' MUHAMMAD FARRUKH MAHMUD, J.---The appellants Gulzar Hussain, Muhammad Siddique and Nisar Ahmad, who are real brothers, were tried by the learned Sessions Judge, Bhakkar, in case F.I.R.
No,77 registered at Police Station Dullay Wala on 11-11-2001 for offences under section 302/34 P.P.C.
Vide judgment dated 16-2-2002, the learned trial Court convicted each of them for offences under section 302(b)134 P.P.C. Gulzar Hussain and Muhammad Siddique were sentenced to death, while Nisar Hussain was sentenced to imprisonment for life. Benefit of section 382-B Cr.P.C. Was given to him. Each of the convicts was also directed to pay Rs,50,000 as compensation to the legal heirs of the deceased, in default whereof to undergo S.-I. For six months each.
2. The convicts/appellants have challenged their above noted convictions and sentences by filing the instant appeal, while Muhammad Suleman brought Criminal Revision No,235 of 2002 for enhancement of sentence of .Nisar Ahmad. The learned trial Court has also made a reference bearing Murder Reference No,109 of 2002 seeking confirmation or otherwise of death sentence imposed upon by Gulzar Hussain and Muhammad Siddique, appellants. All these matters are being decided through this consolidated judgment.
3. The brief facts of the prosecution case per F.I.R. Exh.PJ recorded at the instance of Muhammad Suleman, complainant/PW-8, are that on 11-11-2001 at about 3-00 p.m. His brother Muhammad Luqman (deceased) was going to bazar to purchase some articles and when he reached in front of the shop of Maulvi Bakhtawar, all of a sudden Gulzar Hussain, Muhammad Siddique, both armed with Chhuris, and Nisar Hussain armed with a brick emerged from their shop. Nisar Hussain, while raising Lalkara that a lesson would be taught to Muhammad Luqman for abusing, caused 'a brick blow hitting Muhammad Luqman on his forehead and right occipital region. Then Gulzar Hussain gave a Chhuri blow to Luqman which hit him on his chest. Muhammad Luqman fell down.
Thereafter Muhammad Siddique caused a Chhuri blow hitting Luqman on the left side of his back.
The hue and cry attracted Muhammad Iqbal/P.W.9 and Manzoor Hussain, who were present nearby and had witnessed the occurrence. On catching sight of the P.Ws, Gulzar Hussain etc., the accused, decamped from the spot.
' The motive behind the occurrence was that 2/3 days prior to the occurrence, abuses were exchanged between Muhammad Luqman and Gulzar Hussain. Muhammad Luqman gave beating to Gulzar Hussain and on account of that grudge, all the accused in furtherance of their common intention seriously injured Muhammad Luqman with Chhuris. Muhammad Luqman in injured condition was taken to Civil Hospital, Dullaywala, where he succumbed to the injuries.
4. On 11-11-2001, Habib Ullah Khan, S.-I./P.W.10, recorded F.I.R. Exh.PJ at the instance of Muhammad Suleman/ complainant. Then the S.-I./Investigating Officer (Investigating Officer) went to Civil Hospital, Dullaywala; prepared the injury statement Exh.PG and inquest report Exh.PH of Muhammad Luqman deceased and sent the dead body of the deceased to DHQ Hospital, Bhakkar, for post-mortem examination. Thereafter, the Investigating Officer proceeded to the spot; collected blood-stained earth from the place of murder of the deceased and sealed the same into a parcel vide memo. Exh.PK. He prepared the rough site plan Exh.PL of the place of occurrence. On 14-11-2001, the Investigating Officer got prepared the scaled site plan Exh.P.F. From Ghulam Siddique, Draftsman/P.W.5. On 17-11-2001, the appellants were arrested. On 23-11-2001, Gulzar Hussain appellant, while in custody, led to the recovery of blood-stained Chhuri P-1 from his shop, which was taken into possession vide memo. Exh.PA, attested by Ghulam Shabbir, A.S.-I./P.W.2, and Muhammad Afzal (not produced during trial). On the same date, Muhammad Siddique, while in custody, led to the recovery of brick P-2 which was taken into possession vide memo. Exh. PB, attested by the same witnesses. Nisar Hussain, while in custody, led to the recovery of pipe, P-3 which was taken into possession through memo. Exh.PC, attested by the said witnesses. After completion of investigation, all the accused were sent up to face trial. As the accused denied the charge an claimed to be tried, the trial Commenced.
