' MUHAMMAD AKHTAR SHABBIR, J.--- This criminal appeal, by leave of the Court, is directed against the judgment dated 5-12-2006 passed by a learned Division Bench of the Lahore High Court,.
Lahore, whereby criminal appeal filed by the appellant against his conviction and sentence of death awarded to him for committing Qatl-i-Amd of Muhammad Hanif, deceased, by the learned Additional Sessions Judge, Faisalabad, vide judgment dated 28-9-2001, was partly allowed and while maintaining his conviction under section 302(b)/34, P.P.C, the learned High Court altered the major penalty of death to imprisonment for life. Hence, the appellant preferred Jail Petition No,5 of 2007 before this Court out of which the instant appeal has arisen.
2. Briefly stated the facts of the case, as narrated in the F.I.R.(Exh.P.G./1) by complainant Barkat Ali (P.W.5), are to the effect that on the fateful day and time (8-1-1996 at 3-00 p.m.), he along with his brother Muhammad Ibrahim, Muhammad Hanif (deceased) and Taj Ali injured PW were present in their Haveli (Ahata Muwaishian/Cattle shed). In a short while, Faryad Ali, appellant armed with Wahola, Abdul Sattar alias Ranjha (since P.O.) armed with .222 rifle and their mother Mst.
Hameedan Bibi (since acquitted) came there raising lalkaras. On hearing the noise, Muhammad Hanif went out of the Haveli as to see what had happened. On seeing him, Mst. Hameedan Bibi raised Lalkara inciting Abdul Sattar alias Ranjha and Faryad Ali to give him a lesson for hurling abuses and kill him. The accused tried to get him but he ran towards the Haveli on which Abdul Sattar alias Ranjha fired with his rifle which shot hit him on the back of his left shoulder. It was alleged that Faryad Ali then gave Wahola blown on the head of Muhammad Hanif which caused his brain come out of the skull. Muhammad Ibrahim and Taj Ali (P.Ws.) also received injuries on their heads at the hands of Abdul Sattar alias Ranjha. Faryad Ali also gave a Wahola blow on the left chin of Taj Ali P.W. On hearing the alarm, Mst. Muniran Bibi also came out of her house who was given Wahola blow on her left shoulder by Faryad Ali. The occurrence was also witnessed by Mushtaq Ahmed and Mukhtar Ahmed (given up P.Ws.). The injured were taken to the hospital but Muhammad Hanif died before reaching the hospital..
3. The, prosecution to establish its case against the appellant produced as many as 12 witnesses including the doctor and the Investigating Officer. The ocular account of the occurrence was furnished by complainant Barkat Ali (P.W.5), Taj Ali (P.W.6) and Mst. Muniran Bibi (P.W.7). The medical evidence was furnished by Dr. Masood Iqbal Bukhari (P.W.2) and Dr. Mian Tahir Javed (P.W.10) who conducted the autopsy on the dead body of Muhammad Hanif deceased. P.W.12 Allah Ditta, S.-I. Was the Investigating Officer. The appellant when examined under section 342, Cr.P.C.
Denied the prosecution story and pleaded that due to enmity he and his co-accused had been falsely involved in this case with the connivance of police.
4. The learned trial Court having found the case against the appellant proved beyond reasonable doubt, convicted him under section 302(b), P.P.C. And sentenced him to death as also to pay Rs,50,000 as compensation to the legal heirs of Muhammad Hanif deceased. He was also convicted under section 324, P.P.C. For launching murderous assault on Taj Ali and Mst. Muniran Bibi and was sentenced to 7 years and 3 years' R.I. Respectively with fine of Rs,5,000 each on two counts, in default whereof to undergo S.I. For six months.
