MUHAMMAD NAWAZ Versus THE STATE Nasim Sabir , Altaf Muhammad Khan

This is an appeal by Muhammad Nawaz 20, to challenge his conviction under section 304‑(1), P.P.C. by learned Additional Sessions Judge, Sheikhupura, who vide judgment, dated 13‑12‑1986 sentenced him to suffer ten years' R.I. plus fine of Rs.10,000 or in default two years' R.I. It was ordered that the fine if recovered, be paid as compensation to heirs of the deceased. He was also allowed benefit of section 382‑B, Cr.P.C.

Abbas 60, Shahadat 23, Riaz 20 and Nasir 38 co‑accused of the appellant, were acquitted by the same judgment.

2. The occurrence in this case took place on 26‑11‑1982 at 4‑45 p.m. on a path in village Kalsian about four miles from Police Station Khankah Dogran, District Sheikhupura. The B.I.R. Exh.P.F. was recorded at the police station on the same day at 8‑30 p.m. by A.S.I. Zamir‑ul‑Haq P.W.9 at the instance of Sher Muhammad P.W.6.

It was stated by Sher Muhammad complainant in his F.I.R. that on 26‑11‑1982 at about 4‑45 p.m. he and his son Muhammad Ashraf deceased were proceeding to their house. When they reached near shop of Muhammad Rafique, all of a sudden Abbas armed with gun, Nasir armed with pistol, Muhammad Nawaz, Shahadat and Riaz armed with sticks came out of the nearby street. Abbas threw a challenge. Muhammad Nawaz gave a stick blow on the head of Muhammad Ashraf who fell down. The occurrence was witnessed by Muhammad Akram and Muhammad Nawaz P.Ws. The accused left the spot alongwith their respective weapons.

The motive was stated to be that one Noor Deendar tenant of Abbas accused was occupying an Ahata belonging to the complainant party. Muhammad Ashraf deceased wanted him to vacate the Ahata. This was objected to by Abbas accused. About 11 months earlier there was a quarrel between Muhammad Ashraf and Nazir etc. accused but the matter was patched up on the intervention of the respectables.

Muhammad Ashraf was taken to Civil Hospital, Khankah Dogran for treatment and examination and thereafter Sher Muhammad P.W. went to police station and reported the matter.

3. Dr. Abdul Qayyum P.W.4 on 26‑11‑1982 at about 8 p.m. medically examined Muhammad Ashraf aged about 20 years, when still alive and found 'a contused wound 1 " x " x scalp deep with reddish margins on the middle of the right parietal bone 2" from the mid line which was oblique in direction. His pupils were semidilated and had a poor reaction to light. The injury was kept under observation. It was of about 12 hours duration and caused by a blunt weapon. Muhammad Ashraf was referred to General Hospital, Lahore for treatment where he died at 6‑20 p.m. on 27‑11‑1982.

Dr. Muhammad Anees P.W.8 on 28‑11‑1982 at 1 p.m. conducted post‑mortem examination on the dead body of Muhammad Ashraf. On external examination he found 'a lacerated wound 5.5 c.m. x 1.5 c.m. on the mid right parietal region. The wound was obliquely placed'. On dissection, after removing the scalp the medical officer found a contusion in an area of 15 c.m. x 9 c.m. on its under surface. The surface of cramium was covered with clotted blood. There was fracture of right parietal bone. The skul cap meninges were found covered with clotted blood. There was haematoma of about 600 c.c. blood in right sub‑dural space. This injury had been caused by blunt weapon and was sufficient in ordinary course of nature to cause death. The time between injury and death was 1 to 2 days and probable time between death and post‑mortem was within 12 to 24

4. The police after registration of the case undertook investigation. The accused were arrested on 3‑12‑1982.

Muhammad Nawaz accused while in police custody led to the recovery of Sota P.3 from his house which was taken in 'possession by A . S .I . Zamir‑ul‑Haq P . W. 9 vide memo. Exh . P . C . in presence of Muhammad Aslam P.W.3 and Boota, not examined.

On the same day Abbas, acquitted accused got recovered gun P.4 vide memo. Exh.P.D. in presence of the same witnesses.

The accused were challaned after completion of investigation.

5. In support of its case, prosecution examined nine witnesses in all. P.W.6 Sher Muhammad and P.W.7 Muhammad Nawaz are eye witnesses of the occurrence. Muhammad Akram, another eye‑witness named in the F.I.R. was given up. The medical evidence was furnished by P.W.4 Dr. Abdul Qayyum and P.W.8 Dr. Muhammad Anis Sheikh as given in detail above. The incriminating recoveries from the two accused were witnessed by P.W.3 Muhammad Aslam: The case was investigated by A.S.I. Zamir‑ul‑Haq P.W.9. The evidence of rest of the witnesses was of formal nature.

The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. They did not lead any evidence in defence.

6. The learned trial Judge did not place reliance on the evidence of recoveries of crime weapons and the motive. He relied upon the evidence of two eye‑witnesses. He came to the conclusion that the occurrence took place all of a sudden He thereafter, convicted Muhammad Nawaz appellant only as stated above.

7. I have heard learned counsel appearing for the parties and have carefully gone through the evidence on record.

It is contended on behalf of the appellant that two eye‑witnesses were not reliable because they were related; they were chance witnesses and not relied upon as against four acquitted accused The learned counsel argued that their evidence being not divisible, the appellant be also acquitted Learned counsel for State, controverted the above contentions.

8. Abbas, Nasir, Shahadat and Nawaz accused were real brothers inter se. They were sons of Sardar, a paternal‑cousin (Phophizad) of Sher Muhammad P.W.6. Riaz accused is son of Abbas accused. It is, therefore, apparent that not only the accused were interrelated but they were closely related to Sher Muhammad complainant. The parties did not have any previous enmity between them, The dispute for the first time arose about 1 months before the present occurrence with Muhammad Ashraf deceased when he asked Noor Deendar, a tenant of Abbas accused to vacate their house. There is absolutely no evidence or circumstance to indicate as to why Muhammad Nawaz appellant was falsely involved in this case by Sher Muhammad P.W.6. It is correct that Sher Muhammad is father of the deceased and Muhammad Nawaz P.W.7 is maternal‑cousin (Marhoonzad) of Muhammad Ashraf deceased but mere relationship is no ground to exclude them evidence from consideration against the appellant. The two eye witnesses gave reasonable explanation of their presence at the place of occurrence. Their residence was not at much distance. They made consistent statements during the trial implicating Muhammad Nawaz appellant as having caused the fatal blow to Muhammad Ashraf deceased. They cannot be considered as chance witnesses. The learned trial Judge acquitted four accused for very cogent reasons. Muhammad Ashraf deceased received only one injury on his person. This was ascribed to Muhammad Nawaz appellant. The four acquitted accused did not cause any injury to the deceased or to anyone of the witnesses. They were therefore, rightly given benefit of doubt as abundant caution. It can, therefore, not be said that the evidence of these two witnesses was not divisible. It appears that the occurrence took place all of a sudden without any premeditation. Muhammad Nawaz gave only one stick blow on the head of Muhammad Ashraf deceased, which resulted in his death. Muhammad Nawaz was, therefore, rightly held guilty under section 304(1), P.P.C.

9. In view of the above discussion, I find no merit in this appeal) which is accordingly dismissed. The conviction and sentence of Muhammad Nawaz appellant is maintained.

M.Y.H./M‑793/L Appeal dismissed.