' The appellants abovenamed, alongwith co-accused Yaroo Khoso were tried by the learned Sessions Judge, Dadu for offence under section 302 read with section 34, P.P.C., for having caused murder of Muhammad Bux by running him down a Datsun Pick-up. Accused Yaroo is acquitted having been given benefit of doubt. Appellants Manthar and Ali Nawaz were found to have committed offence under section 304 read with section 34, P.P.C. And not under section 302 for which they were initially charged. Appellant Manthar is convicted and sentenced to undergo R.I. For 14 years and to pay fine of Rs,30,000 or in default to suffer further R.I. For 2 years. Appellant Ali Nawaz is convicted and sentenced to undergo R.I. For 10 years and fine of Rs,50,000 and in default to suffer further R.I. For 3 years. It was further directed that out of amount of fine if deposited, a sum of Rs,40,000 be paid as compensation under section 544-A, Cr.P.C. To the heirs of deceased Muhammad Bux. Both the appellants are given benefit of section 382-B, Cr.P.C.
2. The facts, as given in the FIR lodged by complainant Imam Bux at P.S. Johi, District Dadu on 7-1- 1987 are, that he was a primary teacher serving in Primary School, Police Headquarters Dadu and the deceased Muhammad Bux was his nephew. About a week back, his son Azizullah had purchased a Datsun Van from accused All Nawaz for Rs,1,50,000. Rs,50,000 were to be paid in advance, out of which Rs,5,000 were paid immediately to All Nawaz and Rs,5,000 were payable on 5-1-1987, while still another sum of Rs,5,000 were payable in March. The balance of price of the van was payable on monthly instalments of Rs,4,000 each. On 4-1-1987 his son Azizullah went to Hyderabad to arrange for money but could not return by the promised date. On 7-1-1987 at about 11-00 a.m. While complainant Imam Bux, his son, his brother and two cousins Hamzo and Rajab were present in front of their houses in Phulji Village, Taluka Juhi, the two appellants All Nawaz and Manthar alongwith Yaroo alias Yar Muhammad, residents of Khairpur Nathan Shah came there and made demand for the money. They were informed that Azizullah had gone to arrange for the amount which would be paid to them the next day. On this appellant All Nawaz got annoyed, had some altercation and went and occupied Datsun. Appellant Manthar sat at the driving seat and he was asked by co-accused All Nawaz and Yaroo to overrun Muhammad Bux who had by then stood in front of the vehicle. Manthar drove the Van, overrun Muhammad Bux, and took away the vehicle.
Thereafter complainant and witnesses saw Muhammad Bux lying unconscious and he was removed to Civil Hospital Dadu, where he died after a short-while. The motive shown in the F.I.R. Is that the death of deceased was as a result of transaction of money which could not be paid on the due date.
3. During investigation, the police found accused Ali Nawaz not fully implicated by P.Ws. And released him under section 497, Cr.P.C. While sent up Manthar and Yaroo for their trial. However, the complainant filed an application for joining Ali Nawaz also .As accused and by a detailed order, dated 27-8-1987 Ali Nawaz was also joined as accused and tried alongwith co-accused.
4. On 24-5-1988 charge was framed against all the 3 accused under sections 302/34, P.P.C. To which they pleaded not guilty and claimed to be tried.
' Prosecution examined, P.W.1 Dr. Muhammad Ali (Exh.9) who had conducted post-mortem examination of deceased Muhammad Bux on 7-1-1987 and he produced post-mortem report as Exh.9/A. P.W.2 Imam Bux (Exh.10) is the complainant of this case and he narrated facts as given in the FIR. He implicated all the 3 accused and produced FIR (Exh.10/A). P.W. Rajab Ali (Exh.11) was eye- witness present at the time of occurrence and so also P.W.4 Hamzo Khan (Exh.12). Both these eye- witnesses supported the complainant Imam Bux. P.W.5 Ahmed Khan (Exh.4) was A.S.I. At P.S. Johi on 7-1-1987 when complainant Imam Bux lodged FIR (Exh.10/A). He stated that prior to the FIR he was informed by Police Station Dadu that a person Muhammad Bux had sustained injuries and had died at Civil Hospital, Dadu. Having made such entry in the Roznamcha, he went to Civil Hospital, Dadu, saw the dead body of deceased as pointed out by Imam Bux and prepared memo of dead body (Exh.14/A) and Inquest Report (Exh.14/D). He then took complainant to P.S. Johi where FIR (Exh.10/A) was registerd. On 8-1-1987 he visited Wardat and prepared Wardat Memo (Exh.14/D) in presence of Saleh and Allah Rakhio . He then recorded statments of prosecution witnesses and on 22-1-1987 arrested 3 accused from Indus Highway at Khooni Mori and secured the Datsun Pick-up.
