ALI KHAN Versus RAHIM BAKHSH
This is an appeal, through jail, by Nazir 32 to challenge his conviction under section 304(1), P.P.C. by learned Sessions Judge, Sargodha, who vide judgment, dated 5‑1-1988 sentenced him to 10 years' R.I. and fine of Rs.10,000 or in default 2 years' R.I. It was ordered that the fine, if recovered, will be paid as compensation to heirs of the deceased. He was not allowed benefit of section 382‑B, Cr.P.C.
Bashir 34, was sentenced to 2 years' R.I. and fine of Rs.1,000 or in default 4 months' R.I. under section 324, P.P.C. Bati 24, Shamsher 40 and Wali Muhammad 30 were sentenced to 9 months R.I. and fine of Rs.500 or in default two months' R.I. each under section 323, P.P.C. They were not allowed benefit of section 382‑B, Cr.P.C.
Bashir, Rati, Shamsher and Wali Muhammad co‑accused of present appellant, as per office report, have not filed any appeal in this Court to challenge their conviction and sentences.
2. The occurrence in this case took place at evening time on 21‑7‑1986 on a Pucca road near Mohallah Khawajabad, about 2 furlongs from Police Station Kot Momen, District Sargodha. The formal F.I.R. Exh.PA./1 was recorded at 6 a.m. on 22‑7‑1986 at the police station by M.H.C. Muhammad Arshad P.W.1 on the basis of statement Exh.P.A. recorded by the roadside on the same morning at about 5 a.m. by S.I. Sajjad Hussain P.W.9 at the instance of Mahla P.W.7.
It was stated by Mahla complainant in his statement that his sons Riaz and Mumtaz after day's job went to the Khokha of Shami Khawaja to purchase cigarettes. He himself was present in his house. He heard alarm and came out. He saw Nazir and Bashir accused armed with hatchet while Bati and Shamsher accused armed with sticks present at the Khokha. They challenged his sons. Nazir accused gave hatchet blow which fell on left arm near shoulder of Muhammad Riaz deceased causing deep cut. Bashir accused gave hatchet blow on the left wrist of Riaz. Thereafter he gave stick blow on the head of Riaz who fell down. Bati accused gave stick blow on the head of Mumtaz P.W. and Wali Muhammad accused gave 2 stick blows on his head. The alarm attracted Nazar, Tariq and Hayat P.W., who also witnessed the occurrence.
It was stated by Mahla complainant that Bhag Ali had demanded the hand of his daughter Mst. Bashiran for his son Nazir. He promised to give the hand of his daughter but backed out later on account of family differences which annoyed the accused.
Muhammad Riaz, Mumtaz were taken to hospital by Mahla complainant and others. They were medically examined. Muhammad Riaz was in precarious condition. He was referred to Sargodha hospital where he died as a result of injuries before any medical aid could be rendered.
Mahla complainant then proceeded to report the matter at police station. He met S.I. Sajjad Hussain in the way who recorded his statement Exh. P.A.
3. On 21‑7‑1986 at 7‑20 p.m. P.W.3 Dr. Malik Muhammad Khan medically examined Muhammad Riaz deceased aged about 25 years, when still alive, and found three injuries on his person. Injury No.1 was a lacerated wound on left parietal region 9 c.m. from left ear 3‑1/2 c.m. x 1 c.m. bone deep. Injury No.2 was an incised wound on left arm lateral side, 5 c.m. from top of shoulder and going to arm 12 c.m. x 5‑1/2 c.m. x bone deep. There was fracture of left humerous with severe bleeding. Injury No.3 was an incised wound on left forearm palmer side 5 c.m. above wrist 5 c.m. x 1 c.m. x muscle deep. Muhammad Riaz was unconscious and in shock and pulseless. Injuries 1 and 3 were simple. Injury No.2 was grievous. All injuries were fresh. Injury No.1 was by blunt weapon and the remaining two injuries were by sharp‑edged weapon. Muhammad Riaz vas referred to Sargodha Hospital on the same evening at 8 p.m.
The same medical officer at about the same time examined Mumtaz P.W. and found a lacerated wound 4‑1/2 c.m. x 1‑1/2 c.m. x bone deep on top and back of scalp. The injury had been caused by blunt weapon. It was, fresh and kept under observation. It was later declared simple in nature.
The same medical officer at about the same time examined Mahla P.W. and found a lacerated wounds of various dimensions on top of scabs and right eyebrow. The injuries were fresh, by blunt weapon and simple in nature.
4. Muhammad Riaz died in Sargodha Hospital at 5 a.m. on 22‑7‑1986. P.W.5 Dr. Khalid Qureshi on the same day at 1 p.m. conducted post‑mortem examination on the dead body of Muhammad Riaz and noted the same injuries as given above on external examination. On dissection the medical officer found that muscles and bone were cut under injury No.2. The death was due to shock and haemorrhage caused by injury No.2 which was sufficient to cause death in ordinary course of nature. Injury No.1 was by blunt weapon and the remaining two injuries were by sharp‑edged weapon. Injuries 1 and 3 were simple in nature. In No.2 was grievous. The time between injuries and death was 11 hours and Post-mortem was conducted in about 6 to 12 hours of death.
5. P.W.3 Dr. Malik Muhammad Khan on 21‑7‑1986 at 8‑35 p.m. examined Muhammad Nazis accused and noted 4 fresh blunt weapon simple injuries on top 4 scalp, bard of left shoulder, left occipital region and left Ping and little fingers.
At about the same time the same medical officer examined Muhammad Bashir accused wino had a lacerated wound on left parietal region 7 c.m. x 2 c.m. x bone deep. At that time Muhammad Bashir aroused was unconscious. The injury had been caused by blunt weapon and was fresh. It was kept under observation and later declared simple.
