Ali Nawaz Chowhan, J.--This judgment shall dispose of Criminal Appeal No. 227/1999, Criminal Appeal No. 290/1999 as well as the Murder Reference No. 439/1999.
2. Vide his judgment dated 20.10.1999, Ch. Muhammad Younas, Additional Sessions Judge, Rawalpindi, convicted the appellant Qamar Zaman under Section 302(b) of the PPC and sentenced him to Death, while acquitting his three other to-accused Zahid Iqbal, Muhammad Saqlain and Fakhar Zaman extending them the benefit of doubt.
3. The matter pertains to case FIR No. 86 dated 5.7.1996 registered at Police Station Jatli, under Sections 302/34 PPC.
4. Imdad Hussain, the complainant in this case (PW-8) lodged the FIR (Ex. PA) and during his testimony before the trial Court, he stood by the same while making the following narration:-- "On 5.7.1996 at 6:00 p.m. there had been a quarrel between Faazil and Saqlain etc. and Faazil was injured in the incident. At 6:00 p.m. I went to inquire about the same at Ada Batta Bhatt. I was accompanied by Abdul Khaliq and Fayyaz and Iftikhar. At Ada, Muhammad Saqlain, Qamar Zaman, Zahid Iqbal, Fakhar Zaman were present. Saqlain was armed with .12 bore gun, Qamar Zaman armed with .12 bore gun Zahid Iqbal was also armed with .12 bore gun, Fakhar Zaman was armed with .30 bore pistol. Iftikhar raised Lalkara. Then Saqlain fired first shot, then second fire was shot by Qamar Zaman, then Zahid Iqbal fired. The fire of Saqlain hit the deceased Iftikhar below his neck on left side. The fire of Qamar Zaman hit him on left side of his chest. The fire of Zahid Iqbal. hit him on his left shoulder. The fire of Fakhar Zaman did not hit the deceased. Iftikhar fell down. We reached near them. Meanwhile, the accused ran away and Iftikhar succumbed to the injuries. Several after peoples of the village gathered there. There was no previous enmity between the parties."
The following relevant excerpts from his cross-examination are re-produced below:-- "Lal Khan father of the deceased is my father in law. He is also my Dada Potra. Sher Khan is my Pardada Potra. I do not know that Lal Khan aforementioned had lodged FIR No. 133 dated 19.3.1986 against Saqlain, accused Muhammad Safdar and Mirza Khan. Mirza Khan is father of the accused Saqlain."
"There had been a quarrel with Safdar, Mirza Khan Saqlain and Munsafdar aforesaid. A criminal case was registered about the said incident. Volunteered compromise had been effected in that case in the Court at Gujarkhan."
"I do not know that any father in law Capt. Lal is also PW in the said case u/S. 307 PPC and I do not know that FIR was lodged in that case by my father in law Capt. Lal Khan. It is incorrect to suggest that in order to conceal our pitched enmity with the accused persons I am wilfully concealing my knowledge of our criminal litigation with the accused persons. Sher Khan is brother of Capt. Lal Khan. It is correct that Sher Zaman had lodged FIR u/S. 325 PPC against the accused Saqlain etc. in 1996. It is incorrect that I had also lodged FIR against the accused in 1978 u/S. 325 PPC. In the case lodged by Sher Zaman the complainant was himself injured."
"Muhammad Fazal is my brother in law (Hamzulf) Muhammad Fazal was injured by the accused Saqlain and Qamar Zaman. I was present in the village at that time."
"None of the accused repeated the fire at Iftikhar."
5. Abdul Khaliq, the second eye-witness of the occurrence (PW-9) gave the details about the earlier clash inter-se the parties in the following words:-- "that on 5.7.1996 at 3:30 p.m. there had been a quarrel between Saqlain, Qamar-uz-Zman and Muhammad Fazal. The reason of the quarrel was that Saqlain had passed his tractor from the crop of Fazal. There was a scuffle between Fazal and Saqlain whereas Qamar Zaman accused gave a knife blow to Faazal." and supported the prosecution story fully. The deceased was his nephew.
6. Dr. Asif Mehmood, Medical Officer (PW-10) conducted the postmortem examination on the dead-body of Iftikhar Ahmad who was a young man and found the following eight injuries on his person:--
(1) A wound of entrance with surrounding burning 0.8. cm. X 0.8. c.m. on the anterior left upper chest 1 c.m. above the medical of end of left clavicle directed posteriorly fracturing the under line clavicle and the posterior end of third rib.
