Ghulam Muhammad, aged 28 years, his brother Ghulain Farid, aged 30 years and their cousin Mumtaz, aged 27 years were tried by the learned Additional Sessions Judge, Sargodha, for offences under sections 302/34 and 307/34, P. P. C. for causing the death of Adbul Hamid (deceased), aged 19 years and the attempted murder of his mother Mst. Mehran P. W.
9. With regard to the death of Abdul Hamid deceased, the learned trial Judge did not find them guilty of an offence under section 302/34, P. P. C. but only of an offence under section 304/34, P. P.C./I. He, therefore, convicted all the accused under section 304-1/34, P. P. C. and sentenced each of them to transportation for life by his judgment dated 31-8-1968. With regard to the injuries caused to Mst. Mehran P. W. 9 he did not find the accused to be guilty of an offence under section 307/34, P. P. C. but only of an offence under section 323/34, P. P. C. and sentenced each one of them to six months' R. I. Both the sentences were ordered to run concurrently. All of them have appealed against their eonviction and sentences. [15] fell down. All the three appellants then gave further blows to the deceased as well as to Mst.
Mehran P. W. with the blunt side of their weapon. Ghulam Muhammad son of Sultan Ali (not produced) and Ghulam Farid P. W. 10 who were working nearby also reached there and witnessed the occurrence. The appellants then left the place along with their weapons.
3. The motive for the offence is stated to be that Ghulam Hussain alias Muhammad Hussain P. W. 5, the step-brother of Mumtaz appellant was married to Mst. Zeenat Khatoon the daughter of Ghulam Muhammad P. W. 8 {i.e. to the sister of the deceased). The couple started living in the house of Mumtaz appellant. A few months thereafter the latter turned them out of his house and they started living with Ghulam Muhammad P. W.
8. This is said to have annoyed the three appellants and because bf this grievance, about three months prior to the occurrence. Ghulam Farid and Ghulam Muhammad appellants gave a beating to Muhammad Aziz P. W. 6, the son of Ghulam Muhammad P. W.
8. For this they were challaned under section 325/34, P. P. C. During the investigation of that case an unlicensed revolver was recovered from the possession of Ghulam Farid appellant, for which he was challaned under the Arms Ordinance. Ghulam Muhammad P. W.
8 became a prosecution witness against him in that case. The said case was still pending when Abdul Hamid deceased was attacked and murdered.
4. Leaving his son Abdul Hamid (who was still alive but unconscious), in the care of the other P. Ws.
Ghulam Muhammad P. W. 8 proceeded to Police Station Khushab which is situated at a distance of 9 miles from the spot, and lodged the F. I. R. Exh. P. A. at 7-15 p.m. It was recorded by Iqbal Hussain Shah, Moharrir Head Constable, P. W. 7, wherein the offence was shown as one under section 307/34, P. P. C. Sarfraz Khan Niazi, S. H. O. Police Station Khushab, received the information about the registration of the case on the same day in the illaqa where he was present in connection with some other case. He proceeded to the spot and reached there at about 10 p.m. After preparing the injury statements of Abdul Hamid (deceased), and his mother Mst. Mehran P. W. 9 he sent both of them to the Civil Hospital, Khushab. Abdul Hamid died in the hospital on the next morning (i.e. 27-5- 1966) at 7-30 a.m., whereupon the F. I. R. was converted into one under section 302/34, P. P. C. All the accused were arrested on 27-5-1966.
During the investigation, Vahola P. 1 was recovered at the instance of Ghulam Muhammad appellant, Vahola P. 2 was recovered at the instance of Mumtaz appellant while hatchet P. 3 was recovered at the instance of Ghulam Farid appellant which were taken into possession vide memo.
Exhs. P. B., P. C. and P. D. Npne of these weapons was found to be blood-stained and could hot therefore, be connected with the offence. The trial Court has not discussed the same and has apparently not relied upon them as corroborating the ocular evidence.
5. Dr. Saeed Ahmad M. O. Civil Hospital, Khushab, P. W. 1 who had examined Abdul Hamid (deceased) found the following injuries on his persons:--
(1) A swelling "2 x 1' on the right temple and right side of head.
