BASHIRUDDIN AHMAD, J.-Ghaffar (31) alongwith his brother Fateh Muhammad (27) and Nazar Hussain (31) were tried for offences under sections 342/34 and 302134, P. P. C. By the Additional Sessions Judge, Gujrat, who acquitted Fateh Muhammad and Nazar Hussain of both the charges but convicted Ghaffar under section 342, P. P. C. To undergo rigorous imprison--ment for two years and also under section 302, P. P. C. For the murder of Ghulam Muhammad and sentenced him to suffer death. The sentence of imprisonment was ordered to take effect in the event of the death sentence being not confirmed by this Court.
2. The convicted person appealed and the case is also before us on reference under section 374, Cr. P. Code, for confirma--tion of the death sentence. We propose to dispose of the appeal as well as the reference by a single judgment.
3. The prosecution story, briefly narrated, is that on June 10, 1966. At degarwela, the deceased was called from his house by Nazar Hussain who took him to the house of his co-accused Ghaffar and Fateh Muhammad, where he was wrongfully confined, and administered a long and continuous beating by the appellant and his brother, Fateh Muhammad by means of a ghotna and a hatchet.
Mst. Hashmat Bibi, wife of Ghulam Muhammad happened to pass by the house of the appellant and his brother while on her way to the house of Nur Alam and heard a noise. She found Nazar Hussain standing in the outer door of the house of Ghaffar and Fateh Muhammad. She enquired from Nazar Hussain as to what was happening inside the house, but he put her off by saying that nothing was going on in the house, She then peeped inside the house from a window opening in the street as she suspected that the outcries raised were by her husband and that Ghulam Muhammad was being belaboured by Fateh Muhammad and Ghaffar with a hatchet and a ghotna. Mst. Hashm.At Bibi raised an alarm. Nazar Hussain ran away. Hafiz All, Nur Muhammad and Faiz Muhammad witnessed the occurrence. They forced open the door of the room in which the deceased was being assaulted and found Ghulam Muhammad lying injured on the ground.
The motive for the murder was two-fold. Firstly, it is alleged by the prosecution that the deceased suspected the appellant and his brother for theft in his house and secondly, the deceased reprimanded the appellant and his brother for beating Mst. Hajran, his niece, who bas been married to Ghaffar. Three days before the occurrence, under consideration, the deceased was present with his wife in his house when Mst. Hajran informed them that her husband Ghaffar had again beaten her. She requested Ghulam Muhammad to take her to the house of her parents. On the same day, Ghulam Muhammad took her to the house of her father at village Kot Sindhu, Gujranwala District, and left her there. He returned to the village a day before he was mercilessly beaten.
4. When Ghulam Muhammad was being taken on a cot towards the hospital, he came across A. S.
1. Muhammad Yousaf (P. W. 15) ata distance of half a mile from Shadiwal Police Post and made to him the statement Exh. P. F. At 11-00 a.m. The same day. The A. S. I. Prepared the injury-sheet and sent him to the Civil Dispensary, Shadiwal, for medical examination. The doctor incharge of Rural Dispensary, Shadiwal, did trot examine Ghulam Muhammad and instead referred him to Civil Hospital, Gujrat, where he was medically examined. He succumbed to the injuries in the District Headquarters Hospital, Gujrat, at 12-50 in the after-noon on 11-6-56. A. S. 1. Zafar Ahmad (P. W. 3) prepared the inquest report and then despatched the dead body to the mortuary for post-mortem examination.
5. A. S. 1. Mohd. Yousaf, who visited the spot took into possession blood-stained pieces of stick. Exhs.
P. 1 to P. 5 and blood-stained danda, Exh. P. 6, vide memo. Exh.P. A. He also took into possession blood-stained earth from the spot and sealed it into a parcel, vide memo. Exh. P. B. Mirza Amir Muhammad and Dr. Maula Bakhsh attested both the recovery memos. Exhs. P. A. And P. B. As marginal witnesses. The appellant was arrested on June 13, 1966.
