Dost Muhammad aged 30 years, an employee of the railway at Kundian, District Mianwali has appealed against his conviction under section 326, P.P.G, and sentence of rigorous imprisonment for seven years. A revision petition has been filed by Muhammad Ramzan, the complainant, which has been admitted to hearing with the appeal. The relief sought is the enhancement of the sentence under section 326, P.P.C. From seven years' rigorous imprison--ment to one of transportation for life. This judgment disposes of the appeal as well as the revision.
2. The prosecution case against the appellant is that he had a vicious dog which he used to let loose. Nur Muhammad (P. W. 12), a brother of the deceased, was his neighbour and had been the victim of it. Once Sher Muhammad, his nephew, was bitten by the dog, then his daughter on 30-4- 67 and finally Noor Muhammad himself. When he was bitten he had lodged a report with the police on Ist of May 1967 after getting himself medically examined for the injuries and had ultimately instituted a complaint case on which the appellant was convicted under section 289, P.P.C. And sentenced to a fine of Rs. 100 or in default to undergo rigorous imprisonment for one month, only a day before the occurrence i.e. On 20-2-1968. It appears that the appellant also wanted that Nur Muhammad and his brothers who were cobblers by profession should leave his neighbourhood.
3. On the morning of 21st of February 1968, at about 9 a. m. The deceased Ala Muhammad and Muhammad Ramzan (P. W. 14) came out of their house with a view to go to the shop which was jointly run by them. On the way at short distance from their house they saw the appellant armed with a gun coming towards them. The deceased Ata Muhammad and Muhammad Ramzan P. W.
Tried to run away but the appellant fired one shot injuring Ala Muhammad who fell on the ground.
Muhammad Yousuf (P. W. 15) and Allah jawaya (not. Produced) called out to the appellant not to fire more shots on which the appellant went away. Ata Muhammad was immediately removed to the Police Post Kundian where he lodged the report at 8-15 p. m. On which a regular case was registered. The report was recorded by Muhammad Ibrahim (P. W. 16). He prepared' his injury statement and sent him for medical examination. He reached the spot and recovered the blood- stained earth, three pieces of card-boards and took them into possession. The next day i.e. On 22- 2-1968, at about 5-15 p. m. He arrested the appellant near the bridge known as Sajriwala while the appellant was carrying a .12 bore shot-gun (Exh. P. 4) with five, live cartridges which were taken into possession.
4. The injured Ala Muhammad was examined by Dr. Shames Din, Medical Officer, Kundian (P. W. 1), who found the following injuries on his person:--
(1) A fire-arm wound with five punctures on the posterior side of left thigh at its upper part in an area of five inches. The margins of, the punctures were ecchymosed scar and circular in shape and 1/4' x 1/4 ' size with fracture of thigh. There were four wounds of exit on the intra medial side of the same thigh 6'' above the knee joint in an area of 4' circular.
(2) A fire-arm wound with four punctures on the posterior side of right thigh. In the middle three punctures were in an area of 3'. 3' and 9' above. The fourth is 11 1/2 ' above the joint. The margins were circular scar and ennhymosed, 1/4 ' x 1/4 " size. There were four wounds of exit. Three exit wounds were 10' above the knee-joint. And fourth 11' above the knee-joint.
As the condition of the injured was serious he was despatched after such examination to the District Headquarter Hospital from where lee gins taken to the Nishtar Hospital Where he expired on the 7th of March 1968e The same day Dr. Imtiaz Ahmed (P. W. 2). Performed the post-mortem examination and apart from the external fire-arm, injuries. Already, reported by Dr. Shamas Din; he found the left thigh fractured into pieces in two places. According to the doctor the death had occurred due to haemorrhage, shock and toxaemia and the injuries were sufficient to cause death in the ordinary course of nature.
5. The appellant denied that he had a dog which he used to let loose and had bitten Mst. Rashida Bibi and Nor Muhammad. He also denied the correctness of the facts leading to his conviction in the complaint case. He denied having fired at Ala Muhammad deceased and stated that he was implicated on account of enmity.
6. The trial Court believed the motive for the occurrence, the dying declaration of Ala Muhammad and statement of the eye-witnesses Muhammad Ramzan and Muhammad Yousaf and convicted the appellant under section 326, P. P. C. On the ground that the intention or knowledge to cause the death did not exist and that the injuries on the person of Ata Muhammad were not shown to, be directly the cause of death.
7. The learned counsel for the appellant has challenged the motive on the ground that if at all the appellant was aggrieved for all that had happened against him it must have been against Nur Muhammad (P. W. 12) who had voiced a grievance against the, dog-bite to himself and his daughter had reported to the police and had instituted the complaint resulting in the conviction and sentence of the appellant. The second person against whom the appellant could have a grievance was Muhammad Ramzan (P. W. 14) who had appeared as a witness in that cage. The deceased had nothing to do and there was no particular, reason why he should have, been picked up for such an attack. As regards the ocular evidence it has been challenged on the ground that Muhammad Yousuf (P. W. 15) is a chance witness and so is Muhammad Ramzan (P. W. 14), the other eye-witness has not been produced and that both "these eye-witnesses have been the instrument of Ataullah (P. W. 10) who had an old rivalry with the appellant. "As regards the dying declaration. It has been contended that when that statement Was made the deceased had no apprehension of death nor was it imminent, therefore it cold not have that much of sanctity, and that the occurrence must have taken dace in the darkness of the early morning and the assailant having not been identified it was a case of substitution. As regards the sentence if at all conviction be upheld, it has been submitted that the intention was to just teach a lesson and only one shot was fired and that too aimed at the leg, therefore, it would appear to be harsh.
