' This judgment will dispose of Criminal Appeal No, 718 of 1970 filed by Ali Muhammad, 46 years of age, cultivator, resident of village Kotli Adu, Police Station Sadar, Gujranwala.
2. The appellant was tried along with Mst. Rasulan, who was acquitted, and Murad who died dui ing the pendency of the case. He was charged under sections 302/34, 325/34 and 323/34, P. P. C. By order, dated 31-5-76, the learned Sessions Judge, Gujranwala, convicted him under section 302/34 and sentenced him to imprisonment for life and fine of Rs, 3,000 or to suffer rigorous imprisonment for one year in default, and under section 323/34, P. P. C. And sentenced to the case rigorous imprisonment for three years and fine of Rs, 500 or to undergo rigorous imprisonment for three months in default ; for causing death of Akbar Ali and injuries to Mst. Fatima Bibi P. W.
3. The occurrence took place on 21-4-1973 between 7 and 8, near Abadi of Village Kotli Adu, in the tobacco field of the appellant. After the incident, the injured were removed to D. H. Q. Hospital, Gujranwala, six miles from the place of occurrence, by a truck, arriving there at 10 a.m. As soon as the injured (Akbar Ali deceased) and his wife Mst. Fatima P. W. 1 arrived at the Hospital, Dr. Nawaz Ahmad Bajwa, P. W. 10, telephoned Police Station Sadar, Gujranwala, which is two miles from the hospital, about the arrival of the injured persons. On the receipt of telephone call, Aziz Ahmad P. W.
11, reached the hospital and enquired whether Akbar Ali the injured was in a condition to make a statement (Exh. P.
0.) to which the doctor answered in the affirmative (Exh. P.
0. 2). Thereafter, the statement of Akbar Ali (Exh. P. G.) was recorded at 10-10 a.m. On 21-4-73 by Aziz Ahmad, A. S. I. P. W.
11.
3-A. In that statement, which is F. I. R. In this case, it was alleged by Akbar Ali (since deceased) that between 7/8 a.m. On that day, he along with wife Mst. Fatima P. W. 1 were coming towards their home in the village from their Dera. He was carrying a bucket of milk (Exh. P. 5) and his licensed gun (Exh. P. 7 and its recovery memo. Is Exh. P. L.). His wife was following him carrying cow dungcakes.
When they arrived near a school, the appellant who is the son of Mehr Din, Lambardar of the village, and who was riding a bicycle (Exh. P. 1, and its recovery memo. Exh. P. A.) immediately, on seeing him, dropped his bicycle, and grasped him, and also took over his gun, and took him to his tabacco field which is about 90 yards away (deceased is 45 years of age). Immediately, thereafter, Murad, the co-accused, who had died, came along, armed with surya (iron bar) and started inflicting blows on his legs. His both legs were broken. The appellant beat him with the gun on his arms and loin. When the gun broke down, Mst. Rasulan, the acquitted accused, gave sota (P. 2 and memo.
Exh. P. B.) to the appellant with which he broke the arms of the deceased. When his wife, Mst.
Fatima, tried to rescue Murad, co-accused, broke her leg with surya blow, and All Muhammad also inflicted stick blows on her. Muhammad Siddiq P. W. 2 watched the incident, but he was scared of by the assailants. It is alleged in the F. I. R. That the assailants wanted to murder Akbar (deceased) since 15 years ago, he had abducted the wife of the appellant. Murad, co-accused, was aggrieved since the deceased had purchased 26 acres of land, belonging to Mst. Sughran. The injured were brought to hospital in a truck by Muhammad Riaz and Abdul Sattar.
4. The statement (Exh. P. G.) bears the endorsement (Exh. P. G./1) of the doctor which is : "All the statement given before me". On the basis of the above statement, a formal F. I. R. Exh. P. G./2, was registered at Police Station, Gujranwala at 10-50 a.m. By Sharafat Hussain, P. W. 4, Head Moharrir on 21-4-73.
