' IJAZ AHMAD CHAUDHRY, J.---Haq Nawaz appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment, dated 24-1-2002, rendered by the learned Additional Sessions Judge- I, Pakpattan Sharif and was sentenced to death for committing `Qatl-iAmd' of Maratab Ali deceased with direction to pay a sum of Rs.1,00,000 to the heirs of the above-said deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo six months' S.-I. Through the same judgment, co-accused namely Umar Hayat and Mutlab were acquitted of the charge by the learned trial Court while extending them the benefit of doubt. Haq Nawaz appellant has challenged his conviction and sentence before this Court through the instant Criminal Appeal No.64 of 2002 which has been heard by us along with Murder Reference No.133 of 2002 sent by the learned trial Court under section 374, Cr.P.C. Seeking confirmation of the, sentence of death passed by the learned trial Court against Haq Nawaz appellant. We propose to decide both these matters together through the present consolidated judgment.
2. Succinctly the facts of the prosecution's case unfolded in the F.I.R. (Exh.PA/1) got lodged by Sharafat Ali complainant (P.W.1) are that his brother Maratab Ali deceased had entered into an oral agreement to sell with Khizar Hayat, P.O. Regarding land measuring 2-1/2 acres and had also paid some earnest money to the same but said Khizar Hayat, P.O. Now, had intended to alienate the said land to someone else. In this connection Maratab Ali deceased had negotiated the matter with Khizar Hayat, P.O. As to why he had intended to sell the land in question to someone else who (Khizar Hayat) had called upon Maratab Ali deceased at his residence. According to the complainant, he along with Anwar son of Inayat (P.W.2) and Ghullam Mustafa son of Wali Muhammad also accompanied Maratab Ali deceased. On the day of occurrence at about 11-00 a.m. All they reached at the house of Khizar Hayat, P.O. And seat on the cots in front of the house.
Khizar Hayat, P.O., Umar Hayat, Mutlab (acquitted accused) and Haq Nawaz alias Haku appellant also came there. Both the parties started conversation over the matter which led to hot discussion flaring the parties when Khizar Hayat, P.O. Asked that he would answer after consultation with his companions. On this asking Khizar Hayat, P.O., Umar Hayat, Mutlab (acquitted accused) and Haq Nawaz alias Haku appellant went inside the house of Khizar Hayat, P.O. And after sometime all they came out. Khizar Hayat, P.O., Umar Hayat and Mutlab (acquitted accused) emerged in front of Maratab Ali deceased whereas Haq Hawaz alias Haku appellant who had camouflaged him under a Chaddar took out a pistol .30 bore and fired a shot aiming at Maratab Ali deceased who was present at that time on the cot in sitting position which hit him on his backside, towards right.
Maratab Ali deceased fell down on the cot. Haq Nawaz alias Haku appellant took to his heels. The noise of the fire shot attracted the village people at the spot. They chased the Haq Nawaz alias Haku appellant who was apprehended when was encircled by them. During his round up by the villagers, Haq Nawaz alias Haku appellant offered resistance and received some injuries on his body but at last he was captured along with his pistol. Meanwhile, Khizar Hayat. P.O.; Umar Hayat, and Mutlab (acquitted accused) succeeded in running away from the spot. Maratab Ali injured (deceased) and Haq Nawaz alias Kaku appellant were taken to DHQ Hospital, Pakpattan Sharif where Muratab Ali deceased succumbed to the injury on the way. According to the complainant Sharafat Ali, Haq Nawaz alias Haku appellant, Umar Hayat, Mutlab (acquitted accused) and Khizar Hayat P.O. After consultation with each other in furtherance of their common intention had caused the death of his brother Maratab Ali deceased. The complainant while reporting the above said matter also produced the appellant and pistol .30 bore recovered from him before the police.
