MUHAMMAD FARRUKH MAHMUD, J.-Muhammad Shafi, Sakhi Muhammad, Ali Sher sons of Hashim Ali, their maternal nephew Muhammad Faruq son of Haq Nawaz-appellants along with Haq Nawaz and Muhammad Ashraf were sent up to face trial in case FIR No.129 of 1999, registered at Police Station Fort Abbas, for offences under Sections 302/148/149, PPC, for causing murder of Muhammad Ilyas.
2. Vide judgment dated. 2-4-2002 Syed Imam Ali Shah. Ali Additional Session Judge, Bahawal Nagar, while acquitting Haq Nawaz and Muhammad Ashraf-accused convicted Muhammad Shafi, Sakhi Muhammad, Ali Sher and Muhammad Faruq-appellants for offence under Section 302(b), PPC. They were sentenced to life imprisonment and also directed to pay compensation amounting to Rs.1,00,000/- each to the legal heirs of the deceased under Section 544-A, Cr.P.C, In default of payment thereof each of them was to suffer further R1 for one year. Benefit of Section 382-B, Cr.P.C, was extended to the convicts/appellants.
3. Through this appeal conviction and sentence has been challenged. Mst. Noor Sain-complainant, widow of the deceased, has also filed Criminal Revision No.57 of 2002 seeking enhancement of sentence. I propose to decide both these matters through this consolidated judgment.
4. FIR No. 129/ Ex. PB was registered by Abdul Razzaq, SHO/PW-9 on the statement of Mst Noor Sain/PW- 4 on 3.6.1999 at 9:30 a.m. For offences under Section { 302/148/149 PPC.
5. According to prosecution case, Mst. Noor Sain lived in Chak No. 264/HR. 8/9 months prior to the occurrence Mst. Ghulam Fatima, mother-in-law of Muhammad Abbas brother of Muhammad Ilyas-deceased, was beaten by Muhammad Shafi-appellant and other accused. Case FIR No. 171 of 1998 was registered at Police Station Fort Abbas against Muhammad Shafi-appellant, Shahbaz Ahmad and Khadim Hussain for offences under Section 337-A(ii)/34, PPC. The case was pending adjudication in the Court. Muhammad Ilyas husband of the complainant, was eye-witnesses of the occurrence and used to prosecute the case. Muhammad Shafi and others had been repeatedly asking Muhammad Ilyas that he should not help the complainant in the case. However, Muhammad Ilyas refused to oblige. 4/5 days prior to the occurrence an Oaltercation took place between Muhammad Ilyas-deceased and Muhammad Shafi & others but the matter was patched up due to the intervention of the respectable of the area. Muhammad Shafi and others left the scene of occurrence after extending threats that they would take revenge. On the fateful day, Muhammad Ilyas left his house to attend his cotton crop in the morning. At about 8:00 a.m. The complainant along with Mst. Naziran Bibi, wife of Muhammad Abbas, took meals to the fields.
Meanwhile, Muhammad Nawaz, who resided at Fort Abbas City and Muhammad Akram,. Resident of Chak No. 210/9R, also reached there for meeting with Muhammad Ilyas. Before Muhammad Ilyas could take his meal, Muhammad Shaft armed with 12-bore Gun, Sakhi Muhammad armed With 30- bore Pistol, Ali Sher armed with 12-bore Gun (sons of Hashim Ali), Haq Nawaz armed with 12-bore Gun, Muhammad Ashraf armed with 2-bore Gun (sons of Admera) and Faruq Ahmad son of Haq Nawaz Armed with 30-bore Pistol, all residents of Chak No. 239/HR, reached there. Muhammad Shafi raised Lalkara that he would teach a v lesson to Muhammad Ilyas for prosecuting the case against him. Muhammad Ilyas in order to save his life run towards the nearby Chhapper (Thatched Hut), the complainant and the PWs beseeched the accused to spare Muhammad Ilyas. However, after raising Lalkara the accused followed the husband of the complainant and within the view of the PWs Muhammad Shafi fired with his Gun, which hit on the face and left shoulder. Muhammad Ilyas fell down. After that Ali, Sher fired on the head of Muhammad Ilyas. Sakhi Muhammad fired with his 30-bore Pistol, which hit on the forehead, while Muhammad Faruq fired with his 30-bore Pistol on the back of head of the deceased. Muhammad Ashraf and Haq Nawaz kept on firing aimlessly. After causing injuries the accused ran towards the Canal. Muhammad Ilyas died at the spot. Thereafter the complainant after leaving Muhammad Akram and Muhammad Nawaz-PWs with the dead body went to the Police Station along with Wali Muhammad and reported the matter.
