Tariq. Shamim, J.--Muhammad Razzaq appellant alongwith two other co-accused, namely, Bhai Khan and Adalat Khan, was tried for the murder of Ahmad Khan deceased in case FIR No. 95 dated 30.8.1998 for offences under Sections 302, 324, 109, 148, 149, P.P.C. registered at Police Station Pind Dadan Khan, District Jhelum, by the learned Addl. Sessions Judge Jhelum, who vide judgment dated 14.10.1999 convicted Muhammad Razzaq appellant under Section 302(b) P.P.C. and sentenced him to death as Tazir. He was also directed to pay Rs. 50,000/- to the legal heirs of the deceased as compensation under Section 544-A Cr.P.C. Bhai Khan and Adalat Khan co-accused were, however, acquitted of the charges.
2. Feeling aggrieved of the above-mentioned conviction and sentence, Muhammad Razzaq convict has filed Crl. Appeal No. 240 of 1999 while the State has approached this Court through Murder Reference No. 471 of 1999 seeking confirmation of death sentence awarded to the appellant whereas Muhammad Khan complainant had filed Crl. Revision No. 125 of 1999 against Muhammad Razzaq appellant for enhancement of compensation. All these matters are being disposed of together through this single judgment.
3. The prosecution story as narrated in the FIR (Ex PA/1) is that on 30.8.1998 Muhammad Khan complainant (PW-1) alongwith his deceased brother Ahrnad Khan and Haji Mumtaz Khan (PW-3) had gone to Sargodha via Khushab in his jeep and after completion of their work, they were coming to Lilla through Motorway via Bhalwal and at 3:30 p.m. when they reached near the petrol pump of Lilla Chowk, Razzaq accused armed with .7 MM rifle, Bhai Khan accused armed with .222 bore rifle, Adalat Khan accused armed with 30 bore pistol atongwith Ahmed Khan and Muhammad Ramzan (both not challenged) accused persons armed with .12 bore guns ambushed in a shop near PCO. As soon as the complainant applied break to his jeep because of humpy road, Razzaq etc. accused came there while raising lalkara that they would not let them go alive. After stepping down from the Jeep Ahmad Khan deceased was trying to take shelter of a shop, Razzaq accused fired with his rifle which hit on the right side of chest of the deceased below the shoulder who fell down on the ground. The complainant, Haji Mumtaz P,W 3 and Nadeem PW (not produced) after coming down from the jeep took the shelter of a footpath to save their lives. The appellant alongwith other co-accused also started firing at the complainant and other PWs but they were luckily saved. The, deceased succumbed to the ,injuries. The accused persons fled away from the place of occurrence. The occurrence was witnessed by Muhammad Khan complainant, Haji Mumtaz and Nadeem (not examined) PWs. It has been alleged that he occurrence had been taken place on the abetment of Nausherwan, Ghos and'Muhammad Khan who were not challaned in the case. The motive as narrated in the FIR was that Muhammad Razzaq etc. accused and deceased had quarreled with each other resulting in injuries to Ahnied Khan deceased regarding which a case under Section 324 PPC was registered of which the accused had a grudge, wherein inquiry was being conducted at PS Lille 5/6 months prior to this occurrence and the complainant party quarreled with Nausherwan etc. wherein Muhammad Khan (not challaned) accused was injured and a case was registered against the complainant party but the same was cancelled. Due to that grudge, all the accused named in the FIR on the abetment of other accused (not challaned) have committed qatl-e-amd of 'Ahmed Khan deceased. The complaint Ex.PA was read over to Muhammad Khan who signed it in token of its correctness.
