Hasnat Ahmad Khan, J.--Muhammad Ashraf, 25, Muhammad Aslam, 22 and Muhammad Boota.
30, appellants were tried by a learned Additional Sessions Judge, Faisalabad, in the case FIR No, 248/2000 dated 15-4-2000 registered with Police Station Sadar, Faisalabad in respect of offences under Sections 302/452/337-L(2)/34, P.P.C. Vide his judgment dated 07-11-2002, the said learned Addl: Sessions Judge found all the appellants guilty for the offence of murder of Muhammad Nadeem as well as that of committing house trespass, and convicted and sentenced them on two counts. For committing murder of Muhammad Nadeem, Muhammad Ashraf-appellant was sentenced to death under Section 302 (b)/34, PPC with .a fine of Rs, 1,00,000/-, or in default of payment thereof, he was ordered to undergo one year S.I. He was further directed to pay a sum of Rs 1,00,000/- as compensation u/S. 544-A Cr.P C to the legal heirs of the deceased. While Muhammad Aslam and Muhammad Boota-appellants were sentenced to life imprisonment under Section 302(b)/34. PPC with a fine of Rs, 1,00,000/- each. In default of payment of fine, they were ordered to undergo further one year S.I. Both of them were also directed to pay a sum of Rs, 1,00,000/- each as compensation u/S. 544-A Cr.P.0 to the legal heirs of the deceased. Besides, all the three appellants were convicted under Section 452 PPC read with Section 34 PPC and sentenced to 7 years R.I with a fine of Rs, 5,000/- each, or in default of payment thereof, they were ordered to undergo two months S.I, each. They were also convicted under Section 337-L (2)/34 PPC on two counts and were ordered to undergo two years R I, each. However, all the sentences of imprisonment awarded to Muhammad Aslam and Muhammad Boota-appellants, were directed to run concurrently Benefit of Section 382-B Cr.P.0 was also extended to the appellants
2. Feeling aggrieved by the judgment of the learned trial Court, all the appellants have challenged their conviction and sentences through Cr. Appeal No, 2015/2002, while the trial Court has sent a Reference (M.R. No, 33/2003) for confirmation, or otherwise, of the death sentence awarded to Muhammad Ashraf-appellant. Muhammad Iqbal-complainant has also filed Cr. Revision No, 1234/2002 for enhancement of the sentence awarded to Muhammad Aslam and Muhammad Boota appellants to normal sentence of death. This consolidated judgment will dispose of all the said matters.
3. Succinctly, the prosecution's story, as unfurled by the complainant-Muhammad Iqbal (father of the deceased) in his application dated 15-4-2000 (Ex.PF), which was reduced into formal FIR (F ..PF/1), is to the effect that, on the fateful day, i,e,, 13-4-2000 at about 9,00 p.m, the complainant, along with Muhammad Nadeem (deceased), Ashfaq Ahmed (PW.12) and Shehzad (PW. 11), was present in his house. All of a sudden, Muhammad Boota-appellant, armed with a Repeater, Muhammad Ashraf-appellant, armed with a .30 bore pistol and Muhammad Aslam-appellant, armed with a dagger, raising lalkara, trespassed into the house of the complainant, caught hold of his son Muhammad Nadeem (slain) and dragged him outside his house. Muhammad Ashraf- appellant fired a shot at Muhammad Nadeem, which hit his right thigh, who fell down. Ishfaq and Shehzad, PWs. went forward to rescue Muhammad Nadeem. Muhammad Boota caught hold of Ishfaq, PW-12 and gave him butt-blows with his Repeater on the right hand, left arm and the chest after felling him. Muhammad Aslamappellant floored Shehzad and caused him butt-blows with his dagger, who sustained injuries on his hands and neck. Muhammad Ashrafappellant raised a lalkara that all the family be wiped out. The complainant, allegedly, tried to rescue his son but Muhammad Aslam-appellant raised lalkara that he would also be finished. The occurrence was witnessed by PWs. Shaukat and Boota, residents of the village, who besought the accused for saving the lives of complainant and other PWs. Muhammad Nadeem was rushed to Civil Hospital, Faisalabad in a critical condition and was got admitted in Emergency Ward. The complainant received Medico-legal Certificates of Muhammad Nadeem, Ishfaqe and Shehzad and produced them before Ghulam Farid Sub-Inspector Police, who recorded his statement.
