' Muhammad Nazir with his father Muhammad Shafiq and one Muhammad Salcem were sent up by Police Station Ravi Road, Lahore for trial for an offence under section 302/34, P.P.C. For the murder of Muhammad Anwar. Learned Additional Sessions Judge, Lahore, vide his judgment dated 20-3-1991 acquitted all of them under section 302, P.P.C. However, they were convicted under section 304, Part II, P.P.C. Read with section 323/34, P.P.C. Muhammad Nazir was convicted and sentenced to seven years' R.I. With a fine of Rs,10,000, or in default two years R.I. Under section 304, Part II, P.P.C. Muhammad Shafique and Muhammad Saleem were convicted and sentenced to four years' R.I. Each with a fine of Rs,5,000 each, or in default one year R.I. Each under section 304-II, P.P.C.
All of them were further convicted under section 323/34, P.P.C. To six months' R.I. Each. The sentences were directed to run concurrently. All of them were given benefit of section 382-B, Cr.P.C.
As well. Convicts have appealed.
2. The prosecution story in brief, as given in F.I.R. Exh.P.B./1, lodged by Zahid Mehmood, was to the effect that he used to ply loader-wagon in the vegetable market. Two days before the registration of the present case, the first informant with his brother Muhammad Anwar had an altercation with Muhammad Nazir, Muhammad Shafique and Muhammad Salcem, appellants, about the loading of wagons. They were separated by respectables, whereupon Muhammad Nazir had threatened that he would very soon take revenge for the insult. On 28-12-1988 at about 10-30 a.m., the first informant with his brothers Muhammad Ashraf and Muhammad Anwar reached the vegetable market in their wagon. They found that Muhammad Nazir appellant with his father Muhammad Shafique, and Muhammad Salim, appellants had parked their Suzuki van in the way which led to the stand. Muhammad Anwar, brother of the first informant, got down from his wagon and asked Muhammad Nazir and others to give way to them. Muhammad Nazir and his companions told him that they would load their pick-up first and then would remove their pick-up. Simultaneously, Muhammad Shafique, appellant, raised a Lalkara that Muhammad Anwar should be taught a lesson for insulting them. Whereupon, Muhammad Salim held Muhammad Anwar in his clasp and Muhammad Nazir took out an iron rod from his pick-up and gave blows with it on the head and face of Muhammad Anwar. Muhammad Anwar started bleeding from his nose and mouth because of the injuries and fell down on the ground. The first informant with Muhammad Ashraf put Muhammad Anwar in their wagon. While they were trying to remove the injured, Muhammad Nazir and his companions also started grappling with them. First informant received injuries on his temples. Muhammad Tahir witnessed the grappling and rescued them from the assailants.
Muhammad Anwar was being transported to the hospital when he expired on the way.
3. The occurrence took place on 28-12-1988 at 10-30 a.m. In the Vegetable Market, Lahore, two kilometres from Police Station Ravi Road, Lahore. Statement Exh.P.B. Was made by Zahid Mehmood, P.W.6 at 11-50 a.m. At Bus-stop Kasurpura, Lahore, which was recorded by Rashid Ahmad, S.I./S.H.O., P.W.9. Formal F.I.R. Exh.P.B./1 was registered by Asghar Abbas, A.S.I., P.W.2 on the same day at 12-15 noon.
' Rashid Ahmad, S.I., P.W.9 investigated the case. On 28-12-1988 he recorded statement Exh.P.B. Of Zahid Mehmood. He sent the statement to Police Station, Ravi Road, Lahore, for registration of a case and proceeded himself to the place of occurrence. He recorded statements of the witnesses and inspected the site. Thereafter, he went to the hospital, prepared injury statement Exh.P.G. And inquest report Exh.P.H. Of the deceased. He also took into possession last-worn clothes of the deceased vide memo Exh.P.E. He got site-plans Exh.P.F. And Exh.P.F./1 prepared from the Draftsman and gave his notes in red ink thereunder. On the completion of the investigation he challaned the appellants.
' Muhammad Riaz, S.I., Police Station Ravi Road, Lahore (P.W.10) had partly investigated the case. He arrested the appellants on 4-1-1989. At the time of arrest Salim and Nazir, appellants, were injured, therefore, on 5-1-1989 he got them medically examined. Nazir appellant, while in custody, got recovered iron rod P.1, which was secured vide memo. Exh.P.A.
4. Dr. Saeed Ahmad, Assistant Professor, Department of K.E. Medical College, Lahore, P.W.3, on 29- 12-1988 conducted the post-mortem examination on the dead body of Muhammad Anwar and found the following injuries:-
(1) Abrasion size 0.8 c.m. x 0.5 c.m. Present on the bridge of nose with little bruising around. On exploration nosal bone was found intact.
