1. Abdul Ghaffar and his brother Abdul Latif were tried for the murder of Muhammad Arshad by the Additional Sessions Judge, Faisalabad. The trial Judge by judgment, dated 30-1-1985, found Abdul Ghaffar guilty under section 304, Part I, P.P.C. He was sentenced to imprisonment for life and a fine of Rs.10,000; or in default four years' R.I. Half of the fine was ordered to be paid to the legal heirs of the deceased. His brother Abdul Latif was acquitted.
2. Abdul Ghaffar has appealed to this Court.
3. Fazal Muhammad lodged complaint (Exh. P.B.) with Fazal Elahi S.I. Who came to Civil Hospital, Faisalabad having received information about the injured from the doctor. The Sub-Inspector sent the statement of the Police Station Civil Lines for registration of formal F.I.R. Which was recorded as Exh. P.B./1.
4. On 23-4-1983 Fazal Muhammad alongwith his son Muhammad Arshad left their house for Batala Colony. The time was half past eight at night. They had to meet one Shafqat. When they reached Chibban Maur, they met Shafqat. Three of them drank Coca Cola which Arshad purchased from the shop of the accused. After finishing the drink, Arshad went to return the empty bottles and to pay for that. Arshad paid Ghaffar at the rate of Rs.2.25 per bottle whereas the accused demanded Rs.2.50 per bottle. This led to an altercation between Arshad and the accused.
5. The matter took a serious turn. Abdul Ghaffar hit Arshad on the head with bottle. Latif also hit him with a bottle. Arshad was hit on the right side of neck. He fell down. Then Abdul Ghaffar hit him with the bottle. This time Arshad was injured in the left flank. The father alongwith others tried to save his son but he was threatened by the two brothers.
6. Arshad was removed to the hospital. He was medically examined there. Arshad died on the following day at 4 p.m.
7. Fazal Muhammad father of the deceased and two others, namely, Shafqat Ali and Muhammad Shaft were examined as eye-witnesses. The rest of the evidence consists of the medical report of Arshad and his Post-mortem report.
8. Abdul Ghaffar denied the allegations. He pleaded not guilty. His detailed statement shall be referred to later on.
9. I take up the ocular evidence first.
10. Shafqat and Muhammad Shafi did not support the prosecution case. The former said that on the day of occurrence at 8/9 p.m., he was informed about the death of Muhammad Arshad. At that time he was present in his house. Arshad was a trainee of his brother. The latter deposed that the occurrence did not take place in his presence.
11. Both Shafqat and Shafi were declared hostile. I, therefore, have option but to exclude their evidence from consideration although the could laid stress on their testimony and submitted that their evidence. Falsifies the prosecution story. But I am not prepared to accept this because there is still the evidence of the father and the medical evidence.
12. Now I proceed to discuss the evidence of the first informant.
13. Fazal Muhammad narrated the incident as best as could be expected from him. He was subjected to lenghty cross-examination but he struck to his version that it were the accused who hit the deceased with empty bottles as a result of which his son died.
14. The doctor who examined Arshad while he was alive noticed a contused swelling 4 c m x 4 cm on the back lower right part of head; an abrasion 1 -- cm x 1 -- cm with swelling 6 cm x 4 cm on the right side of neck and a contusion mark 6 cm x 1 cm on the back of left flank.
15. On the death of Arshad, post-mortem examination was conducted by Dr. Iftikhar Ahmad. He found the same injuries which had been noticed by Dr. Muhammad Ajmal. In the opinion of Dr. Iftikhar Ahmad, the death was due to shock and severe inter-cranial haemorrhage due to "Contused swelling 4 cm x 4 cm on the back lower right part of head".
16. On 29-4-1983 at 11-40 a.m., Dr. Iftikhar Ahmad, on the request of the police examined Abdul Ghaffar and noticed a healed wound with crust on the left side of head 13 c.m. From left car and 19 c.m.
17. From left eye brow. The injury was with blunt weapon. It was declared simple.
18. Abdul Ghaffar gave a detailed statement before the trial Judge. He admitted that the acquitted accused Abdul Latif was his brother. He also admitted that he was running a shop where he used to sell soft drinks but his brother had nothing to do with it.
19. The main allegation of attacking the deceased and hitting him with bottle was denied.
20. He said that the case against him was due to enmity with the deceased and Fazal Muhammad the first informant. A few days prior to the occurrence he hired a wagon from Arshad in connection with marriage of his relative. When he went to pay the charges Arshad demanded Rs.50 more than what had been agreed upon. Abdul Ghaffar refused to meet the demand. Arshad abused him. He threatened him alongwith two other gangsters.
