' IJAZ AHMAD CHAUDHRY, J.- This judgment will dispose of Murder Reference No.31-T of 2003 sent by the; learned trial Court for the confirmation of death sentence awarded to Syed' Imtiaz Hussain Shah appellant and Criminal Appeal No.l49-J of 2004 filed by the appellant Syed Imtiaz Hussain Shah against his conviction arising out of the same judgment dated 18-8-2003 passed by the learned Judge Anti-Terrorism Court No.l, Faisalabad whereby he was convicted (i) under section 302(b), P.P.C. And sentenced to death with a direction for payment of Rs. 1,00,000 as Compensation to the heirs of the deceased Abdul Waheed or in default of payment thereof to suffer R.I. For six months, and (ii) under section 7 of the Anti Terrorism Act, 1997 and sentenced to death with a fine of Rs. 1,00,000 or in default of payment thereof to further undergo R.I. For six months. In case of realization of fine, half of the same was payable to the heirs of the deceased Abdul Waheed.
However, through the same judgment the learned trial Court acquitted Rafaqat .Ali co-accused of the charges under section 302/34, P.P.C. And section 7 of the Anti-Terrorism Act, 1997 by extending him the benefit of doubt,
2. -Criminal Appeal No.1982 of 2005 has been filed by Abdul Hameed complainant against the acquittal of said Rafaqat Ali co-accused which is also being disposed of through this judgment.
3. The occurrence in the present case had taken place on 14-11-2002 at 10-30 a:m. In the area of Street No.2 Islam Nagar 13 kilometers away from Police Station Civil Lines, Faisalabad and the matter was reported by Abdul Hameed complainant (P.W.9) real brother of the deceased Abdul Waheed through the statement (Exh.PB) recorded by Muhammad Yousaf, S.-I. (P.W.11) the same day at 11-30 a.m. On the basis of which formal F.I.R. No.461 of 2002 (Exh.PB/1) was drafted by Khurshid Ahmad, A.S.-I. (P.W.4) at 11-40 a.m. At Police Station Civil Lines, Faisalabad.
4. The brief facts narrated in the F.I.R. (Exh.PB/1) are that the complainant (P.W.9) along with his brother Abdul Waheed had gone to street No..2 of Islam Nagar on their Motorcycle bearing registration No.5657-FDX. To purchase the meat. After their arrival in front of a meat shop, the complainant went to purchase the meat while leaving behind his brother Abdul Waheed with the Motorcycle. In the meanwhile, Imtiaz Hussain Shah (appellant) armed with `Chhuri' and Rafaqat Ali (acquitted accused) empty-handed came while raising Lalkaras. Then Imtiaz Hussain Shah appellant shouted that Abdul Waheed should not go alive. Thereupon Rafaqat All co-accused caught hold of Abdul Waheed while Imtiaz Hussain Shah appellant inflicted a dagger blow hitting on the left side of his chest. The occurrence was also witnessed by Tariq Mahmood (P.W.10) and Nisar Ahmad (given up P.W.). Abdul Waheed was taken to Allied Hospital, Faisalabad for medical treatment where he succumbed to the injuries.
5. The motive behind the occurrence was alleged to be religious terrorism.
' Muhammad Yousaf, S.-I. (P.W.11) after sending the complaint (Exh.PB) to the police station for recording of the F.I.R. Proceeded to Allied Hospital Faisalabad. The dead body of Abdul Waheed was present in the hospital. He prepared the injury statement (Exh.PE) as well as inquest report (Exh.PF) of the dead body and deputed Muhammad Akram Constable (P.W.3) to take the dead body to Mortuary. Then he proceeded to the place of occurrence, took into possession bloodstained earth vide memo. (Exh.PJ) and also prepared rough site-plan (Exh.PK). On 15-11-2002 last worn clothes of the deceased were produced by Muhammad Akram Constable (P.W.3). He also recorded the statement of the witnesses. On 17-11-2002 at about 5-00 p.m. He received secret information and arrested Rafaqat Ali co-accused and Imtiaz Hussain Shah appellant after disclosure led to the recovery of `Chhuri' (P.3) which was taken into possession vide memo. (Exh.PH) and after the completion of the investigation, Muhammad Yousaf (P.W.11) submitted the report under section 173, Cr.P.C. In the Court.
7. At the commencement of the trial the copies of the documents required under section 265-C, Cr.P.C. Were supplied to the accused, charge was framed to which they pleaded not guilty and claimed for a trial. The prosecution in order to prove the guilt of the case produced as many as 11 witnesses. The ocular account was furnished by Abdul Hameed (P.W.9) and Tariq Mahmood (P.W.10) while the medical evidence was led by Dr. Mukhtar Ahmad (P.W.6) who had medically examined Abdul Waheed (deceased) in injured condition and Dr. Sohail Rashid (P.W.7) who had conducted the postmortem examination whereas the investigation was conducted by Muhammad Yousaf (P.W.11). However, the recoveries were effected in the presence of Tariq Mahmood (P. W.10) while the remaining witnesses are of formal nature, who need not to discuss here.
