Muhammad Ashraf Bhatti, J.--This common judgment shall dispose of Criminal Appeal No, 1900 of 2002 filed by Muhammad Ilyas convict, and Murder Reference No, 95 of 2003 filed for confirmation of death sentence awarded to the convict/appellant by the learned trial Court.
2. Muhammad Ilyas appellant alongwith Muhammad Abbas, his brother were tried in case FIR No, 43 dated 3.5.1996 registered at Police Station Qila Kalarwala District, Sialkot under Sections 302/34 PPC, on the statement of Muhammad Aslam complainant (Ex.PA), for causing Qatl-i-Amad of Muhammad Jamshaid alias Noora. The learned Addl. Sessions Judge, vide his judgment dated 18.11.2002, acquitted Muhammad Abbas and convicted Muhammad Ilyas, appellant under Section 302(b) PPC and sentenced him to death with direction to pay compensation of an amount of Rs, 1,00,000/- to the legal heirs of the deceased as envisaged under Section 544-A Cr.P.C. and in case of default to undergo further imprisonment for 6 months R.I.
3. Brief facts of the case as per F.I.R. are that on 03.5.1996 at about 11.30 a.m. in the premises of Civil Hospital, Pasrur, Muhammad Aslam, complainant, a school teacher, got recorded his statement (Ex.PA) before the local police stating that his younger brother namely, Muhammad Jamshaid alias Noora (deceased) ran a Tea/Cigarettes stall (Khokha) on the `pukhta road', village Dhodha; that Muhammad Ilyas, the appellant and Muhammad Abbas residents of the same village, used to have brawl with him unnecessarily; that on the day of occurrence at about 9.00 a.m. when he, his brother Muhammad Jamil, Muhammad Ismail and Muhammad Ilyas son of Mohammad Yasin were present at the Khokha of Jamshaid alias Noora, deceased, Muhammad Ilyas the appellant and Muhammad Abbas, Rajput by caste, and Muhammad Anwar, Muhammad Sarwar and Muhammad Riaz sons of Sharif of Rehmani caste, were brick batting upon each other at a distance of two acres on the pukhta (metalled) road near the "Khokha"/stall of one Sabir Hussain son of Bahar Shah; since many people from the village had gathered there he (the complainant) along with his brothers Muhammad Jamil and Muhammad Jamshaid alias Noora (deceased), Muhammad Ismail and Muhammad Ilyas also went'there to intervene and got them separated where after Muhammad Anwar and his brothers proceeded towards their village; that Muhammad Ilyas appellant and Muhammad Abbas, his co-accused took ill of their intervention and raised "Lalkara" that since they threatened to teach them a lesson of their support of Rehmani Brothery; that Muhammad Ilyas rushed to his nearby shop, brought .12 bore double barrel gun and when Muhammad Abbas said to Muhammad Ilyas not to spare them, Muhammad Ilyas fired a gun shot at Muhammad Jamshaid alias Noora which hit him on the front, at his chest on the right side, who fell down on the earth and then both the appellant and Muhammad Abbas went to their, village.
The injured Muhammad Jamshaid alias Noora was shifted to Civil Hospital, Pasrur but he succumbed to his injury. Hence, the FIR (Ex.PA/1) against Muhammad Ilyas appellant and Muhammad Abbas, alleging that they, in furtherance of their common intention, had committed the murder of Muhammad Jamshaid alias Noora (deceased) on the abetment of Wali Muhammad, since died.
4. After registration of the formal FIR. the I.O. took into possession the weapon of offence as also the blood-stained earth from the place of occurrence, vide memo Exh.PC for onward transmission to the quarters concerned, and blood-stained clothes of the deceased vide memo Exh.PJ. After postmortem examination of the deceased, his last worn clothes were produced before the I.O. He prepared the necessary police papers, including injury statement and site-plans etc. and recorded the statements of the PWs in terms of Section 161 Cr.P.C.
5. After completion of necessary formalities challan was submitted in the Court, where the aforesaid persons were formally charge sheeted to which they pleaded not guilty and claimed trial.
