JUDGMENT MUHAMMAD ASIF JAN, J. - Abdul Ghaffar, appellant, aged about 28 years stood his trial alongwith acquitted co-accused Abdul Sattar. Muhammad Bashir and Muhammad Younas, in the Court of Mr.Pervaiz Ahmad, learned Additional Sessions Judge of Faisalabad for having committed offences under section 302/307/34 P.P.C.
2 The learned trial Court vide judgment dated the 13th of January. 1992. Convicted Abdul Ghaffar.
Appellant, under section 302-P.P.C, and sentenced him to duaih. Subject to confirmation by this Court. Abdul Ghaffar appellant was also ordered to pay a fine of Rs.20.000/- and in case of default thereof it was directed that he shall undergo 3 years R.I. It was further ordered by the learned trial Judge that Abdul Ghaffar appellant shall pay Rs.10,000/- as compensation to the legal heirs of Muhammad Tahir deceased, aged about 20 years.
Co-accused Abdul Sattrfr, Muhammad Bashir and Muhammad Younas were given the benefit of doubt and acquitted.
3. Abdul Ghaffar appellant has appealed against his conviction and sentence by way of Criminal Appeal No.116 of 1992. The learned trial Judge has submitted a reference to this Court for confirmation of the death sentence aw'arded to Abdul Ghaffar appellant by way of Murder Reference No.45 of 1992. The State has filed an appeal against the acquittal of Abdul Sattar, Muhammad Bashir and Muhammad Younas by way of Crimianl Appeal No.568 of 1992.
Muhammad Jamil complainant (P.W.11) who is father of Muhammad Tahir deceased has brought a revision petition by way of Criminal Revision No.478 of 1992. Praying that the senu nee of fine awarded to Abdul Ghaffar appellant be suitably enhanced and the acquittal of the acquitted accused be set aside.
4. We have heard all these connected matters together and propose to decide them through this judgment.
5. The occurrence took place on the 20th of April, 1990 at about 7.30 a.m. In front of the house of Muhammad Anwar (P.W.12) in the area of Otak No. 199/R.B. Which is about 18 kilometers from Police Station Saddar. Faisalabad.
6. The F.I.R. (Ex.P.M.) was lodged on the 20th of April. 1990 in the afternoon at 1.15 a.m. By Muhammad Jamil (P.W.11) father of Muhammad Tahir deceased at Police Station Saddar, Faisalabad, where it was Yecorded by Inspector Nasarullah Khan (P.W.14) who was the Station House Officer of Police Station Saddar. Faisalabad at the time. .7. Besides Muhammad Jamil complainant (P.W.11) Muhammad Anwar (P.W.12), Muhammad Akram (P.W.13) and Mst. Rashida saw' the occurrence.
Mst. Rashida, was allegedly injured during the occurrence. However, Mst. Rashida was not produced by the prosecution to give evidence during the trial and Was given up as being "unnecessary". * , X. Dr.Abdul Sattar (P.W.5), S.M.O. D.H.Q. Hospital, Faisalabad, examined Muhammad Tahir deceased aged about 20 years, when he was still alive on die 20th of April, 1990 and found the following injuries on his person :V
(1) A lacerated wound 2 cm x 173 cm x bone deep surrounded by abrasion 2 1/2 cm x 2 1/2-cm on forehead near hair- line.
(2) A gutter forming lacerated wound 10 cm' x 2 cm x brain matter coming out on upper part of head.
Injury No.l kept under observation, while injury No. 2 Was declared- grievous. Injury No.1 was caused by blunt weapon and injury No.2 by a fire-arm.
9. On the same day at 10.35 a.m. The same Doctor examined' Mst. Rashida aged about 14 years and found the following injuries on her person:- Two fire-arms wounds 3/4 Cm x 3/4 ctn arid 3/4 cm x 1/2 cm, 5 1/2 cm apart from each other in the form of skin deep grazing on back of left shoulder.
The injury was simple in nature caused by fire-arm weapon wdth the probable duration of 3 hours. ,
10. Dr. Qasir Abbas (P.W.4), Medical Officer. D.H.Q. Hospital, I Faisalabad, conducted the post- mortem examination on the dead body of Muhammad Tahir deceased on the 21st of April, 1990 at 9.00 a.m. And found the following injuries on his person;-; *
(1) A lacerated wound 2 cm x 1/3 cm x bone, surround by an abrasion 2 1/2 cmx 2 1/2 cm on fore- head near hair line. Under line bone fracture present of frontal bone.
(2) A lacerated wound 10 cm x 2 envupto bone deep on right side head. 3 cm from mid line. On exploration of injury No.2 an oval wound 1 cm x 1/2 cm in the depth of injury No.2. Brain matter coming out of .This wound. On opening the skull the membranes below this wound were injured.
Brain matter was also injured. Subdural and intra cerebral haemorrhage was prese: a on right side brain.
In the opinion of the Doctor the cause of death in this case wuis intercranial haemorrhage and shock and damage to brain due to injuries No.1 and 2. These injuries were ante-mortem in nature and were sufficient to cause death in the ordinary, course of nature, individually as well as collectively. Injury No: 1 was caused by blunt weapon and injury No.2 was caused by fire-arm.
