JUDGMENT KH. MUHAMMAD SHARIF, J.~ This judgment will dispose of Crl. Appeal No. 109 of 2000 filed by Akbar Ali @ Akku and Sher Muhammad appellants, who were convicted and sentenced by learned Addl. Sessions Judge, Sahiwal vide his judgment dated 15.2.2000 as under: - Akbar Ali @ Akku appellant, death and a compensation of Rs. 50,000/- or in default six months'
R1 u/s. r 302, PPC. Seven year's R1 and a compensation of Rs. 20,000/- or in default six month's R1 u/s. 324, PPC.
Sher Muhammad appellant, life imprisonment with a compensation of Rs. 20,000/- or in default 6 month's R1.
Murder Reference No. 156 of 2000 for confirmation or otherwise of death sentence of Akbar AII shall also be replied through this single judgment.
2. Brief facts of the case, as narrated by Ali Sher complainant are that his father Allah Ditta had taken two acres agricultural land on lease from Akbar @ Akku accused in Chak No. 138/9.L. A joint held of chaff was lying in Killa No. 2 of square No. 200. out of such chaff Muhammad Akbar alias Akku, accused picked up his share and remaining chaff was lying in Killa No. 2 as share of complainant, which the accused did not permit to pick it. Through Punchayat Muhammad Akbar @ Akku, accused gave his consent to pick up the disputed chaff. On eventful day at about 12.00 Noon complainant along with Naseer, Shahamand @ Shamma and Allah Ditta, father of complainant, were present in Killa No. 2 for picking up chaff. Four bags of chaff were taken up and put on the donkey cart. On the turn of 5th bag suddenly Akbar @ Akku, accused, armed with rifle and Sher Muhammad accused armed with hatchet came on the spot. Sher Muhammad raised lalkara and asked the co-accused not to escape them. After this juncture Akbar @ Akku accused made fire with his rifle which hit upon the right thigh of Naseer PW. In the result bleeding started and he fell down. When the complainant's father stepped forward to save his son, in the meanwhile Akbar @ Akku accused inflicted fire upon him with his rifle, which landed, to the complainant's father on his right knee, right and left shin. When the complainant's father Allah Ditta fell down, Akbar accused again fired upon him, which landed upon his testicles (Patalu).'As the result of injuries Allah Ditta, father of the complainant, succumbed to the injuries at the sppt. Beside complainant his uncle Shahamand @ Shamma, visualized the occurrence, In the meanwhile Sher Muhammad having hatchet. Proceeded towards his Dhari and Akbar @ Akku accused having rifle raised Lalkara and threatened for dire consequences and stepped forward towards south where at a distance of two acres Warryam accused, had brought Akbar accused and was waiting for him. Subsequently giving lift to Akbar, accused, on his motorcycle proceeded towards south.
The motive behind the occurrence was th^t the accused had suspicion that Ashraf, brother of complainant had illicit relations with Mst. Seema, sister of Sher Muhammad accused. Due to this grudge accused persons with their common intention have committed the murder of Allah Ditta and injured Naseer PW.
3. After registration of the formal FIR, investigation of the case was taken over by Dur Muhammad, SI PVC.
14. He proceeded to the place of occurrence, took over the dead-body of the deceased, prepared injury statement Ex. PG/8, inquest report Ex. PG/7, also prepared injury statement of Naseer Ahmed PW and got him medically examined. From the spot the I.O. Took into possession blood-stained earth vide memo. Ex!PA, he also secured five crime empties vide memo. Ex. PB, site plan is Ex.PH, arrested Akbar Alias Akku on 17.1.1996, who while in police custody got recovered rifle P.9, which was taken into possession vide memo. Ex. PF. Sher Muhammad and Warrayam accused were also arrested on 27.1.1996. After completion of the investigation, all the three accused were sent to face the trial.
4. At the trial, prosecution in order to prove its case produced 14 witnesses in all, thereafter, learned D.D.A, tendered in evidence report of Chemical Examiner Ex.PI, report of Serologist Ex.PI/1, report of Fire-arm Expert Ex.PJ and closed the prosecution case, then, the accused in their statements recorded u/s. 342, Cr.P.C, pleaded false implication. After conclusion of the trial, Warryam, accused acquitted while Akbar Ali @ Akku and Sher Muhammad were convicted and sentenced as stated above. .5. After having read the entire prosecution evidence, statements of the appellants recorded u/s. 342, Cr.P.C, and other relevant material available on record, learned counsel for the appellants submits that FIR was recorded after due deliberation and consultation, that occurrence took place on 30.12.1995 but the post-mortem was conducted on 1.1.1996 with the delay of 48 hours without any plausible explanation, that eye-witnesses had introduced new motive before the learned Trial Court by stating that in fact occurrence had taken place due to share of chaff, although the case set up by the prosecution in the FIR was that complainant party had suspicion that Ashraf had developed illicit relations with Seema daughter of Mst. Bhagan and according to learned counsel she was engaged to Akbar Ali @ Akku accused, that five crime empties, which were allegedly recovered from the spot were handed over by Naseer Ahmad injured PW to the Investigating Officer and with mala-tide intention he had not sent the same to the firearm expert, that in fact deceased was murdered by the fire of Naseer Ahmad injured PW and not by the fire of Akbar @ Akku accused when Allah Ditta deceased came in front of Naseer Ahmad injured PW, that Naseer Ahmad injured PW, did not hand over his rifle to the police during the course of investigation, that investigating officer while appearing before the learned Trial Court had admitted that it came to his knowledge that murder had taken place due to family honour and not due to share of chaff.