5. Learned counsel for the appellant vehemently argued that in the F.I.R. As well as in the evidence of the prosecution witnesses, the blunt weapon (Wahola) injury caused on the head of the deceased Muhammad Hanif has been assigned to the appellant Faryad Ali, while the 'Special Medical Board' after re-examination of the dead body of the deceased opined that both the injuries Nos.1 and 2 were the result of firearm, the firearm was used by the co-accused Abdul Sattar (P.O.) and not by the present appellant. Further contended that there is a material conflict between the ocular evidence and the opinion of the Medical Board. The learned counsel also argued that in view of the dissenting opinion of the Special Medical Board, the appellant was not liable to be punished under section 302(b), P.P.C. Nor section 34, P.P.C. Is attracted to'his case. The learned counsel for the appellant confined his arguments to the extent that no fatal injury was caused by the appellant to the deceased.
6. While on the other hand, the learned Deputy Prosecutor General opposed the arguments of the learned counsel for the appellant and supported the judgment of the Courts below. He specifically contended that the re-examination of dead body of the deceased by the Special Medical Board after 10 months of the burial is not tenable in law.
7. We have heard the arguments of the learned counsel for the parties and perused the record with their able assistance.
8. The only controversy to be determined by this Court as agitated by the learned counsel for the appellant is that as per the opinion of the Special Medical Board, no fatal injury on the person of the deceased is attributed to the appellant. There is no denial to the fact that the complainant has attributed specific role to the appellant Faryad Ali in the F.I.R. And in his statement as P.W.5 to the extent that the appellant gave a blunt weapon (Wahola) blow on the head of deceased Muhammad Hanif which was sufficient to cause his death. As per medico-legal report (Exh.P.K.), the deceased sustained two injuries. The medical officer at the time of postmortem of the dead body of the deceased declared injury No,1 by fire-arm and injury No,2, by blunt weapon. While the defence being dissatisfied with the opinion of the medical officer (P.W.10) Dr. Mian Tahir Javed, approached the District Magistrate for permission of exhumation and re-examination of the dead body of the deceased by a Medical Board. The appellant's request was turned down by the District Magistrate, his writ petition also met with the same fate. However, this Court vide order dated 21-8- 1996 passed in C.P. No,1733-L allowed the disinterment and fresh postmortem examination of the dead body of the deceased and the Special Medical Board by furnishing its reasons declared that injury No,2 was also caused by a firearm. The High Court in the impugned judgment has also accepted the dissenting opinion of the Medical Board about injury No,2. The relevant portion of the judgment for further ready reference is reproduced as under;-- "But in view of the dissenting opinion expressed by the medical board about injury No,2 sustained by Muhammad Hanif, deceased the appellant Faryad Ali cannot be said to have caused fatal injury to the deceased."
' It transpires from the above observation of the learned High Court that it has given weight to the defence version.
9. It will not be out of place to mention here that the opinion of the Special Medical Board has also not been categorically contradicted or denied by Dr. Mian Tahir Javed (P.W.10) who had conducted that first postmortem examination of the deceased. He in his statement under section 164, Cr.P.C.
Before the trial Court when put to cross-examination, admitted that "it is correct that injury No,2 is a lacerated wound. A lacerated wound may also be caused by fire-arm. There is possibility of sustaining injury No,2 by the deceased in standing position." He further admitted that "the possibility of injury No,2 being caused by fire-arm cannot be ruled out." It means that in view of the deposition or admission by Dr. Mian Tahir Javed, there is no denial to the fact that the findings of the medical officer as well as the Special Medical Board are concurrent on the weapon of offence used for commission of the offence i.e, the seat of injury on the head of the deceased Muhammad Hanif. From the medical evidence, it is evident that there was a comminuted fracture of skull involving the frontal, temporal parietal and occipital bones of the skull especially upper half of the skull was scattered into 15 pieces of different size. As per medical jurisprudence, "the temporal bone and the orbital plate of the frontal bone are easily fractured. When a bullet with high velocity causes a glancing blow it may cause guttering of the outer table of skull, usually the inner table is also involved and shows irregular depressed fracture. A bullet though of little weight strikes small area with great velocity and hence may disrupt and disintegrate all the tissues including bone and brain. Blunt objects may cause depressed fracture at the point of impact. The varieties of the factures of the skull that are usually met with are fissured partial (outer or inner table, though the inner table is more commonly fractured), stellate or radiating, depressed (fracture a la signature), elevated, punctured, guttered, crushed and comminuted-broken into pieces." (Modi's Medical Jurisprudence & Toxicology). The above text of the medical jurisprudence strengthens the medical evidence that the head injury sustained by Muhammad Hanif deceased was caused by a firearm.
