' This judgment will dispose of Criminal Appeals No.2018 of 2001 and 2020 of 2001 and Criminal Revision No.160 of 2002, all arising out of F.I.R. No.92 of 2000, registered on 15-2-2000 in Police Station Saddar, Hafizabad under sections 337-F(iv), 337-F(v), 337-F(i), 109, 147, 148 and 302, P.P.C.
2. The formal F.I.R. Exh.P.J/2 was registered on the basis of application Exh.PJ of Muhammad Boota complainant who had stated therein that on 14-2-2000 his maternal cousin Muhammad Rafique who sells milk had proceeded to Hafizabad City from his Village early in the morning on a Cycle.
Around 4-00 p.m., he was returning from the City to the Village and when he was at some distance from Madhranwala minor (Distributory), (1) Rafaqat Ali accused armed with a pistol, .30 bore, (2)
Liaquat Ali armed with a hatchet, (3) Sarfraz Ahmad also armed with a hatchet, (4) Basharat Ali armed with a gun .12 bore and (5) Abdul Razzaq armed with a Sota, who were sitting under a Kikkar tree, suddenly emerged. As soon as Muhammad Rafique reached near them, Rafaqat raised Lalkara exhorting his co-accused to catch hold of Rafique and to kill him. In the meanwhile, Rafaqat held Rafique in his Japha and pulled him down on the ground. While he was lying down, Liaquat accused gave a hatchet blow from its blunt side, hitting him on the elbow of his right hand.
Sarfraz accused gave a hatchet blow from its blunt side on the lower part of his right leg. Then Basharat Ali gave a blow with the butt of .12 bore double barrel gun which hit him on his left wrist and Razzaq accused gave a Sota blow on his left knee. Thereafter all the accused continued causing injuries to him with their respective weapons and he got seriously injured. He started raising alarm and on which the complainant and Mushtaq Ahmad who were proceeding to the City on the Cycle reached there and witnessed the occurrence. Thereafter the accused fled away on two Motorcycles. They took Muhammad Rafique on a Rehri to Civil Hospital and where he was medically examined.
3. In the F.I.R. It was also stated that on 4-2-2002 Muhammad Rafique had a quarrel with the accused in the Village Mosque and a case concerning which was under investigation. On account of the said grievance the accused had subjected Rafique to attack with the intention to kill him. The complainant also alleged that the offence aforesaid had been committed by the above- mentioned accused on the behest and in consultation with Ali Sher and Shaukat Ali accused. It may be mentioned here that the injured Muhammad Rafique latter succumbed to the injuries in the hospital and hence section 302, P.P.C. Was also added in the course of investigation.
4. As a result of investigation challan was submitted against the seven accused namely Shaukat Ali, Basharat Ali, Liaquat Ali, Sarfraz Ahmad, Abdul Razzaq, Rafaqat Ali and Ali Sher.
5. The accused were formally charged on 26-4-2001 and to which they pleaded not guilty and the prosecution was thus asked to produce its evidence.
6. In this case the prosecution has examined as many as 13 P.Ws. Of them, P.W.11 is Bashir Ahmad who on 15-2-2000 was posted as A.S.-I. At Police Station Saddar, Hafizabad. On the said day, at 9-15 p.m., Muhammad Boota complainant produced application Exh. P.J along with M.L.R. Of Muhammad Rafique Exh. P.K. Before him and on which he recorded the formal F.I.R. He visited the place of occurrence and prepared the rough site-plan of the place of occurrence, collected bloodstained earth from the spot and on the next day visited Jinnah Hospital to record the statement of Muhammad Rafique the injured/deceased where the Doctor declared him as unfit to make the statement. On 18-2-2000, he received a message on Telephone that Muhammad Rafique had expired in Jinnah Hospital, Lahore. He then proceeded to the Hospital at Lahore and brought the dead body of the deceased to Hafizabad. It may be mentioned here that on 14-2-2000, P.W.11 had recorded the statement of Muhammad Rafique deceased at Civil Hospital, Hafizabad.
According to him he had handed over the said statement to Mirza Zahid Iqbal, the then S.-I./S.H.O.
Of Police Station Saddar.