3. The investigation of this was case conducted by Zahoor Ahmad, S.-I. (P.W.6) before whom the complainant made statement under section 154, Cr.P.C. And produced the appellant along with the pistol .30 bore recovered from him. During the investigation, the dead body of the deceased was inspected, injury statement and inquest reports were prepared, statements of the witnesses under section 161, Cr.P.C, were recorded, the place of occurrence was inspected, blood-stained earth was secured, rough site-plan of the place of occurrence was prepared, the dead body was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, formal site-plan of the place of occurrence was got prepared, pistol .30 bore (P.1) along with three live bullets (P3/1-3) allegedly recovered from Haq Nawaz alias Haku appellant was taken into possession and after completion of the investigation a challam was submitted in the Court.
4. At the commencement of the trial the learned trial Court after supplying copies of the documents required under section 265-C, Cr.P.C. To the appellant and his co-accused framed a charge under sections 302/34/120-B, P.P.C. On 3-7-2001 against him to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as eight witnesses in support of its case. The ocular account of the incident in question was furnished by Sharafat Ali complainant (P.W.1) and Muhammad Anwar (P.W.2) who also deposed about the motive while P.W.4 Muhammad Ashraf, Constable had escorted the dead body of the deceased to mortuary for autopsy. The medical evidence was provided by Dr. Muhammad Pervaiz Khalid, M.O. (P.W.8), who on 26-1-2001 at 9-00 p.m. Had conducted the post-mortem examination on the dead body of Muratab Ali deceased while Zahoor Ahmad, S.-I. (P.W.6) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In their statements recorded under section 342, Cr.P.C., the appellant and the co-accused had denied and controverted all the allegations of fact levelled against him by the prosecution and had professed their innocence. However, to a question that "Have you anything else to say?" Hal Nawaz alias Haku appellant replied in the following terms: -- " I am innocent. Umar Hayat co-accused is married to my real sister Mst. Naheed Akhtar, whereas Mutlab co-accused is my real father. Khizar Hayat co-accused is real brother of said Umar Hayat co-accused. Umar Hayat, Khizar Hayat and Mutlab co-accused were not present at the spot at the time of occurrence. Furthermore, Mutlab accused had been declared innocent and his plea of alibi, was found correct during investigation, which was also verified by higher police officers. Umar Hayat and Khizar Hayat co-accused are residents of village Pidu Basharat and are small landholders having their separate dwellings inter se, and separate farming. Both of them worked as labourers on the agricultural lands on part time basis. On 26-1-2001, I was present in the house of my brother-in-law Umar Hayat, when Umar Hayat accused had gone out for labour. I had come to meet my sister Mst. Naheed Akhtar on the preceding evening of the occurrence i.e. 26-1-2001.
Due to severe attack of fever I could not go back to my home on the morning of 26-1-2001 and was lying in the room, when at about 9 a.m. I heard the shrieks of my sister from the courtyard of the house crying for help. I immediately rushed there and saw that Muratab Ali had overpowered her by making her lay on the ground, and was trying to break the string of her trouser to commit Zina- bil-Jabr. Muratab Ali deceased had put off his Shalwar at that time. I tried to rescue my sister from the clutches of Muratab Ali deceased, who was probably in drunken condition, my eyes .Caught hold of a nearby fallen pistol .30 bore which I picked up and under grave and sudden provocation in the heat of passions, I lost self control and fired at Muratab, who died there and then. I had no enmity or grudge with him. Soon thereafter I rushed to Police Station Saddar Pakpattan and produced the said weapon before the police and also surrendered myself. It was subsequently transpired that the aforesaid pistol was purchased by Muratab Ali deceased in his name under Licence No.831 from Messrs Nazir and Brothers Arms Dealer Pakpattan on 25-5-1999. Thereafter application was submitted by me to Syed Imam Ali Shah, Judicial Magistrate Pakpattan on 24-2- 2001 under section 94 of Cr.P.C.. The Investigating Officer took me into custody along with the weapon and brought me to the Dera of Sharafat Ali complainant in village Pidu Basharat, where I was handed over to Dogar Party as stated above. The Investigating Officer dishonestly under the influence of complainant party who are big landlords of Illaqa changed the recovery of weapon and planted upon the pistol P 1, whereas the weapon of offence which belonged to Muratab Ali deceased was planted upon my co-accused Umar, Hayat. No P.W. Was present at the spot at the relevant time of occurrence, that is why the post-mortem examination of the deceased was intentionally conducted with delay at 9 a.m. On 26-1-2001, for preparing planned prosecution version to register the case."
