' KHAWAJA MUHAMMAD SHARIF, J.---This judgment shall dispose of Murder Reference No,84 of 2001 Criminal Appeal No,123 of 2001 as they arise out of the same judgment dated 20-1-2001 passed by Mr. Muhammad Kaleem Sheikh, Additional Sessions Judge, Sahiwal whereby appellant was convicted for the murder of Bashir Ahmad deceased and sentenced to death with a fine of Rs,50,000 in default hereof to further undergo three years imprisonment. Accused Mushtaq was punished with seven years' R.I. With a fine of Rs,30,000 under section 324, P.P.C. In default of fine to further undergo six months' S.I. He was also convicted under section 337-D, P.P.C. And sentenced to five years' R.I. With a fine of Rs,10,000 in default of which to further undergo S.I. For six months'.
Accused Muhammad Hussain was punished with R.I. For five years' under section 324, P.P.C. And a fine of Rs,10,000 in default whereof to further undergo S.I. For six months'. Both of them were given benefit of section 382-B, Cr . P . C .
2. Brief facts of the case as disclosed by the complainant Muhammad Iqbal (P.W.6) are that on 24- 9-1998 he along with his deceased father Bashir brought his mother to Mission Hospital, Sahiwal for delivery purposes as she was pregnant, at about 5-30 p.m. On the same day he along with his father and P.W. Arshad went to graveyard for Fateha of their relative Anwar and when they were returning from the said graveyard the appellant Ilyas along with his brother Mushtaq while armed with Chhnrries and their father .Muhammad Hussain emerged there and raised Lalkara to avenge their disgrace from Bashir, accused Mushtaq gave Chhuri blow on upper left side of abdomen of Bashir deceased, Muhammad Hussain caught hold Bashir in his Japha from his back, then appellant Ilyas inflicted a Chhurri blow on the palm of right hand of Bashir followed by a further blow on his chest who fell down, the complainant and P.Ws. Did not go near due to threat of dire consequences by the accused persons, the accused decamped from the spot, the complainant transported his father to Civil Hospital and admitted there and later on succumbed to the injuries in the hospital and the motive behind the occurrence was that deceased Bashir refused the hand of his daughter of Riaz which resulted into the above loss.
3. The investigation of the case was carried out by the police and after having completed legal formalities the accused were sent up for trial before the learned trial Court where the prosecution, in order to prove its case produced nine prosecution witnesses whereas the accused in their statements recorded under section 342, Cr.P.C. Pleaded not guilty and claimed trial.
4. Learned counsel for the appellant in support of this appeal contended that the deceased was resident of Malka Hans which was at a distance of 33 kilometers from Chak No,90/9-L Sahiwal; that the deceased was got admitted in the hospital in the injured condition by Khadim Hussain A.S.-I.
And not his son; that the eyewitnesses were not present at the place of occurrence and were planted; that their presence at the spot is further negated from non-existence of blood-stains on their clothes; that the story given in the F.I.R. Is neither convincing nor plausible; that the recovery of Chhurris was a planted one as according to the P.Ws. Those were of a new brand; that according to the post-mortem report Injury No,2 is a wound of operation while Injuries Nos.2 and 3 are the result of one blow; that P.W.1 admitted that no vital organ was damaged and the deceased died due to negligence of the doctor; that Mushtaq has wrongly been convicted under sections 324 and 337-D, P.P.C.; that Mushatq and Muhammad Hussain were falsely implicated in the case being real brother and father of the appellant; that the motive was not proved by the prosecution; that it is a case of single blow and at least not a case of capital punishment; that the prosecution has failed to prove its case against the appellant is entitled to acquittal.
