' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,120 of 2001 filed by Muhammad Sadiq and Ghulam Ali (appellants) against their convictions and sentences along with Murder Reference No,196 of 2001 sent by the learned trial Court under section 374, Cr.P.C.
For the confirmation of death sentence awarded to Muhammad Sadiq (appellant) and Criminal Revision No,54 of 2001 filed by the complainant against Ghulam Ali appellant for enhancement of his sentence, which have arisen out of the same judgment dated 24-3-2001 passed by the learned Additional Sessions Judge, Chakwal whereby Muhammad Sadiq (appellant) had been convicted under section 302(b), P.P.C. And sentenced to death for committing the Qatl-i-Amd of Muhammad Sadiq son of Mian Khan (deceased) while Ghulam Ali (appellant) had been convicted under section 302(b)/34, P.P.C. And sentenced to life imprisonment. Both the appellants were also directed to pay compensation of Rs,2,00,000 each to the heirs of the deceased as required under section 544-A, Cr.P.C. Or in default thereof to further undergo R.I. For six months each. The benefit of section 382-B, Cr.P.C. Was also extended to Ghulam Ali (appellant). However, remaining two co- accused namely Fateh Ali and Amir Khan to whom role of abetment was attributed, were acquitted.
2. The brief facts of the case are that Khadim Hussain complainant was employed in the Air Force and posted at Air Base Kallar Kahar. He had a dispute of land with Noor Dad resident of Bharpur.
According to the decision of Punchayat, the said land was to be measured/demarcated on 29-8- 2000. Therefore, the complainant along with his maternal-uncle Muhammad Sadiq (deceased) and others Ahmad Khan, Muhammad Saeed and Abdul Aziz were going to Bharpur. When they reached near Adda Hattar at about 9-30 a.m. Where they saw Ghulam Ali (appellant), who was already present there, who told that no person was available for the measurement of land in question and they should go back. Thereafter, the complainant along with others went to a Chhaper Numa Hotel of one Ghulam Mustafa, where Ghulam Ali (appellant) was also present, who after seeing them went away towards his village on tractor. Later on, at about 10-15 a.m. Ghulam Ali and his younger brother Muhammad Sadiq (appellants) again came there on the same tractor.
Both of them were armed with pistols respectively and raised a Lalkara to the deceased to teach him a lesson for their insult. In the meanwhile Muhammad Sadiq (appellant) made a fire shot from his pistol hitting on the front side of chest of the deceased and second fire made by Ghulam Ali (appellant) not hit to the deceased. Both the appellants had also warned by saying that if any body will come near them would be done to death and went away towards the village on their tractor. The complainant and his companions immediately took the deceased to the Civil Hospital, Chakwal, but he succumbed to the injuries in the way to hospital.
3. The motive behind the occurrence was alleged that Tauheed Begum, fiance of Ghulam Ali (appellant) was abducted in the year 1989 and her parents got registered a case of abduction against Muhammad Sadiq (appellant) and one Altaf Hussain, but they were acquitted of the said charge by the Court. After one month prior to this occurrence, said Tauheed Begum along with her three children and husband returned to the house of her father and she held responsible Muhammad Sadiq (deceased) for her abduction. Due to this reason, the appellants on the abetment of Amir Khan (acquitted accused) father of Tauheed Begum and Fateh Ali (acquitted accused), had committed the murder of the deceased.
4. After recording the statement (Exh.P.A.) of complainant Khadim Hussain, (P.W.8) nephew of the deceased, Mazhar Hussain, S.-I./Investigating Officer (P.W.11) sent the same to the police station through Muhammad Hassan Head Constable No,427 for registration of the case and went to the D.H.Q. Hospital, Chakwal along with police officials and the complainant where he found the dead body and inspected the same, prepared the injury statement (Exh.P.B.), inquest report (Exh.P.D.) and drafted an application for conducting the postmortem examination of the deceased and then sent the dead body of the deceased to the mortuary through Rehmat Gul C-669 along with relevant papers. Thereafter he went to the place of occurrence and inspected the same, prepared site-plan without scale Exh.P.J., collected the bloodstained earth from the place of occurrence and took into possession vide recovery memo. Exh.P.I. The statements of witnesses under section 161, Cr.P.C. Were recorded. After the post-mortem examination of the deceased, Rehmat Gull C-669 (P.W.6) produced before the Investigating Officer last-worn clothes of the deceased, Qameez P.1, Chadar P.2, Parna P.3 all stained with blood and a sealed phial alleged to contain pellets which were taken into possession vide recovery memo. Exh.P.F. On 3-9-2000, both the appellants were arrested by the Investigating Officer. On 6-9-2000 Muhammad Sadiq (appellant) led to the recovery of pistol .12 bore (P.4) from his residential house in the presence of Ahmad Khan and Ghulam Ali (P.Ws.), which was taken into possession vide recovery memo. Exh.P.G. And revolver P.5 recovered from Ghulam Ali (appellant) vide recovery memo. Exh.P.H., prepared the site-plans of the place of recoveries vide Exh.P.K. And Exh.P.L. Respectively, also recovered tractor P.6 vide recovery memo. Exh.P.M. On 1-9-2000 Halqa Patwari Muhammad Anwar, Draftsman (P.W.3) joined the investigation, who inspected the place of occurrence and took rough notes on the direction of Investigating Officer and pointation of the P.Ws. And prepared site-plan Exh.P.E. And Exh.P.E./1. After the completion of the investigation, the appellants and others were challaned and sent them to the judicial lock-up:
