' Appellants Muhammad Azam and Ahmad Ali along with seven others were tried for the murder of Muhammad Yaqoob in case F.I.R. No.386, dated 2-10-1999 registered undei section 302/34 read with section 109, P.P.C. At Police Station Syedwala by the Addl. Sessions Judge, Sheikhupura who vide judgment, dated 18-10-2001 while acquitting their co-accused convicted both the appellants under section 302(b), P.P.C. And sentenced them to imprisonment for life. They were also directed to pay compensation amounting to Rs.1,00,000 each to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default whereof to suffer further six months. S.-I. Benefit of section 382-B, Cr.P.C. Was also extended to them.
2. Challenging their conviction and sentence both the appellants filed Crl. Appeal No.1802 of 2001 while complainant has filed Crl. Rev. No.857 of 2001 seeking enhancement of sentence of both the appellants. Both these matters are being disposed of together by this judgment.
3. Succinctly the prosecution case as narrated in the F.I.R. Is that Ahmad Ali and Muhammad Azam appellants were in the occupation of agricultural land as a tenant of complainant Taja. One Bigha of the said land was vacant and in order to cultivate the said piece of land by himself complainant asked the appellants to vacate the same but the request of the complainant was turned down and on the said issue the relations of the parties were strained. Statedly on 3-9-1999 due to that reason Azam appellant and other fired on Muhammad Nawaz, nephew of the complainant. Thereafter the matter was got patched up by the respectables of the area but Muhammad Azam appellant kept the grudge with them. On 2-10-1999 at 8 a.m. When Muhammad Yaqoob nephew of the complainant was going towards the field to cut fodder Muhammad Azam, Ahmad Ali appellants being armed with Kassi, Asad and Ashraf equipped with rifles, Akram, with Sota, Shaukat Ali armed with .12 bore gun forcibly took him to their Haveli. The complainant along with Sultan and Rustam on hearing the alarm also reached at the spot and within their view Ahmad Ali gave Kassi blow to Yaqoob on right side of his head as a result of which he fell down. Allegedly Azam appellant thereafter gave many Kassi blows on the back and right shoulder of Muhammad Yaqoob.
Muhammad Akram also inflicted injuries on the shoulder, eye and nose of Muhammad Yaqoob.
Thereafter Azam appellant pressed the throat of Muhammad Yaqoob while the other accused kept on firing. Muhammad Yaqoob succumbed to the injuries and the accused fled away from the spot.
Statedly the said murder took place at the instigation of Muhammad Abbas, Muhammad Khalid and Allah Yar.
4. After the occurrence Taja son of Mokha P.W.5 reported the matter to Ghulam Nabi S.-I. P.W.8 at the police station where formal F.I.R. Exh.PG was entered. The said police officer also conducted the initial investigation of this case. He after inspecting the dead body prepared injury statement Exh.PC, inquest report Exh.PD and sent the dead body to mortuary for post-mortem examination. He collected blood-stained earth from the spot which was taken into possession vide memo. Exh.PH as well as collected 10 crime empties of .12 bore gun P.3/1-10 and 9 empties of rifle P.4/1-9 vide recovery memo. Exh.PJ. He also prepared rough site-plan Exh.PN as well as recorded statement of witnesses under section 161, Cr.P.C. This case was also investigated by Haji Muhammad Qasim S.-I.
P.W.7. On 20-10-1999 he arrested both the appellants. On 22-10-1999 Muhammad Azam and Ahmad Ali appellants led to the recovery of Kassis. P.4 and P 6 which were taken into possession vide memo. Exhs.PK and PL respectively. The said police officer after complying with all the legal formalities finally submitted challan before the trial Court.
5. In order to prove the charge against the appellants and their co-accused prosecution produced eight witnesses before trial Court.
6. Dr. Shabbir Ahmad P.W.1 conducted post-mortem examination on the dead body of Muhammad Yaqoob and observed eight injuries on the dead body which included five incised wounds, two contusion and nail marks as well as swelling on the front of the neck of the deceased. Hameed-ud- Din Chishti, Draftsman, P.W.2 prepared scaled site-plan Exhs.PE and PE/1. Walyat P.W.3 identified the dead of Muhammad Yaqoob at the time of post-mortem examination. He was also present when the last worn clothes of the deceased were handed over to the Investigating Officer. Ansar Ali Constable P. W.4 took the dead body to the mortuary for post-mortem examination and after the same produced last worn clothes of the deceased before the I.O. Taja P.W.5 and Rustam P.W.6 being the eye-witnesses of the occurrence while supporting the prosecution case narrated the circumstances under which the appellants and their co-accused committed the murder of Muhammad Yaqoob. As narrated earlier Haji Qasim S.-I. P.W.7 and Ghulam Nabi S.-I. P.W.8 conducted the formal investigation in this case.