6. At the trial the prosecution based its case on the statements of Muhammad Aslam PW-2 and Muhammad Ilyas PW-3, the star witnesses, who provided the ocular account, which went largely in line with the story as reflected in the F.I.R. Dr. Wali Muhammad PW-11 had conducted the post- mortem examination upon the dead body of Muhammad Jamshaid alias Noora deceased. He observed, multiple star shaped wound measuring each about x 1% cm margins blackening, inverted on the front of right snoulder. Front of right chest and right Maxilla involving area about 18 cm x 15 cm (pellets entry wounds). Muhammad Arshad PW-5 testified the memo of recovery Ex.PB, whereby the weapon of offence .12 bore double barrel gun was recovered from Muhammad Ilyas, appellant. The I.O. of the case, Adil Hussain PW-9, then posted as Sub-Inspector Police Station Qila Kalarwala, who, after having received information about the occurrence, reached at the premises of Civil Hospital alongwith police officials, recorded the statement of Muhammad Aslam complainant Ex.PA, and got registered the formal FIR Ex.PA/1. He prepared inquest report Ex.PE, injury statement Ex.PG and other necessary police papers for post-mortem examination upon the dead body of Muhammad Jamshaid alias Noora deceased through Sadaqat Ali and Amanat Ali constables. He proceeded to the place of occurrence and prepared un-scaled site-plan Ex.PH and recorded statements of the PWs u/S. 161 Cr.P.C., took into possession blood-stained earth Ex.PC.
Sadaqat Ali and Amanat Ali. constables produced last worn clothes of the deceased qameez P-2 and P-3, secured through recovery memo Ex.PJ. On 5.5.1996, he again visited the spot alongwith draftsman. On 15.5.1996, the appellant led to the recovery of the weapon of offence .12 bore double barrel gun, taken into possession vide recovery memo Ex.PB. He also prepared rough site-plan of the place of recovery Ex.PB/1. Gun was accordingly sent to the office of Forensic Science Laboratory.
Rest of PWs are formal nature.
7. The appellant and his co-accused were examined u/S. 342 Cr.P.C., they denied the factum of having committed the offences under reference. In answer to a question, as to why the PWs deposed against them, the reply given by the appellant is reproduced as under:-- "The witnesses are inter-se related and hostile towards me and my family. In fact, on the alleged day and time of occurrence, I was working at my shop situated on the road side, and was busy in welding the iron box and at that time many persons namely, Muhammad Ismail son of Muhammad Ibrahim milk seller r/o village Ramdas. Faiz Rasool son of Ghulam Rasool Jatt, Rashad son of Ilyas Buksh Gujar, Muhammad Khan son of Hussain Khan Rajput, Yaqoob son of Taj Din, were present at the Tea Khokha of Sajid Hussain Shah, where Sabir Hussain was cooking tea arid his son Afzal Shah was serving tea as a helping hand of his father, while jamshaid alias Noora deceased of this case, was also standing there. There two boys, Munir son of Abdul Haq Arain and Younas alias Joona, caste Rehmani, who quarrelled at Tea Khokha. Ijaz Rehmani sitting there intervened and separated them. Munir was may employee at my shop. On this interference by Ijaz Rehmani who had opposed Munir, was reprimanded by my brother Abbas and he went away. Soon after Anwar Rehmani come there on motorbike, and started quarrelling with Abbas my brother, who was sitting at the Tea Khokha of Sabir Shah. Anwar alongwith many others attacked and started bulling abuses and brick batting upon me at my shop which attracted many people over there. The brick batting by Anwar Rehmani party was followed by firing by Anwar Rehmani party at my shop. I also resorted into firing with my licensed gun from my shop, and Tea Khokha of Sabir Hussain Shah was situated in between the firing points from both sides. During this cross firing Noora, who was a desperate daring person, was hit by a stray bullet fired by. Rehmani party, who were just near the Tea Khokha of Sabir Hussain, where Jamshaid alias Noora was present.
I have been victimized in this case by the complainant party who joined hands with Anwar and Ijaz Rehmani party and the complainant accepted one lac rupees from them and at their `behest' planted this false case against me and my innocent brother Muhammad Abbas and father. In fact the complainant was not present in the village and was present in village Jassowal, Tehsil Narowal at the house of his in-laws, and therefrom he was summoned and later on present story was introduced at about after-noon time. Fard Biyan at the formal FIR were fabricated and prepared at one and the same time while sitting at the police station in the after noon."