6. After registration of the case Abdul Razzaq, inspector/SHO/PW-9 reached the scene of occurrence and prepared inquest as well as injury reports and sent the dead body for post- mortem examination. He also collected bloodstained earth from the spot, which was secured vide memo Ex. PC prepared by him and attested by Muhammad Nawaz PW-5 and Muhammad Akram (who was not, produced during trial). He also collected four 12-bore empties P-1 to 4, which were lying at the spot and secured the same into sealed parcel vide memo. Ex. PD.
7. Muhammad Shafi, Sakhi Muhammad and Muhammad Faruq-appellants were arrested by PW-9 on 16-6-1999. Ali Sher-appellant was arrested on 29-7-1999. On 23-6-1999 Muhammad Shafi, while in police custody, led to the recovery of 12-bore Gun P-8 along with ten live cartridges P-9 to 18 from his residence. The above noted articles were taken into possession vide memo Ex. PF. On the same date Sakhi Muhammad, in custody, led to the recovery of 30-bore Pistol P-19 along with three live bullets P-20 to 22 from his residence. The same were taken into possession vide memo Ex. PG.
The above noted memos were attested by Muhammad Nawaz PW-5 and Muhammad Akram (not produced). On 2,9-6-1999 while in custody Muhammad Faruq-appellant led to the recovery of 30- bore Pistol P-29' along with two live bullets P-30 & 31 from his residence. The same were secured vide memo Ex. PI prepared by Muhammad Anwar, SI/PW-11. No recovery was effected at the instance of AN Sher-appellant.
8. During trial the prosecution produced 11 witnesses to support its case. Mst. Noor Sain widow and Muhammad Nawaz uncle of the deceased appeared as PWs 4 and 5. They furnished the ocular account and also stated about the motive. Their statements are according to the story given in the FIR. In addition to that Muhammad Nawaz stated about the recoveries effected from the spot as well as effected at the instance of the appellants Dr. Zulfiqar -Ali PW-8 stated that he had conducted the post-mortem examination on the dead body of Muhammad Ilyas on 3-6- 1999 i.e. The date of occurrence. He observed that injuries Nos. 1, 2, 4, 5 and 6 were entry wounds caused by firearm, while injury No. 3 was exit wound. The injuries were caused on the forehead, above forehead, left eyebrow, upper jaw and gums and shoulders of the deceased. During postmortem examination he recovered wad and four pellets from the brain and upper part of the neck. The wad and pellets were sealed and handed over to the police. According to his opinion, Muhammad Ilyas lost his life due to firearm injuries within 15 minutes and the post-mortem examination was conducted within 2'A to 3:30 hours after the death. During cross-examination he stated that he had seen no wound of entry on the back side of head of the deceased (attributed) to Muhammad Faruq-appellant). He also explained that injuries No, 1 and 2 and the injuries No. 4, 5 and 6 were caused from different distances. He further explained that injuries No. 1 and 2 could have been caused from a distance of more than 10 yards, while injuries No.4 to 6 could have been caused from a distance of 30 yards. Muhammad Anwar, SI/PW-11 stated about the recovery effected at the instance of Muhammad Faruq-appellant. Abdul Razzaq, inspector/PW-9 stated about the registration, of case and investigation. The rest of the witnesses are formal in nature and need not be discussed.
The prosecution closed its case after placing on record reports of Chemical Examiner Ex. PN, Forensic Science Laboratory Ex. PO and Serologist Ex. PP. According to Ex. PO, two of the empties C-2 and C-3 wedded with the shotgun recovered at the instance of Muhammad Shafi-appellant.
9. After closure of the prosecution case, statements of the appellants were recorded under Section 342, Cr. P.C. Muhammad Shafi, Ali Sher and Muhammad Faruq-appellants claimed to be innocent.