10. The cause of death of an injured deceased can only be gathered safely through a postinortem examination as laid down by this Court in the case of Mrs. Alia Tareen, Managing Director, Pakistan General Hospital, Quetta and others v. Amanullah Khan, Advocate and 3 others PLD 2005 SC 99. The observation was made by this Court in the case (supra) where postmortem' examination was never conducted. It has also been observed by this Court that as far as the medical evidence or expert's opinion was concerned, it was always treated, to be confirmatory in nature. The medical evidence cannot establish the presence of the accused in the occurrence and weapon of offence used or injury caused A to the deceased. So far as the opinion that the injury sustained by the injured or the deceased was caused by which weapon, it is the medical expert who can opine that a specific injury was inflicted by which kind of weapon.
11. It is also the settled principle of law that when there is a conflict between the ocular account and the medical evidence, if the ocular account is straight, fair and confidence inspiring, the weight shall be given to the ocular account and it will prevail. It is not "sufficient" to suggest the non- presence of the eyewitnesses at the spot but the conflict of medical evidence and the ocular account in respect of number and nature of injures can be relevant to ascertain the role of an individual accused in the occurrence. In the case in hand, the prosecution has established the participation of the appellant in the occurrence but so far as his intention to kill the deceased or causing a fatal blow/injury to the deceased with blunt weapon is concerned, the same is not established beyond reasonable doubt. The opinion of the medical experts (P.W.10, D.W.4 and C.W.2) with regard to injury No,2 seated on the head of the deceased cannot be brushed aside. The co- accused Abdul Sattar (P.O.) was armed with fire-arm weapon and as per the medical evidence injuries Nos.1 and 2 were result of fire-arm, certainly the proclaimed offender aforesaid was responsible for taking life of the deceased. The medical evidence by the medical expert has made a dent in the prosecution story which made it doubtful as it has been laid down by the superior Courts a number of times that an accused is the most favourite child of law and every benefit of doubt would go to the accused regardless of whether he has taken any such plea or not. Reference in this context can be placed in the cases of Fazal Din and others v. Rahmat and others 1968 SCM R 18 and Muhammad Nawaz and others v. The State and others PLD 2005 SC 40.
12. The common intention of an accused person for committing murder is a question of fact which can be ascertained on the basis of the acts and the conduct of the accused, the ferocity of the attack, the weapon used, the number of blows coupled with the element of pre-concerned, of mind. While the appellant in the instant case has caused injuries to Taj Ali (P.W.6) and Mst. Muniran Bibi (P.W.7) with Wahola a blunt weapon and as per medical evidence (discussed above), no such injury has been sustained by the deceased at the hands of the appellant which is proof of the fact that despite participating in the occurrence, the appellant had no intention to kill any member of the complainant party. Reference in this context can be placed in the case of Zahid Imran and others v. The State and others PLD 2006 SC 109.
13. Coming to the contention of the learned Deputy Prosecutor General that the re-examination of the dead body conducted by the Special Medical Board after about 10 months of the burial, suffice it to answer that the medical jurisprudence has not provided any time limit for exhumation/disinterment of the dead body in India and England while in France the period is limited to 10 years and 30 years in Germany. Reference is made to Modi's Medical Jurisprudence and Toxicology (Chapter IV Page 90).
14. For what has been discussed above, while partly allowing this appeal, we set aside the conviction and sentence of life imprisonment awarded to the Faryad Ali, appellant under section 302(b), P.P.C. For committing Qatl-i-Amd of Muhammad Hanif, whereas the conviction and sentence awarded to him under section 324, P.P.C. (on two counts) for launching murderous assault on Taj Ali and Mst. Muniran Bibi (the injured P.Ws.) is maintained.