' Bagh Ali son of Nizam alias Waryam was convicted under section 302, P.P.C. And was sentenced to suffer life imprisonment plus a fine of Rs,10,000 and in default thereof to undergo further R.I. For three years for the murder of Shaukat Ali, vide the judgment, dated 27-2-1988 passed by the learned Sessions Judge, Leiah. It was observed that in case of recovery of fine, it shall be paid to the legal heirs of the deceased Shaukat Ali under section 544-A, Cr.P.C. Vide the same judgment, the learned trial Court acquitted Muhammad Yaqub, Muhammad Ismail, Asghar Ali and Sheikh Muhammad alias Sheikha by giving them the benefit of doubt. The appellant Bagh Ali was also acquitted by the learned trial Court from the charges under section 307/148/149, P.P.C. Benefit of section 382-B, Cr.P.C. Was extended to the appellant. The appellant has challenged his conviction and sentence by filing this criminal appeal (Criminal Appeal No, 61 of 1988).
2.. Shortly stated, the prosecution story is that a case under section 302/148/149, P.P.C. Was registered against the appellant and acquitted co-accused on the statement of Jalal Din son of Sher Muhammad with Police Station Fatehpur on 11-6-1987 at 10-33 a.m. Vide F.I.R. No,92 regarding an occurrence having taken place on the same day at 9-30 a.m. About 10/11 days ago Mst. Sapiyan daughter of the appellant was abducted by one Umar Wattoo. The abductee and Umar Wattoo were, however, apprehended by police when they were going together. The abductee while making a statement in Court implicated Riaz son of Jalal Din, complainant, disclosing that he too was her abductor. Riaz was released on pre-arrest bail which caused an annoyance to the appellant. The appellant hurled threats with dire consequences to the complainant party. On the day of occurrence, at about 9-30 a.m. The complainant, his brother (deceased) and Mst. Irshad Bibi and Mst. Shamshad Bibi, his daughters, were busy in removing weeds from their land when from the village side, the appellant Bagh Ali, his brother Asghar Ali, Sheikh Muhammad alias Sheikha, Muhammad Ismail alias Nikka and Muhammad alias Billa, all armed with sticks came towards the complainant party while shouting. The complainant Jalal Din entreated the accused not to attack but they did not care for it. Asghar All shouted that they had come to take revenge of their insult. In the meantime, Shaukat All (deceased) left his Kassi and started running from the spot. The appellant Bagh Ali inflicted a Sota blow which landed on the head of Shaukat All and he on receipt of blow fell down on the bank of the watercourse. Mst. Irshad Bibi and Mst. Shamshad Bibi went ahead whereupon Sheikh Muhammad alias Sheikha pulled them aside by catching them from their hair. However, they were able to release themselves from him and fell upon Shaukat Ali, their uncle. The acquitted co-accused Ismail, Asghar Ali and Muhammad Yaqub injured them with their respective weapons. The complainant and Naik Muhammad P.W. Tried to interfere in order to save them but in vain. The assailants also made an attempt to inflict injuries to the complainant but he ran away from spot to save his life. The accused after commission of crime, returned to their house with their weapons. The victim Shaukat Ali was lying unconscious at the spot. Blood was oozing out of his head. The complainant shifted the injured to Fatehpur Hospital through wagon. On the same day, the injured Shaukat All died in the hospital due to the injuries received by him.
3. On 11-6-1987 Ghulam Mustafa Si. P.W.14 was posted as Additional S.H.O. At Police Station Fatehpur who on receipt of information of the occurrence went to Rural Health Centre, Fatehpur where he recorded the statement Exh.P.B. Made by Jalal Din, complainant. The injury statement Exh.P.N. And inquest report Exh.P.O. Of the deceased were prepared. The dead body was sent through Haq Nawaz F.C. To Hospital for post-mortem examination. The witness visited the spot and recorded the statements of Mst. Irshad Bibi and Mst. Shamshad Bibi. Both the ladies were medically examined in District Heaquarters Hospital, Leiah, vide Exh.P.E. And Exh.P.F. The Police Officer took into possession the blood-stained earth vide memo. Exh.P.M. On 11-6-1987, Haq Nawaz Constable produced before the witness Chaddar P.1, Jacket P.2 of Shaukat deceased which were taken into possession vide memo. Exh.P.A. On 13-6-1987, the appellant was arrested. He was examined by some doctor in Rural Health Centre, Fatehpur. The Police Officer prepared his injury statement vide Exh.P.R. On 15-6-1987, the appellant while in police custody led to the recovery of stick P.6 from his house which was taken into possession vide memo. Exh.P.L. He prepared the rough sketch of the place of recovery of stick P.6 vide memo. Exh.P.L./1. Ghulam Abbas Patwari prepared the site plans of the place of occurrence vide Exh.P.C., Exh.P.C./1 and Exh.P.C./2 on the instructions of the Investigating Officer.
4. Dr. Muhammad Aslam P.W.8 examined Shaukat Ali on 11-6-1987 and found the following injuries on his person:--
(1) A lacerated wound 7 c.m. x 1 c.m. x bone deep over top of head, just right to midline 12 c.m. From right ear and 7 c.m. From forehead. There was bleeding from both nostril and mouth.
