' MUHAMMAD FARRUKH MAHMUD, J.--- The appellant Matloob Hussain along with his brother Abdul Razzak was tried by Malik Ghulam Sarwar, learned Additional Sessions Judge, Gojra, in private complaint filed by Muhammad Sharif for offences under section 302/34, P.P.C. Vide judgment, dated 30-5-2002, the learned trial Judge, while acquitting Abdul Razzak/co-accused, convicted the appellant for offence under section 302(b), P.P.C. And sentenced him to death plus payment of Rs,3,00,000 as compensation to the legal heirs of the deceased, in default whereof to undergo S.I.
For six months.
2. Aggrieved by his above-noted conviction and sentence, the convict/appellant has filed the instant appeal. Murder Reference No,407 of 2002 seeking confirmation or otherwise of death sentence inflicted upon the appellant has also been placed before us. We propose to decide both these matters through this judgment.
3. The brief facts of the case, as gleaned by the private complaint filed by Muhammad Sharif/complainant (Exh.P.A.) On 8-5-1998 against Matloob Hussain alias Sahibu and his brother Abdul Razzak (acquitted accused) for offences under section 302/34, P.P.C. Are that on 3-3-1997 at 12-30 p.m. The complainant, Manzoor Ali, Ghulam Abbas, Shamshad Bibi, Mst. Jamshed Akhtar and Sakina Bibi were standing in the Bazaar in front of their house and were talking with each other, while Tauqeer Abbas deceased son of the complainant was standing in the Bazaar in front of the shop of Muhammad Maalik. Meanwhile, Matloob Hussain alias Sahibu appellant armed with .222 bore rifle and his brother Abdul Razzak (acquitted accused) armed with pistol came out of 'their house. Abdul Razzak raised Lalkara that Tauqeer Abbas should not go alive. Both the accused ran towards Tauqeer Abbas. The complainant and his companions also followed them. Within the view of the P.Ws. Abdul Razzak asked the appellant to do away with Tauqeer Abbas by firing upon him, whereupon the appellant fired from his rifle, hitting; Tauqeer Abbas on his head, neck, ears, armpit, back and buttocks. Tauqeer Abbas fell down. When the complainant and the P.Ws. Stepped forward, both the accused, while aiming their weapons at the P.Ws., threatened them with the same fate. The accused, while brandishing their weapons, ran away from the spot. Tauqeer Abbas died at the spot.
' The motive was that one year prior to the occurrence, Tauqeer Abbas had slapped the appellant and the matter was patched between them. But the appellant had been saying that he would take the revenge of his insult. Both the accused with their common intention had committed the murder of the deceased by giving burst of .222 rifle. The complainant, while on his way to the police station to report the matter, met the Thanedar at Zaki Chowk Jhang Road and narrated the entire incident to him. The Thanedar asked the complainant to sit aside and himself got recorded wrong statement of the complainant, even without reading out the same to the complainant got his signatures thereon, in order to save Abdul Razzak/co-accused, who was A.S.-I. In the Police Department. The complainant made several applications to the higher police authorities but without any success. Hence, he was obliged to institute the instant private complaint. The post- mortem on the dead body of the deceased was conducted at Eye-cum-General Hospital, Gojra.
4. It may be mentioned here that initially case F.I.R. No,29 was registered at Police Station Nawan Lahore on 3-3-1997 for offence under sections 302/109, P.P.C., wherein only the appellant was mentioned as accused with the same role of giving a burst upon the deceased. Challan was submitted against him. On receipt of the complaint, the proceedings in the complaint case were taken. Charge against both the accused was framed. As they denied the charge and did not plead guilty, the trial commenced.
5. To prove its case at the trial, the complainant produced eight witnesses. Ocular account was furnished by Muhammad Sharif, complainant/P.W.1 Shamshad Begum/P.W.2 and Mst. Jamshed Akhtar/P.W.3. Their statements are in line with the story given in the complaint. In addition to that, they also stated about the motive. Besides that, the complainant added that during investigation of the case, Matloob Hussain appellant led to the recovery of .222 bore rifle, which was taken into possession vide memo. Exh.P.B., which was attested by him. Dr. Muhammad Asim/P.W.5, who conducted . Post-mortem examination the dead body of the deceased on 4-3-1997, while observing nine fire-arm injuries on the person of the deceased, opined that caused of death was haemorrhage and shock and injuries to vital organs, i.e. Brain, heart and lungs. According to him, injuries Nos.1, 3 and 5 were individually and collectively sufficient to cause death in the ordinary course of nature. The duration between injuries and death was immediate, while between death and post-mortem examination, it was 20 to 26 hours. P.W.6 Iqbal Hussain stated about the recoveries effected from the spot i.e. Empties of bullets of rifle and blood-stained earth. P.W.8 Mushtaq Ahmad/A.S.-I. Stated about the receipt of complaint Exh.P.G. And the formal registration of FIR'. Exh.P.G./1 on the basis of Exh.P.G. The rest of the prosecution evidence, being formal in nature, need not be discussed. The learned trial Court also recorded the statements of Israr Ahmad/Constable, Syed Kazim Hussain Gilani/ Draftsman, Muhammad Nawaz/S.-I. And Muhammad Yar/A.S.-I. As C.W.1 to C.W.4 respectively.
