JUDGMENT MUHAMMAD FARRUKH MAHMUD, J.- The appellants Matloob Hussain, Maqbool Ahmad, along with Muhammad Sarwar, Muhammad Munawar, Muhammad Siddique and Mst. Sharifan Bibi, were tried by Mr. Javed Iqbal Warraich, learned Additional Sessions Judge, Vehari, in case FIR No. 196 registered at P.S. Machhiwal on 24.10.2001 for offences under Sections 302/148/149 PPC. Vide judgment dated 25.10.2002 the learned Trial Court, while acquitting the aforesaid co-accused, convicted and sentenced the appellants as follows:-
(i) Matloob for offence under Section 302 (b) PPC to death plus payment of rupees one lac as compensation to the legal heirs of the deceased, in default whereof to undergoes for six months;
(ii) , Maqbool for offence under Section 302 (b) PPC to imprisonment for life plus payment of rupees one lac as compensation to the legal heirs of the deceased, in default whereof to suffer six months'S. I. Benefit of Section 382-B, Cr.P.C. Was given to Maqbool.
2. Aggrieved by their above convictions and sentences, both the convicts/appellants have filed the instant appeal, while Muhammad Idress/complainant has brought Criminal Revision No. 419 of 2002 for enhancement of sentence of Maqbool Ahmad-convict, whereas the learned' Trial Court has made a reference bearing Murder Reference No. 800 of 2002 seeking confirmation or otherwise of death sentence inflicted upon Matloob Hussain alias Beggan. Muhammad Idress/complainant has also challenged the acquittal of Muhammad Sarwar, Muhammad Munawar, Muhammad Siddique and Mst. Sharifan Bibi through Criminal Appeal No. 923 of 2002. All these matters are being decided through this consolidated judgment.
3. The brief facts of the case per complaint recorded by Muhammad Akram, SI/PW-7, at the instance of /Muhammad Idrees, complainant/PW-5, which based the registration of formal FIR Ex.
PA/I, are that the complainant, who was originally resident of Chak No. 577/EB, shifted ,to Multan on account of enmity and gave his land on lease. On 24.10.2001 at about 2.30, he along with his brother Meraj Din alias Majha-deceased was going from Chak No. 577/EB to their house at Multan, after meeting their paternal uncle Sardar Muhammad. The complainant was ahead, while Meraj Din was behind him. When they reached about 1 V2 Bighas away from the house of Muhammad Siddique- accused on thorough fare, they were surprised by Muhammad Siddique empty handed, Maqbool armed with 12-bore pistol, Matloob alias Beggan armed with 12-bore gun, Sarwar armed with 12- bore pistol and Munawar armed with 12-bore gun. Muhammad Siddique raised Lalkara that Meraj Din alias Majha be caught and taught a lesson for the commission of the murder of Maqsood Ahmad. Munawar caused a fire from his gun hitting Meraj on his left thigh: The second fire shot by Sarwar hit Meraj on his right thigh. The fife shot by Maqbool hit on the wrist of left hand of Meraj.
Thereafter Meraj fell down on the ground. Maqbool shot another fire which hit Meraj on his abdomen. The fire caused by Matloob hit Meraj Din on his chest. The fire shot by Munawar hit Majha on his right thigh near knee. Meanwhile, Mst. Sharifan Bibi accused came there and encouraged her co-accused. The alarm raised by the complainant and the fire reports attracted Sardar Muhammad (not produced) and Lai Muhammad/PW-6, who also witnessed the occurrence. All the accused threatened that in case any one came < forward would meet the same fate. On catching sight of the people attracting towards the spot, the accused fled away along with their respective weapons. Meraj Din alias Majha succumbed to the injuries at the spot.
The motive behind the occurrence was previous enmity between the parties over the earlier murder.
4. On 24.10.2001, on receipt of information about the incident, Muhammad Akram, SI/PW-7, along with other police officials, reached the spot; recorded the statement/complaint Ex. PA of the complainant and sent the same to the Police Station for registration of formal FIR. On spot inspection, the Investigating Officer (IO) collected blood-stained earth from the spot and sealed the same into a parcel vide memo. Ex.PC. He also collected 12 empty cartridges P-1/1-12, sealed the same into a parcel and took into possession vide memo. Ex.PD. He prepared injury statement Ex.PH and inquest report Ex.PJ of the deceased and sent the dead-body for post-mortem examination.