The motive behind the occurrence was stated to be that Muhammad Ashraf-appellant and Muhammad Nadeem-deceased had exchanged abuses, few days before the occurrence. The accused, being influential people, compelled the complainant. for arriving at a compromise and on his refusal, this untoward happening took place.
4. After recording the statement (Ex.PF) of the complainant, Ghulam Farid, SI/Investigating Officer dispatched the same to the police station for registration of the formal FIR (Ex.PF/1). Then he proceeded to the place of occurrence, inspected the spot, prepared the site-plan (Ex.PQ), collected bloodstained earth from the spot where Nadeemdeceased was injured and sealed it into a parcel vide memo. (Ex.PM). He also took into possession three empties of bullets of .30 bore pistol and sealed them into a parcel vide memo. (Ex.PN). On the expiry of Nadeemdeceased on 18-4-2000, the I.O. went to the hospital, prepared injury statement (Ex.PK), and inquest report (Ex.PL), and dispatched the dead-body for postmortem examination under the escort of Riaz Ahmed, 1761-C, accompanied by Muhammad Anwar and Javed, P.Ws, who identified the dead-body. After the postmortem examination, Riaz Ahmad, Constable, received a saafa (P.3) and produced it before the LO, who took the same into possession vide memo. (Ex.PE). On 23-4-2000, the LO arrested Muhammad Ashraf-appellant, who, on 30-4-2000, while in police custody, led to the recovery of pistol (P.5) alongwith six live bullets (P.6/1-6), he took into possession vide memo. (Ex.PO). On 5.5.2000, he arrested Muhammad Boota-appellant, who, while in the custody of the police, on 13-5- 2000, led to the recovery of a licensed gun (P.I) alongwith license (P.2), which was taken into possession vide memo. (Ex.PD), in the presence of witnesses. After completing the investigation, he challaned the accused-appellants to the Court:
4. The appellants were indicted on the charge of murder of Muhammad Nadeem (slain) as well as for causing injuries to the injured P.Ws. During the trial, the prosecution, in support of its case, produced as many as 16 witnesses in all.
Dr. Fayyaz Ahmad, CMO, who had medically examined the Nadeem-deceased, appeared as PW. 1 and gave the detail of injuries on his person as under:--
1. A fire-arm wound of entry 1 cm in front of upper part of upper part of right thigh.
2. A fire-arm wound of exit 1 cm on back of middle part of right thigh.
In his opinion, the probable duration of injuries was fresh on arrival and was caused with fire-arm weapon.
Dr. Saeed Akbar Tariq, CMO, who had medically examined Ishfaq Ahmad (PW-12), appeared as PW.2 and gave the following detail of injuries on his person:--
1. An abrasion 4 cm x 1 cm on the back of left forearm.
2. An abrasion of 3 cm x (1/2) cm on the palm of the right hand in the middle.
3. An abrasion of 4 cm x cm on front of chest on right side.
According to his opinion, all the injuries were with blunt weapon and the duration was about 12 hours ago from the time of examination.
According to him, on the same day, at 11.15 a.m., he had also examined Shehzad Anjum (PW-11) and noted the following injuries on his person:--
1. Abrided area scaped having two parallel abrasion of 9 cm x 2 cm on the back of neck.
2. An abrasion of 1-1/2 cm x cm on palmer side pulp of index finger.
3. An abrasion of (1/4) cm x (1/2) cm on the base of index finger of base of right hand on palm.
He opined that all the injuries were with blunt weapons and probable duration of injuries was about 12 hours ago.
Muhammad Iqbal-complainant and Shehzad and Ishfaq Ahmad came forward as PW-7, PW-11 and PW-32 respectively and furnished the ocular account of the crime.
Ghulam Farid, S.I/I.O appeared in the witness box as PW.15 and provided the detail of the investigation conducted by him. Rest of the P.Ws, being formal in nature, need not be discussed here.
