Briefly stated the prosecution case is as follows:- Ghulam Muhammad complainant is Zamindar of Chah Qasimwala in village Dheraj. His brother Muhammad Nawaz was tenant under Murad in the same village. On 23-11-1981 at 11-00 a.m., Muhammad Nawaz deceased started ploughing his tenanted land. About 3 Killas away, Ghulam Muhammad complainant was ploughing the land of one Soofi Muhamad Nawaz. He saw Zahoor armed with stick, Riaz armed with stick, Bashir armed with Kassi and Irshad armed with Danda running towards his brother Muhammad Nawaz. He, therefore, left his plough and rushed towards his brother to entreat the accused. Zahoor etc. Accused charged Muhammad Nawaz deceased of having removed oil from the oil chamber of their engine. Muhammad Nawaz denied the allegation.
Ghulam Muhammad complainant pleaded with the accused not to pick up quarrel saying that he would give them an assurance of innocence of his brother on oath. The parties separated and Ghulam Muhammad complainant started back to his Jhog. He had covered a short distance when Zahoor accused challenged Muhammad Nawaz who started running to save himself. All the accused gave him a chase. After covering a short distance, Zahoor and Riaz accused gave one Sota blow each on the head of Muhammad Nawaz who fell down. Bashir and Irshad accused also gave blows to Muhammad Nawaz with their respective weapons. The alarm attracted Muhammad Aslam P.W. Who rushed to the spot from his house. He was also given blows by the accused with their respective weapons. The occurrence was witnessed also by Akbar and Nazar P.Ws. Who were cutting fodder in the nearby field. The accused left the spot with their respective weapons.
Muhammad Nawaz and Muhammad Aslam were taken to Civil Hospital, Garh Maharaja where the Medical Officer was not available. The injured were, therefore, taken to Civil Hospital, Ahmadpur Sial for treatment and examination. Ghulam Muhammad P.W.
7. Leaving the injured in hospital went to Police Station Garh Maharaja, District Jhang, about 5 miles from the place of occurrence in Square No. 23, at Chah Muradwala in village Dheraj and lodged F.I.R. Ex. P.H. At 3- 00 p.m. On 24-11-1981 recorded by S.I. Muhammad Afzal P.W.9.
2. Dr. Muhammad Salim P.W.1 on 23-11-1981, at 5-00 p.m. Medically examined Muhammad Nawaz deceased aged about 45 years when still alive, and found the following five injuries on his person:-
(1) A lacerated wound 3-1/2 c.m. x 1 c.m. x bone deep on the top of the head, 9-1/2 c.m. Above right eyebrow.
(2) A lacerated wound 3 c.m. x 3 c.m. Scalp deep on the top of the head, 3 c.m. To the left of injury No.1.
(3) Swelling 10 c.m. x 7 c.m. On the left side of the head and left temporal region.
(4) Swelling 12 c.m. x 7 c.m. On the right side of the head and right temporal region.
(5) An abrasion 1/2 c.m. x 1/2 c.m. On the inner side of right ankle.
The pupils of Muhammad Nawaz were not reacting to light. He was in deep comma and had breathing difficulty. Injury No. 5 was simple while remaining injuries were kept under observation. All the injuries had been caused by blunt weapon and were of 8/9 hours duration. On the same day, at 5-30 p.m., the same Medical Officer examined Muhammad Aslam P.W. And found five blunt weapon simple injuries of various dimensions on right side of head, right clavical, right middle back, right finger and left wrist.
Muhammad Nawaz died in hospital at 2-30 p.m. On 26-11-1981.
The same Medical Officer on 27-11-1981, at 8-00 a.m. Conducted post-mortem examination on the dead body of Muhammad Nawaz. He noted the same injuries on the dead body as given in detail above. On dissection, the whole scalp was found contused and covered with clotted blood. There was compound fracture of the vault of the skull under injuries 1 and 2. The suture of skull were opened under injuries 3 and 4. The membranes and brain were contused and covered with blood.