7. P.W.12 is Abid Hussain, the Exh. S.-I. Who on 18-2-2000 was posted at Police Station Saddar, Hafizabad and the S.H.O. Had entrusted the investigation to him. He inspected the dead body of the deceased in the D.H.Q. Hospital, Hafizabad. He prepared the inquest report and also an application for the post-mortem examination of the deceased. He then sent the dead body to the mortuary for the postmortem examination. After the post-mortem examination he took into 'possession the last-worn clothes of the deceased. On 18-2-2000, he arrested Shaukat All and Basharat Ali accused and on 21-2-2000 he arrested Liaquat Ali and Sarfraz Ahmad accused. On 28-2-2000, he arrested Abdul Razzaq accused.
8. According to P.W.12, on 3-3-2000, Basharat Ali accused while in custody, led to the recovery of .12 bore double barrel gun P.9 from the brick kiln, from underneath the heap of bricks. He took the same into possession vide recovery memo. Exh.P.G. On 5-3-2000, Sarfraz Ahmad accused got recovered the hatchet from the Baithak of his house which he took into possession vide memo.
Exh.P.G. On the same day, Abdul Razzaq accused got recovered Danda P.8 from the Baithak of Sarfraz and which he took into possession vide memo. Exh.P.F. On the same day, Liaquat Ali accused got recovered hatchet P.6 from the residential room of his house which he took into possession vide recovery memo. Exh.P.D. He also prepared the recovery memos. On 20-3-2000, he arrested Rafaquat Ali and Ali Sher accused. On 24-4-2000, Nawaz, the Revenue Patwari, .Produced before him the site plans Exh . P. H . And P. H . /1.
9. P.W.13 is Waseem Ahmad Khan A.S.P. Who in April, 2000 was posted as A.S.P./S.D.P.O. Saddar, Hafizabad. The D.I.-G. Had entrusted the investigation of this case to him. He stated that it appeared in his investigation that Muhammad Rafique deceased had got recorded his statement by Bashir Ahmad A.S.-I. In Civil Hospital.
10. P.W.10 is Dr. Nusrat Iqbal, Medical Officer, D.H.Q. Hospital, Hafizabad who on 14-2-2000 at 5-45 p.m. Had examined Muhammad Rafique deceased (who was then in injured condition) and had found as many as 12 injuries on his person. According to P.W.10, injury No.10 was inflicted by sharp- edged weapon while all the rest were inflicted by blunt means. Exh.P.K. Is the copy of the M.L.R. While Exh.P.K./1 is the diagram showing the locale of injuries. Later, after the death of Muhammad Rafique, on the written application submitted by Abid Hussain, A.S.-I., he had conducted the autopsy on the dead body of the deceased on 18-2-2000 at 4-00 p.m. And had found 12 injuries on his person. In his opinion the death in this case had occurred due to cardiopulmonary arrest as a result of fat embolism resulting from Injuries Nos.1, 3 and 7 which proved fatal individually as well as collectively.
According to him all the injuries were ante mortem and had been inflicted by blunt weapon, except Injury No.10 which was Inflicted by sharp-edged weapon.
' According to him, the probable time between the injuries and death was about 3/4 days and that between death and postmortem examination was about 12 to 18 hours. Exh.P.L is the copy of the postmortem report while Exh.P.L./1 is the diagram showing the locale of injuries. He admitted during cross-examination that Injury No.10 could not be caused with hatchet. He also admitted that all the 12 injuries had been caused on non-vital parts of the body of Muhammad Rafique deceased. He further admitted in the course of cross-examination that in the ordinary course of nature these injuries on the person of Muhammad Rafique could not cause death. However, he added that these could cause death in special circumstances.
11. P.W.8 Mushtaq Ahmad and P.W.9 Muhammad Boota have been examined in this case as eye- witnesses of the occurrence and who had deposed on the same lines as indicated in the F.I.R. P.W.9 Muhammad Boota/complainant also deposed that 10 days prior to the occurrence a quarrel had taken place between the accused and the deceased in a Mosque and that on the abetment of Ali Sher and Shaukat All and due to the said grudge the accused had committed the murder of Rafique. He deposed that Bashir A.S.-I. Had recorded the statement of Rafique deceased in the Hospital and who was then in injured condition but the said statement was got removed from the file by the accused party in connivance with the Police.
