' This appeal is directed against the judgment, dated 11-5-1993 of District and Sessions Judge, Vehari, whereby appellant Muhammad Din was convicted under section 302, P.P.C. And sentenced to life imprisonment with a fine of Rs,20,000 or in default of payment of fine to further undergo R.I.
For one year. The appellant was also convicted under section 452, P.P.C. And sentenced to four years' R.I. With a fine of Rs,1,000 or in default of payment of fine to further undergo R.I. For three months. It was further directed that the appellant shall pay Rs,20,000 as compensation to the legal heirs of the deceased or in default of its payment further undergo R.I. For six months. All the sentences awarded to the appellant were directed to run concurrently. Co-accused namely Muhammad Idrees was acquitted by the trial Court as prosecution has failed to establish any charge against him.
2. Brief facts of the case as narrated in the complaint (Exh.P.M.) by Muhammad Subhan (complainant) recorded by Mansab Khan, Inspector/S.H.O., Police Station Mitru on 8-10-1988 at 8- 45 p.m. While he was present at Pul Mitru in the area of Chak No,17/WB, was that sister of the complainant namely Kausar Parveen was married with Muhammad Idrees, co-accused (son of the appellant). Out of their wedlock one daughter was borne. He further stated that about three months back to the occurrence relations between the spouses (her sister and brother-in-law) became strained and the appellant (father of Muhammad Idrees) gave beating to his sister (Kausar Parveen), who came to their house being annoyed. About one and half month prior to the occurrence an altercation took place between his brother Waryam (deceased) and appellant which resulted into proceedings under section 107/151, Cr.P.C. His sister also filed a suit for dissolution of marriage. The complainant stated that on the day of occurrence (8-10-1988) at about 7-00 p.m. He alongwith his father Barkat and maternal-uncle Nagar Ali were smoking Huqqa, while sitting in courtyard of their house. His elder brother Waryam (deceased) was also sitting in the courtyard near to them. The lantern was on. Meanwhile Muhammad Din, appellant, armed with pistol .12 bore and his son Muhammad Idrees armed with Sota trespassed into their house and raised Lalkara to his brother Waryam that they would not let him alive as he had brought Kausar Parveen in his house. Simultaneously appellant fired with his pistol which hit Waryam on the right side of his back. Nagar Ali went ahead when Muhammad Idrees inflicted Sota blow on his head.
Waryam fell down and on their alarm both the, accused managed to run away. He further added that due to fear they could not go near to them. Father of the complainant and one Sad Muhammad took the injured Waryam to Civil Hospital, Vehari.
3. After recording the statement of the complainant, S.H.O., Police Station Mitru, sent the complainant (Exh.P.M.) to Police. Station through Muhammad Amin, Constable 841, for registration of case under section 307/ 452/34, P.P.C. And proceeded to Civil Hospital, ,Vehari. He moved an application (Exh.P.N.) to Medical Officer for recording the statement of injured persons, but doctor vide his report (Exh.P.N./1) opined that the injured persons were not fit to make their statements. He collected medical report of both the injured persons ffom the hospital and also took into possession the last worn clothes of Waryam produced by Medical Officer vide memo. (Exh.P.Q.). On 9-10-1988 he visited the spot and prepared site plan (Exh.P.R.) without scale.
' He took blood-stained earth from the spot and sealed it into parcel vide memo. (Exh.P.A.). He also took into possession lantern (P.1) produced before him by Muhammad Subhan, complainant, vide memo. (Exh.P.B.) and recorded the statements of the P.Ws. Under section 161, Cr.P.C. On 11-10-1988 he recorded the statement of Nagar Ali, injured P.W. On 12-10-1988 he arrested the appellant and on his pointation pistol .12 bore (P.2) alongwith four live cartridges (P.3/1-4) and one empty cartridge (P.4) were recovered from a Paity lying in his residential house, and took into possession vide memo. (Exh.P.T.) and prepared site plan (Exh.P.T./1). On 16-10-1988 he went to Nishtar Hospital, Multan, and moved an application (Exh.P.U.) for recording the statement of Waryam (deceased) which was allowed vide report of Medical Officer (Exh.P.U./1), thereafter he recorded the statement of Waryam (deceased) under section 161., Cr.P.C. On 17-10-1988 he submitted incomplete challan before the Court for trial under section 307/452/34, P.P.C.
