1. ALLAHDINO MEMON, J.--- This acquittal appeal is directed against the judgment, dated 29th February, 1988, ,passed by the learned 1st Additional Sessions Judge, Hyderabad, by Which respondents Abdullah, Muhammad Rahim and Bachayo were acquitted.
2. The brief facts of the prosecution case are that on 5-8-1976 Vikio son of Ibrahim lodged report at Police Station Bulri Shah Karim, District Hyderabad, which reads as under:-- "I am Hari and cultivate land of Haji Ismail Memon in Deh Abid Mohindo. Talib son of Adam Jat is my nephew and we reside in the same village. There was dispute between us and Khuda Yar Khan over land, and litigation is pending between us in Courts. Khuda Yar Khan Punjabi has friendship with Abdullah Mangsi, Bachayo Mangsi and other Mangsis. They used to visit each other. Today on 5-8- 19761 and Talib came together to Town Bulri Shah Karim for some private work. After being free from work we came to the hotel of Abdullah Mangsi for having a cup of tea at about 3-30 p.m., we, Abdullah Mangsi, Muhammad Rahim Mangsi and Allah Bachayo Mangsi, were sitting in the hotel, Bachayo Mangsi said to us that we should withdraw-the case which we had filed in the Court against their friend Khuda Yar Punjabi otherwise we will be murdered. Whereupon Talib Jat told Bachayo that it was dispute with Khuda Yar Punjabi on the land and they should not interfere in that matter. Due to which there was exchange of hot words and there was commotion whereupon, Ghulam Hyder Panhwar, Siddiq Jat and Usman also came there. Muhammad Rahim Mangsi instigated the others to kill and not to spare us: On the instigation of Muhammad Rahim, Abdullah, who had a revolver in his hand directly fired at Talib which hit him on his chest as a result of which he fell down and went unconscious. Bachayo and Muhammad Rahim Mangsi came running in order to give Lathi blows to us. Allah Bachayo gave Lathi blows on my back. Muhammad Rahim also gave Lathi blows on my back. Whereupon raised cries. Then Ghulam Hyder, Siddiq and Usman came there running and rescued us from Allah Bachayo and Muhammad Rahim after entreating them. Thereafter leaving Siddiq Jat, Ghulam Hyder Panhwar and Usman Jat at Talib, I have come to lodge the report."
3. The above F.I.R. Was recorded by H.C. Sher Muhammad, and the same has been produced as Exh.9.
4. The H.C. Then went to the place of Wardat and prepared Mashirnama of Wardat in presence of Mashirs Bachayo and Ghulam Shah, and the Mashirnama has been produced as Exh.36. He also prepared Mashirnama of injuries on the person of complainant Vikio in presence of the same Mashirs and the Mashirnama has been produced as Exh.37. Thereafter S.H.O. Jang Sher Khan reached at the place of Wardat and verified the investigation carried on by H.C. Sher Muhammad.
5. He also recorded their statement of complainant Vikio. He then recorded statements of P.Ws. Us an, and Ghulam Hyder. Thereafter he arrested accused Abdullah from. Buhi Shah Culvert at 6-30 p.m.
6. In presence of Mashirs Matro and Zahoorul Hasan and prepared such Mashirnama which-has been produced as Exh.26. The accused then led the S.H.O. And Mashirs to a room inside his hotel and produced one .25 bore pistol from empty crates. He opened the pistol and found that it was loaded. He then secured it and prepared such Mashirnama, the pistol and bullets were sealed at the place of recovery and the Mashirnama has been produced as Exh.27. He then brought the accused and the property to the police. Station, and handed over the sealed pistol to the writer Head Constable of the police station in the same condition for keeping in safe custody. He had also lodged the report under section 13-D, Arms Ordinance against accused Abdullah on behalf of the State. He then recorded statements of Shah Ali, Inayat, Ramzan, Haroon and Fazal on 6-8-1976. He received information from L.M.C.H., Hyderabad, that injured Talib had expired in the hospital and as such he converted the offence into one under section 302, P.P.C. On 7-8-1976 he recorded the statement of Malik Khuda Yar. On 9-8-1976 he produced P.Ws. Ghulam Hyder and Siddiq before.
7. Mukhtiarkar and F.C.M., Tando Muhammad Khan and got their 164, Cr.P.C. Statements recorded. On 11-8-1976 he arrested accused Muhammad Rahim and Bachayo at 8-00 a.m. From Police Station Bulri Shah Karim in presence of Mashirs Abdullah Khan and Khamiso under Mashirnama and the Mashirnama has been produced as Exh.32. After his arrest accused Bachayo voluntarily led police and Mashirs to Khabar bush situated near Sim Nala and Bulri Shah Karim-and produced one Lathi which was secured in presence of Mashirs and such Mashirnama was prepared which has been produced as Exh.33. The Lathi was not bloodstained. Thereafter accused Muhammad Rahim led the police and Mashirs to another Khabar bush situated near Sim Nala Bulri Shah Karim Naka and produced one Lathi. It was secured under Mashirnama, and the Mashirnama has been produced' as Exh.34. The Lathi was not bloodstained. The clothes of deceased were sent to Chemical Analyser for examination and report. He produced the chemical report as Exh.41. The pistol, one bullet secured from Watdat, one bullet recovered from dead body of deceased Talib and 5 live bullets secured from the said pistol and 5 other bullets were sent to the ballistic expert for test purpose and for examination and report. The Ballistic Expert report has been produced as Exh.42. After necessary investigation the case was sent up before the Court.
8. A formal charge ,was framed against the accused to which they pleaded not guilty.
9. At the trial prosecution examined complainant Vikio P.W.1, he has produced F.I.R. As Exh.9, Tapedar Muhammad Bachal P.W.2; he has produced the sketch of place of Wardat as Exh.Ll. Mr. Noor Muhammad P.W.3 the then Mukhtiarkar Tando Muhammad Khan, he had recorded 164, Cr.P.C.
