' Appellants Muhammad Aslam alias Manna and Mukhtar Ahmad were tried by the learned Additional Sessions Judge, Sheikhupura (in case registered vide F.I.R. No,59, dated 1-4-2002 under sections 302/ 148/149/364, P.P.C., Police Station City Farooqabad, District Sheikhpurua whereby they were convicted under sections 302(b)/34, P.P.C. And sentenced to imprisonment for life each with a compensation of Rs,50,000 each to be paid to the legal heirs of the deceased under section 544-, Cr.P.C. In default whereof they were directed to further undergo six months R.I. Each, for the murder of deceased Idnan Qaisar.
2. Appellants have assailed the above awarded conviction and sentence through this appeal while the complainant has filed Criminal Revision No,362 of 2003 for enhancement of the sentence of the appellants. Both these matters are being disposed of through this single judgment as they arise out of the same judgment.
3. The prosecution story as given in the F.I.R. (Exh. PS), lodged on the statement of complainant Farman Ali Bhatti briefly stated in that on 30-3-2002 at 9-00 p.m. He along with Idnan Qaisar (his deceased son), Muhammad Asghar, Jamayat Ali were sitting in the courtyard of his house, electricity was on, on the call of bell, the said Muhammad Asghar opened the door upon which Mukhtar Ahmad and Muhammad Aslam (both the appellants) came inside the house; that Muhammad Aslam said that Idnan Qaisar was being called by his father; that both of them took him along with them in their presence who did not return till night whereupon, according to the complainant, he along with Muhammad Asghar went to the house of Muhammad Aslam where father of appellant Muhammad Aslam, namely, Safdar Ali met them from whom they inquired about Idnan Qaisar who informed them that Idnan has been sent with Aslam, Asghar, Tanvir and Amir Afzal for an urgent piece of work and they will come back soon; they were not satisfied from his reply and felt worried; that in the meanwhile, Kashi and Irshad informed them that they had seen that Aslam and Mukthar (appellants) had brought Idnan Qaisar to the house of Safdar where Asghar, Safdar Ali, Tanvir Ahmad and Amir Afzal were also present, they took him inside the house and closed the door; they again went there but none was present there as such they continued his search; that ultimately, Aslam appellant met and informed them that they had suspicion that the said Idnan used to tease his sister Salma and it was for the said reason that they had called him to their house and he was done to death and that they had thrown his dead body in the Q.B. Link Canal whereupon they overpowered the said Aslam appellant and produced him before the police. It was alleged in the F.I.R. That accused Aslam (appellant), Asghar, Safdar, Mukhtar Ahmad (appellant) and Amir Afzal, with their common intention, having abducted complainant's said son, murdered him and threw his dead body in the canal.
4. After having completed legal formalities and having completed investigation of the case, the police submitted challan against the appellants and others to face trial before the learned Court of competent jurisdiction, where, in order to prove its case, the prosecution examined fifteen witnesses including the doctor and the Investigating Officer.
4. The accused, when examined under section 342, Cr.P.C. Denied the prosecution case and attributed their involvement to false implication.
5. In support of this appeal, learned counsel for the appellants, made following submissions:-
(i) That the evidence of last seen furnished by the prosecution and the factum of taking away the deceased by the appellants, has been disbelieved by the learned trial Court;
(ii) That on the same set of evidence, appellants' acquitted co-accused, namely, Amir Afzal, Tabbassum Abbas alias Tanvir, Safdar and Asghar Ali were acquitted by the learned trial Court but the said benefit was not extended to the appellants by way of their acquittal. According to the learned counsel, Crl. A. No,655 of 2003 (Farman Ali v. State etc.) filed against their acquittal has already been dismissed by a learned Division Bench of this Court in limine vide order, dated 2-6- 2003;
(iii) That there is a two days delay in lodging the First Information Report which is fatal to the prosecution case;
(iv) That the occurrence took place in the house of appellant Muhammad Aslam during the dark hours of the night and was unwitnessed;
(v) That the version of appellant Muhammad Aslam is more plausible and convincing;
(vi) That the conviction of Mukhtar appellant is mainly based on the recovery of "Danda" (which is commonly used by the household wives for grinding chilli and salt);
(vii) That, to the least, the case of Aslam appellant would fall under section 302(c), P.P.C. And not under section 302(b), P.P.C.; (viii)That only a "Danda" (which is commonly used by the household wives for grinding chilli and salt) was used in the occurrence;
(ix) That the extra-judicial confession, which was before the father of the deceased, is not admissible in evidence, therefore, the same cannot be taken into consideration;
(x) That as the case against the appellants is of doubtful in nature, therefore, appellants are entitled to acquittal.