According to them, they were involved in the case due to existing enmity and ill will between the parties. They relied on the statement Of Sakhi Muhammad-appellant. Sakhi Muhammad took the plea of self-defence. According to him, neither any other accused nor any PW was present at the time of occurrence. His defence plea is being reproduced below.
"I am innocent. The real facts are that there Was long standing enmity between my brother Shafi Muhammad and myself with the complainant party due to the Criminal Case FIR No. 171/1999, Offence under Sections 337-A(ii)/34, PPC, P.S. Fortabbas registered on behalf of Mst. Ghulam Fatima. My brother co-accused Muhammad Shafi was accused in that case. Muhammad Abbas brother of Muhammad Ilyas deceased who is serving in the Pakistan Army and now a days is posted in District Bahawlanagar before the present occurrence to frighten and pressurize us through Army Establishment and in this respect we moved an application to the Higher Authorities against said Muhammad Abbas. We due to which enmity and fear wanted to shift Chak No. 239/9- R where my other co-accused Haque Nawaz, Ashraf and Faruq are living and for this purpose on the day of occurrence in the early hour I took Allah Din Mahar with me to my land which is situated in the Khata of the complainant party and is jointly owned by us for leasing out the said land to him and when we were present in our land Muhammad Ilyas deceased along with two his friends objected to leasing out of the said land and started firing with his Pistol and Guns. I had a licenced Gun with me because I keep the same always with me due to the enmity and fear of the complainant party. I in order to save my life in the exercise of right of self-defence fired with the Gun. My dera is also situated close to the place of occurrence across the watercourse. None of the PWs as alleged by the prosecution were present at the spot at-the time of alleged occurrence. I myself reported the matter to the police but the complainant party due to their pressure falsely involved me and my relatives in this case. The police recovery Pistol and Guns from the complainant party but due to their pressure did not show the recovery of the same. My co- accused Haque Nawaz, Ashraf and Faruq are the residents of Chak. No.239-9-R which is situated at the distance of 35/40 K.M. From the place of occurrence. I have no concern whatsoever with the present occurrence."
10. Mr. Abdul Sattar Zafar, the learned counsel for the appellants, at the very outset, has submitted that he would not press the plea of self-defence taken by Sakhi Muhammad-appellant. Having said that he has prayed for acquittal of Muhammad Faruq, Sakhi Muhammad and Ali Sher- appellants and for reduction of sentence qua Muhammad Shafi-appellant. To substantiate his prayer he has raised the following points:-
(i) that both the witnesses were closely related to the deceased;
(ii) That PW-5 lived at a distance of 8/9 KM from the spot;
(iii) that admittedly enmity existed between the complainant party and the appellants;
(iv) that Faruq and Sakhi Muhammad appellants were shown to be armed with 30-bore Pistol, while the deceased received bullets injuries which belied the prosecution version; further more the injury attributed to Muhammad Faruq was an exit wound;
(v) that very large net has been thrown by the complainant party and all the relatives of Muhammad Shafi have been involved in the case; and
(vi) that Ali Sher-appellant was found to be innocent during investigation conducted by Muhammad Sadiq, SI/SHO/PW-10.
As far as Muhammad Shafi is concerned, the learned counsel has argued that the deceased was having bullets in his pocket and the same were removed by the Doctor from the pocket of the deceased at the time of post-mortem examination; that Abdul Razzaq, inspector/PW-9 admitted that it came to his knowledge during investigation that the deceased was armed with Pistol at the time of occurrence and the same had been taken away by the assailants; that according to the learned counsel, what happened between Muhammad Shafi and Muhammad Ilyas prior to the occurrence was not known and thus the case of Muhammad Shafi attracted the provision of Section 302(c), PPC. He closed his arguments by seeking reduction of sentence qua Muhammad Shafi and acquittal qua rest of the appellants.