5. The statements of all the accused were recorded under Section 342, Cr.P.C. All of them denied the charge levelled against them. However, they denied to make statements under Section 340(2).
Cr.P.C.
6. We have given an ardent hearing to the respective learned counsel for both the parties and gone through the record with their able assistance.
7. The learned counsel for the appellant has contended that the prosecution failed miserably to prove the motivating factor behind the occurrence, as alleged by it while putting the legal machinery into motion; that according to the prosecution, a few days before :the occurrence, an exchange of abuses had taken place between Muhammad Ashraf and his father on one side and Muhammad Nadeem-deceased on the other. But while appearing in the witness-box, all the three eye-witnesses candidly admitted that at the time of the said incident, none of them was present and the said occurrence was reported to them by Nadeem-deceased himself; that during the trial, the complainant claimed that an altercation had taken place between his son, who at that time was aged 14/15 years and the son of Boota-accused but the prosecution failed to produce the complainant's son to prove the motive; that the occurrence was reported to the police with an inordinate and unexplained delay of 42 hours; that injured PWs were medically examined on the next day of occurrence; that the empty shells of bullets were allegedly recovered on the third day of occurrence, which, admittedly is a busy bazaar/street, therefore, the said piece of evidence is not believable; that the occurrence took place during the night time and the prosecution failed to prove that any source of light was available at or around the venue of the occurrence; that the manner in which the occurrence, allegedly, took place, is neither believable nor plausible; that during the investigation it was found that Aslam and Boota-appellants had reached the place of occurrence after the commission of the alleged crime; that defence-version put forth by Mohammad Ashraf-appellant is more probable and plausible than that of the prosecution; that during the investigation, defence-version was believed by the first investigating officer; that Ghulam Fareed PW.15) during his cross-examination admitted that the occurrence had taken Place in front of the house of the complainant but nobody had entered the complainant's house; that the trial Court allegedly relied upon the opinion of Saad Akhtar Bharwana (PW.16), who had found all the accused guilty in an investigation, which was conducted in his office and concluded in one day only; that even otherwise opinion of the police being not admissible piece of evidence was unlawfully and illegally made basis for the conviction of the appellants and that at any rate, the prosecution's case is full of doubts and therefore, the appellants are entitled to acquittal.
8. Conversely, the learned DPG assisted by the learned counsel for the complainant has strenuously and emphatically refuted the contentions raised by the learned counsel for the appellants. It has been argued by them that the prosecution proved its case beyond any shadow of doubt through the evidence of eye-witnesses out of whom two are injured eye-witnesses whose evidence got corroboration from the medical evidence, motive and recovery of weapons of offence, coupled with positive report of Forensic Science Laboratory.
9. After hearing the arguments from both the sides, we have straightaway noticed that it is a case of two versions. According to the prosecution, all the appellants after barging into the house of the complainant, had dragged Nadeem-deceased out of his house and then he was shot at and injured by Ashraf-appellant. It was further alleged that during this process, Aslam and Boota- appellant had caused injuries to Ashfaq (PW.12) and Shehzad (PW.11) with the blunt side of repeater gun and dagger respectively. On the contrary, it has been claimed by Muhammad Ashraf- appellant by making his statement under Section 342 Cr.P.0 that, in fact, it was he, who was attacked by Nadeem-deceased. During his statement under Section 342 Cr.P.C, in answer to Question No, 9, he stated as under: "PWs and deceased are related interse. PWs have deposed against me falsely. In fact on the day of occurrence at noon time a quarrel took place between me and Nadeem deceased for restraining the deceased who was standing in front of my house and I slapped Nadeem deceased on which Nadeem deceased went away while extending threats. On the same day I was coming from my land to my house. When I reached near the house of deceased, it was darkness at that time, the deceased alongwith his armed companion namely Tariq Sardar and Shahbaz Ghanti and others attacked upon me. At that time I had pistol which I tied with the belt around my waist. Deceased tried to snatch my pistol while catching the belt in that process the belt was snatched by the deceased and pistol remained in my hand on which Nadeem and his companion started firing on me and also started pelting bricks and stones towards me. I in exercise of my right of self-defence fired towards deceased party. During the cross firing Nadeem deceased received injuries. Due to darkness no body knew whose fire hit Nadeem deceased from either side of the parties. At the time of occurrence no PW was present. My co-accused Boota and Aslam were also not present at the spot at the time of occurrence."
