' Ghulam Hussain (19), Muhammad Aslam (25), and Zulfiqar (29) were convicted by learned Additional Sessions Judge, Gujranwala, vide judgment, dated 27-1-1982, under sections 302/149, 307/149 and 148, P.P.C. They all were sentenced under section 302/149, P.P.C. To imprisonment for life and a fine of Rs,3,000 or in default two years' R.I. And under section 307/149, P.P.C. To five years'
R.I. And a fine of Rs, 1,000 or in default six months' R.I. Two-third of the fine, if recovered, was ordered to be paid to the heirs of the deceased. They were all sentenced under section 148, P.P.C. To sufer two years' R.I. All the sentences were ordered to run concurrently. They have come up in appeal against their convictions and sentences. Muhammad Ismail complainant filed criminal revision for enhancement of the sentence of the appellants and also to challenge the acquittal of the five acquitted accused. This revision was ordered to be heard alongwith the appeal. I propose to take up both these matters by this judgment as they are directed against the same judgment.
2. The prosecution case in brief is that Riaz Ahmad deceased had a fight with Ghulam Rasool son of Muhammad about one year before the present occurrence. He was being prosecuted in a case under section 325, P.P.C. Which was fixed for hearing on 20-8-1979. Only three days before the said date, i,e, on 17-8-1979, at about 6.00 a.m. Khushi Muhammad father of Riaz deceased and Muhammad Ismail, a cousin of the deceased were working in their field. Muhammad son of Mehr Dad, Umar Din and Muhammad Nazir (given up P.Ws) passed from near them on a tractor.
Suddenly, Ghulam Hussain (19) armed with hatchet and Zulfiqar (29) armed with hatchet, Muhammad Aslam (25) armed with knife alongwith Ghulam Nabi, Ghulam Qadir, Muhammad Amin and Mudassar Iqbal armed with sticks, came there. Muhammad Hussain alias Muhammad accused who was empty handed was also with them. They shouted Lalkaras and attacked Riaz Ahmad deceased and Khushi Muhammad P.W. Ghulam Hussain gave a hatchet blow on the arm of Riaz deceased. Muhammad Aslam gave knife blow on the arm of Riaz deceased. Zulfiqar accused inflicted hatchet blow on the right hand of Khushi Muhammad P.W. Both Riaz and Khushi Muhammad fell down whereafter all the accused gave injuries to them with their respective weapons. Muhammad Hussain alias Muhammad accused continued exhorting his co-accused by saying that they should take revenge of the beating of Ghulam Rasool by Riaz. The alarm attracted Muhammad Nazir and Um ir Din P.Ws whereafter the accused ran away. Riaz and Khushi Muhammad were removed to the hospital immediately after the occurrence where Riaz Ahmad died on 19-8-1979, at 4-15 p.m. After getting the medico-legal reports of Riaz and Khushi Muhammad, Muhammad Ismail P.W. Went to police station, Ahmad Nagar, District Gujranwala and lodged the F.I.R. Exh.P.H. On 17-8-1979, at 2.05 p.m. The police undertook investigation after registration of the case. Dr. Sultan All P.W.2. Medically examined Riaz Ahmad on 17-8-1979, at 9.30 a.m. And found the following injuries:-
(1) Contusion 12 x 11/2 c.m. On the right side of neck.
(2) Contused area with multiple small abrasions 7 x 7 c.m. On the outer surface on middle part of right upper arm.
(3) Incised wound 21/4 x 2# c.m. x bone deep on the outer surface of right upper arm on its lower third. Muscle tissues were cut.
(4) Incised wound 1/1/2 x 1/2 c.m. x # c.m. Slightly inner to injury No, 3 on the right upper arm.
(5) Incised wound 11/4 x 1 c.m. x bone deep on the outer surface of right upper arm 1 c.m. Below injury No,3.
(6) Incised wound 2 x 1 c.m. x bone deep on the outer surface of a right upper arm 1/2 c.m. Below injury No,5.
(7) Incised wound 1-3/4 x 3/4 x # c.m. On outer surface of lower end of right upper arm, 1 c.m. Inner to injury No,6.
(8) Contusion 12, x 11 c.m. With swelling around it 13 x 5 c.m. On the back and outer border of upper part of right fore-arm.
(9) Contused area 8 x 3 c.m. On the middle part of right fore-arm on its back.
(10) Contusion 91/2 x 21 c.m on the outer surface and back of right leg on its middle part.
(11) Contused area 7 x 6 c.m. On the outer surface and back of lower part of right leg. The whole leg on its back and outer surface was swollen around just below the knee to the ankle.
(12) Whole area on the upper surface right foot including the right ankle was swollen.
(13) Contused wound 3/4 x I c.m. x 4 c.m. On the inner surface of middle of left leg.
(14) Swelling 3 x 2 c.m. On the outer border of upper end of right fore-arm.
' Injuries Nos. 2, 3, 5, 6, 8, 9, 10, 11 and 12 were kept under observation. The rest were simple. Injuries Nos. 3, 4, 5, 6 and 7 were caused with sharp-edged weapon and the rest with blunt weapon. The duration of these injuries was about six hours. On the same day, he examined Khushi Muhammad P.W. At 9.45 a.m. And found seven injuries on his person. Injury No, 4 was on the right little finger with sharp-edged weapon with underneath bone completely cut. This was declared grievous. The remaining six injuries-on the fore-head, right shoulder, back end of right fore-arm, right ankle, right leg and iliac crest were by blunt weapon and of simple nature. These were also of six hours duration.