6. Dr. Ghulam Sarwar (P. W. 1) examined Ghulam Muhammad on June 10, 1966 at 4-05 p.m. And found the follow--ing injuries on his person: -
(1) Lacerated wounds --" x 1/8' x --", --' x --x --" and --"x -- x --,one inch and i" apart with abrasions 1" below. These were of sizes --" x -- and --" x --" on the outer aspect of left arm, lower part and outer aspect of left elbow. The area 8" x 4" around these injuries was covered with multiple reddish contusions overlapping each other. All the area was swollen on the front and outer aspect of left arm lower part, front and outer aspects and upper part of left fore-arm. Individual con--tusions could not be distinguished.
(2) A lacerated wound 1" x -- x -- on the back of the left fore-arm, upper part.
(3) Three abrasions of sizes -- x --"x -- -- and 1/3" x --" on the back of left fore--arm lower part.
(4) Abraded contusion 3" x 1" on the back of the left hand.
(5) Multiple small abrasions of sizes from -- x --" to --' x --" on the back of left thumb, index finger and middle finger.
(6) Abraded red contusion 2" x 1" on the left chest front 3' below the nipple.
(7) Multiple reddish contusions overlapping each other in such a manner as to make it impossible to distinguish between individual contusions over an area 11" x 5" on the left side of the chest and abdomen.
(8) Multiple reddish contusions with surface abraded over an area 9" x 5" on the outer side of the left thigh upper part and buttocks. Individual contusions could not be made out.
(9) Multiple reddish contusions over an area 13" x 6-- on the outer side of left thigh lower part and outer aspect of left knee. Individual contusions could not be made out.
(10) Three lacerated wounds --' x --" x bone deep, 1/8'x -- x bone deep and --" x --" x bone deep within an area 5 x 3" on the front and outer aspect of left leg lower part covered with multiple reddish contusions overlapping each other. The third lacerated wound was also of the size of -- x - - x bone deer-
(11) Abraded contusions 2" x 1" and 2" on the right upper chest.
(12) Reddish contusion 2" x 1" on the right fore-arm outer lower part and 1"x J" x ~." on the back of right thumb ed wounds I' x J' x J" and J' x J' x J" on the x finger.
(15) Lacerated wound with reddish contusion 2" x 1" around it on the back of right hand.
(16) Incised would -- x --x --" with a tapering tail1--" long in the right groin.
(17) Abrasion 1/8"x 1/8 on the front of right knee, --" x -- on the outer aspect of right knee and 1" x --" on the front of right ankle. .
After the death of Ghulam Muhammad in the hospital, the same doctor performed post-mortem examination on his dead body on June 12, 1966 at 8-35 a.m. And found almost the same 17 injuries which he had noticed at the time of the medico-legal examination of Ghulam Muhammad. Death, in the opinion of the doctor, was caused as a result of shock from multiple injuries, which according to, him were sufficient to cause death in the ordinary course of nature, collectively.
7. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. When called upon to explain why he had been implicated in the case, he came-forth with the following statement: - "All the witnesses, who are refugees from Jammu and Kashmir State are inimical towards us. We used to live in a lower storey of -an evacuee house While Noor P. W. Used to live in the upper storey.
The relations between us and Noor Muhammad P. W. Were bad and the matter was reported to the Police. Noor Muhammad P. W. Ultimately removed the mulba of his upper storey and in this way he is inimical towards us and due to, this reason he has falsely deposed against me and my co- accused."