8. In the revision petition the learned counsel for the complainant attempted tip establish that the act of the appellant clearly fell within the description of offence provided for in section 300, P.P.C.
And was punishable tinder section 302, P. P. C. It was also urged that even if it be taken to be an offence under section 326,. P. P. C. In the circumstances of the case, the sentence awarded was meagre and required interference by this Court in revision.
9. As regards the motive, the fact that the appellant had been convicted only a day before the occurrence on the report of Nur Muhammad (P. W. 12) is undeniable. Ere had been humbled by Nur Muhammad and his brothers for in that complaint Muhammad Ramzan (P. W. 14) had appeared as a witness and there is evidence to show that Ata Muhammad deceased had associated himself with the prosecution of that case. The motive was there and it was against all the brothers though against Nur Muhammad (P. W. 12) it could be said to be stronger. The motive for the offence need not be comparable in degree to the gravity of the offence committed because different motives have different weight for different individuals, and the action prompted need not be commensurate with the motive. It cannot be said on the evidence that the appellant, after his conviction on a most unusual case of dog-bite in isolated case, must have felt hurt. There was an added reason for it because the complainants were mere cobblers, who are treated in the villages or in small Abadi as mere menials. Therefore, on record there exists sufficient motive to prompt the appellant to do where he in alleged to have done.
10. As regards the eye-witness account of the occurrence Muhammad Ramzan (P. W. 14) has stated that he worked on the shop with Ata Muhammad deceased and It was their habit to come out of the house and go to the shop daily in company. There has been taken no serious exception to this statement. The time and the spot where the occurrence took place both indicate that these witnesses may have been there on way to the shop at that time. 'Therefore, they cannot be said to be there just by chance. It was, as a matter of fact, a more natural behaviour on their part to proceed to their shop at about 8 a. m. In the morning. Being a public place, a lane. Muhammad Ramzan (P. W. 14) could also be there and persons who had to go to the Bazar to attend to their business or daily routine outside the house must come out of their house at or near that hour.
There may have been previous party-factions in the Abadi over the elections but the most recent was three years' old and one of the oldest on which much reliance is placed related to an election held about 12 years before the witnesses were examined. Such rivalries do exist and they are not by themselves sufficient to taint the statement of the witnesses or the dying declaration nor does such enmity make the witnesses interested unless such enmity persists and manifests itself in other forms even after the elections. There is no such indication on the record. Therefore," the eye- witness account of Muhammad Yousuf (P. W. 15) and Muhammad Ramzan (P. W. 14) is acceptable, more so, because there is no intrinsic inconsistency or fault in them.
11. It would be incorrect to say that the statement made by Ata Muhammad deceased does not now form a dying declaration or that its value is reduced only because serious injuries on the leg alone were found. A single assailant has been named by Ata Muhammad. The occurrence had taken place at an hour when the visibility was clear, the injuries are at a place which indicate that he was fired at from behind but could not be denied a view of the assailant immediately after having received the `injury. There could, therefore; be no difficulty in identifying the culprit. It is difficult in this view of the matter to come to the conclusion that he could be prompted to substitute the appellant and exonerated the real culprit. In tile circumstances of this case, the dying declaration is independently sufficient to arrive at the implication of the appellant in tire crime.
12. The interest of Ataullah (P. W. 10) a recovery witness and through him of Muhammad Yousuf (P.
W. 15) as already observed, is not of great Importance.
13. There has been lengthy arguments on the legal question whether the offence committed by the appellant falls under section 326, P. P. C. Or under section 302, P. P. C. There is no appeal by the State against acquittal of the appellant under section 302, P. P. C. And therefore inspite of the valuable insight that has been afforded by the learned counsel for the parties into the nature and gravity of the offence the discussion of it in this case would be merely of academic importance.
The learned counsel for the complainant wanted that such a finding may assist this Court in determining the sentence, which in case it is found that the offence falls under section 302, P. P. C.
And cannot be made so at this stage, can suitably be increased while maintaining conviction under section 326, P. P. C.
14. Considering the fact that it was a chance encounter between the appellant and the deceased, that only one shot was fired in spite of the fact that the appellant had the opportunity to fire wore shots because the persuasion or the resistance that came forward from Muhammad Yousuf (P. W.
15) and Muhammad Ramzan (P. W. 14) was not substantial, and the fact that the shot was aimed at the leg would suggest that the intention to cause the death was not there. With the absence of such an intention discernible from the attending circumstances the mere fact that the deceased died of the injuries when toxaemia supervened would be sufficient to revision proceeding to sustain the conclusion of the trial Judge which I consider is not exceptionable.
15. There is another aspect of the case so far as the revision petition for enhancement of the sentence is concerned. The trial Judge did not impose a sentence of fine for compensating the heirs of the deceased as required under section 544-A, Cr. P. C. In the case of Muhammad Sharif v., Sadar Din (1971 Law Notes 202 (SC)) the Supreme Court held that it is a mandatory provision and that such a sentence has to be passed unless reasons are recorded for not passing such an order.
I will, therefore, to the extent of correcting an error if omission to pass an order under section 544-A, Cr. P. C. Accept the revision petition and while maintaining the sentence under section 326, P. P. C.
Already awarded to the appellant, direct that it should also include a sentence of fine of Rs. 1,000 to be paid on realisation as compensation to the heirs of the deceased and in default the appellant should undergo rigorous imprisonment for one year more. The appeal against conviction and sentence is dismissed. The revision petition stands accepted to the extent indicated above.