10. Statements of P.Ws. Usman, Siddiq and Ghulam Hyder. He has produced the three statements as Exh.14, Exh.15 and Exh.16. Muhammad Usman P.W.4 an eye-witness, he has produced copy of order passed by the Member, Board of Revenue, Sindh at Karachi as Exh.19. Ghulam Hyder an eye-witness P.W S Muhammad Siddiq, Medical Officer P_W.6, he has produced injuries certificates of deceased Talib and Vikio as Exh.23 and Exh.24. Mashir Matare P.W.7, he has produced Mashirnama of arrest of accused Abdullah as Exh.26, Mashirnama of production of pistol loaded with 6 bullets by accused Abdullah from boxes of Coca Cola Bottles lying in a room of his hotel as Exh.27. Dr, Saifuddin Siddiqui, he' had conducted post-mortem on the dead body of deceased Talib and has produced post-mortem note as Exh.29. S.H.O. Jan& Sher Khan P.W.9, he has produced chemical report as Exh.41 and report of the Ballistic Expert as Exh.42. Mashir Boola Khan P.W.10, he has produced Mashirnama of arrest of accused Bachayo and Muhammad Rahim as Exh.32. Production of Lathis by the two accused as Exh.33 and Exh.34. Head Constable Sher Muhammad P.W.11, he had recorded the F.I.R. Which has been produced as Exh.9, and prepared Mashirnama of place of Wardat which he has produced as Exh.36, Mashirnama of injuries on complainant Vikio as Exh.37, Mashir Bachal P.W.12, he had acted as Mashir of Mashirnama of injuries of Vikio, which has been produced as Exh.37. Mashirnama securing of blood-stained clothes of deceased Talib as Exh.36.
11. After the close of the prosecution case the statements of the accused were recovered under section 342, Cr.P.C., in which they had denied the allegations. Accused Abdullah has further stated that the witnesses are inter--related and are related to the complainant and deceased. He has enmity with them. Accused Bachayo is husband of his sister, while co-accused Muhammad Rahim is his brother as they are sons of same mother. He has also produced written statement to show relationship of the witnesses and enmity as Exh.45--A. He has further stated that he was sitting in his hotel and was attending the customers when Talib and Vikio came in his hotel. Talib asked him not to help Khuda Yar Punjabi in the cases m Courts and threatened him that if he did not desist he will teach him a serious lesson. He asked them not to threaten him and not to quarrel with him on which both jumped towards him and Vikio Wanted to beat him. He pushed Vikio who fell down with his back on the chairs of the hotel. Meanwhile Talib took out a pistol from his Shalwar, he grappled with Talib and. Wanted to snatch the pistol from him. They grappled with each other for the pistol.
12. In the struggle, pistol went off due to which Talib was hit who fell down in his hotel. The pistol also fell down from him in his hotel. He is innocent. He was in his hotel when they came in his hotel with the intention to attack him. Alongwith his written statement accused Abdullah has produced copy of deposition of complainant Vikio as Annexure `A' in Case No.63 of 1975 State v. Zar Ghaffar. Khuda Yar and 2 others, F.I.R. Dated 30-3-1974 lodged by Muhammad Usman son of Haroon under section 307/34, P.P.C. As Annexure `B', F.I.R. Dated 16-12-1973 lodged by Muhammad Hasan son of Muhammad Adam under sections 506, 452 as Annexure `C', deposition of Muhammad Hasan in Case No.63 of 1975 State v. Zar Ghaffar and others as Annexure `D', charge-sheet in Case No.63 of 1975 State v. Zar Ghaffar and 3 others as Annexure `E'. Deposition of Mataro in Case No.63 of 1975 State v. Zar Ghaffar and 3 others as Annexure `F. Judgment in Criminal Appeal No.30 of 1977 Zar Ghaffar v. The State as Annexure `C', judgment passed by Civil Judge and F.C.M. Tando Muhammad Khan in Case No 63 of 1975 (which has been wrongly mentioned as 1976) State v. Zar Ghaffar and 3 others as Annexure `C-1', judgment in Criminal Appeal No.30 of 1977 passed by the learned Sessions Judge, Hyderabad in appeal filed by Zar Ghaffar and others v. State as Annexure `H'.
13. Accused Muhammad Rahim has also denied the allegations. He has further stated that he has been implicated on account of enmity for which documents had been produced by co-accused Abdullah who is his brother. Co--accused Bachayo is their brother-in-law, P.Ws. Are inter-related and are inimical to them. Accused have also examined one Basar Palejo as D.W. No.1, who has stated that he has a Transport Agency in the name of Shahbaz Transport Agency on Bathoro Road, Bulri Shah Karim, since last 15/16 years. Accused Abdullah, Muhammad Rahim and Bachayo arc known to him. Accused Abdullah owns a hotel which is situated opposite his transport agency at the distance of about 30 or 32 feet. Road leading to Mirpur Bathoro from Tando Muhammad Khan intervenes his Agency and Hotel of Abdullah. About eleven years back at about 2-00 or 2-30 p.m.
14. He was sitting in his Agency when he heard commotion coming from the hotel of Abdullah: He went to that place and found accused Abdullah sitting at the counter of the hotel while deceased Talib and complainant Vikio were standing in front of the counter of the hotel and were asking accused Abdullah not to help Khuda Yar Punjabi in the case pending between them. At that time, Fazil Rind Haroon Zaunr and 2/3 servants of the hotel were present there. No other person was present in the hotel. Accused Bachayo and Muhammad Rahim were not present in the hotel, at that time.
15. Accused Abdullah replied to the deceased and the complainant that he was not helping Khudayar Punjabi in any way. On which there was exchange of hot words between deceased and Abdullah.
16. Accused -Abdullah asked the deceased and complainant to go out of his hotel on which complainant Vikio abused Abdullah, who pushed him and he fell down on the chair. After. That, deceased Talib took out pistol from the fold of Shalwar and aimed at accused Abdullah, who grappled with him in order to snatch pistol from him but the pistol went off and deceased Talib was hit and fell down. He had received fire-arm injury on his chest they he (witness) immediately went away to his village. In cross-examination, he has deposed that 2 to 4 labourers were working at his transport company for loading purposes, their names were Muhammad, Jummo Mir Behar and Abdullah Mir Behar. He has denied that the loading work takes place only during night. He permanently sits at his transport company. At the time of commotion, he alone was sitting at his company and left the same unattended. He was hardly for 2/3 minutes in the hotel of accused Abdullah. Accused Abdullah has always 4/5 servants at his hotel but he did not remember their names. He does not purchase tea from the hotel of accused Abdullah but he sends for tea from the adjacent hotel of his relation Allahdino. This Allahdino did not come at the place of commotion.