The probable time which elapsed' between the injury and death was about 8 hours and the time between death and post-mortem was 17 hours.
11. Blood-stained earth was recovered from the place of occurrence by inspector Nasrullah Khan (P.W. 14) in presence of Nazir Ahmad (P.W.6) on the 20th of April, 1990 vide memo. Ex.P.H. All the accused persons w'ere arrested by Inspector Nasrullah Khan T.P.W. 14) on the 25th of April, 1990
12. A l2 bore gun (P.6) was recovered from the house of Abdul Ghaffar appellant by Inspector Muhammad Tariq, (P.W. 14) on the 6th of May. 1990 vide memo. Ex.PJ, which was attested by Niaz Ali (P.W.7).
13. A l2 bore gun (P.7) was recovered from the house of Abdul Sattar acquitted accused b\ Inspector Muhammad Tariq (P.W.15) on the 9th of Maw 1990 vide memo. Ex.P.K, which was attested by Abdur Rashid (P:W.9.).
14. A l2 bore gun (P.8) was recovered by Inspector Muhammad Tariq (P.W.15) on the 9th of May.
1990 vide memo. Ex.P.l, which was attested by Abdur Rashid (P.W. 10).
15. Yet another l2 bore gun (P)9) was recovered from the house of Bashir acqquitted accused by the same Police Officer on the same day vide memo Ex.P.N. Which was attested by Muhammad AkramiP.W. 13).
16. Abdu! Ghaffar appellant admitted the killing and pleaded exercise of the right of private defence of person. The other accused persons pleaded total denial and false implication due to enmity. According to Abdul Ghaffar appellant, two incidents took place on the fateful day. The first incident took place at about 6.00 a.m. When Muhammad Tahir deceased had a quarrel with Adbu!
Ghaffar appellant near the house of Abdul Ghaffar appellant and during the said quarrel Abdul Ghaffar appellant and during the said quarrel Abdul Ghaffar appellant pushed Muhammad Tahir deceased as a result thereof the head of Muhammad Tahir deceased struck against a wall.
According to Abdul Ghaffar appellant this is how Muhammad Tahir deceased suffered an injury on his forehead. Muhammad Tahir deceased went away to his on. House bleeding profusely from his forehead and came back along-with Muhammad Akram (P.W.13) and Muhammad Jamil (P.W.11) to the house of Abdul Ghaffar appellant for taking revenge. According to Abdul Ghaffar appellant Muhammad Tahir deceased fired at him but missed. Thereafter, Abdul Ghatfar appellant in exercise of right of private defence of person fired back at Muhammad Tahir deceased just once as a result of which Muhammad Tahir deceased did .
17. Thus, the case of the prosecution has to be seen in juxtaposition with the ease of the defence and it has to be seen as to which out of the two versions appears to be nearer the truth.
Unfortunately, both sidesare not stating the whole truth. According to the prosecution Muhammad Tahir deceased did as a result of a shot fired at him by Abdul Ghaffar appellant. According to the medical evidence the injury on the right side of the head of Muhammad Tahir deceased which is described as injury No.2 was the result of a fire arm. However, the injury on the forehead of Muhammad Tahir deceased which is described as injury No.l by the Doctor was caused by a blunt weapon. On the prosecution's on. Showing, no blunt weapon of any sort was used at all. Thus, there is no explanation whatsoever for the injury on the forehead of the deceased. Learned counsel appearing on behalf of complainant Muhammad Jamil, father of Muhammad Tahir deceased in Revision I'et it ion No.478/92 tried to argue that this injury could be a result of a fall. This is ;i very far fetched argument at best and is not supported by the medical evidence.
18. On the other hand. Abdul Ghaffar appellant is giving a definite explanation for the injury on the forehead of Muhammad Tahir deceased. However, his explanation that when Muhammad Tahir deceased alongwith his father Muhammad Jamil and Muhammad Akram came to his house to take revenge and he tired at Muhammad Tahir deceased while exercising his right of private defence of person is also not very'easily acceptable.
19. Taking into account both the versions, that of the prosecution and the defence and all the other attending circumstances particularly the fact that Mst. Rashida who was also injured during the course of the same occurrence was not produced by the prosecution at the trial and was given up as being "unnecessary", we are inclined to agree with the contention of the learned counsel for the appellant that it seems that both sides have not told the whole truth. How did the occurrence actually start seems to be shrouded in a mist of uncertaintly. We are. Therefore, not inclined to confirm the sentence .Of death awarded to Abdul Ghaffar appellant and feel that the ends of justice would be secured by reducing the sentence of death of Abdul Ghaffar to imprisonment for life.
20. Criminal Appeal No.l 16/92 is, therefore, partly accepted. The sentence of death of Abdul Ghaffar appellant is not confirmed. Abdul Ghaffar appellant is sentenced to imprisonment for life with benefit of section 38'2-B Cr.P.C. The sentence of fine and compensation is maintained. It is ordered that the fine if recovered shall be paid to the legal heirs of Muhammad Tahir deceased alongwith the amount of compensation. Murder Reference No.45/92 is answered accordingly. The appeal filed by the State against the acquittal of Abdul Sattar. Muhammad Bashir and Muhammad Younas is dismissed. The revision filed bv Muhammad Jamil by way of Criminal Revision No.478/92 is also dismissed.