He claimed himself to be an innocent and intended to produce the defence evidence. However, he did not intended to appear as his own witness u/S. 340(2) Cr.P.C.
8. The learned trial Court after hearing the arguments of the learned counsel for the parties, while acquitting Muhammad Abbas, recorded the conviction and awarded death sentence the appellant as mentioned in the earlier part of this judgment. Hence, the Criminal Appeal and the Murder Reference, as cited herein above, are being disposed of through this common judgment.
9. We have heard the learned counsel for the appellant as well as the learned Additional Prosecutor General appearing on behalf of the State. They have also taken us from the evidence adduced from both the sides.
10.Learned defence counsel while referring to the statements of the eye-witnesses Muhammad Aslam, PW-2 and Muhammad Ilyas, PW-3 submits that they were not present at the spot. In this context he has drawn our attention to the identification of the dead body of Jamhsaid alias Noora, deceased by some one else to convince us that had the aforesaid PWs were present at the scene of occurrence they would have escorted the dead body and identified it in the hospital. It is also contended that PW Muhammad Aslam is a teacher and was on his duty on the day of occurrence.
Further submits that Jamshaid alias Noora was hit by a bullet of Anwar Rehmani party during the cross-firing between Muhammad Anwar, etc. of Rehmani Brathery and Muhammad Ryas, appellant and his co-accused Muhammad Abbas, Rajput by caste. The absence of signs of any brick batting at the spot is yet another contention to show that the occurrence did not happen in the manner as the prosecution has portrayed through evidence on record. He has also argued that there are glaring discrepancies in the statements of the private witnesses making the prosecution case doubtful. However, as an alternative relief it has been prayed on behalf of the appellant lesser punishment keeping in view the absence of motive as well as the origin of the dispute that resulted in fateful death of Jamshaid alias Noora. deceased.
11.Contrary to the above arguments advanced by the learned defence counsel, the learned Additional Prosecutor General has referred to the consistency in the statements of Muhammad Aslam. PW-2 and Muhammad Ilyas, PW-3 on all material points to make the appellant directly responsible for death of an innocent person who brought double barrel gun from his nearby Tea Khokha and fired straight at the deceased. Further submits that the ocular account is duly corroborated by medical evidence as well as recoveries effected during the course of investigation.
12.It is important to mention here that some crucial facts of the case are not disputed i,e, the place and time of occurrence, recovery of double barrel gun from the appellant on the day of occurrence and found by the Forensic Science Laboratory in the working order, shot of fire that hit the deceased, Jamshaid alias Noma. brawl having been taken place between Muhammad Anwar, etc. of Rehmani Bratheiy and Muhammad Ilyas appellant and acquitted Muhammad Abbas immediately before the occurrence, presence of many people there and existence of Khokha of Sabir Hussain .Shah. Therefore, the dispute remains as to whether or not it was a stray bullet that caused death of Jamshaid alias Noora during alleged cross-firing as mentioned above.
13.In view of the above given situation it is very important to analyze the defence taken by the appellant Muhammad Ilyas. According to the I.O./PW-8 the appellant got recorded his first version three days after the occurrence. The story narrated by the appellant in his statement recorded under Section 342 Cr.P.C. stands reflected verbatim in Paragraph 7 of this judgment. It has not been supported by any independent evidence to prove cross-firing. Statedly, he produced the gun on the day of occurrence but there is no evidence on record as to recovery of any empties from the spot. So. keeping,these factors in view read with the belated first version we find that story of cross- firing has been cooked up to distort the real facts of the case. It may also be mentioned here that the eye-witnesses PW-2 and PW-3 were put to very lengthy cross-examination, a considerable portion of which relates to number of suggestions made to them in respect of the defence taken by the appellant but surprisingly to prove these suggestions there is not an iota of evidence available on record to give some edge to the defence. An effort was made to summons (Mark-A)
Muhammad Afzal etc. as defence witnesses. In this regard the statement of Muhammad Nawaz, ASI, examined with the permission of the Court as CW-1 shows that nothing was brought on record that the DWs avoided service at the instance of the complainant because the observations of the learned trial Court in this respect seem to be justifiable that this was an attempt on behalf of the defence to save the skin of the main culprit from the extreme penalty of death. We are also constrained to observe that the .1.0. tried to give concession to the appellant during his cross- examination regarding the defence plea but admittedly be made no reference thereof in any Zimni of his investigation. So, therefore, no value can be attached to such concession given at the trial for some extraneous considerations usually done by the police officials to favour the accused party.