(2) A laceration 1-00 c.m. x 1-00 c.m. On posterior side of left index finger at the matacarpophalangeal joint.
' It was opined by the doctor that both the injuries were caused by blunt weapon. Injury No,1 was found dangerous to life. Injury No,2 was simple in nature. The probable duration between the injuries and medical examination was about 4 to 6 hours.
5. Dr. Ghulam Sarwar P.W.4 conducted the post-mortem examination on the dead body on 11-6- 1987 at 3-15 p.m. And found the following injuries:--
(1) A lacerated wound 5 c.m. x 1 c.m. x scalp deep on the right side of the top of skull, 12 c.m. Above the right ear and 6 c.m. Above the forehead hair margin.
(2) An abrasion 1-1/2 c.m. x 1/4 c.m. On the base of left hand index finger on the dorsal aspect of left hand. Left hand stained with dust.
' In the opinion of the doctor, injuries Nos. 1 and 2 were ante-mortem and were caused by blunt weapon. Injury No,2 was simple. Injury No,1 was grievous and dangerous to life and was found sufficient to cause death in the ordinary course of nature. In his opinion the cause of death was hemorrhage and shock occurred due to injury No,1 (injury to vital organ i,e, brain). The probable time between injuries and death was within one hour and that between death and post-mortem examination was within 8 to 10 hours.
6. Lady Doctor Yasmin Javed Medical Officer, D.H.Q. Hospital, Leiah P.W.5 examined Mst. Irshad Bibi P.W.10 and Mst. Shamshad Bibi P.W.9 on 13-61987 and found the following injuries on them:-- Mst. Irshad Bibi.
(1) One contusion mark bluish in colour 7" x 3" on right thigh lateral side starting from hip oblique in direction going downwards.
(2) One contusion mark 3" x 1/2" on right buttock 4" above the injury No,1.
(3) One contusion mark 3" x 1/2" bluish in colour on left buttock back.
(4) A swelling in an area of 3" x 1" on back of left hand near wrist joint.
(5) Complaint of pain in neck and back of left arm.
(6) A swelling 2-1/2 c.m. x 1-1/2 c.m. On left arm. It was opined that all the injuries were simple with blunt weapon and the probable duration was two to three days. Mst. Shamshad Bibi.
(1) One contusion mark 4 c.m. x 2 c.m. On left thigh back oblique in direction. ' in the opinion of the doctor, the injury was simple and was caused with a blunt weapon. The probable duration of the injury was two to three days.
7. The eye-witness account was provided by Mst. Shamshad Bibi P.W.9, Mst. Irshad Bibi P.W.10 and Naik Muhammad P.W.11. These eye-witnesses generally supported the version of the prosecution.
8. The appellant pleaded his innocence while making a statement under section 342, Cr.P.C. In his statement, he disclosed that on the day of occurrence, he was going towards his land from his house and was passing through the Katcha path on the watercourse near the field of the complainant where the deceased was already standing while armed with a Sota. Shaukat (deceased) started abusing appellant as his nephew Riaz was involved in the abduction of his (deceased) daughter Mst. Sapiyan. The appellant objected to the abuses whereupon Shaukat (deceased) assaulted him and gave a Sota blow on his head. Shaukat Ali wanted to repeat the blow upon which the appellant picked up a stick lying near the watercourse and in order to save his life gave a stick blow which landed on the head of Shaukat Ali, in exercise of his right of self- defence. The appellant stated that he did not intend to murder Shaukat Ali. The appellant further disclosed that some women of his family came at the spot and on their return home, Mst. Irshad Bibi came to appellant's house where the womenfolk of the parties quarrelled and caused injuries to each other.
9. To the same effect is the statement made by appellant under section 340, Cr.P.C. Which he earlier made under section 342, Cr.P.C.
10. Dr. Faiz-ur-Rehman, D.W.1 was produced by the appellant in his defence. He deposed that on 13- 64987 the appellant Bagh Ali was examined by him. The following injury was noted on his person by the doctor:--
(1) A lacerated wound 1.5 c.m. x 0.25 c.m. On back of middle head just above the occipital prominence 13 c.m. Away from left and right ears. Around it slight swelling was present superficial in nature."
It was opined by the doctor that the duration between injury and examination was about 2 to 3 days. The injury was simple in nature and was caused by blunt weapon. In cross-examination the doctor admitted that the injury could possibly be caused by a friendly hand.
11. It may be observed that the learned trial Court discarded the evidence of Mst. Shamshad Bibi P.W.9, Mst. Irshad Bibi P.W.10 and Naik Muhammad P.W.11 in lieu of reasons enumerated in p'aras. 22 to 24 of the judgment dated 27-2-1988. Regarding Mst. Shamshad Bibi, the observation of the learned trial Judge is that she has introduced an entirely a different version during the trial. It was also noted by the learned trial Judge that this witness reached the sport when injuries had already been inflicted to Shaukat Ali deceased by the assailant. While discussing the statements of Mst.
