' Instant appeal is directed against the judgment, dated 23-11-1991 passed by Mr. S.M. Elahi, Additional Sessions _ Judge, Lahore, whereby he convicted the appellant under section 302, P.P.C.
And sentenced him to life imprisonment and fine of Rs, 25,000 and further ordered that half of the said amount, if recovered, shall be paid to the legal heirs of the deceased and in default thereof he shall undergo R.I. For one year.
2. Briefly stated the facts are that marriage of sister of Abdul Qaddous son of Abdus Samad was to take place on 16-3-1990. On 15-3-1990 at about 8-00 p.m., a few ladies from the family of in-laws of the sister of Abdul Qaddous came with Mehndi, Abdul Waheed son of Abdul Sattar accused/appellant passed some indecent remarks about them while passing in the street. Upon this, Abdul Qaddous restrained him (Abdul Waheed) which resulted into exchange of hot words between them. However, the matter was patched up. On 18-3-1990 at 5-45 p.m., while Muhammad Saleem complainant along with Abdul Qayyum son of Abdus Samad, Abdul Qaddous and Sohail Butt sons of Muhammad Mehmood were talking standing near the house of Mehr Sharif and Abdul Qaddous son of Abdus Samad was proceeding towards his house, when Abdul Waheed son of Abdul Satar armed with a 7-mm rifle came there and raised Lalkara that he would be taught lesson for insulting him. Abdul Qaddous turned his face and saw towards Abdul Waheed who fired with his rifle hitting Abdul Qaddous on his fore-head, who consequently fell on the ground. The complainant and others tried to catch hold of Abdul Waheed but he succeeded in decamping from there along with his rifle. In the meanwhile, Naseem Akhtar also arrived at the spot and removed Abdul Qaddous to hospital for treatment. However, Abdul Qaddous succumbed to the injuries. Muhammad Saleem complainant thereafter, made for the police station for lodging report but as Abdul Khaliq S.I./S.H.O., (P.W.13) met him oi, the way, so he lodged complaint Exh.P.B., which was read out to him and who signed the same in token of its correctness. He thereafter, sent the F.I.R., to the police station for formal registration of case and proceeded to the place of occurrence and secured blood-stained earth vide memo. Exh.P.C. He also recorded supplementary statement of Muhammad Saleem and prepared the site-plan Exh.P.F. He left for Mayo Hospital along with Muhammad Saleem and Abdul Qayyum where he prepared inquest report Exh.P.G. And statement of injuries Exh.P.H. He forwarded the dead body for post-mortem examination. He arrested the accused on 25-3-1990 who on 30-4-1990 led to the recovery of a .12 bore gun P4 which he took into possession vide Memo. Exh.P.D. And also prepared a map of place of recovery Exh.P.K. On 20-3- 1990, he got the place inspected by draftsman who prepared site-plans Exh.P.E. And P.E./1 and handed over the same to him on 22-3-1990. On 19-3-1990, Muhammad Ashraf F.C. Produced before him last worn clothes of the deceased P1 to P3, which he secured vide Memo. Exh.P.A. He completed the investigation and got the accused challanad.
3. A charge under section 302, P.P.C., was framed against the accused to which he pleaded not guilty and claimed trial.
4. To bring home guilt to the accused/ appellant, prosecution examined P.W.1 Muhammad Akram Head Constable, P.W.2 Muhammad Ashraf F.C., P.W.3 Muhammad Saleem complainant, P.W.4 Abdul Qayyum, P.W.5 Sohail Butt, P.W.6 Muhammad Aslam S.I., P.W.7 Muhammad Ashraf F.C. P.W.8 Abdul Waheed, P.W.9 Muhammad Khalid, P.W.10 Naeem Akhtar, P.W.11 Dr. Farooq Mustafa Alvi, P.W.12 Syed Imran Ali Shah Draftsman and P.W.13 Abdul Khaliq S.I. The learned D.D.A. Produced the report of Chemical Examiner Exh.P.L., report of Serologist P.M., report of fire-arm expert Exh.P.N. And closed prosecution evidence vide his statement, dated 15-7-1991.
