FALAK SHER, J.- Appellants Mukhtar Ahmad alias Pappu (25) and his brother Zaheer Ahmad (17), since dead, having been arraigned conjunctively with their father and brother Muhammad Yousaf and Hamayun respectively for the murder of Mst. Sarnia (18) and murderously assaulting her brother Shahid Hussain culminated into their conviction and sentence under Section 302 PPC to imprisonment for life with a fine of Rs.20,000/- or in default to suffer 2 years' R.I. In addition to paying Rs.10,000/- compensation to legal heirs of the deceased or in default whereof to further undergo 6 months' R.I. (ought to have been S.I.) under Section 544-A of the Cr.P.C.; and under Section 307 PPC to 10 years' R.I. With a fine of Rs.10,000/- or in default to serve another term of 1 year's R.I. Respectively availing the benefit contemplated by Section 382-B Cr.P.C, acquitting the co- accused granting them the benefit of doubt by the learned Sessions Judge Sialkot vide the impugned judgment dated 26.9.1988 out of which the captioned Criminal Appeal No. 1144 of 1988 and the Crl. Revision No. 75 of 1989 tending to assail legality of the appellants' conviction and seeking enhancement of the awarded sentence and the quantum of compensation respectively have stemmed of and are disposed of together herein below.
2. Zahid Hussain PW-9 resident of village Propi Araian, trading in surgical equipment, brother of the deceased and the injured on 19.2.1988 at 6.25 p.m. Got his statement Ex.PN recorded with Ata Ullah, S.I. PW-13 at Chowk Kotli Loharan on the basis whereof formal FIR Ex.PN/1 was registered by Akhtar Hussain ASI PW-11 at Police Station Kotli Loharan at 6.30 p.m.
3. Alleging that on 16.2.1988 his brother Shahid Hussain PW-10 was beaten up by the appellant Mukhtar alias Pappu wherefrom he was disengaged by Falak Sher PW-4/CW 2 a local Dispenser, factum whereof he was apprised of in the evening upon reaching his place of abode protest concerning which was lodged with Mukhtar alias Pappu appellant on the day of occurrence around 3 p.m. Coming across him enroute to his house after offering Juma prayers who got entangled with him from whose hands he was rescued by his paternal uncle Muzammil Hussain ushering him in his place of abode while Mukhtar Ahmed went to his house across the street and conspiring with the co-appellant and the acquitted co-accused went to their roof-top by which time the complainant alongwith his paternal uncle Muzammil Hussain, sister Mst. Samia Akhtar deceased, Khalid Aziz maternal cousin got settled in the. Courtyard and were exposed to the brick batting of the former, for seeking refuge therefrom they rushed to the living quarters during the course whereof Mukhtar alias Pappu hurled a brick landing in the middle of his sister Mst. Samia Akhtar deceased's head as a result whereof she collapsed on the ground out of whose mouth and nose blood started oozing. At which juncture his brother Shahid Hussain PW-10 attracted to their hue and cry came over and upon being spotted the acquitted co-accused Muhammad Yousaf exhorted his accomplices to do away with him; whereupon they poured into the street amongst whom Mukhtar alias Pappu was equipped with an- ice-pick, Zaheer a screw driver and Yousaf Kandi (tool of masonry) Hamayun brick bats. Responding to the latter's exhortation Mukhtar alias Pappu plunged the ice-pick into Shahid Hussain's abdomen on the left side, to whom Zaheer Ahmed supplemented screw driver injury on the same place and Yousaf Kandi blow on the forehead who started bleeding from the abdomen, To whose rescue the complainant alongwith his above- named maternal cousin Khalid Aziz endeavoured to interject buffered scared of by Mukhtar alias Pappu extending exterminating threats whereafter, the deceased then in injured condition alongwith Shahid Hussain P.W. 10 were removed to Civil Hospital Sialkot from where the former was referred to Lahore General Hospital where she eventually succumbed to the injury.
