1992 PLP 1922 (MLD)

(1) A lacerated wound with irregular margin, 10 cm x 3 cm muscle deep, in the left between the thumb and index finger of right hand. Wound _ bleeding profusely. (2) A contusion, 12 cm x 8 cm, on the right shoulder. (3) A contusion, 5 cm x 3 cm, on the back of left elbow. (4) Complained of severe pain at right side of abdomen. The injuries were declared simple, caused with blunt weapon.

8. Allah Rakha P.W.10, was also medically examined by the same doctor, who found the following injuries on his person:‑ (1) A lacerated wound with irregular margin, 10 cm x 3 cm muscle deep, in the cleft between the thumb and index finger of right hand. Wound was bleeding profusely. (2) A contusion, 12 cm x 8 cm, on the right shoulder. Both the injuries were declared simple caused with blunt weapon.

9. On 16‑3‑1986, the A.S.I., got information that Sardar Muhammad had died in the hospital. He prepared inquest report Exh.P.2 and despatched the dead body to Sheikhupura for post‑mortem examination.

10. On 16‑3‑1986, Dr. Muhammad Ilyas P.W.7, of District Headquarters Hospital, Sheikhupura, conducted the post‑mortem examination on the dead body of Sardar Muhammad and found the following injuries thereon:‑ (1) A stitched semi‑healed wound 16 cm on the left side of head 8 cm from the left ear cutting the skin membrane, left temporal parietal bone and left occipital bone. Left side of the brain was also injured. A big clot was present below the injury. (2) A stitched wound 2 cm on the front lower left leg only skin deep. In the opinion of the doctor, death had occurred due to severe haemorrhage, shock, head injury and cardio‑respiratory failure. Injury No.1 was sufficient to cause death of a person in ordinary course of nature.

11. On 17‑3‑1986, Muhammad Ayub F.C. produced before the A.S.I., the Dhoti of the deceased which was taken into possession vide memo Exh.PF.

12. The appellants were arrested on 27‑3‑1986. The same day Abdul appellant while in police custody led to the recovery of blood‑stained Datar P.2, blood‑stained clothes P.3 and P.4 from his residential room, which were taken into possession vide memo Exh.PG; similarly Bashir Ahmed, Nazar Hussain, Muhammad Azam and Riaz appellants led to the recovery of Saria P.5, Sota P.6, Sota P.7, Sota P.8, from their respective residential rooms. These articles were sealed in parcels as Exh.PH, PJ, PIK and PL respectively. The police after completing necessary formalities submitted the challan in the Court.

13. Abdul appellant when examined under section 342, Cr.P.C. denied the prosecution allegations. He explained the case against him in answer to question No.12 as under: "The case against me is false. On the day of occurrence at 7‑00 a.m. I was present in front of the house of Sardar Muhammad deceased with my Rehree. Sardar Muhammad came in front of me in naked condition and an altercation took place between me and Sardar Muhammad. I protested that he being an elderly man, he should behave properly. On this, Sardar Muhammad and his sons took me, forcibly inside their house and caused me injuries. The house of Sardar Muhammad deceased was under construction and brickbats and other building material was lying there. I caused injuries to Sardar Muhammad with brickbats under grave and sudden provocation and in the exercise of right of self‑defence. I narrated the whole incident to the police and also produced my medical certificate and blood‑stained clothes. The 1.0. investigated this case one sidedly and suppressed material facts:" He produced in defence his medico‑legal certificate marked as '13' and declined to appear as his own witness under section 340(2), Cr.P.C. The remaining appellants pleaded innocence and stated that they were not present at spot 3 falsely in this case due to their relationship with Abdul appellant. They also declined to make statement under section 340(2), Cr.P.C. Riaz appellant produced his school leaving certificate showing that he was born on 3‑10‑1971 and at the time of occurrence was about 16 years of age. The learned trial Court .placing explicit reliance on the ocular version furnished by Allah Rakha P.W.10, and Mst. Niaz Begum P.W.11, fortified by the medical evidence and recovery of the incriminating articles at the instance of the appellants, concluded that the charges against them stood proved. He gave them the sentences mentioned above.

14. We have heard learned counsel for the parties and have examined the record carefully with their able assistance.

15. The learned defence counsel urged that eye‑witnesses are close relatives of the deceased as one is son, the other is wife of the deceased and the testimony of these witnesses cannot be acted upon unless it stands corroborated in material respects but no corroborative evidence is available on record.

16. The learned counsel for the defence vehemently contended that 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. According to the defence version the occurrence took place all of a sudden, due to the indecent behaviour of the deceased, hence the case against appellant Abdul would: fall within the ambit of section 304, P.P.C. and not under section 302, P.P.C. as Abdul appellant did not take any undue advantage of the weaker position of Sardar Muhammad deceased, whereas according to the prosecution the appellants while armed with deadly weapons in furtherance of the common object of the unlawful assembly trespassed into the house of the complainant party and launched a pre‑meditated attack. The learned defence counsel further contended that fight ensued all of a sudden, remaining appellants had no common object with Abdul appellant to commit the murder of the deceased hence their convictions under section 323/452, P.P.C. are valid in law, but they are entitled to the reduction of their sentences, due to the agony of protracted trial. He also contended that in view of defence plea, even Abdul appellant deserves to be dealt with leniently in the matter of sentence, even if his conviction under section 302, P.P.C. is maintained.

