ABDUL GHAFFAR Versus THE STATE
MUHAMMAD ASIF JAN, J.--- Abdul Ghaffar, appellant, aged about 28 years stood his trial alongwith acquitted co-accused Abdul Sattar, Muhammad Bashir and Muhammad Younas, in the Court of Mr. Pervaiz Ahmad, learned Additional Sessions Judge of Faisalabad for having committed offences under section 302/307/34, P.P.C.
2. The learned trial Court vide judgment, dated the 13th of January, 1992, convicted Abdul Ghaffar, appellant, under section 302, P.P.C. and sentenced him to death, subject to confirmation by this Court. Abdul Ghaffar appellant was also ordered to pay a fine of Rs.20,000 and in case of default thereof it was directed that he shall undergo 3 years' R.I. It was further ordered by the learned Trial Judge that Abdul Ghaffar appellant shall pay Rs.10,000 as compensation to the legal heirs of Muhammad Tahir deceased, aged about 20 years.
Co-accused Abdul Sattar, Muhammad Bashir and Muhammad Younas were given benefit of doubt and acquitted.
3. Abdul Ghaffar appellant has appealed against his conviction and sentence by way of Criminal Appeal No. 116 of 1992. The learned trial Judge -has submitted a reference to this Court for confirmation of the death sentence awarded to Abdul Ghaffar appellant by way of Murder Reference No.45 of 1992. The State has filed an appeal against the acquittal of Abdul Sattar, Muhammad Bashir and Muhammad Younas by way of Criminal Appeal No.568 of 1992. Muhammad Jamil complainant (P.W.11) who is father of Muhammad Tahir deceased has brought a revision petition by way of Criminal Revision No.478 of 1992, praying that the sentence of fine awarded to Abdul Ghaffar appellant be suitably enhanced and the acquittal of the acquitted accused be set aside.
4. We have heard all these connected matters together and propose to decide them through this judgment.
5. The occurrence took place on the 20th of April, 1990 at about 7-30 a.m. in front of the house of Muhammad Anwar (P.W.12) in the area of Chak No.199/R.B. which is about 18 kilometres from Police Station Saddar, Faisalabad.
6. The F.I.R. (Exh.P.M.) was lodged on the 20th of April, 1990 in the afternoon at 1-15 p.m. by Muhammad Jamil (P.W.11) father of Muhammad Tahir deceased at Police Station Saddar, Faisalabad, where it was recorded by Inspector Nasarullah Khan (P.W.14) who was the Station House Officer of Police Station Saddar, Faisalabad at that time.
7. Besides Muhammad Jamil complainant (P.W.11) Muhammad Anwar (P.W.12), Muhammad Akram (P.W.13) and Mst. Rashida saw the occurrence. Mst. Rashida was allegedly injured during the occurrence. However, Mst. Rashida was not produced by the prosecution to give evidence during the trial and was given up as being "unnecessary".
8. Dr. Abdul Sattar (P.W.5), S.M.O., D.H.Q. Hospital, Faisalabad, examined Muhammad Tahir deceased aged about 20 years, when he was still alive on the 20th of April, 1990 and found the following injuries on his person:--
(1) A lacerated wound 2 c. m. x 1 /3 c. m. x bone deep surrounded by abrasion 2-1/2 c.m. x 2-1/2 c.m. on forehead near hair line.
(2) A gutter forming lacerated wound 10 c.m. x 2 c.m. x brain matter coming out on upper part of head.
Injury No.1 was kept under observation, while injury No.2 was declared grievous. Injury No. 1 was caused by blunt weapon and injury No. 2 by a fire-arm.
9. On the same day at 10-35 a.m. the same doctor examined Mst. Rashida aged about 14 years and found the following injuries on her person:--
"Two fire-arms wounds 3/4 c.m. x 3/4 c.m. and 3/4 c.m. x 1/2 c.m., 5-1/2 c.m. apart from each other in the form of skin deep grazing on back of left shoulder. "
The injury was simple in nature caused by fire-arm weapon with the probable duration of 3 hours.
10. Dr. Qasir Abbas (P.W.4), Medical Officer, D.H.Q. Hospital, Faisalabad, conducted the post-mortem examination on the dead body of Muhammad Tahir deceased on the 21st of April, 1990 at 9-00 a.m. and found the following injuries on his person:--
(1) A lacerated wound 2 c.m. x 1/3 c.m. x bone surrounded by an abrasion 2-1/2 c.m. x 2-1/2 c.m. on forehead near hair line. Under line bone fracture present of frontal bone.
(2) A lacerated wound 10 c.m. x 2 c.m. up to bone deep on right side head, 3 c.m. from mid line. On exploration of injury No.2 an oval wound 1 c .m. x 1-1/2 c.m. in the depth of injury No.2. Brain matter coming out of this wound. On opening the skull the membranes below this wound were injured. Brain matter was also injured. Subdural and intra cerbral haemorrhage was present on right side brain.
In the opinion of the doctor the cause of death in this case was inter cranial haemorrhage and shock and damage to brain due to injuries Nos. l and 2. These injuries were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature, individually as well as collectively. Injury No. l was caused by blunt weapon and injury No.2 was caused by fire-arm.
