' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment shall dispose of Criminal Appeal No,1363 of 2005 (Sakhawat Ali and others v. The State) and Criminal Revision No,675 of 2005 (Muhammad Niaz v.
Sakhawat All and others) as they arise out of the same judgment dated 27-6-2005 passed by the learned Sessions Judge, Toba Tek Singh, whereby after having tried the appellants, they were convicted and sentenced as under:---
(i) all the appellants were convicted under section 148, P.P.C. And sentenced to three years' R.I.
Each;
(ii) all the appellants were convicted under sections 449/149, P.P.C. And sentenced to ten years' R.I.
Each with a fine of Rs.20,000 each in default whereof to further undergo S.I. For three months each;
(iii) all the appellants were further convicted under sections 302(b)/149, P.P.C. And sentenced to imprisonment for life each with a further direction to pay a compensation of Rs.1,00,000 each to the legal heirs of the deceased in default whereof to further undergo imprisonment for six months each;
(iv) all the sentences were directed to run concurrently and benefit of section 382-B, Cr.P.C. Was extended to the appellants.
2. Brief facts of the case, as given by the complainant Muhammad Niaz in the complaint Exh.P.E. Are that on 16-11-2004 at about 4-30 p.m. His sons Raashid Mehmood, Imran Mehmood, Muhammad Asif and his brother Muhammad Aslam were sitting in the house of their relative Dilawar Hussain and he was going towards his Dera; that when he reached in front of the house of the said Dilawar Hussain, suddenly, accused (i) Sakhawat Ali armed with repeater, (ii) Muhammad Asif armed with a .30 bore pistol, (iii) Muhammad Asad armed with a Sota, (iv) Abid armed with a Sota and (v)
Muhammad Ehsan armed with a pistol entered in the house of the above mentioned Dilawar Hussain by scaling over the wall, they raised a Lalkara that Raashid Mehmood might not escape alive, upon which, according to the complainant, he had seen from the door, that his said son entered into a room and closed the door; that Asad and Abid accused had broken the door and Asif fired a shot with his .30 bore pistol at the left side of the abdomen of the said son of the complainant; that Ehsan fired a .30 bore shot which landed at the left side of chest of his said son; that Sikhawat fired two shots with his repeater .12 bore which landed on the left side of his chest and left arm wrist, who fell down and breathed his last at the spot; that all the accused/appellants decamped from the spot while making aerial -firing; that the occurrence, apart from the complainant, was witnessed by Asif, Imran, Muhammad Aslam and Dilawar Hussain P.Ws. While the motive, as per complainant, was that one and a half year ago Mst. Nazia (a sister of Sikhawat accused etc.) contracted marriage with the deceased Raashid Mehmood of her own free will, she was returned through a Punchayat and a divorce between them had also taken place with the intervention of the Punchayat with a further direction by the said Punchayat that the deceased shall not come to the village.
3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused produced twelve prosecution witnesses during the trial.
4. Learned counsel for the appellants, namely, Sardar Muhammad Latif Khan Khosa, Advocate in support of this appeal submits that the F.I.R. Was recorded at the spot and was recorded after due deliberations and consultations; that five persons including three real brothers and two cousins have been involved; that the motive qua abduction of sister of Sakhawat etc. (Mst. Nazia) and her return through Punchayat was admitted and it was decided that the deceased Raashid shall not come to the village; that it is a case of two versions and the version put forth by appellant Sakhawat seems to be more plausible and convincing; that when Sakhawat came to know that the deceased Raashid was present in the house of Dilawar it was natural on his part to there with pistol; that the deceased was a constant source of provocation to Sakhawat, who alone, under grave and sudden provocation, committed the murder of the deceased Raashid; that as per medical evidence there were .12 bore firearm injuries on the person of the deceased; that the role attributed to Asif, during investigation, negated the prosecution story set up in the F.I.R. Because he was found to be empty-handed and was only separating Sakhawat and deceased and there is no .30 bore injury on the person of the deceased; that as far as role attributed to Ehsan qua causing .30 bore injury on the person of the deceased is concerned, it was also negated from the post- mortem report; that no injury was attributed to Asif and Abid appellants, they were found innocent during the course of investigation by the police and were not even arrested by the police; that the prosecution has failed to prove its case against the appellants and that the appellants are entitled to acquittal by this Court.
5. On the other hand Mr. Naseeruddin Khan Nayyar, the learned Additional Prosecutor-General, while appearing on behalf of the State, asisted by complainant's learned counsel, submits that it is not a case of grave and sudden provocation; that the statement of Dilawar P.W. Is of great importance who was not even cross-examined seriously; that there was allegation of breaking the door against appellants Abid and Asif and pieces of broken door were taken into possession; that two types of crime-empties were taken into possession from the place of occurrence which prove that number of assailants were more than one and which factum has falsified the defence evidence; that the deceased received three injuries; that there is evidence of abscondence against all the appellants; that the prosecution has proved its case against the appellants beyond any shadow of doubt and that this appeal is, liable to be dismissed.
6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
7. The occurrence in this case had taken place on 16-11-2004 at about 4-00 p.m. In the house of Dilawar P.W., matter was reported to the police in the village/Chak at 8-00 p.m. While formal F.I.R.
Was got recorded at 8-25 p.m. By Muhammad Niaz complainant/P.W. Who is the real father of the deceased Raashid Mehmood.
