. C. But on the death of the deceased on 3rd December, 1978, at 7.50 p. m. Section 302, P. P. C. Was added.
3. The motive for crime as stated in the F. I. R. Is that three years before the present occurrence in another murder case as against the appellant Noor Din (P. W. 6) had appeared as a P. W. Which had annoyed the appellant. The appellant is stated to have attacked Noor Din P. W. At his shop in the presence of other people, but he was only successful in causing a simple injury to him and while he attempted to escape, the deceased secured him. It is stated that in order to make good his escape be caused the fatal injury to the deceased.
4. The prosecution has produced two eye-witnesses of the occur--rence, namely, Noor Din (P. W. 6) and Muhammad Ashraf (P. W. 8). Both these witnesses are not connected in any way with the deceased who was a Christian. According to the prosecution version, the appellant had a motive to attack Noor Din P. W. He attacked him but since the other persons present at the shop intervened, he tried to escape and caused injury to the deceased only because the deceased had tried to apprehend him. Muhammad Ashraf P. W. Is a shopkeeper in the same Bazar. Muhammad Umar and Muhammad Sharif were cited in the F. I. R. But were not produced.
5. The appellant was arrested on 21st November, 1978 by Muhammad Ashraf A. S. 1. (P. W. 14). At his instance blood-stained chhuri (Exh. P. 1) was recovered and taken into possession vide Memo. Exh.
P. K. Dated 22nd November, 1978. The attesting witnesses are Muhammad Ashraf A. S. I. (P. W. 14), Muhammad Salim (P. W. 12) and Laaiq Ahmad (not produced). According to the report of the Serologist (Exh. P. O.), the scrapings from chhuri (Exh. P. 1) were found to be stained with human blood.
6. The appellant in his statement before the trial Court totally denied having participated in the occurrence. He disowned the recovery and stated that he had been falsely implicated because the deceased, Noor Din P. W., Muhammad Ashraf P. W. Etc. Belonged to a gang of Goondas who asked him to commit crime and pay money to them, but as he had refused to do so they falsely implicated him in the instant case due to enmity. He pleaded that he was innocent but did not produce any defence.
7. In the F. I. R. The occurrence is reported to have taken place in the following manner On the fateful day Noor Din P. W. Was sitting at his tea shop watching cricket match on the television. The deceased, Muhammad Ashraf P. W., Muhammad Umar and Muhammad Sharif (riot produced) as well as some other persons were also sitting at the shop and watching the T. V. In the meantime, the appellant armed as described above, came to the shop and asked Noor Din P. W. To get up so that he could teach him a lesson for having deposed against him. Thereafter he attacked Noor Din P. W. With his chhuri. Noor Din P. W. Warded off the attack with a tea-pot. However, he received an ordinary wound on his right wrist. On his alarm the deceased and Muhammad Sh4rif P, W, ran out of the shop in order to apprehend the appellant. Thereupon the appellant gave a chhuri blow to the deceased which fell on his left chest and he fell down. Thereafter, the appellant ran away along with the weapon of offence. The occurrence was witnessed by, besides himself, Muhammad Ashraf P. W., Muhammad Umar and Muhammad Sharif.
8. Dr. Manzoor Alam Chaudhary (P. W. 15) medically examined the deceased while he was still alive on 14th November, 1978 and found on his person incised wound on the left chest, depth not probed.
Accord--ing to him, at the time of examination his general condition was satisfac--tory. He was conscious but was sweating. He complained difficulty in respiration. The injury was kept under observation, It was freshly caused by a sharp-edged weapon.
Dr. Sabir Ali (P. W. 4) medically examined Noor Din P. W. At 5-20 pr m. On 14th November, 1978 and found on his person superficial incised scratch 11 c. m. Long on the right forearm. The injury was simple inflicted by a sharp-edged weapon and the probable duration was few hours. He stated in cross-examination that he could not rule out the possibility that the said injury was self-inflicted.