6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication by stating as under:-- "There is a party fiction in our village. There are two groups namely Hamza group and Warraich group. My father belongs to Hamza group. Maqsood son of Ghulam Nabi caste Jat Kahloon, Ghulam Mustafa son of Sardar Ali are our opponents and my father and my brother Abdul Razzak my co-accused were earlier involved in false cases at the instance of Maqsood Ahmad and Ghulam Mustafa mentioned above. I being brother of Abdul Razzak have been falsely involved in this case by the complainant at the instance of our opponents. It was a blind murder case and the same is still shrouded in mystery. All the P. Ws. Are interested ones, they have deposed against me and my co-accused at the instance of our opponents who are rendering financial help to the complainant. I am totally innocent. I had appeared before the police on the next day of the occurrence."
' However, neither the appellant appeared as his own witness as enjoined by section 340(2), Cr.P.C.
Nor did he produce any witness in defence.
7. Learned counsel for the appellant submits that the presence of complainant at the time of occurrence was doubtful, as, undeniably, he was working as a mason on answer and used to be there from 8-00 a.m. To 4-00 p.m., that Mst. Jamshed Akhtar P.W. Was not named as a witness in the F.I.R.; that as far as Mst. Shamshad Begum is concerned, there was no occasion for her to stand outside her house; that the prosecution miserably failed to prove the motive set down by it in the F.I.R.; that the factum of non-tallying of empties with the weapon allegedly recovered at the instance of the appellant proves innocence of the appellant; and that in any case, it was not a case of capital punishment in view of the admission about the motive made by Mst. Jamshed Akhtar herself.
8. Conversely, the learned Deputy Prosecutor-General for the State has defended the impugned judgment.
9. We have heard the learned counsel for the parties at a great length and have also gone through the record.
10. The prosecution case rests on the direct evidence of Muhammad Sharif/P.W.1, father of the deceased, Mst. Shamshad Begum/P.W.2, mother of the deceased, and Mst. Jamshed Akhtar/P.W.3, sister of the deceased. The occurrence took place in broad-daylight at 12-30 p.m. Opposite to the shop of Muhammad Maalik, situated in the street at a distance of 60/66 feet from the house of the P.Ws. P.W.2 mother of the deceased is star-witness of the case, as her name was mentioned as a witness in the F.I.R. And her presence in the house was natural. Mst. Jamsher Akhtar, sister of the deceased, lived in the house of the complainant, so her presence was also natural. Both the P.Ws.
Had no previous or enmity with the appellant whatsoever so as to involve him in a false case. The statements of the P.Ws. Are consistent, coherent and trustworthy as far as the appellant is concerned. It was suggested to the complainant that he was a mason and was working on the Budd Briges Tower situated at Jhang-Faisalabad Road. The complainant did not deny this fact but explained that he had stopped working during those days due to non-payment of his daily wages. Undeniably, no or dispute existed between the complainant and the appellant prior to the occurrence. The statements of the P.Ws. Are fully supported by the medical evidence, as all the witnesses have stated that the fires were caused from close range, i.e. According to complainant from six feet and according to Shamshad Begum from 2/2-1/2 paces. The matter was reported to the police within an hour of the occurrence, as the time mentioned on Exh.P.G. Fard Biyan is 1-30 p.m. The factum of reporting the matter promptly to the police shows that the P.Ws.