5. To prove its case at the trial, prosecution produced eleven witnesses. Ocular account was furnished by Muhammad Suleman/complainant, brother of the deceased/P.W.8, and Muhammad Iqbal/P.W.9. In addition to that, they also stated about the motive. Ghulam Shabbir, A.S.-I./P.W.2, stated about the recoveries of the weapons of offence effected at the instance of the appellants.
Dr Naeem Raza/P.W.7, who conducted post-mortem examination on the dead body of the deceased on 11-11-2001 at 10-30 p.m., while observing seven injuries (injuries Nos.1 to 7) on the person of the deceased, opined that injuries on the head and face causing loss of conscious level and stab wound on front of chest and on the left side of chest resulted in sudden injury to heart and lungs collectively which were sufficient to cause death in a normal person of the age of the deceased. He further opined that time between injuries and death was sudden, while between death and post-mortem examination was about 7-8 hours. Habib Ullah Khan, S.-I./P.W.10, stated about the recording of F.I.R. At the instance of the complainant and the investigation thereafter. The rest of the witnesses, being formal in nature, need not be discussed. After placing on record the reports of Chemical Examiner Exh.PM and Serologist Exh.PN, the prosecution closed its case.
6. In their statements recorded under section 342 Cr.P.C., the appellants pleaded their innocence and false implication. However, Gulzar Hussain took specific plea of self-defence and honour in the following words:--- ' "The case against me is false. P.Ws. Are closely related to the deceased and are inimical and chance witnesses, so, they are interested in my conviction. Actually, occurrence did not take place as stated by prosecution. I have friendly relationship with Luqman deceased for the last 9/10 years.
Luqman deceased used to ask me if I had developed relation with any person he would not spare me and even he did not like my talk with any other person. Some days prior to the occurrence I have developed relationship with one Nazar Dirkhan upon which Luqman deceased was not happy.
' After that he used to tease me and used to call me as "Chuttoo". For this reason it resulted disliking between me and Luqman deceased. About 20 minutes before the occurrence I alone was sleeping outside of my shop. In the meanwhile Luqman deceased who was an addict person came there used rough and immoral language calling me sodomist. Upon this an altercation took place between myself and Luqman deceased who thereatened me for dire consequences. At the time of occurrence Luqman deceased having Chhuri again emerged at my shop and asked me to go with him for unnatural lust but I refused to do so. Luqman deceased tried to assault me with his Chhuri to murder me I picked up the brick lying outside from my shop and hit on the person of Luqman deceased who fell down on the ground and Chhuri also fell down from his hand. I picked up that Chhuri. Luqman deceased tried to snatch the Chhuri from me. We grappled with each other. To save my life and honour I gave Chhuri blows to him. Neither the complainant nor the eye-witnesses and my co-accused Nisar Hussain and Muhammad Siddique were present at the spot at the time of occurrence.
' Mst Naeem Mai is my first cousin, who is married with Haji Abdul Sattar. Mukhtar Ahmad is real brother of above said Haji Abdul Sattar, who contested the previous Local Bodies election as Naib Nazim in the penel of Wali Ullah Rawn against Khizar Hayat Jhammat and Sh. Abdullah's panel, being closely related to said Mukhtar Ahmad I and my other family members deadly supported Mukhtar Ahmad above said. In, that election the panel of Khizar Hayat Jhammat was winner. Malik Sikandar Hayat Jhammat and Malik Alamdar Jhammat who are closely related to Khizar Hayat Jhammat have grudge against me and my other co-accused. Due to above said enmity a false case has been registered against me and my co-accused.