5. On the same day at 1-03 p.m. Akbar Ali died at the hospital. The information regarding his death was given by Dr. Nawaz Ahmad, P. W. 10, vide Exh. P. D., to the police. At 4 p.m. The same day, autopsy was performed by Dr. Nawaz Ahmad, who found the following injuries :- "(1) Multiple fractures of right fore-arm with swelling of the whole fore-arm.
(2) Multiple fractures of right patalla (sic) with swelling.
(3) Compound fracture of right leg close to right ankle-joint.
(4) Contusion with swelling of the left leg close to left ankle-joint. The underneath bone was fractured.
(5) Incised wound on the left leg 3" below left knee-joint 2" x 1/2' x 1/4'.
(6) Incised wound just below injury No, 5, 1'' x
(7) Contused wound in the middle of left fore-arm.
(8) Incised wound close to left elbow-joint.
(9) Complained of pain in the back of whole chest.
(10) Incised wound on the left index finger."
' The body was identified by Muhammad Riaz and Muhammad Hussain (who have not been produced). Earlier at 10 a.m., the doctor examined Akbar Ali in an injured condition and had found practically the same injuries on his person. The injuries were ante-mortem and in the opinion of the doctor were sufficient to cause the death. Dr. Zarina Iqbal, Woman Medical Officer had examined Mst. Fatima P. W.
1. Since she had left for Libya, her report was approved by the same doctor. The report of injuries suffered by Mst. Fatima P. W. 1 is Exh. P. A. A., according to which she suffered the injuries on the same day at 8-30 a.m. The witness, Mst. Fatima Bibi, P. W. 1 was examined and following injuries were found on her person :- "(1) Lacerated wound with deformity of limb li" x 1/3" x1/2" with bony crepts.
(2) Bruise and swelling of right wrist-joint 5' x 2+".
(3) Bruise and swelling of right elbow-joint 5' x 2".
(4) Lacerated wound on the outerside of right knee-joint 11" x 1/3'.
(5) Bruise both on the inner and outer side of knee-joint 2+' X 11- and 2'X 1r.
(6) Lacerated wound on the outer side of left foot 1i" x x 2".
(7) Lacerated wound at the back of left forearm l1 x x
(8) Bruise on the neck 1" x i".
' In Exh. P. B. B. The injuries (1 and 2) were declared grievous, rest were simple.
6. Next day on 22-6-73 at 6-30 p.m., Dr. Nawaz Ahmad P. W. 10 also examined Muhammad Siddiq P.
W. 2 and found a contusion mark in the left thigh on front in the middle. The injury was simple and caused by blunt weapon.
7. After recording the statement of the deceased and preparing the Inquest report, Aziz Ahmad, A.
S. I. P. W. 11 went to the place of the occurrence the same day and recovered blood-stained earth from two places and took it into possession vide memos. Exh. P. H. And Exh. P. K. The blood-stained earth was recovered from the filed of the appellant. These were sent to the Chemical Examiner who found them stained with blood. Report of the Chemical Examiner is Exh. K. L. And the report of Serologist is Exh. P. Z. It was found that the earth was stained with human blood. This circumstance establishes with certainty the place of occurrence.
8. The private recovery witnesses Muhammad Riaz and Hassan Muhammad did not appear and the only recovery witness is Aziz Ahmad, A. S. I. P. W.
11. A broken gun Exh. P. 7 belonging to Akbar deceased was, taken into possession from the field of the appellant, vide memo. Exh. P. L. The recovery has been vouchsafed by the above witness only since the private witnesses did not appear. Bucket was also recovered from the place of the occurrence and taken into possession (Exh. P. D.). The recovery witness is Farzand Ali P. W.
3. Similarly three cow dungcakes were recovered (Exhs. P. 6/1, 2, 3) and taken into possession vide memo. Exh. P. E. The appellant was arrested the same day and produced bicycle P. 1, which was taken into possession vide memo. Exh. P. A. He also produced sota which was taken into possession vide memo. Exh. P. B. Farzand Ali P. W. 3 is a. Recovery witnesses. He is brother-in-law and cousin of the deceased. Other recoveries belonging to Murad may not be material for determination of this appeal.
