2009 PLP 709 (MLD)

MUHAMMAD AHSAN BHOON, J.

This appeal is directed against the judgment, dated 27-2-2003 passed by the learned Additional Sessions Judge, Sialkot, whereby he convicted the appellant Muhammad Ashraf under section 302(b), F.P.C. and sentenced him to death and also directed him to pay compensation of Rs.50,000 to the legal heirs of the deceased Khushi Muhammad and in default whereof to undergo S.I. for six months. He further convicted the appellant under section 337-A(ii), P.P.C. and sentenced him to undergo R.I. for three years as Tazeer and also directed to pay compensation. (Arsh) of Rs.14,000 to injured Muhammad Luqman and in default whereof to further undergo S.I. for two months. Benefit of section 382-B, Cr.P.C. was, however, extended to him. Vide the same judgment the learned trial Court convicted Muhammad Akram co-accused under section 337-A(i), P.P.C. and sentenced him to undergo R.I. for one year as Taz'ir and also directed him to pay Rs.5,000 (Daniaan) to Muhammad Shahbaz P.W. in default whereof to undergo S.I. for one month, while acquitted the co-accused Ghulam Haider Ghulam Mustafa, Muhammad Siddique and Hadayat Ullah by extending them benefit of doubt, in case registered vide F.I.R. No. 65, dated 14-4-2001, offence under sections 302/324/337-A (ii)! 337-A(i)/148/149, P.P.C. registered at Police Station, Bambanwala Tehsil Daska District Silakot. Apart from the 'above, the learned trial Court had submitted Murder Reference No.185 of 2003 for confirmation of death awarded to the appellant or otherwise.

2. The prosecution story as brief is that on 14-4-2001, at 1-00, P.M. the appellant armed with Bughda (toka) along with his co-accused namely Ghulam Haider, Muhammad Ashraf, Hadayat Ullah, Muhammad Siddique and Ghulam Mustafa who were also armed with different kinds of weapons formed an unlawful assembly and came at the spot. Muhammad Ashraf, accused caused Toka blow on the head of Khushi Muhammad deceased who fell on the ground. The appellant also gave Toka blow on left cheek of the complainant. All the co-accused also gave injuries to victim party with their respective weapons. On hue and cry, P.Ws. and other inmates reached at the spot upon which the accused party fled away. Khushi Muhammad being injured was shifted to the hospital where he died later on. The motive behind the occurrence was dispute of land between the parties.

3. After due investigation, report under section 173 Cr.P.C. was submitted in the learned trial Court. Charge was framed against the appellant and his co-accused who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. The appellant in his statement under section 342, Cr.P.C. in answer to question No.9 stated as under:-- "This is a false case against all of us registered with due deliberation and consultation. The P.Ws. are related inter se. As a matter of fact the complainant party wanted to forcibly and illegally occupy the land of our Dera by means of a tractor trolley and they also blocked our passage. Our co-accused Ghulam Haider resisted to it and he was manhandled by the complainant party. In order to rescue him, many persons from the village including myself and my co-accused Muhammad Akram attracted to it and during the melee, the complainant party sustained injuries by falling down on the pegs meant for tethering the cattle and mangers. We did not cause any injury to any of the P.Ws. or the deceased. Rest of the accused were not present at the spot and they came after the occurrence. All the P.Ws. sustained minor injuries, Khushi Muhammad deceased was a patient of chronic asthma as is clear from the post-mortem report and the evidence of doctor P.W. who conducted his post-mortem examination and found lungs totally blocked. Furthermore, the surgical intervention by an under training Medical Officer might be the result of his death. The P.Ws. are related and interested. We as many as six persons of the family, have been implicated in the case, while the injured including the deceased sustained only four injuries on their person in total. The complainant party in order to grab our land at the Dera and to receive handsome amount has got this false case registered by twisting the actual facts."

4. The appellant and his co-accused were examined under section 342, Cr.P.C. Neither they opted to appear as their own witness in disproof of the allegation levelled against them as required under section 340(2), Cr.P.C. nor did they adduce defence evidence. The learned trial Court after hearing the parties passed the above said conviction and sentence against the appellant, which is being assailed through this criminal appeal.

5. The learned counsel for the appellant, Ch. Muhammad Anwar Bhinder Advocate, has contended that the ocular account is in contra to the medical evidence, as according to the prosecution case, the appellant Muhammad Ashraf caused injury with Bughda on the head of Khushi Muhammad deceased but there was no sharp-edged weapon injury on the body of the deceased rather the only injury received by him was by blunt weapon. He has further contended that mere injuries on the person of the victims is not a stamp that they were truthful witnesses as .they were closely related to the deceased. He has contended that this is not a case of capital punishment as there was only one injury attributed to the. appellant. The deceased was an aged person of 70 years with serious ailment and the property in dispute was not in exclusive possession of the complainant party, and that the deceased died after 8/9 days of the occurrence on account of some defective treatment, hence as alternate the learned counsel prayed for lesser sentence.

6. The learned DPG on the other hand, has contended that the ocular account is supported by medical evidence, it was broad-daylight occurrence and there was no motive for false implication of the accused-appellant party and normal penalty of death was rightly imposed by the learned trial Court. He prayed for dismissal of the instant appeal.