17. There might be one or two servants at the hotel of Allahdino. None of the servants of Allahdino came to the place of incident. 2/3 servants of accused Abdullah were present at the hotel, the customers namely Haroon Zaunr and Fazil Rind. He did not know if the accused and complainant had taken tea in the hotel of accused Abdullah. He had only seen them standing in front of the counter. There were 4/5 hotels at that time and the same were open at the time of incident.
18. Nobody came to the place of incident from those hotels. He could not say, as to where that pistol was taken. Accused Abdullah met him after 3/4 years of the incident. He did not know that the police had come at the place of Wardat. He was not examined by the police. After three days of this incident, he came to know that accused Abdullah was detained by police in murder case. He could give the names of brothers of accused Abdullah. He did not tell anybody or police agency that accused Abdullah was innocent. He hay left transport agency opened and unattended today and on the previous day when he came to attend the Court. He has denied that he was giving false evidence at the instance of accused.
19. The learned trial Judge, after taking into consideration the evidence produced by the prosecution as well as the accused/respondent was pleased to acquit them vide judgment, dated 29th February, 1988. The present appeal is directed against the above judgment of acquittal.
20. We have heard Mr. Hayat Qureshi, learned counsel appearing for the State, Mr M.I. Memon, learned counsel appearing for the private respondents appearing for the complainant and have while defence story put forth by the accused was unnatural and was belied by circumstances. He has further contended that the learned trial Judge has misread the evidence on the point of recovery which has occasioned miscarriage of justice. However, it was further contended by Mr. Hayat Qureshi, learned counsel appearing for the State that since there was exchange of hot words between the parties, before the incident, the incident took place at the hotel of the accused and the accused did not repeat the shot, he will be liable under section 304, Part I, P.P.C. In support of his contentions, he has relied upon (1) PLD 1959 Kar. 137 (2) PLD 1967-SC 185 and 443.
21. Mr. M.I. Memon, learned counsel appearing for the accused/private respondents has contended that the burden was on the prosecution to prove its case beyond reasonable doubt and since the prosecution had failed to prove its case beyond reasonable doubt, the respondents were rightly acquitted. He has further contended that except complainant Vikio, the other wise including Mashir Mataro were chance witnesses. He has further-contended that the pistol and empty were sent to the ballistic expert after long delay and therefore, no reliance could be placed on the report of Ballistic Expert. In support of his contentions, the learned counsel has relied upon (1) 1989 P Cr. L J 1179; (2) 1989 P Cr. L J 2234.
22. Mr. A.Q. Halepota, learned counsel appearing for the complainant has adopted the contentions raised by Mr. Hayat Qureshi, and has further contended that the defence plea was afterthought inasmuch as the cross--examination of complainant and P.Ws. Shows that initial stand taken by the accused was that the case was false. However, another counsel was engaged, who made an application on 11-5-1982 i.e. After six years for recalling the complainant and the defence theory was put to him in cross-examination. He has further contended that the defence theory was false and was belied 'by the fact that there was no charring and blackening around the injury and the pistol was not found from the place of Wardat.
23. We have considered the contentions and have gone through the R and P of this case.
24. Dr. Saifuddin Siddiqui, P.W.8, was M.O. Medico-legal, section, L.M.C.H., Hyderabad on 5-8-1978 and had carried on post-mortem on the dead body of deceased Talib son of Adam. According to him.
25. He had found the following injuries on the person of deceased Talib.
(1) Small circular lacerated wound 1/6" in diameter inverted edges over the left side of chest, just below left sterno-clavicle joint. It was wound of entrance.
26. The injury appeared to have been caused by some fire-arm, such as revolver or other kind of weapon. He found that both portions of pleura were perforated at the side of external injury having blood in pleural cavity and perforation was through and through. Left lung was purported and conjected. The portion of lung which was overlapping the heart was perforated through and through. Heart and pericardium contained blood with perforation of upper portion of pericardium right lung and lower lope of right lung at its base were perforated, conjested and contused.
27. Perforation was through and through upto back of right pleura and bullet was lodged at postero lateral part of thorax valve at 9th intercostal space. Stomach contained-8 oz. Of water. Bladder was empty.
28. From external and internal examination, he was of the opinion that the cause of death was due to shock and haemorrhage, which was the result of respiratory and circulatory failure as a result of fire-arm injury over the left of chest. The injury was ante-mortem and was sufficient to cause death. One bullet was recovered from dead body. Time between injury and death was about 5 hours and the time which elapsed between death and post-mortem was about two hours. He has produced the post-mortem note as Exh.29. In cross-examination he has stated that he had not mentioned the distance of the fire--arm from which shot was fired. He has not mentioned blackening or charring marks on the external injury, as those were not present. He did not remember whether the instructions on the printed form of post-mortem notes direct that medical certificate must mention the distance of fire-arm and charring marks if the injury is caused by fire- arm. It is correct that bullet had travelled from external injury to downwards at the 9th inter-costal space if the bullet had been fired from horizontal, it would have gone through and through and there would have been exit wound on the upper part of thorax. It is correct that in case of fire-arm injury the clothes of the deceased were important to be examined to find out the distance of firing by taking the burning portion of the clothes. He did not examine the said clothes. If the firing is within the distance of four feet, then there would have been charring and blackening marks. It is correct that if muzzle of the fire-arm is put on the skin of the body then there would be no charring and blackening of the body as the assessee explosion would pass inside the body.
29. Dr. Muhammad Siddiq Arain, was Medical Officer, Rural Health Centre, Bulri Shah Karim Hospital on 5-8-1976. On that day, at 4-00 p.m. He had received injured Talib son of Adam (since deceased) from Police Station Bulri Shah Karim for examination, treatment and certificate. He examined injured Talib and found the following injuries on his person.
(1) Circular lacerated wound 1/2" c.m. In diameter on the interior side of chest between first and second intercostal space left to the lateral part of sternum. N'o charring marks present.
30. He had referred injured Talib to L.M.C.H. Hyderabad for further treatment. According to him the injury appeared to have been caused by some fire-arm such as revolver. The nature of injury was reserved. He had issued such certificate which has been produced as Exh.23.
31. On the same day, he had received injured P.W. Vikio son of Ibrahim for examination, treatment and certificate. On examination, he found the following injuries on his person:--
(1) Transverse bruise 3" x 1/2" on the lateral side of left arm at the lower border of left side muscle.
(2) Transverse bruise 3" x 1/2" on the lateral side of right arm at the middle of left side muscle.
(3) Transverse bruise 3-1/2" x 1/2" on the external side of right shoulder joint.
