' NASIM SABIR CH., J.---Ahmed Yar, Zahoor Ahmed, Bashir, Muhammad Zafar, Muhammad Akram (died during trial), sons of Haq Nawaz and Haq Nawaz son of Ahmed, were tried by the learned Additional Sessions Judge, Mianchannu, District Khanewal, in case F.I.R. No,271, dated 7-7-1999, under sections 302/109, P.P.C. Registered at Police Station Tulam, District Khanewal, for committing murder of Qadir Bakhsh deceased. By virtue of judgment, dated 31-8-2000 the learned trial Judge found Ahmed Yar appellant guilty of the said charge, convicted him under section 302(b), P.P.C.
And sentenced to death as Ta'zir with further direction to pay a sum of Rs,50,000 (Rupees fifty thousand) to legal heirs of Qadir Bikhsh deceased as envisaged by the relevant provisions of section 544-A, Cr.P.C. Or in default thereof to further undergo six months Simple Imprisonment. The learned trial Judge by giving the benefit of doubt to Zahoor Ahmed, Bashir, Muhammad Zafar and Haq Nawaz, acquitted them of the said charge.
2. Murder Reference No,578 of 2000 pertaining to death sentence awarded to Ahmed Yar- appellant, has been sent to this Court for confirmation or otherwise of the same. The appellant has approached this Court by filing Criminal Appeal No,405 of 2000 to call in question conviction and sentence passed against him by the said learned Judge. Both these matters are being disposed of together through this single judgment.
3. The prosecution version as unfolded through F.I.R. (Exh. PA) was that on 7-7-1999 at 7-00 p.m.
Muhammad Hanif-complainant (P.W.1) was coming back to his house situated at Chak No,6/8AR from Makhdumpur after seeing his relatives along with his father Qadir Bukhsh, brother Dalmeer and one Manzoor on four separate cycles. At about 4-30 p.m. When they reached in the area of Chak No,17/8R and his father was few paces ahead of them on bicycle, Muhammad Yarappellant armed with Kassi suddenly emerged there. He gave three Kassi blows hitting Qadir Bukhsh at neck, back of shoulder and head, who fell down. The assailant fled away from the spot along with weapon of offence. The complainant and other P.Ws reached near Qadir Bukhsh, who succumbed to the injuries at the spot. The complainant suspected that Muhammad Yar-appellant had committed the Qatl-eAmd of Qadir Bukhsh deceased in connivance and abatement of his acquitted co-accused.
' Motive for the occurrence was that the pendency of family dispute between the parties especially with regard to a dispute pertaining to marriage of complainant's sister with Zahoor Ahmed acquitted co-accused.
4. Investigation into the crime was carried out by Manzoor Ahmed Inspector (P.W.9) and Shabbir Ahmed Inspector (P.W.6), after completion whereof challan against the appellant and his acquitted co-accused was prepared and submitted before the trial Court for their trial in accordance with law.
5. The learned trial Court on receipt of challan, framed charge against the appellant and his acquitted co-accused to which they pleaded not guilty and claimed to be tried.
6. In order to prove the case against the appellant and his acquitted co-accused, the prosecution had examined as many as eleven witnesses and gave up Dalmeer Ahmed and Muhammad Ahmed P.Ws as being unnecessary.
' In order to prove the ocular account, the prosecution had produced Muhammad Hanif- complainant (P.W.1) an eyewitness of the occurrence, who fully tried to reiterate in all four corners the contents of the F.I.R. (Exh. PA)
' Manzoor Ahmed (P.W.2) was another eyewitness of the occurrence, who had also supported the complainant's version. He had further stated that Ahmed Yar-appellant while in police custody led to the recovery of Kassi blood stained (P2), which was taken into possession vide recovery memo.
Exh.PD. He attested the recovery memo along with Dalmeer (given up P.W.)
' Inayat Ali (P.W.3) stated that he had identified the dead body of Qadar Bakhsh deceased at the time of postmortem examination.
' The prosecution produced Dr. Shahid Hussain Shah (P.W.4), who conducted postmortem on the dead body of Qadir Bukhsh deceased and found following injuires on his persons:
(i) A lacerated wound 4 c.m. x 1 c.m. x bone deep under lying bone exposed on the left side of scalp 11 c.m. Above the left ear.
(ii) A lacerated wound 3 c.m. x 1-1/2 c.m. x bone deep, bone piece coming out of the wound on the left cheek on the lower jaw.
(iii) A lacerated wound 2 c.m. x 1-1/2 c.m. x bone deep on the left cheek I c.m. Away from Injury No,2.