10. The case being of two versions, so we have to decide it keeping both the versions into juxtaposition to see as to which of the two versions is more probable and nearer to the truth. As initially, it is the duty of the prosecution to prove its case beyond the shred of doubt, therefore, first of all, we intend to examine the prosecution's evidence to see whether it succeeded to discharge its duty to prove the case to the hilt. For scrutinizing the case from that angle, we have observed that the prosecution's case rests upon the evidence of motive, the statements of the eye- witnesses, including the injured eye-witnesses, recovery of weapons of offence, positive report of Forensic Science Laboratory and the medical evidence.
11. Now taking the case of prosecution regarding the motive, as set up by it, while lodging the FIR, we have observed that it was claimed by the prosecution that a few days before the occurrence, Muhammad Ashraf-appellant and his father Abad Ali on one side and Nadeem-deceased on the other, had exchanged abuses. While appearing in the witness-box all the three witnesses candidly admitted that none of them had witnessed the said occurrence, which, according to them, was reported to them by Nadeem deceased himself. We have further noticed that during the trial, it was claimed that only Ashraf-appellant and Nadeem had exchanged abuses. So the presence of Abad Ali at the said occurrence was excluded during the trial. During his cross-examination, Muhammad Iqbal (PW.7) gave the detail of motive in the following words: "The altercation between Nadeem and Ashraf took place nearly 2/3 days before the occurrence.
The altercation took place 10/15 Karms away from our house in a chowk. Due to the quarrel of the children, the altercation took place. The son of Boota accused quarreled with my younger son. The son of Boota who quarreled with my son is of the age of 10/11 years. The age of my son with whom he quarreled is 14/15 years,"
The said statement shows that in the incident of the motive, the complainant's son, aged 14/15 years, was involved but interestingly enough, he was not produced in the witness box to prove the said motive. In the said backdrop, we have concluded that the prosecution has pathetically failed to prove the motive, as alleged by it, beyond the shadow of doubt.
12.Now taking up the case of ocular evidence, we have observed that it was provided by the prosecution by producing Muhammad Iqbal (PW.7), Shehzad injured PW.11 and Ashfaq another injured eyewitness, who appeared as PW.12. At the first sight, it appears that by producing the said two injured PWs, who had stamp of injuries on their persons, the prosecution succeeded to prove the ocular account beyond shadow of doubt. But it is not so simple in this case, because after scrutinizing the entire evidence minutely, we have doubts in our minds' eye that the said witnesses received any injury on their persons during the occurrence. The reasons for holding so are that, firstly, the said witnesses were not medically examined on the day of occurrence; secondly, they were not got medically examined by the police; thirdly, the occurrence was reported to the police on its third day; fourthly, the doctor, who had medically examined them, stated that the possibility of the injuries on the persons of Ishfaq and Shehzad being self suffered could not be ruled out; fifthly, Muhammad Iqbal (PW.7) claimed that, he had removed all the three injured persons to the Allied Hospital where they were admitted but the record tells us otherwise. According to their Medico-Legal Reports, the said witnesses, though, were present in the hospital on the day of occurrence but were not medically examined on the said day, rather, as observed above, they were medically examined on the next day. Sixthly, it does not appeal to reason that any person would cause injuries to his enemy with the butt of a dagger, as the prosecution wants is to believe.
This allegation on the face of it, looks ridiculous. So in this view of the matter, we are not impressed by the prosecution's claim that the said two witnesses, indeed, suffered any, injury during the occurrence. Besides, mere fact that the witnesses were injured during the occurrence is not a guarantee that they are also truthful. Reliance in this regard is placed on the cases of Mehmood Ahmad and 2 others v. State (PLJ 1995 SC 1) and Said Ahmad v. Zammured Hussain and 4 others (1981 SCM R 795).