(4) Oblique bruise 7" x 1" on the right side of chest at the level of 8 thorasic vertebrae back on the upper part.
(5) Transverse bruise 5" x 1/2" on the left back of chest at the level of 8 thorasic vertebrae.
(6) Longitudinal bruise 5" x 1/2" on the left back of chest.
(7) Oblique bruise 3-1/2" x 1" at the upper part of chest and at the 3 thorasic vertebrae.
32. All the injuries were simple in nature and appeared to have been caused by hard and blunt substance such as Danda or back side of hatchet and appeared to have been caused within twelve hours from the examination. He has produced the medical certificate as Exh.24. In cross- examination he has stated that the injury on the person of injured Vikio could not be caused by fall on the table or chair. He has not mentioned in certificate Exh.24 about the kind of hard blunt substance. Arm of wooden chair is a hard substance. Border of wooden table is also hard substance. A piece of brick is also hard substance.
33. The prosecution evidence consists of ocular evidence of:--
(1) Complainant Vikio P.W.1, Usman P.W.4, Ghulam Haider P.W.5 and Muhammad Siddique P.W.6.
(2) Recovery of pistol from respondent Abdullah Mashir Mataro P.W.8, Mashirnama of production of pistol by respondent Abdullah Exh.27, S.H.O. Jang Sher Khan P.W.9. Report of Ballistic Expert Exh.42 and evidence of Dr. Saifuddin Siddiqui P.W.8 who had taken out bullet through thorax valve lodged at 9th intercostal space, while conducting post-mortem of the dead body of the deceased.
(3) Recovery of Lathi from respondents Allah Bachayo and Muhammad Rahim (not bloodstained).
(4) Medical evidence.
(5) Statement of accused/respondent Abdullah.
34. As far as ocular evidence is concerned, complainant Vikio has fully supported the contents of his F.I.R. According to him, deceased Talib was his nephew. About 4 years back he and deceased Talib had gone to Bulri Shah Karim from their village. After finishing their work they went to the hotel of Abdullah for taking tea. It was about 2-30 p.m. All the three accused were present in the hotel.
35. Accused Bachayo asked deceased Talib to withdraw case pending against one Khudayar Punjabi, else he would be killed. The said Khudayar Punjabi is friend of the accused. Talib replied that the cases are pending before the Court and the accused had no business to ask for the withdrawal. By that time, P.Ws. Ghulam Haider and Siddique also came in the hotel. Accused Muhammad Rahim instigated Bachayo and Abdullah. Accused Abdullah took out a pistol from drawer and fired at Talib who sustained injury on his chest. After sustaining injury. Talib went for 2/3 paces and then fell down near the outer door of hotel. Accused Muhammad Siddiq and Bachayo caused Lathi blows to him (complainant) but he was rescued by Ghulam Haider, Siddiq, and Usman by entreating the accused. Talib lost his senses. Complainant gave facts of the incident to Ghulam Haider, Siddiq, and Usman on their inquiry. After leaving the above witnesses with the injured Talib, complainant went to Police Station Bulri Shah Karim and lodged his report, which has been produced as Exh.9.th th rd Police came-to the place of Wardat and referred the complainant and injured Talib to Medical Officer Bulri Shah Karim. Since the condition of Talib was precarious the Medical Officer Shah Karim referred him to Civil Hospital Hyderabad and issued such letter. Injured Talib was taken to Hyderabad by Ghulam Haider Hasan and Usman. Talib expired at 10-00 or 11-00 p.m. The complainant remained in the Hospital at Bulri Shah Karim for the, few days. There was dispute between Talib, his brother Hasan P.W. Usman Mooso and Khudayar Punjabi and Guhram Magsi on the allotment of some lands. The said Mooso is uncle of Bachayo and Guhram is their maternal- uncle. In cross-examination, he has stated that P.W. Siddiq is cast-fellow of Talibbut he is not closely related to him. He has denied that P.W. Usman is Masat of Talib, their village is about 1-1/2 miles away from Bulri Shah Karim. He and'Talib had gone to Bulri Shah Karim for purchasing miscellaneous articles, and had left their village at about 10-00 or 11-00 a.m. Deceased Talib had not filed case against Allahyar but dispute between them is pending since then. Talib was a party in that dispute. He (complainant) had no dispute with Khudayar. The said dispute was pending between them since 5/6 years. No fight had taken place between the parties prior to the above incident. The said hotel is located at bus stand. Other hotels are situated at some distance from that hotel. The hotel is big hotel. When they came to hotel accused Abdullah was sitting at the counter. He and Talib sat inside the hotel. Several other persons were also sitting there. P.W.
36. Ghulam Haider, Siddiq and `Usman arrived OUTSIDE the hotel at the time when they were engaged in altercation. No person from hotel intervened to separate them. He could not say, if Shah Ali, Inayat Punjabi and Ramzan Mohano were present in the Hotel; but he, had seen them after the incident was over. Abdullah was sitting on the counter, while Bachayo and Rahim were sitting by his side. He had stated in his F.I.R. That Abdullah had taken out pistol from, the drawer of the counter of his table. He had stated in the F.I.R. That Talib had fallen down at the outer door after walking few paces. So many persons came after the incident was over, when he came alongwith police to the place of Wardat. He found the brother of deceased and other relatives present at the Wardat. He was admitted in hospital Bulri on the same day. Police had secured one empty shell from Wardat. It is incorrect that incident had not taken place in the hotel of accused Abdullah and that accused have been falsely involved at the instance of Haji Ibrahim Jat and S.I.P. Meer Muhammad S.I.P. Was posted at Bulri but he had not investigated the above case. It is incorrect that Ghulam Haider, Siddiq, and Usman were not present there and they have been falsely introduced. It is incorrect that Khuda Bux is on inimical terms with the accused and their relatives (NOTE: the above deposition of the complainant was recorded on 18-9-1980. However, later on Mr. Azizullah K. Shaikh, Advocate was engaged by accused Abdullah who moved qn application for recalling the complainant-for further cross-examination on 115-1982, which was allowed and the complainant was recalled for further cross-examination). He has further stated in further cross- examination, that it is not a fact that he and deceased Talib had gone to the hotel of Abdullah to fight with him. He has denied that deceased Talib had told accused Abdullah that he should not help Khudayar Punjabi otherwise, he (Talib) will teach him a lesson. He has denied that accused Abdullah had told him and Talib that they should leave his hotel. He has also denied that he had tried to pounce upon Abdullah who came out of counter and pushed him and he (complainant) fell down at the chair and table with his back. He has also denied that deceased Talib had taken out some thing from the fold of his Shalwar, and the accused grappled with him. He has also denied that deceased Talib had taken out pistol from the fold of his Shalwar and in the struggle the pistol went off, from the hand of Talib and hit him. He has denied a suggestion that he was a witness in Case No.63 of 1975, (Muhammad Ahsan v. Zar Ghaffar and others under sections 452, 566, P.P.C.).