He prepared rough site plan Ex.PK of the place of occurrence. On 13-11-2001, the investigation was taken over by Shafqat Mahmood Azeem, inspector/PW-9. On the same date, he arrested the appellants. On 18.11.2001, Matloob Hussain, while in custody, led to the recovery of 12-bore gun P-6, which was taken into possession through memo. Ex.PG. On the same date, Maqbool while in custody, led to the recovery of 12-bore pistol P-5, which was taken into possession through memo.
Ex.PF. The Investigating Officer got prepared the scaled site plan Ex.PB of the place of occurrence from the Patwari Halqa. After completion of investigation, the appellants, along with their acquitted co accused, were sent up to face trial. As the accused denied the charge and claimed to be tried, the trial commenced.
5. In order to substantiate its version at the trial, prosecution produced nine witnesses. Ocular account was furnished by Muhammad ldrees/PW-5 and LaL Muhammad/PW-7. In addition to that, both of them stated about the motive. Muhammad Idrees PW-5 also stated about the recoveries effected from the spot. Lai Muhammad stated about, the recoveries effected at the instance of the appellants. On 25-10-2001, Dr. Naseer Ullah Khan/PW-8 conducted post-mortem examination oh the dead-body of the deceased. The doctor, while observing eight fire arm injuries (injuries No. 1 to 5-B) on the person of the deceased, opined that the death occurred due to irreversible shock on account of excessive haemorrhage caused by injuries to vital organs, i.e. Heart,. Liver etc. By injury No. 1 in collaboration with injury No. 2. The duration between the injuries and death was immediate, while between death and post-mortem examination, the same was about thirty hours.
Muhammad Akram, SI/PW-7, stated about the drafting of complaint Ex.PA, its dispatch to the Police Station and the investigation thereafter. Shafqat Mahmood Azeem, inspector/PW-9; also stated about the investigation conducted by him. The rest of the witnesses, being formal in nature, need not be discussed. After placing on record the reports of Chemical Examiner Ex.PN, Serologist Ex.PO and Forensic Science Laboratory Ex.PP, the prosecution closed its evidence.
6. In their statements recorded under Section 342, Cr.P.C., the accused pleaded their innocence and false implication due to previous enmity. Matloob Hussain alias Baggan, accused/appellant, took a specific plea of self defence in* the following words:--, "It is correct: In fact Meraj Din deceased was a dangerous and desperate criminal person who was involved in many cases of hurt, attempt to murder and murder etc. He was proclaimed offender in case FIR No. 110/94 under Section 302, PPC P.S. Machhiwal. In that case the. Brother of deceased namely Idrees complainant of the present case and his another real brother Naveed Ahmad was convicted by the Anti- Terrorism Court, Multan. My father Muhammad Siddiq co-accused was eye witness of the murder of Maqsood Ahmad, my brother. Deceased Meraj Din and the complainant Idrees were not residents of this village. Deceased Meraj Din attacked upon our house so that we could not pursue the murder case pending appeal in the Honorables High Court, Multan Bench, Multan. Meraj Din deceased was also declared P.O. In cases FIR No, 176/93 and 151/93, P.S. Machhiwal. On the day of occurrence, Meraj Din deceased came to our house, started firing with Pistol 12-bore. I and my brother Maqbool and other female family members were present at home. I fearing endanger of my own life and to save the lives of other family members and of my brother Maqbool came out of the house and using the right Of self defence I fired at Meraj Din near my house whereas Meraj Din also fired at me. If I could not fire at Meraj Din, he could easily murder me and my brother Maqbool Ahmad. Meraj Din was armed with pistol 12-bore at the time of occurrence which was used by him. That very pistol used by the deceased was planted to be recovered from Maqbool. Pistol 12-bore was found with dead- body of deceased which taken into possession by the Investigating Officer Muhammad Akram SI. Our house is situated outside the village towards East. The deceased has no right to attack upon our house."
None of the accused appeared as witnesses under Section 340 (2), Cr.P.C. Nor did they produce any witness in defence. However, after placing on record the documents Ex.DD to Ex.DH/2,. They closed their side.