5. On the other hand, learned counsel for the State submits that as the mother of the complainant was to deliver a child and as the said facility was not available in Malka Hans so she was brought by the deceased and the eye-witnesses to the Misson Hospital Sahiwal for the purpose; that both the eye-witnesses, namely, P.W.6 and P.W.7 are natural and independent witnesses; that the ocular account in this case is corroborated by the medical evidence and the evidence of recovery of Chhurris which were stained with blood; that no question of false implication or substitution arises; that there was no previous enmity between the parties; that the prosecution has proved its case against the appellant to the hilt and that the appeal filed by the appellant against the captioned conviction and sentences is liable to be dismissed by this Court.
6. We have heard learned counsel for the parties at a great length, have given anxious consideration to their submissions made before this Court and have also gone through the record with their able assistance.
7. The occurrence in this case had taken place on 24-9-1998 at about 5-30 p.m. And the matter was reported to the police at Chowk Arifwala Sahiwal at 1-10 a.m. Whereafter formal F.I.R. Was recorded at the Police Station at 1-25 a.m. And distance from the place of occurrence and the police station is two kilometers.
8. Muhammad Hussain accused, who has already served out his entire sentence, is the father of accused Mushtaq and appellant Ilyas. Deceased in this case is Bashir Ahmad. Two eye-witnesses have appeared in this case, namely, Muhammad Iqbal (P.W.6) and Muhammad Arshad (P.W.7).
P.W.6 is the real son of the deceased while P.W.7 is maternal nephew of the deceased.
Notwithstanding the fact that the eye-witness are closely related to the deceased but we note that they are not inimical to falsely depose against the accused. It was a broad-daylight occurrence.
9. We would like to reproduce the statement of Muhammad Hussain accused made under section 342, Cr.P.C. In answer to Question No,5 as to why the case was against him which reads as under:-- "The P.Ws. Are related inter se and with the deceased. They have made false statements due to enmity and suspicion. Bashir deceased was a man of bad character and had illicit relations with women at Chak No,90-9-L and the people of Chak No,90-9-L used to prohibit him to visit that Chak.
However, the deceased did not desist to visit Chak No,90-9-L and continued his bad activities. He also committed Zina bil Jabr with my daughter Mst. Nasreen and I lodged the complaint against him at the Police Station Galah Mandi but before the registration of the case relatives and respectable of the locality tried to patch up the matter. During the period Bashir Ahmad continued his bad activities and used to come in Chak No,90-9-L and he was injured due to the said reason.
He was taken to the hospital by the police. The complainant was summoned from his house at District Pakpattan and made the complaint in his case. The P.Ws. Were also summoned to cite them eye-witnesses in this case. The case was registered after post-mortem examination and preliminary investigation. Khadim Hussain A.S.-I. Was in league with the complainant party. For having monetary benefit Khadim Hussain dishonestly investigated this case. Our first version was not honestly interrogated by the I.O. The news of murder of deceased Bashir Ahmad was published in the Daily Jang, Daily Din, Daily Khabrain on 26-9-1998 that he was murdered due to illicit relations with women and committing Zina in Chak No,90-9-L. We were arrested on 25-9-1998 by the police in this case because we had made a complaint against Bashir. Ahmad deceased about Zina bil. Jabr with my daughter. It was an unseen occurrence. We were falsely involved in this case due to suspicion and enmity. The deceased was operated upon by the doctor and due to their negligence Bashir Ahmad deceased died during operation."
10. As far as motive is concerned we are not going to believe the same because, according to the complainant, at first he brought his pregnant mother for delivery to Misson Hospital Sahiwal along with his father and then after having left her there would go to graveyard for Fateha is quite unnatural. So, the motive is shrouded is mystery.
11. Even otherwise, nobody went to police station to lodge F.I.R. Till 1-10 a.m. Although distance from the place of occurrence and the police station was two kilometers. However, the prosecution has tried to explain the said delay by saying that the deceased, who was seriously injured, was being operated upon.
12. Even the Investigating Officer Khadim Hussain (P.W.8), at page 45 of the Paper Book, during his cross-examination, admitted as under:-- "It is correct that first version of Muhammad Hussain accused was that Bashir Ahmad deceased had done some wrong with his daughter Mst. Nasreen."
