' MUHAMMAD NAWAZ ABBASI, J.--- Tahir Mahmood son of Mahmood Ahmad aged 28.Years alongwith Mahmood Ahmad and Fayyaz Ahmad was tried by the learned Additional Sessions Judge, Jhelum, in a case under section 302/34, P.P.C. Registered through F.I.R. No,144, dated 17-8- 1993 at Police Station Jhelum Saddar, for the charge of committing the murder of Muhammad Farooq deceased at 10-30 a.m. On 17-8-1993 near Octroi Post No,12 in the area of Police Station Saddar Jhelum. The trial Court having found the appellant guilty of the charge through judgment, dated 19-4-1994 convicted him under section 302(b), P.P.C. And sentenced him to death and also directed him to pay Rs,50,000 as compensation to the legal heirs of the deceased and in case of default in the payment of compensation to undergo S.I. For six months. The co-accused of the appellant namely Mahmood Ahmad and Fayyaz Ahmad having given the benefit of doubt were acquitted from the charge.
2. The learned trial Judge has sent the Murder Reference No,106 of 1994 under section 374, Cr.P.C.
For confirmation of death sentence. The appellant through Criminal Appeal No,56 of 1994 has challenged the conviction and sentence awarded to him by the learned trial Court whereas the complainant Abdul Ghafoor has filed Criminal Revision No,54 of 1994 for setting aside the acquittal of Mahmood Ahmad and Fayyaz Ahmad son of Muhammad Hussain which was ordered to be heard alongwith the criminal appeal without issue of notice to the acquitted accused.
3. The case was registered at Police Station Saddar Jhelum through F.I.R. Exh.P.B. On the basis of a complaint Exh.P.F. Lodged by Abdul Ghafoor P.W.10 at 12-30 p.m. On the day of occurrence. The facts briefly as stated in the complaint are that. Muhammad Farooq the deceased brother of the complainant used to play Hi-Ace from Jhelum to Rawalpindi and were residing with his family at Azeem Road, Kala Gujraan. During the preceding night of the day of occurrence, the deceased alongwith his wife and children visited the house of the complainant and at about 10-45 p.m. He alongwith his family left for his house and while he was in his way to his house Fayyaz Ahmad alongwith 2-3 boys threw torch light at the vehicle of the deceased who felt insulted and after dropping his wife and children at home came back to that place and inquired from Fayyaz Ahmad etc. As to why they threw torch light on his vehicle which led to an exchange of hot words and abuses between the deceased and Fayyaz Ahmad. However, on the intervention of Muhammad Suleman and Muhammad Sultan P.Ws. Who arrived there, the matter was patched up. Fayyaz Ahmad while extending threats to teach a lesson to Muhammad Farooq left for his house and on the day of occurrence when the deceased was passing through the Octroi Post No,12 at 10-00 a.m.,.
The accused confronted him Mahmood Ahmad and Fayyaz Ahmad allegedly caught the deceased from his hands while Tahir Mahmood appellant armed with a Chhuri inflicted a blow on the neck of the deceased, who was immediately taken to the hospital but he succumbed to the injury. Muhammad Aleem and Muhammad Iqbal P.Ws. Also witnessed the occurrence.
4. The complaint Exh.P.A. Was prepared on the statement of Abdul Ghafoor, the first informant, at Jadda Chowk at about 11-30 a.m. On 17-8-1993 which was sent to the police station on the basis of which F.I.R. Exh.P.A./1 was chalked out. Muhammad Asghar, S.-I. Proceeded to the hospital and found the dead body of Muhammad Farooq lying in D.H.Q. Hospital, Jhelum, where he after preparing injury statement Exh.P.H. And inquest report Exh.P.J. Sent the dead body to the mortuary for post-mortem examination under the escort of Muhammad Afzal Constable. The S.-I. After recording the statement of Muhammad Suleman, Muhammad Aleem and Muhammad Iqbal P.Ws.