9. The case of the prosecution rests on the deposition of eleven witnesses, and documents exhibited on the record. Mst. Fatima P. W. 1 is the widow of Akbar Ali deceased. Her injuries have already been described above. Materially she made the same statement as narrated, ante, in the statement of Akbar deceased. However, she stated that the appellant inflicted dandy blow to her legs and arms apart from dragging and injuring the deceased as described above. Mst. Sughran is her daughter from the previous husband. This lady is 62 years of age, whereas the deceased at the time of his death was 45 years old. It is suggested by the learned counsel that it was a marriage of convenience since the deceased had an eye on her daughter,. Mst. Sughran, and on her property from the previous husband.
10. Muhammad Siddiq P. W. 2 is another eye-witness who was medically examined. His injuries have been described above. He gave a story which in many respects was at variance with the above story. Mst. Fatima P. W. Did not complain, nor she stated that she was also dragged to the tabacco field of the appellant, whereas this witness says that she was also dragged to the tabacco field. He stated that Murad accused inflicted injuries on Mst. Fatima with iron pipe on her leg. He further stated that danda was given by Mst. Rasoolan, the co-accused, to Murad ; with which he gave more blows to the deceased, whereas it is in the statement of Mst. Fatima that danda was given by Mst. Rasoolan to the appellant with which he inflicted injuries on Mst. Fatima as well as the deceased. When he tried to rescue, he was also injured by Murad accused. F. I. R. Makes no mention of any injury to him. This witness had gone to the hospital along with the injured, but was not examined on 21-4-73. The Investigating Officer also deposed that Muhammad Siddiq P. W.
Appeared at the spot on 21-4-73. He did not disclose about the injury and therefore no injury statement was prepared, nor he got him medically examined. His injury is of very minor nature.
Therefore, under these circumstances, injury cannot corroborate his presence at the spot. He has also given an account which is in variation from the account given by Mst. Fatima and in the dying declaration. He further admitted that the accused had a dispute with Hassan Muhammad, and his daughter is married to the nephew of Hassan Muhammad. Moreover, about 6/7 years ago, he was also beaten by the appellant, who had also taken away his sheep over a quarrel about money. He also deposed that there was a bitter enmity between the appellant and the deceased before the occurrence and many incidents had taken place. On the basis of the above circumstances, I hold that Muhammad Siddiq is an interested witness and therefore it would be necessary to seek corroboration of his testimony. The recovery of blood-stained earth, broken gun, and other items, from the land of the appellant establish only the place of occurrence and not directly his culpability ; nor can it be taken as corroborative circumstance. Recovery of bicycle and danda, which is not bloodstained, from the appellant has little significance.
11. Learned counsel has raised the following objections to the dying declaration, Exh. P. G. :-
(a) that the dying declaration has not been recorded before a Magistrate; and at the time of recording the dying declaration Hassan Muhammad and Riaz were present; it has not been proved on the record that Hassan Muhammad may not have tutored the deceased;
(b) that the doctor has only stated that the statement was given in his presence and he has not given any certificate regarding the fitness. Anyhow, the doctor is not a very reliable person since the Health Secretary had forbidden him to conduct post-mortems;
(c) that P. W. 7 Bushir Ahmad, F. C. Had stated in his earlier statement that at 9-30 a.m. He heard at police station that a person had died at D. H. Q. Hospital and thereafter he reached there, therefore recording of dying declaration at 10-10 a.m. Is doubtful;
(d) that Dr. Nawaz Ahmad, P. W. 10 deposed that the injured had arrived at the hospital at 10-a.m; and 10 to 15 minutes were taken in giving medical aid and another 10 to 15 minutes in preparing Medico-legal report. In this way, the dying declaration could not be recorded before 10-30 a.m. And giving of time 10-10 a.m. Is not reliable and from this learned counsel argues that it is possible that at 10-30 a.m. The condition of the deceased may have further deteriorated that is why there is no endorsement on the statement that he was in a fit condition to make the statement, and for this reason, the time had been given as 10-10 a,m. ;
(e) that there is no certificate by anybody that the injured remained in senses during the recording of the dying declaration;
(f) that there are over-writing on the dying declaration (I have examined the document, the over- writing are quite immaterial).