' Moreover, one Muhammad Yamin is my uncle. In 1982 a case of sodomy was registered against above said Yamin and Mukhtar brother of Muhammad Iqbal P.W. Was eye-witness in that case. In 1994 a theft ease was registered against said Yamin. Muhammad Iqbal P.W. Of this case was also eye-witness in that case. So Muhammad Iqbal P.W.Is inimical to me and is interested in my conviction. Luqman was brought in injured condition by somebody else to RHC Dullay Wala. The complainant and the eye-witnesses were summoned by the police much after the occurrence from their houses and F.I.R. Was registered against me and my co-accused under the influence of above Jhammat family and Muhammad Iqbal P.W. In connivance with the police and the complainant party."
' Muhammad Siddique and Nisar Ahmad, appellants, stated that they were not present at the spot; and that they, being brothers of Gulzar Hussain/co-accused, were falsely implicated in the case.
None of the appellants appeared as witness under section 340 (2) Cr.P.C. Nor produced any witness in defence. However, the appellant Gulzar Hussain after placing on record documents Exh.DF to DJ closed their side.
7. Learned counsel for the appellants submits that the eye-witnesses were related to the deceased and were chance witnesses; that both the P.Ws.Made dishonest improvements during trial and concealed important facts; - that P.W. Muhammad Iqbal was inimical towards the accused; that the medical evidence did not support the ocular version given in the F.I.R., so the witnesses improved their story; that the occurrence took place in front of the shop of Gulzar Ahmad; that the recoveries were planted and were shown to have been effected from the same shop, while all the three accused had different shops as admitted by the P.Ws.; that the defence plea of Gulzar Ahmad is supported by the circumstances of. The case and is closer to the truth.
8. Conversely, the learned counsel for the complainant submits that it was a daylight occurrence; that the matter was reported to the police within half an hour at the police station, which ruled out the possibility of fabrication; that the delay in sending the dead body was fully explained, as the same was sent after preliminary investigation, preparation of inquest report, injury statement and recording of statements of the witnesses available at the spot; that the P.Ws. Had .No previous serious enmity with the accused, so as to involve them in a false case; that the medical evidence fully supports the ocular account; that the defence version was not supported by any independent evidence and it ran counter to the medical evidence; that a boy of twenty years could not cause so many injuries to the deceased who was thirty five years of age; that Nisar Ahmad was shown undue leniency by the learned trial Court and he also deserved normal penalty of death; and that with pre-concert all the accused took the life of an innocent person.
9. Learned Additional Prosecutor General for the State adds that Gulzar Hussain admitted that he had caused chest injury, so he deserved no leniency.
10. We have heard the learned counsel for the parties at a great length and have also gone through the record.
11. Out of the three appellants, who are real brothers, Ghulam Hussain took the plea of self-defence of person, honour and provocation, which has been reproduced in para 6 ante. The defence plea and the prosecution version are to be put together in a juxtaposition to ascertain which of the two was true or nearer to the truth.