7. Trial Court also examined the appellants and their co-accused under section 342, Cr.P.C. While answering to the question, have you anything else to say? Muhammad Azam appellant replied as under:-- "I am innocent. The motive is false. No P.W. Has seen the occurrence. The occurrence did not take place in the manner as alleged by the prosecution. In fact the occurrence has taken place as on 2- 10-1999 I was working in the field contiguous to the place of occurrence/Haveli. My sister Mst.
Moodan Bibi who is married was working in the Haveli. It was about 8-00 a.m. She went inside th room of the Haveli. All of sudden Yagoob deceased entered in the Haveli and also went in the room where my sister Mst. Moodan Bibi was present. The deceased caught hold of her and attempted to commit Zina-bil-Jabr with her. She raised hue and cry. I heard the same, rushed to the room of Haveli and saw Yagoob deceased was attempting to commit Zina-bil-Jabr with her. I lost my senses under the grave and sudden provocation and also to save my sister from the commission of Zina-bil-Jabr I picked up a Kassi which was lying in the room, caused injury to Muhammad Yagoob who fell to the ground, thereafter I pressed his throat and also made further Kassi blows which landed on the different parts of the dead body of the deceased, who died at the spot. No P.W. Was present and the complainant was also not present at the time of occurrence at the place of occurrence. My co-accused namely Ahmad Ali, Asad, Ashraf, Ikram and Shaukat Ali were also not present with me at the time of occurrence. The allegation of conspiracy and abetment is also false. The occurrence has taken all of a sudden and due to grave and sudden provocation.
Immediate after the occurrence I went to the police station and surrendered myself there and also produced the Kassi. I narrated the true facts before the I.O., but he did not bring the same on record as he has made connivance with the complainant party. My sister Mst. Moodan Bibi also appeared time and again before the police and corroborated my version. During investigation I had been making the above said version before the 1.0s. The complainant after due deliberation has involved all my relatives in this case falsely."
' None of the appellants made any statement under section 340(2), Cr.P.C. However, the appellants in their defence produced Mst. Moodan Bibi D.W.1. Statement of this witness is in line with the statement made by Muhammad Azam appellant under section 342, Cr.P.C.
8. Trial Court after appraisal of evidence available on record vide judgment, dated 18-10-2001 convicted and sentenced the appellants as narrated in the earlier part of the judgment.
9. Learned counsel for the appellants while challenging the legality of impugned judgment submitted that F.I.R. In this case was registered after consultation and deliberation; prosecution had failed to produce any evidence in support of motive part of this case as the trial Court has already disbelieved this piece of evidence; presence of eye-witnesses at the spot was doubtful and they were introduced later on just to strengthen the prosecution case; appellant Muhammad Azam had committed the murder of Muhammad Yaqoob in order to save the honour of his sister and in the circumstances conviction and sentence awarded by the trial Court could not be sustained. Conversely, learned counsel for the complainant as well as the State while supporting the impugned judgment vehemently opposed the contentions raised by the learned counsel for the appellants. Learned counsel for the complainant also submitted that trial Court while awarding sentence had erroneously taken a lenient view.
10. With the able assistance of learned counsel for the parties I have minutely gone through the record of this case.
It is a case of two versions, place of occurrence and the weapon used in the occurrence are almost admitted facts and the only question to be resolved is whether the prosecution story is to be relied upon or the defence plea is to be accepted in totality.
11. According to the prosecution's own case on 2-10-1999 at 8-00 a.m. When complainant Taja P.W.5 was present at his Dhari he was attracted upon the shrieks of Muhammad Yaqub deceased and saw the appellants armed with Kassis along with their co-accused who were also equipped with firearms, forcibly taking away Muhammad Yaqub deceased towards their Dhari. In the meantime Sultan and Rustam P. Ws. Also reached at the spot. Statedly, within the view of witnesses both the appellants eased Kassi blows to Muhammad Yaqoob deceased and thereafter Muhammad Azam appellant also pressed his throat and as a result of injuries Muhammad Yaqoob died at the spot.