' In reply to the aforesaid question, co-accused namely, Umar Hayat and Mutlab (acquitted accused) also professed their innocence. However, they did not opt to make statements on oath under section 340(2), Cr.P.C., but they produced Nazir Ahmad (D.W.1) in their defence and the learned trial Court in order to reach a just conclusion examined Dr. Muhammad Zafar Iqbal as C.W.1.
7. Upon conclusion of the trial the learned trial Court after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt, he was convicted and sentenced by it as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
8. The learned counsel for the appellant contends that Haq Nawaz appellant had taken specific plea which is nearer to truth and is borne out from the record, statements of the prosecution witnesses and also the statement of D.W.1; that both the eye-witnesses were not present at the spot; that motive could not be proved; that there was no previous enmity or grudge between the parties and there was no reason to commit the murder of the deceased; that the prosecution had miserably failed to prove the case against the appellant beyond any shadow of doubt, and that the appeal filed by the appellant may be accepted.
9. On the contrary, the learned Additional Prosecutor-General appearing on behalf of the State has opposed the criminal appeal on the ground that the eye-witnesses admittedly had no enmity or grudge to falsely implicate the appellant in the present case if he had not participated in the incident; that the recovery of weapon was effected from the appellant who had been caught red- handed at the spot and he also received the injuries during the scuffle; that it was proved on the record that the appellant was responsible for the commission of the offence and his conviction and sentence may be maintained; that the motive had been fully proved beyond any shadow of doubt; that the eyewitnesses were natural, whose presence at the spot stood established and the medical evidence also supported the ocular account.
10. We have heard the learned counsel for the parties at length and also gone through the record of this case with due care and caution.
11. The occurrence in the present case according to the prosecution had taken place at 11-00 a.m.
On 26-1-2001, in front of the house of Umar Hayat (acquitted accused) and on the basis of the statement (Exh.PA) of Sharafat Ali complainant (P.W.1) recorded by Zahoor Ahmad, S.-I. (P.W.7) the same day at 1-00 p.m. At District Hospital Pakpattan Sharif, F.I.R. (Exh.PA/1) was drafted at 1-20 p.m.
Although the prosecution claimed that the F.I.R. Had been registered without any inordinate delay and according to Zahoor Ahmad, S.-I. (P.W.6), he after recording the statement of the complainant had gone to the Hospital, prepared the injury statement as well as the inquest report and sent the dead-body of the deceased to mortuary for post-mortem examination, but it is strange that Dr. Muhammad Pervaiz Khalid, M.O., (P.W.8) had conducted the post-mortem examination on the dead body of the deceased at 9-00 p.m. With the delay of about 8 hours after registration of the F.I.R. In spite of that the dead-body was claimed to be present in the hospital when the Investigating Officer had completed the formalities necessary before conducting the post-mortem examination. During the cross-examination P.W.8, Dr. Muhammad Pervaiz Khalid, M.O., explained that post-mortem examination had been delayed due to the non-availability of the police papers and that he did not mention in the postmortem report that the police papers had been returned along with the dead body to the police. Dr. Muhammad Pervaiz Khalid, M.O. (P.W.8) also stated that there was no other cause of delay except the non-availability of the police papers. In such circumstances it can safely be inferred that the F.I.R. Was not got recorded with such promptitude as claimed by the prosecution because the intervening time might have been consumed in concocting the prosecution story after deliberation and preliminary investigation, otherwise the post-mortem could be conducted quite earlier. Hence, the F.I.R. Cannot be used as a corroborative piece of evidence to the ocular account and the prosecution evidence has to be seen with utmost care and caution.
