LEHRASAP KHAN, J.---Pattay Khan (25) has been convicted by a learned Additional Sessions Judge, Rawalpindi on 24-9-1983, under sections 302 and 452, P.P.C. And has been sentenced as under:- (i)under section 302, P.P.C. Sentenced to death and a fine of Rs.10,000 or in default three years' R.I.
(It)under section 452, P.P.C. Sentenced to three years' R.I. And a fine of Rs.1,000 or in default six months' R.I.
It has also been directed that the fine, if realized, would be paid to the heirs of the deceased.
His father and co-accused Jaffar Khan aged 70 years was, however, acquitted vide the same judgment.
2. The convict has challenged his convictions and sentences through the present appeal, viz. Criminal Appal No.120 of 1983. The matter also stands referred to us under section 374, Cr.P.C.
Seeking confirmation of the death sentence awarded to Pattay Khan (Murder Reference No. 182-R of 1983). The appeal as also the murder reference shall be disposed of by this judgment
3. The deceased in this case was Hakim Din (60). The occurrence in this case took place on 17-10- 1981 at 10-00 p.m. In the house of Hakim Din deceased situate in Nai Abadi Ahmadabad Dakhli Dhok Lakhan, at a distance of nine killometres from Police Station Sadar Barooni, Rawalpindi.
The occurrence was reported at the police station by Muhammad Farooq P.W.8, the son of the deceased, through F.I.R. Exh.P.A. Lodged at 12-30 a.m. On 18-10-1981. The F.I.R. Was recorded by Muhammad Din Head Constable P .W.2. The case was originally registered under section 307, P.P.C, as Hakim Din was alive by that time but after his deathin the hospital on 21-10-1981, the offence was amended as under section 302, P.P.C.
4. Regarding motive it has peen alleged that Muhammad Afaq (not produced) son of Hakim Din deceased had quarrelled with the brother of the appellant 'in the strip of ground of the school and on account of that grievance the appellant murdered the deceased.
5. As for the main occurrence, it has been stated that on 17-10-1981 at 10-00 p.m. The appellant armed with Chhuri and his co-accused Jaffar Khan empty-handed forced their entry into the house of the deceased by forcibly opening the main gate. They then forced their entry into the room of the deceased where he and his were Mst. Fatima Bibi P.W.9 were sleeping on different cots.
There the appellant caused two injuries with his Chhuri to the deceased in his belly and waist and thereafter they dragged the deceased into the compound of the house. Jaffar Khan caught hold of the deceased while the appellant caused injuries with his Chhuri on different parts of the body of the deceased. The occurrence was witnessed by Muhammad Farooq P.W.8 son of the deceased, P.W.9 Mst. Fatima Bibi, widow of the deceased and Muhammad Afaq (not produced) the other son of the deceased. These P.Ws. Pelted stones on the appellant to save the deceased. On account of pelting of stones injuries were received by the appellant.
6. The appellant was arrested on 30-10-1981. Blood stained earth from the spot was secured, vide memo. Exh. P.E. Dated 18-10-1981, attested by P.W.8 Muhammad Farooq, P.W.10 Mubarak Iftikhar Ahmad A.S.I. And Muhammad Afaq (not produced). On the same day a blood-- stained bed-sheet and blood-stained cover of the mattress were taken into possession, vide memo. Exh. P. F. From the room of the deceased. This recovery has been attested by Muhammad Farooq, Mubarak Iftikhar Ahmad A.S.I. And Muhammad Afaq aforesaid.
7. On 2-11-1981, the appellant led to the recovery of blood-stained Chhuri P.3 from his house which was taken into possession, vide memo. Exh. P.D. Attested by Khurshid Ahmad- P.W.7, Muhammad Farooq P.W.8 and Ihsan-ul-Haq, S.I. P.W.11. Vide Chemical Examiner's report Exh.P.N. And Serologist's report Exh.P.R, the result in regard to stains of blood on Chhuri P.3 has been received in positive being of human origin.
8. P.W.3 Dr. Mahmood Khan, Medical Officer, District Headquarters Hospital, Rawalpindi, performed the autopsy on the dead body of Hakim Din deceased on 22-10-1981 at 11-00 a.m., vide post- mortem report Exh. P. B. He noticed the following injuries on the dead body of the deceased:-- (1)Incised wound stitched, -- " on left side of umbilicus, 1 --" away from it.
(2)Incised stitched wound, 1 -- " in size, 2" below of the middle of umbilicus.
(3)Incised stitched wound, 1" at right iliac fossa, about 1" inner to anterior superior iliac spine.
(4)Stitched incised wound, 1" on left side back (lumber region).