37. Muhammad Usman P.W.4, has deposed that he knows the complainant, who is not related to him.
38. He knew Talib, he had no connection with him. About five years back he had gone to Bulri Shah Karim from his village where he met Siddiq and Ghulam Haider in the Bazar. They went to bus stand Bulri Shah Karim for proceeding to their village. When they reached the bus stand at about 2-30 p.m. They found a crowd in the hotel of accused Abdullah, which was separated by only a metal road from the bus stand. They went inside the hotel and found accused Muhammad Rahim, Bachayo and Abdullah sitting on a table. Deceased Talib and Vikio were also sitting on the same table. They also saw that accused Muhammad Rahim instigated the other accused that they should not spare Talib and complainant. On the instigation of accused Muhammad Rahim, the accused Abdullah took pistol from the drawer of the counter and fired at Talib, which hit him on his chest after sustaining injury.-Talib started running outside the hotel, but he fell down on the ground by the side of the door of hotel, thereafter accused Muhammad Rahim and Bachayo gave Lathi blows to complainant Vikio. He, Ghulam Haider and Siddiq intervened and saved the complainant.
39. Several persons were also present at the hotel at the time of incident, including Ramzan, Mohano Ari Jat and Shahi Rind. Thereafter accused ran away through the door which was in a room towards western side of the hotel. They made inquiries from the complainant, on which he told them that he and deceased had come to take tea in the hotel when the accused told him as to why they had filed a case against their friend Khudayar Punjabi on which the complainant told them that there was dispute over a piece of land and then the incident took place. They stayed over the injured Talib while complainant went to the police station for lodging report. The police came with the complainant to the place of incident. After about 1/2 hour Muhammad Hasan brother of Talib came there who took Talib to the hospital in a jeep. The police had recorded his statement after about two days of the incident. The appeal in respect of agricultural land was pending between Khudayar on one hand, Talib and himself on the other hand. He has produced certified copy of order, dated 5-11-1973 as Exh.19. In cross--examination he has stated that he owns Survey Nos.196-197-199 in Deh Abdo Mando Taluka Tando Muhammad Khan. Survey No.201 owned by Hasan brother of deceased, is adjacent to his land. Survey No.200 in the same Deh was owned by the deceased. Guhram and Mooso had filed appeal against him in respect of his above Survey number. The said Mooso is maternal-uncle of Bachayo. He did not know whether the said Guhram is maternal-uncle of Bachayo. It is not a fact that he had not named accused Bachayo in his 164, Cr.P.C. Statement as being present at the time when they went inside the hotel. He had not stated in his 164, Cr.P.C. Statement that all the three accused were sitting on one and the same Bench. He had stated in his 164, Cr.P.C. Statement that accused Bachayo caused Lathi injuries to complainant Vikio. His statement was recorded at police station at the same time when statement of P.W.
40. Ghulam Haider and Siddiq were recorded. It is correct that he and P.W. Ghulam Hyder are Mashirs in murder case (State v. Minh Dino and others) of the year 1976. In that murder case, deceased was Ayub, who was brother of P.W. Siddiq. He has denied that the mother of Vikio is sister of his father Haroon. He had not filed any F.I.R. In the year 1974 against Khudayar Punjabi and others under section 307, P.P.C. He had left for his village within 10/15 minutes of the arrival of the police at the Wardat. The complainant is his caste--fellow. His village is about one mile away from the village of the complainant. There were several hotels adjacent to the Wardat. He has stated in his police statement and his 164, Cr.P.C. Statement that when he entered the hotel he found Abdul Rahim sitting with other accused in line. He had stated before the police that after deceased fell down on the ground accused Abdul Rahim gave Lathi blows.
41. Ghulam Haider P.W.5, and Muhammad Siddiq P.W.6 have deposed that on the day of incident they left their village in the morning and went to Bulri Shah Karim P.W. Usman met them at about 1-00 or 1-30 p.m. After making purchases. When they reached bus stand Bulri Shah Karim for going to their village they heard commotion from the hotel of Abdullah. They have supported the evidence, given in Court by Usman P.W.4. They have further stated that they are not related to the complainant and deceased Talib. P.W. Ghulam Haider has further deposed that he had gone with injured Talib to the hospital and remained there till the dead body was returned to him after conducting the post- mortem. According to Ghulam Haider statements of Ramzan, Aroo Jat and Shah Ali were recorded at the Wardat alongwith his statement. He is on visiting terms with the complainant party since 1972. Muhammad Siddiq P.W.16 has admitted in cross-examination that his bother was murdered in the year 1976 and in that case Minhon Dino and others were challaned. He has admitted -that Ghulam Haider and Usman were Mashirs in that case. Police had also recorded the statements of Ghulam Haider and Usman at the time when his statement was recorded. The appellant' and Ghulam Haider were residing in the same village. Several persons had collected at the Wardat. He had gone to the police station on the next day. He was brought by police at the Wardat where P.Ws.
42. Ghulam Haider and Usman reached together. He has denied that he was not present at the time of incident. He did not know the owner of Transport Agency situated opposite hotel of Abdullah.
43. Adverting .To the first contention of Mr. Hayat Qureshi, learned counsel appearing for the State, except complainant Vikio P.Ws. Usman, Ghulam Haider and Muhammad Siddiq have denied the relationship with the deceased and complainant. No doubt, complainant Vikio has admitted that the deceased was his nephew while P.W. Siddiq is catse-fellow of deceased Talib but there was no close relationship between them. It is also an admitted position that there was no previous enmity between the accused Abdullah and deceased. Even complainant Vikio and other witnesses had no enmity as far as accused Abdullah was concerned.