The deceased died at 7-50 p. m. On 3rd December, 1978. Dr. Tahir Anis (P. W. 5) conducted post- mortem examination on the dead body of the deceased at 2 p. m. On 4th December, 1978 and found on his person the following l l injuries :- (1)A. Septic incised wound 12 x 4 c. m, over front mid-left chest.
B. Healed recent wound with stitches removed 11 c. m. Long over front left chest in line with injury No. 1-A.
(2)Vertical healed wound 18 c. m, long over right side of abdomen.
(3)Septic wound 1 x .8 c. m. Going deep into abdominal cavity over right side of abdomen.
(4)Incised wound 2 x .3 c. m. Skin deep outer front of left wrist.
(5)incised wound 1.5 x.3 c. m. Skin deep outer front of right wrist.
(6)Incised wound 1 x .3 c. m. Skin deep on front right elbow.
(7) Incised wound 2 x .4 c. m. On inner right ankle, 8 to 10. Three parallel incised wounds each about 2 x .4 c. m. Skin deep on front inner left ankle.
(11) Bed sore 8 x 5 c. m. On inner back right sacrum.
Injuries No. 1 to 10 were caused by sharp-edged weapon and were ante-mortem. Injury No. 1-A, a part of which was sufficient to cause death in the ordinary course of nature, was through post injury post--operative complications in the light of the first medico-legal report, probable time between injuries and death was 2 to 3 weeks. In cross--examination he stated that in his opinion the deceased was in a position to speak after sustaining injury No. I-A. He further stated that injury No. I-A got septic and that if the said wound had not become septic, there were chances of the survival of .The deceased. He could not tell if the said wound had become septic due to the negligence of the doctors who attended the deceased.
9. I have heard learned counsel for the parties and carefully perused the record. Learned counsel for the appellant advanced numerous arguments. He stated that Noor Din P. W, was interested and hostile. Muhammad Ashraf P. W. Was a bad character as he had stated in his statement that he was a history-sheerer and that he had been challaned in four or five criminal cases. It was, therefore, submitted that the ocular testimony was not reliable and it should be' discarded. I do not agree with the learned counsel. There is nothing as against Noor Din P. W. Who concedes that; he had appeared as a P. W. In an earlier murder case as against the appellant and that it was due to this reason that the appellant had come to teach him a lesson. He did cause an injury to Noor Din P. W. But could not cause him more damage as there were other persons present. The deceased received an injury at the hands of the appellant, according to this witness, only because he had attempted to secure him. Thus, the ocular testimony of Noor Din P. W. Is reliable as he is not connected, in any way with the deceased. Further--more, it is being corroborated by the testimony of Muhammad Ashraf P. W. Who may have been a history-sheerer but had no enmity as against the appellant. He is also an, unconnected person with no relationship with the deceased. It was next argued that the recovery evidence in the instant case is of doubtful nature because the only public witness of the recovery produced, namely, Muhammad Salim (P. W. 12) was a stock witness.