8. No evidence was produced in defence.
9. At the trial Mst. Hashmat Bibi (P. W. 12), Hafiz Ali (P. W. 13) and Nur Muhammad (P. W. 14) gave direct evidence. Mst. Hashmat Bibi is the widow of Ghulam Muhammad deceased. Hafiz Ali and Nur Muhammad are in no way related to him. Mst. Hashrriat Bibi was present in her house when her husband was taken by Nazar Hussain to the house of the appellant and his brother Fateh Muhammad. Shortly afterwards, Mst. Hashmat Bibi left for the house of Noor Alam it order to fetch water and as she was passing by the house of the appellant, she heard a noise from inside his house. She noticed Nazar Hussain present in the outer' door of the house of Ghaffar and Fateh Muhammad. She recognized the voice of her husband and asked Nazar Hussain as to what was happening inside the house. Nazar Hussain, however, tried to put her off by saying that nothing was going on inside the house. She then peeped through a window and saw the appellant and his brother belabouring her husband with a danda and a hatchet. She raised an alarm and Nazar Hussain fled away. She continued raisinghue and cry which attracted Hafiz Ali, Noor Muhammad and Faiz Mohd to the spot. They found that the door of the room in which Ghulam Muhammad was being belaboured was bolted from inside. They forced open the door and found Ghulam Muhammad lying in--jured on the ground. Ghaffar appellant left the danda at the spot and Fateh Muhammad took away the hatchet with him. Hafiz Ali and Noor Muhammad sufficiently corroborated the version Liven by Mst. Hashmat Bibi in all material particulars.
10. Hafiz Ali P. W. Is Naib-Subadar Retired. Learned counsel who argued the appeal was unable to pick holes in the evidence of this witness except that at three different stages of cross-examination of Hafiz Ali, a futile attempt was made `to prove that he gave evidence either because of his interest in the deceased or bias against the accused. Hafiz Ali admitted that the house of his son- in-law Abdul Ghani and that of Ghaffar and Fateh Muhammad accused had a common wall, but denied all knowledge regarding any dispute between Abdul Ghani and the appellant over the construction of that wall. It was put to the witness that Ghaffar, Fateh Muhammad and Nazar Hussain appeared against him as witnesses in a criminal case, but he repelled the suggestion.
There had been a fight between Hafiz Ali and certain Arains some time before the occurrence, under con--sideration, when Fateh Muhammad also happened to come to the bela where the fight was going on. Hafiz Ali asked him as to why he had come to the bela and Fateh Muhammad went away. Hafiz Ali admitted that he had the suspicion that. Fateh Muhammad might have come to the spot to help Arains. Learned counsel, therefore, tried to build an argument that Hafiz Ali was not favourably disposed towards the appellant. We do not agree, because notwithstanding the admission on the part of Dr. Maula Bakhsh, one of the recovery witnesses, to the effect that there are two opposing factions in the village; one headed by Ch. Ghulam Haider Lambardar and the other by Mirza Innayat Beg, a retired Government servant, we feel that Hafiz Ali was not prompted to give evidence in this case on account of party faction. The appellant belongs to the party of Ghulam Haider Lambardar, but there is nothing on the record to suggest that Hafiz Ali had identified himself with the opposite-party and gave evidence against the appellant due to party faction. It was suggested to Hafiz Ali that he appeared as a prosecution witness in a criminal case against Ghulam Haider and that the Magistrate started proceedings against him for giving false evidence, but Hafiz Ali denied it. Hafiz Ali was subjected to a lengthy cross-examination, at the trial, but on going through his evidence the impression that we have gained is that he is a witness of truth, It is true that a number of omissions from the statement of this witness before the committing Magistrate were brought on the record in his statement, at the trial, but they are too minor to adversely reflect upon the credibility of this witness. . Similarly, we find the evidence of Nur Muhammad to be free from any serious defect making' it unacceptable. Noor Muhammad is a. Refugee from Jammu and Kashmir State. He migrated to Pakistan at the time of Independence simultaneously with Hafiz Ali. Noor Muhammad was allotted the house at village Qiladar and lie allowed the appellant and his brother Fatch Muhammad to occupy the lower portion of the house. Nur Muhammad stated before the committing Magistrate that the upper portion of this house was allotted to him and the accommodation oil the ground floor was allotted to Ghaffar and Fateh Mohd. He did not tell the committing Magistrate that the full house was originally allotted to him and that he gave the lower portion to the appellant and his brother. The suggestion that there had been a dispute between Noor Muhammad on the one hand and Ghaffar and Fateh Muhammad on the other in respect of this house was denied by Nur Muhammad. He also repelled the suggestion that he was turned out of his house by Ghaffar and Fateh Muhammad and on that account he volunteered evidence against them in the present case.