(2) Abrasion x J' on the right side of head 2* above the ear.
(3) Swelling in a circular area of 2'x $"x 1" above left ear.
(4) Incised wound 2|* x 1/8" on the inner side of right elbow.
(5) Contusion 6'x 1" on right shoulder-joint.
(6) Contusion 9" x 1" on the right chest.
(7) Contusion 14" x 1" on the right back.
(8) Contusion 7" x 1* parallel to injury No. 7.
(9) Contusion 7"x 1" on the right buttock.
(10) Contusion 6J' x 1" on the right thigh.
Injury No. 4 was caused by a sharp-edged weapon while the rest were caused with blunt weapon.
Injury No. 1 was grievous, while the remaining were simple.
On the same day at 4-45 p.m. he conducted the post-mortem examination on the dead body of Abdul Hamid and found the same injuries as mentioned above.
The right temporal and parietal bones were found fractured and a 3" circular piece of the skull was depressed from the surface. The membranes were otherwise healthy and spinal cord was also healthy. According to the doctor, injury No. 1 on the head was the immediate cause of death.
6. The same doctor {i.e. Dr. Saeed Ahmad), P. W. 1 had examined Mst. Mehran P. W. 9 and found the following injuries on her person:--
(1) Contusion 5" x 6* on the left upper arm.
(2) Abrasion 1^'x 1" on the left lower back.
(3) Contusion 8' x 6' on the left lower buttock.
(4) Swelling 2' x 2' on the inner side of left hand.
All the injuries were simple and were caused with blunt weapon.
7. After the completion of the investigation, the appellants were challaned for offences under section 302/307/34, P. P. C. and were ultimately committed to stand their trial before the Court of Session.
8. The prosecution produced 11 witnesses in support of its case including the 3 eye-witnesses. When examined under section 342, Cr. P. C. all the three appellants pleaded innocence and stated that they had been falsely involved due to enmity. At the trial, however, the defence put a suggestion during the cross-examination of the witnesses that Abdul Hamid deceased had caught hold of Mst.
Alam Khatoon, the sister of Mumtaz appellant when she was going towards the river side and dragged her towards the khola in order to assault her immorally and that Mumtaz appellant turned up at the spot and caused injuries to Abdul Hamid deceased under grave and sudden provocation. The learned trial Judge discarded the defence version suggested to the witnesses during the cross-examination according to which Mumtaz appellant alone had caused the injuries to the deceased and that too under grave and sudden provocation. On the other hand he believed the prosecution version, relying on the testimony of Ghulam Muhammad P. W. 8 and Mst. Mehran P. W.
9. It may be mentioned that he found the presence of Ghulam Farid P. W. 10, at the spot, to be doubtful and excluded his testimony from consideration. The learned trial Judge then proceeded to consider as to what offence had been committed by the appellants and in view of the fact that they had not used the sharp side of their weapons, he came to the conclusion that they had not intended to cause the death of the deceased. He found further that the offence committed by them was not covered by any of the causes of section 300, P. P. C. and observed that keeping in view the injuries on the head of the deceased it could be said that the offenders caused such bodily injuries as they were likely to cause death and concluded that the case therefore, fell under section 304-1, P. P. C.