6. While defending the impugned judgment of conviction, learned counsel for the complainant made following arguments:-
(i) That there was no previous background of enmity, therefore, no question of false implication or substitution of the real culprits arises in this case;
(ii) That the case of acquitted co-accused is distinguishable from the case of the present appellants because as far as present; appellants are concerned there is sufficient material on record to fully connect' them with the commission of the offence as there is medical evidence, evidence of 'recovery of bloodstained "Danda", clothes of the appellants coupled with evidence of last seen. According to learned counsel, the learned trial Judge has disbelieved the same on grounds not sustainable in law;
(iii) That the presence of the prosecution witnesses at the spot was natural because they have fully explained and proved their presence there;
(iv) That as far as delay in lodging the F.I.R. Is concerned, according to the learned counsel, that has reasonably been explained by the complainant which is plausible and convincing,
(v) That regarding the crucial question whether the deceased was taken by the appellants or he himself went to the said house, learned counsel explains that the time of the occurrence is 9-00 p.m. On 30-3-2003, which is not too late in the night.
(vi) That there was only one witness of the occurrence who could explain the reality who is Mst.
Salma, but she has not been produced during the trial although, being a sister of Muhammad Aslam appellant, she could have easily been produced;
(vii) That the deceased was wearing a "pant" (trouser) at the time of the occurrence, therefore, no question of raping Mst. Salma arises as it was hardly possible; (viii)That since it is a case of two versions, therefore, if both of them are kept in juxta-position then the version put forth by the complainant is more plausible and convincing;
(ix) That even if, for the sake of arguments, the plea of grave and sudden provocation raised by the appellants, is taken into consideration then the sentence awarded to the appellants is not excessive one;
(x) That the number of injuries co-incise with the number of assailants meaning thereby that the assailants were more than one which further strengthens the prosecution case;
(xi) That as a young man has been butchered and as the learned trial Court has already taken a lenient view, therefore, it would be in the paramount interest of justice if the appeal of the appellants is dismissed and the conviction and sentence awarded to them is maintained by this Court.
7. Learned counsel for the State, on the other hand, has read out the statement of P.W. 15 Malik Tahir Siddique, S.-I./ S.H.O. To contend that according to the statement of the said P. W, the deceased had himself gone to the house of the appellants after having scaled over the wall of the house.
While supporting the prosecution case, learned counsel submits that since it is a well-reasoned judgment, this Court should not interfere with it.
8. I have heard learned counsel for the parties, have gone through the evidence with their able assistance and have also given anxious consideration to the submission made by the respective parties at the bar.
9. According to the prosecution story, the occurrence in this case had taken place in the mid-night of 30th/31st March, 2002. The prosecution case is that the deceased was taken by the appellants and others from his house. The matter was reported to the Police Station on 1-4-2002 at 10-10 a.m.
Six persons were named in the F.I.R. As culprits of the case amongst whom four were acquitted by the learned trial Court although few of them were attributed beating to the deceased.
Complainant had tiled Criminal Appeal No,655 of 2003 (Farman Ali Bhatti v. State etc.) which was dismissed in limine vide order, dated 2-6-2003 passed by a learned Division Bench of this Court. It is a case of two versions i.e, one put forward by the prosecution and the other was furnished by the appellants. The only short point involved in this case is that as to whose version is more plausible and convincing one.
10. It is not denied that the deceased was given beating in the house of Muhammad Aslam appellant. Blood-stained earth was also recovered from there. Aslam appellant had also taken the plea of grave and sudden provocation, in reply to Question No,14 of his statement recorded under section 342, Cr.P.C. Malik Tahir Siddique (P.W.15) appeared before the learned trial Court to admit that Mst. Salma, sister of Aslam appellant, and her mother Mst. Kaniz Bibi appeared before him to support the version of appellant Muhammad Aslam. He also admitted that, according to him, the occurrence had taken place under grave and sudden provocation. Though opinion of the police is not binding on the Court but the facts, as mentioned above, the occurrence took place in the house of Muhammad Aslam appellant, a "Danda" which is commonly used by the household wives for grinding chilli and salt) was used in the said occurrence, nine injuries exist on the person of the deceased which suggest that the "act" was done under the heat of passions. Even this is the finding of the learned trial Court.
11. The learned trial Court has also disbelieved the last seen evidence and the fact of taking away the deceased from his house. There is a delay of two days in lodging the F.I.R. Although both the parties live in the same vicinity.
12. Having adjudged the case from every angle, this Court is of the considered view that the version furnished by Muhammad Aslam appellant seems to be more plausible and convincing. Resultantly, the conviction and sentence of appellant Mukhtar is set aside, he is acquitted from the case and shall be released forthwith if not required to be detained in any other case. So far as version of Muhammad Aslam is concerned, since the same is accepted in totality, therefore, his sentence, after having converted from section 302(b), P.P.C. To section 302(c), P.P.C. Is reduced from life imprisonment to ten years R.I. Benefit of section 382(b), Cr.P.C. Shall be extended to him while the compensation awarded to him by the learned trial Court is set aside in view of the dictum laid down in the case of Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294.
13. For reasons given above, Criminal Revision No,362 of 2003 filed by the complainant for enhancement of the sentence of the appellants is dismissed while the appeal is disposed of having partly allowed.