13. Now taking up the prosecution-version that the murder of Nadeem was committed by the appellants after trespassing/targing into the house of the complainant and dragging him out of his house, before causing him injury, we are taking this allegation with a pinch of salt Firstly, it does not appeal to reason that accused-appellants, armed with deadly weapons after trespassing into the house of the complainant with the intention to kill Nadeem, instead of secretly killing him, in his house, which they easily could have done, dragged him out of his house in a busy street/bazaar, so as to create evidence against themselves; secondly, the allegation of dragging Nadeem- deceased, could not be proved, inasmuch as according to the medical evidence, he had not received even a scratch on his body. To sweep the said infirmities under the carpet, all the prosecution witnesses made dishonest improvement by stating that the accused had dragged Nadeem through arms and Boota accused-appellant had been pushing him from the backside.
The said allegation, at one stage, was not believed by the investigators and offence under Section 452 PPC was deleted which. however, was revived by his successor. Be that as it may, the prosecution has miserably failed to prove the said part of its story.
14.Insofar as the presence of Iqbal PW at the time of occurrence is concerned, the same has also not been found free of doubt. Admittedly, in the days of occurrence, he was serving in Nishat Mills.
During his cross-examination, he frankly admitted that on the night of occurrence, he was on the night duty but in the same breath after realizing his mistake, he stated in the following terms: But on that night, I was on leave.
He further stated that he was only on leave on 13-4-2000, i,e, the date of occurrence. But the other witnesses contradicted him on this point. The said statement coupled with the fact that he made some dishonest improvements, makes his presence at the time of occurrence doubtful. We have further observed that the prosecution miserably failed to prove that at the time and place of occurrence, some light was available. However, during the cross-examination, it came on the record that other eyewitnesses, though, also employees, but on the night of occurrence, were performing the duties of day-shift. The occurrence took place right in front of their house, so they are natural witnesses. Even after disbelieving the fact that they received injuries in the said occurrence, their presence at the time of occurrence cannot be doubted. However, keeping the fact into consideration that an effort was made to show themselves injured witnesses, coupled with the fact that a false story of dragging of the deceased was coined by them, we cannot place implicit reliance and faith on them. Consequently, we are constrained to apply the principle of sifting grain from the chaff and for doing so, we have to look for the corroboration of their statements against each of the accused.
15.At this stage, we would like to examine the defence-version also. After going through the statement of Ashraf-appellant, recorded under Section 342, Cr.P.C, it does not appeal to reason.
According to him, while he was passing through the street of the complainant party, he was intercepted by Nadeem and his cronies, namely, Tariq Sardar and. Shahbaz Ghanti. He further claimed that Nadeem tried to snatch his (Ashraf-appellant's) pistol from him. He further stated that in an exercise of his self-defence, he fired towards the deceased-party. However, he maintained that during the cross-firing, it was not known as to whose firing had hit Nadeem. The appellant did not opt to appear as his own witness. Similarly, no evidence was produced by him in his defence. The claim of the appellant that the deceased and his associates had pelted bricks on him is not supported by the medical evidence. After raising a plea of his defence, the burden of proof to some extent had shifted upon him under Section 121 of Qanun-e-Shahadat Order, 1984 but he failed to discharge the same. Therefore, the plea of self-defence, is disbelieved. According to the postmortem report, there was no blackening and burning around Injury No, 1 received by the deceased, which shows that fire was made from a longer distance. This excludes the plea of the appellant that during the course of grappling he had produced some fires.
16.Now taking up the evidence of recoveries. We have gathered that the positive report of Forensic Science Laboratory is not much helpful for the prosecution on two-fold reasons; firstly, the appellant admitted the possession of pistol and firing with the same at the time of the occurrence: secondly, according to the prosecution, three empty shells of bullets were recovered from the place of occurrence on 15th of April, 2000, i,e, on the third day of the occurrence. This part of the prosecution story appears to be ridiculous, as no reasonable person Would believe that for three days the said crime empties remained lying in open bazaar unnoticed by anybody. There is another reason for disbelieving the said report, i,e, the said report shows the receipt of parcels of crime empties as well as the weapon of offence on 9th of May, 2000 and 24th of May, 2000. While, according to the prosecution, the weapon of offence was recovered on 30th of April, 2000.