6. S.I. Sajjad Hussain P.W.9 during inspection of the place of occurrence collected blood‑stained earth vide memo. Exh.P.M.
All the five accused were arrested on 1‑8‑1986.
On 1‑8‑1986 Nazir accused led to the recovery of blood‑stained hatchet P.3 vide memo. Exh.P.N., Bashir accused led to the recovery of blood‑stained hatchet P.4 vide memo Exh.P.O. Shamsher accused led to the recovery of Sota P.5 vide memo. Exh.P.P., Wali Muhammad accused led to the recovery of Sota P.6 vide memo. Exh.P.Q and Bati accused led to the recovery of Sota P.7 vide memo. Exh.P.R. in presence of S.I. Sajjad Hussain P.W.9 and Tariq and Nazar Muhammad P.Ws., both not examined.
The hatchet P.3 was found stained with human blood vide report of Chemical Examiner Exh.P.T. and that of Serologist Exh.P.V. The hatchet P.4 was found stained with human blood vide report of Chemical Examiner Exh.P.4 and that of Serologist Exh.P.Y.
The accused were challaned after completion of investigation.
7. In support of its case prosecution examined 9 witnesses m all. P.W.7 Mahla and P.W.8 Mumtaz are eye‑witnesses of the occurrence. The medical evidence was furnished by P.W.3 Dr. Malik Muhammad Khan and P.W.5 Dr. Khalid Qureshi as given in detail above. The case was investigated by S.I. Sajjad Hussain P.W.9. The evidence of rest of the witnesses was of format nature.
Nazir and Bashir accused admitted their presence at the spot at the time of occurrence. They stated that they were attacked by Riaz, Mumtaz and Mahla and that they acted in self‑defence. They did not produce any evidence in defence. The other accused denied their presence at the spot at the time of occurrence. The learned trial Judge placed reliance on the evidence of motive, recoveries of hatchets and eye‑witnesses. He came to the conclusion that occurrence took place all of a sudden and each accused was responsible for his individual act. He therefore, convicted and sentenced the accused as stated above.
8. I have carefully gone through the evidence on record with the assistance of learned counsel appearing on behalf of the State,
The parties did not have any previous enmity before this occurrence. The motive was stated to be that Bhag Ali had demanded the hand of Mst. Bashiran, a daughter of Mahla complainant for his son Nazir accused. He initially agreed to the proposal but then backed out on account of family differences. It was stated A by Mahla P.W.7 in cross‑examination that I had made the said promise about six years before this occurrence and refused the said Rishta two years thereafter i.e. 4 years before this occurrence. Mst. Bashiran was married with one Gulzar 4 years before the occurrence and not 8 years before this occurrence as suggested'. It was stated by Mumtaz P.W.8 that `it is correct that soon after the refusal on the part of my father, Nazir accused was married to another woman and he has five children'. These statements would show firstly, that Mst. Bashiran daughter of Mahla complainant was married about 4 years before the present occurrence; that Nazir accused also was married many years before this occurrence and had five children out of the wedlock and finally that there was no dispute between the parties during the period intervening the refusal and present occurrence. I am, therefore, not inclined to accept the prosecution case that this occurrence took place because of refusal of the hand of Mst. Bashiran by Mahla P.W. for Nazir Ahmad accused. The prosecution has failed to prove motive against the accused.
The recoveries of hatchets are immaterial in the instant case because Nazir and Bashir accused have admitted the occurrence though they have pleaded to have acted in exercise of their right of self‑defence.
The prosecution case is that Mumtaz P.W. and Riaz deceased had gone to the Khokha of Shami Khawaja to purchase cigarettes. They were sitting at the said Khokha when the accused launched an attack on them. Shami Khawala P.W, or anyone from the nearby houses was not cited or examined as witness of the occurrence. It was admitted by the eye‑witnesses that Bashir and Nazir accused received injuries during the occurrence. These injuries were not mentioned in the F.I.R. The eye‑witnesses were unable to explain as to who caused these injuries during occurrence. It was stated by them that they were empty‑handed and cannot say as to how the injuries were received by the accused. This means that they have suppressed material facts in their evidence during trial. It was admitted by Mahla P.W.7 that only two days before the occurrence he and his family members had joined the marriage ceremony of a sister of Nazir accused. He however denied any altercation having taken place during that ceremony. It appears to me that the parties picked up quarrel near the Khokha of Shami Khawaja all of a sudden without pre‑meditation and caused injuries to each other. Nazir accused gave only one injury to Riaz which fell on his left arm. He did not cause any injury either to the deceased or any of the prosecution witnesses. It cannot, therefore, be said that he intended to cause the death of Raiz deceased. If that had been the case: he must have repeated blows on his person. Riaz deceased received 3 injures on his person, two injuries were simple in nature and only one injury on left arm near the shoulder proved fatal. This was not vital part of the body. It appears that Nazir accused only wanted to cause him some injury without having any intention to murder. At its best it can be said that he knew that the said injury could result in the death of Riaz. 1, therefore, alter his conviction f0om 304(1), P.P.C. to 304(11), P.P.C.
9. As a result of the above discussion Nazir appellant is sentenced to 5 years' R.I. and fine of Rs.5,000 or in default six months R.I. under section 304(II), P.P.C. The fine, if recovered, will be paid as compensation to heirs of the deceased. Nazir appellant will be allowed benefit of section 382‑B, Cr.P.C.
This appeal is dismissed subject to above modification. Nazir appellant will be informed of the result of this appeal in jail.
M.Y.H./N‑198/L Conviction/sentence altered.