1994 P Cr (PLP)

SH. MUHAMMAD ZUBAIR, J.

Muhammad Qayyum and Ifzaal were tried under section 302/323/34, P.P.C. by the learned Additional Sessions Judge, Lahore, for the murder of Irfan Ahmad and for causing a simple injury to Muhammad Ihsan P.W.3. The learned trial Judge, who tried them, convicted Muhammad Qayyum under section 302, P.P.C. and sentenced him to suffer death and a fine of Rs.50,000 or in default five years' R.I. Out of the fine, if recovered, Rs.40,000 were ordered to be paid to the legal heirs of the deceased as compensation. He also convicted both of them under section 323/34, P.P.C. and sentenced them to one year's R.I. This is vide judgment dated 26-2-1991. Muhammad Qayyum has filed the present appeal and the learned trial Judge has referred the case to this Court under section 374, Cr.P.C. for confirmation of the death sentence. We propose to dispose of both the matters by this judgment.

2. Briefly stated, the prosecution case, as disclosed in the F.I.R. is that on 11-2-1989, at about 10-00 a.m. Muhammad Ihsan (P.W3), Muhammad Lal (P.W.5) and Muhammad Waris (given up witness) were flying kites near their house in the open and three kites were lying on the ground near them. At about 11-00 a.m., the appellant and Afzaal co-accused came there. The appellant picked up one of three kites. Muhammad Ihsan P.W. asked him to put the kite there as they were already short of kites. The appellant put the kite there and went away whereas Ifzaal remained there. On the same day at about 2-00 p.m., the appellant again appeared at the scene. The appellant and his co-accused abused the complainant and also started giving fist blows. Muhammad Lai P.W.5 and Muhammad Waris (given up witness) tried to separate them, but the accused did not stop. Muhammad Ihsan raised alarm which attracted Irfan Ahmad deceased who was standing near his house. The appellant took out a Chhuri from the folds of his Shalwar and inflicted a Chhuri blow which landed on the right side of his abdomen, who fell down. When Muhammad Ihsan P.W. stepped forward, then Ifzaal exhorted the appellant to finish him with the Chhuri. The appellant attacked Muhammad Ihsan P.W. who retreated and fell down, as a result whereof he received an injury on his right upper arm. The appellant and his co-accused fled away from the spot. Munshi Khan (given up witness) father of Muhammad Ihsan P.W. also reached the spot. Muhammad Ihsan P.W. alongwith his father took Irfan Ahmad in injured condition to the Emergency Ward of Mayo Hospital, Lahore, where he was admitted. On receipt of information about the admission of Irfan Ahmad in the hospital, Azizullah, A.S.I. (P.W.4) came there, where he recorded the statement Exh.P.E. of Muhammad Ihsan P.W. (complainant). He sent the same to Police Station Shadbagh, where formal F.I.R. Exh.P.E./1 was recorded. The A.S.I. prepared the injury statement of the complainant Muhammad Ihsan and got him medically examined. The A.S.I. was still in the hospital when he learnt that Irfan Ahmad had died. He prepared the inquest report Exh.P.G. and sent the dead body to the mortuary for post-mortem examination.

3. The investigation of the case was then conducted by Muhammad Siddique S.I. (P.W.8). He reached the spot and took into possession blood-stained earth vide memo. Exh.PA. On 12-2-1989, Muhammad Boota F.C. produced the last-worn clothes of the deceased before the S.I. which were taken into possession vide memo. Exh.P.C. He got prepared site plan Exh.P.H. by Hamid-ud-Din Chishti, Draftsman. He arrested the appellant and has co- accused. On 19-2-1989, the appellant got recovered Chhuri P.1 which was taken into possession vide memo. Exh.P.B. After completing legal formalities, he submitted the challan in the Court.