Shamshad Bibi and Mst. Irshad Bibi P.Ws., it was further observed that there were material contradictions in their statements. About Naik Muhammad P.W.11, it was held by the learned trial Judge that he was a chance witness. The learned trial Court convicted and sentenced the appellant only on the basis of his confessional statement.
12. Learned counsel for the appellant forcefully submitted that after the rejection of the entire prosecution case, there was no legal justification with the learned trial Court to have convicted and sentenced the appellant under section 302, P.P.C. In other words, the contention of the learned counsel is that the offence committed by the appellant at best would fall under Part II of section 304, P.P.C. Inasmuch as he gave only one blow and did not repeat it although he was in a position to do so. The learned counsel maintains that this is a fit case for setting aside conviction and sentence of the appellant under section 302, P.P.C. Instead he says that the appellant may be convicted and sentenced under section 304, Part II, P.P.C. The learned Assistant Advocate-General supports the conviction and sentence of the appellant. He urges that the appellant has confessed the commission of the crime and as such was rightly convicted and sentenced according to law.
13. I have heard the learned counsel for the parties at considerable length and have read the record carefully. As observed earlier, the entire prosecution evidence stands discarded by the learned trial Judge and on the basis of confessional statement alone, the appellant was convicted and sentenced by the learned trial Judge. After giving my careful consideration to the respective contentions of the learned counsel for the parties, I am of the considered view that the appellant had no occasion to go and pass through the Katcha path which led to the land of the complainant party with whom he had enmity. It has been made clear by the appellant in his statements under sections 342, Cr.P.C. And 340, Cr.P.C. That he went at the place of occurrence where he saw Shaukat Ali deceased while standing, duly armed. I am, therefore, not prepared to accept this part of the statement of the appellant that it was the deceased who first opened an attack upon him whereupon in the exercise of right of self-defence, the appellant retaliated and inflicted an injury on the head of the deceased. The injury inflicted by the appellant by stick P.6 was given with such a force which resulted in the fracture of his skull into multiple pieces. The medical evidence shows that parietal and frontal bones were fractured. On removing the skull it was found that hematoma was formed on right side. Clotted blood was also present as a single mass. Thus, on the basis of the medical evidence, it can safely be said that the appellant inflicted the injury with the greatest possible force which smashed the head of the victim into pieces. In the circumstances, the appellant knew fully well that the injury given by him to the deceased on his head was sufficient to cause death in the ordinary course of nature. Further, Sota P.6 was recovered at the pointedness of the appellant from his house. This recovery of Sota P.6 from the exclusive possession of the appellant has been proved beyond any shadow of doubt. The part of the statement of the appellant that he picked up a wooden piece from the spot with which he gave the injury on the head of the, deceased appears to be afterthought on the face of it and deserves rejection outrightly. The circumstances demonstrate beyond any shadow of doubt that the appellant was annoyed on the abduction of his daughter Mst. Sapiyan by Riaz. Riaz accused in the abduction case is nephew of the deceased and son of the complainantThus, there was a very strong motive with the appellant to murder Shaukat Ali. The medical evidence, the recovery of Sota P.6 and the motive part of the prosecution story are sufficient substantial pieces of evidence which do corroborate the confessional statement of the appellant Bagh Ali beyond doubt. There is no evidence to show that it was the appellant who was first attacked by the deceased and that he in exercise of his right of self-defence retaliated and inflicted an injury to the deceased. In my view, it was the appellant who had the motive to open an attack upon the deceased because Mst.
Sapiyan, daughter of the appellant was abducted by Riaz, son of the complainant earlier. It was the appellant who bore grudge on account of abduction of his daughter by nephew of the deceased.
There was, therefore, no occasion for deceased to attack first.. As deposed by Doctor Faiz-ur- Rehman D.W.1 the injury on the person of the appellant could possibly be caused by a friendly hand. The injury on face of it is superficial in nature. In my view the injury on the person of the appellant is too insignificant to be taken notice of. This injury might be the result of a fall on the ground during occurrence. I am, not at all persuaded to accept the version of the appellant that he received this injury on his head at the hands of the deceased during occurrence and that on the receipt of said injury, he was justified in law to open a full-fledged attack with a deadly weapon to make short work of Shaukat Ali. Deceased. Accordingly. I reject the plea of self-defence of the appellant. I. Therefore, conclude that the appellant was convicted correctly. The contention that the appellant did not inflict more injuries although he was position do is without substance. As observed the appellant fully well that had given such a powerful blow on the vital part of the deceased which blow was sufficient to finish him once for all. In Muhammad All v. The State 1990 SCMR 296, the honourable Supreme Court considered even one blow sufficient to maintain conviction and sentence of an accused person under section 302, P.P.C. The referred authority is respectfully followed in this case. No case whatsoever has been made out for interference by the learned counsel for the appellant. This was indeed a case of murder pure and simple.
14. The upshot of the above discussion is that there is no substance in the appeal which is dismissed. The conviction and sentence of the appellant are accordingly upheld.