14. Now coming to ocular account, careful perusal of the statements made by the eye-witnesses PW-2 and PW-3 makes us to believe that the same were impressive, confidence inspiring and trust worthy and despite having subjected to lengthy cross-examination, they struck to their prosecution story as narrated in the FIR Exh.PA/1 as well as in the examination-in-chief apart their statements with consistency and resilience. As regards the plea of absence of these witnesses at the spot raised by the learned defence counsel the mere their absence at the time of identification of the dead body of Jamshaid alias Noora, deceased is not sufficient to prove it they categorically rejected the suggestion put to them in this respect. Muhammad Ilyas (PW-3) is an independent witness with when no animosity or any kind of hostility stands proved on record. The complainant, though deceased's brother but against him also, we do not find anything to believe that he had any ill-will against the appellant or his co-accused brother (since acquitted). Rather their statements show that they were present at the Tea Khokha of the deceased in some other business. Muhammad Ilyas. PW-3 had gone there to purchase diesel oil. They were attracted to the brawl of the aforesaid two groups with intention to separate them and then to their utter surprise the appellant had nourished grudge who brought double barrel gun from his nearby shop and shot at the deceased for which they could not even imagine and so may be had they been questioned as to why they did not identify the dead body they could have come up with some plausible answer thereto. There is also no other reliable evidence to prove their absence. On the other hand, Muhammad Ilyas, PW-3 an independent witness supported the statement of Muhammad Aslam, the complainant/PW-2 on all material points by re-affirming their earlier stance taken before the police. Similar is the case of the statement of the I.O./CW-1 who did not differ them on the crucial aspects of the prosecution story. The discrepancies referred to by the learned defence counsel being immature were rightly ignored by the learned trial Court. The ocular account given by the PW-1 and PW-2 is also find in line with the medical evidence and so is believed.
15.We gather from the above discussion that the defence story put up by the appellant is highly improbable, illogical and unbelievable. It is proved on record that after the brawal was over Muhammad Anwar, etc. had left for their village. There is evidence of cross-firing which fact also stands established by non-joining of Anwar, etc. party in the police investigation. The appellant also did not move any senior police officer to challenge the investigation concluded by the I.O. PW- 2 which shows that he had no complaint against the conduct of the I.O. during the course of his investigation and simultaneously finding him Involved in this case. So, as far as involvement of the appellant in the commission of offence resulting in death of the Jamshaid alias Noora is concerned, the prosecution has proved the same beyond any reasonable doubt.
16.Coming to the alternate relief sought for, there 'is much strength in the arguments advanced by the learned defence counsel for lesser punishment upon the appellant. We have no doubt in our minds that there existed no motive behind the occurrence. As earlier observed, the cause or reason that generated the brawl between the aforesaid two parties as well as the one behind the occurrence under reference is also shrouded in mystery. So, when there are no reasons brought on record as to how the occurrence took place and there also exists no previous enmity between the parties before us, we find it sufficient to prove existence of mitigating circumstances and as a result to accept the defence plea of lesser punishment 'Abdul Rasheed alias Babu Vs The State"
(1984 SCM R 1184) is referred to.
17.After the brawl as mentioned above was over, the prosecution has proved that the appellant had rushed to his shop and within no time came back with a double barrel gun and made a fire at the deceased in the heat of passion. It appears that he took the intervention of the deceased and his brothers to be their insult in the presence of so many people and so be took the life of Jamshaid alias Noora without any pre-meditation on his part before the commission of the murder. So, extreme penalty of death could not be imposed. So, in some way it was a sudden act on his part to vindicate his insult. In this regard reliance is made to the case of Sher Muhammad Vs Muhammad Hayat (1979 SCM R 210).
18.The nutshell of the above discussion is that this Criminal Appeal is dismissed. However, finding it a fit case for lesser punishment,the death sentence awarded to the convict-appellant is converted into life imprisonment: 19.Murder Reference is answered in the Negative.