44. As far as the death of deceased Talib and the fact that complainant Vikio had sustained injuries at the hotel of accused Abdullah are concerned the same has not been denied. On one hand the same has been proved through ocular and medical evidence, on the other hand it is also admitted by accused Abdullah that deceased Talib has sustained fire-arm injury at his hotel while Vikiyo had sustained blunt weapon injuries due to fall on the table and a chair, although he has given a different version of the incident. Therefore, it stands proved that deceased Talib died due to fire- arm injury sustained by him at the hotel of accused Abdullah.
45. In view of the stand taken by accused Abdullah in his statement in Court, the most important question in this case is whether the version regarding the manner the deceased met his death and complainant Vikio sustained injuries as given by the prosecution is true or the version given by the accused is true. In cases of such nature when distinct versions are given by the rival parties in a criminal case, the two versions have to be kept in juxta--position in order to arrive at the conclusion in regard to the truth or falsity of one or the other version. The other important aspect of this case to be kept in view is that this is an appeal against acquittal of the accused and therefore, the Court has to keep in view the following circumstances:--
(1) The views of the trial Judge as to the credibility of the witnesses;
(2) The presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial;
(3) The right of the accused to the benefit of any doubt; and
(4) The slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. as observed in the case of Sheo Swarup and others v. King Emperor AIR 1934 PC 227(2), and the principles have been reaffirmed by our superior Courts from time to time.
46. It will be important to mention here the defence taken by accused Abdullah in cross-examination suggested to complainant Vikio and his statement made under section 342, Cr.P.C. Before the learned trial Judge. After complainant Vikio was recalled for further cross-examination, it was suggested to him that he and deceased Talib had gone to the hotel of Abdullah to fight with him.
47. That deceased Talib had told accused Abdullah that he should not help Punjabi Khudayar otherwise (deceased's will teach him (accused) a lesson. Accused Abdullah had told the complainant and deceased Talib that they should leave his hotel. That complainant had tried to pounce upon accused Abdullah who came out of the counter and pushed him due to which he fell with his back on the chair and table. That deceased Talib was takings out something from the fold of his Shalwar on which accused Abdullah had grappled with him. Deceased Talib had taken out pistol from the folds of his Shalwar and in the struggle the pistol went off from the hand of Talib and hit him".
48. In his 342, Cr.P.C. Statement accused Abdullah has taken the following stand (page 220) of paper book "I was sitting in my hotel and attending the customers when Talib and Vikio came in my hotel.
49. Talib asked not to- help Khudayar Punjabi in the cases in Courts. He threatened him that if I did not desist he would teach me a very serious lesson. I asked them not to threaten me and not to quarrel with me on which both jumped towards me, and Vikio wanted to beat me. I pushed Vikio who fell with his back on the chairs of the hotel. Meanwhile, Talib took out a pistol from his Shalwar, I grappled with him and wanted to snatch the pistol. We grappled with each other for the pistol, and in the struggle pistol went off which hit Talib who fell down in my hotel. The pistol also fell down from him in my hotel. I am innocent. It was in my hotel when they came in and attacked me."
50. D.W. Basar examined by accused Abdullah has stated that he runs Transport Agency named as Shahbaz Transport Agency on Bathoro Road Bulri Shah Karim since last 15/16 years. Accused Abdullah, Muhammad Rahim and Bachayo are known to him. Accused Abdullah runs a hotel which is situated opposite his goods agency at the distance of ahout 30 or 32 feet. Road 'intervenes his agency and hotel of Abdullah. About 11 years back at 2-00--or 2-30 p.m. He was sitting in his agency when he heard commotion coming from the hotel of Abdullah. He went to that place and found Abdullah sitting at the counter of the hotel, while deceased Talib and complainant Vikio were standing in front of the counter of hotel and were telling accused Abdullah not to help Khudayar Punjabi in the case pending between them. At that time Fazal Rind, Haroon Zaunr and 2 or 3 servants of the hotel were present. No other person was present in the hotel. Co-.Accused were not present. Accused Abdullah told the deceased and the complainant that he was not helping Khudayar Punjabi in any way on which there was exchange of hot words between deceased and accused Abdullah. Accused Abdullah told the deceased and the complainant to go out of his hotel.
51. Thereupon, complainant Vikio abused Abdullah who pushed him and he fell down on the chair.
52. After that deceased Talib took out a pistol from the fold of his Shalwar and aimed at accused Abdullah who grappled with him in order to snatch pistol from him but the pistol went off and hit deceased Talib. Talib fell down. He had received fire-arm injury on his chest. Then I immediately went to my village.
53. In cross-examination he has deposed that he has no partner nor any Munshi at histransport company. He permanently sits at his transport company. On commotion he left his company unattended. He was hardly for 2/3 minutes in the hotel of accused Abdullah. Accused Abdullah has always 4 or 5 servants at his hotel. No servant from the adjacent hotel of Allahdino arrived at the place of incident. 2/3 servants were present at the hotel. Two customers namely Haroon, Zaunr and Fazal Rind were taking tea in the hotel. He did not know whether deceased and complainant had taken tea in the hotel. In fact he had only seen them standing in front of the counter. There were 4/5 hotels on that road at that time but a could not give the names of proprietors of those hotels.
54. Those hotels were open at the time of incident. He could not say as to where the pistol was taken away. He could not give the names of the persons who used to serve tea in, the hotel of Abdullah.
55. Accused Abdullah met him after 3 or 4 years. He did not tell him anything more. He did not know that the police had come at the place of Wardat. He was not examined by the police. He knows that accused Abdullah is accused in the present murder case. After 3 days of this incident he came to know that accused Abdullah was detained by the police in the murder case. He could not give the names of brothers of accused Abdullah. He did not tell any body or the police that accused Abdullah was innocent. He has denied that he was giving false evidence due to friendship with accused Abdullah.