4. Dr. Bashir Ahmad, Medical Officer (P.W.14) conducted the medical examination of both the injured persons at about 8-30 p.m. On 8-10-1988. He found following injuries on the person of Waryam:--
(1) Circulated lacerated wounds in a circle of on an area of 5 c.m. x 4 c.m. Going deep on the back of right side of chest, 5 c.m. Below the shoulder blade. Each wound was 1 c.m. x 1 c.m. Except one which was 2 c.m. x 2 c.m. Total number of wounds were six. Margins were inverted. There was blackening of the margins. The wounds were in sucking. Bloodstained shirt and Bunyan with corresponding holes.
(2) Hard masses palpable underneath skin, three in number, on the back of left chest, 5 c.m. Below the shoulder blade left.
(3) Note.--- There was no wound of exit. Injury No,1 was wound of entry. Upon receipt of X-Ray report on 9-10-1988, he added the following:-- "Two multiple metallic opasities were seen on both sides of chest. Mainly on the left side and central region of chest. Hyper inflated chest (pleural cavity) with lung collapsed. Shifting of mediastinum and heart towards the right side. Depressed left dome of diaphgram. Fracture of 8th rib posteriorly on the right side. Left pneumotorax fractured 8th rib right side.
' On the basis of the above report he declared both injuries Nos.1 and 2 as grievous. He also conducted medical examination of Nagar Ali injured P.W. (not produced) on the same day.
5. During trial under section 307/452/323/34, P.P.C. On 14-10-1989 i,e, after one year and 6 days of the occurrence, Waryam injured died. He was buried in the graveyard and about three months thereafter exhumation proceedings about the dead body of Waryam deceased took place and after post- mortem examination, the offence under section 307, P.P.C. Was altered with section 302, P.P.C.
6. Upon the death of Waryam, S.H.O., Police Station Mitru moved an application (Exh.P.L.) before the District Magistrate on 19-11-1989 for exhumation of the dead body of the deceased and entrusted the investigation of the case to Manzoor Ahmad, A.S.I. On 11-12-1989 District Magistrate vide order (Exh.P.L./1) allowed the application and directed that post-mortem on the dead body be conducted as per rules under the supervision of Illaqa Magistrate. On 13-1-1990 in the presence of Dr. Maqsood Ahmad, P.W.3, Dr. Abdul Qayyum Khan, P.W.4, Illaqa Magistrate, P.W.16, Manzoor Ahmad, A.S.I./ Investigating Officer, P.W.7, Noor Muhammad, P.W.1 and Barkat Ali, P.W.5, grave was exhumed and dead body of Waryam was brought out, which was identified by Noor Muhammad, P.W.1 and Abdul Ghafoor P.W. (not produced).
7. Dr. Maqsood Ahmad, P.W.3 alongwith Dr. Abdul Qayyum Khan, P.W.4, conducted the post-mortem on the dead body of deceased. They also took certain samples from the different parts of the dead body as well as earth from the grave surrounding the dead body and sealed into a parcel/envelope and handed over the police party for onward delivery to the Chemical Examiner, Lahore, to detect poison.
8. Chemical Examiner vide his report (Exh.P.D.) declared that poison was not detected from all of the articles sent to him except earth which he sent to Serologist, Government of the Punjab, for determination of origin of blood. However, report of Serologist is not available on the file.
9. Ocular account was furnished by Barkat Ali, P.W.5 only, who is father of the deceased.
Muhammad Subhan, complainant died on 22-9-1989 during the pendency of trial under section 307/452/323/34, P.P.C. Barkat Ali, P.W.5, in his statement almost stated the same which was mentioned in the complaint (Exh.P.M.) by the complainant.