Mashirnama of arrest (Exh.14/D) was prepared. From accused Yaroo he obtained Form L relating to challan of vehicle as Exh.14/E. On 3-2-1987 he recorded statements of P.Ws. Hamzo Khan and Haji Khan. On 4-2-1987 he got recorded 164 Cr.P.C. Statements of these witnesses through R.M. Dadu. He then handed over the case papers to S.H.O., P.S. Johi who released accused Ali Nawaz as case was not found proved against him during investigation. He also got recorded 164, Cr.P.C. Statement of P.Ws. Rajab and Hamzo through Mukhtiarkar and F.C.M., Dadu.
' P.W.6 Muhammad Saleh (Exh.15) acted as Mashir to the Mashirnama of dead body of Muhammad Bux and Inquest Report. He also acted as Mashir during preparation of Wardat memo. P.W.7 Saindad was Police Constable at Police Station Johi on 22-1-1987 when he accompanied A.S.I.
Ahmed Khan and P.C. Ali Nawaz while going to Phulji Police Post via Indus Highway when at 4.15 p.m.
At Khooni Mori, they saw a Datsun standing and accused Manthar, Yar Muhammad and All Nawaz sitting inside. They were arrested under Mashirnama (Exh.14/D) which was signed by him.
' P.W.8 Faqir Muhammad (Exh.17) was the Tapedar who inspected Wardat and prepared the sketch (Exh.17/D). The prosecution then closed their side vide statement (Exh.18).
' The statement of appellant Manthar under section 342, Cr.P.C. (Exh.9) was recorded and he denied the allegations against him. He stated that he was in service of one Bhai Khan Jamali and used to drive his Toyota Van and on the date of alleged incident he had gone to Hyderabad in connection with a motor vehicle case registered against him in the Court of Secretary R.TA.
Regarding a driving licence. On return from Hyderabad he learnt that he was involved in the case.
' In his statement under section 342, Cr.P.C. (Exh.20) accused All Nawaz denied all the allegations and further stated that a contract was arrived at between him and Azizullah regarding Datsun Pick-up on 30-12-1986 and he produced agreement (Exh.D/1). Since Azizuliah did not pay the instalment of Rs,40,000 on 5-1-1987 a broker was sent to him for getting the instalment but with no result. On 8-1-1987 Imam Bux and Azizullah came at K.N. Shah Town with Datsun for a `Faisla'. They requested for time for payment of instalment but it was not agreed to. The drivers at the bus stand effected `Faisla' and Datsun Pick-up was returned to him and after few days thereafter, he and co- accused were arrested and falsely implicated in this case.
' Statement of accused Yar Muhammad under section 342, Cr.P.C. (Exh.21) was recorded and also denied all allegations against him. He further stated that he was time-keeper at Taxi Stand at K.N.
Shah and the complainant party also used to run Datsun Pick-up. He also stated that there had been a dispute between him and the complainant party over time keeping due to which he is falsely implicated.
' Accused Ali Nawaz examined himself on oath (Exh.25) as his own defence witness. He stated that there was contract between him and Azizullah regarding the Datsun Pick-up which was reduced into writing on 30-12-1986 and since Azizullah did not pay the instalment of Rs,40,000 on 5-1-1987, he sent a broker to him for payment of instalment, which was not paid. He also stated that on 8-1- 1987 Imam Bux and Azizullah came at K.N. Shah Town with the Datsun Pick-up for `Faisla' and requested for time to make payment of instalment which was not agreed to. The drivers at the bus-stand effected `Faisla' and Datsun Pick-up was returned to him and after few days thereafter, he and co-accused were involved in this case. It may be relevant to mention here that during his examination-in-chief, his advocate suggested to him a question to clarify some ambiguity and the question and answer is reproduced:--- "Q. Are your definite about the date of Faisla given by you as on 8-1-1987?