It will be useful to reproduce paragraph No. 11 of the judgment in extenso for facility of reference: "The next question which is most crucial is what offence the accused persons committed. I have already reproduced the evidence of doctor Saeed Ahmad P. W. 1 verbatim above. There was 10 injuries on the deceased. Besides injury No. 4 which is an incised wound on the inner side of right forearm measuring 2|" x 8" the rest are swellings, abrasions and contusions. The nature of injuries shows that the attackers did not use sharp sides of their weapons while injuring their victims. This is also the prosecution story. If the weapons are not used by the sharp sides, the conclusion would be, that the attackers did not intend to cause the death outright. There are three injuries on the head region. Two injuries are simple in nature. Injury No. 1 was the cause of death and was sufficient to cause death in the ordinary course of nature as it caused the fracture of right temporal and parietal bones and depression of 3* circular piece of skull from the surface. The other injuries, on the rest of the body are also simple in nature. From the use of weapon from the wrong sides, the location of injuries and their result barring injury No. 1 it can safely be said that it could not be case of murder as defined in sectioh 300 of P. P. C. as the offenders could not be saddled with the intention of causing such bodily injury as the offenders knew to be likely to cause the death of Hameed deceased or that the act was done with the intention of causing such bodily injuries which might be sufficient in the ordinary course of nature to cause the death or that the injuries which might be sufficient in the ordinary course of nature to cause the death or that the injuries caused were so imminently dangerous that it must in all probability cause death. Only injury No. 1 proved fatal. It is not known who caused that injury. If the person who caused injury No. 1 had the intention of causing such bodily injury as he knew to be likely to cause the death then he should have used his weapon from the sharp side. To my mind it appears a case where it can be said that the offenders caused such bodily injuries as were likely to cause the death keeping in view the seats of injuries found on the head. The case is therefore covered by section 304, I Part, P. P. C. I, therefore, convict Ghulam Muhammad, Ghulam Farid and Mumtaz accused persons undes section 304/34, Part I, P. P. C. and sentence each of the accused persons to transportation for life."
9. I have heard the learned counsel for the appellants as well as the learned counsel for the State. I have also gone through the records with their help.
10. The learned counsel for the appellants contended, firstly, that keeping in view the fact that the two eye-witnesses relied upon by the learned trial Court are closely related to the deceased (being his father and mother respectively) and the fact that previous enmity existed between the parties, the testimony of the said eye-witnesses ought not to be relied upon for convicting the appellants without material corroboration and, secondly, that the learned trial Court had erred in concluding that the ofifence fell under Part I of section 304, P. P. C. He urged that it fell under section 325, P. P. C.
11. I am inclined to agree with the learned counsel for the appellants.
Admittedly the two eye-witnesses are very closely related to the deceased. It is on record that previous enmity existed between the complainant party and Ghulam Muhammad and Ghulam Farid appellants. Ghulam Muhammad P. W. 8 has himself admitted that two of the appellants, namely Ghulam Muhammad and Ghulam Farid had beaten his son Muhammad Aziz P. W. 6 and they were challaned under section 325/34, P. P. C. Muhammad Aziz P. W. 6 has also admitted this and stated that his arm was broken during that incident. Ghulam Muhammad P. W. 8 stated that he had appeared ,as a prosecution witness against Ghulam Farid appellant in a case under the Arms Ordinance. These cases were still pending when the present occurrence took place. The eye- witnesses, therefore, clearly come within the description of .'interested witnesses', and their testimony should not be relied upon without independent corroboration because there is a reasonable possibility that these two appellants, namely, Ghulam Muhammad and Ghulam Farid may have been involved falsely on account of the above mentioned enmity. However, there is no such independent evidence available on the record. As already mentioned, none of the weapons allegedly recovered at the instance of the appellants was found to be stained with blood. These could not, therefore, be connected with the offence in question and cannot constitute corroborative evidence qua the appellants. The defence however, by a suggestion made to the prosecution witnesses during the cross-examination, has admitted that Mumtaz appellant alone had caused injuries to the deceased. There is no specific enmity alleged between him and the complainant party except that he had a grudge against them on account of the fact that his step-brother Ghulain Hussain, who was married to the daughter of Ghulam Muhammad P. W. 8, had been kept by the latter in his house after Mumtaz appellant had turned him out of his own house. This, however, does not show that the complainant party had any cause for grievance with Mumtaz appellant. Their statements with regard to Mumtaz appellant, therefore, do not require any corroboration.
12. It has been seen that the injuries on the. person of the deceased and Mst. Mehran P. W. are 14 in number. All of them except injury No. 4 on the deceased are with blunt weapon. Injury No. 4 could be caused by a Vahola as well as a hatchet. All the 14 injuries could have been caused by one person but even if it were argued that these two persons were necessary to inflict 14 injuries and at least one more person besides Mumtaz appellant was present at the spot, it cannot be said with any amount of certainty as to which one of the two, namely Ghulam Muhammad and Ghulam Farid appellants was that person. The benefit of doubt has, therefore, to be given to both of them.