12. Learned counsel has placed reliance on Muhammad Abdullah v. Muhammad Safdar Khan etc.
(1) wherein it was held that if the Investigating Officer had not taken care to exclude the relations of deceased, the dying declaration becomes unreliable. Learned counsel argues (from the above) that if exclusion of the relative of the deceased is important, a fortiorari, persons, who are inimically disposed towards the appellant, should also be excluded. Learned counsel has referred to Muhammad Latif v. Muhammad Hussain etc. (2) for the rule that if the eye-witnesses are present at the time of recording the dying declaration, the possibility o the deceased being tutored cannot be rule out. In Muhammad Ashraf v. State (3), it is held that if the maker of the dying declaration is inimical towards the accused, in this circumstance, the dying declaration required corroboration by unimpeachable source. In Ali Ashgar v. State (4), it is held that if an innocent person has also been dragged in the dying declaration, it is the ground for not accepting the dying declaration.
Learned counsel argues that since Mst. Rasoolan has been acquitted, though she is given benefit of doubt, this circumstance would negative value of the present dying declaration.
13. I am not in agreement with the last contention of the learned counsel. Mst. Rasoolan was given only benefit of doubt. This circumstance does not positively prove that allegations against her were dishonest ab initio. However, the other circumstances pointed out by the learned counsel are weighty. The above circumstances are sufficient to hold that the dying declaration in this case does require independent corroboration.
14. En-passer, it may be mentioned, that the appellant when examined under section 342, Cr. P. C.
Denied all allegations against him. He also denied recovery of dang and the bicycle and said that the case against him is due to enmity. He produced, in his defence, copies of the previous statements of Muhammad Siddiq and Mst. Fatima P. Ws.
15. The most material piece of evidence is the statement of Mst. Fatima P. W.
1. Learned counsel contends that her statement is in conflict with the medical evidence; since the deceased had three incised injuries and no explanation has been given as to how the deceased came to suffer those injuries. Since her husband was inimically disposed toward the appellant, Mst.
Fatima being her widow, should also be deemed to be the enemy of the appellant. She was prosecuted by the Guardian Court along with the deceased. However, there is no mention that she has actually been convicted of any dishonesty. In fact, it is in the statement of Muhammad Siddiq P. W. 1 that Mst. Fatima P. W. And the deceased used to quarrel and it is quite reasonable to hold that quarrel was regarding Mst. Sughran. Since there is sufficient evidence on the record that the deceased has grabbed the property of Mst. Sughran and this may be the ground of dispute between the spouses. Moreover, she is older than her husband. It is further pointed out by the learned counsel that according to her statement before Police she has stated that the appellant had come from the eastern side whereas in her statement in Court, she deposed that the appellant came from the village side which is towards the south of the place of occurrence. The story that the appellant {{FOOT NOTE}}
(1) 1973 SCM R 26 (2) PLD 1970 SC 406
(3) PLD 1976 Lab. 520 (4) PLD 1968 Pesh. 47 {{FOOT NOTE}} grasped the deceased, and took away his gun, and carried him about 90 yards away is quite extraordinary particularly when the deceased was a younger man and was armed with a gun. The site-plan in this case was prepared by P. W. 8, Mukhtar Ahmad, Patwari (Exh. P. N.). Neither dragging nor trampling marks were observed by the Patwari. Learned counsel contends that her statement cannot be the basis of conviction without positive corroboration.