(2) Entry wound 1 c.m. X 1.c.m. edges inverted with burning of surrounding skin and present on the left chest between second and third ribs anteriorly and 3 c.m. lateral to the left stronal and directed backwards to posterial chest wall fracturing posterior end of the fifth rib.
(3) Entrance wound 1 c.m. X 1 c.m. present on anterior of left chest 7.5 c.m. lateral and slightly upward to Injury No. 2 and directed downwards and posteriorly to axillary wall.
(4) Entrance wound anteriorly on left upper chest 2 c.m. above middle of left clavicle directed downwards and posterior to the left shoulder blude.
(5) Entrance wound with surrendering burning 5 c.m. X 5 c.m. on the front of left shoulder joint directed downwards.
(6) Extrance wound with surrounding burning on left upper arm anteriorly and 2.5 c.m. below Injury No. 5. Size was 1 c.m. and directed downwards and posteriorly.
(7) Wound of exit edges everted .5 c.m. X .8 c.m. on back of left upper arm and 12 c.m. below the left shoulder joint.
(8) Entrance wound below lower jaw on left side 9 c.m. above Injury Nos. 1 and .5 c.m. X .8 c.m. directed downwards towards the left upper chest.
His opinion was as follows:-- "In my opinion death was caused by Injury No. 8 which ruptured the big vessels of the neck causing profused bleeding and also by Injury Nos. 1 and 2 which also resulted in haemorrhage and shock leading to death."
The following excerpt from his testimony in cross-examination is reproduced below:-- All injuries except Injury No. 7 which is exit are on the same side of the body. I have mentioned blackening in my MLR. The possible distance between assailant and the victim could be 1 to 3 yards.
Wounds being in the same vicinity possibility of one fire shot is there."
7. Muhammad Ashraf, Sub-Inspector (PW-13) was then posted at Police Station Jatli. When he received the information at 6:40 p.m. he went to the place of occurrence and recorded the statement of the complainant Imdad Hussain, on the basis of which the FIR was registered. He examined the dead-body and sent it under escort for its post-mortem examination. He secured blood-stained earth from the place of occurrence (Ex. PN). Later on 6.7.1996 the Head Constable Bashir Ahmad (PW) handed over to him the last worn clothes of the deceased, a sealed phial and a sealed envelope which he took into possession vide memo Ex. PM. He then got the site-plans prepared through the Draftsman and these are Ex. PG and Ex.PG/1. The Draftsman affirmed this fact.
He scribed his notes in red on the site-plan. He arrested the appellant Qamar Zaman on 16.7.1996.
Zahid Iqbal, an acquitted co-accused, appeared before him and stated that he had been injured.
He was got medically examined through Dr. Mushtaq Ahmad (PW-11) on' 18.7.1996 and who gave his Medico Legal Report which is Ex. PL. There were three injuries. According to the doctor, these injuries were suffered by fire-arm. The doctor was unable to tell what arm was used and as to what was the duration of the injuries. All these injuries were located on the left leg.
8. He got recovered a gun from Zahid Iqbal accused and registered a case against him. Saqlain accused was arrested by him on 29.7.1996 and Fakhar Zaman who had been declared Proclaimed Offender, was arrested on 6.11.1996. On the same day, he got recovered a gun from Qamar Zaman. .
9. The following excerpts from, his cross-examination are re-produced below:-- "It is correct that Fakhar Zaman accused was found by me during investigation to be innocent. To his extent according to my investigation the prosecution version was false."
"It is correct that in spite of utilizing my full professional skill I did not succeed in effecting any recovery from the accused Saqlain. Till sending him to judicial lock-up the accused Saqlain did not change his first version and remained firm on the same. It got the physical remand of the accused Qamar Zaman on 17.7.19.96 and it was granted only for one day. The second term of remand was up to 24.7.1996. It is correct that the, recovery was effected on the last day of remand."
"The physical remand of Zahid Iqbal accused was obtained by me for the first time on 21.7.1996. It was granted up to 25.7.1996. It is' correct that in spite of using my professional skills I could not effect any recovery from him during this period. Then I obtained the physical remand of the said accused for the second time up to 26.7.1996. It is correct that during this terms remand also I used my full professional skills but the recovery could not be effected." "It is incorrect that at the last minute of the remand Lal Khan father of the deceased provided gun P-3 to me which I foisted against the accused. It is correct that no empty or live cartridge was recovered alongwith the gun according to prosecution story."