4. While the firing was going on, the police party reached the spot headed by Munawar Iqbal ASI who arrested Muhammad Razzaq accused from a nearby shop known as Sialkot Gujranwala Goods and the firing was stopped after his blowing of hooter. He recorded the statement of Muhammad Khan complainant Ex. PA and sent the same to the police station where the FIR Ex.PA/1 was recorded by Muhammad Zaraiat MHC PW-8. He prepared his injury statement of Ahmed: Khan deceased (EX.PJ), also prepared the inquest report (EX. PK) and sent the dead body to the mortuary under the escort of Muhammad Tufail PW-6. He inspected the place of occurrence and prepared rough site-plan thereof (Ex. PL) collected blood stained earth from the place of occurrence and took the same into possession vide recovery memo (Ex. PB) The I.O. took into possession crime empties of .7 MM rifle P1/1-7 vide recovery memo (Ex.PC). He also took into possession .7 mm rifle alongwith a bag containing 8 live cartridges at the time of arrest of Muhammad Razzaq accused vide recovery memo (Ex. PD). He also referred a separate complaint for registration of case under Section 13 of the Arms Ordinance, 1965 to the Moharrir of the Police Statimi.
5. Dr. Ikhlaq Hussain Bukhari (PW-5) Medical Officer, Tehsil Headquarter Pind Dadan Khan on 31.8.1998, conducted the postmortem examination on the dead body of Ahmad Khan, brought by Muhammad Tufail C/764 and identified by Rasib Khan son of Raja Khan and Nausherwan son of Ahmed Khan and found the following injuries on his person:-
1. There was one circular injury measuring 1 cm diameter situated on right upper half of front of chest 8 cm below the' lateral part of right clavicle, 14 cm above the right nipple and 11 cm lateral to right from the upper part of sternum. Margins of wound were blackened, burnt and inverted (wound of entry).
2. Oval shaped wound measuring 2.5 x 2 cm with .averted margins on the back on right side near the lower part of right scapula. Lower tip of the right scapula fractured visible externally. (wound of exit).
'On opening the thorax, the doctor observed that anterior wall was damaged on the right side of upper part as described in Injury No. 1. First rib was fractured on right side. Muscles situated in this area, were damaged; right pleurae was damaged, right lung was completely damaged and blackened. The blood vessels of right lung were damaged and the remaining organs in thorax were found healthy. In the opinion of the doctor Injury No. 1 was fatal and was sufficient to cause death in ordinary course of nature. The probable time that elapsed between, injury and death was withiri a few minutes and between death and post mortem was 12 to 24 hours. (Ex. PF) is the correct carbon copy of the post-mortem report which is in the hand of the doctor and bears his signatures while (Ex. PF/1) is pictorial depiction of the injuries which is also in his hand and bears his signatures.
6. Mazhar Hussain S.I./SHO (PW-11) while he was posted at Police Station Lilla on 30.8.1998 took over the investigation of this case from Munawar Iqbal ASI at 10 p.m. and visited th& spot and inspected the place of occurrence .on the pointation of the said ASI. He took into possession last worn clothes of the deceased shirt P. 5, Shalwar P. 6, Parna P. 7 and amulet P. 8 (all blood stained) vidememo (Ex.
PG). On 3.9.1998 he got prepared the site-plans (Ex. PE) and (PE/1) ot the place of occurrence from Muhammad Sharif draftsman (PW-2). He arrested Bhai Khan and Adalat Khan accused and on 23.9.1998 Adalat Khan accused while in police custody led to the recovery of gun P 9 from his house which was taken into possession vide recovery memo (Ex. PH).
The I.O. after recording the statements of the prosecution' witnesses prepared the report under Section 173 Cr.P.C, against three of the nominated accused persons and sent them to face trial.
7.All the three accused were charged under. Section 302/324/34 P.P.C. to which they pleaded not guilty and claimed to be tried.
8. In order to prove its case, the prosecution produced Muhammad Khan complainant as PW-1, who narrated the occurrence as stated earlier, Muhammad Sharif, Draftsman (PW-2) who prepared the site-plan (Ex PE) and (PE/1), Haji Mumtaz Khan (PW-3) who also narrated the ocular account, Rasib Khan (PW-4) who identified the dead body of Ahmad Khan deceased at the mortuary, Dr. Syed Ikhlaq Hussain Bukhari, (PW-5) who conducted the post-mortem examination on the dead body of the deceased, Muhammad Tufail Constable (PW-6), Muhammad Akbar Constable (PW-7) both formal witnesses, Muhammad Zaraiat Moharrir Head Constable, Scribe of the. FIR (PW8), Hamad Khan ASI (PW-9) a recovery witness of .12 bore gun R 9, Munawar Iqbal ASI (PW-10) who initially investigated the case as narrated above and Mazhar Hussain S.I who took over the investigation of this case from Munwar Iqbal ASI and after completion of the same challenged the three accused persons as discussed earlier. After adducing the above PWs the learned DDA closed the prosecution evidence.
