1988 PLP 749 (MLD)

(2) An incised wound 1 c.m. x 0.5 c.m. x cavity deep on left hypo‑chondrium. Corresponding cut on shirt and Bunyan was present. According to his opinion the deceased had died as a result of injury No.1, which had caused haemorrhage and shock. Injury No.2 was opined by him to be dangerous to life. Both the injuries, according to his opinion, were caused by sharp‑edged weapon. Probable time between injuries and death was opined to be one hour and between death and post‑mortem was opined to be within two hours. During cross‑examination, he stated that injured Mushtaq P.W. and Muhammad Ajmal (deceased) were brought to the hospital at 10 a.m. and that he had given an injection also to the deceased before he expired. In answer to another question, he stated that Ajmal was in shock and pulseless during the time tie remained alive. Dr. Fiaz Ahmad Khan, who had medically examined the appellant at the instance of the police on 11‑2‑1987 appeared as P.W.2. He had noted a partially healed wound, 4 c.m. long on front and outer side of left index finger on middle phalynx of the shape of inverse (V). The injury was declared by him to be simple. He could not express opinion about the weapon used, as the wound had been partially healed. Probable duration of injury was opined to be two to three days, lie stated that on a query made by Muhammad Rashid, A.S.I., he had expressed the opinion that the injury could have been self‑suffered or suffered by friendly hand. During cross‑examination, he stated that the injury could have been caused by some assailant also.

7. The ocular account was deposed to by Muhammad Mushtaq (P.W.11), Muhammad Rafiq (P.W.12) and Mukhtar Hussain (P.W.13). Muhammad Mushtaq re‑narrated the facts given by him in his statement (Exh.P:D./1) before the A.S.I. on the basis of which F.I.R. was registered. The only change he made during his statement at the trial is that instead of stating that they were vacating the shop, he stated that they were opening their shop. During cross‑examination, he explained that they were vacating their shop as they had obtained another shop on rent near the shop of Mukhtar Hussain P.W. According to him, they had obtained the shop 2/3 days prior to the occurrence. He stated that they were vacating the old shop on their own accord. He added that the shop they had vacated was dismantled and there was new construction. The suggestion that they were not vacating the shop of their own and that they re forced to vacate the shop at the instance of the appellant was denied by him. He admitted that there was a branch of Habib Bank in front of the place of occurrence. He denied the suggestion that on the day of occurrence, they had picked up a row with Asif (appellant) and during that quarrel Muhammad Ajmal deceased had inflicted a knife blow on the hand of Asif and Asif in turn had caused him injuries with the knife, to save himself. The suggestion that he had thereafter advanced towards the accused and apprehending danger the accused (appellant) gave him injuries was also denied by him. Muhammad Rafiq (P.W.12) and Mukhtar Hussain (P.W.13) corroborated the statement made by Mushtaq (P.W.11) in so far as it pertains to the actual occurrence and infliction of injuries. Both of them stated that they had their shops near the place of occurrence. Both of them denied the suggestion that the occurrence was not witnessed by them. Similar suggestion put to Mushtaq was also denied by him. Mukhtar Hussain admitted during cross‑examination that he had been challaned in a murder case in 1976 and was convicted and sentenced to seven gears' R.I. by the trial Court. He, however, added that he was later acquitted in appeal. He denied the suggestion that the appellant and his family had sided with he complainant party in that murder case and that he had become witness in this case on that account. Evidence of recovery of knife at the instance of the appellant was 1eposed to by Muhammad Nasir (P.W.10). His statement in this regard is corroborated by Muhammad Rashid, A.S.I. (P.W.14). Muhammad Rashid, A.S.I. (P.W.14) while appearing at the trial gave the details of the investigation. In cross‑examination, he denied the suggestion that he had recorded the statement (Exh.PD/1) of Mushtaq P.W. on the day of occurrence late in the evening and so also the F.I.R. was recorded later in the gilt. He also denied the suggestion that the appellant had appeared before him on 2‑9‑1987 but he had purposely shown his arrest on 10‑2‑1987.

8. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case as a whole. He denied to have led to the recovery of knife (P.10) and pleaded innocence. He gave his own version, in answer to the question, why this case against him. fie also appeared as his own witness and made statement on oath under section 340(2), Cr.P.C., reiterating the facts, which he had stated during his statement under section 342, Cr.P.C. The stance taken in both the statements by the appellant, is, that the deceased was asked to vacate the shop by the owner and he held him (Asif) responsible for that. According to him, the deceased had attacked him on the day of occurrence with a knife when he was working at his shop with a small knife as an instrument and had caused him injuries also. According to him, he had inflicted injuries to Muhammad Ajmal in self‑defence with the Life which he was already holding and that when Mushtaq P.W. had advanced towards him, he had given him an injury also, fearing that he (Mushtaq P.W.) might attack him. He took up the plea that he had appeared at the police station on the same day and had narrated the occurrence to the police but the police instead of recording his version arrested him in the case registered on the version given by the complainant. He stated that P.Ws. 12 and 13 had not witnessed the occurrence.

9. Learned counsel for the appellant, after taking us through the evidence criticised the impugned judgment and submitted that the version put forth by the appellant was more probable and nearer the truth than the version put forth by the complainant and that the learned trial Judge had failed to appreciate the correct position. Learned counsel submitted that since the complainant party was vacating the shop on the day of occurrence, there was no reason for the appellant to have picked up a quarrel with them. It was argued by him that at the best the appellant could be held guilty of having exceeded the right of private defence and as such his conviction under section 302/307, P.P.C. cannot be maintained. In the alternate learned counsel submitted that since there was no background of enmity between the parties and the occurrence had erupted suddenly, the extreme penalty of death was not warranted in the circumstances of the case. Learned counsel submitted that there were enough circumstances to alter the sentence of death to imprisonment for life. In this connection learned counsel has placed reliance on Sikander v. The State P L D 1966 S C

555. Learned counsel also pleaded reduction of sentence awarded to the appellant under section 307, P.P.C.

10. Learned counsel for the State, on the other hand, defended the judgment of trial Court and submitted that the prosecution has been able to prove its case against the appellant beyond any reasonable shadow of doubt and ?he conviction and sentences awarded to the appellant do not call for any interference. While arguing the appeal filed by the State for enhancement of the sentence of the appellant under section 307, P.P.C. learned counsel submitted that in view of the dare devil manner in which the appellant had tried to take, away the life of Mushtaq P.W., the sentence awarded to him is inadequate and so the same should be enhanced.

11. Since the appellant has put up his own version of the occurrence during trial and the learned counsel appearing for him before us has also aruged on the same wave length, we deem it just and proper to examine both the versions in juxtaposition so as to find out as to which of the versions is more probable an nearer the truth. We are conscious that while doing so the fact has not to be lost sight of that it remains the responsibility of the prosecution to prove its case against the accused beyond any reasonable shadow of doubt and the onerous responsibility of proving innocence is never shifted to the accused. On the other hand, he is entitled to any benefit of doubt that may arise out of the circumstances.

12. The complainant had no enmity with the appellant, nor was there an. 1 unhappiness between the deceased and the appellant. P.Ws. Muhammad Rafiq and Mukhtar Hussain are independent and disinterested witnesses. They are neither related to the complainant party nor inimical to the appellant. In fact, they had no connection whatsoever with the complainant party except that, they were also shop‑keepers of the same Bazar. But that affinity was equally available to the appellant as well. Their statements, therefore, cannot be brushed aside unless a positive breach is made out to show their unreliability. The suggestion put to Mushtaq P.W. that he and the deceased were under impression that the appellant was responsible for having them got ejected from the shop was denied by him. Apart from that the suggestion does not find support from the evidence on record. The complainant and the deceased had made arrangements to get another shop and that was also nearby. They had not resisted the demand of tile owner for vacation of the shop. Had they done so, there would definitely have been litigation, but it is on record that no such thing had happened. The complainant and the deceased were preparing to vacate the shop without any grievance against the owner. That being so, they could not have any grievance against any other person, what to speak of the appellant, who was their neighbour.

13. The basis on which the self‑defence theory was put at the trial and was argued before us is that the appellant after arrest on being medically examined was found to have a partially healed wound 4 c.m. long, on front and outer side of left index finger. This injury by no stretch of imagination can give the impression that it must have been suffered at inimical or aggressive hands. It was, not only minor but superfluous too. The doctor was not able to say as to with what weapon the injury would have been caused or suffered. An injury suffered by a sharp -edged weapon on 9th rib at inimical hands could not have changed the shape by 11th morning to an extent that the expert would not have been able to say if it was an injury of sharp‑edged weapon. Moreover, if the deceased had aggressed upon the appellant, he would not have then received two grievous injuries, one of which could have taken his life, particularly so when his brother Mushtaq was at his back and was available to him and then the appellant could not have inflicted injury to Mushtaq as well.