4. Ata Ullah, S.I. PW-13 after recording the complaint proceeded to the Civil Hospital and vide memorandum Ex.PG ascertained from the doctor as to whether Shahid Hussain P.W. 10 was in a fit condition to make statement which was opined in the negative vide endorsement Ex.PG/1, whereafter he left for the spot and collected blood-stained earth from the deceased' place situated within her Courtyard and that of the injured from the street vide memos. Ex.PB and PC respectively as well as blood-stained brick which caused fatal injury to the deceased (not marked) vide memo. Ex.PD attested by Muhammad Nawaz PW-2, Faisal Jamil given up and the I.O. PW-13, on 20.2.1988 upon expiry of the deceased in Lahore General Hospital prepared her inquest report Ex.PT, injury statement Ex.PU; secured into possession her last worn blood-stained clothes Chaddar PI, Shalwar P2, shirt P3, brassiere P4 vide memo. Ex.PA tendered by Muhammad latif FC PW- 1 as well as the blood-stained clothes of Shahid Hussain PW-10 shirt P8, vest P9, Shalwar P 10, under-wear P.11 Jersy P.12 tendered by the complainant, taken possession of vide memo. Ex.PO; got site plan Ex.PJ prepared from Akhtar Naqash draftsman PW-7; on 24.2.1988 arrested the appellants as well as the acquitted co- accused amongst whom a day later i.e. 26.2.1988 Yousaf led to the recovery of Kandi P5, Zaheer Ahmad blood-stained screw driver P.6 and Mukhtar alias Pappu blood-stained ice-pick P7 from their house taken possession of vide memo. Ex.PK. PL and p.m. Respectively attested by Abdul Ghaffar PW-8, Haji Basharat Ali given up and the I.O; upon question asserted that Zaheer Ahmad appellant had suffered injuries during the course of event qua which no explanation was offered by the PWs.
5. Dr. Arif Mahmood PW-5 then Medical Officer Allama laqbal Memorial Hospital Sialkot on 19.2.1988 at 4.05 p.m. Examined Mst. Sarnia Akhtar the deceased having been brought in unconscious condition bv the complainant noticing the following vide medicio legal report Ex. PE.
"(1). Lacerated wound 1.5 cm x 0.5 cm x muscle deep on the right side of the forehead close to hair line.
(2) . A lacerated wound 0.5 cm x 0.5 cm x depth not probed on the left lumber region anteriorly.
(3) . A lacerated wound 0.5 cm x 0.5 cm x depth hot probed, on the left hypochondrium anteriorly." of blunt weapon; injuries Nos. 2 and 3 bore corresponding cuts in the vest and shirt and were kept under observation and referred to the visiting Surgeon. Responding to query opined that injury No. 1 of the latter could be result of a fall on a hard substance and injuries Nos.2 and 3 could be of the same weapon.
6. Dr. Khalid Mahmood PW-6 Medical Officer Rural Health Centre Kotli Loharan acclaimed to have examined Zaheer Ahmad appellant on 28.2.1988 at 9.15 a.m. Observing the following injuries vide medico-legal report Ex.PG:- "(1) Lacerated wound about 3 cm in length with closed edges. The wound was covered with scab, scab was of dark and red colour. This injury was on right side of parietal region of skull but due to mis-treatment I could not write the seat of the injury in the MLR.
(2) A lacerated wound about 1.5 cm in length with irregular edges and gap between edges was covered and filled with clotted blood. This injury was on left side of parietal area of the skull but in MLR No. 14/88-K, due to mistake I could not write the seat of the injury."
Both simple of blunt weapon and 8 to 10 days' duration (Seat of the injuries did not find mention in the Medico Legal report.)
7. Dr. Ijaz Ahmad Chatha PW-14 Surgeon Allama Iqbal Memorial Hospital Sialkot vouched to have operated upon Shahid Hussain injured PW-10 on 19.2.1988 who upon resummoning as CW-1 replying to Court question explained that two abdominal injuries were serious punctured wounds with perforation noted in the stomach at the anterior and posterior end as well as not the first part of the duodenum and guall bladder of pointed weapon origin and, during cross- examination stated that it could be a pointed sharp and blunt pointed weapon.
Cm to the left of midline and 7 era behind left eye-brow with .a boggy swelling 12 x 10 cm around it.
The seat of injury corresponds to injury No. 1 of MLR No. 217/88 of Allama Iqbal Memorial Hospital, Sialkot, dated 19.2.1988."
A large haematoma was present in and under the scalp with extensive bruising of the scalp; a long fracture line was running from left temporal bone in the middle cranial fossa through left parietal bone to join coronal sutures which was also widely separated. The fracture line was running across the course of left middle meningeal artery. On opening the skull large extra and subdural haematomas found covering lateral and intro-superior surfaces of both cerebral hemisphere and compressing them. The opined cause of death was injury No. 1 (fracturing skull leading to intra- cranial haemorrhage and damage to the brain), sufficient to cause death in the ordinary course of nature and within 12 to 20 hours the post-mortem was conducted. Replying to Court question affirmed the possibility of the injury having been caused by the assailant throwing brick from a higher level.