11. Conversely, Mr. Tallat Mehmood Kekezai, the learned counsel for the complainant, opened his arguments by conceding that the prosecution failed to prove its case against Muhammad Faruq- appellant. Having said that the learned counsel argued that the prosecution had successfully proved its case against Muhammad Shafi Sakhi Muhammad and Ali Sher accused. According to the learned counsel, the statements of PWs 4 and 5 were fully , supported by the medical evidence and corroborated by the act that FIR was lodged with promptitude; that mere fact hat bullets were recovered from the body of the deceased ould not mean that Sakhi Muhammad did not have Pistol at he time of occurrence. The learned counsel has also referred to the recoveries, which according to him, were roved and not challenged by the accused, while referring to he medical evidence, the learned counsel has argued that he number of injuries supports the prosecution case that the accused were more than one. As far as Ali Sher-appellant is concerned, the learned counsel has vehemently argued that he opinion of the police was not binding upon the Courts nd that the witnesses had stated against Ali Sher as well, he learned counsel has lastly submitted that Muhammad hafi, Sakhi Muhammad and Ali Sher had launched murderous assault by the deceased and took life of an innocent person with-premeditation, thus they deserved normal penalty of death.
12. The. Learned counsel appearing on behalf of the tate has frankly conceded that the prosecution has failed to rove its case beyond doubt against Muhammad Farooq and Ali Sher-appellants. The learned counsel supported the Judgment passed by the learned Trial Court to the extent of Muhammad Shafi and Sakhi Muhammad-appellants.
13. I have heard the learned counsel for the parties length and scanned the entire record of the case minutely, he prosecution case rests on the statements of Mst. Noor Sain and Muhammad Nawaz, widow and uncle of the deceased respectively. Both of them reached the spot at opportune moment for different reasons. Undeniably enmity and ill will existed between the complainant party and Muhammad Shafi-appellant over the earlier case registered ^gainst Muhammad Shafi- appellant. Six accused, who were all closely related, were roped in this case. Two of them have been acquitted, In these circumstances, the evidence furnished by PWs 4 and 5 needs deep scrutiny and principle of sifting of grain from chaff is to be applied. I am fortified in my view by placing reliance on the dictum laid down by the Apex Court in the case of Shahid Raza and another v. The State and another (1991 SCM R 1647). The statements of the PWs can be used only against those accused against whom strong independent incriminating evidence is available. When the prosecution evidence is judged on the above noted touch-stone then the prosecution case is not free from doubt against Muhammad Faruq, AN Sher and Sakhi Muhammad-appellants. I would take their cases one by one.
14. Muhammad Faruq is nephew of the other appellants. He Was shown to be armed with Pistol and the Pistol fire was attributed to him on the back of head of the deceased-Muhammad Ilyas. This allegation was totally belied by the medical evidence as well as circumstantial evidence, as according to the medical evidence, no entry wound was observed on the back of head of the deceased and the deceased had received injuries by pellets. Furthermore no empty bullets were recovered from the spot. Thus the recovery of Pistol at the instance of Muhammad Faruq is of no value and cannot be used against him. The learned counsel for the complainant has rightly conceded that the prosecution failed to prove its case against Muhammad Faruq.
15. No motive was attributed to Ali Sher. He is brother of Muhammad Shafi against whom the case has been registered at the instance of the complainant party, His presence has not been shown in the FIR when an altercation took place between Muhammad Shafi and the deceased 4/5 days prior to the occurrence. To support the prosecution evidence no corroboratory evidence in the shape of recovery of weapon is available against him. He was also found innocent during investigation and Muhammad Sadiq, SI/SHO/PW-10 categorically stated that he was not present at the time of occurrence. His statement remained unchallenged, It is true that the court is not bund 2005 by the opinion of the police but it is also true that the same cannot be thrown to the winds.
16. Now coming to the case of Sakhi Muhammad, I am conscious of the fact that Sakhi Muhammad-appellant took special plea of self-defence and admitted that he fired at the deceased. The question is whether he can be convicted on the basis of this plea alone even if the prosecution fails to prove its case against him. The law is clear on the point that the prosecution is duty bound to prove the case against accused beyond doubt and this duty does not change or vary in the case in which defence plea is taken. The visible defects of falsity and inconsistency in the statements of the accused persons cannot be relied upon, as furnishing proof, in support of the prosecution case. This reminds me of the decision passed in the case of Safdar Ali v. The Crown (PLD 1953 Federal Court 93), wherein it was observed that "the fundamental principle is that the burden of proving the general issue of the prisoner's guilt lies, from first to last, upon the prosecution", In the case supra it was also observed as follows:- "It cannot be said that because under Section 105 the burden of proof is on the accused and he has not discharged that burden but has only raised a reasonable doubt, the Court has to convict him in spite of the existence of such doubt. The decision has to be taken on the entire evidence and not on the special pleading."