5. After completion of the investigation, report under section 173, Cr.P.C. Was submitted in the Court.
Copies required under section 265-C, Cr.P.C. Were supplied to the appellants and the co-accused.
Charge was framed against them. They denied the charge and claimed to be tried.
6. The prosecution in order to prove its case produced as many as 11 witnesses. The ocular account was furnished by Ghulam Hussain (P.W.8) complainant/nephew of the deceased and Abdul Aziz (P.W.9) and Mazhar Hussain (S.H.O./Investigating Officer (P.W.11), who had conducted the investigation, while the medical evidence was furnished by Dr. Muhammad Iqbal Ghani, S.M.O.
D.H.Q. Hospital, Chakwal (P.W.2), who had conducted the post-mortem examination of Muhammad Sadiq (deceased). The remaining witnesses are of formal nature and need not to discuss here. The appellants along with co-accused in their statements recorded under section 342, Cr.P.C. Denied the allegations and to a question that "why this case against you and why P.Ws. Have deposed against you?" Ghulam Ali (appellant) replied as under:-- "Muhammad Sadiq deceased was an ill-reputed person who remained involved in a number of cases. He was the Gang Member of Altaf gang's group, a criminal of the area. Besides committing many other crimes, he had also abducted Tauheed Begum and Huseena Begum. I have been involved on account of enmity and suspicion as Muhammad Sadiq deceased was done to death under mysterious circumstances and it was an unwitnessed occurrence. I being an elder brother would never think of putting my younger brother to any trouble or inconvenience let alone to drag him in a case of this nature. I am innocent and so is my father and brother. All the P.Ws. Are related inter se."
' Muhammad Sadiq (appellant) also adopted the same reply narrated by Ghulam Ali (appellant).
However, they did not opt to appear under section 340(2), Cr.P.C. And also did not produce any defence evidence. The learned trial Court after hearing learned counsel for the parties passed the impugned judgment, which is being assailed through this appeal and the connected criminal revision.
7. The learned counsel for the appellants has orally submitted that there is contradiction between the ocular account and medical evidence and it was unwitnessed occurrence, that the eye- witnesses were not present at the time of occurrence; that in the site-plan, Chappar was not shown but a hotel was constructed over the open place; that there was no any motive against Ghulam Ali (appellant) and he had not caused any injury on the person of the deceased and the prosecution has failed to , attribute any role or injury to Ghulam Ali (appellant); that in the site-plan space of Chhaper where the hotel was constructed was hardly 8 x 8 feet and two cots were lying there; that all the witnesses were allegedly present in the said Chhaper Numa Hotel and fire could have hit to anybody but no other body was injured; that version of recovery was also changed regarding pistol, kalashnikov and revolver before the trial; that the presence of all the witnesses was alleged by the prosecution at the spot due to measurement of the land in question, but no witness in this regard was produced, even Noor Dad P.W. Was also not produced. It is further submitted that Ghulam Mustafa, the owner of the said hotel was also not produced; that the learned counsel for the appellants has referred some lines at page No,34 of the paper book that Ghulam Ali (appellant) after abduction of Mst. Tauheed Begum got married with someother woman somewhere else and have children from the said wedlock. He had knowledge of Eema investigation of Fateh Ali and. Amir Khan (acquitted accused) at the time of lodging of report with the police. Muhammad Sadiq (appellant) himself had informed him about the involvement of An& Khan and Fateh Ali (acquitted accused) in his apprehended murder, as abettor. The deceased had informed the complainant about 10/12 days prior to the occurrence about apprehension of his getting murder and the deceased also informed him that Amir Khan and Fateh Ali (acquitted accused) would get him murdered through someone; that the prosecution story is falsified that the blood was recovered from the open place which was not Chhaper, where the hotel was allegedly constructed. That on the basis of measurement of land, the occurrence had taken place between the deceased and Noor Dad in which the deceased lost his life and possibility of false implication of the appellants cannot be ruled out; that the eye-witnesses were not present at the spot.
