' ALI NAWAZ CHOWHAN, J.--Babar Ali alias Babri appellant was convicted under section 302, P.P.C.
By the learned Additional Sessions Judge, Lahore vide judgment, dated 1-12-1999 in complaint case No. 6 of 1998 arising out of F.I.R. No. 28, dated 26-1-1996 registered under sections 302/148/149, P.P.C.
At Police Station Raiwind City, Lahore and sentenced to death. By the same judgment Nawaz alias Badshah, Muhammad Akram and Muhammad Farooq were acquitted of the charge. The learned trial Court has sent Murder Reference No. 9 of 2000 for confirmation of death sentence. Both these matters are being disposed of through this single judgment.
2. Sohail Ahmad complainant while appearing as P.W.1 narrated the prosecution story as under:-- "On 26-1-1996 on Friday the 5th day of Ramzan Sharif, I along with Asif Javed, Muhammad Razzaq and my real brother Gulraiz deceased were present in our Behtak which is situated on the main road from where we all at about 11.45 a.m. Proceeded to the shop of Shafi Watch-maker, Gulraiz deceased told us that he wants to sit with Shafi Watchmaker in his shop and he went to his shop of Younas Battery Wala in order to settle a dispute of battery with him. We were busy in talking at the shop of Younas Battery Wala, while we heard Lalkara uttered by Fayyaz alias Phojoo and Nawaz alias Badshah. Both armed with carbines. When we saw them they were 5/6 in number were standing there. Fayyaz alias Fajo uttered Lalkara that Gulraiz is sitting in the shop of Shafi Watchmaker, he must not be spared and he should be killed. Whereupon Babar alias Babri and Muhammad Akram alias Papu both armed with mausers rushed to the shop of Shafi Watch-maker.
Farooq alias Farooqi was also with them who was armed with .222 rifle. They pushed the door of shop and Babar alias Babri out of them entered into the shop of Muhammad Shafi Watch-maker.
Babar alias Babri fired two shots upon Gulraiz. One of the shots fired by Babar hit against the wall and the other shot fired by him hit upon the left flank of Gulraiz. The accused-persons standing out of the shop resorted to aimless firing."
' The motive part of the story was narrated by him as under:- "Some time before the present occurrence my brother Gulraiz had fractured the legs of Fayyaz alias Fajo accused and because of this grudge the accused persons have murdered Gulraiz deceased."
' Asim Javed P.W.2 supported the complainant P.W.1
3. Dr. Ahmad Ghias P.W.8 on 26-1-1996 at 1-20 p.m. Medically examined Gulraiz Khan and found the following injuries on his person:--
(1) 3 x 3 mm lacerated wound with irregular margin and swelling around the wound (wound was bleeding at that time) at left mid chest in the left mid axillary line.
(2) A soft swelling measuring 5 x 5 inches at the back mid thoracic region just on the right side of the spine.
' The doctor advised X-ray chest P.A. View of the injured and referred the case to the Surgical Unit/Neuro Surgery Unit. Exh.PC is Medico-legal report.
4. Dr. Muhammad Maqsood P.W.7 and 28-1-1996 at 3-30 p.m .Conducted the post-moitem examination on the dead-body of Gulraiz deceased and found the following injuries on his person:- -
(1) A stitched surgical healing wound 4 x 1/2 c.m. With 3 black silk stitches intact and a chest tube inside present on front of left chest. 11 c.m. From anterior axillary fold 8 c.m. From left nipple at 3'O clock position.
(2) A circular wound with debrided edges 1 x 1 c.m. On left outer upper chest wall 7 c.m. From axila 12 c.m. From left nipple at 3'O clock position, 3 c.m. From Injury No.1.
(3) A prupulish contusion 4 x 3 c.m. On the back of right chest 3 c.m. From mid line 22 c.m. From nape of neck.
' According to the doctor the injuries were ante-mortem. Injury No.1 was due to surgical intervention. Injuries Nos.2 and 3 were caused by fire-arm weapon. The death was due to fire-arm injury to left lung, spleen, spine and their vessels and its subsequent complications leading to shock and death. The probable time between injuries and death-hospital and between death and post-mortem was within 6 to 18 hours. Exh.PE is the post-mortem report.
5. Muhammad Azam P.W.3 is the witness of recovery of two crime empties, lead bullets from the place of occurrence which were taken into possession by the Investigating Officer vide recovery memo. Exh.PB. Talat Rauf constable P.W.4 escorted the dead-body of the deceased from General Hospital, Lahore to the mortuary for post-mortem examination. After post-mortem examination he produced before the Investigating Officer last worn clothes of the deceased which were taken into his possession vide memo. Exh.PD. Akhtar Ali constable P.W.5 transmitted the sealed parcels containing crime empties and .30 bore pistol to the office of Forensic Science Laboratory, Lahore.