9. After closure of the prosecution case, 'the statement of the appellant and his acquitted co- accused were recorded under Section 342 Cr.P.C. The appellant denied recovery of any weapon from him and attributed his false involvement to enmity and claimed innocence. He, however, did not opt to enter the witness-box in his defence under Section 340(2) Cr.P.C.
10.At the conclusion of the trial, the learned trial Judge acquitted Muhammad Bashir and Rehmat Ali co-accused and convicted and sentenced the appellant as stated above.
11.Learned counsel for the appellant contended that there was no evidence on the record to show that the appellant was aware of the fact that the complainant party would be going to their house through the route taken by them; that in fact it was a chance meeting and there was no premeditation on the part of the appellant to commit the murder of the deCeased Ahmad Khan; that the investigation conducted by Munawar Iqbal ASI PW-10 could not be. termed as dishonest and keeping in view the facts and circumstances of the case, the same cannot be discarded; that the Investigation of PW-10 was endorsed by Mazhar Hussain SHO/SI the investigating officer that the statement of the accused/appellant made before the police and before the Court was fully corroborated from the surrounding circumstances as well as the post-mortem report which showed that the injury to the deceased was inflicted from a close range; that the appellant was justified in firing a shot at the deceased in the right of self-defence as the same is the natural and basic right; that the eye-witness account was belied by the post-mortem report which revealed blackening and tattooing and the assertion of the appellant that he had fired upon the deceased as he was closed to the appellant while armed with .222 rifle as the injury could not have been caused from a distance more than 5/6 feet; that Ex. PA the recovery of 8 empties of .282 bore, 9 empties of .12 bore and 12 empties of .7 mm rifle was duly signed by Muhammad Khan and Mumtaz Khan the complainant and PW-3 who were eye-witnesses of the occurrence as well as the recovery witnesses which supports the plea taken by the appellant in support of his defence; that the presence of the other co-accused could ,not be proved by the prosecution at the trial,. hence, the prosecution case is not credible as in particular a number of persons had participated in the alleged occurrence from the accused side. However, except for the appellant the prosecution version was disbelieved by the learned trial Court to the extent of other co-accused; that the trial Court failed to discuss the motive established of the case; that it was a fit case where light of self- defence should have been exercised. However, since it was a chance meeting of the parties at the place of occurrence, as such it was a case for awarding of lesser penalty and not extreme penalty of death.
12. On the other hand, learned counsel appearing on behalf of the complainant and the learned counsel appearing on behalf of the State contended that it was a case of promptly logged FIR and motive for the occurrence had been proved by the prosecution; that earlier also the appellant had fired at-the deceased and case under Section 324 PPC was registered against him and others and this was a second opportunity which resulted in the murder of the deceased; that it was not a chance encounter but a preplanned and calculated attack on the deceased; that the injury attributed to the appellant on the chest of the deceased was fully corroborated by the post- mortem examination; that the injury was on a vital part of the body; that the appellant was arrested at the spot armed with .7 mm rifle and 7 empties of .7 mm rifle were recovered which as per the report of the Forensic Science Lab matched with the rifle of the accused, hence it was not a case of one fire which goes to further support the prosecution case; that the site-plan was not a substantive piece of evidence and that Munawar Iqbal ASI PW-10 was in league with the accused and had got the site-plan prepared not on the potation of the witnesses but himself; that presence of the complainant and Noshewan was admitted by the appellant himself hence the place of occurrence, time, manner and the presence of the aforesaid PWs was not denied by the accused at the trial; that when the presence of the PWs was admitted, their relationship inter se had become irrelevant and of no consequence; that it was not a case of mistaken identity or of a sudden and chance occurrence; that no weapon of empties were recovered from near the body of the deceased, hence it was not a case, where the deceased had come upon the appellant and fearing imminent death the had exercised the right of self-defence that even if it was a case of even single fire, it was not a case of mitigating circumstances. Even otherwise it was in the evidence that he had fired repeatedly; that the version of the accused was not supported by any evidence on the record, hence the case against the appellant was proved beyond any reasonable doubt by the prosecution. However, it was admitted by the learned counsel for the complainant that the revision petition filed against acquittal of the.other accused had been dismissed by this Court on 18.7.2005.