8. In all there were five accused persons in this case and all of them have been convicted and sentenced variously by the learned trial Court as has been mentioned in the opening paragraph of this judgment. Sakhawat, Asif and Ehsan appellant are real brothers inter se who were arrested on 8-2-2005. One crime-empty of .12 bore gun (P.4) and one of .30 bore pistol (P.5) were recovered from the spot vide memo. Exh.P.G. Along with one live cartridge (P.6) through memo. Exh.P.H.
Sakhawat got recovered repeated (P.8) on 10-2-2005 while Ehsan got recovered .30 bore pistol on the same day. There are two reports of the Fire-arm Expert i.e. Exhs.P.U. And P.V. No recovery was effected from Abid who is real brother and Asad and Asif, who are cousins, of appellant Sakhawat respectively.
9. The prosecution, in order to prove its case, produced Muhammad Niaz (P.W.4), who is real father of deceased Raashid Mehmood and Dilawar (P.W.5) in whose house the occurrence was alleged to have taken place whereas P.W.6 Asif is real brother of the deceased while two P.Ws. Namely, Imran (real brother) and Aslam (first cousin) of the deceased, were given up as unnecessary.
10. The post-mortem examination on the dead body of deceased Raashid Mehmood was conducted by Dr.' Muhammad Akram (P.W.2) who found three fire-arm injures on his person.
According to him the time between death and injury was about 15/30 minutes while between death and post-mortem examination was mentioned as 18/20 hours. P.W.12 Abdul Majeed Inspector was the Investigating Officer of the case.
11. Motive behind the occurrence, as per complainant, was that one and a half year ago Mst. Nazia (a sister of Sikhawat accused etc.) contracted marriage with the deceased Raashid Mehmood but after ten days she was returned to the appellants party through a Punchayat with the condition that the deceased would leave the village, would never return to the village and that a divorce had also taken place through the intervention of the Punchayat.
12. As far as presence of Dilawar P.W. At the spot is concerned I have no hesitation to state that he is the most natural witness of the occurrence as it had taken place in his house while Niaz complainant and his sons are not residents of the place of occurrence and they are residents of the far off place. But the settled law is that even a conviction on a capital charge can be awarded/maintained on the basis of a statement of the single witness if his evidence has come from an unimpeachable source having its intrinsic value.
13. As far as recovery of crime-empties is concerned, two types of crime-empties were recovered from the spot i.e. One of .12 bore gun and one of .30 bore gun although P.W.2 Dr. Muhammad Akram had stated that six metallic foreign body/objects were recovered from the back of upper most part of left chest near the neck of the deceased.
14. In the afore-referred circumstances, this Court is of the considered view that presence of Sakhawat and Ehsan appellants is established on record. Recoveries were also effected from both of them B coupled with the fact that Sakhawat has also admitted his presence at the spot. I do not consider it to be case of grave and sudden provocation. If Sakhawat appellant got an information about the presence of deceased Raashid Mehmood in the house of Dilawar, he should not have taken the law into in his own hands because he had the recourse to approach the members of the Punchayat who had amicably settled the matter of abduction/Nikah of Nazia with the deceased.
Even he did not find Nazia in the said house, so, conviction and sentence of Sakhawat and Ehsan is maintained in toto and this appeal, to their extent, is hereby dismissed. Now I would like to take up the case of appellant Asif. He is the real brother of both the above mentioned convicts/appellants, nothing incriminating was recovered from him, complainant has also admitted during the course of cross-examination that he had appeared before the Investigating Officer and stated that he was there only to separate the deceased Raashid Mehmood and Sakhawat appellant coupled with the act that the Investigating officer had also declared him innocent being present empty-handed at the spot. It a general tendency in our country that near ones and dear ones of the main accused persons are also implicated in the criminal cases so tha nobody should be left behind to pursue the case, so, I have doubts in my mind about his actual participation in the occurrence, therefore, while accepting his version and that of Sakhawat co-accused and that of the Investigating Officer, Asif appellant is extended the benefit of doubt, his conviction and sentence is set aside, this appeal to his extent is allowed, he is acquitted from the case and shall be released forthwith if not required to be detained in any other case.
15. Now this Court is lefi with the case of the remaining appellants, namely, Asad and Abid. They were allegedly armed with. Sotas but there is no blunt weapon injury on the person of the deceased because there are only three fire-arm injuries on his person. They are the first cousins of Sakhawat and Ehsan appellants. They were found innocent during the course of investigation by the police coupled with the fact that they were not even arrested by the police during the whole investigation, no recovery was effected from them, so, their false implication, on account of blood relations of Sakhawat and Ehsan (the main accused of the case whose appeal stands dismissed as mentioned above), cannot be ruled out. In my view their case is similar to that of Asif, so, the conviction and sentence awarded to both these appellants, namely, Asad and Abid appellants are hereby set aside, this appeal to their extent is allowed, they are acquitted from the case and shall be released forthwith if not required to be detained in any other case.
16. Criminal Revision No,675 of 2005 (Muhammad Niaz v. Sakhawat Ali etc.) was filed for enhancement of sentence of the appellant which is dismissed for the reasons that it has come on record that the deceased Raashid Mehmood had abducted a sister of Sakhawat, Asif and Ehsan appellants, she was returned through a Punchayat and a divorce had also taken place. In our society, especially in the villages, this aspect of the life is not seen with good eyes, so case of enhancement of the conviction and sentence awarded to Sakhawat and Ehsan is not made out.