9. Zahid Hussain complainant PW-9 testifying the prosecution story explained that they were sitting on a cot in the Courtyard of their house 15/20 feet away from its main entrance while the deceased was standing nearby; upon hurling of brick bats they rushed to the room to seek shelter during the course whereof the deceased received the fatal brick blow vehemently refuting the suggested defence version by Zaheer appellant.
10. Shahid Hussain PW-10 corroborating the complainant deposed to the motive incident as well as the main occurrence.
11. Falak Sher PW-4 concerning the motive' incident stated that on 16.2.1988 he was attending to his dispensary where Shahid Hussain PW-10 came over and while they were engaged in a discourse a beggar came by a solicited alms to which they objected keeping in view his healthy physique at which juncture Mukhtar Ahmad alias Pappu showed up and got entangled with Shahid Hussain taking exception to the reprimand administered to the beggar whereupon he disengaged them; however on resummoning as CW 2 explained that the two did not come in physical contact with each other rather had only exchanged hot words and abuses.
12. Mukhtar Ahmad alias Pappu recording his statement contemplated by Section 342 Cr.P.C, entered the plea of denial and false involvement opting not to depose on oath in terms of Section 340 (2) ibid to whom the acquitted co-accused also joined.
13. While Zaheer Ahmad Appellant pleaded self-defence in the following terms:- "The real fact of the matter is that no brick bats were hurled in the Courtyard of the complainant's house by us. I was repairing my cycle in front of my house in the street. Shahid Hussain PW arrived there and cut a dirty joke with me. We exchanged abuses. This attracted the women folk of the two sides who started hurling brick bats in the street on each other. Shahid Hussain PW immediately brought a sota and inflicted two severe blows upon my head. 1 had a screw driver with which 1 was repairing the cycle. I was apprehensive of more harm and danger to my life at the hands of Shahid Hussain. The last resort with me was to repel the attack initiated by Shahid Hussain PW. I acted in the exercise of my private defence. Incidentally during the exchange of brick bats by the women- folk Mst. Sarnia was injured. It could not be ascertained at whose hands she was injured. The occurence had taken place in the street and the complainant side subsequently introduced false facts to throw the entire blame upon us. My father and my brothers were not present in the house at the relevant time of occurrence."
14. Whereupon he verdict under appeal was returned legality whereof has been assailed by the learned counsel for the appellants submitting that the eyewitnesses being close relations of the deceased suppressing the true facts have maliciously involved the entire family, pressed into sendee the defence version.
15. Having perused the entire evidence with the assistance of the learned counsel for the appellant we are not persuaded by the contentions urged of the admitted occurrence because presence of the complainant Zahid Hussain PW-9 as well as that of Shahid Hussain injured PW-10 at the time and venue of occurrence being the Courtyard of the deceased and the complainants home is unexceptionable specially the latter with stamped injuries on his person.
16. Thus visualizing the defence plea in juxta-position to that of the prosecution story the former seems to be utterly improbable because recovery of blood-stained earth from the deceased's Courtyard where she suffered the fatal brick blow having established the venue beyond question patently repels the same; further dimension of the injuries noticed on Shahid Hussain PW-10's person demonstrates it to be of spindle shape weapon i.e. Ice-pick and not of the screw driver; while the one acclaimed to have been suffered by Zaheer Ahmad appellant is a patent concoction for the same having not been noticed by the Investigating Officer at the time of his arrest locale whereof was subsequently interpolated in the medico-legal report Exh.PH by Dr. Khalid M ah mood PW-6 hence is discarded with the contempt it deserves.
17. Conversely the prosecution story stands proved beyond the realm of doubt by the straight forward confidence inspiring testimony of the complainant and Shahid Hussain injured PW-10 duly corroborated by the medical evidence rendering the appellants' convictions unexceptionable.
18. Resultantly, the appeal qua Mukhtar Ahmad alias Pappu being devoid of any substance fails and is accordingly hereby dismissed, Which stands abated qua Zaheer Ahmad for having passed away.
19. Adverting to the revision it may be observed that apart from the fact that Mukhtar Ahmad alias Pappu caused solitary brick injury to the deceased without any repetition with the lapse of time spread over a decade has earned an expectancy for life, therefore, enhancement of the sentence to capital punishment is not called for.
20. However, keeping in view utter. Scantiness of the fine as well as the compensation that same is allowed enhancing the fine to Rs.50,000/- or in default to suffer 4 years' R.I. Whole of which, in the event of recovery alongwith the decreed compensation be paid as such to the legal heirs of the deceased.