The probable time which elapsed between the injury and death was about 8 hours and the time between death and post-mortem was 17 hours.
11. Blood-stained earth was recovered from the place of occurrence by Inspector Nasrullah Khan (P.W.14) in presence of Nazir Ahmad (P.W.6) on the 20th of April, 19910 vide memo. Exh.P.H. All the accused persons were arrested by Inspector Nasrullah Khan (P.W.14) on the 25th of April, 1990.
12. A .12 bore gun (P.6) was recovered from the house of Abdul -Ghaffar appellant by Inspector Muhammad Tariq (P.W.15) on the 6th of May, 1990 vide memo. Exh.P.J. which was attested by Niaz Ali (P.W.7).
13. A .12 bore gun (P.7) was recovered from the house of Abdul Sattar acquitted accused by Inspector Muhammad Tariq (P.W.15) on the 9th of May, 1990 vide memo. Exh.P.K. which was attested by Abdur Rashid (P.W.9).
14. A .12 bore gun (P.8) was recovered by Inspector Muhammad Tariq (P.W.15) on the 9th of May, 1990 vide memo. Exh.P.L. which was attested by Abdur Rashid (P.W.10).
15. Yet another .12 bore gun (P.9) was recovered from the house of Bashir acquitted accused by the same Police Officer on the same day vide memo. Exh.P.N. which was attested by Muhammad Akram (P.W.13).
16. Abdul Ghaffar appellant admitted the killing and pleaded exercise of the right of private defence of person. The other accused persons pleaded total denial and false implication due to enmity. According to Abdul Ghaffar appellant, two incidents took place on the fateful day. The first incident took place at about 6-00 a.m. when Muhammad Tahir deceased had a quarrel with Abdul Ghaffar appellant near the house of Abdul Ghaffar appellant and during the said quarrel Abdul Ghaffar appellant pushed Muhammad Tahir deceased as a result thereof the head of Muhammad Tahir deceased struck against a wall. According to Abdul Ghaffar appellant this is how Muhammad Tahir deceased suffered an injury on his forehead. Muhammad Tahir deceased went away to his own house bleeding profusely from his forehead and came back alongwith Muhammad Akram (P.W.13) and Muhammad Jamil (P.W.11) to the house of Abdul Ghaffar appellant for taking revenge. According to Abdul Ghaffar appellant Muhammad Tahir deceased fired at him but missed. Thereafter, Abdul Ghaffar appellant in exercise 'of right of private defence of person fired back at Muhammad Tahir deceased just once as a result of which Muhammad Tahir deceased died.
17. Thus, the case of the prosecution has to be seen in juxtaposition with the case of the defence and it has to be seen as to which out of the two versions appears to be nearer the truth. Unfortunately, both sides are not stating the whole truth. According to the prosecution Muhammad Tahir deceased died as a result of a shot fired at him by Abdul Ghaffar appellant. According to the medical evidence the injury on the right side of the head of Muhammad Tahir deceased which is described as Injury No.2 was the result of a fire-arm. However, the injury on the forehead of Muhammad Tahir deceased which is described as injury No.1 by the doctor was caused by a blunt weapon. On the prosecution's own showing, no blunt weapon of any sort was used at all. Thus, there is no explanation whatsoever for the injury on the forehead of the deceased. Learned counsel appearing on behalf of complainant Muhammad Jamil, father of Muhammad Tahir deceased in Revision Petition No.478 of 1992 tried to argue that this injury could be a result of a fall. This is a very far-fetched argument at best and is not supported by the medical evidence.
18. On the other hand, Abdul Ghaffar appellant is giving a definite explanation for the injury on the forehead of Muhammad Tahir deceased. However, his explanation that when Muhammad Tahir deceased alongwith his father Muhammad Jamil and Muhammad Akram came to his house to take revenge and he fired at Muhammad Tahir deceased while exercising his right of private defence of person is also not very easily acceptable.
19. Taking into account both the versions, that of the prosecution and the defence and all the other attending circumstances particularly the fact that Mst. Rashida who was also injured during the course of the same occurrence was not produced by the prosecution at the trial and was given up as being unnecessary, we are inclined to agree with the contention of the learned counsel for the appellant that it seems that both sides have not told the whole truth. How did the occurrence actually start seems to be shrouded in a mist of uncertainty. We are, I therefore, not inclined to confirm the sentence of death awarded to Abdul Ghaffar appellant and feel that ends of justice would be secured by reducing the sentence of death of Abdul Ghaffar to imprisonment for life.
20. Criminal Appeal No. 116 of 1992 is, therefore, partly accepted. The sentence of death of Abdul Ghaffar appellant is not confirmed. Abdul Ghaffar appellant is sentenced to imprisonment for life with benefit of section 382-B, Cr.P.C. The sentence of fine and compensation is maintained. It is ordered that the fine if recovered shall be paid to the legal heirs of Muhammad Tahir deceased alongwith the amount of compensation. Murder Reference No.45 of 1992 is answered accordingly. The appeal filed by the State against the acquittal of Abdul Sattar, Muhammad Bashir and Muhammad Younas is dismissed. The revision filed by Muhammad Jamil by way of Criminal Revision No.478 of 1992 is also dismissed.
N.H.Q./A-47/L Sentence reduced.