12. To prove the ocular account the prosecution produced Sharafat Ali complainant (P.W.1) and Muhammad Anwar (P.W.2). Sharafat Ali complainant (P.W.1) was real brother of the deceased while P.W.2 Muhammad Anwar was from the same Dogar Biratheri of the deceased and the complainant. Both the eye-witnesses and the Investigating Officer stated that there was no previous enmity between the parties. So these two eye-witnesses cannot be termed as interested witnesses merely because of relationship with the deceased but simultaneously they were bound to establish their presence at the spot and making of truthful statements. It is admitted fact that the residence and the land of Khizar Hayat accused was at a distance of 5/6 acres from the house of Sharafat Ali complainant (P.W.1) and according to Muhammad Anwar (P.W.2) he resided in a house situated at a distance of 1-1/2 acres from the house of the accused. Simultaneously he stated that his house was at a distance of 5/6 acres towards East from the house of the deceased and house of Umar Hayat accused where the incident had taken place was towards North from the house of the deceased. So claim of Muhammad Anwar P.W. That his house was at a distance of 1- 1/2 acres stood falsified. P.W.2 also explained that he had been residing at Faisalabad for six months and some time at Karachi. So both the eye-witnesses were not natural witnesses but at the most could be chance witnesses and they were bound to explain the reason for their being present at the spot and seeing of the incident. The only reason advanced by both the eyewitnesses was that the deceased had purchased land measuring 2 acres from. Khizar Hayat accused brother of Umar Hayat and Umar Hayat wanted to sell the land to anybody else. So in order to resolve the dispute they summoned Khizar Hayat. Admittedly, no documentary evidence was produced about the alleged agreement to sell between the deceased and Khizar Hayat and no receipt about the payment of sale price had been produced on the record. Even no civil or criminal litigation was earlier pending between the parties in this connection. Even otherwise, the agreement to sell of the land between the deceased and Khizar Hayat was not got incorporated in the Rozenmacha of the Patwari. We have noticed that except for the oral statement of the witnesses there was no connecting material to prove that the eye-witnesses were physically present at the post and they had made dishonest improvements in their statements at the trial in this regard and were duly confronted with their previous statements before the police. Both the eye-witnesses while appearing in the Court also improved their statements that the appellant had gone on the back of the deceased and fired at him, who were duly confronted with their previous statements. These improvements appear to have been made in order to bring the case in line with the medical evidence. Both the eye-witnesses also failed to explain Injury No.2 on the person of the deceased.
Even no blood-stained earth had been taken into possession from the place of occurrence, but both the eye-witnesses made consistent statement that the cot on which the deceased was sitting was stained with blood and it was taken into possession by the Investigating Officer but the Investigating Officer Zahoor Ahmed, S.-I. (P.W.6) explained that there was no blood on the cot where the deceased was allegedly sitting at the time of incident. He also denied to have taken into possession the said cot during the investigation. Sharafat Ali complainant (P.W.1) during the cross- examination admitted that the deceased had earlier murdered his wife and he was sentenced to death which was subsequently converted into imprisonment for life by this Court but P.W.2 Muhammad Anwar who claimed to be residing in the same vicinity since his birth showed ignorance about this fact, which shows that P.W.2 was capable of making false statement. Even otherwise, the statement of Muhammad Anwar P.W.2 is full of contradictions and confrontations with his previous statement. Moreover, Sharafat Ali complainant (P.W.1) in his statement recorded under section 154, Cr.P.C. Claimed that the co-villagers came at the spot after hearing the sound of firing who chased Haq Nawaz alias Haku appellant and after making encircle apprehended him along with the weapon, but on making resistance injuries were also caused to the appellant.