13.We have heard the learned counsel for the parties and perused the record with their able assistance.
14.Insofar as the motive part is concerned there is not doubt that the parties are locked in criminal litigation since long and that there A is continues enmity between the parties. The motive being a double edged weapon can provide a reason for committing a crime and on the other hand it can as well be a reason to charge accused falsely on suspicion by relatives of the deceased. In the instant case the motive is not denied by either side, hence, the same stands proved. The weapon of offence i.e. .7 mm rifle was taken into possession by Munawar Iqbal ASI PW- 10 at the time of arrest of the appellant. The said police officer was attracted to the scene on account of firing which was going on between the parties which continued till his arrival. This fact is also not disputed by either side. Insofar as the recovery of crime empties are concerned both the witnesses Muhammad Khan PW-1 and Mumtaz Khan PW-3 who are also the eye-witnesses of the occurrence stated that the crime empties were taken into possession by the police from outside the shop i.e. the place wherefrom the appellant fired at the complainant party. Although, there is no dispute regarding recoveries of the empties of .7 mm rifle the stand taken by the eye-witnesses regarding the said recovery is contrary to the testimony furnished by Munawar Iqbal ASI PW-10 who stated that the crime empties were recovered from inside the shop known as Sialkot Gujranwala Goods from where Razzaq appellant was apprehended. In addition to 7 crime empties of .7 mm rifle, Munawar Iqbal ASI also stated that 8 empties of .222 bore rifle, 9 empties of .12 bore gun and 7 empties of .7 mm rifle were, recovered from inside the shop were the complainant and Nosherwan PW were stated to be present. The testimony of this witness is neither supported by any independent source nor is there any denial of the fact that he had relationship with the accused party. It appears that the said PW made a concerted effort to shift the recovery of crime empties from the actual place of occurrence to another place i.e. the shop shop where he has , shown the presence of the complainant and his companions at the relevant time. Further this witness was declared hostile at the trial for deliberately extending concession to the accused. The testimony of this witness, therefore, is neither credible nor free from doubt.
15.15. The injury to the deceased was caused by one fire shot from .7 mm rifle which was attributed to the appellant and according to PW-5 Dr. Ikhlaq Hussain, there was blackening and burning on the seat of the injury which goes to show that the same was caused from a very close range. The fact that the injury had been inflicted to the deceased by the appellant is not denied.
However, the controversy which has to be resolved is as to whether the injury received by the deceased was in the manner as stated by the eye-witnesses or as asserted by the appellant i.e. in self-defence. According to Haji Mumtaz Khan PW-3 when the Jeep had slowed down on account of bumps in the road near the petrol pump. Razzaq appellant armed with .7 mm rifle, Adalat Khan'armed with 30 bore pistol, Bhai Khan while carrying .222 bore rifle and 2 unknown persons, who were not challaned, while armed with .12 bore guns launched an attack on the complainant party and the deceased on apprehending danger, to his life alighted from the jeep and rushed towards a nearby where he was fired at by Razzaq appellant from a close range whereupon he fell down. The other PWs rushed in the other ;direction and took shelter of a wall about 2/3 feet high.
The accused 16.continued to fire at the PWs who were taking shelter behind the said Wall. Now contrary to the stand taken by the PWs the version advanced by the appellant is that on the fateful day he was standing outside the slop known as Sialkot Gujranwala Goods and on seeing him standing there Ahmad Khan, Bhai Khan and Nosherwan while armed with firearm weapons rushed towards him and started firing from their respective weapons, who in his defence went inside the shop, picked up his rifle and fired at the deceased who had come up upon him. Noshwewan PW and Muhammad Khan, PW-1 took shelter in the adjoining shop and continued firing at the appellant who in self-defence also fired a few shots. The prosecution case and the defence plea have to be taken in juxta position with each other in order to determine which one of the two is nearer to the truth.