17. The learned counsel for the State has adopted those reasons which prevailed with the learned Judge, while passing the impugned judgment.

18. The learned counsel for the complainant has vehemently contended that the acquittal of respondents Nos.2 to 5 from the charge under section 302, P.P.C. has resulted in the miscarriage of justice, as they opened pre‑meditated attack on the deceased and caused his death, and also gave injuries to the injured P.Ws., they should have been convicted under section 302, P.P.C: and not under section 323, P.P.C. He further submitted that there is no justification to reduce the sentence of Abdul appellant, and his sentence of death may be confirmed. .

19. We have carefully examined the submissions of the learned counsel. We find that the eye‑witnesses received injuries in the occurrence, hence their presence at the spot is established beyond reasonable doubt. The eye‑witnesses being the inmates of the house hence they are the most natural and independent witnesses of the occurrence. The ocular account furnished by them is being supported by the medical evidence, and recovery of crime weapons at the instance of appell4nts thus mere relationship of eye‑witnesses with the deceased, is no ground to discard their evidence.

20. The salutary principle of law for the decision of the case of two versions is to put both the versions in juxtaposition, and then to find out which version is more nearer to the truth or being supported by the material brought on the record.

21. Applying afore‑mentioned principle of law, to the facts of the case, we find the defence plea of Abdul appellant does not get any support from the ocular or circumstantial evidence brought on the record. The close scrutiny o the evidence would expose the hollowness of the defence version, as Abdul appellant, did not produce the doctor who allegedly examined him with respect to the injuries which he received in the transaction in his defence. He did not appear before the police of his own accord to take up this plea, on the contrary he absconded and ..Abdul appellant, adversely reflects upon his defence version. He being a middle aged man, could not, in all probability cause so many injuries to three persons, that is, the deceased, and two eye‑witnesses mentioned above, by himself. The defence plea taken up by him runs counter to the nature of injury received by the deceased, as deceased received sharp edge injury, which is not possible by brickbats. The murder took place inside the house of the deceased, in the absence of any enmity between Abdul appellant and the complainant party, the deceased, the injured prosecution witnesses, especially Niaz Begum P.W.11, had no apparent motive to join hands with her male members, to inflict injuries on Abdul appellant, which were of insignificant nature. If Abdul ,appellant was armed with brickbat, as alleged by him, then it was humanly impossible for him to cause the death of the deceased in the presence of the complainant, who is a young healthy man. The prosecution evidence is straightforward, and is being supported by other independent evidence. We see no justification to discard this confidence inspiring evidence of the eye‑witnesses whose presence at the spot is established beyond any reasonable doubt.

22. We have minutely examined the submissions of the learned counsel for the complainant. So far as the criminal liability of appellants other than Abdul is concerned, we find force in the submissions of the learned counsel that occurrence was sudden due to some incident, which is shrouded in mystery, hence every person is liable for, his own individual act.

23. We have given our anxious thought to this aspect of the case, what should be the appropriate sentence, which should be awarded to Abdul appellant. We find, the case for the reduction of the sentence is made out, as immediate cause of the occurrence is shrouded in mystery, so we while maintaining the conviction of the appellant Abdul under section 302, P.P.C. reduce his sentence from death to imprisonment for life, while keeping intact the sentence of fine imposed upon him. The sentence of death awarded to Abdul appellant is not confirmed. His conviction and sentence under section 452, P.P.C. is maintained. Both the substantive sentences shall run concurrently, he is given the benefit of section 382‑B, Cr.P.C.

24. In view of our above finding the convictions of the appellants Nos.2 to 5 under sections 323 and 452, P.P.C. are legally justified, hence Revision Petition filed by the complainant, which is still at motion stage is dismissed in limine.

25. We agree with the learned defence counsel, due to agony of protracted trial faced by appellants Nos.2, 3, 5 the case for the reduction of their sentence needs consideration, so while maintaining the convictions of Bashir Ahmed. Nazar Hussain and Muhammad Riaz under sections 323 and 452, P.P.C. we reduce sentence to one already undergone. However, their sentence of fine is maintained. They are on bail, and are discharged from their bail bonds. The appeal qua Muhammad Azam, who has already undergone the sentence is dismissed, but his sentence of fine is maintained. Out of the fine, if recovered, Rs.10,000 as ordered by the trial Court, be paid to the legal heirs of the deceased as compensation.

26. The upshot of the above discussion is that the reference is answered in negative,, the revision is dismissed, and so the appeal of the appellants except to the extent of reduction in sentence, as indicated above. N.H.Q./A‑148/L Order accordingly.