' Before the trial Court Taja P.W.5 and Rustam, P.W.6 deposed in support of the prosecution case. A careful analysis of the evidence of these witnesses reveals that they had not come with clean hand and had concealed the true facts. Firstly motive for this occurrence was a dispute between the appellants and the complainant of this case and there was no occasion for committing the murder of Muhammad Yaqub deceased with whom admittedly appellant had no direct enmity. Secondly, if the appellants and their co-accused being armed with lethal weapons, had formed an unlawful assembly with the intention to commit the murder of Muhammad Yaqoob and had waylaid the deceased when he was going to his field to cut fodder, then there was no occasion for the accused persons to drag the deceased to their Dhari at about 15/20 Karms. They could have achieved the goal at the same place. The scaled site-plan Exh.PE also shows that there was a water channel in between the place from where appellants allegedly dragged the deceased and took him to the Haveli of Ahmad Ali accused where deceased was done to death. The manners in which allegedly appellant and his co-accused forcibly took Muhammad Yaqoob deceased to the place of occurrence, in view of the landscape shown in the map, it was a difficult task. Thirdly, according to the F.I.R. Allegedly, Muhammad Yaqub was given injuries inside the cattle shed but the site-plan prepared during the investigation reveals that deceased was given injuries outside the said shed and thereafter in injured condition he was taken inside the room constructed outside the cattle shed {{URDU TEXT}}It is interesting to note that Investigating Officer collected blood stained earth only from inside the room and not from any other spot. Fourthly the evidence of the prosecution is absolutely silent about any marks of dragging or trial of blood between the place from where deceased was forcibly dragged to the Haveli and the place where deceased received injuries and the place the dead body of the deceased was found lying by the police. The medico legal report is also silent about any injury on the person of deceased which could be caused by dragging. Fifthly according to the Investigating Officer he dispatched the dead body to the mortuary from the spot but both the eye-witnesses i.e. Taja P.W.5 and Rustam P.W.6 took the stand that from the spot the dead body was taken to the police station and from there the same was sent to the mortuary. In this view of the matter the possibility that F.I.R. Was prepared after consultation and deliberation cannot be ruled out. Sixthly, the post-mortem examination was conducted on the day of occurrence at 9-15 p.m. And the time Between death and post-mortem examination as observed by the doctor was between 12 to 15 hours. It means, the possibility that this occurrence took place much earlier than the time mentioned by prosecution witnesses cannot be ruled out. Seventhly, both the said eye-witnesses while deposing before the trial Court had denied about their statements before the Court during the proceedings on bail application of the co-accused of the appellants. Exhs.DA and DB clearly show that both the said witnesses had made statements before the learned Addl. Sessions Judge, Nankana stating therein that they had named the co-accused of the appellants under some misunderstanding. Both the witnesses were identified by their counsel and the Identity Card No. Of Taja P.W.5 also find mentioned on Exh.DA.
Similarly, during investigation the complainant in support of motive part of the prosecution case produced no evidence and the trial Court has already disbelieved this part of prosecution case.
The crime weapons i.e. Kassis, allegedly recovered at the instance of appellants were not blood- stained. Both these Kassis are common in nature and easily available in the villages. The evidence of recovery of incriminating articles at the instance of appellants is of no corroborative value in the circumstances of this case. The ocular account has already been disbelieved by the trial Court qua four of the co-accused of the appellants and the same cannot be relied upon qua the appellants in the absence of any independent strong corroborative piece of evidence.
11. On the other hand the defence plea that at the relevant time appellant Muhammad Azam in order to save the honour of his sister under grave and sudden provocation caused injuries to Muhammad Yaqub deceased seems to be more nearer to the truth and fits in the circumstances of this case. The defence plea also stands supported by the statement of Moodan Bibi D.W. I.
Learned counsel for the complainant while challenging the legality of the defence plea argued that the appellants after their arrest never made any statement before the Investigating Officer nor Mst.
Moodan Bibi was produced before him in support of defence plea and that the defence plea was nothing but an afterthought. I am afraid the contention of the learned counsel has no force. An accused is not bound to disclose his version on the first available opportunity and if lie had not done so burden would not shift upon him to disprove the guilt, but disclosing of his version at the earliest is only relevant to show the stand taken by him which might ultimately help him in disproving the prosecution case. Similarly on the basis of the statement of Dr. Shabbir Ahmad P. W.1 that left arm of the deceased was under developed and paralised, learned counsel for the complainant while challenging the authenticity of the defence plea argued that deceased was not in a position to hold Mst. Moodan D.W.1 for the purpose of outraging her modesty. This argument also has no force. The deceased was a strong and young boy of 20 years at the time of occurrence whereas Mst. Moodan Bibi was only a girl of 14/15 years of age and was all alone in the room when deceased attempted to get hold of her in order to commit Zina-bil-Jabr with her.
12. While putting both the versions in juxtaposition the irresistible conclusion is that the defence plea is more nearer to the truth and for the safer administration of justice same is to be relied upon.
Accordingly, this appeal to extent of Ahmad Ali is accepted, his conviction and sentence is set aside and he is acquitted from the charge. He shall be released forthwith if not required to be detained in any other case.
14. As far Muhammad Azam appellant is concerned, his conviction and sentence under section 302(b), P.P.C. Is set aside and he stands convicted under section 302(c), P.P.C. And is sentenced to seven years R.I. With benefit of section 382(b), Cr.P.C. At the time of occurrence deceased was involved in immoral activities, when he was done to death by Azam appellant thus he was not a Masoomul-Dam and his legal heir's are not entitled to get any compensation as required under section 544-A, Cr.P.C. With the said modification in the impugned judgment the appeal to the extent of Azam appellant otherwise stands dismissed.
' For the foregoing reasons, the criminal revision seeking enhancement of sentence stands dismissed.