Muhammad Sharif Head Constable (PW.6) claimed that a parcel of empty shells was handed over to Muhammad Younas Constable (PW.8) on 27th of April 2000. Muhammad Younas, Constable (PW.8) claims that he received the said parcel on 27th of April, but he delivered the same to the Forensic Science' Laboratory on 29th of April, 2000. He did not explain the gap of two days between the receipt of the said parcel and delivery of the same to the relevant quarter. His statement stands contradicted by the report of Forensic Science Laboratory, which shows that the parcel of empties was not received on 29th of April, 2000, rather, it was received on 9th of May 2000. In this view of the matter the positive report of Forensic Science Laboratory is meaningless. However, this fact would not adversely affect the prosecution's case as far as the role attributed to Ashraf- appellant is concerned, inasmuch as, he has admitted the possession of pistol and use of the same during the occurrence.
17.Now, taking up the case of Boota-appellant, the prosecution claimed that as far as Boota- appellant is concerned, no recovery of weapon of offence was effected from him, rather, his father had produced a licensed gun. Even, otherwise, there is no report of Forensic Science Laboratory to prove the use of the said gun. Similarly the dagger, which was allegedly used, by Aslam-appellant, was not recovered during .He investigation. Consequently, the statements of eye-witnesses did not get corroboration qua the participation of Aslam and Boota-appellants. Therefore, both of them are acquitted by giving them benefit of doubt.
So to their extent, Cr. Appeal No, 2015/2002 is accepted. They be immediately released from jail if not required in any other case.
18. Now taking up the question of death sentence awarded to Ashraf-appellant, we have concluded that there are some mitigating and extenuating circumstances justifying the commutation of his death sentence into one of imprisonment for life. The said mitigating circumstances are firstly, there was no deep-rooted enmity between the parties; secondly, the prosecution miserably failed to prove the motivating factor behind the occurrence and the origin of fight remained shrouded in mystery; thirdly, the possibility that the occurrence took place suddenly cannot be ruled out altogether; fourthly, though, there was nothing to stop the appellant from repeating the shot, but he caused only a single fire-arm injury and that too on the lower part of the body of Nadeem (deceased); fifthly, according to PW.10, at the time of postmortem, it was found that right lower limb was disarticulated from hip joint but the prosecution failed to produce the doctor, who had amputated the leg of deceased after operating upon him. The operation notes have been suppressed from the Court. Therefore, the negligence or inefficiency of the doctor, who had conducted the said operation cannot be ruled out, specially, when it is examined from the angle that at the time of postmortem, no cause of death was determined by the doctor and the same was deferred till the receipt of the reports from Bacteriologist. During his examination, the doctor, who had conducted the postmortem on the dead-body of Nadeem-deceased, gave the cause of death in the following words: "The cause of death in this case was MLC Nos, 1 and 2 and their complications."
For the said reasons and after placing reliance on the case of Sher Ali v. State (1980 SCM R 291), Mumtaz Hussain v. State (2006 P.Cr.LJ 762), Muhammad Arshad v. State (PLJ 1995 SC 684) and Sikandar Baig etc. v. State (NLR 1991 Cr. 219), the conviction under Section 302(b) PPC awarded to Ashraf-appellant is maintained and appeal to his extent is dismissed but with the modification of sentence, the death sentence awarded to the appellant, is commuted into one of imprisonment for life. Further, he would get the benefit of provisions of Section 382-B, Cr.P.0 The sentence of fine, being illegal, is set aside. However, he is directed to pay compensation in terms of judgment of the learned trial Court or in default thereof, he will further undergo six months S.I. Insofar as the conviction and sentence awarded to the appellant under' Sections 452 and 337-L(2) PPC is concerned, that is also set aside in view of the aforementioned findings returned by us. Death sentence is not confirmed and Murder Reference is answered in negative.
19. In view of the fact that Muhammad Boota and Muhammad Aslam appellants, have been acquitted, Criminal Revision No, 1234/2002 seeking enhancement of their sentence stands dismissed.