He had stated in cross-examination that he was friend -of the Investigating Officer and that he had appeared as a witness in 3/4 criminal cases. In that view of the matter, according to the learned counsel, the recovery evidence has no corroborative value. Even if it was so and this argument of learned counsel is accepted, in my view the ocular testimony is by itself reliable and does not need corroboration by the recovery evi--dence. It was then submitted that the ocular testimony was not being supported by the medical evidence as according to the medical evidence there were numerous other incised injuries on the person of the deceased. I do not find any force in this argument as the left chest incised wound on the person of the deceased was there according to the medical evidence and consequently the ocular testimony was being supported by the medical evidence. The other simple injuries might have been received by the deceased in the course of scuffle and some of them were post operative incised wounds. It was also argued that the deceased could not have remained unconscious all the time because he remained alive for 2/3 weeks even after having received the fatal injury. He, therefore, was competent to make a statement but his statement had not been recorded. Is was then submitted that the deceased was one of Goondas and he might have been done to death by some of his enemies but the name of the appellant was substituted only because the P. Ws. Were hostile towards him. This argument of the learned counsel is also without any force as substitution in the case of one accused person is an extremely rare phenomenon. It is a day time occurrence which took place in the main bazar which was very crowded and as I have already pointed out that the ocular testimony by itself in the instant case is reliable. It was next submitted that there was no intention to kill so far as the appellant was concerned. It was submitted that according to the prosecution's own case the appellant wanted to teach a lesson to Noor Din P. W. For having deposed against him. He caused him a simple injury which was in the form of a scratch on the forearm. However, when he was trying to escape, the deceased attempted to secure him and in order to make good his escape the appel--lant also caused him an injury as he did not repeat the blow which he had caused earlier to Noor Din P. W. Learned counsel argued that the appellant never intended to murder the deceased and while he was trying to escape he could not even know where he was causing injury to the deceased. It was, therefore, inadvertently caused. It was submitted that the deceased did not die immediately as a result of the said injury. He died many days after mainly because the wound had become septic. In support of his argument learned counsel relied on the medical evidence in the instant case which was to the effect that injury No. 1-A was sufficient to cause death through post injury post-operative complications and that had the wound not been septic, there were chances of the survival of the deceased. The doctor could not tell if the said wound had become septic due to the negligence of other doctors who were attending the de--ceased.
Admittedly the deceased survived 2/3 weeks after sustaining the said injury. In the light of this evidence it was argued that the conviction of the appellant under section 302, P. P. C. And the sentence awarded to him thereunder were not proper and that in the circumstances he could have been at the most convicted and sentenced under section 326, P. P. C. In this connection learned counsel relied on Muhammad Rahim v. Kajeerullah and another (1969 P Cr. L r 18). It was also submitted that the conviction of the appellant as well as the sentence awarded to him under section 307, P. P. C. For murderous assault on Noor Din P. W. Were also not proper, for, in the circumstances, he could have at the most have convicted and sentenced under section 324, P. P.
C. The reasoning is that this injury was merely a scratch on a non-vital part of the body. I have carefully considered this aspect of the case and in my view there is some force in the arguments of learned counsel. According to the medical evidence the deceased survived 2/3 weeks in the hospital and the injury on the chest became the cause of death only due to post-operative complications as the wound had become septic. It could not be categorically stated as to whether or not the wound had become septic due to the negligence of the medical officers who were attending the deceased. In any case, according to the doctor's opinion, had the wound not become septic, there were chances of survival of the deceased. Since this is the position, the medical evidence was supporting the contention of the learned counsel for the appellant. In the authority cited by him the deceased had been stabbed in the abdomen with a knife and the medical evidence was not clear as to whether or not the death had been caused due to peritonitis resulting from the wound as the deceased had died many days after having received the injury. It was held by the Supreme Court that the sentence was rightly altered by the High Court from one under section 302, P. P. C. To one under section 326, P. P. C.
In the light of the above discussion I am of the view that the circumstances in the present case are somewhat identical Consequently, I alter the conviction of the appellant under section 302, P. P. C.
To one under section 326, P. P. C. And also alter his sentence from life imprisonment to that of ten
(10) years' rigorous imprisonment. The sentence of fine is reduced from Rs. 5,000 to Rs. 2,500 or in default to undergo two years' rigorous imprisonment. If the fine is realised, it shall be paid as compensation to the heirs of the deceased. The conviction of the appellant under section 307, P. P.
C. Is likewise altered to one under section 324, P. P. C. And the sentence awarded to him is reduced from one year to six months' rigorous imprisonment. The sentences of im--prisonment shall run concurrently. While computing the sentence of imprisonment of the appellant the Jail authorities shall grant him the benefit of the provisions of section 382-B of the Code of Criminal Pro--cedure.
The appeal is accepted to this extent.