In the hospital proceeded to the place of occurrence and during the spot inspection, he secured blood-stained concrete through memo. Exh.P.C. From the spot. Later, he took into possession the last-worn clothes of the deceased through memo. Exh.P.A., on production of the same by Muhammad Afzal Constable. He arrested Tahir Mahmood appellant and Mahmood Ahmad, acquitted accused, on 21-8-1993. Tahir Mahmood appellant being injured was medically examined from D.H.Q. Hospital, Jhelum, who on 25-8-1993 led to the recovery of blood-stained Chhuri from underneath the Pulli of railway track. The Investigating Officer took into possession Chhuri through memo. Exh.P.E. And recorded the statements of the recovery witnesses and handed over Chhuri, the weapon of offence, to the Moharrir of the police station. After completion of formal investigation, the Investigating Officer having found all the three accused involved in the case challaned them to face the trial.
5. The post-mortem examination of the deceased was conducted by P.W.7 Dr. Zubair Khurshid, Medical Officer, D.H.Q. Hospital, Jhelum, on 17-8-1993 at 4-00 p.m. Who found the following injury on the dead body:-- "An incised wound measuring 7 c.m. x 3 c.m. Into cavity deep on right side of base of neck. Wound is 2 c.m. Lateral to the medial end of right clavicle, half above and half below clavicle extending vertically."
' The doctor opined that the death was the result of the above injury, which was sufficient to cause death in the ordinary course of nature.
6. In addition to the Medical Officer and the formal witnesses, the prosecution produced Muhammad Saleem P.W.10 and Abdul Ghafoor P.W.11 as eye-witnesses of the occurrence.
Muhammad Asghar, S.-I. Has investigated the case whereas Sultan Mahmood P.W.8 furnished the evidence of motive and Muhammad Akram P.W.9 has witnessed the recovery of weapons of offence. Sultan Mahmood P.W.8 deposed that on 16-8-1993 at about 10-30 p.m. The deceased exchanged hot words with Fayyaz and his co-accused and lodged complaint to them as to why they threw torch light on his vehicle when he was going with his wife and children and that he with Muhammad Suleman on arrival got the matter patched up but Muhammad Fayyaz left that place extending threats to teach a lesson to the deceased. Muhammad Hanif P.W.10 and Abdul Ghafoor P.W.11 are the eye-witnesses of the occurrence who have stated that the deceased while proceeding towards Chak Jamal was attacked by the accused near the octroi post. Mahmood Ahmad acquitted accused caught hold of him whereas Tahir Mahmood appellant being armed with a Chhuri inflicted a Chhuri blow on his neck. The witnesses claiming their presence at a short distance from the place of occurrence have narrated the occurrence and further corroborated each other on all material facts.
7. The accused in their statements under section 342, Cr.P.C. While denying the charge pleaded innocence and claimed false implication. However, Tahir Mahmood appellant while raising of plea of self-defence stated as under:- "The fact is that in the evening prior to the day of occurrence, while Fayyaz Ahmad accused was sitting at the said Octroi Post, the wagon of the deceased was halted by the employees of the Octroi Post for toll tax. The deceased thought that it was Fayyaz Ahmad accused who halted the wagon and thus, he was annoyed and due to his rage in mind, he wanted to teach a lesson to Fayyaz Ahmad accused. On the day of occurrence, the deceased alongwith an unknown hired person came to the house of Mahmood Ahmad, brother of said Fayyaz Ahmad to assault him with criminal motive. The deceased was armed with a Danda and the unknown person was having a Chhuri in his hand. The deceased called out Fayyaz Ahmad accused from the house of Mahmood Ahmad, but he was not present there. Mahmood Ahmad, the owner of the house was also not present there. I was present in my house. I was called by the deceased. I came out of the house and told the deceased that Fayyaz Ahmad accused was not residing there. At this, the deceased began to abuse all my family members and insisted to see Fayyaz Ahmad, co-accused at any rate. I once again told him that Fayyaz Ahmad was not there. So, the deceased should not stay there or abuse my family members, but the deceased and the unknown person assaulted me. The deceased gave me Danda blows and tried to throw me on the ground while the unknown hired person attacked me with Chhuri. I somehow snatched the Chhuri from the unknown person and used it in self-defence to ward off the assailants and in this transaction the deceased was injured and the unknown person ran away who I could not identify."