10. At the conclusion of prosecution evidence, the appellant was examined under section 342, Cr.P.C. Wherein he denied the charges leveled against him. He also appeared under section 340(2), Cr.P.C. And stated that in fact Waryam deceased alighted from a bus and somebody fired at him as a result of which he died and pleaded his innocence. However, the appellant did not produce any defence witness in support of his version.
11. Learned counsel for the appellant has submitted that the eye-witness (P.W.5) is closely related to the deceased being his father and such a nearness of relationship is an important factor in assessing the worth of evidence on credibility and statement of witness. He added that there was a clear contradiction between the ocular account and that of the medical evidence and pointed out that manner in which shot was alleged to have been fired by the appellant, and injuries received by the deceased did not corroborate the statement of P.W.5 as according to him the appellant had fired on the deceased from a distance of one Karam whereas as per Medical Officer (P.W.3) who conducted the medical examination stated that there was blackening on the margin of the injuries and opined that fire shot made from a distance of one foot would cause blackening around the injuries. He has further submitted that Sadiq Ali, P.W.2 (witness of recovery) is also closely related to the deceased being his real uncle and is resident of Chak No,90/WB and not of Chak No,96/WB (place of recovery and occurrence), therefore, the credibility of the recovery witness is not beyond the shadow of doubt, rather conviction is not to be awarded if the recovery witness is closely related to the deceased. Moreover, Investigating Officer has failed to cite any independent witness which is clear violation of mandatory provision of section 103, Cr.P.C. Urged that the pistol and empty recovered were not sent to Ballistic Expert, therefore, question of matching does not arise, as such, recovery of empty is of no evidentiary value. Learned counsel for the appellant vocal on the point that a person can be convicted under section 302, P.P.C. Only if it is a case of culpable homicide, whereas in this case the appellant died after one year and six days. Death of the appellant was also not done due to direct injury. Hence if all the prosecution evider' is considered truthful even then the appellant cannot be convicted under section 302, P.P.C. Rather the case of the appellant will fall only within the provision of section 326, P.P.C.
12. Learned State Counsel has vehemently opposed the contentions raised by the learned counsel for the appellant.
13. I have heard the arguments and gone through the record. The first contention of learned counsel for the appellant is that Barkat Ali, P.W.5, is closely related to the deceased Waryam cannot safely be relied upon. However, careful scrutinizing is necessary as per principles laid down in Zar Bahadar v. The State 1978 SCM R 136. After careful consideration. I observed that Barkat Ali, .P.W.5, is a natural witness. The second contention of the learned counsel for the appellant has weight in the eyes of law, because fire-arm shot from a distance of one Karam should not have blackening around the injury as per the opinion of Dr. Maqsood Ahmad, Medical Officer, P.W.3. According to him, if a fire is shot from a shot-gun or pistol within the distance of one foot, there will be blackening around the wound.
14. The third contention of the learned counsel for the appellant is that the recovery witness Sadiq Ali, P.W.2, is a resident of Chak No,90/WB and not of Chak No,96/WB (place of occurrence) also have some evidentiary value because recovery witness should not only be respectable but should also be from the locality. In the case in hand, witness of recovery is called from a place other than the locality of the recovery which is a populated area, as such serious doubts are caused on such recovery. There is gross negligence on the part of Investigating Officer because he has violated the mandatory provisions of section 103, Cr.P.C. By not associating any independent witness from the vicinity. Reliance is placed on 1989 PCr.LJ Note 116 (sic), 1988 MLD 1993.
