JUDGMENT TASSADUQ &USSAIN JILANI, J.- Through this Criminal Appeal, the appellant has challenged the judgment dated 25.5.1993 passed by the learned Additional Sessions Judge'
Bahawalpur whereby he convicted the appellant under section 302-B PPC and sentenced him to life imprisonment (in case FIR No.414 dated 14.12.1991 P.S. City Ahmadpur East). He was also directed to pay compensation under section 544-A Cr.P.C, to the legal heirs of the deceased amounting to Rs.50,000/-. In the event of default he was directed to further undergo six months imprisonment.
Muhammad Amin co-accused was, however, acquitted.
2. The prosecution story briefly stated is that on 14.12.1991 at 4:30 p.m. Elahi Bakhsh complainant
(PWA) along with Abdul Hameed-and Muhammad Sadiq (CW.2) were talking with each other in front of the shop of Shama Khan situated in Mohallah Safrani, Ahmedpur East. Suddenly, they heard the noise and rushed to the spot. They found that he appellant Muhammad Siddiq and co- accused Muhammad Amin were quarrelling with Hafiz Muhammad Qasim. Hafiz Muhammad Qasim was reprimanding them that they indulged in the business of narcotics and the residents of Mohallah were fed up from them. The appellant and co-accused flared up; Muhammad Amin caught hold of Hafiz Qasim and Muhammad Siddiq appellant inflicted a Danda blow on the head of Qasim deceased who fell down at the spot due to the severe injury. Thereafter Muhammad Amin gave a Danda blows on the right hand and face of the deceased. On the intervention of the complainant and witnesses, Hafiz Qasim was rescued and the appellant along with co-accused Muhammad Amin ran away.
3. The incident was reported to police. Nazir Ahmad Sohail SI(PW.12) recorded FIR Exh.PE on the statement of Hafiz Elahi Bakhsh complainant. He went to hospital; prepared the injury statement Exh.PA/1; inspected the spot and recorded statements of prosecution witnesses under section 161 Cr P.C. He moved an application Exh.PG to the doctor to inquire about the condition of the patient and he has told that the patient was not in a condition to give the statement. The report of the doctor is Exh.PG/1. Hafiz Qasim, however, succumbed to the injuries on the following day i.e. 15.12.1991. On receiving telephonic message about the death of Qasim, PW-12 Nazir Ahmad SI went to the hospital and prepared injury statement Exh.PH and inquest report Exh.PB/2. He added section 302 PPC and took into possession the last worn clothes of the deceased. On 17.12.1991, both the accused were arrested. On 25.12.1991, Muhammad Siddiq appellant while in custody led to the recovery of blood-stained Danda (P.1) which was taken into possession vide memo Exh.PD. During trial, the prosecution examined 14 witnesses including the doctor and the Investigating Officer.
5. Dr. Faizulah Hijazi appeared as PW.1. He examined Hafiz Qasim deceased at 6.15 P.M. On 14.12.1991 and found the following injuries:-
1. A lacerated wound 4 cm X 1 cm X 1/2 cm on the top and left side of head.
X- ray was advised.
2. A lacerated abrasion 4 cm x 2 cm 6 cm above right eye-brew.
3. A lacerated wound 3 cm x 1 cm. On left forehead.
4. A lacerated wound 1 cm x 1/4 cm x 1/4 cm on the base of nosal bridge. X-ray was advised.
5. Complaint of pain in right thumb.
4. According to him injuries No.2, 3 and 5 were simple in nature. Injuries No.1 and 4 were kept under observation. All injuries were caused with blunt weapon and the time between the injuries and the medicolegal examination was two hours. On 15.12.1991 as per the X-ray report injury No.1 was declared to be grievous which was a fracture of left parietal bone. On the same day i.e. 15.12.1991 at 8.15 a.m. He conducted the postmortem examination of the dead- body of Qasim deceased.
According to him injury No. 1 was sufficient to cause the death in the ordinary course of nature.
5. The ocular account of the prosecution case was furnished by PWA Hafiz Elahi Bakhsh and Abdul Hameed P.W.8/ Muhammad Sadiq who was pred as an eye-witness in the FIR was not produced by the prosecution. He was, however, summoned by the trial court as CW.2. He supported the prosecution case to the extent of the involvement of Muhammad Siddiq appellant. He did not mention co-accused Muhammad Amin to be present during the occurrence. Bashir Ahmad DSP(Hqr) Rahim Yarkhan who partly investigated the case was also summoned as CW.1. He stated that during his investigation Muhammad Amin accused was found innocent. In his statement during the trial, PWA Hafiz Elahi Bakhsh confirmed the contents of FIR Exh.PE.. In cross-examination, he admitted that the deceased was real brother of his were and that Abdul Hameed (PW.8)is from his brother-hood. However, he added that the said Abdul Hameed is neither related to him nor to the deceased. He further admitted that Qasim deceased was a young and healthy man and Muhammad Siddiq appellant was a weak and old man and that if Muhammad Amin co-accused had not caught hold of the deceased it would have been difficult for Muhammad Siddiq appellant to injure Hafiz Qasim.
6. Abdul Hameed while appearing as PW.8 corroborated the statement of Elahi Bakhsh (PWA) and stated that on the fateful day and time he was standing along with the complainant and Muhammad Sadiq when they heard the alarm. He reached the spot along with the complainant.
