This criminal appeal has been directed by Muhammad Ali and Muhammad Anwar appellants against the judgment dated 31.5.1993 passed by learned, Sessions Judge, Muzaffargarh through which he convicted the appellants guilty u/S. 302/34 -PPC for committing murder of Muhammad Shafi and sentenced them to imprisonment for life with a fine of Rs, 10,000/- each and in case of default thereof to further undergo R.I. for on year each. Both the appellants were also convicted u/S. 307/34 PPC and sentenced to 10 years R.I. with fine of Rs, 3,000/- each and in case the amount of fine is recovered, that has been ordered to be paid to injured Muhammad Siddiq 'as compensation and in case of non-realization of the said amount, both the appellants have been ordered to further undergo R.I. for 9 months. Besides the above-said sentences, both the appellants were also directed to pay compensation of Rs, 30,000/- in equal share to the heirs of the deceased and in case of default of payment of compensation both the appellants were to further undergo R.I. for 11/2 years. However, the sentences u/S. 302/307 PPC were to run concurrently whereas the sentences in lieu of fine and compensation were directed to run consecutively.
2. FIR No, 192/1979 was recorded on the statement (Ex. P.A) of Muhammad Siddiq (PW-1) brother of.
Muhammad Shafi deceased by Ghulam Shabbir Head Constable (PW-4) on 21.6.1979 at Police Station Layyah District Muzaffargarh u/S. 302/307/452/34 PPC.
3. It has been alleged in the statement recorded u/S. 154 Cr.P.C. by first informant Muhammad Siddiq (PW-1), that he.used to reside in Fateh pur road, Chowk Azam. His brother-in-law Muhammad Anwar (Appellant No, 2) was living along-with his mother Mst. Hameeda in the adjoining house. Informant's parents and two brothers lived in Chak No, 336/TDA where Muhammad Ali (Appellant No, 1), another brother-in-law of the informant, resided. Muhammad Siddiq's sister was married to Muhammad Ali. A day before lodging the report, informant's father and said Muhammad Ali quarrelled over a dispute between the children in Chak No, 336/TDA.
Muhammad Siddiq's father also slapped. Muhammad Ali. Latter's mother came to the house of the complainant at Magrib prayer time and abused the complainant who also re-acted in the same way. Mst. Hameeda, complainant's mother-in-law, went away and informed her sons Muhammad Ali and Muhammad Anwar. At about Isha prayer time, Muhammad Ali, armed with stick and Muhammad Anwar, equipped with Dagger came at the house of the complainant whose parents and brother Muhammad Shafi also arrived on listening about the dispute. Muhammad Anwar and Muhammad.. Ali appellants challenged Muhammad Siddiq saying that he would not be spared and they would avenge the insult of their mother. Thereupon, Muhammad Anwar inflicted dagger blow on the left side of the abdomen of the complainant whereas Muhammad Ali gave stick blow on his head. Muhammad Shafi, complainant's brother when intervened to rescue the complainant, he was physically over-powered by Muhammad Ali and Muhammad Anwar caused several successive blows with dagger on his back who fell on the ground. Victim's. cries attracted Naseer .Ahmad and Muhammad Boota who came on site and witnessed the occurrence along-with parents of the con- plainant. The assailant ran away from the crime spot with their respective weapons leaving the victims injured on the spot. The injured were removed to hospital but Muhammad Shafi succumbed to the injuries. There was accusation that both the appellants committed murder of Muhammad Shafi and attempted to commit murder of the complainant in prosecution of their common intention in the wake of above-said motive.
4. After registration of the case, Aziz-ur-Rehman, ASI (PW-12) proceeded to the place of occurrence.
He prepared the inquest report, (Ex. PL) pertaining to dead body of Muhammad Shafi and also drew statement of injuries (Ex. PM) on his person. He also despatched the dead body of Muhammad Shafi deceased to mortuary for post-mortem examination through Zahoor Ahmad, F.C. Thereafter, on the following ,clay he inspected the place of occurrence and collected the blood-stained earth from there which was taken into, possession by him vide recovery memo (EX. PE). Both the appellants were produced by Mahr Nusrat before him. and he arrested them. During investigation Muhammad Ali produced stick, (P.3) which was taken into possession by him vide memo i.Ex. PF).
Similarly, Muhammad Anwar appellant led to the recovery of blood-stained dagger (P:4) which was also taken into possession by lint vide memo. (Ex, PG).
5. After conclusion of the investigation report u/S. 173 Cr.P.C. was submitted in the Court and the learned trial Court framed the charge against the appellants which was denied by them and they claimed to be Uesd.
