' MUAHMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,482 of 2002 filed by Nadeem Asif alias Mithu, Muhammad Shafqat alias Shaukat and Muhammad Hussain- appellants, who along with Mst. Rashidan Bibi, Mst. Musarrat Bibi, Mst. Shamas Bibi, Mst. Razia Bibi and Mst. Gulnaz Bibi faced trial in case F.I.R. No,441, registered at Police Station Khanqah Dogran, District Sheikhupura, on 29-9-1999, for offences under sections 302/324/ 337-A/148//149, P.P.C., before learned Additional Sessions Judge, Sheikhupura, who after conclusion of trial, vide his judgment, dated 29-3-2002 convicted the appellants as under:---
(1) Nadeem Asif @ Mithu under section 302(b), P.P.C.
Death with compensation of Rs,1,00,000 or in default six months' S.I.
(2) Muhammad Shafqat @ Shaukat under section 324, P.P.C.
Seven years' R.I. With fine of Rs,10,000 or in default two months' S.I.
(3) Muhammad Hussain under section 337-A(i), P.P.C. Two years' R.I. With fine of Rs,2,000 as.
Daman.
2. Murder Reference No,191 of 2002 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Exh.P.A. Lodged on the statement of Abdul Ghafoor- complainant (P.W.1) are that on the fateful day at 8-00 a.m. He along with Abdul Aziz (his brother) and one Nasir Ahmad were sitting at their Dera. Other brother of the complainant Muhammad Younis and one Muhammad Hanif were going towards the village. When they reached near the sugarcane field belonging to Muhammad Hussain, Muhammad Hussain armed with stick, Shaukat and Nadeem alias Mithu armed with .12 bore guns emerged from the sugarcane field. Muhammad Hussain raised Lalkara thereupon Shaukat fired at Muhammad Hanif, which hit him on the right side of abdomen and he fell down. Nadeem caused fire which landed on the right lower side of abdomen of Muhammad Younis. He also fell, down. On their hue and cry Muhammad Hussain, Mst.
Rashidan Bibi, Mst. Musarrat Bibi, Mst. Shams Bibi, Mst. Razia Bibi and Mst. Gulnaz Bibi, all armed with Dandas, came to the spot. Mst. Rashidan Bibi inflicted Sota blow on the right eye of Abdul Aziz. Mst.
Musarrat Bibi gave Sota blow on the head of Abdul Aziz. Mst. Gulzar Bibi, Mst. Shmas Bibi and Mst.
Razia Bibi also gave Sota blows to the complainant and others, on their different parts of body.
Meanwhile, Latif and Majeed sons of Ibrahim also came there and rescued the complainant party from the accused and witnessed the occurrence. The injured were shifted to the hospital. Injured Muhammad Younis and Muhammad Hanif were referred to Mayo Hospital, Lahore, where Muhammad Younis succumbed to the injuries on 30-9-1999.
4. The motive behind the occurrence was that three years prior to this occurrence, Muhammad Hanif caused injuries to Shaukat Ali but the matter was patched up. The accused for that grudge caused injuries to them.
5. After registration of formal F.I.R., the investigation of the case was taken over by Liaqat Ali, A.S.- I./P.W.7. He visited the spot and secured the blood-stained earth vide memo. Exh.P.D. And completed the other formalities. On 30-9-1999 he received information regarding death of Muhammad. Younis, thus, he reached Mayo Hospital, Lahore. After preparing inquest report Exh.P.J.
He sent the dead body for post-mortem to D.H.Q., Sheikhupura, on 7-10-1999 Atta Muhammad Inspector/ P.W.12 arrested Shaukat and Nadeem. On 13-10-1999 Naeem led to the recovery of gun P.6' from his residential house, which was taken into possession vide memo. Exh.P.F. Abdul Munaf, A.S.-I. P.W.10, arrested Muhammad Hussain on 16-10-1999, who led to the recovery of Sota P.5 from his house on 17-10-1999, which was taken into possession vide memo. Exh.P.E. After completion of investigation, the accused was sent up to face trial.
6. At the trial, the prosecution in order to prove its case produced 15 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.V., Serologist Exh.P.W. And that of Forensic Science Laboratory Exh.P.X. Closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence and false implication.
However, Muhammad Shafqat alias Shaukat has taken defence plea which is being reproduced hereunder:--- "The occurrence did not take place in the manner suggested by the complainant party. In fact, the deceased, complainant and others were aggressors. On the day of occurrence, I was carried sugarcane after harvesting the same from my land situated on the southern side of our field and when I reached near the Dera of complainant party, the deceased and his companions launched an attack and caused me injuries with Dangs. I raised alarm and upon hearing the same, Nadeem Asif co-accused reached to the place of occurrence from his Dera while holding a gun which was licensed in the name of his grand-father in order to rescue me but when he reached near and requested to my release, the deceased and his companions also attacked upon him and caused him injuries. During this quarrel, the deceased and his companions attempted to snatch gun from Nadeem co-accused but the same went off, as a result of which, Hanif and Younis sustained injuries. I was holding a sickle and when I was under attack I used the sickle from the side of its handle in order to defend myself. I and Muhammad Nadeem co-accused were also medically examined under the order of Judicial Magistrate. After the occurrence, the complainant party in connivance with the police fabripated a false story and after twisting the real facts to their own convenience, a false case was registered against me and almost my all the family members including womenfolk. The local police did not fairly conduct the investigation and subsequently the same was carried out by A.S.P. And S.S.P. As a result of final investigation, both the said officers accepted our version to be correct. The P.Ws. Are related to the deceased and they have made false statements."