It is in the statement of Nur Muhammad that the mother-in-law of his sister was murdered in Kunjah and his sister was prosecuted. There were no eye-witnesses in the case and as regards the remain--ing witnesses, it was put to him that they were related, to the accused persons, but the witness denied the suggestion. From the trend of the cross-examination of the witness, it is evident that in fact there was nothing substantial to be put either to Hafiz Ali or Nur Muhammad to prove that they did not see the occurrence or that they were biased against the appellant. The trial Judge decided to reply on the evidence of Hafiz Ali and Nur Muhammad and he considered both of them as disinterested and independent witnesses. We concur with his finding in this respect. The suggestions put to the witnesses in cross-examination have not impressed us and as such we do not consider them sufficient to lead to the conclusion that the witnesses have deposed against the appellant on account of their ill-feeling against him.
11. The ocular evidence apart, there is also the 'evidence of the dying declaration. The deceased was being taken towards the Rural Dispensary at Shadiwal after the occurrence when his state-- ment Exh. P. F. Was taken down by A. S. 1. Mohd. Yousaf and on the basis of that statement a case under sections 342/34 and 308/34, P. P. C. Was registered by M. H, C. Mahtnood-L11-llassan at Kunjah Police Station. The report Exh. P. F. Came to be treated as a dying declaration after the death of Ghulam Muhammad when the offence under section 308, P. P. C. Was changed to one under section 302, P. P. C. The deceased stated in Exh. P. F. That he alongwith Nazar Muhammad was sitting at the thurra of the Primary School when he was dragged inside their house by Fateh Muhammad and Ghaffar, who chained the kotha from inside. Fateh Muhammad and Ghaffar assaulted him with a hatchet and a stick. He raised an alarm, which attracted Mst. Hashmat Bibi and Hafiz Ali to the spot; Ghaffar and his brother caused him injuries resulting in the fracture of his left arm and leg. He also sustained injuries with the hatchet on the right hand, and that he was rescued by a number of persons, who came there on hearing his outcrics A. S. I. Muhammad Yousaf, who recorded Exh. P. F. Made a categorical statement that Ghulam Muhammad was fully conscious when his statement was recorded by him. The deceased was assaulted at about 10-30 a.m. Dr. Masood Mirza (P. W. 10) who, was incharge of the Rural Dispensary, Shadiwal, at the material time stated that Ghulam Muhammad was brought to the Rural Dispensary, Shadiwal, at about 1-45 or 2-00 P.m. The witness added that the deceased was in a state of unconsciousness.
The doctor, who examined Ghulam Muhammad at Gujrat deposed that he was semi-conscious when he was brought to the hospital. The trial Judge doubted the genuineness of the dying a declaration not only because of the circumstance that the doctors at Shadiwal and Gujrat both had found Ghulam Muhammad not to be in his full senses, but also for the reason that the prosecu--tion did not question F. C. Sardar Khan and Dr. Maula Bakhsh, Homeopath, as to whether Ghulam Muhammad was in a fit con--dition to make a statement or actually made the statement Exh. P. F. To the A. S. I. Suffice it to say that F. C. Sardar Khan was deputed by the A. S, I. After he had recorded Exh. P. F. Of Ghulam Muhammad to escort him to the Rural Dispensary, Shadiwal. Dr. Maula Bux, Homeopath, helped in taking the deceased on a cot to the dispensary. They were not made to attest Exh. P. F. For, at that time A. S. I. Mohd. Yousaf had not the least inkling that Exh. P. F.