However, at the trial the complainant claimed that he along with the P.Ws. Had chased the appellant, when the co-villagers also attracted and they apprehended the appellant, but he did not claim to have himself apprehended the appellant. On the other hand P.W.2 Muhammad Anwar during the cross-examination stated that it was Sharafat Ali complainant (P.W.1) who had apprehended the appellant Haq Nawaz alias Haku and then produced him before the police. Both the eye-witnesses even failed to disclose the name of any of co-villagers who had apprehended the appellant, caused injuries to the appellant at the time of apprehending him and as to who had snatched the pistol from the appellant. As such we are also satisfied with the prosecution version that the appellant had been caught red handed immediately after the occurrence and it also casts doubt about taking place of the occurrence in the manner narrated by the eye-witnesses.
We are satisfied that the statements of both the eyewitnesses are not confidence inspiring and they are not truthful witnesses, who failed to establish that they while present at the spot had witnessed the incident.
13. As regards the motive of the incident set up by the prosecution, we have noticed that except for the oral statements of the eye-witnesses no documentary evidence was produced in support of the claim of sale or purchase of the land by the deceased from Umar Hayat co-accused and even no connecting evidence had been produced before the police in this regard. It was also claimed by the complainant that no person from the locality had been joined in the said sale proceedings. So we are satisfied that the motive could not be proved through any sufficient evidence and even the motive was not attributed to the appellant.
14. The recovery of weapon from the appellant is legally inconsequential as no empty had been recovered from the spot and it cannot be said that the same weapon had been used during the occurrence. The prosecution also failed to produce the persons, who had allegedly apprehended the appellant immediately after the occurrence along with the said weapon and as discussed above even their names were not disclosed by the complainant.
15. In view of above discussion, we are satisfied that the prosecution had not been able to make out a case of Qatl-i-Amd against the appellant. On the other hand, the appellant had taken a specific plea, which has been reproduced in Para. No.6 ante and according to it the appellant had acted in the state of grave and sudden provocation to save the honour of his sister from the deceased, who was trying to commit zina with her while removing his Shalwar. The appellant also claimed to have himself appeared before the police, but as the complainant party was influential, they succeeded in getting registered the case by concocting false story. The appellant also claimed that the pistol, which he had picked from the spot and fired at the deceased was belonging to the deceased himself. The defence plea is also borne out from the record and circumstances of the case. The motive set up by the prosecution has been disbelived by us G and there was no previous enmity between the appellant and the deceased, who had no other reason to commit the murder of the deceased. It is also found that the complainant being owner of 80 acres of land was a big landlord in the village. On the other hand, the accused party was having only 5/6 acres of land in the village.
Zahoor Ahmed, S.-I. (P.W.6) admitted that due to the fear of the complainant nobody from the village was ready to make statement in favour of the accused in their defence. The complainant was a man of means and as we have already discussed that possibility of registration of the present case by concocting a false story cannot be ruled out. Even otherwise, in the cross- examination it has been explained by Zahoor Ahmad, S.-I./I.O. (P.W.6) that Umar Hayat co-accused was arrested in the present case on 11-2-2002 and during the investigation of the present case he after making disclosure that pistol .30 bore of the deceased Maratab Ali had fallen on the ground and while picking up the same he had run away from the spot was got recovered by him from his house. According to the Investigating Officer, F.I.R. No.78 was registered on the same day at the Police Station Saddar Pakpattan Sharif on his complaint, which is Exh.DE. It is admitted fact that said pistol was bearing Sr. No.27099252 and the words, `MAUSER MADE IN CHINA' were also mentioned on it in English. Zahoor Ahmad, S.I./I.O. (P.W.6) claimed that he did not investigate whether the said pistol was of the deceased and the witnesses denied on his query that the said pistol was belonged to the deceased. Although Sharafat Ali complainant (P.W.1) denied that the said pistol belonged to the deceased but specific stand had been taken by the accused party that the said pistol belonged to