(iv) A lacerated wound 1 c.m. x 1 c.m. x bone deep with under lying bone exposed on the left cheek 6 c.m below the left eye ball.
(v) An incised wound 5 c.m x 2 c.m. x bone deep under lying bone exposed and cut on the back of left shoulder.
(vi) An incised wound 3 c.m. x 1-1/2 c.m. Going deep on the front and left side of neck.
(vii) A bruise 15 c.m. x 10 c.m. On the back of left chest, ribs under the bruise depressed and seems to be fractured.
' ON DISSECTION: Scap, skull, vertebrae, membrains, brain, spinal cord were normal. THORAX: 6th, 7th, 8th ribs fractured on left side. Pleurae ruptured on left side. Pleural cavity contained blood. Trachea cut on the front. Left lung ruptured on lower part. Both chambers of heart were empty. Mandible bone (lower jaw) fractured on left side. Stomach healthy and contained semi digested food particles. Small and large intestine contained faecal matter. Urinary bladder contained 4 ounces of urine. All others were healthy.
' MUSCLES. BONES AND JOINTS: Left scapula bone cut in the upper part and lower part fractured.
Lower jaw fractured on left side.
' According to opinion of the doctor, death had occurred due to shock and haemorrhage (external and internal) and collapse of left lung and injury to air passages (trachea), which was due to injuries Nos.1 to 7. All the injuries were ante mortem. These injuries were collectively dangerous to life in natural course of life. Injuries Nos.5 and 6 were caused by sharp edged weapon and the rest were caused by blunt weapon. Time between injuries to death was within half hour and time between death and postmortem was 15 to 16 hours.
' Muhammad Rafique Constable (P.W.5) stated that he had escorted the dead body of Qadir Bukhsh to the hospital for postmortem examination. On 8-7-1999 after postmortem examination, the doctor handed over to him last worn clothes of the deceased Kameez (P3), Chaddar (P.4), Safa white (P5) all with blood stained and pair of shoes (P6/1-2). All these articles were produced before the investigating officer, who took into possession vide recovery memo. (Exh. PE).
' Raja Muhammad Iqbal Draftsman (P.W.7) stated that he had taken the rough notes on the pointation of the witnesses and under the direction of the police and had prepared the site plan Exhs. PG, Exh.PG/l.
' Manzoor Ahmed Inspector (P.W.9) and Shabbir Ahmed Inspector (P.W.6) deposed about the duties performed and acts done by them during course of investigation.
' The evidence of remaining witnesses, namely, Ghulam Abbas Constable (P.W.8), Muhammad Iqbal H.C. (P.W.I0) and Muhammad Iqbal (P.W.11) was of formal nature, so their statements do not require to be brought under discussion in detail.
7. The prosecution after tendering in evidence reports of Chemical Examiner (Exhs. PL and PM) and reports of Serologist (Exhs.PN and PP) respectively closed its case.
8. The appellant was examined under section 342, Cr.P.C. Ahmed Yar-appellant in an answer to the Question No,6 whey the case against him and why the P.Ws have deposed against him? Made a statement, which is reproduced here in extenso:-- "I and my all co-accused are innocent and have been involved in this false case due to longstanding litigations with the complainant party. My brother Zahoor Ahmed was married with Mst. Kanizan Bibi d/o deceased Qadir Bukhsh and in Watta my sister Mst. Rajan Bibi was married with Haji s/o deceased Qadir Bukhsh.My sister Ms. Rajan Bibi died 15/16 years after her marriage and relations between my brother Zahoor Ahmed and his wife Mst. Kanizan Bibi became strained.
Qadir Bukhsh (deceased) played an important role to destroy the harmony between the spouses.
Litigation, therefore, started between Mst. Kanizan Bibi and my brother Zahoor Ahmed. On 7-7-1999 Qadir Bukhsh deceased was found dead on a road side about 2 kilometres away from our residence. On information the complainant and police carried the dead body to P.S. And remained guessing till mid-night about the cause of his death. First impression was that it was road accident.
But on second thought case was registered against us on the basis of surmises, conjectures and suspicions because of litigation. A case for Rs,70,000 as past maintenance for the children of Zahoor Ahmed and maintenance in further has been against Zahoor Ahmed and said amount is yet to be recovered, hence complainant party got me falsely challaned to extract some money instead of falsely involving Zahoor Ahmed in the present case. I have not committed the murder. I was 17 years old at the time of occurrence. P.Ws have deposed falsely due to close relations with the deceased. Further I reply on the statement of Zahoor Ahmed my co-accused".