56. In view of the admitted position that the incident took place in the hotel of the accused Abdullah and even the presence of complainant Vikio is admitted by the accused. His presence- is further supported by the medical evidence and the lodging of F.I.R. Which was lodged very promptly by him. As observed above, there was no enmity between the complainant, deceased and accused Abdullah. There is no evidence to show that accused Abdullah had stood surety for accused Khudayar and others or appeared as witness for them or had supported accused Khudayar (opponent of the complainant party) in any way and, therefore, the version advanced by accused that complainant and deceased Talib told him not to support Khudayar and others appears to be absurd. On the other hand, it is clear from the certified copies of judgments and depositions produced by the accused himself with regard to the cases filed by complainant party, accused Khudayar and others that there was enmity between Khudayar and Muhammad Hasan and Talib with Khudayar, Zar Ghaffar, Behram, Mooso over land. They had filed appeals against Talib, Muhammad Hasan and Muhammad Usman against grant of land before Member, Board of Revenue and the same was decided in favour of complainant, Usman and MuhammadHasan on 5-11-1973, respondent/ accused Abdullah was not a party in the above land dispute matter nor there was any thing to show that he was party to the criminal cases and, therefore, the motive advanced by the complainant party appears to be convincing and A reliable that complainant and deceased Talib went to the Hotel of Abdullah for taking tea, accused Bachayo asked them to withdraw cases against Khudyar, Zar Ghaffar and others. The evidence of complainant Vikio appears to be straightforward, independent and natural. It is supported by medical evidence, inasmuch as the medical evidence shows that deceased Talib died due to fire--arm injury while the complainant himself had sustained blunt weapon injuries. His evidence is further supported by production of pistol by accused Abdullah from the crates of Coca-Cola and tea lying in his room of the hotel and the recovery is fully supported by Investigating Officer and Mashir Mataro P.W.7. Even the report of the Ballistic Expert is in positive. There is also evidence of P.Ws. Muhammad Usman, Ghulam Hailer, and Muhammad Siddiq which corroborates the evidence of complainant Vikio. The learned Judge has discarded the ocular evidence on the ground that the witnesses were interested and their evidence was contradictory with regard to the place of incident where the complainant party and the accused party were sitting. The learned Judge has also pointed out that according to the F.I.R., accused Abdullah was having revolver in his hand, and opened fire at Talib at the instigation of the accused but according to his evidence in Court, Abdullah took out pistol from the drawer and fired at Talib. In addition to the above contradiction the learned Judge has also noted down the contradictions as to who took deceased to the hospital and regarding the examination of witnesses. However, the contradictions were not such which could affect the prosecution case, specially when the incident took place in August, 1976; while complainant Vikio was examined on 8-9-1980 i.e. After four years, P.W. Usman was examined on 21-4-1982 i.e. Nearly six years after the incident, P.W. Ghulam Haider was examined on 11-5-1982. P.W. Muhammad Siddiq was also examined on 11-5-1982 and, therefore such contradiction were natural and they could not affect the veracity of the evidence of the complainant. As far as P.Ws. Usman, Ghulam Haider and Muhammad Siddiq are concerned, it appears that they came at the place of incident after the incident had started and, therefore, it is stated by the complainant and P.Ws. That on inquiries by Ghulam Haider, Siddiq and Usman, complainant told them that accused Bachayo asked Talib to withdraw their cases, against their friend Punjabi and at his refusal he was shot. The learned Judge has rejected the ocular evidence on flimsy grounds and has B failed to give cogent reasons for the same, which is further clear from the fact, that the evidence regarding production of pistol has been misread and misappreciated by the learned Judge which has occasioned miscarriage of justice in as much as the Mashirnama Exh.27, regarding production of pistol by accused Abdullah shows that, "the accused confessed his guilt and volunteered to produce revolver, and thereafter led the Mashirs and the police to the rook of his hotel and produced one pistol from the boxes/crates of Coca Cola bottles and the empty crates of tea lying in the south-west corner of the room."
57. Mashir Mataro, P.W.7, has fully supported the recovery of pistol in his evidence. The evidence of S.H.O. Jang Sher Khan P.W.9, shows that accused after his arrest led the police and Mashirs to a room inside his hotel and produced one .25 bore pistol from the Garden field. It appears to be typing mistake, which is clear from the Mashirnama of recovery and deposition of Mashir Mathro.
58. Recovery of empty bullet from the place of incident is supported by Mashirnama Exh.36 Mashir Bachal P.W.12 co-Mashir Sher Muhammad, H.C. P.W.1.1 and the recovery of empty has not been challenged in cross-examination from both Mashirs. Recovery of empty bullet has not been seriously denied even by the accused in his 342, Cr.P.C, statement.
59. Even otherwise, if the learned Judge had applied her mind to the facts of the case, there could be no Garden field inside the room of the hotel; and it was clearly a case of mistake in typing.
60. Adverting to the defence of accused Abdullah no doubt, he has produced certified copies of F.I.Rs.
61. Depositions, and judgments to show that there was enmity between complainant party and Khudayar Khan and others, but there is nothing to show that he was party to those cases, and therefore, Talib wanted to fire at Abdullah but in .The struggle the same went off and deceased Talib was hit. This is belied even by medical evidence. Inasmuch as if the pistol had gone off, as alleged, there would have been charring ,and blackening around the wound bat the evidence of Dr. Muhammad Siddiq P.W.6 who had initially examined the injured Talib, shows that there was no charring present, and this evidence of Dr. Muhammad Siddiq was not challenged in cross- examination nor any question was put to him on the point of charring and blackening. The evidence of Dr. Saifuddin P.W.8, who had carried on post-mortem on the dead body of deceased Talib, shows at page 176 of the paper book that he has not mentioned blackening and charring marks on the external injury as those were not present: The empty bullets recovered from the place of incident (hotel of accused Abdullah) and pistol produced by the accused from the room of his hotel were sent to the Ballistic Expert for examination and report and the report Exh.42 shows that .20 bore crime empty marked as `C' was fired from the said pistol. It was contended by Mr. M.I.
62. Memon, learned counsel appearing for the private respondents, that there was delay in sending the empties and pistol to the Ballistic Expert inasmuch as the recovery was made on 5-8-1976 whereas the pistol and empty were sent to the ballistic expert on 8-12-1976 and, therefore, no reliance could be placed on the recovery. There is no doubt, that there has been some delay in sending the articles to the Ballistic Expert but unfortunately no question was put to the S.H.O. Mr. Jang Sher Khan P.W.9, in cross-examination to seek explanation from him for the delay. In this connection it will be appropriate to refer to the case of Muhammad Hasan and another v. The State P 1, D 1970 Kar. 413; wherein it was observed by a Division Bench of this Court that:-- "Something has to be alleged and at least shown before the unexplained delay can be regarded as sufficient to throw away the evidence of recovery. No such suggestion has been made to this effect in the evidence and we are not, therefore, inclined to agree with the learned counsel that because of the delay in sending the articles to the Expert, the evidence should not be considered."