7. Learned counsel for the appellants submits their both the eye witnesses were not only related to the deceased and inimical towards the appellants but were also chance-witnesses; that the delay in lodging the FIR clearly denotes that the PWs were not present at the spot that Idrees complainant could not justify his presence at the time of occurrence; that Lai Muhammad-PW frankly conceded before the DSP and the Inspector that he reached the spot later that the defence plea Was more plausible and was borne out by the circumstances of the case; that the ocular account was totally belied by the medical evidence.
8. On the other hand, learned counsel for the complainant submits that as far as the seat of injuries, is concerned, medical evidence fully supports the ocular version; that it was a day light occurrence and the parties were known to each other, so there was no question of Substitution; that Idrees had accompanied the. Deceased, while Lai was resident of the village; hence, both the PWs plausibly explained their presence at the time of occurrence; that as regards the defence plea, what to say of the injury not even a scratch was received by the accused that no blood stained earth was taken from the house of the appellants; that there were no marks of bullets present on the walls of the house of the appellants; that after taking the defence plea, the onus had shifted to the appellant but he miserably failed to discharge the same, that as far as. Matloob Hussain appellant is concerned, he acted in a brutal mariner and did not deserve any leniency. The learned counsel further submitted that Maqbool Ahmad was also responsible for causing the death of Meraj, as he had effectively fired at him; therefore, there was no justification for not inflicting normal penalty of death upon him. Reliance has been placed upon the cases ot-Khurram Malik & others vs. The State & others (PLD 2006 SC 354), Muhammad Shafiq vs.' The State (2002 SCM R 1389), Farid vs. The State (2002 PSC (Crl) 686, Toti Khan vs. The State (PLJ 2002 SC 887), and Amrood- Khan vs. State (PLJ 2002 SC 901). Learned Additional Prosecutor General for the State added that appellant Matloob miserably failed to prove his defence plea; and that the injuries attributed to both the appellants proved fatal, resulting into the death of the deceased.
9. We have heard the learned counsel for the parties at a great length and have also gone through the record.
10. Out of the two appellants, Matloob Hussain has taken specific plea of self defence of person. It is a case of two versions. Both are to be put together in order to find out which of the two is true or nearer to the truth.
11. Prosecution case mainly , rests on the eye witness account furnished by Muhammad Idrees brother of the deceased and Lai Muhammad uncle of the deceased. Undeniably, enmity existed between the complainant party and the accused over the murder of Maqsood Ahmad brother of the appellants. On that regard a case FIR No. 110/94 was registered, wherein complainant Idrees, his brothers Naveed, deceased Meraj Din and others were implicated as accused. After trial, Idrees, Naveed and Akbar were convicted, while Mer&j absconded. The deceased and the complainant lived in Multan, while the occurrence took place in Chak No. 577/EB District Vehari. As per FIR, on the fateful day, the complainant and the deceased were going back after meeting with their uncle Sardar Muhammad who lived in Chak No. 577/EB. The complainant and the deceased passed through the street near the house of the accused and were on a thorough fare when the assault was launched. It was also mentioned in the FIR that the agricultural land belonging to the complainant had been leased out. In his statement before the learned Trial Court, the complainant reiterated that he and deceased used to live in Multan City during the days of occurrence.