8. The motive attributed to the appellants that Ghulam Ali after abduction of Mst. Tauheed Bibi had married and she had some issues from the said wedlock and there is no motive against the appellants for the commission of murder of the deceased; that the prosecution witnesses had failed to prove that they were present at 9-30 a.m. At Adda Hattar (place of occurrence). After knowing that no measurement would be done, the complainant party went to hotel Numa Chhaper for taking tea and half an hour time was consumed for taking tea which was a false story.
Actually, no eye witness was present at the spot. This fact was admitted by the complainant at page No,35 of the paper- book that no bullet mark was found near the Chhapar; that both the eye- witnesses were duly confronted with their previous statements before the learned trial Court as they had made dishonest improvement; that the case of the prosecution was that Ghulam Ali (appellant) after seeing the deceased at the spot returned to his house, but within a few minutes, he came there again along with his younger brother Muhammad Sadiq (appellant), who under influence of Ghulam Ali (appellant) had murdered the deceased and it is not case of capital punishment; that at the time of occurrence, the age of Muhammad Sadiq (appellant) was about 18/19 years, but the learned trial Court interpolated with the same; that in order to prove that Muhammad Sadiq (appellant) was minor, he made a request in his statement under section 342, Cr.P.C. To get his ossification test to determine his age; that it was a case of family honour. As per prosecution story, Mst. Tauheed Begum was abchicted then she was sold away and subsequently, she came back in the house of her father along with her three children and the deceased was one of the accused in that Hudood case, but he was not Masoom-e-Dom. In such-like cases the accused should be punished under section 302(c), Cr.P.C. And not under section 302(b), Cr.P.C.
9. The learned counsel for the complainant and learned Additional Prosecutor General submit that the case was promptly lodged and it was broad-daylight occurrence; that none of witnesses had got enmity or grudge against the appellants; that in the site-plan, Investigating Officer has shown Chhaper, and the draftsman/Patwari stated that there was an open place and Chhaper Numa Hotel was constructed over the said place; that Ghulam Ali, was nephew of Noor Dad as alleged in the F.I.R., -with whom the complainant party had dispute of measurement of land, who told the complainant that no person was available for the measurement of the disputed land on the day of occurrence and they should return; that there is no question of spreading of pellets and there is no mitigating circumstances in favour of the appellants and it was premeditated murder. According to the doctor (P.W.2) the wound was towards the left and slightly downwards and in the chest, a part of plastic wad was recovered impacted in the upper lobe of right lung.
10. Mst. Tauheed Begum was abducted in the year 1989 and she came back one month prior to the occurrence in the village along with her three children; that Muhammad Sadiq (appellant) had no other reason to fire upon the deceased except the said motive; that for the first time, Muhammad Sadiq (appellant) took defence plea of minority in his statement recorded under section 342, Cr.P.C. But this ground was taken after framing of charge against him, even then at the time of occurrence, the appellant was alleged to be aged about 18/19 years at the time of occurrence; that there was no question of family honour because Mst. Tauheed Begum was not related to the appellants. The prosecution witnesses are consistent on all the points and the deceased was removed from the hospital by the eye-witnesses; that both the eye-witnesses had no enmity or grudge against the appellants and there was no question of false implication of the appellants in the present case. Thus, the appeal may be dismissed and criminal revision may be accepted while awarding the capital punishment to Ghulam Ali (appellant).
11. We have heard the arguments advanced by the learned counsel for the parties and gone through the record with due care and caution.
12. The occurrence in the present case, according to the prosecution, had taken place at 10-15 a.m.
On 29-8-2000 while the matter was reported by Khadim Hussain to the police at Police Station Kalar Kahar at 2-30 p.m. On the same day. The distance between the place of occurrence and the police station was about 9 miles. The F.I.R. Was got lodged with some delay wherein Muhammad Sadiq (appellant) was attributed fire-arm injury on the person of the deceased while Ghulam All (appellant) was alleged to have fixed ineffective shot. However, the allegation against Fateh All and Amir Khan (acquitted accused) was for the abetment of the crime. As such, the possibility of exaggeration the prosecution story to involve a number of accused in the present case cannot be ruled out and the prosecution evidence has to be seen with great care and caution.