21. Abdul Ghaffar reported the matter to the police. He and his father were summoned by the police.
22. They were beaten by the police and subjected to humiliation. The deceased and his father bribed the police as a result of which Abdul Ghaffar was fined. Under the pressure of the police the matter was compromised.
23. Arshad and his father then threatened Abdul Ghaffar. The deceased was a quarrel some person.
24. On the day of occurrence, there was a general rumour in the Bazar that the deceased had a fight with a Tonga driver over the parking of Tonga before his shop. The driver and his friends gave beating to him. The Tonga driver ran away. Police came to the spot the same evening. Many persons were suspected. Finally Abdul Ghaffar and his brother Abdul Latif were named as culprits.
25. There was doubt about the identity of the assailants. Latif was named as an accused.
26. The original F.I.R. Was destroyed. A new one was prepared. Abdul Ghaffar's relatives managed to obtain a photo copy of the first report which was tendered in Court by the appellant in his defence.
27. The appellant examined two witnesses in defence. Sher Muhammad D.W. Deposed that Latif used to learn watch repairing at his shop two years prior to the incident.
28. The other defence witness was Inspector Muhammad Amanullah. He said that on 30-4-1983 a compromise was proposed between the parties. A Salisnama was recorded wherein it was mentioned that Abdul Aziz son of Abdur Rahim, would give Nian about the innocence of Abdul Latif.
29. The said document was signed by both the parties.
30. On 8-5-1983, the complainant backed out. Later on the D.S.P. Ordered that the accused should be challaned.
31. However, it is to be noted that both the defence witnesses said nothing about Abdul Ghaffar appellant.
32. Learned counsel for the appellant submitted that the only evidence is that of the father of the deceased. Being father he was an interested witness. No independent corroborative evidence was forthcoming. The ocular evidence as' such was neither sufficient nor reliable to uphold the conviction.
33. Learned counsel submitted that there was yet another very serious defect in the prosecution case which demolishes the entire prosecution story and that was that there were two F.I. Rs. In support of this he wanted me to look at a photo copy which was described by the counsel as the second F.I.R.
34. In which Abdul Latif had not been named. In addition to this learned counsel submitted that the entire investigation was dishonest. All these facts create grave doubt about the implication of the appellant.
35. I have also heard learned counsel for the State who ~ supported the impugned judgment.
36. I have already discarded the evidence of the two eye-witnesses. I don---t think Fazal Muhammad's evidence is to be rejected on the ground of his relationship with the deceased. But it is to be made sure as to whether he was telling the truth or not.
37. Fazal Muhammad explained his presence at the spot. He then described the incident as best as could be expected from him. He stood the test of cross-examination very well. His statement finds support from the medical report of Arshad and the post-mortem report which prove that the injuries on the deceased could be received on being hit by bottles. Abdul Ghaffar was also injured.
38. That is also an important piece of indirect evidence.
39. I don't find any force in the contention of the learned counsel that there was a second F.I.R. There is no evidence on record to Show nor could the counsel explain as to how and wherefrom he obtained the photo copy. In case this evidence was to be used by the defence F n some evidence should have been led to prove that the original F.I.R was not available. In that case perhaps this piece would have been admitted as secondary evidence, not otherwise.
40. But even if the photo copy is to be taken into consideration in the interest of justice even then I don't think that the appellant is entitled to its benefit. In this document Abdul Latif's name was added He has already been acquitted.
41. I am, therefore, clear in my mind that the evidence of the father duly supported by the other evidence, referred to above, has proved the case against the appellant beyond doubt.
42. Now remains the question of conviction and sentence. On this point learned counsel addressed me at some length and submitted that it was not a case of conviction under section 304, Part I, P.P.C.
43. And sentenced for life imprisonment. Learned counsel submitted that the whole thing happened at the spur of the moment. The dispute started over the price of Coca Cola. It was not a pre planned murder.
44. I think this contention has some force. It is really very sad that for a petty sum of few Paisas, a young innocent citizen was fatally injured. However, in my view the proper provision of law under which the appellant is to be convicted is 304, Part 11, P.P.C I order accordingly and sentence him to ten years' R.I.
45. The appellant shall be given the benefit of section 382-B, Cr.P.C.
46. The amount of fine was not reasonable. I, therefore, gave notice to the counsel for the appellant that why it be not enhanced. He accepted the notice.
47. I enhance the amount of fine to Rs.20,000 (twenty thousand). The full amount shall be paid as compensation to the legal heirs of the deceased.
48. The Collector concerned is directed to take immediate necessary steps for its realization and payment as directed above.
49. The appeal is disposed of accordingly.