While arguing the case, learned counsel submits that had Ashraf not gone to the place of occurrence, the murder of Allah Ditta could not have taken place and according to learned counsel it is the finding of investigating officer. Further submits that in fact there is no chaff in the month of December, so story of the prosecution is totally unbelievable. Adds that if there had been any dispute over the share of chaff that could have taken place five months prior to the occurrence and not on the day of occurrence, that injuries have been caused from a very close range, that PWs were not consistent to the number of injuries and the seat of injuries, that PWs have made improvements in their statements and they were duly confronted with their earlier statements recorded by the police and in the private complaint, that recovery of rifle from Akbar Ali @ Akku accused-appellant is immaterial because empties recovered from the spot were not sent to fire- arm expert for comparison, as those were not fired by Akbar Ali @ Akku accused-appellant, that statement Naseer Ahmed injured PW was recorded on 31.12.1995 and not on 30.12.1995, although he was available in the hospital and according to investigating officer he was fit to make a statement and his statement is a tutored one because already complainant and other eyewitness were present there. Learned counsel further submits that in the brief fact of inquest report number of the FIR had not been mentioned and in fact FIR was registered later on, as the prosecution wanted and this is the reason that post-mortem was not conducted on 30.12.1995, that during the course of investigation version of the appellant found favour with the Investigating Officer, that presence of the eye-witnesses is doubtful in view of the circumstances, which have been read over even before this Court. He has relied upon 2002 SCM R 1986 and 1987 SCM R 722. While concluding the arguments, learned counsel submits that case of the prosecution is not confidence inspiring, that in the above circumstances the case against Akbar Ali @ Akku appellant is not of death sentence and there are mitigating circumstances in his favour for lesser sentence. As far as, Sher Muhammad appellant is concerned, learned counsel submits that he was armed with hatchet, he did not cause any injury either to the deceased or any PW and his case is of acquittal.
6. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that it was a broad day light occurrence, that it was a case of promptly lodged FIR, that Akbar Ali @ Akku accused-appellant is the main accused in this case, that ocular account is corroborated by medical evidence, that Naseer Ahmad injured PW while appearing before the learned Trial Court as PW. 6 had supported the prosecution case, that absence of motive is not helpful to the accused, that learned Trial Court had disbelieved the plea of the accused-appellants and that no defence evidence was produced by the appellants. He supports the judgment of the learned Trial Court.
7. We have heard learned counsel for the parties. In the instant case, there were three accused, namely, Akbar Ali @ Akku, Sher Muhammad and Warryam, who has been acquitted by the learned Trial Court. The deceased in this case is Allah Ditta, who is father of Ali Sher complainant, then, there is an injured PW namely, Naseer Ahmed, who is also son of Allah Ditta deceased and brother of Ali Sher complainant. Occurrence had taken place on 13.12.1995 at 12. (Noon), while the FIR was lodged at 1.00 p.m. On the same day, although the distance between place of occurrence and Police Station was six miles, so it was a case of promptly lodged FIR, which was even recorded at the Police Station and not outside the Police Station. The star witness in this case is Naseer Ahmad injured PW. 6, who was brought to the hospital by his brother Bashir Ahmad and was medically examined on the day of occurrence i.e.30.12.2005. According to his medical report, which is placed on record, the doctor, who had medically examined him, was not produced and in this regard, process server appeared and stated that, the said doctor had gone abroad and according to the statement of Rehan Saeed dispenser had identified the handwriting and signatures of said doctor before the learned Trial Court.
8. This is a case of two versions. The Court has to see, which version is plausible, convincing one and nearer to truth. To our mind, the version given by Akbar Ali @ Akku appellant in his statement recorded u/s. 342, Cr.P.C, in reply to question No. 7 is not believable, convincing one and nearer to truth.