13. In view of the above discussion, I find that the case against Ghulam Muhammad and Ghulam Farid appellants has not been proved beyond reasonable doubt. They are, therefore, entitled to acquittal.
14. As far as the case of Mumtaz appellant is concerned, I am inclined to believe the statement of Ghulam Muhammad P. W. and Mst. Mehran P. W. 9 for the reasons given in para. No. l2 above. The only thing that remains to be considered is as to the offence committed by him. The case of prosecution has consistently been that the sharp side of the Vahola or hatchet had not been used in inflicting the injuries on the deceased or Mst. Mehran P. W.
9. The learned trial Court has itself found that the appellants did not intend to cause the death of Abdul Hamid. The Supreme Court of Pakistan held in Ahmad and 3 others v. The State (1) that under such circumstances where the sharp side of the weapon of offence was not used in inflicting the blows the offence would under section 325/34, P P. C. rather than under section 304-1, P. P. C. In that four appellants along with three others were tried for offences under sections 302 and 307, P. P. C. read with section 149, P. P. C. for having formed an unlawful assembly and committed armed rioting, and for having in the prosecution of the common object of the said unlawful assembly, caused the death of Sohna and attempted to kill his brother Mahla P. W. [16] The four appellants before the Supreme Court were convicted inter alia of an offence under section 304-1, P. P. C. On considering the circumstances of the case, their Lordships of the Supreme Court found that the offence committed by the appellants fell under section 325/34, P. P. C. and not under section 304-1, P. P. C. The following observations of the learned Court are relevant:-- "According to the evidence, all the appellants, who were armed with hatchets and lathis, gave blows to the deceased as well as to Mahla, P. W. However, the fact that the deceased had sustained only one blunt weapon injury on his chest, which proved fatal, bears out the contention of the appellants that they had no intention to kill the deceased. ; The^ did not use the sharp side of their hatchets on him. But their intention to cause grievous injuries to him cannot be doubted, as all of them joined in showering blows on him. Each of the appellants, who had joined in this attack on the deceased, must share the intention of his co-accused who actually caused the fatal injury, as they were all acting in concert with each other at that time with the intention, as clearly manifested by the result, which they have produced, of causing grievous injuries to the deceased. Similarly, in regard to the grief caused to Mahla by the numerous injuries given to him, there can be no mistake about their intention of taking away his life and if he had died, they would have been guilty of murder. In this view of the matter, we are of the opinion that in regard to the death of Sohna, the convictions of all the appellants should have been recorded under section 325/34, P. P. C. We would alter their convictions accordingly from section 304, Part I to section 325/34, P. P. C." (Note:--The underlining* is mine).
15. Respectfully following the above-noted authority, I hold that the offence committed by Mumtaz appellant falls under section 325/34, P. P. C. and not under section 304, Part I, P. P. C. In the cited case their Lordships considered the sentence of7 years' R. I. to be appropriate but in that case the number of injuries to the deceased and his brother were taken together, much larger in number. In that case the accused had indicted 31 injuries to the deceased and his brother. In the present case, however, the total number of injuries is only 14, and only one injury i.e. injury No. 1 on the head of the deceased turned out to be fatal.
In this view of the matter I think that 6 years' R. I. would meet the ends of justice in the present case.
I6. The nit result of the above discussion is that I accept the appeal of Ghulam Muhammad and Ghulam Farid appellants and acquit them of both the charges i.e. for causing the death of Abdul Hamid and simple injuries to Mst. Mehran P. W.
9. They should be set at liberty if they are not wanted in any other case. ?[Here in italics] As for Mumtaz appellant, I alter his conviction from under section 304, Part I, P. P. C. to one under section 325/34, P. P. C. and reduce his sentence to 6 years' R. 1.1, however, maintain his conviction under section 323, P. P. C. as well as the sentence thereunder. Both the sentences shall run