63. In the case of Anwarul Hasan v. The State 1980 SCMR 649 wherein it was contended that there was delay in sending the articles to the Chemical Examiner and there was no explanation on record for the delay, and as such recovery should not be taken into consideration. The contention was repelled and it was observed by their Lordships of th 'supreme Court that:-- "It may be stated that learned counsel could not point out whether any such question was put to the S.I. Concerned, and in the absence of any evidence doubting the identity of the articles recovered from the spot and those which were sent to the Expert etc. The point is of no substance because it is well-settled that delay simpliciter is not always destructive of the evidentiary value of the incriminating material."
64. Since no question was put to the Investigation `Officer with regard to the delay in sending the articles to the Ballistic Expert, and no explanation was sought from him, the evidence of the recovery of empty bullet from the place C of incident, and production of pistol by accused Abdullah cannot be ruled out of consideration. The learned trial Judge has wrongly excluded this important piece of evidence from the consideration which was due to misreading and misappreciation of evidence. Therefore, it is clear that on one hand the presence of complainant Vikio is admitted by the accused Abdullah which is further corroborated by medical evidence that he had injuries on his person and the fact that he lodged report with the police promptly. His evidence is further corroborated by recovery of empty from the place of Wardat and production of pistol by accused Abdullah and the report of the Ballistic Expert which is in positive. As far as the defence of accused Abdullah was concerned, on one hand it was afterthought and on the other hand the evidence of defence witness Bassar is absurd, unnatural and unreliable. He has admitted in cross--examination that immediately after the incident he went away to his village and did hot inform any person about the facts of the incident. He did not appear before the police nor he moved any application about innocence of accused Abdullah. Moreover his evidence is also belied by medical evidence as observed in the earlier part of this judgment and, therefore, the same is ruled out of consideration.
65. Mr. M.I. Memon learned counsel appearing for the private respondents has relied upon the case of State v. Sikander Hayat and others 1989 P Cr. L J 1179 in which one of us namely Allahdino G. Memon, J. Was the member. However, the facts of the reported case were totally different than the facts of the case in hand inasmuch as in the reported case the ocular evidence was interested and contradictory, number of independent persons had collected at the place of Wardat but no independent witness was cited or examined. There was enmity between the parties and the ocular evidence was not corroborated by any recovery. Moreover, the parties had patched up and there was no misreading of evidence or misappreciation of evidence, and even the complainant's counsel did not support the prosecution, and therefore, the acquittal appeal was dismissed.
66. Another case of the State v. Ehsan Shah and 4 others 1989 P Cr. L J 2234 relied upon by Mr. M.I.
67. Memon wherein the accused were acquitted by the learned IInd Additional Sessions Judge and the State filed acquittal appeal, and a Division Bench of this Court of which one of us namely Haider Ali Pirzada, J. Was a member dismissed the same. However, the facts of the reported case are totally different distinguishable inasmuch as it was observed by his Lordship Ajmal Mian, J. (as he then was) that:-- "The ocular evidence was interested inimical and even the presence of P,Ws. At the place of incident was doubtful. As far as recovery of guns was concerned, two guns were recovered from different accused than those who had used to same while the 3rd was not used in the crime. Since the guns were not recovered from the particular accused who were alleged to have used the same, the prosecutor did not rely upon the recovery even before the trial Court and as such the same was ruled out of consideration even by the High Court, specially because the recovery wag also joint. The judicial confession was retracted, although the incident had taken place in Taluka Sahwan where a First Class Magistrate was posted but the accused was produced at Dadu far-off place for confession. The accused was handed over to another S.H.O. Of different police station who got the confession recorded."
68. It was further observed that:-- "Even the Magistrate who recorded confession appeared to be inexperienced. After the above evidence was ruled out of consideration the medical evidence and motive were not considered to be sufficient for conviction and the acquittal appeal was dismissed."
69. Therefore, with utmost respect the above two cases are not applicable to the facts of the present case.
70. In the case of Jumo v. The State 1973 SCMR 82, wherein on acquittal appeal High Court had set aside judgment of acquittal and convicted the petitioner, the petitioner filed petition for leave to appeal but the same was refused by their Lordships with the observation that:-- "In acquittal appeal the facts were open to the High Court and it could form its own opinion upon the evidence,--although it naturally had to give due weight and consideration to the views of the trial Court which had the opportunity to see the witnesses."
71. In the case of Farid v. Aslam and 4 others PLD 1977 Supreme Court 4, wherein the convicts filed appeal against their conviction and the State had filed acquittal against 4 respondents, it was observed by their Lordships of the Supreme Court that:-- "Normally Supreme Court does not interfere with the findings of acquittal where it is satisfied that they are reasonable and were not arrived at by disregard of any accepted principle regarding the appreciation of evidence. Even if the Supreme Court might have taken a different view of the evidence, it was not sufficient to overrule the findings of the Courts below. However, if the grounds upon which the High Court has acted are not supportable on the record, or the decision on a question of fact has turned upon inadmissible evidence or upon a faulty reading of evidence, or where there has been a departure from due procedure in the reception of evidence or otherwise, which is calculated 4o interfere with the due or safe' dispensation of justice, then interference by this Court would be justified and necessary."
72. In view of the above factual as well as legal position, we are of the considered view that the prosecution has proved its case against the respondent Abdullah beyond reasonable doubt and the learned Judge has erred in acquitting him. The judgment of acquittal as against respondent Abdullah is therefore, set aside. However, looking to the fact that the incident took place in the hotel of accused/respondent Abdullah, he did not repeat the shot and the incident was not premeditated but was sudden, therefore, he is convicted under I D section 304, Fart I, P.P.C. And sentenced to suffer R.I. For seven years, and also'; to pay fine of Rs.10,000 (Rupees ten thousand) in default whereof to suffer R.I. For six months. In case the fine is paid the same shall be paid as compensation under section 544-A, Cr.P.C. To the heirs of the deceased Talib. He will be entitled to the benefit of provision of section 382, Cr.P.C.
73. As far as respondents Muhammad Rahim and Allah Bachayo are concerned, the inciden took place in the year 1976, and they have undergone agony of protracted trial for nearly 14 years. The Lathis recovered from them were not blood-stained and the learned Judge has acquitted -them while F extending benefit of doubt. We do not feel it proper to interfere with their acquittal specially because the incident was unpremeditated and they could be ` liable at the most for offence under section 323, P.P.C.
74. We had decided the above appeal by a short order on 15-1-1991 and these are the reasons for the same.