' Fazal Karim and Muhammad Shabbir, appellants were convicted and sentenced under section 304/34, P.P.C. By Mr. Zulfiqar Ali Khan, Additional Sessions Judge, Gujrat vide his judgment, dated 29-10-1985 to undergo 10 years' R.I. And a fine of Rs,5,000 each, and in default of payment thereof to suffer further R.I. For a term of six months. Under section 344-A, Cr.P.C. Each of the appellants was ordered to pay a sum of Rs,10,000 as compensation to the heirs of the deceased Muhammad Shafi.
The compensation amount was directed to be recovered as arrears of land revenue, and in default of payment thereof, each of the appellants was to suffer further imprisonment for six months' R.I.
2. Fazal Karim and Muhammad Shabbir; convicts have filed separate Criminal Appeals Nos.642 of 1985 and 756 of 1985 respectively to impugn the judgment of the trial Court. The complainant has also preferred a Criminal Revision No,672 of 1985 for enhancement of sentence. All these matters shall be disposed of by this judgment.
3. Javed Iqbal, complainant on 24-9-1983 at 11-05 p.m. Made a statement Exh.PA. Before Ch. Manzoor Hussain, A.S.I. That he was resident of Mahay Khurd, and was running a shop of grocery in the village and at about 8-00 a.m. On 24-9-1983 he alongwith his deceased father Muhammad Sharif were going on a cycle to Sarai Alamgir to purchase articles and when they reached in front of the house of Muhammad Ashraf son of Imam Din near Nala Kass, where the accused-appellant Fazal Karim, accused Muhammad Sarwar (since acquitted) and accused-appellant Muhammad Shabbir, residents of the village waylaid them. Fazal Karim while raising Lalkara exhorted his co- accused that Muhammad Sharif deceased had come, let they teach him a lesson of yesterday's quarrel, on which Muhammad Sarwar (acquitted accused) with his hunter inflicted a blow on the right side of the head of the deceased. The blood started oozing out. The deceased got down from the cycle. Fatal Karim, appellant inflicted a Sota blow on the right shoulder of the deceased, Shabbir Ahmad appellant also inflicted a Sota blow on the Dola of the right arm. Then Muhammad Sarwar (acquitted accused) gave hunter blow on the left ribs of the deceased. Thereafter Muhammad Sarwar inflicted a hunter blow on the right flank of the deceased. The sixth injury was caused by the appellant Fatal Karim on the nose of the deceased, who then fell on the ground and on the fallen deceased the abovesaid appellants and the acquitted accused continued causing injuries. The complainant (P.W.2) in order to save his life started raising he and cry on the spot, on which P.W.1 Muhammad Siddiq, P.W.3 Muhammad Anwar and P.W. Muhammad Afzal (given up) were attracted, who were also proceeding to Sarai Alamgir. They reached the spot, beseeched the accused and got the deceased released. The abovementioned P.Ws. Witnessed the occurrence.
The complainant took the injured with others to Civil Hospital, where the Doctor had admitted the deceased in injured condition and the complainant produced M.L.R. The motive, as stated by P.W.2 Javed Iqbal, complainant was that on 23-9-1983, the appellant Shabbir Ahmad's cattle had destroyed the rice crop of the complainant party, who were stopped, on which there was an exchange of abuses between the complainant and Shabbir Ahmad appellant, but the respectables after immediate intervention had patched up the matter. Shabbir Ahmad appellant and his relatives to teach a lesson of exchange of abuses, to take revenge and in order to kill the deceased had seriously injured him. P.W.9, Manzoor Hussain, A.S.I. Drafted the complaint Exh.PA and sent the same to the police station, where Fateh Khan, Moharrir Constable had registered the F.I.R.
Exh.PA./1. Firstly, the F.I.R. Was recorded under section 307/34, P.P.C. And afterwards when the injured Muhammad Sharif died in the hospital, the case was challaned under section 302/34, P.P.C.
4. Muhammad Sarwar (acquitted co-accused) absconded and after observing the legal formalities the appellants were tried and convicted. The prosecution examined eleven witnesses in all to substantiate its case. P.W.1 Muhammad Siddique, P.W.2 Javed Iqbal, complainant and P.W.3 Muhammad Anwar furnished the ocular testimonies and had supported each other. P.W.1 and the deceased were closely related i,e. Ahmad Din, brother of P.W.1 is married to sister of the deceased.
P.W.2 Javed Iqbal complainant is the' real son of the deceased. The learned trial Court has disbelieved P.W.1 Muhammad Siddique and P.W.3 Muhammad Anwar in para. 27 of its judgment.
The medical testimony has been furnished by the statement of P.W.10 Dr. Muhammad Ali Malik, who found the following injuries on the person of the injured:--
(1) Lecrated wound 2.5 c.m. x 0.5 c.m. x bone deep right side of head.