Were present at the time of occurrence and there was little room for concoction of the story. The acquittal of Abdul Razzak, brother and co-accused of the appellant, would not benefit the appellant in any manner, as presence of Abdul Razzak was not shown in the F.I.R. Nor any motive was alleged against Abdul Razzak. The complainant party belonged to working class, while Abdul Razzak was working as A.S.-I. The complainant party genuinely was afraid of interference of Abdul Razzak and, perhaps, for that reason his name was mentioned in the F.I.R. The appellant himself brought on record his first version while cross-examining C.W.4 Muhammad Yar/A.S.-I., available at page 53 of the paper book. According to the first version of the appellant, one Azeem alias Jannu accused was a proclaimed offender and there was enmity between him and the above said proclaimed offender, so the appellant came out along with a rifle. The deceased asked him as to why he was carrying a rifle and whether any shot was ever made by the appellant or not. The appellant reacted to the remarks by aiming the rifle at the deceased in a joking manner. However, the deceased caught hold of the barrel of the rifle and during scuffle the rifle went of; resultantly, Tauqeer Abbas lost his life. On the insistence of the learned counsel for the complainant, the Court brought on the record the rest of the portion of the first (sic) of the appellant, according to which at the time of occurrence, the appellant was not well and used to take "Ativan" pills and at the time of occurrence he had taken the pills. However, in his statement recorded under section 342, Cr.P.C., the appellant did not state a word about his first version and took the plea that he was involved in this case by his enemies. There is no proof about one Azeem alias Jannu having been declared proclaimed offender and his presence on the fateful day. The admission on the part of the appellant can be looked into and used against him, as it was brought on record at his instance.
Reliance is placed on the judgment passed by this Court in the case of Hasil v. Emperor 1942 Indian cases (Vol.198) 441, wherein it was observed as follows:-- ' "The prohibition contained in section 25 of the Evidence Act can be treated as applying only to confessions which are to be proved as against the accused, that is, in support of the prosecution case and cannot apply to statements on which the accused himself wishes to rely in connection either with his conviction or his sentence. In cases of this kind, when two versions of the same incident are being put forward, it is often of the greatest importance for an accused to be able to show that his own explanation was put forward at the earliest possible opportunity, and we do not think that it can ever have been the intention of the Legislature that an accused person should be deprived of the right to make use of such a statement, merely because to a certain extent it goes against him."
The appellant disowned his first version in his statement recorded under section 342, Cr.P.C. By stating that it was a blind murder and that the P. Ws. Had deposed against him at the instance of his opponents, who were rendering financial help to the complainant. The complainant party, as noted above, belonged to working class having their own house. There is no evidence that they were being fed by any other person. It is not believable that the parents and sisters of the deceased would substitute the killer by an innocent person.
11. As far as the evidence of recovery of rifle at the instance of the appellant is concerned, that cannot be used against the appellant in light of the report of Forensic Science Laboratory, according to which the empties collected from the spot did not tally with the rifle.
12. No evidence is available on record in proof of the motive set down in the F.I.R. And the complaint Exh.P.A., according to which the motive behind the occurrence was that one year prior to the occurrence the deceased had slapped the appellant. The deceased and the appellant are residents of the same Chak. The house of the appellant was in the side lane of the main Bazaar and was situated at a distance of ten Karams from the house of the deceased. In spite of that no untoward incident took place between the complainant and the deceased for the whole year. The complainant did not disclose as to why the deceased had slapped the appellant.
13. The upshot of the whole discussion is that in our opinion, the prosecution has successfully proved its case against the appellant through direct evidence, which was reliable, trustworthy and supported by the medical evidence and corroborated by the circumstances of the case, including the admission of the accused, and the factum of promptly reporting the matter to the police.
14. Having come to this conclusion, we have given our anxious and considerate thought as to what should be the proper sentence. It has been noticed by us that the real motive was not mentioned either in the F.I.R. Or in the complaint. However, Mst. Jamshed Akhtar, who is real sister of the deceased, came out with the real motive and stated that the women of Mohallah cast doubt that Tauqeer Abbas was murdered due to suspicion that he had illicit relationship with the cousin of Abdul Razzak and Matloob accused and the lady was engaged with Matloob. She added that uncle of Abdul Razzak, who was a teacher, had two daughters and he used to drop one daughter at the school himself, while the other daughter was usually dropped by Tauqeer Abbas deceased at the request of her father. One can read between lines that "at the request of her father" has been added to justify the presence of the deceased with the cousin of the appellant. In the existence of above noted statement of P.W.3, the possibility of the cousin of the appellant and the deceased having been seen together cannot be ruled out. It is also in evidence that the complainant party.
Followed the Fiqah Jafferiya, while the appellant party were the Sunnis. The reason behind the occurrence appears to be family honour. It may be added here that at the time of occurrence, the appellant was hardly twenty years of age. In the circumstances, while maintaining the conviction of the appellant for offence under section 302(b), P.P.C. We alter the sentence to imprisonment for life. The amount of compensation is excessive. The same is reduced to Rs,50,000. Benefit of section 382-B, Cr.P.C. Is given to the appellant.
15. With the above modification/reduction in the sentence and amount of compensation, this appeal stands partly allowed. The death sentence is not confirmed. The murder reference is answered in the negative.