Similar view was expressed by the Apex Court in the case of Ali Sher v. The State and 3 others (PLD 1980 Supreme Court 317), wherein it was observed that "contention that the defence version even if found to be unconvincing cannot lead to conviction of accused and case, against accused, still required to be proved .By prosecution, held correct ". It would be advantageous to refer to the case of Ashiq Hussain v. The State (1993 SCM R 417), wherein while considering defence plea the following observations were made:- "It is needless to repeat that it is bounden duty of the prosecution to prove the case against accused beyond doubt and this duty does not change or vary . In the case in which any defence plea is taken. Burden of prosecution to prove its case beyond doubt remains the same. Of course, defence plea is to be considered in juxtaposition with prosecution case and in the final analysis if defence plea is proved or accepted then prosecution case would stand shattered and discredited, It would be enough if plea is substantiated to the extent of creating doubt in the credibility of the prosecution case. If defence plea is not substantiated, no benefit accrues and to the prosecution on that account and its duty to prove the case beyond doubt would not be diminished even if defence plea is not proved or is found to be palpably false."
Reference can also be made to the case of D.I Murad and another v. The State (NLR 1982 Criminal 46), wherein it was held that "the appellants could not be convicted on basis that their defence plea was found to be false".
In the instant case it appears that Sakhi Muhammad- appellant, whose land was adjacent to the land of the deceased took special plea in order to save the rest of his brothers and relatives. The plea could not be proved through any evidence and was also not pressed at the time of arguments. Once the plea is rejected then we have to look towards the prosecution whether it could prove the case against the accused beyond doubt, On that regard it is noticeable that according to FIR Sakhi Muhammad and Muhammad Faruq were shown to be armed with 30-bore Pistol. One fire was attributed to each of the accused. Sakhi Muhammad had allegedly caused injury on the forehead of the deceased with 30-bore Pistol. The allegation against him stands belied by the medical evidence, as according to Dr. Zulfiqar Ali/PW-8, the deceased had received injuries caused by the pellets. Wad and four pellets were recovered from the brain and upper neck of the deceased. The evidence of motive is also not available against Sakhi Muhammad. As noted in the case of Muhammad Faruq that the altercation, which took place 4/5 days earlier, was between Muhammad Shafi and Muhammad Ilyas-deceased. It has not been mentioned in the FIR that at the time of altercation Muhammad Shafi was accompanied by Sakhi Muhammad. The recovery of 30-bore Pistol at the instance of Sakhi Muhammad-appellant is also of no value, as no empty of 30-bore bullet was recovered from the spot and it could not be said that any bullet was fired by the Pistol recovered. Even otherwise no independent person from the locality was produced to prove the recovery.
17. The upshot of the whole discussion is that following the rule of precaution and the principle of safe administration of justice. I allow this appeal to the extent of Muhammad Faruq, Ali Sher and Sakhi Muhammad- appellants. They are acquitted of the charge and would be released from Jail forthwith, if not required in any other case.
18. As far as the case of Muhammad Shafi- appellant is concerned, strong independent corroboratory evidence is available against him. According to prosecution case, he caused injuries to the deceased with a shotgun. This is supported by the medical evidence as well as evidence of recovery of Gun at his instance. More so, because according to report of Forensic Science Laboratory Ex. PO two of the empties recovered from the spot wedded with the Gun. The motive is also proved against him. In these circumstances, I am of the opinion that the prosecution has proved its case against him beyond doubt. This appeal to his extent is dismissed. The conviction and sentence recorded. By the learned Trial Court against Muhammad Shafi-appellant are maintained. The amount of compensation inflicted upon him is also maintained with slight modification that in case of default of payment whereof he would suffer further S.I. For six months.
Benefit of Section 382-B Cr. P.C extended to him by the learned Trial Court is upheld.
19. With the above noted observations this appeal is partly allowed.
20. For the above mentioned reasons, I find no merit in the revision and the same is dismissed.