4. Post-mortem examination on the dead body of Irfan Ahmad deceased was conducted by Dr. Misbah-ul-Islam (P.W.9) on 12-2-1989. He noticed five injuries thereon. Three were surgical wounds and one was abrasion. The fatal injury was 6.5 x 0.7 c.m. wound with two stitches on the right flank. Cause of death according to the doctor was abdominal aorta and inferior vina cave, leading to extensive haemorrhage and shock and was sufficient to cause death in the ordinary course of nature. Muhammad Ihsan P.W. (complainant) was medically examined by Dr. Azhar Abid Raza (P.W.2) who noticed an abrasion and two swellings on his person. The injuries were simple in nature caused by blunt weapon.

5. The appellant denied the prosecution allegations, pleaded innocence and stated that the deceased had received the Chhuri blow when Muhammad Ihsan P.W. had attacked him in order to kill him. He explained the circumstances under which the deceased received the injury in his written statement Exh.DA., wherein he stated that the complainant was giving beating to his co-accused. He wanted to rescue him. The complainant also fell with him. On hearing the noise, Irfan deceased also came there. Both the brothers grappled with him. In the meantime Irfan deceased took out a Chhuri which was snatched by Muhammad Ihsan complainant. He attacked the appellant and the blow struck Irfan, who was behind the appellant. No evidence was produced in defence.

6. Placing reliance on the ocular version furnished by Muhammad Ihsan P.W.3 and Muhammad Lai P.W.5, fortified by the recovery of blood-stained Chhuri P.1 at the instance of the appellant, the learned trial Judge convicted the appellant and gave him the sentences as indicated above.

7. The learned counsel for the appellant contended that the fight took place all of a sudden in which Muhammad Ihsan P.W. attacked the appellant with the Chhuri which incidentally hit the deceased, i.e. his own brother, so the appellant has not committed any offence. He further submitted that there is no background of enmity between the parties. What preceded the occurrence is shrouded in mystery; hence even if the defence version is not accepted, still it is a case of lesser punishment.

8. The learned counsel for the State has supported the impugned judgment.

9. We have gone through the record of the case carefully with the able assistance of the learned counsel for the parties. Admittedly, it is a case of two versions; one version has been given by the prosecution, whereas the other version has been put forth by the defence. The salutary principle for the, just decision of the case of two versions is that both the versions are put in juxtaposition and then the Court has to see which version is more probable and nearer to truth on the basis of direct or circumstantial evidence brought on the record, subject to this qualification that onus of proof always remains on the prosecution.

10. The prosecution case is being supported by two independent eye witnesses whose presence at the scene is even admitted by the defence. The occurrence took place in broad daylight, which completely rules out the possibility of mistaken identity of the accused. In these circumstances, we find no justification to discard the straightforward and confidence inspiring evidence of Muhammad Ihsan P.W.3 and Muhammad Lai P.W.5, eye witnesses, who in the absence of any enmity have no apparent reason to falsely implicate the appellant in this case. The evidence of these two eye-witnesses gets further corroboration from the recovery of blood-stained Chhuri P.1 at the instance of the appellant. As no real brother would cause the death of his own brother even accidentally when he is in a position to clearly recognize the victim, hence the defence plea seems to be ludicrous besides being afterthought. Thus, applying the aforementioned principle of law, we find no force in this appeal, which is accordingly dismissed.

11. We have given out anxious consideration to this aspect of the case what should be the appropriate sentence keeping in view the 'circumstances mentioned above, after discarding the defence plea. We find that the parties had no previous enmity with each other. The possibility cannot be ruled out that the parties flared up all of sudden due to the taking of the kite by the appellant hence what immediately preceded before the appellant attacked the deceased is shrouded in mystery. In the circumstances, capital sentence imposed upon the appellant needs reconsideration. So, while maintaining the conviction of the appellant under section 302, P.P.C., we reduce his sentence to imprisonment for life. The sentence of death is no confirmed. The sentence of fine as imposed by the trial Court is maintained and so the sentence under section 323, P.P.C., with the direction that both the substantive sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. is also given to the appellant. N.H.Q./M-1293/L Sentence reduced.