8. After the close of the prosecution case the statement of the appellant was recorded under section 342, Cr.P.C. Who denied the allegations and on a question that "why this case against you and why the P.Ws. Have deposed against you"? He Made the following reply which is reproduced as under:- "The deceased Abdul Waheed, a Qadiani by his faith, was running/managing his school viz. "Mani Public School." The Muslims as well as Qadiani children were getting education in the said school where the Muslim children were being misguided. I published a pumphlet with a caption of Islamic Pumphlet 30/40 Muslim students withdrew from the above-said school as a result of the above- referred pumphlet. On the day of occurrence the deceased confronted me near Rafaqat Gujjar's shop and altercation took place between us. The deceased snatched the above-mentioned Islamic pumphlet bearing the names of the Holy Prophet (p.b.u.h.) and Quranic verses and put the same under his feet, spited over it and smashed. At this, we grappled with each other. The deceased was a mighty person who over powered and suffocated me. At that point, under the impact of provocation advanced by the deceased and to save myself from being killed at the hands of the deceased, I picked up the `Chhuri' from the shop of Rafaqat Gujjar, butcher' and moved it inadvertently which landed at the chest of the deceased. The P.Ws. Are close relatives of the deceased and Qadiani by faith who had been inimical to me because of my published pumphlet. They were not present at the time of occurrence and did not see how the things were happened at the relevant time. The P.Ws. Are influential and well-off people. They influenced the I.O.
And tainted the present prosecution story with mala fide intention. I appeared before the police on the same day and narrated to them the whole story."
' However, the appellant did not opt to make statement under section 342(2), Cr.P.C. But the appellant produced Talat Ali Khan, Inspector, Investigation Circle, Civil Lines, Faisalabad as D.W.1.
9. The learned trial Court after hearing both the parties has passed the impugned which is being assailed through all these matters before this Court.
10.Learned counsel for the appellant contends that Abdul Hameed (P.W.9) and Tariq Mahmood (P.W.10) are closely related inter se and with the deceased who were residents of about 1-1/2 kilometers away from the place of occurrence; that both the eye-witnesses were not present at the spot as Abdul Waheed deceased their close relative was taken to hospital in injured condition by Muhammad Anwar, A.S.-I. And Dr. Mukhtar Ahmad (P.W.6) also certified that on 14-11-2002 Muhammad Anwar, A.S.-I. Had brought Abdul Waheed, who was medically examined the same day; that Muhammad Anwar, A.S.-I. Had not been produced by the prosecution deliberately in order to avoid the bringing of truth on the record; that the eye-witnesses had not sufficiently explained their presence at the spot and it has been .Established that they were not present at the spot; that the motive also could not be proved as the details of the motive were not brought on the record and only saying that it was a religious terrorism was not sufficient to prove the same; that the appellant has taken specific defence plea that he had acted in the exercise of right of self- defence and the deceased was aggressor which is nearer to the truth and should be believed in toto; that there were contradictions in the statements of the eyewitnesses and they were , duly confronted with their previous statements recorded by the police, which fully proved that both the eye-witnesses had not spoken the truth and the possibility cannot be ruled out that they had not witnessed the occurrence, it is lastly contended that Muhammad Yousaf, S.-I. (P.W.Ll) also conceded that during investigation he did not join Muhammad Anwar, A.S.-I. Who had brought the injured in the hospital though he was an important witness. In such circumstances, it is contended that the appellant may be acquitted.
11. Learned Special Prosecutor has opposed the appeal on the ground that the occurrence in the present case had taken place on 14-11-2002 at 10-30 a.m. While the matter was reported to the police promptly at 11-40 a.m. Which eliminated the possibility of concoction and fabrication of the false story by the prosecution after deliberation and the names of the witnesses as well as the accused and the manner in which the occurrence had taken place was duly given in the said F.I.R.; that the appellant was got specifically named that he while armed with 'Chhuri' had caused blow in the chest of Abdul Waheed on the left side which is supported by the medical evidence and corroborated by the recovery of 'Chhuri' from the appellant, which according to the report of the Serologist was found stained with human blood.