5. When examined under section 342, Cr.P.C., the accused/appellant denied the prosecution version and stated that he had been implicated in this case falsely. He examined Muhammad Inayat S.I. As D.W.1 and thereafter, closed his defence evidence vide his statement, dated 5-10-1991.
6. After going through the evidence produced by the parties, the learned Trial Court convicted the appellant vide judgment under appeal.
7. Along with this appeal, Criminal Revision No,4 of 1992 has also been filed for the enhancement of the sentence awarded to the appellant. As both the appeal and criminal revision arise out of the same judgment, so these are being disposed of by this single judgment.
8. Arguments have been heard and record perused.
9. It is submitted by learned counsel for the accused/appellant that ocular evidence stands falsified/contradicted by medical evidence, as according to the prosecution version contained in the complaint Exh.P.B., the deceased was given a fire shot on his forehead whereas according to the medical evidence of P.W.1 Dr. Farooq Mustafa Alvi, the injury has been found to be on the back side of the head. He submits that this contradiction in the ocular evidence clearly belies and proves that neither the complainant was present on the spot nor the alleged eyewitnesses. He further submits that as per prosecution version, the accused/appellant was carrying a 7-mm rifle at the relevant time whereas the complainant improved his stand in his supplementary statement and stated that the accused/appellant was carrying a .12 bore gun, that even the inquest report Exh.P.G.
Also shows that fire-arm used is 7-mm rifle, that all these contradictions make the prosecution case highly doubtful. He argued that in case of conflict between medical evidence and ocular evidence, medical evidence is to be preferred over ocular evidence and placed reliance upon Muhammad Iqbal and Bashir Ahmad v. The State (1978 PCr.LJ 670), Muhammad Hassan v. The State (PLD 1982 Lah.577), Nawaz Ali and another v. The State (1981 SCM R 132), Mehboob-ur-Rehman v. The State (1996 PCr.LJ 238) and Shamas Ejaz v. The State (1997 PCr.LJ 2144). He further argued that prosecution has examined P.W.4 Abdul Qayyum and P.W.5 Sohail Butt, out of whom former is brother of the deceased whereas the latter is his brother-in-law, that both these P.Ws., are related inter se as well as to the deceased, that even the complainant (P.W.3) is a friend of the deceased, that as such prosecution evidence consists of related and interested witnesses and as such lacks independent corroboration. He, thus, submitted that prosecution has failed to prove its case beyond doubt, as such appeal may be accepted and appellant be acquitted.
10. Conversely, the impugned judgment has been supported by learned counsel for the State. He contended that occurrence took place at about 5-45 p.m. And report was lodged at 7-30 p.m. So this promptness in lodging the F.I.R., rules out any possibility of false involvement. He further contended that P.Ws. 3 to 5 are natural witnesses of the occurrence and their testimony has stood the test of cross-examination and as such Trial Court has rightly relied upon their testimony. He next argued that evidence of a witness cannot be rejected outright because it conflicts with medical evidence on one point, as the safest rule in the appraisement of evidence is the rule of "careful analysis" by sifting the grain from the chaff, accepting what is true and rejecting what is untrue, on an overall appreciation of the entire evidence in the case. He next canvassed that the occurrence had taken place during the day light and there being single accused, question of false involvement and of substitution does not arise. He further contended that as the accused/appellant had committed the murder of a young boy in a callous manner, so there was no mitigating circumstances to award lesser punishment and prayed that by accepting revision petition, punishment awarded may be enhanced to capital punishment.
11. In order to appreciate the arguments of learned counsel for the parties, perusal of injuries sustained by the deceased and observation of Dr. Farooq Mustafa Alvi (P.W.11) is necessary. As per post-mortem examination report Exh.P.D., the deceased had received the following injuries: Injury No,1-A: Fire-arm wound of entry, star shape 5 x 6 c.m. Back of the head and the brain matter was coming out, and was 10 c.m. From left ear and 11 c.m. From right ear and 3 c.m. To the left occiput. The inner edges of the wound were burnt.