(2) Contusion 4 c.m. x 1 c.m. Outer of right arm.
(3) Contusion 3 c.m. x 3 c.m. Top of the right shoulder.
(4) Contusion 5 c.m. x 2 c.m. Front of chest left side.
(5) Contusion 6 c.m. x 2 c.m. Outer of right leg.
(6) Contusion 5 c.m. x 1.5 c.m. Just above right iliac bone.
(7) Contusion 4 c.m. x 2 c.m. Back of the chest right side.
(8) Abraded contusion 2 c.m. x 1 c.m. On the nose.
' According to the Doctor, the patient was vomitting and was semi-conscious. B.P. Was 110/70.
Injuries Nos.2, 5 and 6 were simple in nature. The rest were kept under observation. All the injuries were inflicted by blunt weapon about two hours earlier. On 27-9-1989 the injured Muhammad Sharif died in the hospital and on the same day at 10-00 a.m. His post-mortem examination was conducted. On the external examination, the injuries detailed above were noted. On dissection all the three cavities were opened. There was laceration 2.75 c.m. x 0.5 c.m. x 1 c.m. Of the spleen, which was covered over by clot. Abdominal cavity was full of blood. Skull bone showed a linear fracture 7 c.m. Just behind and below injury No,1. Skull cavity contained about 20 CC of blood.
Membrane and brain matter was congested. In his opinion all the injuries were ante-mortem in nature. All the injuries were inflicted by blunt weapon. The death had occurred due to shock and haemorrhage due to injuries Nos.1 and 4. Injuries Nos.1 and 4 were sufficient to cause death collectively as well as individually in ordinary course of nature. The other injuries were simple in nature. The time between injuries and death was about 72 hours and between death and post- mortem about three hours. Post-mortem report is Exh.P.O.
5. On 8-10-1983 in the presence of P.W.8 Nazir Hussain and P.W.9 Manzoor Hussain, the appellant Muhammad Shabbir made a disclosure and led to the recovery of Sota, P.4 from his Haveli, secured by P.W.9 vide memo. Exh.P.D. Attested by P.W.8 Nazir Hussain and P.W. Allah Ditta (given up). On the same day Muhammad Sarwar (acquitted co-accused) had led to the recovery of Hunter P.5 from his house, secured by P.W.9 vide memo. Exh.P.E. Attested by the same witnesses. No Sota was recovered at the instance of appellant Fazal Karim. P.4 and P.5 were not blood-stained and hence have no evidentiary value and the factum of recovery was not proved on record.
6. The co-accused Muhammad Sarwar was acquitted later on by the trial Court after his surrender, and at the time of submission of his bail before arrest before this Court, affidavits of complainant P.W.2 Javed Iqbal, P.Ws./eye-witnesses Muhammad Anwar, Muhammad Siddique, Ghulam Fatima wife of the deceased, Mst. Nasreen Akhtar and Mst. Rehana Kausar daughters of the deceased were filed to the effect that a compromise had been effected between the complainant party and Muhammad Sarwar, co-accused. It is pertinent to mention here that in the said compromise deed and the affidavits it has been specifically sworn that co-accused Muhammad Sarwar was not present at the time of commission of the offence, but due to party faction he was falsely involved.
The said compromise deed and the affidavits are on the record. At the time of filing of the appeal by the appellants, P.W.2 Javed Iqbal complainant and his mother Mst. Ghulam Fatima, widow of the deceased also filed affidavits that they had forgiven the appellants in the name of Allah and they may be acquitted. The said affidavits are on the file. The fatal blows i,e. Injuries Nos.1 and 4 were attributed to Sarwar acquitted (co-accused).
7. The learned trial Court disbelieved the evidence of P.W.1 Muhammad Siddiq and P.W.3 Muhammad Anwar and after relying upon the oral testimony of P.W.2, complainant and medical evidence, convicted and sentenced the appellants. In criminal cases, it is the duty of the prosecution to prove that even if the witnesses are interested as in the present case (the only P.W.
Relied upon is son of the deceased), to prove that he was a witness of truth. The mere fact that P.W.2 had no previous animosity with the appellant, was not sufficient to label him as a truthful witness. There is no independent corroboration of the statement of P.W.2 and it shall not be safe to rely upon his only ocular testimony.
8. In view of the above discussion, both the criminal appeals separately filed by the appellants are allowed. Their conviction and sentences are set aside and they are acquitted of the charge. The appellants are on bail, their bail bonds are discharged. The connected criminal revision was not admitted and was ordered to be heard alongwith the appeals. Since the appeals have been accepted, the revision petition fails and is, therefore, dismissed.