' The appellant did not opt to make his statement on oath as provided under section 340(2), Cr.P.C.
In disproof of the accusations brought against them. He had not produced any defence evidence in his defence.
9. The trial Court after recording evidence of both the parties came to the conclusion that the prosecution had brought home, guilt of the appellant beyond any shadow of doubt and convicted and sentenced him as aforementioned, whereas his acquitted co-accused were acquitted by giving them the benefit of doubt.
10. Learned counsel appearing on behalf of Ahmed Yar-appellant has strongly argued that F.I.R.
Had been registered after preliminary investigation, therefore, no sanctity can be attached to its contents, that presence of all the prosecution witnesses at the spot was highly doubtful and prosecution had failed to prove the same on record; that there are glaring contradictions between the deposition of Muhammad Hanif-complainant (P.W.1) and Manzoor Ahmed (P.W.2) on one side and Inayat Ali (P.W.3) on the other side; that admittedly the prosecution witnesses are closely related inter se as well as with the deceased, therefore, their depositions could not have been believed without any corroboration from an independent and unimpeachable source, which was lacking in this case; that conviction cannot be maintained on the testimony of such closely related witnesses; that ocular account is totally belied by the medical evidence as rendered by Dr. Shahid Hussain Shah (P.W.4); that according to the ocular account all the injuries had been caused by Kassi i.e, sharp edged weapon, whereas according to postmortem report only two injuries are caused by sharp edged weapon and remaining five injuries are caused by blunt weapon; that recovery of Kassi (P2) is highly doubtful as the same was recovered after one month from the house of the appellant; that it was impossible that same would remain stained with blood after such a long period' and was recovered from an open place; that no independent witness had been associated in the recovery proceedings; that motive as has been alleged by the prosecution in the F.I.R. Had not been proved by the independent witness and that the appellant according to his statement under section 342, Cr.P.C. Was aged about seventeen years and three months.
Therefore, in any case, it was not a case of capital punishment.
11. Learned counsel for the State assisted by learned counsel for the complainant has controverted the contentions raised by learned counsel for the appellant and had contended that it was a day time occurrence; that the was no question of any misidentification; that the appellant was armed with Kassi at the time of occurrence, he used the same and murdered Qadir Bukhsh deceased; that recovery of Kassi has been effected, which was blood stained and according to the report of Forensic Science Laboratory the same was stained with blood of human origin and that motive as set up in the F.I.R. Had also been proved by the prosecution, therefore, the appellant had rightly been convicted and sentenced by the learned trial Court.
12. We have heard the learned counsel for the parties at length and appraise the evidence on record with the able assistance of learned counsel. The main contentions of the learned counsel for the appellant are based on the motive, ocular account, medical evidence and recovery. We would like to deal with these pieces of evidence in seriatim in view of ocular account on record.
13. The motive for the occurrence as put forward by Muhammad Hanifcomplainant (P.W.1) was that his sister was married to Zahoor Ahmed, brother of the appellant. Many family suits were pending between the parties due to this marriage. Manzoor Ahmed (P.W.2) had also made the statement almost on the same lines, but as far as the threat to Kill Qadir Bukhsh deceased prior to the occurrence was concerned, both the said prosecution witnesses had failed to prove the same.
Admittedly, there was a bad blood and civil litigation pending between both the parties, but as far as threat to life to the deceased was concerned, the prosecution had failed to prove the same, therefore, the motive put forward by the prosecution on the basis of said pending civil litigation cannot- be accepted, as litigation itself was not of such a nature that would to prompt any party to commit the murder in such a brutal manner. Reliance can be placed on "Atta Muhammad etc. Versus The State" (1995 SCM R 599) wherein it has been held that in the present case, besides dispute between the parties over the possession of land, there was criminal litigation between the eyewitnesses and the accused, and the parties were pitched against each other. So the benefit of the maxim "enmity cuts both ways" should not be given to the prosecution. It should rather go to the favourite child of the law. The evidence reveals that civil litigation is pending between Zahoor Ahmed and his ex-wife Mst. Kanizan, sister of Muhammad. Hanifcomplainant (P.W.1), which was admitted by both the parties. It cannot be said by any stretch of imagination that Qadir Bakhsh had been done to death for the reason that he was pursuing the family matter of his daughter.
There were two grown up brothers of Mst. Kanizan, so in presence of such grown up persons, there was no fun to kill the old man on this pretext that civil litigation is pending between the families. In our view, the prosecution had utterly failed to prove the motive as set up in this case.
