' 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 under section 302/34, P . P. C . 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 one year each. Both the appellants were also convicted under section 307/34, P.P.C. And sentenced to 10 years' R.I. With fine of Rs,3,000 each and in case the amount of tine 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 1-1/2 years. However, the sentences under sections 302/307, P.P.C. Were to run concurrently whereas the sentences in lieu of fine and compensation were directed to run consecutively.
2. F.I.R. No,192/1979 was recorded on the statement Exh.P.A. Of Muhammad Siddiq (P.W.1) brother of Muhammad Shfi deceased by Ghulam Shabbir Head Constable P.W.4 on 21-6-1979 at Police Station, Layyah, District Muzaffargarh under sections 302/307/452/34, P.P. C .
3. It has been alleged in the statement recorded under section 154, Cr.P.C. But first informant Muhammad Siddiq (P.W.1), that he used to reside in Fatehpur 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 .-eport, 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 of Maghrib prayer time and abused the complainant who also reacted 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 Daggar 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 All 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 Muhamniad 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 complainant. The assailants 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, Azizur-Rehman, A.S.I. (P.W.12) proceeded to the place of occurrence.
He prepared the inquest report (Ex.h.P.L.) pertaining to dead body of Muhammad Shafi and aloo drew statement of injuries (Exh.P.M.) on his person. He also dispatched the dead body of Muhammad Shafi deceased to mortuary for postmortem examination through Zahoor Ahmad, F.C.
Thereafter, on the following day he inspected the place of occurrence and collected the bloodstained earth from there which was taken into possession by him vide recovery memo.
Exh.P.E. 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. (Exh.P.F.) Similarly, Muhammad Anwar appellant led to the recovery of blood-stained Dagger (P.4) which was also taken into possession by him vide memo. Exh. P. G.
5. After conclusion of the investigation report under section 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 tried.
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 (P.W.2) and Dr. Manzoor Ahmad (P.W.3). Dr. Abdul Hameed Chughtai, Medical Officer, R.H.C. Chowk Azam, Tehsil Layyah (P.W.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. P.W.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 haemorrhage 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 (P.W.1), Naseer Ahmad (P.W.6) and Muhammad Boota (P.W.7) Ghulam Shabbir (P.W.4) had recorded the formal F.I.R. While Zahoor Ahmad (P.W.5) had escorted the dead body of Muhammad Shafi deceased to mortuary for postmortem examination. Ahmad Din (P.W.8) had identified the dead body of Muhammad Shafi deceased at the time of performance of autopsy at mortuary, while Muhammad Sharif (P.W.9) and Muhammad Ashraf (P.W.10) were produced as recovery witnesses. Abdul Khaliq, Draftsman, appeared as (P.W.11) who had prepared the site plan Aziz-ur-Rehman, A.S.I. (P.W.12) Investigating Officer had conducted investigation.
7. After close of the prosecution evidence, statements of the appellants under section 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 P.W. 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 Shaft and Muhammad Siddiq P.W. Neither the appellaMs opted to make statements under section 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 (P.W.1), Naseer Ahmad (P.W.6) and Muhammad Boota (P.W.7). P.W.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 P.W. 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 under section 154, Cr.P.C. (Exh. P.A.) he did not mention the factum that Muhammad Shafi deceased while armed with 'Dang' had also caused injuries to Muhammad Anwar appellant. However, at the trial he made improvement by saying that Muhammad Shafi deceased was armed with `Dang' 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 `Dang' and Muhammad Anwar armed with `Chhurra' came to his house, but according to Abdul Khaliq, Draftsman (P.W.11) who had prepared the site plan Exh.P.K.
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 P.W. Towards South. So it is found that P.W.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 (P.W.6) and Muhammad Boota (P.W.7) were not residents 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 (P.W.6) was resident of Chak No,336/TDA while Muhammad Boota (P.W.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 neighbourhood 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 no witness from the locality was produced. It is 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 All appellant was brother-in-law of the complainant. However, due to the suppression of certain facts statement of P.W.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 of the moment as there was no previous ill-will or enmity between the parties.
13. Aziz-ur-Rehman, A.S.-I. (P.W.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 mala fides in the conducting 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 disbelieved.
14. However, Muhammad Anwar appellant has admitted his presence at the time of occurrence and causing of injuries to Muhammad Shafi deceased but in a 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 (P.W.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. Accordingly to Dr. Abdul Hameed Chughtai, who medically examined Muhammad Siddiq complainant (P.W.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 No,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 (P.W.3) and these injuries were 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 P.W.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 under section 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 (P.W.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, P.P.C. Is converted to section 304, Part I, P.P.C. And sentence of life is also reduced to 10 years' R.I. Similarly his conviction under 'section 307, P.P.C. For causing injuries to Muhammad Siddiq (P.W.1) is converted to section 308, P.P.C. And sentence of 10 years is reduced to 5 years' R.I. However, the sentences of fine and compensation 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. He 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 under section 425, Cr.P.C. To ensure that Muhammad Anwar appellant is sent to jail to serve out the remaining sentence.