15. Before discussing the last and important contention of learned counsel for the appellant that the case of the appellant does not fall within the provisions of section 302, P.P.C. And petitioner can only be convicted under section 326, P.P.C., I have to evaluate and analyse facts of the case, ocular account, medical evidence and also the cause of death. The occurrence took place on 8-10-1988 at 7-00 p.m. Immediately thereafter, Waryam (deceased) alongwith injured P.W. Nagar Ali (not produced), were taken to the hospital. Waryam (deceased) was medically examined by P.W.14 at 8-30 p.m. Waryam was reported to be referred to Nishtar Hospital, Multan, where he remained admitted for one and half month. Waryam (deceased) was discharged from Nishtar Hospital, after treatment of the injuries on 8-12-1988. Waryam died on 14-10-1989 i,e, after one year and 6 days after the occurrence. The Investigating Officer moved an application to the District Magistrate for exhumation of the dead body during the pendency of trial under section 307/452/323/34, P.P.C. The request of the Investigating Officer was opposed by the father of the appellant Barkat Ali P.W.5, by making an application (Exh.P.T.), dated 11-11-1989 for not conducting the exhumation proceeding on the dead body of Waryam (deceased). Despite the opposition of father of the deceased, exhumation was ordered and conducted. The doctor who conducted the post-mortem examination did not give the cause of death neither in the post-mortem repOrt nor describe the same while appearing as P.W.3 on 4-6-1991. However, upon the recalling on 16-6-1991 for the first time gave the cause of death which was that the injury to the 8th vertebra damaged his spinal cord, and caused paralegia and also that death occurred due to the complication of paralegia.
However, Dr. Bashir Ahmad, P.W.1 initially examined the deceased did not describe the injuries as dangerous to life, meaning thereby in view of the contradiction between the two medical opinions that death cannot flow from the said injuries. Moreover, there is nothing in evidence/statement of Barkat Ali P.W.5, as to whether the deceased had ever been suffered from the complication of his injury to 8th vertebra during the period from 9-12-1988 (date of discharge from Nishtar Hospital, Multan) to 14-10-1989 (date of death). Therefore, in these circumstances, it could safely be observed that the injuries allegedly received by the deceased were not direct A cause of death, as such, section 299, P.P.C. Could not be applicable. However, question remains there that what offence, the appellant had committed or as to whether he had been rightly convicted under section 302, P.P.C. It is hardly need to be pointed out that the person can be convicted under section 302, 8 P.P.C. If there is a case of culpable homicide. What causes the culpable homicide has been described in section 299, P.P.C. Language of section 299, P.P.C. Indicates that the offence of culpable homicide can be committed only if death is caused by doing of an act with the requisite intention or knowledge. If death is not caused by such an act, but something else intervenes between the C doing of an act and death of person concerned, the offender will not be the guilty of offence of culpable homicide. He might be guilty of some other offence. Such case for its decision depends upon its own facts. Section 300 of P.P.C. Makes it more clear that when the act by which the death is caused is done with the intention of causing death, the culpable homicide is murder.
The circumstances in which the appellant allegedly caused solitary fire on the back below the shoulder of the deceased and obtained from repeating his attack made the prosecution story doubtful with regard to the intention of causing such a bodily injuries as was likely to cause death of knowledge that by causing the injury he was likely to cause the death. The doctor who initially examined the deceased did not describe the injuries as sufficient, in ordinary course of nature to cause death, which necessarily means that the appellant had no intention to cause bodily injury, which was likely to cause death or had a knowledge. If indeed the appellant contended to cause bodily injury as was likely to cause death of the deceased, there was none to stop him from repeating his first fire shot on the back of shoulder of Waryam with other on the more vital part of Waryam (deceased). Therefore, the case of the appellant would fall under section 326, P.P.C. For voluntarily causing grievous hurt with deadly weapon and not under section 302, P.P.C.
16. As a result of above discussion, the conviction of appellant Muhammad Din, under section 302, P.P.C. Is set aside and is altered to section 326, P.P.C. The appellant was arrested on 12-10-1988 and bail was granted during his trial under section 307/452/323/34, P.P.C. On 6-,11-1989 and after the alteration of section 307, P.P.C. To section 302, P.P.C., he was again arrested on 9-2-1990, since then he remained in jail. In this way, the appellant, remained in jail for a period of 6 years, 1 month and 10 days, therefore, I am of the view that interest of justice will sufficiently be served if sentence is reduced to already undergone by the appellant under section 326. Sentence of compensation awarded to the appellant by the trial Court is also set aside. However, conviction and sentence awarded to the appellant by the trial Court under section 452, P.P.C. Is upheld. The appeal is partly accepted in the above terms.