the deceased and he was armed with the said pistol at the time of occurrence, which was used by the appellant during the incident, but it was subsequently planted by the prosecution upon Umar Hayat co-accused. The eye-witnesses are found false in this regard as D.W.1 Nazir Ahmad, Proprietor of Messrs Nazir Brothers Arms and Ammunition Dealers, Grain Market, Govt. Faridies College Road, Pakpattan Sharif appeared in the Court and made statement that pistol bearing Sr. No. 27099252 along with 25 bullets was sold against Receipt No. 1669, dated 22-5- 1999 to Sardar Maratab Ali son of Sardar Hakim Ali, resident of House No.21, Gulbaz Colony Baghbanpura Lahore and permanent resident of Mauza Pidu Basharat of Pakpattan Sharif for Rs.13,000. So in the present case it has been established on the record beyond any shadow of doubt that the prosecution witnesses were capable of making false evidence and they I cannot be relied upon for maintaining conviction in a case of capital sentence. We have also noticed that according to the Investigating Officer out of the last-worn clothes of the deceased, the Shalwar was not stained with blood. This fact is also borne out from the record i.e. Recovery memo. (Exh.PC) and inquest report (Ex.PF) wherein the Shalwar was not written as stained with blood whereas only Qameez and Bunyan were specifically written stained with blood. It also supports the defence plea that at the time of the occurrence the deceased was not wearing Shalwar, otherwise, that should also be stained with blood along with the other last-worn clothes of the deceased. It is also relevant to point out here that Dr. Muhammad Zafar Iqbal (C.W.1) had medically examined Haq Nawaz alias Haku appellant when he was produced before him at the time of his posting as MO in DHQ Hospital by the police on the day of incident at 12-45 p.m. When he was medically examined and three blunt weapon injuries were found on his person. During the cross-examination, Dr. Muhammad Zafar Iqbal, (C.W.1) who was summoned on the application moved by Haq Nawaz alias Haku appellant specifically stated that the said injuries were on the legs having fracture of shaft of right tibia and the absence of the injuries on the finger, hands and arms depicted that the victim did not resist the attack and thus the prosecution version has been disbelived that the appellant had received such injuries at the time apprehending by him by the co-villagers due to resistance made by him. Even otherwise, dishonesty of the Investigating Officer is quite clear that he did not mention the name of Dr. Muhammad Zafar Iqbal, in the calendar of the witnesses in spite of that he was medically examined on the request of the police. It is also settled principle of law that if the prosecution version is disbelived and the conviction had to be based on the sole defence plea of the accused taken in his statement under section 342, Cr.P.C. The same has to be believed or rejected in toto and not in piecemeal to the prosecution version. The judgment reported as Sultan Khan v. Sher Khan and others (PLD 1991 SC 520), is referred.
16. The point before us is as to what offence would attract for causing death of Muratab Ali deceased. The circumstances discussed above in which the occurrence had taken place and the defence plea put forth by the appellant fully lead us to draw an irresistible conclusion that it was not a case of Qatl-i-Amd (culpable homicide amounting to murder) and the Hon'ble Supreme Court of Pakistan in case reported as PLD 1996 SC 274, has held that there should be no doubt that the cases covered by the exceptions to the old section 300, P.P.C. Read with old section 304 thereof, are cases which were intended to be dealt with under clause (c) of the new section 302 of the P. P .
C
17. In view of above discussion we have no hesitation in holding that conviction and sentence under section 302(b), P.P.C.Recorded by the learned trial Court against Haq Nawaz alias Haku appellant, who was alleged to have fired fatal shot to the deceased, cannot be maintained, which is set aside and in the alternative he is convicted under section 302(c), P.P.C. And sentenced to 10 years' R.I.
However, the direction for payment of compensation is not maintained as the deceased was not Masoom-ud-Dam, who had himself come to the spot with the nefarious design to commit zina with the sister of the appellant and the latter caused him injuries in the heat of passion under grave and sudden provocation. The benefit of section 382-B, Cr.P.C. Shall also be extended to the appellant.
18. With the above alteration in the conviction and sentence of the appellant, the impugned judgment stands modified and Criminal Appeal No.64 of 2002 filed by the appellant is disposed of accordingly.
19. Murder Reference No.133 of 2002 seeking confirmation of death sentence awarded to the appellant by the learned trial Court is replied in the negative.