Younas Ali Shah, Draftsman P.W.6 prepared site-plan Exh.PC Muhammad Ashraf H.C. P.W.9 deposed about the safe custody of the sealed parcels containing two empties and .30 bore pistol in the Malkhana of the police station. Muhammad Arshad Latif, Inspector P.W.10 Investigated the case arrested accused Muhammad Babar, Muhammad Nawaz, Muhammad Fayyaz, Muhammad Farooq and Muhammad Akram, recovered .30 bore pistol on the piontation of Muhammad Babar vide recovery memo. Exh. PN, .222 rifle along with 8 live bullets on the pointation of Muhammad Farooq vide memo. Exh. PO. Shoaib Ahmad, Inspector P.W.11 investigated the case. Mumtaz Hussain, A.S.-I. P.W.12 drafted formal F.I.R. Exh.PG/1 on the basis of written complaint Exh.PG. Muhammad Aslam, Head Constable P.W.13 is the witness of recovery of .30 bore pistol on the pointation of Muhammad Babar. Mukhar Ahmad S.-I. P.W.14 started investigating. In this case. He inspected the spot and prepared site-plan Exh.PR, took into his possession two crime empties vide memo. Exh.PG.
On 27-1-1996 he visited the General Hospital where he recorded statement of Gulraiz injured (deceased), prepared inquest report Exh.PT and injury statement Exh.PU and dispatched the dead- body to the mortuary for autopsy. He also recorded the statements of the witnesses. Major Mubasher Ullah P.W.15 also investigated the case. The report of Chemicals Examiner is Exh.PT and that of Serologist is Exh.PU.
6. In his statement under section 342, Cr.P.C. The case of the appellant was one of denial. He adopted the statement as given by his co-accused Muhammad Akram, who had said:-- "I have been falsely involved in this case due to enmity and mala fide of the complainant who is a criminal and greedy person only to usurp out land. In fact the deceased had been got murdered by Sohail Ahmed complainant himself from some unknown persons only to marry beautiful wife and to get landed property of the deceased Gulraiz. All the prosecution witnesses are close relatives and crime partners of the complainant and due to this reason and under the influence of complainant, they have deposed falsely against me and my co-accused."
7. The following excerpts from the statement of Sohail Ahmad are being reproduced below:-- "Three or four cases in all were registered against me in my past life. Volunteered that those cases were got registered by the accused-persons against me and the same were got discharged. The first case under section 365, P.P.C. Was got registered by the accused persons at Police Station City Raiwind, Lahore at the instance of Fayyaz accused. The 2nd case was got registered by any of the accused whose name I do not remember under section 324, P.P.C. At Police Station City Raiwind.
Another case under section 324, P.P.C. Was got registered by Pappu amongst the accused family against me at the said police station. No other case was ever registered against me uptill now.
Again said some other cases might have been registered against me at the behest of the accused persons. A case was registered at Police Station Nankana District Sheikhupura for bduction of ransom against me by Sh. Arshad Latif, Inspector at the behest of accused persons. He was the same Inspector who got three accused persons discharged in this case. At that time, Farooq accused was in jail and other accused were not in the jail. Some doctor was complainant in that case which was registered at police station Nankana."
"On 29-1:1999 another case under section 392, P.P.C. Has been registered against me at Police Station Manga Mandi, Lahore at the instance of accused party. In that case Abdul Aziz is complainant and the case bears No.12 of 1999. Another case under Art. 3/4 of PEHO, 1979 has also been got registered against me by the accused persons at Police Station City Raiwind, Lahore by Hamid Lobara, A.S.-I."
"It is correct that eight cases were registered under different offences against my deceased brother Gulraiz. It is correct that he was involved in cases of theft, forcible possession of lands, trespassed, attempt to murder, dealing in narcotics and keeping unauthorized weapons."
"Six accused were involved in the case in which the legs of accused Fayyaz were fractured. I was also one of the accused in that case."
"I have produced Muhammad Shafi Watchmaker before the police. The watchmaker Muhammad Shafi was a friend of the deceased Gulraiz and he used to sit there. The deceased was doing nothing at the said shop at the time of occurrence. No other person was present in the said shop at the time of occurrence. The deceased had not participated in the Punchayat proceedings with us.
The said batteries were traced out. The said batteries were given to us by the shopkeeper after 2- 1/2 months of the occurrence. It is incorrect to suggest that I have coined the lame excuse for showing my presence and that of two witnesses at the spot in order to become false witness."