' The accused did not appear as witness under section 340(2), Cr.P.C. However, Dr. Suleman Sultan Rana, A.S.P. And Syed Saood Aziz appeared a D.W.1 and D.W.2 respectively. Dr. Abbas Ali Zahid also appeared as C.W.1. After conclusion of trial, the learned trial Court while acquitting rest of the accused convicted and sentenced the appellants as stated above.
7. The learned counsel for the appellant at the very outset submits that it was a case of exceeding of right of self-defence and appellant Nadeem Asif did not deserve extreme penalty of death. As far as Muhammad Hussain is concerned, he was empty-handed and only simple injury was attributed to him; during investigation he was found to be innocent and he has already served out his sentence. As far as Muhammad Shafqat alias Shaukat is concerned, he was also found to be innocent during investigation. ,The recovery of gun would be of no consequence as the empties and the gun were kept in Malkhana and were sent together, which casts doubts on the credibility of the recovery evidence.
8. The learned Additional Prosecutor-General submits that the presence of the P.Ws. Is established by the fact as they have received injuries during the occurrence; that the ocular account is supported by the medical evidence and fully corroborated by the evidence of recovery, that the defence plea was worthy of no credence as life of the appellant was never threatened and instead of one two shots were caused. Furthermore the doctor, who examined Nadeem Asif and Muhammad Shafqat, stated that the injuries suffered by them could be caused by friendly hands and were not the result of violence.
9. We have heard the learned counsel for the parties at length and scanned the entire evidence.
10. It is a case of two versions. The presence of the P.Ws. Has not been denied by the appellants.
However, they. Have given their own version of the occurrence, which has been reproduced above in para-6. Both the versions are to be put in juxtaposition in order to find out which of the two was true or nearer to the truth.
11. According to prosecution case, about three years prior to the occurrence Muhammad Hanif P.W.
Had caused injuries to Shafqat alias Shaukat-appellant. However, the matter was patched up but the accused kept grudge in their heart. Abdul Ghafoor-complainant (P.W.1), Muhammad Hanif/P.W.2, Abdul Aziz/P.W.3 (cousin and brother of the complainant respectively and Abdul Majeed/P.W. (cousin of the complainant were produced in support of the prosecution case, Abdul Ghafoor and Abdul Aziz had received minor injuries, while Muhammad Hanif/P.W. Received fire-arm injury. All the injuries on the person of Abdul Aziz were attributed to ladies, who have been acquitted by the learned trial Court. The complainant challenged their acquittal by filing Criminal Appeal No,737 of 2002, but the same was dismissed vide order dated 25-9-2002 by the learned Division Bench. It may be noted here that the complainant involved the entire family members including mother, father and four sisters of Nadeem and Shafqat-appellants.
12. The occurrence took place at 8-00 a.m. While the matter was reported to the police at 7-40 p.m.
Almost after 12 hours while the police station was at a distance of 5 miles only. The explanation offered by the complainant in the F.I.R. Was that Muhammad Younis-deceased, Muhammad Hanif and Abdul Aziz P.Ws. Were firstly taken to Hospital, Khanqah Dogran. Their medico-legal reports were obtained. The Doctor referred Muhammad Younis and Muhammad Hanif to Mayo Hospital, Lahore. Both of them were taken to Lahore and after their admission at Lahore the complainant reported the matter to the police. The explanation in lodging the F.I.R. With considerable delay offered by the complainant is not supported by the documentary evidence and the statement of Dr. Khalid Javed. Perusal of the medico-legal reports of Abdul Ghafoor-complainant and Abdul Aziz P.W. Exh.P.C. And Exh.P.D. Reveals that Abdul Aziz was examined at 8-50 a.m., while Abdul Ghafoor was examined at 9-00 a.m. F.I.R. Number and date of registration have been mentioned in the.
Relevant column. The name of Faisal Javed, Constable (1743) has also been mentioned in the relevant column. Dr. Khalid Javed, who had examined the deceased and the inured P.Ws., stated that Faisal Javed Constable had brought Muhammad Younis, Muhammad Hanif, Abdul Ghafoor and Abdul Aziz. He further stated that constable also produced police docket for the medico-legal examination of the said persons and on the basis of said docket he incorporated F.I.R. Number as 441 and its date 29-9-1999. The statement of doctor and documentary evidence makes it manifest that the incident came into knowledge of the police soon after the occurrence, but the case was registered much later and only F.I.R. Number was incorporated in the police docket and papers.