(2) Abrasion 0.7 c.m. x 0.5 c.m. Present in the inner side of upper part of left eyelid.
(3) Abrasion 0.5 c.m. x 0.5 c.m. Present on the left side of fore-head, 1.6 c.m. Above the outer end of left eye-brow.
(4) Bruise 3.5 c.m. x 2.5 c.m. Present on the back of left side of head.
(5) Abrasion 0.7 c.m. x 0.8 c.m. On the front of right knee.
(6) Abrasion 2.5 c.m. x 1 c.m. Present on the front of left knee.
' In his opinion, the injuries were ante-mortem caused with blunt weapon. The opinion about the cause of death was deferred till the report of Bacteriologist was obtained. On the receipt of the result from the Bacteriologist, his opinion was that the death had occurred due to physical/emotional stress because of having cardio plumonary deficit.
5. The prosecution in support of its case produced ten witnesses in all. Shahbaz Khan, H.C., P.W.1, had witnessed the recovery of rion rod P.1 at the instance of Muhammad Nazir Appellant, which was secured vide memo Exh.P.A., attested by this witness. Asghar Abbas, A.S.I., P.W.2 had recorded formal F.I.R. Exh. P.B./1. Dr. Saeed Ahmad, P.W.3 had conducted the postmortem examination on the dead body of Muhammad Anwar on 29-12-1988. Sycd Abdul Rahim Kazmi, Draftsman, P.W.5 prepared site plans Exh.P.F. And Exh.P.F./1 on the direction of the police. The ocular account was furnished by Zahid Mehmood and Muhammad Ashraf, P.Ws.6 and 7, respectively. Ghulam Muhammad, P.W.8 had witnessed the recovery of iron rod P.1 at the instance of Muhammad Nazir appellant. Rashid Ahmad, S.I. P.W.9, and Muhammad Riaz, S.I., P.W. 10 had investigated the case.
' At the conclusion of the prosecution evidence, the Court recorded the statements of four Court witnesses as well. C.W.1 Dr. Fakhar-ul-Islam, Deputy Surgeon Medico-legal, Punjab, Lahore, had examined Muhammad Nazir, appellant on 5-1-1989 and noticed two injuries caused with blunt weapon, simple in nature, caused within 7 to 10 days. C.W.2 Dr. Muhammad Iqbal had examined Muhammad Salim, appellant, on 5-1-1989 and found a healing contusion on the left check below left eye, and a lacerated wound 2 c.m. x 0.4 c.m. With swelling 3 c.m. x 2.5 c.m. On front of right index finger. He was advised X-Ray as well. C.W.3 Dr. Muhammad Hussnain examined Zahid Mehmood on 28-12-1988 and found multiple contusion on the left side of face and left forehead, and abraided contusion at right outer fore-head. C.W.4 Muhammad Ashraf, A.S.I., Police Station, Ravi Road, Lahore, stated that he was posted as A.S.1., P.S. Sabzi Mandi. At about 9-00 a.m., Muhammad Anwar, deceased came to him in an injured condition with his brother. He was informed by Zahid Mchmood, brother of Muhammad Anwar that he had received injuries in a quarrel. Since Muhammad Anwar was in a precarious condition, therefore, he directed them to take him to hospital.
' The appellants were examined without oath, wherein Muhammad Nazir, appellant, refuted the prosecution allegations and pleaded innocence. In answer to a question, he stated that the wagon of the deceased had hit him while he was standing there. On his protest, the deceased and his brother Zahid Mchmood attacked him and they exchanged hot words and abuses. He further stated that Muhammad Shafique, his co-accused, who was his father, was not present at the spot.
He further stated that he was empty-handed and they exchanged fist blows. He further stated that his co-accused Muhammad Salecm did not participate but had only separated them. In answer to a question, he stated that on the day of incident he had parked his pick-up in the vegetable market waiting for customers. In the meanwhile, Zahid Mchmood with Muhammad Anwar, deceased, came there. Their wagon hit him. On his protest they started giving him fist blows. In the meanwhile, his co-accused Muhammad Saleem, came there and tried to separate them, who was also injured by Zahid Mehmood. They were separated by many people, whereafter the deceased with his brother left towards the police station and he also left. He was arrested four days after the occurrence from the vegetable market.
' Muhammad Saleem also refuted the prosecution allegations and pleaded innocence. He stated that he was given beating by Zahid Mehmood, P.W., when he tried to separate the deceased and Muhammad Nazir, his co-accused as he was his customer and used to bring vegetables on his pick-up. He further stated that Muhammad Ashraf, co-accused, was not present there at all.