"I had observed the nearby walls minutely but no sign of firing was found thereon. It is correct that in inquest report I have not geven the description of fire arm in the relevant column. It is correct that I have not mentioned any empty in Column Nos. 22 and 23 of inquest report."
10.Amongst the formal witnesses, we have Mazhar Hussain, Muharrer, who had registered the FIR and kept the sealed parcels of the case property in the Malkhana in safe custody on 6.7.1996, which on 13.7.1996 were handed over to Muhammad Hayat Constable for onwards transmission to the office of the Chemical Examiner and the Forensic Science Laboratory. On 24.7.1996. He further received parcel of a gun which he kept in the Malkhana. On 29.7.1996 another parcel of gun was given to him which he kept in safe custody and he later handed over these on 3.8.1996 to Muhammad Iqbal for onwards transmission to the office of the Forensic Science Laboratory.
11.Muhammad Hayat affirmed the fact of delivery of the parcel at the aforementioned offices in Lahore. Same was the case of Muhammad Iqbal (PW-3) Wajid Hussain had identified the dead- body. Tikka Khan is a witness of the recovery of the .12 bore gun from Qamar Zaman on 24.7.1996.
He is a cousin of the deceased and son of Sher Zaman, PW.
12.Lal Khan (PW-7) witnessed the recovery of .12 bore gun from Zahid Iqbal. He is the father of the deceased and admitted having previously lodged a complaint against the acquitted co-accused Saqlain vide FIR No. 133/1986. Relevant excerpts from his statement are re-produced below:-- "Imdad Hussain complainant of the present case is my son in law as well as Dada Potra. It is correct that Imdad Hussain had lodged FIR No. 47 in 1978 at P.S. Jatli u/S. 325/34 against Mirza Khan, Saqlain and Safdar. Sher Zaman is my brother. It is correct that the allegation in the said case was that the accused had injured Sher Zaman." "I have cordial relations with Imdad Hussain the complainant of this case as well as complainant of case FIR Nos. 47/78 u/S. 325/34 PPC of P.S. Jatli. I am conversant with all facts and the results of case FIR Nos. 47/48 referred above. It is incorrect that I am intentionally concealing the acquittal of the accused in case FIR Nos. 47/78 referred above dis-honestly. I know that my brother Sher Zaman sustained grievous injuries in the case FIR Nos. 47/78 from the hands of Muhammad Saglain, Mirza Khan and Safdar accused."
13. Qamar Zaman appellant in his statement under Section 342 of the Cr.P.C. pleaded his innocence and gave the following version:-- "The story of quarrel with Muhammad Faazil is totally false and concocted. Muhammad Faazil did not appear before the police during the investigation to support the prosecution case. Muhammad Faazil was neither cited as a witness in calendar of witnesses, nor he was produced during the trial by the complainant party. Therefore, so called motive alleged by them stands falsified by non- production of Muhammad Faazil, or the Medical Officer who examined him therefore, there is not an total of evidence in respect o motive. The same is false. From day one, my version warning before the police that I was falsely involved in this case due to long standing enmity. The complainant party earlier too got registered case against me, which was conceded by them during trial and I was honourable acquitted. Sequel to that enmity, I was roped in this case through deviced widened. Even the I.O. has conceded that my first version remained persistent throughout the investigation. Zahid Iqbal m co-accused was factually injured by the deceased Iftikhar. Iftikha deceased used to ply Suzuki and Zahid Iqbal my co-accused also use to ply Suzuki and over turn of Suzuki, they quarreled and Iftikhar fired at Zahid Iqbal with .12 bore gun and I was going to my to intervened and interrupted the matter. Iftikhar threatened me well and in order to saved myself and Zahid Iqbal, I fired solitary she with .12 bore carbine at Iftikhar at 9:30 p.m. No PW was attendance. They learnt much latter about the occurrence and four Iftikhar deceased lying on the fields as dead. The complainant par was deliberating with the police throughout the right and FIR we lodged much latter in the morning and dead-body too w despatched in the morning and being in league with the police present false case was lodged against us and injuries on the person Zahid Iqbal were suppressed by the complainant party, who later on examined by the police and his version was corroborated medical evidence. MLR of Zahid Iqbal is Ex. PL on the file of to Court. I have only acted in my self-defence and that of Zahid Iqbal On the very day of occurrence, after knowing my false involvement in this case, I myself appeared and produced my licensed gun before the police. The story of so-called recovery is totally false and Ali Khan cousin of the deceased supported this false story an materially discrepant and his presence at the relevant time recovery is belied by his own admissions."