16. The above circumstances pointed out by the learned counsel are not such that will positively negative the value of her testimony. There is no suggestion regarding another incident in which she may have suffered injuries. She bears the stamp of injuries on her person and according to the medical report, the injuries can very well be caused in the way she has described them. She is quite unequivocal about the persons who inflicted injuries upon her. There is not even a suggestion that the injuries are self-suffered, or inflicted by any other person. Therefore, if her presence is to be corroborated, it is corroborated by the presence of the injuries on her person. In medical evidence, reference is made to three incised injuries suffered by the deceased. In my opinion, this so-called contradiction has little material significance, since the injuries are so superficial that they can neither materially affect, nor cast their shadow on all other circumstances of the case. Since gun and sarya were freely used, it is possible that in the heat some edges thereof struck the bony part of the body causing superficial injuries that appear to be incised injuries. Modi in his Medical Jurisprudence has cited instances of injuries on bony part of the body caused by blunt weapon which appear incised (at page 214, 12th Edition). Moreover, injuries 8 and 10 had neither length, nor depth; it should be quite extraordinary to describe them as incised injuries which normally are spindle shaped.
17. Under the circumstances, I accept the presence of Mst. Fatima P. W. 1 at the spot and also material part of her statement. I further hold that she corroborates the testimony of P. W. 2 Muhammad Siddiq and he dying declaration Exh. P. G.
18. The test of common intention is subjective, as against test of common object, which is objective.
For the application of section 34, P. P. C. There has to be higher degree of proof than is necessary for attracting the provisions of section 149, P. P. C. In the case of common intention as provided in section 34, P. P. C. The vicarious liability must be kept within narrow limits. There must be some positive evidence of consort of all the accused in this case.
18. Learned counsel for the State contends that the common intention can be gathered from the circumstances, in which the appellant had grasped the deceased and had taken him to his land where Murad was already present. There is no allegation in the statement of any of the witnesses or even in the dying declaration that Murad, co-accused, was already present at the field of Ali Muhammad where the deceased was taken. There is no other circumstance holding that the rendezvous had already been fixed. There does not appear to be any preparation made by the appellant on that account. He was unarmed and was riding a bicycle, when he encountered the deceased apparently per chance. The only circumstance is that the appellant did not loose the grip when the deceased was being beaten by Murad. Murad also inflicted injuries on his legs. There is no circumstance on record to show that the appellant directly or indirectly expressed any murderous intent. In my mind, there is also some doubt in the story pertaining to grasping the deceased in a manner it has been described and that the deceased was carried nearly 90 yards away, is also a bit extraordinary. A human being is not a statue and is bound to struggle when he is placed in that sort of position. Therefore, this story; that the appellant had carried the deceased in the grip, after snatching his gun, to the place of the occurrence is a pocryphal. It is not proved that the bicycle of the appellant was recovered from the place where it is alleged to have been dropped. Neither the Investigating Officer, nor the draftsman had positively proved that there was any evidence of struggle between these two places; viz., the place from where the deceased was grasped and the place where he was beaten. Therefore, the grip part of the story, it is difficult for me to accept and hold that it cannot be said that the accused in this case had any common intention; nor can it be said that the injuries were inflicted by the appellant with any murderous intent. Intention to murder cannot be spelt out from evidence on the record. Th deceased suffered ten injuries. Injuries 2, 3 and 4 were grievous. Thes injuries were caused by Murad. According to Mst.
Fatima P. W. The appellant had injured the deceased through butt of the gun on arms and back only. Injury on the arms and back are caused by the appellant. These injuries are Nos. 7, 8, 9 and 10.
Of these injuries, only serious injury is injury No, 1 which caused multiple fracture of the fore-arm.
The multiple fracture is a grievous injury.
19. Therefore, under the circumstances, I hold that the appellant caused grievous and simple injuries (with the butt of the gun and dang) to the deceased and Mst. Fatima P. W. 1, and had no common intention with Murad.
20. In my opinion, the offences, committed by the appellant fall within the ambit of section 326, P. P.
C. And not under section 302 or 325, P. P. C. Therefore, the conviction and the sentence of the appellant are converted to under section 326, P. P. C. He is convicted under section 326, P. P. C. On both counts, and sentenced to ten years' R. I.; and three years' R. I. Both sentences to run concurrently. His sentences of fines (and in default thereof) are also maintained, but are converted to under section 326, P. P. C. With the above modification, this appeal is dismissed.