The death was due to shock and haemorrhage as a result of injuries 1 to 4 which were sufficient in ordinary course of nature to cause death. All the injuring had been caused by blunt weapon. The time between injuries and death was 3 to 4 days and post-mortem was conducted after about 17/18 hours of death.
In cross-examination, Dr. Muhammad Salim P.W.1 admitted that injury No. 4 could be the result of injury No. 1 while injury No. 3 could be the result of injury No.2.
3. The police during inspection of the spot did not find any blood--stained earth. The accused were arrested on 30-11-1981.
On 30-11-1981, Zahoor Hussain accused produced Sota P.2 vide memo. Exh.P.J.; Riaz Hussain accused produced Sota P.3 vide memo. Exh.P.K.; and Bashir accused produced Kassi P.4 vide memo. Exh.P.L. Before S.I. Muhammad Afzal P.W.9 in presence of Ghulam Muhammad P.W.7 and Muhammad Bashir P.W., not examined. These three weapons were not stained with blood.
The accused were challaned after completion of investigation.
4. The prosecution in support of its case examined nine witnesses in all. Muhammad Aslam P.W.6, Ghulam Muhammad P.W. 7 and Muhammad Akbar P.W.8 were examined as eye-witnesses of the occurrence. Nazar, another eye-witness named in the F.I.R., was given up as unnecessary. Ghulam Muhammad P.W. 7 also witnessed recoveries of crime weapons from the accused. The medical evidence was furnished by Dr. Muhammad Salim P.W. 1 as given in detail above. The case was investigated by S.I. Muhammad Afzal P.W.9. The evidence of the rest of the witnesses was of formal nature.
The accused in their statements after close of prosecution evidence denied the charge and pleaded innocence. They denied the incriminating recoveries and attributed the case against them on account of enmity. They did not produce any evidence in defence.
The learned Additional Sessions Judge, Jhang placed reliance on the prosecution evidence and sentenced Zahoor Hussain 28 and Riaz Hussain 26 to imprisonment for life and fine of Rs.2,000 or in default six months' R.I. Under section 302/34, P.P.C. It was ordered that they will pay Rs.5,000 each as compensation to heirs of Muhammad Nawaz deceased aged about 45 years and in default to suffer six months' R.I. They both were further sentenced to one year R.I. And fine of Rs.1,000 or in default three months' R.I. Under section 323/34, P.P.C. Both the sentences were ordered to run consecutively. Hence this appeal.
Bashir 27 and Irshad 24, two co-accused of the appellants were, however, acquitted by the same judgment.
Ghulam Muhammad complainant filed Criminal Revision No. 87 of 1983 for enhancement of the sentence of Zahoor and Riaz accused and for conviction of the two acquitted accused. It was not admitted and only ordered to be heard along with the connected appeal. This judgment will dispose of both these matters together.
5. The learned counsel for the appellants stated at the Bar that he would not deny the occurrence in this case. It was argued by him that at its best the two appellants could have been convicted under section 304(I), a P.P.C. And that from facts and circumstances of this case no offence under section 302/34, P.P.C. Was made out against them. On facts it was contended that the delay in lodging of the F.I.R. Has not been properly explained; secondly, that the witnesses were interested and not reliable; and thirdly, that the medical evidence did not support the ocular account of this case. The learned counsel for the State and the complainant controverted the above contentions.
6. Ghulam Muhammad P.W. 7 was brother of Muhammad Nawaz deceased. Muhammad Aslam P.W. 6 and Muhammad Akbar P.W. 8 were cousins inter se and nephews of Muhammad Nawaz deceased. The witnesses were closely related to the deceased but had no enmity to falsely involve the accused in this case.
Zahoor, Riaz and Bashir accused were brothers inter se and Irshad accused was their cousin.