14. The ocular account had been rendered by Muhammad Hanif-complainant (P.W.1), who had reiterated the contents of F.I.R. In his examination-in-chief. During cross-examination Manzoor Ahmed (P.W.2) had admitted relationship with the deceased as well as with the complainant and stated that the appellant was at a distance of one and a half acre from the P.Ws. The appellant stopped Qadir Bukhsh, who remained sitting on the bicycle. On receiving first Kassi blow Qadir Bukhsh fell down in the centre of the Pacca road. After 1-1/2 or 2 minutes received the second Kassi blow. Qadir Bukhsh as a result of which died at the spot. The whole occurrence was completed within 2/3 minutes. Also admittedly litigation was pending between the parties for the last eight years. However, there are some other material contradictions and discrepancies in the evidence of both the said witnesses. Learned counsel for the appellant has strongly stressed upon the point that both the prosecution witnesses are closely related, therefore, their evidence cannot be relied upon in absence of corroboration from some other independent source. It is an established principle of law that mere relationship of prosecution witnesses inter se would not make them as interested witnesses and their depositions cannot be brushed aside on this ground, if they had no direct enmity with the accused. Admittedly, the appellant is not directly related to the main litigation, it was his brother Zahoor Ahmed, who had strained relation with his wife, sister of Muhammad Hanif-complainant. If the P.Ws had to involve any person in this case as a main accused, then that would have been Zahoor Ahmed with whom they had litigation and also closely related. P.Ws would never like to substitute an innocent person and spare the actual killer, especially when the occurrence took place in a broad day light. Contradictions and discrepancies pointed out by learned counsel for the appellant are of not much importance, therefore, ocular account rendered by Muhammad Hanifcomplainant (P.W.1) and Manzoor Ahmed (P.W.2) was trustworthy, credible and confidence inspiring.
15. As far as the medical evidence was concerned, Dr. Shahid Hussain Shah (P.W.4), who conducted the postmortem examination on the dead body of Qadir. Bukhsh deceased had found as many as seven injuries on his person. Out of these injuries, Injuries Nos.5 and 6 were caused by sharp edged weapon on the back left shoulder and on the front and left side of neck respectively, whereas remaining five injuries were lacerated wounds and bruises. According to opinion of the doctor, death was caused due to shock and haemorrhage and collapse of left lung and injury to air passages (trachea), which was due to injuries Nos.1 to 7. All the injuries were ante mortem and were collectively sufficient to cause death. It has further been noticed that Muhammad Hanif- complainant (P.W.1) and Manzoor Ahmed (P.W.2) had stated that they had seen the appellant inflicting two injuries on the body of Qadir Bukhsh deceased, one on his neck and other on the back of his shoulder, whereas post-mortem report (Exh. PF) reveals that there were seven injuries on the person of the deceased. Two of which were result of sharp edged weapon whereas five were caused by blunt weapon. Both the prosecution witnesses had only mentioned two injuries, one on the neck and other on the shoulder, whereas according to the postmortem report also there were two injuries caused by sharp edged weapon, one on the neck and other on back of the shoulder.
Therefore, the medical evidence corroborates the ocular account to that extent whereas other bruise and lacerated wounds on different parts of the body of the deceased, could have been caused by falling on the Pacca road. According to the prosecutions' version, after receiving the first blow the deceased fell on the Pacca road, therefore, bruises and lacerations had sufficiently been explained by the prosecution. There is no contradiction between medical evidence and ocular account and medical evidence sufficiently supports the eyewitness version.
16. Manzoor Ahmed (P.W.2) and Shabbir Ahmed Inspector (P.W.6) were the witnesses of recovery of weapon of offence i.e, Kassi (P2). The said recovery was effected on the pointation of the appellant from his house situated at More 17/8R after one month of the occurrence, while stained with blood, which was taken into possession through recovery memo (Exh.PD) attested by Manzoor Ahmed (P.W.2) and Shabbir Ahmed Inspector (P.W.6), but during cross-examination it is on record that house wherefrom Kassi was recovered was jointly owned by all the members of the family of the appellant. During cross-examination. Shabbir Ahmed Inspector (P.W.6) had stated that he did not ask any person from the locality to associate with the recovery proceedings. Further stated that Dalmeer (given up P.W.) and Manzoor Ahmed (P.W.2) were present at the police station when the appellant disclosed about the recovery of Kassi at about 12-30 noon. Non-association of, independent person from the locality the recovery proceedings when the independent witnesses were available and to take a relative, who was also eyewitness of the occurrence, from the police station to the place of recovery, casts grave doubt with regard to recovery proceedings. The recovery made in such circumstances, in our view, would not advance the case of prosecution.