Was likely to be treated as dying declaration. It was, therefore, not necessary for the prosecution to examine either. F. C. Sardar Khan or Dr. Maula Bakhsh. The obvious objection in the event of their examination on the point would have been that they were not made to attest the statement Exh.
P.F.
12. The learned Additional Sessions Judge, by strange pro--cess of reasoning, decided to eliminate from consideration the dy--ing declaration on flimsy grounds. There is nothing in the evidence of the medical witnesses to the effect that in all probability there deceased must have lost consciousness immediately after the receipt of the injuries. The doctor at Shadiwal examined Ghulam Muhammad nearly three hours after the actual occurrence and the doctor at Gujrat much later and if in the meantime Ghulam Muhammad became semi-conscious, it could not be reasonably inferred that Assistant Sub-Inspector Muhammad Yousaf had fabricated Exh. P.F.
Attributing it to Ghulam Muhammad, The conclusion arrived at by the trial Judge that the dying declaration was in conflict with the medical evidence is also not well-founded. The deceased had three incised injuries and although these injuries were minor, it cannot be reasonably held that they were self-inflicted or self-suffered in order to falsely implicate Fateh Muhammad in the case. There is preponderance of evidence that not only Ghaffar appellant, but his brother also took part in the occurrence. The large number of injuries found on the person of the deceased were caused not only by danda (ghotna) but also from the wrong side of the hatchet. Having come to the conclusion that Hafiz Ali and Nur Muhammad were independent and disinterested witnesses, the trial Judge was not justified to have considered the participation of Fateh Muhamma6 in the occurrence as doubtful. Hafiz Ali and Nur Muhammad fully implicated Fateh Mohd. The mere fact that Fateh Muhammad was not apprehended by the witnesses at the spot or that the hatchet which he had was not wrested from him was hardly sufficient to give him the benefit of doubt. We therefore, feel that Fateh Muhammad did participate in the commission of the crime, but as there is no appeal by the State before us, we allow the matter to rest there is so far as Fateh Muhammad is concerned.
13. The motive, as disclosed in the statement Exh. P.F. Made by the deceased was not only supported by Mst. Hashmat bibi, at the trial, but also by Mst. Hajran who was examined as the 11th witness for the prosecution. Mst. Hajran, is definite that Ghulam Muhammad deceased took her from the house of Thaffar and left her in the house of her parents at Gujranwala on Thursday and that he was put to death on the following day which was Friday. Mst. Hajran is the wife of the appellant. The con--tention that Mst. Hajran is not the niece of the deceased has no basis for it.
There is thus sufficient evidence in proof of the motive.
14. This brings us to the question as to what offence the appellant has committed in this case.
There is no doubt that the number of injuries inflicted on the deceased was large, but they were mostly the result of the use of blunt weapon. The blows were mostly aimed on the left arm and the left leg. There was dislocation of left elbow-joint and both bones of the left leg had comminuted fractures just above the ankle and the outer part of the leg had another fracture 3" above the fracture mentioned above. There were also injuries on the right fore-arm, right hand and the right thumb with fracture of the second meta-carpal hone. Injuries Nos. 6 and 7 were on the left chest and left side of the abdomen, but there was no internal injury. No ribs were broken, nor there was any head injury to the' deceased. The reasoning given in Inder Singh and others v. The Crown (I L R 10 Lah. 477) is in our opinion, applicable to the instant case for coming to the conclusion that the offence falls more appropriately under section 304, Part II and not under sec--tion 302 of the Pakistan Penal Code. The motive too was also not sufficiently strong to hold that the assailants intended to cause the death of Ghulam Muhammad. For all these reasons, we alter] the conviction of the appellant from under section 302 to one under section 304, Part II, P. P. C. And replace the, sentence of death with rigorous imprisonment for a period of ten years, as the assault was a brutal one on the victim who was empty handed. The conviction and sentence of two years' R.I. Passed on the appellant by the trial Court under section 342, P. P. C: is main--tained. Both the sentences shall run concurrently. The appeal is accepted to this extent only. The death sentence is-not confirmed.