12. Learned counsel for the complainant opposes the . Appeal on the ground that the prosecution had stood on its legs and proved the case beyond any shadow of doubt. It is also contended that the age of the appellant Imtiaz Hussain Shah was 60 years at the time of the incident while the co- accused Rafaqat Ali was aged about 40 years while the age of Abdul Waheed deceased was about 30 years and the (acquitted accused) Rafaqat Ali had facilitated the appellant for causing the injuries otherwise it was not possible for the appellant to cause the injury on the person of the deceased; that both the eyewitnesses remained consistent on material points and there presence at the spot, was proved beyond any shadow of doubt and the acquittal order being based on surmises and conjectures may be set aside and Rafaqat Ali (acquitted accused) may also be summoned and convicted and sentenced in accordance with law.
13. We have heard the arguments of the learned counsel for the parties and also perused the record. The occurrence allegedly had taken place at 10-30 a.m. In street No.2 while Abdul Waheed deceased, according to Dr. Mukhtar Ahmad, C.M.O. Allied Hospital, Faisalabad (P.W.6) was brought by Muhammad Anwar, A.S.-I. For medical examination, who was unconscious and in a serious condition.' P.W.6 also stated that carbon copy of the medico-legal certificate (Exh.PC) was handed over to Muhammad Anwar, A.S.-I. After obtaining his signatures on Exh.PC and said Muhammad Anwar, A.S.-I. Was in police uniform. The claim of the complainant Abdul Hameed (P.W; 9) that he had taken the deceased to the hospital for medical examination on Rickshaw stood belied. It has'been admitted by Muhammad Yousaf, S.-I. (P.W.Ll) that it came to his knowledge during investigation that Abdul Waheed after the incident was taken to the hospital by Muhammad Anwar, A.S.-I., who was known to him but did not join him in the investigation, P.W.Ll also did not deem it proper to know from Muhammad Anwar, A.S.-I. As to under what circumstances he had got Abdul Waheed deceased medically examined. P.W.Ll also conceded that under the Police Rules if any A.S.-I. Got anybody medically examined in injured condition it is his duty to record the FJ.R. Of the occurrence. P.W.Ll also conceded that Muhammad Anwar, A.S.-I. Was the best witness of the occurrence. On the other hand the complainant had not stated even a single' word about the taking of the deceased in an injured condition to the hospital by Muhammad Anwar, A.S.-I. But at the trial he also made improvement in his examinaton-in-chief that when he was carrying Abdul Waheed to Allied Hospital Faisalabad the police/15 also came following them to the Hospital and Muhammad Anwar, A.S.-I. Got admitted AbdulWaheed in the Allied Hospital who after a shortwhile expired.
14. Admittedly the F.I.R. Was got lodged after the medical examination of the deceased by P.W.6 and after his expiry but the factum of taking of the deceased by Muhammad Anwar, A.S.-I. Had not been got mentioned in the F.I.R. By the complainant. He has been duly confronted with his previous statement on this point; Admittedly P.W.9 Abdul Hameed was real brother of the deceased and residing at a distance of 1 1/2 kilometer from the place of occurrence in Mustafabad while Tariq Mahmood P.W. Was also residing a Mohallah Mustafabad in a house situated in B the second street from the house of the complainant. Tariq Mehmood P.W. Was their Phuphizad. So both the eye witnesses were not normally present at the place of occurrence and at the most they were chance witnesses. It was their duty to explain their presence at the spot at the time of occurrence sufficiently. To explain their presence P.W.9 stated that he along with the deceased had come to street No.2 to purchase the meat from the shop near the place of occurrence. He had admitted - during cross- examination that there were shops of meat in Mohallah Mustafabad but according to him they were at the far distance. P.W.10 Tariq Mahmood also admitted that he was resident of Mustafabad and he is running an office regarding his business of lubricating oil situated in Katchery Bazar, Faisalabad and at a distance of 1 1/2 kilometer from the place of occurrence, who used to open his office at 10-00/11-00 a.m. P.W. 10 stated that he along with Nisar Ahmad P.W. Was going to Mohallah Islam Nagar and when reached in street No.2 they saw Abdul Waheed deceased standing near his bike while the complainant was purchasing chicken meat from the shop of Rafaqat Ali. Both these witnesses have not explained their presence with any reasonable explanation at the spot at the time of occurrence. On the other hand it can safely be inferred from- the C factum that the injured was shifted to the hospital by an A.S.-I. That said P.Ws.9 and 10 were not present at the spot to have witnessed the occurrence.
15. We are also not satisfied that the F.I.R. Was got lodged with such promptitude at 11-40 a.m. As admittedly the deceased was firstly medically examined at 11-05 a.m. Who died just a while thereafter and the dead body remained in the hospital but it is strange that the post-mortem examination was conducted the next day i.e. 15-11-2002 at 8-20 a.m. Which clearly shows that till then the F.I.R. Might have not been recorded and inquest report prepared otherwise there was no reason for delayed post-mortem examination.