12. On 22-11-2001, the learned Prosecutor closed the prosecution evidence after tendering in evidence the report of Chemical Examiner Exh.P.R. And that of Serologist Exh.P.S. And closed the case for the prosecution.
13. On the conclusion of the prosecution evidence of the statements of the accused were recorded under section 342, Cr.P.C. And wherein they denied all the incriminating circumstances. None of the accused however made statement on oath under section 340(2), Cr.P.C. Nor any of them produced any evidence in defence.
14. On the conclusion of trial, vide the impugned judgment, dated 30-11-2001, the learned trial Court acquitted Abdul Razzaq, Shaukat Ali, Rafaqat Ali and All Sher accused by extending to them the benefit of doubt. Basharat, Liaquat and Sarfraz accused/appellants were however convicted under section 302(b), P.P.C. And were awarded life imprisonment. They were also directed to pay Rs.10,000 each as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in case of default in payment of compensation to undergo six months' S.I.
15. Aggrieved of the impugned judgment, Srafraz Ahmad accused has filed Criminal Appeal No.2018 of 2001, Basharat Ali and Liaquat Ali accused filed a separate Appeal (No. 2020/2001). For enhancement of the sentence awarded to the three appellants, Muhammad Boota/ complainant has filed a Revision Petition (No.160 of 2002). All these matters are being disposed of through this single judgment.
16. The learned counsel for the appellants has argued that initially the F.I.R. Was registered under sections 337- F(vi), 337-F(v), 337-F(i), 109, 147 and 148, P.P.C. And it was subsequently that section 302, P.P.C. Was added on the death of the deceased. He has argued that the case was not registered even under section 324, P.P.C. He has pointed out that although the occurrence had taken place on 14-2-2000 around 4-00 p.m. And although the place of occurrence was only at a distance of two miles from the Police Station, the F.I.R. Was registered on the next day i.e. On 15-2- 2000 at 9-15 p.m. And as such there was a delay of almost 29 hours. He has argued that in the F.I.R.
It had been stated that the accused had been trying to effect compromise in the matter (before the registration of the F.I.R.). However, the said explanation is hardly sufficient to justify the delay in lodging the F.I.R. He has argued that actually it was an unwitnessed occurrence and the complainant party had been speculating about the culprits and it was after a delay of 29 hours that they decided to falsely implicate the accused/appellants in this case. He has argued that the presence of the eye witnesses i.e. P.W.8 and P.W.9 at the time of occurrence was highly improbable and they have miserably failed to establish their presence at the time of occurrence. Referring to the statement of P.W.8 Mushtaq Ahmad he has argued that this witness deposed in his statement that when they reached the Minor of Madhranwala, he saw that Liaquat Ali, Basharat Ali, Abdul Razzaq, Sarfraz Ahmad and Rafaqat Ali, were going away after giving beating (to the deceased) with hatchets/Sotas. Four of them were going towards Village Ghalhar Divana and one towards the City on a Motorbike and prior to that they were sitting under a Kikkar tree and from the said portion of his statement it appears that he had seen the accused (if at all he had seen them) after they had already given beating to the deceased. Furthermore, he says that he had seen four of them going towards the Village while an other accused was going towards the City on a Motorbike. But the complainant himself as P.W.9 says that on seeing him and Mushtaq Ahmad P.W. The accused had fled away while riding a Motorcycle. He has argued that besides the bald statement of P.W.9 the prosecution has not produced any other evidence regarding the motive. Regarding the recoveries of weapons of offence he has argued that there is no allegation that the accused equipped with fire-arm had fired at the deceased and hence the recovery of the gun P.9 and also the recovery of hatchets. P.6. And P.7 and Danda P.8 was inconsequential and in the absence of any report the same cannot be considered as corroborative piece of evidence. He has asserted that the alleged weapons of offence had been planted on the accused to strengthen the prosecution story. Referring to the medical evidence he has argued that none of the injuries on the person of the deceased had been caused on a vital part. He has further argued that the Doctor appearing in the Court as P.W.10 admitted in the course of cross-examination that all the 12 injuries were caused on the non-vital parts of the body of Rafique deceased and that in the ordinary course of nature these injuries could not have caused death. He has argued that even if the prosecution story be believed, even then from the nature of the injuries caused to the deceased, it cannot be inferred that any of the appellants had the intention to cause death. He has further argued that the prosecution story in replete with inconsistencies and contradictions and is not sufficient to record conviction on the charge under section 302(b), P.P.C. He has argued that as the prosecution had failed to prove its case beyond reasonable doubt, the accused/appellants were entitled to be acquitted.