(5)Stitched incised wound, 2" on base of right upper arm. 1 -- " above the elbow joint.
(6)A stitched wound of operation, 5" x 5", on middle of abdomen running above and below the umbilicus and just to its left side.
He opined that the deceased died of shock and haemorrhage caused by injuries Nos.1, 2 and 3, which were sufficient to cause death in the ordinary course of nature. All the injuries according to the doctor were ante-mortem and caused by sharp-edged weapon.
9. C.W.1 Dr. Abdul Aziz Tarar, the then D. M. S. District Headquarters Hospital, Rawalpindi, medically examined Pattay Khan appellant on 17-10-1981, vide medico-legal report Exh. C.W.1/1. He noticed one contused wound, scalp deep, on the left side of the head, a rounded swelling above the right eye-brow, multiple bruises over the left knee joint, a bruise over the right tibias, swelling and tenderness, over the right lateral malieus, a small abrasion on the lateral side of left clavicular region and a bruised area and rounded swelling over the scapuler region. He kept injuries Nos.1 and 5 under observation but the appellant failed to get himself X-rayed. The rest of the injuries were declared as simple. All the injuries were opined to have been caused with blunt weapon. Dr. Abdul Aziz Tarar was not asked any question in cross-examination by the learned counsel for the defence or the learned counsel for the State, although opportunity was given to both of them. In view of the nature and size of the injuries the possibility of these injuries having been' caused as a result of pelting of stones cannot be excluded.
10. At the trial Muhammad Farooq P.W.8 and Mst. Fatima Bibi P.W.9 testified as eye-witnesses to furnish the ocular account of the prosecution version and by their testimonies they have fully supported the prosecution case as disclosed in the F.I.R. Exh. P.A.
11. The appellant pleaded the exercise of right of private defence. In his statement recorded under section 342, Cr.P.C. The appellant in reply to question No.7-- why this case against you and why the P.Ws. Deposed against you?-- stated:--- "A few days before the occurrence my brother Fida Hussain, had beaten Afaq P.W. In the school. The deceased and Muhammad Farooq P. W. Came to my house and started abusing all of us. I slapped both of them and they went away. Since then they were on lookout to avenge the slaps. At the time of occurrence I was on my way to my home. The deceased, Farooq and Afaq P.W. Way laid me and came out of the haveli and started belabouring me. On the direction of the deceased, his sons lifted me and took inside haveli. The deceased delivered stick blows to me and in order to defend myself I injured him and got myself rescued. I went to the police station. I met Mubarak A.S.I. On the way who recorded my report and sent the same to police station and sent me to the hospital. My father was not with me.--- No evidence has, however, been led in defence by the appellant.
12. In the light of the defence plea taken by the appellant as reproduced above, it became obligatory for us to place the two versions i.e. One adduced in evidence by the prosecution and the other advanced by the appellant, in his defence in juxta position and to ascertain as to which of the two versions rings true and whether the plea of self-- defence advanced by the appellant' seemed to be probable or otherwise. In the context of such analysis it has been urged on behalf of the appellant that:- (1)he first approached the police; (2)non-production of Afaq creates an adverse presumption against the prosecution; (3)motive was for the other party to punish the appellant; (4)the occurrence could not take place in the manner as alleged by ,the prosecution; (5)injuries on the person of the appellant, particularly injury No.3 could not possibly be caused by pelting of stones; (6)no stone was found at the place of occurrence; and (7)the investigating officer failed to get the appellant X-rayed with regard to the, injuries kept under observation.
13. We have closely considered these contentions and find that but for the claim of the appellant himself in his aforementioned statement, there is no evidence on the record to the effect that he approached the police first. Mubarak Iftikhar Ahmad S.I. While appearing as P.W.10 denied the suggestion that in fact Pattay Khan appellant had met him and he prepared the complaint on the basis of his statement about the occurrence and sent the same to the police station. Afaq Ahmad no doubt has been quoted as an eye-witness in the F.I.R. But the prosecution is under no-legal compulsion to produce all the eye-witnesses. It is the quality of evidence and 'not the quantity which has to weigh with the Court. At the time of occurrence he was only 13 years old and, therefore, his non-production as an eye-witness does not create any adverse presumption against the prosecution, particularly when two other inmates of the house, namely, his elder brother P.W.8 Muhammad Farooq and his mother Mst. Fatima Bibi P.W.9 have testified at the trial as eye- witnesses. There is no substance in the argument that the motive was for the complainant party to assault the appellant As per prosecution version as deposed by Muhammad Farooq, 10-10-1981, Afaq his younger brother while playing on strip of lx-1, near a private school quarrelled with Fida, the brother of the appellant. He had hurled abuses on him and also 'pelted a stone as a result which Fida suffered an injury on his forehead. On account of the incident Jaffar Khan, the acquitted accused and his were wanted t: pick up quarrel with the deceased but he offered apology and the dispute came to an end with the intervention of the respectables of the. Mohallah. The appellant, however, has given a different version and stated that his brother gave beating to Afaq, upon which the decease and Muhammad Farooq went to the house of the appellant where slapped them. No evidence has been led by either of the parties t: establish their divergent claims about the motive, but nevertheless stands established that the occurrence was a sequel to a quarrel two teenagers in a playground of a private school which took place a few days prior to the occurrence.