A. No Sir. I am illiterate, I did not remember the date definitely. The Faisla was held on 5th, again say on 6th June, 1987."
' Accused Yar Muhammad examined himself as his own witness on oath (Exh.26) and he stated that he was time-keeper at Taxi Stand K.N. Shah and there had been dispute between him and complainant party over time keeping due to which he was falsely implicated.
' D.W.3 Gul Muhammad was called as defence witness by accused All Nawaz. He was a fruit-seller on a Rehra at K.N. Shah Bus Stand. He stated that on 6-1-1987 at 8-00 a.m. Imam Bux and others came for a Faisla regarding Pick-up, where accused All Nawaz and others were present. There was a Faisla between All Nawaz and Imam Bux. Drivers present at the bus stand decided that as Imam Bux and others failed to make payment to Ali Nawaz, they were not entitled to retain the Pick-up till instalment was paid to the owner All Nawaz (accused). Under the Faisla, Pick-up was returned to All Nawaz.
5. On assessm ent and appraisal of evidence the learned trial Court convicted the accused Ali Nawaz and Manthar as stated above and acquitted co-accused Yaroo giving him benefit of doubt.
6. Mr. Abdul Mujeeb Pirzada, learned Advocate for appellants raised the following contentions:---
(a) Case of appellant Manthar is different from the case of All Nawaz, inasmuch as allegation against Manthar is that he overran the deceased Muhammad Bux while All Nawaz was seated in the said Van and had instigated Manthar to drive away the vehicle. The evidence against All Nawaz is similar to that against co-accused Yaroo, who is given benefit of doubt and is acquitted and the same concession should have been extended to Ali Nawaz as well.
(b) Motive is not proved through evidence of the eye-witnesses and the important witness Azizullah who is said to have purchased the vehicle from Manthar is not examined.
(c) There is no corroboration to the ocular evidence as neither the blood at the Wardat was collected nor the wheel marks as per memo. Of Wardat could be said to be of the same vehicle which accused Manthar allegedly had driven away.
(d) F.I.R. Was lodged after thorough investigation and it was tainted and could not render corroboration to ocular testimony.
(e) For appellant Manthar, the trial Court has erroneously held that since he did not examine himself on oath, it would be a circumstance against him regarding his guilt.
(f) Even if the case of prosecution is believed to be true, it could be at the most a case falling under section 304-A, P.P.C. And not under section 304, P.P.C. As held by the trial Court.
(g) The ocular evidence is believed by medical evidence.
(h) Since the appellants had allegedly taken away the vehicle by force, complainant had a reason to file a false case.
' In support of these contentions the learned Advocate referred to: (i) Mst. Ameer Khatoon v. Faiz Muhammad and others PLD 1991 SC 787, where while dealing with the import, effect and implication of amendments made in section 340, Cr.P.C. On the rights of accused facing trial it was held that no adverse inference can be drawn if accused does not opt to make a statement; (ii)
Bakhshal and others v. The State 1990 P Cr. L J 1, where a D.B. Of this Court held that one tainted piece of evidence cannot corroborate another tainted piece of evidence. It was also held that if medical evidence belies ocular evidence then Court would prefer medical evidence because Doctor is not motivated and his finding is based on sure and undisputable theory. It was further held that interested witness is one who has a motive for false implication of an accused person and there cannot be an inflexible rule that testimony of an interested witness can never be accepted without corroboration; (iii) Naseemuddin Khan and others v. The State 1985 SCMR 510, where the Honourable Supreme Court observed that in a criminal case, it is the duty of the Court to review the entire evidence that had been produced by the prosecution and the defence. If after the examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case and in these circumstances the accused is entitled to the benefit of doubt not as a matter of grace but as a matter of right because the prosecution has not proved its case beyond reasonable doubt; (iv) Muhammad Nawaz v. The State 1984 SCMR 190, where the Honourable Supreme Court held that where there was acquittal of 2 accused and conviction of appellant and the circumstances of case and tenure of trial Court judgment showing that acquittal of co-accused in reality was due to false implication, it was held that accused/appellant could not be convicted without corroboration which was not available and he was, therefore, entitled at least to benefit of doubt; (v) Abdul Hameed v. The State 1985 P Cr. L J 1992 where a D.B. Of this Court held that conviction of accused cannot be sustained on the evidence of those witnesses who had