However, he admitted it to be correct that neither he nor Meraj Din owned any landed property and the agricultural and mentioned in the FIR belonged to their father. According to Lai Muhammad, Meraj Din and Idrees had visited the Chak for the first time on the date of occurrence. He added that their father used to come to the village. In his statement before the learned Trial-Court, the complainant claimed that he and his brother had gone to the house of their uncle Sardar Muhammad to collect the lease amount. They alighted from the bus at Adda Chak No. 33/WB and covered the distance of 2/3 miles to reach' the house of their uncle, on foot. It may be added here that the complainant and the deceased had started from Multan arid reached Vehari in a wagon and from there again boarded a bus Which took them to Adda Chak No. 33/WB, which was at a distance of fifteen miles from Vehari. After taking so much pain, normally, the deceased and the complainant would have taken some rest in the house of their real uncle. On the contrary, according to the complainant, he stayed for only five minutes in the house of his uncle Sardar Muhammad and started back towards his house after taking a glass of water. No detail about any Lease money or receipt of lease money was ever given by the complainant, rather according to him, lessee of the land was one Farzand Ali at the time of occurrence and at the time of recording of his statement lessee was Muhammad Ramzan, who had been murdered. As already noted above, it was conceded that neither the complainant nor the deceased owned any land in the Chak and had never previously visited the Chak. As far as Lai Muhammad PW is concerned, he simply stated that the complainant and the deceased stayed in the house of his brother for fifteen minutes and left after taking a glass of water/Sharbat. He also admitted it to be correct that he and Sardar Muhammad lived in two different houses, Both the witnesses admitted that a metalled road passed from Chak No. 577/EB; on one side it leads to Pakhi Morr/Lahore High Ways and on the other side it leads to Luddan/Ratta Tibba. Pakhi Morr was towards north of the village, while Ratta Tibba/Luddan Road was towards west of the village. It was also admitted that the land of Siddique was towards the east from the village Abadi at a distance of two squares and that their residential house was also towards the eastern side of the village. According to the complainant, he and the deceased had gone to the' village from Ratta Tibba Road and they generally used this road for coming and going to and from Adda Chak Jolo. 33/WB, which was nearer to the village. The house of Sardar Muhammad uncle of the complainant was towards the west of the village Abadi. In these circumstances, there was no occasion for the complainant and the deceased .To pass from near the houses of the accused which were situated on eastern side. The occurrence took place at 2.30 p.m., while the statement of the complainant was recorded at the spot by Muhammad Akram, SI/PW-7, at 4.30 p.m. There is no explanation as to why the matter was not reported to the police for two long hours. The complainant admitted it to be correct that neither he nor Sardar Muhammad nor Lai Muhammad informed the police about the occurrence. According to him, Muhammad Saeed Lambardar had sent Nazir Ahmad Chowkidar to inform and bring the police. On the same Point, Lai Muhammad PW stated that police arrived at the spot at 3.00/3.30 p.m. Many inhabitants of the village had gathered after the commission of the murder at the time of arrival of the police and the police conducted interrogation first and then took into possession incriminating evidence.
Thereafter, S. Wrote the statement of Idrees complainant. He went on to say that he had informed the Lambardar about the murder of Meraj and. He sent Chowkidar to the police station to inform the police about the occurrence. He added that the Lambardar arrived at the spot after ten minutes of the occurrence. He admitted that he made a statement before Khushi Muhammad, DSP, during investigation of this case on 28.11.2001 and had stated /before the DSP that he had informed the parents of Meraj Din deceased on telephone about his murder. He denied having stated before the police on 28.11.2001 that he was present in the house of Machhi when he saw Meraj deceased all alone. However, he .Was confronted with his earlier statement, wherein it has been so recorded. The statement is available on the record as Ex. DA at page 98 of the Paper Book. According to. The complainant, he accompanied the dead-body to Vehari Mortuary on tractor trolley and left the place of occurrence at about 4.15/4.30 p.m. According to Lai Muhammad, at 4.00 p.m. He and the PWs left the spot along with the dead<-body. Perusal of the complaint Ex.PA reveals that it was drafted at 4.30 p.m. And the formal FIR Ex.PA/1 was registered at 5.15 p.m. Obviously, the dead-body could not be sent to the mortuary prior to drafting of complaint and preliminary investigation of the case. It is pertinent to note that undeniably, Meraj Din was an absconder and he would not normally visit the Chak where his enemies rived during day time at the risk of his being arrested.
The post-mortem was conducted on the dead-body of the deceased on the next date, i.e. 25.10.2001 at 4.45 p.m. Perusal of the post-mortem report Ex.PL reveals that the information was furnished by the police at 4.30 p.m. On 25.10.2001. The witnesses, being conscious of the fact that the post-mortem was conducted on the next date in late hours, tried to improve their statements by stating that the dead-body was removed from the place of occurrence by 4.00/4.30 p,m. The lie is exposed by the fact that the papers were received by the doctor at 4.30 p.m. On 25.10.2001 and thereafter at 4.45 p.m. Post-mortem examinations was conducted. The withholding of the relevant papers till the next date shows that the FIR was recorded after due deliberations and after the availability of the complainant.