Muhammad Aslam P.W.6 was injured. His house was not at much distance from the place of occurrence where he reached to protect his uncle after hearing the alarm. His presence at the place of occurrence can, therefore, not be denied. Ghulam Muhammad P.W. Stated that he was ploughing a nearby field and saw the present occurrence. Muhammad Akbar P.W. Was cutting fodder in the nearby field and went to the place of occurrence on hearing the alarm. These witnesses were, therefore, natural witnesses. They made consistent statements during the trial and I do not find any circumstance to exclude their evidence from consideration. They cannot be disbelieved simply because of their relationship with the deceased.
It is correct that the F.I.R. Was lodged with a delay of about 28 hours but this delay was sufficiently explained by Ghulam Muhammad in F.I.R. Itself. It was stated by him that the Medical Officer was not available at) Garh Maharaja on account of which the injured were taken to Civil Hospital, Ahmadpur Sial. The medical evidence indicates that Muhammad Nawaz was in precarious condition at the time of examination. It was, therefore, natural that the two injured were removed to hospital in an effort to have medical aid. It is also stated in the F.I.R. That there was strike of buses on account of which matter could not be reported immediately to the police. There was, therefore, reasonable explanation of the delay in lodging of the F.I.R.
I have gone through the statement of Dr. Muhammad Salim P.W.I. I do not find any conflict between the medical evidence and the ocular account furnished by the three eye-witnesses. It was contended by the learned counsel that according to the Medical Officer, injuries 3 and 4 were not independent injuries but were the effect of injures 1 and 2. It was argued that the medical evidence was not in line with the statements of the eye-witnesses. The three eye-witnesses were at some distance from the accused when they were inflicting injuries to Muhammad Nawaz. They might have missed to notice the location of each and every injury on the person of the deceased. I, therefore, find this contention as without any basis.
There is, however, some force in the contention on behalf of the appellants that even if all the facts were admitted then also only an offence under section 304(I), P.P.C. Was made out against them. It will be observed that firstly, Ghulam Muhammad complainant had patched up the differences between the accused and the deceased a short while before the present occurrence. After settling the matter, Ghulam Muhammad started walking back to his Jhog when all of a sudden, there was Lalkara by Zahoor accused. This means that something did happen after Ghulam Muhammad started moving back to his Jhog. It is in evidence and is also clear from the statement of Medical Officer that Zahoor Hussain and Riaz Hussain accused gave one stick blow each on the head of Muhammad Nawaz deceased who fell down. They did not repeat injuries on the person of Muhammad Nawaz when he was lying on the ground. According to the Medical Officer, injuries 3 and 4 were the effect/result of injuries 1 and 2. The 5th injury on the right ankle of deceased was of simple nature. Muhammad Nawaz died in hospital on 26-11-1981 at 2-30 p.m. i.e. After about 3 days of this occurrence. The delay in lodging of the F.I.R. Though explained gives an impression that the complainant party itself, was not sure about the nature of the case. The occurrence took place all of a sudden. It, therefore, appears that the accused did not inflict these injuries with an intention to murder. This was also the finding of the learned trial Judge. The accused could only be said to have knowledge that the injuries inflicted by them on the person of Muhammad Nawaz deceased could result in his death and as such, they could only be punished under section 304(1)/34, P.P.C. And not under section 302/34, P.P.C.
7. In view of the above discussion, Zahoor Hussain and Riaz Hussain accused-appellants are sentenced to seven years' R.I. And fine of Rs.2,000 or in default six months' R.I. Each under section 304(1), P.P.C. They will pay Rs.5,000 each as compensation to heirs of the deceased under section 544-A, Cr.P.C. And in default suffer six months' R.I. Their conviction and sentence under section 323/34, P.P.C. Is maintained. The sentences of imprisonment shall run concurrently. The appellants will be allowed benefit of section 382-B, Cr.P.C. With the above modification, this appeal is dismissed.
8. In view of the above decision in appeal, the connected revision is dismissed in limine.