falsely implicated the acquitted accused unless such evidence of witnesses was corroborated by independent piece of evidence worth reliance. The conviction in these circumstances was set aside; (vi) Bagh Ali v. Muhammad Anwar and another 1983 SCM R 1292, where the Honourable Supreme Court held that where there was apparent contradiction in medical report and ocular testimony, the prosecution, and not accused was obliged to clarify the position. It was further held that the version of witness being inconsistent with material facts and circumstances of unimpeachable character, the fact that such witness was inimical to accused would be of no avail against accused; (vii) Yousuf v. The State PLD 1988 Kar. 521, where a D.B. Of this Court held that where contradictions exist between medical report and ocular testimony, the prosecution and not accused is obliged to clarify the position. In this judgment the earlier referred authority, 1983 SCMR 1292 was relied upon; (viii) Hasna v. The State 1983 P Cr. L J 172, where it was held that where First Information Report was not prepared at time and place reported to have been written but drawn at place of occurrence presumably after primary investigation, the First Information Report in the circumstances was held to be shady and the Court should be alert and appreciate ocular account with great care and caution; (ix) Ahmed etc. v. The State 1982 SCMR 1049, where the Honourable Supreme Court held that the corroboration should be looked for and found not only in case of interested witness but also where ocular testimony by itself, is not so sound and doubt-free as to independently suffice for conviction of accused; (x) Liaq Shah v. The State 1990 MLD 581, where it was held that a witness may prima facie appear to be disinterested but that alone is not sufficient to consider him worthy of credence unless his statement rings true and he is not belied or contradicted by other facts and circumstances of the case and he does not suppress material facts going in favour of defence; (xi) Safdar All v. Crown PLD 1953 FC 93, where it was held that, in criminal cases, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after the examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution. In these circumstances, the accused is entitled to benefit of doubt not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt; (xii) Subhanuddin v. The State 1983 SCMR 653, where the Honourable Supreme Court held that where F.I.R. Was lodged after preliminary investigation, the same was not substantive evidence.
' Mr. Jalaluddin Baloch, the learned Advocate appearing for the State, has not supported the conviction of appellant All Nawaz on the ground, that on similar evidence, accused Yazoo was acquitted. For appellant Manthar his contention is that he is guilty of offence under section 304-A, P.P.C. And not under section 304, P.P.C. And that his sentence may be altered. It is also contended that the 3 eye-witnesses Imam Bux, Rajab All and Hamzo are close relatives and no independent witness of the village was examined although it had come in evidence that some villagers were attracted. It is next contended that the review of entire prosecution evidence would show that it has gone unresolved as to how the Datsun was started when its keys were with Azizullah. His last contention is that the medical evidence is contradictory to ocular evidence.
7. I have gone through the judgment of trial Court, the evidence on record and perused the case- law. The ocular evidence of P.Ws. Imam Bux, Rajab All and Hamzo Khan is in line with prosecution case and there is no incoherence or infirmity, but is confidence inspiring. The case of appellants that they are falsely implicated is not proved. Nor it is proved that after a "Faisla" by the drivers at the bus-stand of K.N. Shah, the Datsun Pick-up was returned to appellant Ali Nawaz and since incident was unwitnessed, accused were falsely implicated. Appellant Ali Nawaz admittedly sold the vehicle to Azizullah and since payment of price was not made within due date, he took co- accused Manthar and Yaroo to village of Azizullah for recovery of amount but as Azizullah was nut in the village, they all forcibly drove away the vehicle, which. Was resisted by deceased, who was run over. Merely because other villagers did not act as witnesses, those present at Wardat and examined, cannot be discredited merely because they are close relations of deceased.
8. Faisla for the return of vehicle to appellant All Nawaz was effected on 8-1-1987, while F.I.R. Was registered on 7-1-1987. An unsuccessful attempt was made by defence to correct the date of Faisla by putting questions to appellant Ali Nawaz during his evidence on oath under section 340 of Cr.P.C., but with no fruitful consequence. The defence plea regarding Faisla is an afterthought and is not consistent with the line of cross-examination.
