' This is a petition under section 42-D of the Interim Constitution Act read with Azad Jammu and Kashmir Supreme Court Rules, 1978 and section 42-A(1) of the Interim Constitution Act and has been placed before me under section 42(13) of the Interim Constitution Act vide my order, dated 2- 4-1999, as difference of opinion has arisen between the learned members of the bench consisting of my brothers Mr. Justice Basharat Ahmad Shaikh and Mr. Justice Muhammad Yunus Surakhvi.
2. The brief facts resulting in the application are that an occurrence took place at about 11.00 p.m.
During the night intervening between 21st and 22nd of July, 1991. Initially, a case was registered under section 15 of the Islami Tazeerati Qawaneen Nifaz Act as one, Sooba, was grievously injured; subsequently, he died on 24th July, 1991, whereupon section 5 of the Islami Tazeerati Qawaneen Nifaz Act was added to the charge-sheet and after investigation, a challan under section 5 of the Islami Tazeerati Qawaneen Nifaz Act read with section 34, A.P.C., was filed in the Additional District Criminal Court, Kahuta, on 3-3-1993. After ' Injuries Nos.l, 2 were simple while injury No,3 was kept under observation. All injuries were blunt weapons, probable duration of injuries was 3/4 days. I have brought the original register with me Exh.DD is correct photostat copy attested by me today. It bears my signatures and seal. Exh.DD/1 is the sketch of the injuries. It is also the correct attested copy of the original. It bears my signatures and seal. Xxxxx By learned DDA.
' Today I have signed and sealed Ex.h.DD and Exh.DD/1 as true copies. I did not record the statement of Mst. Khurshidan Bibi (volunteered) statement of the husband was recorded by me. It is mandatory to affix the thumb-impression of the injured in case he is in senses. Identification marks of Mst. Khurshidan Bibi, however, I have not mentioned the name under these identification marks.
She was not admitted in hospital. In strict sense injury No,3 is not an injury. Injuries Nos.1 and 2 may be the result of friendly hand. Mst. Khurshidan Bibi was not personally known to me. I did not demand her identity card at the time of her examination. I cannot say any other women was produced instead of Mst. Khurshidan Bibi accused. However, the possibility is there.
On Court question.
' Mst. Khurshidan Alibi was accompanied by her husband accused Nazir Ahmad. Marks of Identification are mentioned about the injured or and examinee.
9. The statement of lady Doctor Qaisra Nazli D.W.1 shows that one injury is on the head of Mst.
Khurshidan Bibi and the other is on her thigh. These two injuries were suppressed by the prosecution. Moreover, she was on her family way. Appellant while replying to question No,7 had answered in the following terms which I mention below:-- Q.No,7. Why the P.Ws. Have deposed against you and why this case against you and your co- accused?
Ans. The case is false. The complainant fabricated a case against me and my wife Khurshidan Bibi in connivance with the police and got ,us falsely challaned. The P.Ws. Have deposed falsely because of enmity.
"The actual facts are that on the day of occurrence I was digging the foundation with a kassi some time before 12.00 Noon, in my Ihata. My wife Mst. Khurshidan Bibi was helping me in the digging of the foundation of wall in my Ihata which was in my possession and in the mean time Mst. Lnayatan deceased and Manzooran P.W., while armed with sotas, criminally trespassed into our Ihata and asked me and my wife that we should not dig the foundation and on our refusal Mst. Inayatan and Manzooran mentioned above injured my wife Khurshidan Bibi by giving Sota blows on her person. I tried to save my wife Khurshidan Bibi upon which a struggle took place between me, Inayatan deceased, and Manzooran. P.W.1 gave pushes to Mst. Inayatan deceased and Manzooran P.W. In order to save the life of any wife and as a result of which Mst. Inayatan fell on the Kassi which was lying there with its blade upwards and Mst. Manzooran P.W. Fell on a brick which was lying there.
The Ihata was in our possession. None else was present there.'
10. The defence taken by the appellant in his statement under section 342, Cr.P.C. Mentioned above is also not plausible to reason and is an absurd one. In fact, both the parties did not approach the learned trial Court with clean hands. Both of them have suppressed their actual roles. The occurrence had taken place in the land where "Dera" of Nazir Ahmad appellant was present. On the other hand, the below which was on thigh of the deceased given by the appellant also proved fatal. In this regard, statement of Dr. Hafeez Ullah, M.O., who conducted the postmortem examination on the body of Mst. Inayatan Bibi deceased on 10-6-1994 and found the following injuries on her person, which is reproduced below:-- "(1) A stitched wound 6 c.m. On poplitial foosa of the left leg (left knee joint). On dissection it was seen all the under lying blood vessels were cut on left poplitial fossa. No fracture of any bone was seen.
' Note: Shalwar was also cut according to injury No,l.
' Thorax: All the viscras were healthy and the heart was found empty.
' Abdomen: All the abdominal contents were found healthy, stomach and its contents were containing semi-digested food which were not identified. Bladder was containing 100 CC Urine.
' While doing external as well as internal post-mortem I was of the opinion that injury No,1 was sufficient to cause death in ordinary course of nature. Cause of death was due to haemorrhage and shock. This injury was ante-mortem and caused with sharp-edged weapon. The probable time between injuries and death was about 2 to 3 hours and that between death and post-mortem was about 18 to 20 hours.
' After the post-mortem examination, I handed over a well-stitched dead body, last worn clothes of the deceased, police paper' and carbon copy of post-mortem report to Nazir Ahmad constable
375. Exh.PJ is the correct carbon copy of my postmortem report which is in my hand and signed by me. Exh.PJ/1 is the skiagram showing the seat of injury which is also in my hand, signed and bears my seal.
' Injury statement Exh.PK was also signed and sealed by me. Inquest report Exh.PL was also sealed and signed by me." x x x By the learned defence counsel.
' It is correct, in Exh.PJ, in the column of death, the time of death is given by me as 12.30 noon and the date is 9-6-1994. (Volunteered it was according to police papers). It is correct that seat of injury No,1 is on fleshy part of the body. It is correct that there was no cut of any bone. It is possible that if anybody falls on a kassi having its sharp side upward then such like injury may be caused. It is possible that the deceased might have received injury No,1 in such like manner (Volunteered that the cut of the Shalwar should also be considered).
11. The opinion of the doctor shows that the injury received by the deceased proved fatal. I have to put both the versions in juxtaposition. As I have held earlier that both of them have not approached the learned trial Court with clean hands. Furthermore, prosecution has suppressed the injuries on the person of Mst. Khurshidan Bibi wife of the appellant and acquitted co-accused. Therefore, the conviction of the appellant is altered from section 302-B, P.P.C. To section 302-C, P.P.C. And the sentence of life imprisonment is reduced to 10 years R.I. As the appellant has exceeded from his right of self-defence so compensation under section 544-A, Cr.P.C. Of Rs,10,000 is maintained.
Benefit of section 382-B, Cr.P.C. Is also maintained. The revision petition filed by complainant Sardar Muhammad for the enhancement of sentence of the appellant is dismissed. With these observations, this appeal stands disposed of.