Injury No,1-B: Fire-arm wound of exit 2.5 x 1 c.m. Oval shape on front of left side of the forehead, just above the left eye-brow 3 c.m. To the left of mid line and 3 c.m. From outer angle of left eye.
Injury No,1-C: Fire-arm wound of exit 2 x 0.5 c.m. On right side of forehead just above the right eye- brow, 2 c.m. To lie right of mid line and 7 c.m. From the outer angle of right eye.
On Exploration: ' Projectile after entering the scalp made hole in the skull bone. All the bones of the skull were fractured. On removing skull cap, meninges were torn and grey matter was coming out and out of multiple opacities 4 metalic pieces and plastic wads were recovered, sealed, signed and handed over to the police as case property.
' After removing the brain matter multiple fracture present on the face present and both jaws.
Injury No,2: ' Lacerated wound 2 x 1 c.m. On medial angle of right eye and was skin deep.
Injury No,3: ' Lacerated wound 1.5 x 0.2 c.m. Obliquely placed on medial angle of left eye and was skin deep.
Injury No,4: ' There was an abrasion 2 x 1.5 c.m. On front of left knee joint.
' According to Medical Officer, injuries Nos.1-A, 1-B and 1-C were caused by firearm while injuries Nos.2, 3 and 4 were caused by blunt weapons. Cause of death was injuries Nos.1-A, 1-B and 1-C causing injuries to the skull and brain leading to coma and death. Probable time between injuries and death was immediate whereas between death and post-mortem examination was within 24 hours.
12. There is no doubt that in the first instance the complainant Muhammad Saleem (P.W.3) stated that the deceased had received a fire shot on his forehead and the weapon used was a 7-mm rifle.
However, he recorded supplementary statement wherein he stated that 7-mm rifle be corrected as .12 bore gun. A perusal of injuries Nos.1-A, 1-B and 1-C clearly shows that the complainant was justified in stating that the deceased had received injury on his forehead and he had seen the brain matter coming out and blood oozing out from the forehead of the deceased. Again it has come on record that the accused/appellant had raised Lalkra and when the deceased turned his face to see, as to how far his assailant was, he (deceased) was given a fire-arm injury. This being the position of deceased to the time of incident, the complainant was justified in stating in complaint Exh.P.B. That the deceased had been given a fire-arm injury on his forehead. Thus, the discrepancy in the locale of injury is immaterial and does not advance the case of the defence in any way. Similar is the case in respect of nature of weapon which was initially described as 7-mm rifle and was later on corrected as 12 bore gun. The mere fact that the said discrepancy appears between ocular evidence and medical evidence does not mean that statements of witnesses be rejected out rightly. The safest rule in the appraisement of evidence is the rule of "careful analysis" by sifting the grain from the chaff accepting what is true and rejecting what is untrue, on an overall appreciation of the entire evidence adduced in the case. Thus, the discrepancies referred above are not of that magnitude which makes the statements of P.Ws. 1 to 3 untrustworthy, as none of the said P.Ws. Has got any animosity to depose against the accused/appellant falsely. It may also be mentioned here that P.W.4 Abdul Qayyum is brother of the deceased whereas P.W.5 Sohail Butt is brother-in-law of the deceased. Both the said P.Ws., no doubt, are related inter se as well as to the deceased, yet their presence on the spot is natural and stands established from a lengthy cross- examination to which all of them were subjected by the learned defence counsel. It is also fact that occurrence took place at 5-45 p.m. And the F.I.R. Was lodged at 7-30 p.m. And this promptness in the registration of case rules out any possibility of false involvement. Again it does not stand to reason as to why a real brother and a brother-in-law would leave the real culprit and falsely involve or substitute another person. Thus, I am convinced that the complainant as well as P.Ws. 4 and 5 have given a true version of the occurrence and their statements have rightly been believed by the learned trial Judge.
13. The upshot of the above discussion is that the impugned judgment has been passed in accordance with law. Consequently, the appeal fails and is hereby dismissed. However, the appellant is granted the benefit of section 382-B, Cr.P.C.
14. With the dismissal of the appeal, the revision petition fails and is also dismissed.