14. The argument that since the deceased and the complainant were vacating the shop on the day of occurrence, so the appellant would not have picked up a quarrel with them, is counter‑productive. In that, if the appellant could have no interest in attacking the deceased and the complainant, they would as well have no interest or reason to pick up ‑a quarrel with a neighbour, from the neighbourhood of whom they were going to shift on the same day. It is not the case of the complainants that it was a pre‑planned and premeditated occurrence. Their case is that the appellant had murdered one brother and injured the other on a frail matter i.e. dispute arising out of the parking of the motor‑cycles.

15. The contention of the learned counsel for the appellant that the Investigating Officer had dishonestly shown the arrest of the appellant on 10‑2 1987 even though the appellant by way of showing his bona fides had appeared before the police on 9‑2‑1987 and it was on account of this that he could not get himself medically examined on 9‑2‑1987, so as to plead right of self‑defence, has not impressed us at all. If the Investigating Officer had any such intention, he would not have prepared the injury statement of the appellant, nor would have got him medically examined from the doctor. The action of the Investigating Officer rather appears to be straightforward and unbiased.

16. The contention of the learned counsel that the F.I.R. in this case was lodged after deliberations and preparations some time in the evening stands contradicted by positive evidence on record.

17. The autopsy on the body of the deceased was performed at 12‑15 p.m. on the same day. It must at least have taken more than an hour to prepare the inquest report after recording the FIR, and despatching the dead body to the mortuary. That being so, the F.I.R. must have been lodged by 11 a.m. and that exactly is the position. The statement of the complainant was recorded at 11 a.m. p and the F.I.R. was registered at 11‑15 a.m. The inquest report prepared by the Investigating Officer bears the signatures of the doctor, who had performed autopsy. The summary of facts attached writ the inquest report bears the summary of the FI.R. We cannot believe that the doctor would have joined hands in any sort of manipulation. Moreover, no such allegation was levelled against him at the trial. Above all, it is a case of one accused. If the complainants had any ulterior motive, they could have easily involved more than one person, as one person had died suffering two injuries and the complainant had suffered also one injury.

18. For all the reasons noted above, we have no hesitation in observing that the version put forth by the appellant is without any basis and lacks credentials. The case of the prosecution, which is supported by testimonies of the independent witnesses and finds corroboration from the medical evidence, stands fully proved. In the circumstances, the conviction of the appellant under sections 302 and 307, P.P.C. is maintained.

19. Coming to the quantum of sentence we feel that there is substance and weight in the argument of the learned counsel for the appellant that the occurrence had erupted suddenly and so it would be a case of lesser sentence provided under section 302, P.P.C. We have noted in the earlier part of the judgment that the parties were not inimical to each other prior to the happening of this occurrence. There was no previous history of pre‑meditation. It all happened suddenly on a minor matter. The case, referred to by the learned counsel for the appellant, i.e. Sikander v. State P L D 1966 S C 555, squarely covers the case of the appellant. We are, therefore, of the view that the sentence of imprisonment for life for offence under section 302, P.P.C. will meet the ends of justice in this case. The sentence of death awarded to him under section 302, P.P.C. is, therefore, altered to imprisonment for life. The sentence of fine and the direction to pay compensation is maintained. The sentence of ten years' R.I. awarded to the appellant under section 307, P.P.C. also appears to be excessive for the reason that the injury of Mushtaq ;P.W. was found to be simple and the appellant had not tried to repeat the infliction of injury. The sentence of 10 years' R.I., therefore, is reduced to R.I. for seven years. The sentence of fine on this count is, however, maintained. The sentences on both counts shall run concurrently. Appellant shall also be liven the benefit of the provisions of section 382‑B, Cr.P.C.

20. Since the sentence awarded to the appellant under section 307, P.P.C. has been reduced from ten years' R.I. to seven years' R.I., the question of enhancement of sentence, does not arise. The appeal (Criminal Appeal No. 4 of 1988) filed by the State is, therefore, dismissed. SA./M‑895/L Sentences reduced.