Kassi is an implement commonly used by the agriculturists and easily available in every such household and recovery of such a Kassi after one month of the occurrence still being blood stained was beyond any imagination, therefore, in such scenario any report by the Forensic Science Laboratory would not be of any consequence. We have noticed that recovered Kassi (P2) as well as blood stained earth collected from the spot were handed over to Muhammad Iqbal (P.W.10), who delivered the same to Ghularn Abbas (P.W.8) on 9-8-1999, who delivered the same to the office of Chemical Examiner, Lahore, on the same day. The report with regard to both items was that these items were stained with blood and according to report of Serologist, both articles are found to be stained with human blood. Therefore, in our view, recovery of Kassi in the peculiar circumstances of this case, which was not supported by independent witnesses, if sent along with blood stained earth at the same time to the Chemical Examiner and result. Was positive then it could not be treated as corroborative piece of evidence. In the instant case, Kassi used as weapon of offence was recovered from the common residence after one month of the occurrence, still blood stained could not be believed and therefore, would not be considered as a corroborative piece of evidence.
17. The appellant while recording his statement under section 342, Cr.P.0 had denied the allegation levelled against him and has professed innocent in his reply to the question why this case against him and why the PWs have deposed against him. The appellant had replied that he had been involved in this case because of longstanding litigation between the parties i,e. His brother Zahoor Ahmed and his ex-wife Mst. Kanizan, who is daughter of the deceased and sister of the complainant. The plea advanced by the appellant that he had falsely been involved due to enmity in this case cannot be accepted as phenomena of substitution is rare in our country. It has been held in number of cases by the august Supreme Court that it is not possible that closely related witnesses would normally allow the real murderer of their close relative to escape by implicating an innocent person. Reliance in this regard can be placed on "Jawed Ahmed versus The State" (PLD 1996 SC 138). The plea of the appellant did not ring truth. However, while recording his statement under section 342, Cr.P.C. He had 'described his age as seventeen years at the time of occurrence and had further deposed that he had been involved due to longstanding litigation with the complainant party and there are number of cases pending between the parties. He had further been deposed that on 7-7-1998 Qadir Bukhsh deceased was found dead on a road side about two kilometers away from his residence. On receiving information, the complainant and police carried the dead body to police station and remained guessing till midnight about the cause of his death.
First impression was that it was a road side accident. But on the second thought, a case was registered against the appellant and his co-accused. He being seventeen years of age at the recording of statement under section 342, Cr.P.C., which was recorded on 21-8-2000, whereas the incident took place on T7-1999 about one year earlier, therefore, at the time of occurrence the appellant could have been little more than sixteen years of age coupled with the fact that the motive had not successfully been proved by the prosecution as set up in the F.I.R. Although it was not necessary to set up any motive, yet once it is set up then it becomes the duty of the, prosecution to prove the same and in case of failure to prove the same that will adversely affect case of the prosecution. As far as the litigation is concerned, that was admittedly pending between the parties, but as far as extending of threats as a result of such litigation, had not been proved F by the prosecution. The prosecution has successfully brought home the guilt of the appellant by producing ocular evidence in the form of depositions of Muhammad Hanif-complainant (P.W.1) and Manzoor Ahmed (P.W.2) corroborated by the medical evidence, therefore, we are of the view that the prosecution had succeeded in proving the case beyond reasonable doubt against the appellant. According, we maintain the conviction under section 302(b), P.P.C. And hold the appellant responsible for the murder of Qadir Bukhsh. Deceased. But as far as the quantum of sentence is concerned, we are of the view that the appellant was little more than sixteen years of age at the time of occurrence. The motive as set up by the prosecution with regard to threatening of the deceased by the appellant party had not been proved by the prosecution, although same had been set up in the F.I.R. These factors could be considered as extenuating circumstances, as far as the sentence awarded to the appellant was concerned. Considering the same as a mitigating circumstance to the extent of sentence, we converted the death sentence into life imprisonment. The compensation awarded by the learned trial Court is maintained. Benefit of section 382-B, Cr.P.C. Is however extended to the appellant in the circumstances of this case.
18. With the above modification in the sentence Criminal Appeal No,405. Of 2000 filed by Ahmed Yar-appellant is dismissed. Death sentence of Ahmed Yar-appellant is NOT confirmed and Murder Reference No'.578 of 2000 is answered in the negative.