They heard Hafiz Qasim deceased telling the appellant and the co-accused Muhammad Amin that they indulged in the sale of Heroin and due to their act, the residents of Mohallah were very much concerned. Within his view Muhammad Amin accused caught hold of Hafiz Qasim whereafter Muhammad Siddiq appellant inflicted Danda blow on the head o Hafiz Qasim deceased. As Hafiz Qasim fell down, Amin accused gave 3/4 danda blows on the face. According to the witness he along with*PW.4 and CW.2 rescued Hafiz Qasim deceased from further attack. In cross-examination, he admitted that the deceased was a healthy young man and if Amin co- accused had not overpowered the deceased, it would not have been possible for Siddiq appellant to inflict injury to the deceased.
7. Muhammad Anwar (PW.10) and Nazir Ahmad Sohail SI(PW.12) are witnesses of recovery of Danda (P-1). Bashir Ahmad who also signed the recovery memo was, however, not produced. PW.12 Nazir Ahmad Sohail SI verified his investigation and submitted that he correctly recorded the statements of the witnesses under section 161 of the Cr.P.C; recovered Danda (Exh. P-1) and got prepared site plans Exh.PC and Exh.PC/1.
8. Nazar Abbas Inspector (PW.13) appeared to state that he received Chemical Examiner's report Exh.PI.
9. (Sic)
10. In support of his appeal the learned counsel for the appellant has made the following submissions:-
(i) That both the eye-witnesses are chance witnesses. Both of them are not residents of Mohallah Safrani where the occurrence in question took place.
(ii) That both the eye-witnesses are shop-keepers and they could not be even there during the business hours at 4:30 p.m.
(i.e) That both the eye-witnesses are related to Hafiz Ghulam Qasim deceased. PW.4 Elahi Bakhsh is brother-in-law of the deceased whereas PW.8 Abdul Hameed is from their brother-hood.
(iv) That the conduct of the witnesses is un-natural and not plausible as none of them attempted to interfere in the fight; they were more in number and they could have easily over-powered the appellant.
(v) That both the witnesses have admitted that Muhammad Siddiq appellant is an old man and that if Muhammad Amin accused had not caught hold of the deceased, he could not have inflicted the blow.
(vi) That the FIR was lodged after preliminary investigation.
(vii) That no witnesses have been mentioned in the site plan and no bloodstained earth was taken into possession from the spot.
(viii) That CW.2 Muhammad Sadiq completely exonerates Muhammad Amin accused..
(ix) That the recovery of the blood-stained Danda is doubtful as no sane person would retain a blood-stained Danda for for days as evidence against him.
The learned counsel for the State has defended, the judgment by submitting that the ocular account have been furnished by natural witnesses; the same have been corroborated by the medical evidence and the factum of recovery of bloodstained Danda. He further submitted that it was a broad-day-light occurrence; that the FIR was lodged promptly and there was no question of mistaken identity or false implication as no enmity has been suggested or attributed to the complainant party.
14. I have heard the learned counsel for the appellant as also the learned State counsel and have gone through the evidence on record.
15. The ocular evidence has been furnished by Hafiz Elahi Bakhsh (PWA) and Abdul Hameed (PW.8).
Muhammad Sadiq who was cited as an eyewitness in the FIR was not produced by the prosecution but he appeared as CW.2. The evidence of all the eye-witnesses insofar as the role attributed to Muhammad Siddiq appellant is concerned, is. Consistent on all material particulars. The evidence is to the effect that it was the appellant who opened the attack and gave the fatal blow on the head of the deceased in consequence of which he fell down. The doctor declared this injury to be a fracture of the parietal bone which according to him was sufficient in the ordinary course of nature to cause the death. Elahi Bakhsh (PWA) complainant is admittedly related to the deceased Hafiz Qasim but his evidence be brushed aside as he had no motive to falsely implicate the appellant.
His testimony is corroborated by the statement of Abdul Hameed (PW.8) who has in fact close relation with the complainant and also Muhammad Sadiq (CW.2) who too is not a relative of the complainant. Again the two eye-witnesses who corroborated the complainant, arc neither partisan nor any enmity has been attributed to them by the defence. The FIR Exh.PE was lodged promptly and the accused were specifically named therein. In a case of broa4,-day-lig!It occurrence where FIR was lodged with promptitude and in absence of any enmity the possibility of-mistaken identity or substitution is a rare phenomena.
16. The contention of the learned counsel for the appellant that the eyewitnesses should be disbelieved merely because PW.4 complainant is a close relation of the deceased and the other two witnesses are from the brother-hood is not tenable in the facts and circumstances of this case.
The ocular account is corroborated by the evidence of the recovery of Danda (P.1) and the report of the Chemical Examiner (Exh.PI and that of the Syriologist (Exh.PJ). More relationship of a witness would not make it an interested witness more so when the witnesses had no reason to falsely implicate the appellant. I am fortified in my view by a judgment of this court reported in 1984 P.Cr.LJ.1797.
17. After perusing the evidence in the case, the question now left for determination is as to what offence the appellant has committed in the circumstances of this case. The appellant used an ordinary Danda and he gave a single blow which was not repeated. The incident erupted suddenly as Hafiz Qasim deceased had reprimanded him for his alleged involvement in the narcotics sale. In such a situation, the appellant, it seems, could not keep his cool and flare up. These circumstances would go a long away to show that the appellant had no intention to kill the deceased. However, he can sufficiently be saddled with the knowledge that his act was likely to cause death. His conviction accordingly from section 302-B PPC is altered to section 302-C of the PPC and his sentence is reduced to R1 for seven years. The sentence of fine is also reduced to Rs. 20,000/- in default whereof he shall further undergo R1 for a period of one year. He shall also be given the benefit of the provisions of section 382-B Cr.P.C.
18. For aforementioned reasons, the appeal is partly allowed in the above-mentioned terms.