Muhammad Shafique refuted the prosecution case and pleaded innocence. He simply stated that he was not even present at the spot at the time of occurrence but was busy doing business at his shop in the fruit market. They also produced defence evidence. Rana Muhammad Fayyaz, D.W.1 stated that he knew Muhammad Shafique, accused. On 28-12-1988 at about 12 noon he saw Nazir, co-accused, present at the shop of Muhammad Shafique who was bleeding from his head. On enquiry, he told that he had quarrelled with someone at wagon stand. After a few days he learnt that they had been arrested in a murder case. Muhammad Arif, D.W.2 stated that he knew Muhammad Shafique, accused who had a shop in the fruit market and he goes to his shop at morning prayers time and comes back at 2-30 p.m. On 28-12-1988 at 12-30 p.m., he saw Nazir at the shop of his father Muhammad Shafique. At that time his face was swollen and he was bleeding from his head. On enquiry, he told his father that he had a quarrel at the wagon stand. Muhammad Shafique reprimanded him and told him that he would try for compromise. Muhammad Shafique appeared on oath in his defence as D.W.3 and pleaded innocence by stating that he was present at his shop at the time of incident. Muhammad Salim and Muhammad Nazir, accused, also appeared in their defence as D.W.4 and D.W.5, respectively. Both of them pleaded innocence.
6. It was contended by learned counsel for the appellants that the case against the appellants was not proved at all. Submitted that the F.I.R. Admittedly was registered after preliminary investigation, therefore, no sanctity could be attached to it. Argued that no reliance could be placed on the ocular account because no independent witness was produced, instead only the real brothers of the deceased appeared. Submitted that according to the medical evidence, all the injuries sustained by the deceased were declared simple and cause of death was cardio failure, which could not be attributed to any of the injuries. Argued that both the sides had received injuries with fist blows and in such circumstances, conviction under section 304-11 could not be maintained.
Argued that the prosecution completely suppressed the injuries received by the accused Muhammad Saleem and Muhammad Nazir, therefore, they could not be relied upon. The contentions were opposed by learned counsel for the complainant. According to him, the appellants were responsible for causing the death of the deceased and the doctor's opinion was that he died because of emotional shock which was caused by the appellants. Argued that according to the evidence, the deceased became unconscious at the spot and died on his way to the hospital which would clearly indicate that he became unconscious because of injuries caused to him by the appellants, and thereafter he died. Argued that the prosecution had not suppressed the injuries on the person of the appellants because in the F.I.R. Grappling with each other was mentioned. Argued that Muhammad Shafique, father of Muhammad Nazir appellant was present there and he was present at the earlier incident as well. The defence neither cross-examined nor suggested to any of the P.Ws. That he was not present at the earlier incident.
7. I have heard the learned counsel at length and gone through the evidence. The admitted position by both the sides is that on the day of incident the appellants had parked their wagon at the Adda of Sabzi Mandi. The complainant side wanted to bring their pick-up but found the road had been blocked by the appellant's wagon. They asked them to remove the same, whereupon the occurrence took place. According to the statements of both the eye-witnesses, they grappled with each other and thereafter Nazir appellant brought an iron rod from his wagon and started giving injuries. In cross-examination, the eye-witnesses admitted that there was no bleeding from the injuries. They also admitted that except for the iron rod, none of the appellants was armed with any weapon. I have considered the statements of both the eyewitnesses. Even if their presence is accepted at the spot, yet it does not establish that it was a premeditated attack. Instead, the prosecution's own story is that the occurrence took place at the spur of the moment when either side was not armed. The doctor had declared all the injuries on the person of the deceased simple.
According to the post-mortem report, the deceased did not die because of the injuries. In view of the statement of the doctor, the conviction under section 304-11 becomes extremely doubtful because the death did not occur because of the injuries caused by the appellants.
' The contention of the learned counsel for the appellants that Muhammad Shafique was not present at the spot is not accepted. It was asserted that in the earlier incident, which took place two days before, Muhammad Shafique was present, but none of the witnesses was cross- examined to that effect. The defence produced by Muhammad Shafique would not be of much help because it has come in the evidence that the distance between the fruit market and vegetable market is only two furlongs and in such circumstances, he could have easily come back to his shop at the fruit market after the incident. The prosecution assertion that the appellants were already waiting for the deceased to come does not appear to be correct. Had the appellant side been waiting for the deceased to come, then they should. Have been armed. It is prosecution's own story that none of the appellants was armed, therefore, it is held that the appellants were not waiting for the deceased to come, for committing the occurrence. Instead, it took place at the spur of the moment over a very minor incident.
' For what has been discussed above, I partly accept the appeal and set aside the conviction awarded to the appellants under section 304-11/34, P.P.C. As far as their convictions under section 323/34, P.P.C. Are concerned, it has been proved by means of the statements of the doctors as well as from the statements of the eye-witnesses, therefore, the convictions and sentences awarded under section 323/34, P.P.C. Are maintained. The appeal is disposed of in these terms. Benefit of section 382-B, Cr.P.C. Shall also be given.