' Riaz Ahmad died on 19-8-1979 and Dr. Muhammad Yousaf P.W.1 conducted post-mortem examination on his dead body on 20-8-1979, at 1.30 p.m. He noticed that his right arm and fore- arm were markedly swollen giving foul smell. The swelling extended upto shoulder and neck. The wounds were only on the external surface of the right arm and fore-arm. On dissection, the putrified and gangrenous muscles bulged out of the incision. The right deltoid, biceps, triceps and brachialis muscles were found crushed under injury No,
1. These were putrified and gangrenous giving foul smell. In the opinion of the Medical Officer, the death had occurred due to shock because of toxamia caused by massive gangrene of muscle tissues in injury No,1, which was sufficient in the ordinary course of nature to cause death.
' The three appellants were arrested on-5-9-1978. Zulfiqar accused on that day, led to the recovery of hatchet P.2 which was taken in possession vide memo. Exh.P.K. While Ghulam Hussain accused led to the recovery of hatchet P.3 on that very day which was taken in possession vide memo.
Exh.P.L. By Muhammad Hafeez S.I. In the presence of Malkoo P.W.11 and Ghafoor (given up P.W.).
These weapons were not found to be stained with blood and therefore, not sent to the Chemical Examiner for examination. The three appellants and their five acquitted co-accused were challaned after investigation of the case.
3. The prosecution during the trial examined 13 witnesses in all.Muhammad Ismail P.W.7, Muhammad Hussain P.W. 8 and Khushi. Muhammad P.W.9 were examined as the eye-witnesses.
Muhammad Nazir, Muhammad and Umar Din P.W. Were given up as unnecessary. The medical evidence was furnished by Dr. Muhammad Yousaf P.W.1 and Dr. Sultan Ali P.W. 2 as given in detail above. The recoveries were witnessed by Malkoo P.W.11. The investigation was undertaken by Muhammad Hafeez S.I. P.W.12 and Muhammad Aslam Beg S.I. P.W.
13.
' The appellants and the acquitted accused when examined under section 342, Cr.P.C. Denied the charge and pleaded innocence. They denied their presence at the spot. Mudassar lqbal accused only examined Muhammad Khan retired S.P. As D.W.1 who proved the statements of Muhammad Ismail and Khushi Muhammad P.Ws. Recorded by him during investigation.
' The learned trial Judge relied upon the evidence of eye-witnesses and the motive. He convicted the three appellants as detailed above and acquitted the remaining five accused by giving them the benefit of doubt.
4. I have gone through the record of this case with the assistance of Dr. Abdul Basit, the learned counsel for the three appellants, Khan Muhammad, Younas Khan, Advocate, for the complainant and Hafiz Ghulam Bari, Advocate for the State. The learned counsel for the appellants did not dispute the occurrence. He argued that even if the entire prosecution case is accepted and the evidence is believed, then also it cannot be said that the three appellants were guilty of the offence under section 302/34, P.P.C. The precise argument of the learned counsel for the appellants was that Riaz Ahmad deceased received only simple injuries on non-vital parts of his body i,e, arm and fore-arm; that he died as a result of massive gangrene on his body and as such it could not be said that the appellants caused injuries to him or Khushi Muhammad P.W. With intention to murder.
It was argued that the grievous injury on the person of Khushi Muhammad was on finger and according to the Medical Officer, could be self suffered. It was, therefore, argued that the only offence under which the appellants could be convicted was 324, P.P.C. The learned counsel for the complainant and the State did not seriously controvert the above contentions of the learned counsel for the appellants.
5. According to Dr. Sultan Ali P.W.2, Riaz Ahmad deceased at the time of his initial examination was found to be having 14 injuries on his person. Out of these, injuries Nos. 3 to 7 had been caused by sharp-edged weapon while rest of the injuries were with blunt weapon. No one of these injuries was firstly, on the vital part of the body and secondly, grievous in nature. It appears that the weather at that time was very hot. This Medical Officer stitched the wounds with nylon thread with some unclean instruments. This resulted in massive gangrene resulting in the death of Riaz Ahmad. In my view, Riaz Ahmad did not die as a result of the injuries but on account of the gangrene that developed in his wounds. The appellants, therefore, cannot be held guilty for his intentional murder under section 302/34, P.P.C. The injuries on the person of Khushi Muhammad were simple in nature except injury No,4 which according to the Medical Officer, could be self-suffered. Even if this injury is treated as grievous in nature, then also the offence under section 307/34, P.P.C. Could not be said to have been made out against the three appellants. In view of the above, I am of the view that he three appellants can at the most be held guilty under section 324/34, P.P.C. For causing simple injuries to Riaz Ahmad and under section 326/34, P.P.C. For causing one grievous injury by sharp- edged weapon and six simple injuries by blunt weapon to Khushi Muhammad P.W.
6. The three appellants were arrested on 5-9-1978. Ghulam Hussain and Zulfiqar appellants remained in judicial lock-up during the trial till their conviction on 27-1-1982 by learned Additional Sessions Judge, Gujranwala. Muhammad Aslam accused, a victim of polio was allowed bail during trial after remaining in judicial lock-up for about eight months. The three appellants are in prison serving imprisonment under the impugned judgment since their conviction on 27-1-1982. This means that they have already suffered three years' imprisonment after their conviction. In view of the above, the three appellants are sentenced under section 326/34; P.P.C. For causing injuries to Khushi Muhammad P.W. And sentenced to imprisonment already undergone by them plus a fine of Rs,500 each or in default one month R.I. They are further sentenced under section 324/34, P.P.C. To imprisonment already undergone by them plus a fine of Rs,500, or in default one month R.I. The conviction of the trial Court under section 148, P.P.C. Was illegally awarded to the appellants and is set aside.
7. With the above modification, the appeal of the three appellants is dismissed. They shall be released from prison, if not required in any other case and after the fine is paid by them or after suffering the imprisonment in default.
8. For the reasons stated above, Criminal Revision No, 590/82 is dismissed in limine.