17.16. The prosecution story cannot be believed in totality as according to the eye-witnesses the appellant had fired at the witnesses and the deceased when they were inside the jeep, but no marks of fire shots were found on the jeep. Whether the jeep had been slowed down by the complainant by chance or whether the jeep was stopped by the accused party is shrouded in mystery. The distance shown in the site-plan where the deceased was hit by the fire of the appellant was about 35 feet and if the appellant was at point 3 mentioned in the site-plan i.e. in Sialkot Gujranwala Goods shop, the fire of the appellant which hit the deceased would not have caused blackening and burning as revealed in the post-mortem report. On the other hand, the plea taken by the appellant also does not find support from any independent source. Once the appellant had taken a specific plea, it was for the appellant to substantiate the same at the trial but he had failed to prove the same. The witness whose testimony could have provided support to the defence plea was ASI PW-10 who was declared hostile for reasons referred to above.
Apparently both sides did not come out with full truth at the trial. The presence, of other accused mentioned in the FIR could not be established by the prosecution beyond any reasonable doubt before the learned trial Court. Bhai Khan and Adalat Khan accused were acquitted by the learned trial Court whereas the other accused named in the FIR were not even challaned by police. Even. the site-plan was not got prepared at the pointation of the PWs which is an admitted fact as PW-2 Muhammad Sharif Draftsman in his statement before the learned trial Court categorically. stated that he had prepared the site-plan on the pointation of the police. Munawar Iqbal ASI PW-10, the investigating officer mentioned that there were some marks of firing on the shutter of the shop from where the appellant had been apprehended but this aspect is missing in the site-plan.
Further, the weapons allegedly used by the complainant side were not taken in possession and no plausible explanation has been provided by the investigating officer for not doing so. The above noted facts to one conclusion only that the investigation in this case was not conducted honestly.
However, insofar as the involvement of the appellant is concerned keeping both the pleas in juxta position, with each other it appears that the prosecution version is nearer to the truth.
17. From the circumstances it is evident that the occurrence was an out come of a chance meeting between the parties who had long standing enmity with each other. The appellant had not come prepared to commit the murder of the deceased as there is nothing in evidence to suggest that he was aware that the complainant party had gone to Bhakkar 'and would be returning via the exact route, where the occurrence had taken place. Thus it can be safely said that the murder of the deceased Ahmad Khan was not the result of preplanning on the part of the accused. This is further supported by the fact that the other accused who are alleged to have accompanied the appellant at the time of occurrence Were acquitted by the learned trial Court as their presence at the spot was not found to be free from doubt. What transpired between the parties at the time of occurrence is a mystery as bath the sides at trial have tried to minimize their role, and have exaggerated the role of -the other side. Further, truth would have come out if the investigation in this case had been conducted in an honest manner which was not the case as. Munawar Iqbal ASI, PW-10 who was the first one to reach the spot conducted the investigation in a mala fide manlier by making deliberate concessions in favour of the accused.
18.It is admitted that the appellant was armed with a fire-arm weapon at the time of occurrence but he did not repeat the fire which aspect also has to be taken into account. As stated earlier, the occurrence appears to be the result of a chance meeting between both the sides and what had actually transpired between the appellant and the deceased immediately liefore the actual occurrence is shrouded in mystery.
19.For what has been discussed above, was feel that in the circumstances of the case the sentence of imprisonment for life would meet the ends of justice. Reliance is placed on the case of Naubahar vs. The State (1999 S.C.M.R. 637), Qamar Ehsan vs. The State (2004 P.Cr.L.J 47) and reference is made to the case of Shahzad Ahmad Khan vs. The State (2004 P.Cr.L.J 320).
20. Resultantly, while maintaining conviction of the appellant we dismiss this appeal. However, the sentence of death awarded to the appellant is converted into imprisonment for life. Order qua compensation will remain intact. Benefit of Section 382-B Cr1. P.C. shall be afforded to the appellant in the peculiar circumstances of the case.
21.As regards Criminal Revision No 125 of 1999, in view of the observations made above, the same is dismissed in limine.
22.Death sentence is not confirmed and Murder Reference is answered in the negative.