9. Case of appellant Ali Nawaz is not identical to case of acquitted accused Yaroo, inasmuch as, there is direct evidence of instigation against All Nawaz, who got seated in the vehicle and directed appellant .Manthar to drive on, unmindful of the consequences that might have ensued. He can, therefore, not be given benefit of doubt, a concession extended to acquitted accused Yaroo.
10. I am also not inclined to agree with appellant's learned Advocate, that at the most it might be a case under section 304-A, P.P.C. And not under section 304, P.P.C. Section 304-A of P.P.C. Provides causing of death of any person by doing any rash or negligent act not amounting to culpable homicide. The element of knowledge and intention is not necessarily to be proved. In section 304 of P.P.C., intention and knowledge of causing death or such bodily injury as is likely to cause death are clearly mainfested. The act of appellant therefore, will not fall within ambit of section 304-A, P.P.C.
11. The ocular evidence is not belied by medicale evidence. Learned Advocate's contention that since wheel marks were not visible at the seat of injuries, it could not be precisely said that the injuries were the result of causing death under wheels of a vehicle, is also without any force. The doctor has given an obliging reply to a question by defence Advocate, but that does not in any manner prove inconsistency between ocular testimony and medical evidence.
12. Incident took place in village Phulji of Taluka Johi, which is 20 miles from Police Station Johi, where F.I.R. Is registered. Dadu was the nearest place where the injured Muhammad Bux could be taken for treatment and where there is a Civil Hospital. Dadu Police informed Johi Police regarding the death of Muhammad Bux in Dadu Hospital. Since the incident occurred within the jurisdiction of Johi Police, A.S.I. Ahmed Khan rushed to Dadu and prepared memo. Of dead body, inquest report and then took complainant to Johi where F.I.R. Was lodged. This does not amount to conducting investigation before registration of F.I.R. Unless memo. Of dead body and inquest report were prepared in the Civil Hospital Dadu, the dead body could neither have been removed from Hospital, nor delivered to its relations.
13. I am in agreement with learned Advocate that trial Court could not draw presumption of guilt against appellant Manthar who did not examine himself on oath under section 340, Cr.P.C. The law is well-settled on this point. Such finding is unwarranted and it is to be then seen, whether there was sufficient evidence against Manthar to connect him with the offence.
14. The appellants had gone to complainant's village for recovery of price of vehicle and when Azizullah did not meet them, they forcibly took away the vehicle and in that process Muhammad Bux, who resisted, was run over. The appellants may not have had motive to cause Muhammad Bux's death but they had the motive to take away the vehicle if money was not paid. Even otherwise it is not necessary that there should be motive-for commission of every offence.
15. I am also not inspired by the contentions of learned Advocate appearing for the State who has suggested alteration of sentence from 304 to 304-A, P.P.C. Nor do I fmd any justification in treating case of appellant All Nawaz as being identical to case of acquitted accused Yaroo, who is given benefit of doubt for the reasons already stated.
16. There is yet another aspect of the case to which I would like to advert. Section 304 of P.P.C. Reads as under:-- "Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention, of causing death, or of causing such bodily injury as is likely' to cause death; ' or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death."
17. There are two parts of this section. In the first part, offence of culpable homicide would not amount to murder, if the act by which death is caused is done with the intention of causing death or such bodily injury as is likely to cause death. In the second part, word "knowledge" has been used and the word "intention" has been excluded. In both situations, the punishment provided by section 304, P.P.O. Is different . In cases falling under first part, the offender can be sentenced to imprisonment for life, while in cases falling under second part, sentence could extend to 10 years or with fine of with both.
18. The case of appellants is covered by second part of section 304, P.P.C., as they did not intend to cause death of Muhammad Bux, but they had the knowledge that in forcibly driving away the vehicle, death of Muhammad Bux, who resisted, was likely to be caused. The appellants were rightly convicted by the trial Court under section 304 read with section 34, P.P.C. But sentence awarded to them needs to be altered. Both appellants Manthar and Ali Nawaz shall suffer R.I. For 7 years each and to pay fine of Rs,15,000 each, and in default of payment of fine to suffer further R.I. For one year.
The entire amount of fine, or any part thereof if recovered, shall be paid to the heirs of deceased as compensation. Appellants shall be entitled to benefit of section 382-B of Cr.P.C. The appeal stands disposed of, with above alteration in sentence.
Sentence reduced.