6. The prosecution in order to prove the guilt of the appellants produced as many as 12 witnesses.
Medical evidence consisted of the statements of. Dr. Abdul Hameed Chughtai (PW-2) and Dr. Manzoor Ahmad (PW-3). Dr. Abdul Hameed Chughati, Medical Officer, R.H.C. Chowk Azam, Tehsil Layyah (PW-2) had examined Muhammad Siddiq son of Boota on 21.6.1979 and found four injuries on his person. Injuries Nos, 1 and 3 were kept under observation. Injury No, 4 was declared simple and Injury No, 2 was declared dangerous to life. According to him Injuries Nos, 1 and 4 were caused with blunt weapon while Injuries Nos, 2 and 3 were caused with sharp edged weapon and the probable duration of injuries was 2 to 3 hours. Injury No, 2 could be caused with sharp edged weapon. PW-3 Dr. Manzoor. Ahmad, Medical Officer, T.H.Q. Hospital Layyah had conducted the postmortem examination on the dead body of Muhammad Shafi deceased on 22.6.1979 and found three injuries on the person of the deceased. In his opinion, the death of Muhammad Shafi took place due to the injuries which had caused damage to , left lung; spleen and spinal cord with resultant profused internal and external hemorrhage and shock. The injuries were caused with sharp edged weapon and were sufficient in ordinary course.of nature to cause death which occurred within ten to twenty minutes of infliction of injuries. The ocular account was furnished in the shape of statements of the eye-witnesses namely Muhammad Siddiq (PW-1), Naseer Ahmad (PW-6) and Muhammad Boota (PW-7). Ghulam Shabbir (PW-4) had recorded the formal FIR, while Zahoor Ahmad (PW-5) had escorted the dead body of Muhammad Shafi deceased to mortuary for postmortem examination. Ahmad Din (PW-8) had identified the dead body of Muhammad Shafi deceased at the time of performance of autopsy at mortuary, while Muhammad Sharif (PW-9) and Muhammad Ashraf (PW-10) were produced as recovery witnesses. Abdul Khaliq, Draftsman, appeared as (PW-11) who had prepared the site-plan. Aziz-ur-Rehm_an, ASI (PW-12) Investigating Officer had conducted investigation.
7. After close of the prosecution evidence, statements of the appellants u/S 342 Cr.P.C. were recorded. Muhammad Ali appellant denied the allegations in toto and maintained that he was not present on the spot at the time of incident and had been implicated 'due to interestedness of the witnesses, while Muhammad Anwar appellant deposed that he went to his house in the evening when he saw that Siddiq, the first informant, was abusing his mother and was beating her by pulling her hair. Muhammad Shafi, deceased, was also there, at which he threw down Muhammad Siddiq PW. Muhammad Shafi deceased gave him dang blows and Muhammad Siddiq also joined him as a result of which he was injured grievously and in self defence he after picking up a sickle lying nearby inflicted injuries to Shafi and Muhammad Siddiq PW. Neither the appellants opted to make statements u/S. 340(2) Cr.P.C. nor produced any defence evidence.. ,
8. After hearing the learned counsel for the parties, learned trial Court passed the impugned judgment of conviction and sentence which' is being assailed through this appeal.
9. Heard.
10. Record perused.
11. The prosecution in order to prove the guilt of the appellants produced three eye-witnesses namely Muhammad Siddiq (PW-1), Naseer Ahmad (PW-6) and Muhammad Boota (PW-7). PW-.1 Muhammad Siddiq had received four injuries during the occurrence, two each with blunt as well as sharp edged weapons and Injury. No, 2 was declared dangerous to life caused with sharp edged weapon which was attributed to Muhammad Anwar appellant, hence, presence of this PW at the spot is not doubtful. But if the presence of the witness at the spot is not doubtful, it does not mean that he has spoken the whole truth. In his statement u/S. 154 Cr.P.C. (Ex. P.A) he did not mention the factum that Muhammad Shafi deceased while armed with 'clang' had also caused injuries to Muhammad Anwar appellant. However, at the trial he made improvement by saying that Muhammad Shafi deceased was armed with 'clang' and he gave one or two blows to Muhammad Anwar appellant but Muhammad Ali appellant caught hold of. him from the front and. Anwar appellant gave `chhurra' blow in his back whereupon Muhammad Shafi deceased fell on the ground. Similarly, he stated that the occurrence had taken place in his house when the appellants namely Muhammad-Ali armed with ,Vang' and Muhammad Anwar armed with `chhurra' came to his house, but according to Abdul Khaliq, Draftsman (PW-11) who had prepared the site-plan (Ex.
PK), the occurrence had taken place at Point No, 1 which was an open place situate at a distance of 60 feet from the house of Siddiq PW towards south. So it is found that PW-1 has not spoken the whole truth, who concealed the material facts and also improved the prosecution story at the trial.
His statement cannot be accepted as a gospel truth in the above circumstances. Moreover, he himself during cross-examination admitted that the accused had been injuring him and his brother within the duration of five minutes but none attracted to the spot and when the witnesses came to the place of occurrence the accused were running away after the incident.
12. Naseer Ahmad (PW-6) and Muhammad Boota (PW-7) were not resident of the same locality.
Admittedly, their place of working was Chowk Azam and they were residing at Chak. No, 336/TDA where the father of these witnesses resided. They had claimed that they were going to their home in other Chak when they on hearing the noise had witnessed the occurrence, while the complainant himself has stated that they were not present at the time of causing injuries by the appellants and the witnesses only attracted to the spot when the appellants were running away.