In this view of the matter be said that it cannot the motive was for the complainant party to cause harm to the appellant.
14. Regarding the main occurrence it has been argued vehemently on behalf of the appellant that the house of the deceased was bounded by inhabitated houses being in Abadi but no independent witness has been produced to support the prosecution case. The occurrence admittedly took place at 10-00 p.m. In the month of October. In rural areas of this part of the country where winter sets in earlier, people do retire and go to beds soon after the sunset and 10- 00 p.m. Is considered as sufficiently late in the night. At that hour of the night none could be a better witness of the occurrence than the inmates of the house. Two inmates of the house i.e. Muhammad Farooq P.W.8 and Mst. Fatima Bibi P.W.9 have testified as eye-witnesses.
15. Regarding injuries on the person of the appellant it has already been observed that the learned counsel for the defence failed to ask from C.W.1 Dr. Abdul Aziz Tarar that the, injuries noticed by him on the person of the appellant at the time of his medical examination were not the probable result of pelting of stones but appeared to have been caused by stick or any other blunt weapon. The nature and size of the injuries are such that they could possibly be caused by pelting of stones.
Injury No.3 are multiple bruises over the left knee joint. Bruises can also be the result of pelting of stones. The learned counsel for the appellant argued that in fact the appellant was way-laid by the deceased and his two sons in front of the outer gate of their house while he was passing through the street and that they dragged him into their compound and on account of dragging he received the bruises as noticed by Dr. Abdul Aziz Tarar C.W.1. There is no merit in these arguments.
The appellant in his statement recorded under section 342, Cr.P.C. Categorically stated that he was lifted by Afaq and Muhammad Farooq and taken inside the haveli on the direction of the deceased.
He did not claim that he was dragged. If he was physically lifted the question of incurring bruises on the cap of the knee did not arise. It is true that the investigating Officer failed to mention the presence of E stones in the site-plan or in his inspection notes, but failure on his part cannot render the prosecution version unbelievable.
Injuries on the person of the appellant which were kept under observation and regarding which h-e was advised to get himself X-rayed have not been X-rayed but he got himself medically examined as a private case on 17-10-1981 at 11-00 p.m. His father accompanied him to the hospital. He has been arrested subsequently on 30-10-1981. It was for him to get himself X-rayed as per advice of the Medical Officer. Investigating Officer cannot be held liable for this omission.
16. The learned A.A. -G., and the learned counsel for the complainant while supporting the judgment under appeal, submitted that the charge has been fully brought home to the appellant beyond any reasonable doubt and that there was no substance in the plea of exercise of right of private defence raised by him.
17. We have noticed that in the circumstances of the case, it has been established that the occurrence took place at 10-00 p. m. In the house of the deceased, wherein the appellant went armed with a sharp-edged weapon. Regarding the occurrence, ocular account has been furnished by two inmates of 'the house whose presence in the house at the time of occurrence cannot be doubted. The appellant's plea is that he was waylaid by the two sons of the deceased and under the direction of the deceased, his two sons physically lifted him inside the compound where the deceased dealt blows to the appellant with stick and thereupon in exercise of right of private defence he caused injuries to the deceased. This plea on the face of it is rather fantastic. If-he was to be taught a lesson by the deceased and his sons he could be dealt blows in the street and there was no point in lifting him and taking him inside the compound. If he was just passing in the street in front of the house of the deceased, there was no occasion for him to carry with him sharp-edged weapon i.e. The Chhuri with which he has caused the death of the deceased.
17-A. After the considered scrutiny of all the pros and cons of the case, we have come to the positive conclusion that the appellant trespassed into the house of the deceased at 10-00 p.m. And caused fatal injuries with Chhuri. For coming to this conclusion we 'did not G feel any necessity of seeking corroboration from the evidence of recovery which otherwise stands fully 'established, because the ocular account furnished by most natural witnesses, material details whereof have not been denied by the appellant, has sufficiently established the prosecution case.
18. In the light of the foregoing conclusions, we dismiss this appeal and confirm the death sentence awarded to the appellant.