"It is correct that there are shops on both sides of the shop where the occurrence took place. These shops are Bismillah Building Material, Rana Sajid Tyre Service, Glamour Motors, Mehmood Sweet Corner, Hotel Lucky Traders etc. And there is office of local municipality in front of the place of occurrence. The place of occurrence is located at main road where the traffic ply on the said road and the people passed on the said road. There is no eye-witness of the said occurrence from these places."
"It is correct that no weapon was recovered from any of the accused by the police. Volunteered the police who was duty bound to recover had not recovered the weapons from other accused."
"My clothes were not stained with blood when the deceased was lifted from the shop and was taken to the hospital."
8. S.P. Mubashir (P.W.12) is also one of the Investigating Officers and the following excerpt from his statements is reproduced:-- "It is correct that Shafat Ali appeared before me on 4-7-1996 and he stated that at the time of occurrence he was present inside the Shafi Watch Maker Shop and he witnessed that a boy came who fired upon Gulraiz deceaed and ran away. He also stated before me that after a short-while few persons came over there and took away injured Gulraiz on a vehicle. He stated before me that no P.W. Was present over there at the time of occurrence. It is correct that I summoned Shafat Ali and Shafi Watch Maker for 11-7-1996 in order to interrogate them in my presence but they did not appear before me."
9. According to the learned counsel for the appellant, this was an un-witnessed occurrence and a case where the name of the appellant has been substituted for the real assailant. That no one came from the locality which was thick to give an account of the occurrence which took place in a bazaar.
10. Talking about the complainant Sohail, the learned counsel stated that he was unbelievable.
Referring to his cross-examination, it was said that he has been trying to suppress his past criminal conduct and the cross-examination is reflective of that. Reference was also made to an order in Writ Petition No.23905/95, a copy of which is attached at page 171 of the file. It is said that this High Court had passed adverse remarks against the present complainant and it was further reflected that he was not absolutely trustworthy. It was said that the eye-witnesses were not natural witnesses and their non-presence at the time when the deceased was taken in an injured state to the hospital further gives support to the case of the appellant that it was after the occurrence that they had been inducted in the case and after delaying the F.I.R. Sufficiently.
11. It is the case of the complainant that this was a day time occurrence in the thick of a locality, therefore, substitution for an actual culprit was not possible. It was said that the recoveries had been effected from the assailants but because of the dishonest investigation the recovered empties were sent along with recovered weapons belatedly which led to spoiling of the prosecution case with respect to the recoveries.
12. There was enmity inter se the parties and this is borne out from the record. In a day time occurrence in the thick of the locality, it is rather difficult for the complainant to substitute the real assailants with innocent persons merely on ground of enmity. Murder is a heinous crime which creates the worst enmity and, therefore, it is hard to believe in the possibility of substitution in such a case. It is correct that the other co-accused have been acquitted but it is usual here to widen the net. While defective investigations also bring fruits to the accused in our adversarial system.
13. Two bullets recovered from the dead-body of the deceased did match with the weapon recovered although these were sent belatedly to the Forensic Science Laboratory despite the fact that the recoveries were made separately.
14. There is delay in the F.I.R. But the explanation given is that the injured had to be provided medical aid first which is a cogent argument.
15. While praying for alternate remedy, the learned counsel for the appellant has made the following points and urges for mitigation in the sentence.
16. That the appellant was not one to be punished of death. In this connection, he pointed out the following factors. He referred to a bail application which had been earlier moved by the appellant wherein stated that he was in his youth and of about 17 years of age; that the said bail application also had a Birth Certificate with it as an Annexure and according to which he was 17 years, 1 month and 1 day of age, which meant that he was in his early youth then; that he was said to be under the commanding Lalkara of his other brothers; that there was a single shot which hit the deceased; that there was a persisting and long standing enmity inter se the parties and pages 42 to 45 showed how the parties were locked up in various cases; that the complainant is not to be trusted as there were remarks against him given by this Court; that the eye-witnesses do not find mention in the Inquest Report and this further reflects that they were not present even at the spot; that several persons gathered there when the occurrence took place but none of them was placed as a witness although they were natural witnesses. While the rest were not the natural witnesses; that there was an element of obsessional provocation because the elder brother of the appellant had been injured and his legs broken; that the deceased was not, anyhow, a Masoom-udDam. He was involved in several criminal cases. Regarding the adequate punishment he deserved, reliance was placed on the case of Mushtaq Ahmad v. State (PLD A 2004 SC 150).
17. After hearing both sides and after perusing the record, we are of the considered view that this was a case where sentence ought to be reduced keeping in view the safe administration of justice and, therefore, while we uphold the order of conviction, we reduce the sentence from death to life imprisonment. The appellant, however, will be having the benefit of section 382(b), Cr.P.C.
18. Consequently, the death sentence is not confirmed and the murder reference is answered in the negative.
Sentence reduced.