8. The appellant at the time of arrest was found injured, therefore, he was got medically examined by Dr. Qamar Zia, Medical Officer, who found the following injuries on his person and appeared as D.W.1 at the trial:-
(i) A healing black coloured abrasion 1/4 x 1/4 c.m. On the outer aspect of right little finger at approximate interphalngeal joint. The joint was swollen. The movement were limited and painful at proximal interphalngeal joint. X-Ray was advised.
(ii) The patient was complaining of pain at lower third of the left forearm. He wrapped the forearm with crape bandage. The impressions of crape bandage were present on the forearm. The movement of the said forearm were painful but in full range. X-Ray was advised.
(iii) A healing abrasion with scab of 1/2 x 1/4 c.m. Present on the back of proximal interphaingeal joint of right index finger. Movement was normal at the time.
(iv) A healing abrasion with scabs 1/4 -x 1/4 c.m. On the back of proximal interphalngeal joint of right middle finger.
10. Learned counsel for the appellant contended that the motive set up by the prosecution is not proved beyond doubt as Sultan Mahmood P.W., who claimed to have witnessed the quarrel between the deceased and the accused was not a witness of the incident of throwing the torch light by Fayyaz Ahmad etc. On the vehicle of the deceased and further Tahir Mahmood appellant was neither present at the time when torch light was thrown on the vehicle of the deceased nor at the time of quarrel between the deceased and Fayyaz etc. At 10-30 p.m. On the same night, therefore, the alleged motive could not be pleaded against Tahir Mahmood. Learned counsel questioning the presence of Muhammad Aleem, a shop-keeper at the spot at the time of fateful occurrence argued that no shop in front of the Octroi Post No,12 was shown in the site plan which would show that there was no shop and the claim of the witness that he being in occupation of the shop of which the rent was being paid by Muhammad Iqbal was present was negated. He added that Muhammad Iqbal was not produced in corroboration thereto and thus, Muhammad Aleem who was neither an owner of the shop nor was a tenant would not be supposed to be present near the place of occurrence. It was next argued that the age of injuries on the person of the appellant was found as 4 to 8 hours at the time of his medical examination on 22-8-1993 and thus, in the light of the first version given by the appellant at the time of his arrest to the Investigating Officer that he sustained the injuries while putting resistance during the occurrence at the hands of the deceased stood proved. It was emphasized that the deceased after receipt of the injury on the neck would not be in a position to cause injury to the appellant, therefore, it can safely be concluded that the deceased being aggressive while armed with Danda attacked on the appellant who in exercise of his right of self-defence inflicted a single Chhuri blow to the deceased, who being resident of a place at a distance of 3 to 4 furlongs from the place of occurrence having come to the place of occurrence invited the trouble. In nutshell, the contention of the learned counsel was that while putting the defence version in juxtaposition to the prosecution case, it would be established beyond doubt that the appellant in the exercise of right of private defence caused a single injury to the deceased and that in any case, the occurrence being the result of sudden.Quarrel would not fall within the ambit of clause (b) of section 302, P.P.C.
11. Learned counsel representing the complainant in Criminal Revision No,54 of 1994 conversely argued that the appellant while armed with Chhuri inflicted an injury on the most sensitive part of the body of the deceased whereas the injuries on his person being on the non-vital part of the body could be the result of resistance of the deceased, therefore, no presumption of self-defence can be raised with an inference that the appellant sustained injuries while snatching Chhuri from an unknown companion of the deceased and was used in self-protection. The learned counsel contended that notwithstanding the sustaining of injuries by the appellant at the fingers of the hand, the charge of committing the murder of Muhammad Farooq deceased is proved against him beyond doubt through the evidence brought on record.
12. Learned Assistant Advocate-General argued that the prosecution version is also supported by the defence version as the appellant did not sustain any injury with Chhuri and the injuries allegedly caused to him by the deceased with Danda on the hands would not be as such an evidence of aggression of deceased.