13. The prosecution cited Khadim Hussain (P.W.8) complainant/ nephew of the deceased and Abdul , Aziz as eye-witnesses; whereas Ghularn Mustafa, the owner of said Chhapar Numa Hotel was given up. No empty was recovered from the spot. The appellants were arrested on 3-9-2000 and weapons of offence were also recovered on their pointation from their residential house on 6- 9-2000 in police custody. There was no report regarding the weapons recovered from the appellants due to non-availability of crime-empties. Dr. Muhammad Iqbal (P.W.2), who had conducted the post-mortem examination of the deceased on the sank day, according to his opinion, time elapsed between the injury and death of the deceased was within five minutes and the time between death and post examination was opined as 8 hours. The motive set up by the prosecution in the present case was alleged to be that Mst. Tauheed Begum daughter of Amir Khan (acquitted accused) had been abducted, who was engaged with Ghulam Ali (Appellant). She came back to het' father's house along with three children about one month prior to the occurrence. According to the learned counsel for the appellants, Muhammad Sadiq (deceased) and Altaf were accused in that Hudood case and in order to take revenge, the appellants had murdered the deceased. Ghulam Ali (appellant) is elder brother of Muhammad Sadiq (appellant).
Both the eye-witnesses had fully explained their presence at the spot. It was a broad-daylight occurrence and there was no question of mis-identity of Muhammad Sadiq appellant, who was previously known to the P.Ws. And fire-arm injury attributed to him is supported by the medical evidence. We have seen no reason for his false implication in the present case by attributing the fatal shot to him. However, it does not seem to be premeditated occurrence, but it appears to have taken place for some immediate cause after the return of previous fiance of his elder brother.
14. It is also seen that in our villages such-like matters are used to occur due to family honour. It was not denied that Mst. Tauheed begum was engaged with Ghulam Ali (appellant), who later on, was abducted and sold away. Subsequently, she came back along with her three children one month prior to the occurrence, who held the deceased responsible for her abduction. Muhammad Sadiq (appellant) in order to take the revenge under influence of Ghulam Ali (appellant), who is real brother, had fired a single shot. However, there was no direct motive against Muhammad Sadiq (appellant), who was aged about 18/19 years as stated by him in his statement under section 342, Cr.P.C. But the learned trial Court had not considered this point while delivering the judgment. There was some oversight of this fact. Muhammad Sadiq (appellant) also requested the Court to get ossification test regarding his age, but the learned trial Court failed to do so. Thus, we are of the opinion that these were the mitigating circumstances in the present case in favour of Muhammad Sadiq appellant.
15. As a result of above discussion, we find that the case of Ghulam Ali (appellant) was at par with the acquitted accused as only ineffective role of firing was attributed to him, which is not supported from the other facts and circumstances of the case. Even no empty was recovered from the spot. The possibility of his false implication being real brother of the main accused cannot be ruled out as the motive was directly attributable to him and it is being regularly noticed that the relatives of the main accused are also involved in the case by attributing the role of general nature like Lalkara, Jappha and ineffective firing. As such Ghulam Ali appellant was entitled to the benefit of doubt. Consequently, this Criminal Appeal No,120 of 2001 is partly accepted, the impugned conviction and sentence awarded to Ghulam Ali (appellant) is set aside and he is acquitted of the charge by extending him the benefit of doubt, who shall be released from the jail forthwith, if not required in any other criminal case.
16. As far as the case of Muhammad Sadiq (appellant) is concerned, we have found that to his, extent the prosecution had succeeded in proving the case beyond any shadow of doubt. Therefore, the sentence awarded to him by the learned trial Court under section 302(b), P.P.C. Is maintained, but keeping in view the mitigating circumstances noted above, the death sentence awarded to him by the learned trial Court is converted to life imprisonment. The direction for payment of compensation is also maintained, but in default of payment thereof he shall further undergo S.I. For 6 months and not R.I. The benefit of section 382-B, Cr.P.C. Is also extended to him. This criminal appeal to his extent is partly dismissed.
17. The Murder Reference No,196 of 2001 is ,answered in the negative and the sentence of death awarded by the learned trial. Court against Muhammad Sadiq (appellant) is not confirmed.
18. So far as Criminal Revision No,54 of 2001 is concerned, the same was filed against. Ghulam Ali, respondent-accused, who has been acquitted by us and no question arises for enhancement of his sentence and this criminal revision being devoid of any merit is dismissed.