12. According to the complainant, the accused persons fired at the deceased from a distance of 5/7 Karams. He re-affirmed by stating that all the accused kept on firing at the deceased at one place, while according to Lal-PW, the fire was caused from a distance of 4/5 Karams i. e. 20 to 35 feet. On the contrary, according to medical- evidence, the fires were caused from a very close range approximately from a distance of six feet as blackening and tattooing was present around the wounds and wad was recovered from injury No. 1. The medical evidence supports the prosecution, case only to the extent that the deceased lost his life due to fire arm injuries but no further. As noted above, there is no explanation as to the delay of thirty hours between death and post-mortem examination.
13. As far as motive is concerned, both the parties were admittedly inimically opposed to each other, so it cut both ways and could not be used as corroboration.
14. Now coming to the evidence of recovery of, pistol and its tallying with the empties recovered from the spot. For the following reasons, the recovery evidence cannot be used in favour of the prosecution version:-
(a) that the appellants were arrested on 13.11.2001. They led to the alleged recoveries on 18.11.2001.
According to report of Forensic Science Laboratory Ex.PP, the empties were received at the laboratory on 21.11.2001, much after the arrest of the appellants and after the recovery of the weapons. Why the empties were kept at the police station till the recovery of the weapons has not been explained. This casts a serious doubts on the veracity of the report;
(b) that it is also note-worthy that the weapons though recovered were not sent along with the empties, rather those were sent much later in order to show that the empties and the weapons were sent separately;
(c) that instead of producing any independent witness in order to prove the recoveries, Lai Muhammad, who was an eye witness and uncle of the deceased, was produced in violation pf the provisions of Section 103, Cr.P.C.
15. In the above-noted circumstances, we have concluded that the PWs were not present at the time of occurrence. And the prosecution case is replete with doubts The case law cited by the learned counsel for the complainant is not applicable, to the facts of the instant case.
16. Now we are left with the defence plea taken by Matloob Hussain-appellant. It was observed by the Honorables Supreme Court in the case of Khalid Javed & another vs. The State (2003 SCM R 1419) as under;- "... If, the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under Section 324, Cr.P.C. Is exculpatory, then he must be acquitted. If the statement under Section 342, Cr.P.C. Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counter versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing in the case before reaching at a conclusion regarding the truth or falsity of the defence plea/version. 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 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."
Undeniably, Meraj Din deceased was involved in the murder case of Maqsood brother of the appellants and was absconder, while his brother Idrees/complainant of the instant case and others were convicted in the said case. It is also in evidence that he was involved in many criminal cases. His presence near the house of the accused was not natural nor his visit to the village of the accused was called for. The presence of the deceased near the house of the accused caused genuine apprehension in the mind of Matloob Hussain appellant, who, instead of waiting for receipt of injury at the hands of the deceased, preceded. However, the plea of self defence taken by Matloob was found to Be correct during the investigation of the case as' per statement of Shafqat Mahmood Azeem, inspector/PW-9. There is no doubt that the Court should not be influenced by the opinion of the police but it is equally true that the same cannot be thrown to the winds.
However, in our opinion, by repeatedly firing at the deceased, appellant Matloob Hussain exceeded the right of private defence of person.
17. The upshot of the whole discussion is that we allow this appeal to the extent of Maqbool Ahmad- appellant; set aside the impugned judgment to his extent and acquit him of all the charges. He would be released forthwith, If not required in any other case. As regards Matloob Hussain- appellant, while partly allowing the appeal to his extent, we alter his conviction from offence under Section 302 (b), PPC to offence under Section 302 (c), PPC and reduce his sentence to undergo R.I.
For fourteen years. Benefit of Section 382-B, Cr.P.C. Is given to Matloob Hussain. In view of the dictum laid down by the Honorables Apex Court in the case of Meraj Begum vs. Ejaz Anwar & others (PLJ 1982 SC 435), the order passed by the learned Trial Court under Section 544-A, Cr.P. C: is not sustainable and the same is set aside. The death sentence imposed upon Matloob is NOT confirmed. The Murder Reference is answered in the negative.
18. For the same reason, Criminal Revision No. 419 of 2002 seeking enhancement of sentence of Maqbool Ahmed-respondent in dismissed.
19. As far as Criminal Appeal No. 923 of 2002, questioning the acquittal of Muhammad Sarwar, Muhammad Munawar, Muhammad Siddique and Mst Sharifan Bibi, is concerned, the learned counsel for the appellant/complainant did not press it and the same is dismissed as such.