Nasir Ahmad (PW-6) was resident of Chak No, 336/TDA while Muhammad Boota (PTV-7) was residing in Chowk Azam, hence they were chance witnesses and failed to give any plausible explanation for their presence at the spot. The complainant also stated during cross-examination that in his neigbourhood Hamida, Bashir Mochi and Fateh Jat lived besides another house at a distance of 3 acres from his house and they also attracted to the spot but not witness, from the locality was. produced. Itis also pertinent to point out here that both the parties are closely related to each other as Muhammad Ali and Muhammad Anwar appellants are brothers of the wife of Muhammad Siddiq complainant and Muhammad Ali appellant was brother-in-law of the complainant. However, due to the suppression of certain facts statement of PW-1 Muhammad Siddiq is not worthy of reliance and the, possibility cannot be ruled out about concocting false story to implicate both the brothers in the present case due to the incident which admittedly took place at the spur orthe moment as there was no previous ill will or enmity between the parties.
13. Aziz-ur-Rehman, ASI (PW-12), during cross-examination admitted that Muhammad Anwar appellant was in an injured condition when he was arrested and he was also got medically examined by him, but he did not bring on record said medico-legal report which shows his malafides in the conducing of investigation. He also admitted that it came to his notice that he had sustained injuries during the occurrence. In such circumstances, prosecution evidence is not worthy of reliance and is believed.
14. However, Muhammad Anwar appellant has admitted his presence at the time of occurrence and causing of injuries to Muhammad Shafi deceased but in as different manner. According to him he had acted in the state of grave and sudden provocation as well in self defence because he saw that his mother was being abused, beaten and pulled from her hair by Muhammad Siddiq. (PW-1) whereupon he (Muhammad Anwar appellant) threw him on the ground. Then both Muhammad Siddiq and Muhammad Shafi deceased severely beaten him and he in self defence caused them injuries after picking up sickle lying nearby. According to Dr. Abdul Hameed Chughtai, who medically examined Muhammad Siddiq complainant (PW-1) on 21.6.1979, he received four injuries on his person; two with sharp edged weapon and two with blunt edged weapon. Injury No, 2 was on the right side of abdomen while Injury Na. 3 was on the left side of back near renal angle and the two. other injuries were subsequently declared Simple. Injury No, 2 was declared dangerous to life.
Similarly, three injuries with sharp edged weapon were found on the person of Muhammad Shafi deceased by the doctor (PW-3) and these injuries Mere sufficient to cause death in the ordinary course of nature.
15. It is settled principle of law that if the prosecution version is discarded, the defence taken by the accused has to be believed or disbelieved in toto. The defence taken by Muhammad Anwar appellant is also borne out from the prosecution evidence as it was stated at the trial by PW-1 Muhammad Siddiq complainant that Muhammad Anwar appellant was also injured at the spot by Muhammad Shafi deceased. After perusal of defence plea taken by Muhammad Anwar appellant in his statement u/S. 342 Cr.P.C. it is proved that he had acted in the state of grave and sudden provocation and also self defence. However, he has not brought on record his medico-legal certificate to show the nature of injuries sustained by him during the occurrence in spite of that as admitted by the Investigating Officer (PW-12) he was medically examined. Therefore, it has to be presumed that he had received injuries of simple nature and caused injuries to Muhammad Shafi deceased, which were found sufficient to cause death in the ordinary course of nature and Injury No, 2 on the person of Muhammad Siddiq was also found dangerous to life. Thus he had exceeded self defence.
16.As the prosecution version has been disbelieved and Muhammad Anwar appellant has denied the presence of Muhammad Ali appellant at the spot at the time of occurrence, this Court is left with no option except to extend the benefit of doubt in his favour. Hence, this appeal as regards Muhammad Ali appellant is accepted and by setting aside the impugned judgment of conviction and sentence to his extent he is acquitted of the charges. He is on bail and his surety shall stand discharged of the liability.
17. As this Court has observed that Muhammad Anwar appellant has not committed murder amounting to culpable homicide, his conviction under Section 302 PPC is converted to Section 304 Part I PPC and sentence of life is also reduced to 10 years R.I. Similarly, his conviction u/S. 307 PPC for causing injuries to Muhammad Siddiq (PW-1) is converted to Section 308 PPC and sentence of 10 years is reduced to 5 years R.I. However, the sentences of fine and compensation as directed by the learned trial Court is maintained under these offences as well with the modification that in default of payment thereof he shall further undergo only for six months on each count. Both the sentences of imprisonment shall run concurrently and benefit of Section 382-B Cr.P.C. shall also be given to him. With the above modification in the impugned judgment of conviction and sentence this appeal to the extent of Muhammad Anwar appellant is dismissed. lie is presently on bail as during the pendency of this appeal his sentence was suspended by this Court. The learned Sessions Judge, Muzaffargarh shall issue process as required u/S. 425 Cr.P.C. to ensure that Muhammad Anwar appellant is sent to jail to serve out the remaining sentence.