16. It is also found that P.W.11 Muhammad Yousaf had not conducted the investigation in an impartial' manner as he had not joined Muhammad Anwar, A.S.-I. In the investigation, who had taken the deceased to the hospital in injured condition in spite of the fact that he was the most important witness. If the complainant was present at the spot or accompanied him, he (A.S.-I.) could have recorded the statement of the complainant under section 154, Cr.P.C. Which according to P,W.11 he was authorised under the Police Rules. It suggests that the occurrence had not taken place in the manner narrated by the P.Ws., who were not present at the spot. The possibility cannot be ruled out that had Muhammad Anwar, A.S.-I. Been produced by the prosecution he would not have supported the prosecution story regarding the presence of both the eye-witnesses and the manner in which the occurrence had taken place and he received the information.
17. Admittedly the occurrence had taken place in the Bazar situated within the thickly populated area and number of persons could have witnessed the G occurrence' but no independent witness was produced to support the prosecution version. On the other hand it was admitted by P.W.9 complainant' that the shopkeepers of the surroundings stated before the I.O. That Rafaqat Ali accused was innocent. It was also admitted by the witness that more than 100 persons were present at the time of arrival of the Investigating Officer at the spot. None of the persons/shop- keepers of the surrounding shops at the place of occurrence had been cited as eye-witnesses by the prosecution and even their names were not shown in the F.I.R. On the other hand both the eyewitnesses (P,Ws. 9 and 10) who have relations with the deceased were introduced as eye- witnesses of occurrence in spite of the fact that they had failed to give reasonable explanation for their presence at the spot. Hence we hold that the ocular account furnished by the prosecution is not trust-worthy and discarded.
18. The remaining evidence produced by the prosecution is not sufficient to connect the appellant with the commission of the crime. Even the prosecution has failed to give any sufficient evidence to prove the motive set up by the prosecution. Mere saying by the witnesses that the occurrence was the outcome of sectarian/religious terrorism was not a sufficient proof. The recovery of `Chhuri' from the appellant cannot be considered as a corroboration to the ocular account which has already been dis-believed by us.
19. On the other hand the appellant during his examination under section 342, Cr.P.C. Had taken the specific plea, reproduced in Para No.8 ante explaining about the circumstances under which he was compelled to inflict single `Chhuri' blow in the chest of the deceased Abdul Waheed, who died afterwards in the hospital. In Sultan Khan v. Sher Khan and others (PLD 1991 SC 520) it has been held that the statement of an accused recorded under section 342, Cr.P.C. May be taken into consideration, but the Court cannot select out of the statement the passage which goes 'against the accused. Such statement must be accepted or rejected as a whole. It has been further held that if the conviction of the accused is to be based solely on his statement in Court. This statement should be taken into consideration in its entirety. After perusal of the plea taken by the appellant it appears that he had committed this occurrence at the spur of moment in the state of grave and sudden provocation. It has been held by the Honourable Supreme Court in "PLD 1996 SC 274" that the cases falling under Section 304, P.P.C. Under the old' law will fall under section 302(c), P.P.C.
20. In view of above discussion, the conviction and sentence of the appellant under section 302(b), P.P.C. Is set aside and in the alternative he is convicted under section 302(c), P.P.C. Taking into consideration his plea taken in the statement under section 342; Cr.P.C. And he is sentenced to seven years' R.I. As the deceased had initiated the occurrence according to the defence plea and done to death as a result of provocation extended by him, we do not find that the heirs of the deceased can be held entitled to any compensation under section 544-A, Cr.P.C. Which is refused.
The benefit of section 382-B, Cr.P.C. Will be extended to the appellant. As regards the charge under section 7 of the Anti-Terrorism Act, 1997 the prosecution has miserably failed to prove that the occurrence was the result of any religious/sectarian terrorism through any independent piece of evidence. As such the appellant is acquitted of 'the said charge under section 7 of Anti-Terrorism Act, 1997. Criminal Appeal No.147-J of 2004 filed by the appellant is disposed of in the above terms.
21. As a result of the above discussion I the death sentence is not confirmed. Murder Reference No.31-T of 2003 is replied in the negative.
22. As far as Criminal Appeal No.1982 of 2005 filed by the complainant against the acquittal of Rafaqat. All co-accused is concerned, suffice it to say that we have already disbelieved the ocular account and Syed Imtiaz Hussain Shah has been convicted and sentenced on his own plea, whereby he alone had committed this occurrence. In such circumstances we do not find any reason to interfere with the judgment regarding acquittal of Rafaqat. Ali co-accused and Criminal Appeal No. 1982 of 2005 having no merit is dismissed.