14.The statements of the acquitted co-Accused need not be reflected here although these have been read.
15.Ex. PP is the report of the Forensic Science Laboratory which only says that the guns recovered from Qamar Zaman and Zahid Iqbal were in working condition. The report of the Chemical Examiner was in positive.
16.The learned trial Court in his judgment mentioned is a not lot of discrepancies in the prosecution case which are apparent and have been pointed out before this Court as well. To sum-up these, it is proper to reproduce the relevant excerpts from the judgment of the trial Court: -- "As regards the ocular evidence, all the prosecution witnesses have supported the prosecution version but as already pointed out by the learned defence counsel there are some discrepancies and contradictions in the prosecution evidence. PW-4 Wajab Hussain stated that the police had come at the spot at 6:30/6:45 p.m. whereas the complainant Imdad Hussain and PW-9 Abdul Khaliq contradicted him and according to them, the police had reached the place of occurrence at about 9:00 p.m. This shows that the FIR was lodged with a delay and after inspection of the spot and preliminary investigation. In this way, the FIR looses its sanctity and creates doubt about deliberation, fabrication and concoction. Similarly, the medical evidence is also at variance with the ocular account because according to the complainant Imdad Hussain, the firing was made by the accused from a distance of 41 feet whereas the Medical Officer keeping in view the nature of injuries (blackening and burning) explained that the injuries could be caused from not more than a distance of 3 yards. Otherwise, blackening and burning does not occur. There is also contradiction regarding distance in the statement of PW-8 Imdad Hussain and PW-9 Abdul Khaliq. PW-10 Dr. Asif Mehmood admitted in cross-examination that all the injuries being in the same vicinity, there was possibility of the same being caused by one fire." "The case of the accused Qamar Zaman is distinguishable from that of the remaining accused. All the PWs have supported the prosecution version that Qamar Zaman was armed with .12 bore gun later on recovered from him and he fired on Iftikhar Ahmad."
17.The appraisement of the evidence reflects a lot of truth in what has been concluded by the trial Court. The parties are relations. They are inimical towards each other. They are involved in criminal litigation, details of which have come from the statement of Imdad Hussain, complainant in this case, as well as Lal Khan, the father of the deceased Iftikhar. The trial Court, therefore, remained careful throughout while appreciating the version of the prosecution and that was very sensible.
18.Keeping in view the injuries suffered by Iftikhar Hussain on some side of the body and accepting the opinion of the doctor that these could be caused by a single fire shot, he had correctly arrived at the probability that the three co-accused may have just been roped in this case because of this delay FIR and convicted Qamar Zaman appellant. It appears that he had no other choice.
19.Zahid Iqbal did suffer injuries but these could be self suffered being on the leg. His belated medical examination takes away a lot of credence. The statement of appellant Qamar Zaman that he fired a solitary shot with his carbine in self defence of his person and Zahid Iqbal, appears to be an after thought and has not been substantiated not the onus discharged with respect to this plea.
Even, otherwise, one does not discover from the fact on record of anything cogently supporting his plea of self-defence which, therefore, has not to be believed.
20. Therefore, after hearing arguments of both sides and perusing the record thoroughly, we uphold the order of conviction. But what the learned trial Court had observed on discovery of facts borne on record and what we have seen during the appraisal of evidence and while keeping in view the fact about the delay in the FIR, the inimical disposition of the witnesses, the roping in of three co-accused and while also relying on the statement of the doctor that a solitary fire may have been shot on the same side of the deceased, we are of the considered view that the principle of safe administration of justice has to be applied in this case and there is all justification for it therefore, we reduce the sentence from death to life imprisonment. The rest of the orders of the trial Court shall remain intact. Benefit under Section 382-B of the Cr.P.C. will now be given to the appellant after this modification in the quantum of sentence only. The appeal (bearing No. 227/1999) of Qamar Zaman appellant is, therefore, decided in these terms.
21. The other connected appeal bearing, No. 290/1999 which is against acquittal, will, of course, be subject, to the opinion we already formed in this entire case and we, therefore, dismiss the same.