12. The prosecution case rests on the statements of Muhammad. Sulcman/P.W.8, brother of the deceased, and Muhammad Iqbal/P.W.9, who was also related to the deceased. According to F.I.R., at about 3-00 p.m. On the fateful day, Muhammad. Luqman deceased left his house for Dullay Wala Bazar in order to purchase some articles. When he was near the shop of Maulvi Bakhtawar Awan, Gulzar Hussain, Muhammad Siddique, accused, who were armed with Chhuris, and Nisar Ahmad, who was armed with a brick, emerged from their shop. After raising Lalkara, Nisar Ahmad gave brick blow on the forehead and occipital region of Muhammad Luqman. Gulzar Hussain gave Chhuri blow on the chest of Luqman, who fell down. Thereafter Muhammad Siddique gave Chhuri blow on the back of the deceased. The alarm raised by the complainant attracted Muhammad lqbal/P.W.9 and Manzoor Hussain to the spot. The motive behind the occurrence as per F.I.R. Was that 2/3 days prior to the occurrence, abuses were exchanged "between Gulzar Hussain appellant and Muhammad Luqman deceased and allegedly Muhammad Luqman gave beating to Gulzar Hussain. The analysis of the evidence makes it manifest that the occurrence took place in front of the shop of Gulzar Hussain which was at a distance of 13/14 feet from the Chowk. It is also in evidence that the place of occurrence was surrounded by the shops which were open at the time of occurrence. However, not a single independent witness of the locality was produced. Both the P.Ws. Made dishonest improvements during their statements recorded by the learned trial Court by stating that Siddique caused two injuries on the back of the dec-eased. A Both the witneses were duly confronted with their earlier statements. Obviously, the improvement was made by the witnesses in order to bring their statements in line with the medical evidence according to which the deceased had received two injuries on his back and not one. Admittedly, the houses of the witnesses were at a distance of 200 Karms from the place of occurrence. There was no special occasion for Muhammad Iqbal to be present at the scene of occurrence. The complainant improved his statement by stating before the learned trial Court that he was present near the shop of Haji Abdul Sattar. It was not mentioned in the F.I.R. That he was present near the shop of Haji Abdul Sattar, rather according to F.I.R., in his presence Luqman left his house in order to purchase certain articles from Dullay Wala Bazar. The complainant did not state that the other P. Ws. Were also present near the shop of Haji Abdul Sattar. During cross-examination, Muhammad Iqbal stated that it was incorrect that' a theft case was registered against Yamin, uncle of Gulzar, and in that case he was an eye-witness. He further stated that he did not know that Yamin was prosecuted in the year 1982 for committing sodomy and his real brother Mukhtar was P.W. In the case. Perusal of Exh.DG, F.I.R. Registered on 5-9-1994 at the instance of Taj Muhammad for offence under section 379 P.P.C. Reveals that indeed, a theft case was registered against Muhammad Yamin and others and Muhammad Iqbal was cited as a, witness in the' case.' The defence' brought on record Exh.DH which shows that case F.I.R. No,2 was registered on 31-12-1982 for offences under sections 377/511 P.P.C. Read with section' 12 of the Offence of Zina (.Enforcement of Hudood)
Ordinance, 1979,. Wherein Mukhtar .Hussain, brother of Muhammad Iqbal, was mentioned as a witness, while Muhammad Yamin, uncle of Gulzar Hussain, was implicated as accused. It was suggested to the complainant that in the year 1998, a case was registered against the deceased for offences under Articles of the Prohibition (Enforcement of Hadd) Order, 1979 but he denied it and stated that it was incorrect that the allegation against the deceased was that he was in possession of some bottles containing liquor. On the contrary, Exh.D.F. Which is F.I.R. No,31 and was registered for offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, reveals that the deceased was booked in the case, as he was carrying locally made liquor.
13. All the accused were running 'dependent shops as against the impression given. In the 'F. I. R.
And there was no occasion for them to be present in the shop of Gulzar Hussain at the fateful time, as they could never know that the deceased would come out of his house at that particular time, especially when the earlier altercation had taken place 2/3 days prior to the occurrence.
14. The medical evidence reveals that the deceased was aged about 35/36 years and had received eight injuries on his person. Injuries No,1, 6 and 7 were stab wounds; one was on the chest, while sixth and seventh were on the back of the chest. It was for that reason that both the eyewitnesses improved their statement before the learned trial Court by attributing two injuries to Muhammad Siddique as against their earlier statements.