13. We have heard the learned counsel for the parties at length and perused the record with their assistance. Since the occurrence in the present case is admitted and the material facts including the use of Chhuri as weapon of offence are not disputed, therefore, the controversy is confined only to the extent of truthfulness of the prosecution story or defence version. According to the defence version, the deceased had appeared at the scene of occurrence with the intention to cause injuries to the accused whereas according to the prosecution, the appellant having nursed a grudge against the deceased for exchange of hot words with Fayyaz Ahmad, his uncle attacked on the deceased. The parties were not previously inimical to each other and the fateful occurrence was the result of exchange of hot words by the deceased with Fayyaz Ahmad (acquitted accused), uncle of the appellant, on the issue of throwing torch light by Fayyaz Ahmad on the vehicle of the deceased, who alongwith his wife and children was going to his house. Sultan Mahmood P.W.8 undoubtedly did not witness the occurrence of throwing the light of torch by Fayyaz Ahmad on the deceased, but he was the witness of quarrel between the deceased and Fayyaz Ahmad shortly after the incident of throwing torch light on the vehicle of the deceased, therefore, the grudge of the accused due to the said incident was in the knowledge of Sultan Mahmood. Muhammad Aleem P.W.10 and Abdul Ghafoor P.W.11 have stated that the parents and sister of the deceased were residing in the adjoining house of the appellant and that on the fateful day, when the deceased after visiting his parents came out of their house was attacked by the accused in front of Octroi Post No,12 and although this fact is not mentioned in the F.I.R. But the place of occurrence being on the road in front of Octroi Post No,12, therefore, the arrival of deceased at the spot either from his own house or from the house of his parents was not material. The deceased sustained an injury at the hand of the appellant in front of Octroi Post No,12 opposite to the shop being run by Muhammad Aleem and his presence at the shop cannot be disbelieved for the mere reason that the rent of the said shop was being paid by Muhammad Iqbal, a given up witness. The defence has not been able to dislodge the claim of Muhammad Aleem of his presence at the shop in his occupation near the place of occurrence which has also been shown in the site-plan and since the occurrence took place in the daylight at 10-30 a.m., therefore, the presence of Muhammad Aleem at his shop was natural.
14. The examination of the evidence would show that the occurrence took place at the public place on the Pacca road near the house of the accused leading to the house of the parents of the deceased as well as his own house, therefore, the presence of the deceased on the road was neither objectionable nor the appellant could take benefit of being resident of the locality. The parties had no background of previous enmity and the independent of witnesses due to relationship is not questionable on the basis of minor discrepancies and contradictions. The injuries on the person of the deceased would not negate the evidence of natural eye-witnesses but the prior knowledge of the appellant regarding presence of the deceased near the place of occurrence being not established, it can be visualized that it was a chance encounter and the appellant having grudge in his mind for the last day's incident in which the deceased insulted his real uncle Fayyaz Ahmad decided to settle the account with the deceased. The appellant being the resident of a place near the Octroi, his presence at the Octroi would not be unnatural, and therefore, notwithstanding the fact that he was armed with Chhuri, still the element of premeditation was missing. The circumstances under which the occurrence had taken place would show that the appellant while suddenly confronting the deceased flared up and while picking up a quarrel with him inflicted a Chhuri blow on the most sensitive part of the body of the deceased, which proved fatal, therefore, the defence version having no plausibility was bound to exclude from consideration by the learned trial Court. We find that it was a chance encounter in which the appellant caused a single blow with Chhuri to the deceased on account of exchange of abuses by the deceased with his uncle without any other motive. Therefore, taking into consideration the mitigating circumstances noted above, we are of the view that the sentence of extreme penalty of death was not proper and we while maintaining the conviction under section 302(b), P.P.C. Alter the sentence of the appellant from death to life imprisonment. However, the appellant shall pay compensation of Rs,50,000 under section 544-A, Cr.P.C. As directed by the learned trial Court and in case of default in payment of compensation will further suffer S.I. For six months. We have considered the request of the learned counsel for the appellant for the grant of benefit of section 382-B, Cr.P.C. But in the light of the facts of the case do not find him entitled to the said benefit.
15. For the foregoing reasons, this appeal as well as the criminal revision with the above modification in the sentence is dismissed and the murder reference is answered in the negative.
The death sentence is not confirmed.