9. Learned counsel for the appellant laid much stress that in fact brother of Naseer Ahmad injured PW, namely, Ashraf had developed illicit relations with Seema daughter of Mst. Bhagan, who was also engaged with Akbar Ali @ Akku appellant, In this regard, we may state here that it is a settled law that when an accused person takes a special plea, then according to Article 121 of Qanun-e- Shahadat Order, 1984, the onus lies on him, which the appellant Akbar Ali @ Akku failed to prove the same because neither Mst. Seema nor Mst. Bhagan was produced before the police during the course of investigation or before the learned Trial Court as defence witness. As far as, contention of learned counsel for the appellants that occurrence took place on 30.12.1995 and the post-mortem was conducted on 1.1.1996 is concerned, we have summoned the calendar of year 1995 from the office and in date on 31.12.1995, it was Sunday and this was the reason neither any question was put to the doctor, who conducted post-mortem examination on the dead-body of the deceased nor to the investigating officer, so this delay for conducting post-mortem examination on the dead-body of the deceased is not available to the accused because it was not the negligence either of the prosecution or of the doctor, who had conducted post-mortem examination on the dead-body of the deceased on 1.1.1996. The relevant column of the post-mortem report shows that on 30.12.1995 the dead-body and police papers were received in the hospital. The star Witness in this case is Naseer Ahmed injured PW, who had fully supported the prosecution case. The version of the appellant was that Ashraf brother of Naseer Ahmed injured PW had developed illicit relations with Seema daughter of Mst. Bhagan and he was apprehended by the appellant's party but the fact remains that he (Ashraf) did not receive a single scratch on his -body neither he was given kick blows nor fists blow on his person.
Learned counsel for the appellant has also made lot of submissions regarding motive that in the FIR motive was not only of the share of chaff but also the suspicion of appellant's party regarding illicit relations between Ashraf and Seema. We would like to reproduce some lines from the cross- examination of Ali Sher PW. 4 at page 63 as under:- "it is correct that Naseer PW had moved an application to the SHO against Akbar accused prior to this occurrence and Akbar accused was hauled up by the police and he remained in police custody for one day. Volunteered that said Akbar did not allow us to' move chaff and therefore, we moved an application for the said purpose. I had got no copy of that application with me. The said application was moved 4/5 days prior to the occurrence, it is incorrect that on account of such application our relations were bitter and strained with Akbar accused, it is incorrect to suggest that we were pressurizing Akbar and his family members so that we may get hand of Mst. Seema for Ashraf."
Learned counsel for the appellants has also referred to the statement of investigating officer and tried to impress upon this Court that investigating officer had admitted the version of the. Defence, In this regard, we may state here that not a single question was put to the investigating officer although lengthy cross-examination was conducted on all the eye-witnesses arid even on the investigating officer that what was the first version of Akbar Ali @ Akku appellant when he was arrested by him for the reasons that Akbar Ali appellant did not take this first version before the investigating officer at earliest at the time of the arrest. According to investigating officer, it came to his knowledge that it was a case of family honour but in this regard no evidence was collected by the investigating officer, as we have observed earlier that neither Mst. Seema nor her mother Mst. Bhagan was produced therefore the investigating officer during the course of investigation or before the learned Trial Court, In our considered opinion, the investigating officer was giving concession to the defence and he was dishonest because he was making the statement as if he was an eye-witness in this case.
Hon'ble Supreme Court of Pakistan has recently held in a case titled as Syed Hamid Mukhtar Shah vs. Muhammad Azam and others '(2005 SCM R 427) and in a base titled Waris Khan vs. State (2001 SCM R 387) that In case Court crones to the conclusion that evidence of eye-witnesses is unimpeachable, having intrinsic value whether the motive alleged or if so alleged but is not proved, loses it significance and is no ground to award lesser sentence. The dishonesty of. The Investigating Officer is that five crime empties were recovered from the spot, appellant was arrested on 17.1.1996, got recovered rifle on his pointation, he sent the rifle to the fire-arm expert but never sent the said crime empties to fire-arm expert earlier or later on or alongwith rifle to fire-arm expert. There was no previous background of enmity between the parties, so no case of false implication is made out in favour of Akbar Ali alias Akku appellant. Akbar Ali alias Akku appellant not only fired one shot but also repeated one after the other.
After having heard learned counsel for the parties and having gone through the case from all the angles, we are of the considered opinion that prosecution has proved its case against Akbar Ali @ Akku appellant, so appeal filed by him is dismissed. Death sentence awarded to him by the learned Trial Court is confirmed and murder reference is replied in affirmative.
As far as, Sher Muhammad appellant is concerned, he is first cousin of Akbar Ali @ Akku appellant, he was armed with hatchet, he raised a "Lalkara" at the spot but did not cause any injury either to the deceased or any PWs, so while granting the benefit of doubt we accept his appeal, the conviction and sentence recorded against him by the learned Trial Court is set aside. He is in jail and he shall be released forthwith if not required to be detained in any other case.