13. As far as Muhammad Hussain accused is concerned, only a Japha is attributed to him. We are sorry to say that the learned trial Judge has convicted him under section 324, P.P.C. Which is against the law because either he should have. Acquitted him or convicted him under section 302(b)/34 P.P.C. For common intention. Thereafter, he convicted Mushtaq to undergo seven years'
R.I. Under section 324, P.P.C. And five years under section 337-D, P.P.C. Which conviction and sentence is also totally against the mandate of law. He too either should have acquitted him or convicted him under section 302(b)134, P.P.C.
14. Apart from above, he had awarded fine to Ilyas appellant and even did not mention in the impugned judgment the section under which the appellant was being convicted. In our view he did not bother to go through the provision of section 302(a)(b)(c), P.P.C. Moreso he has awarded three years' R.I. To the appellant in default of the fine which is also totally against the mandatory provision of section 544-A, Cr.P.C. The above scrutiny of the impugned judgment shows that the way adopted by him was a wrong way and it appears that he does not know the A.B.C... Of the law on the subject and he appears to be a most inexperienced judicial officer in the profession. Such- like judicial officers play with the lives of the people. They forget that they are linked with the noble profession of dispensation of justice and while doing so they should be more careful and vigilant about the relevant provision of law. They must ensure that no injustice is done with the either party and nobody should suffer due to an act of the Court.
15. Now we would like to discuss the difference of opinion of the doctors regarding injuries on the person of the deceased. P.W.10 Dr. Mirza Muhammad Farooq has described injury in the abdomen, which has been mentioned in Ehx.PO, an Injury No,2, while P.W.1 Dr. Muhammad Yousaf Saleemi who conducted the post-mortem examination, has described Injury No,2 as a operated wound. But the fact remains that Mushtaq has already undergone his sentence. Neither he has filed appeal against his conviction nor the State or the complainant has assailed the acquittal of Muhammad Hussain or Mushtaq from section 302(b)/ 34, P.P.C.
16. As discussed above, this Court has already believed the ocular account against the appellant and we are of the considered view that the prosecution has fully proved its case against the appellant Ilyas beyond any shadow of doubt. Now we would like to see whether it is a case of capital punishment or not qua the appellant? Firstly, the F.I.R. In this case was a delayed one, secondly, the motive is shrouded in mystery as the prosecution has failed to prove the same, thirdly, there is a difference of opinion qua the fatal injury on the person of the deceased as discussed in para 15 above and, lastly, it has come on record that the deceased had done something wrong with the daughter of Muhammad Hussain accused. These are the extenuating circumstances which go in favour of the appellant and we are of the affirmed view that it is a case of mitigation and not a capital punishment. Resultantly, while maintaining the conviction and sentence of the appellant under section 302(b), P.P.C. We convert his sentence of death into imprisonment for life with benefit of section 382-B, Cr.P.C. With a further direction that the amount of fine is being converted into the amount of compensation and imprisonment in default whereof shall be six months' S.I.
17. Murder Reference is answered in the negative, Criminal Appeal No,123 of 2001 is dismissed with the above modification in the quantum of sentence and the sentence of death awarded to appellant is not confirmed.
18. Before parting with this judgment we must place on record our displeasure over the manner in which Mr. Muhammad Kaleem Sheikh, the then learned Additional Sessions Judge, Sahiwal has convicted and sentenced the accused persons ignoring the mandatory provision of the law on the subject. The said lapses, on his part, as discussed in paras.13 and 14 above are not ignorable.
Therefore, we are inclined to direct that a copy of this judgment shall be transmitted to the learned Registrar of this Court for placing the same on his CR Dossiers. The register shall also call his explanation. A copy of this judgment, along with the above explanation of the Judicial Officer, shall also be placed before the learned Inspection Judge of the said District for appropriation action.