7. We have heard the learned' counsel for the parties and perused evidence with their able assistance.

8. The occurrence in this case took place at 1-00 p.m. on 14-4-2001 and the F.I.R. was lodged at the P.S. at 4-10 p.m. on the same day on the statement of Muhammad Luqman, P.W.4, at a distance of 16 K.M. and the F.I.R. Exh.PA was registered by Tehsin Sadiq, S.I./S.H.O. P.W.11. So it was a promptly lodged F.I.R. wherein the appellant Muhammad Ashraf was duly nominated and was saddled with the responsibility of causing injury to Khushi Muhammad deceased on his head and to Muhammad Luqman, complainant/P.W.4 on his left cheek. Both eye-witnesses Muhammad Luqman, complainant P.W.4 and Muhammad Shahbaz, P.W. 1 appeared before the learned trial Court and deposed that the appellant caused injury on head of Khushi Muhammad deceased and on cheek of Luqman complainant/P.W.4 and the injuries attributed to the appellant were found so according to medical evidence furnished by Dr. Muhammad Monim Javed P.W.7 and Dr. Muhammad Khalid Ch. P.W.9. The description of injuries received by Muhammad Luqman injured and Khushi Muhammad deceased as furnished by P.W.7 Dr. Muhammad Munim and P.W.9. Dr. Muhammad Khalid is re-produced below:-- Injury received by Muhammad Luqman injured. A lacerated wound 5 c.m. x 1 c.m. oblique starting from just below of outer and of left eye brow downward and outwards with under line bone exposed on maxilla. (left cheek bone). Injury received by Khushi Muhammad deceased. A stitched wound 13 c.m. long oblique in direction on right side of head 3 c.m. above and back of right ear. According to the evidence of said two doctors the injuries on the body of Khushi Muhammad deceased and Muhammad Luqman P.W.4 were caused by blunt weapon. The contention of the learned counsel for the appellant that ocular account is in contra to the medical evidence, is of no avail to him when the complainant Muhammad Luqman, P.W.4. neither stated in F.I.R. that the appellant caused injuries with the right side of Bughda nor he stated so while appearing, before the learned trial Court and he only stated that the appellant caused injuries with Bughda on the head of Khushi Muhammad, deceased and on the left cheek of Muhammad Luqman injured P.W.4, whereas Muhammad Shahbaz P.W. categorically stated that Muhammad Ashraf appellant caused Bughda blow from wrong side on the head of Khushi Muhammad and he also caused Bughda blow which hit Muhammad Luqman near his left eye. In his cross-examination to a suggestion about the above deposition he stated as under:-- "It is incorrect to suggest that I did not state before the police that Muhammad Ashraf accused gave a Bughda blow from the wrong side on the head of Khushi Muhammad and that wrong side of Bughda was subsequently manoeuvred by the police at my instance in my statement."

9. The denial of P. W.1 is absolutely in line with the prosecution evidence and that is supported by medical evidence and he was not confronted with the above given fact with his earlier statement made under section 161, Cr.P.C. So ocular account furnished by the eye-witnesses is quite consistent with medical evidence. The presence of both the eye witnesses at the spot was quite natural as the place of occurrence was contiguous to Dera of the complainant as well as the accused and even the presence of both injured eye-witnesses has not been denied by the prosecution. Even otherwise, it was a broad day light occurrence and there is no question of mistake identity when the parties being neighbours were well known to each other.

10. The recovery of weapon of offence i.e. Bughda Exh.PK was effected at the behest of appellant Muhammad Ashraf and the same was proved through Muhammad Arif P.W.2 and Tehsin Haider, S.-I./S.H.O. P.W.11 and the said Bughda was found to be stained with human blood according to the report of Chemical Examiner and that of Serologist Exh.PX and Exh.PY and Exh. PK/1. Hence, we are of the considered view that the prosecution has been able to prove that it was the appellant Muhammad Ashraf who caused injuries to Khushi Muhammad deceased and Muhammad Luqman P.W.4., Khushi Muhammad deceased died after 8 days in consequence of the said injury suffered at the hands of Muhammad Ashraf appellant.

11. The defence taken by the appellant-accused that the deceased received injuries at the hands of other people of the village due to quarrel between the parties is not proved from facts and circumstances of the case particularly when the appellant had not denied his presence at the spot. However, it is decipherable from evidence on record that the occurrence was not premeditated one rather it was result of sudden flare up between the parties on putting of earth on the land which was un- partitioned and same is the motive of the occurrence mentioned in the F.I.R.

12. As far as quantum of sentence is concerned, it is an admitted fact that Dera of both the parties i.e. accused and complainant, were contiguous to each other having only one thoroughfare leading towards both the Deras. The place where appellant caused injury to Shahbaz P.W., according to the site-plan Exh. PP was point-B, which was at a distance of four feet from the manger of the accused persons as admitted by Massud Ahmad Bhatti, Draftsman/P.W.8. It is also admitted position from evidence that the properties of both the parties being situated contiguous to each other were without boundary wall having no partition and there existed no background of any previous enmity or deep-rooted hostility between the appellant and the deceased and the occurrence/quarrel took place between the parties was not pre-meditated rather was the result of sudden flare up upon putting earth. The appellant inflicted only one blow on head of the deceased and did not repeat it, that too with wrong/blunt side of the weapon of offence and had not acted in cruel and gruesome manner. Similarly, the conclusion drawn by the learned trial Court was the same while acquitting co-accused Muhammad Akram under section 302(b), P.P.C. and sentenced him only under section 337-A (i), P.P.C. All these factors available from the evidence cumulatively make out a case for mitigating circumstance in altering the sentence of death to life imprisonment, which would meet the ends of justice. Accordingly we, while maintaining conviction under section 302(b), P.P.C., convert the appellant's sentence of death into life imprisonment extending him the benefit of section 382-B, Cr.P.C. Reference can be had to Muhammad Arshad and 2 others v. State PLD 1996 SC 122; Muhammad Riaz v. The State (1996 PCr.LJ 256) and Basharat alias Bao v. The State (2001 PCr.LJ 327). However, sentence of compensation and conviction and sentence under section 337-A(ii), P.P.C. shall remain intact. With the above modification in the sentence, this appeal is dismissed. Murder reference is answered in negative. H.B.T./M-27/L Sentence reduced.