15. During investigation blood-stained Chhuri was shown to have been recovered from the shop of Gulzar Hussain at his instance on 23-11-2001. On the same date, allegedly Muhammad Siddique led to the recovery, of a brick from the shop. Nisar Ahmad also led to the recovery of iron pipe from the shop on 23-11-2001. The recovery evidence does not strengthen the prosecution case, rather the same weakens it; firstly, though the shop of Gulzar Hussain was situated in the Bazar containing number of shops yet not a single person from the locality was associated with the recovery proceedings and the memos. were attested by Ghulam Shabbir/P.W.2 and Muhammad Afzal, Constables. Secondly, during trial Habib Ullah/S.-I., who had conducted the investigation of the case, admitted that all the recoveries from the accused were effected from one shop. He further admitted it to be correct that after investigation, he concluded that the version of the complainant party that Siddique had inflicted Chhuri blow to Luqman deceased was not correct. Similarly, the attribution of brick to Nisar Ahmad was not correct and it was for that reason that he did not recover Chhuri from Siddique and brick from Nisar Ahmad.
16. Now we would like to take up the defence plea and the motive set down in the F.I.R. It was not stated in the F.I.R. As to what led to exchange of abuses between the deceased and Gulzar Hussain.
The complainant tried to suppress friendship between the deceased and Gulzar Hussain appellant by stating that the accused were known to him for 10/11 years and the friendship was in between Siddique accused and the deceased. On the contrary, photographs Exh.DA, DB and DC, which were shown to the complainant, and are available on the record of the case, reveal that the deceased and appellant Gulzar were close to each other. In view of the documentary evidence in the shape of photographs, the complainant had to admit it to be correct that the deceased was having friendly relations with Gulzar also. The deceased was aged about 36 years, while Gulzar Hussain was hardly 20 years of age at the time of occurrence. Prima facie, with this much of age difference the friendship between the two appears to be closer to the accusation of the friendship given by the appellant in his defence plea. Keeping in view the background of relationship and friendship between the deceased and Gulzar Hussain as given in the defence plea, it appears to be closer to truth that the new friendship between Gulzar and Nazar Tarkhan caused annoyance to the deceased who called him with bad names in jealousy. As noted above, there is no explanation as to what led to abuses between the deceased and Gulzar Hussain 2/3 days prior to the occurrence.
It was observed by the Honourable Supreme Court in the case of Khalid Javed and another v. The State (2003 SCM R 1419) That "All the factors favouring. Belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz. Is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused. D and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly."
17. The upshot of the whole discussion is that in our view the P.Ws. Were not present at the time of occurrence and they tried to implicate all the three brothers in the case. The defence plea taken by Gulzar Hussain appellant appears to be closer to the truth. However, he exceeded his right of private defence, as Luqman after receipt of brick blow fell down on the ground and lost control over Chhuri which was picked up by appellant Gulzar Hussain. Thereafter Gulzar Hussain gave three Chhuri blows to the deceased. Hence, we allow this appeal to the extent of Nisar Ahmad and Muhammad Siddique appellants. The judgment passed by the learned trial Court to their extent is set aside. They are acquitted of all the charges. Muhammad Siddique appellant would be released forthwith if not required in any other case. Nisar Ahmad appellant is on bail. His bail bonds are cancelled and the sureties are discharged. As far as Gulzar Hussain appellant is concerned, we alter his com viction from offence under section 302(b) P.P.C. To offence under section 302(c) P.P.C.
His sentence is reduced to twenty years' R.I. Benefit of section 382-B Cr.P.C. Is given to him. In view of the dictum laid down by the Apex Court in the case of Mairaj Begum v. Ejaz Anwar (PLD 1982 SC 294), the order passed by the learned trial Court under section 544-A Cr.P.C. Is not maintained.
With the aforesaid modification in the conviction and reduction in the sentence of Gulzar Hussain appellant, this appeal to the extent of Gulzar Hussain stands disposed of. The death sentence inflicted upon Gulzar Hussain and Muhammad Siddique, appellants, is not confirmed. The murder Reference is answered in the negative.
18. For the same reasons, Criminal Revision No, 235 of 2002 seeking enhancement of sentence of Nisar Ahmad is dismissed.