16-A. From the other side, the learned counsel for the State and the learned counsel for the complainant have supported the judgment of the learned trial Court and have argued that there is sufficient evidence on record to warrant conviction. The learned counsel for the complainant has however asserted that the learned trial Court had taken a lenient view of the matter and that under the circumstances of the case it was a fit case for the grant of capital punishment to the appellants and for the same reason the complainant had filed the revision petition.
17. I have carefully considered the arguments. Although there are some minor inconsistencies in the statements of P.W.8 and P.W.9 i.e. The eye-witnesses, yet the same are not sufficient to strike down the prosecution story from its very foundation. It may be mentioned here that Basharat accused/appellant in his statement under section 342, Cr.P.C. In response to the question as to why this case against him and why the P.Ws. Have deposed against him replied as under:-- "P.Ws are related inter se with deceased and inimical towards me and for this reason they had deposed falsely against me. In fact Muhammad Rafique deceased was injured by some of his other enemies after sun set. This was a blind and unwitnessed occurrence. The present P.Ws. Later on were called and made false witnesses. I along with my co-accused have been implicated due to enmity and suspicion."
' Liaquat Ali and Sarfraz accused in answer to the same question gave exactly the same reply.
Hence, it is the defence version of the appellants that it was a blind and unwitnessed occurrence and that actually Muhammad Rafique deceased had been injured by his other enemies after sun set and that the P.Ws. Were related inter se and inimical towards the appellants and due to which reason they have falsely deposed against them. However, none of the appellants has produced any evidence in defence in support of his version. It is unbelievable that the complainant party would like to falsely implicate them in a case of this nature while allowing the real culprits to escape. It has been argued by the learned counsel for the appellants that the statement of Muhammad Rafique who was then in injured condition in the Hospital had been recorded by Bashir Ahmad A.S.-I. On 15-2-2000 at 9-15 p.m. However, the said statement was not produced by the prosecution during the course of trial as it was not in support of their version. From the prosecution side it has been asserted that the said statement was got removed from the file by the accused. In any case, the said statement, which could be an important piece of evidence, does not form part of record.
18. In this case it is an admitted fact that all the 12 injuries on the body of the deceased were on non-vital parts, although the deceased was at the mercy of the accused persons. The hatchets were allegedly used from the blunt side and the gun had not been fired. The Doctor appearing in the witness-box as P.W.10 admitted in the course of cross-examination that all the 12 injuries were caused on non-vital parts of the body of the deceased and in the ordinary course of nature, these injuries could not have caused death, although he added that these could have caused death in special circumstances. Hence, it is probable that the accused/appellants intended to cause harm to the body of the deceased by causing injuires which in the ordinary course of nature were not likely to cause death but the same ultimately resulted in death. Hence, from the evidence on record it stands proved that the appellants had committed the offence of Qatl Shibh-i-Amd. The circumstances of the case do not Warrant conviction of the accused/appellants under section 302(b), P.P.C. As the evidence on record in this case constitutes an offence as defined under section 315, P.P.C. And the appellants are thus liable to be convicted and sentenced under section 316/34, P.P.C., instead of under section 302(b), P.P.C. Accordingly, the conviction recorded by the learned trial Court against the appellants namely Sarfraz Ahmad, Basharat Ali and Liaquat Ali is converted from section 302(b), P.P.C. To section 316/34, P.P.C. And the sentence of life imprisonment is converted to imprisonment for 10 years R.I. They will also pay jointly an amount of Rs.2,70,493.50 to the legal heirs of the deceased as `Diyat' in equal shares. The accused/appellants shall however be given the benefit of section 382-B, Cr . P. C .
19. With the aforesaid modification in the impugned judgment, both the Criminal Appeals (Nos.
2618 of 2001 and 2020 of 2001) are dismissed.
20. For the reasons mentioned in this judgment, Criminal Revision (No.160 of 2002) is also dismissed.