This unfortunate dishonest practice has been adopted by the police recently in order to register the F.I.R. After carving out story and after obtaining all the available evidence. Our opinion finds support from the fact that the minor injuries on the person of complainant and Abdul Aziz attributed to Muhammad Hussain father of Nadeem appellant, his mother Mst. Rashidan Bibi and his four sisters.
13. Liaqat Ali, A.S.-I./P.W.7, who had registered the case, stated before the learned trial Court that he moved application Exh.P.M. And sent Abdul Ghafoor injured to the Hospital for medical examination.
During cross-examination he admitted that prior to recording of F.I.R. Information regarding the occurrence was received at the police station but it was not through the complainant. Perusal of Exh.P.M. (injury statement) reveals that the same was drafted by Liaqat Ali, A.S.-I. On 29-9-1999. It further denotes that Abdul Ghafoor was sent through Faisal Javed, Constable (1743) to the Hospital for his medical examination.
14. The above noted circumstances make it manifest that the matter was not reported at the police station for the first time at 7-40 p.m. Rather the whole time was consumed to formulate story in order to involve as many family members of the appellants as possible. The story given in the F.I.R., hence, is not worthy of any credence.
15. The motive was also set in the F.I.R. According to which, Muhammad Hanif had caused injuries to Shafqat three years prior to the instant occurrence. Neither the nature of injuries was mentioned nor any case was ever registered. The houses of the parties are closely situated. The complainant stated before the learned trial Court that the agricultural land of the accused and Dera of the complainant were adjacent. Despite this nothing happened during intervening three years. What was the real motive behind the occurrence remains shrouded in mystery.
16. The recoveries of guns at the instance of Nadeem and Shafqat appellants and their tallying with two empties collected from the spot is not worthy of credence as empties were kept at "Thana" till recovery of guns and both were sent together to the Forensic Science Laboratory.
17. In order to prove that the occurrence did not take place in the manner as stated by the witnesses, the defence has brought on record evidence worthy of credence. Dr. Suleman Sultan Rana, A.S.P., who was entrusted with the investigation of this case, appeared as D.W.1. According to him, it was Shaukat accused, who was attacked upon by the complainant party firstly, at that time Shaukat was neither armed nor he had caused any fire. According to his findings, the fire was made during scuffle between the accused and the complainant party. It was Nadeem accused, who had brought gun when the fight was in progress. He made first shot in the air and there was scuffle between him and the complainant party and in the process gun went off. However, according to him, he could not say whether fire was intentionally or accidentally. He further stated that it was only one shot which hit both the victims. He went on to say that, according to his opinion, Muhammad Hussain-appellant, who was father of Nadeem, was empty-handed and neither he nor any of the ladies caused any injury to anyone.
18. Atta Muhammad, S.H.O., who had conducted the investigation of the case, appeared as P.W.12 and conceded that on 7-10-1999 Shafqat was arrested and his version was recorded. First plea of Shafqat was that he was coming from sugarcane fields when he was confronted with Muhammad Younis deceased, Abdul Ghafoor and Majeed. They picked a quarrel with him and in order to defend himself he used sickle. According to his plea, the complainant side was beating him when Nadeem appellant reached the place of occurrence while holding gun. This witness also recorded the first version of Nadeem appellant, according to which, Nadeem at the time of occurrence was cutting fodder when he learnt about the fight between Shafqat and the complainant party, so he picked licensed gun of his grandfather reached the place of occurrence, where Abdul Ghafoor, Abdul Aziz, Abdul Majeed, Muhammad Hanif and Muhammad Younis were present. He warned the complainant party that the gun was loaded but Younis held his gun and during scuffle the gun went off causing injuries to Muhammad and Muhammad Hanif. In support of their pleas the accused also produced Dr. Abbas Ali Zahid as C.W.1, who stated that under the direction of Magistrate, on 14-10-1999 he had examined Shafqat and Nadeem appellants. According to his statement he observed six healed wounds on the person of Shafqat and two healed wounds on the person of Nadeem. The injuries had been caused by blunt weapon. P.W.12 Atta Muhammad also stated that Nadeem and Shafqat were got examined in obedience of the order passed by the Magistrate. He also stated that 11 persons, who have been named by him, appeared before him in support of the accused. All the above noted facts reveal that the prosecution has not come with whole truth.
19. Now coming to the defence plea, which find, support from the statement of D.W.1 to the extent that it was the complainant party, G which was aggressor but D. W.1 was not sure that fire was accidentally or intentionally. Dr. Nand Javed, who, had examined Muhammad, Younis deceased and Muhammad Hand injured P.W. On the date of occurrence appeared before the Court.
According to his statement, the injury on the person of Younis was on the abdomen just above the right hip bone with blackening and charring of skin, which means that the injury was caused from a very very close range. The injury on the person of Muhammad Hanif was also on the abdomen just near the hip joint. Blackening and charring of skin was observed around the wound. It was not even suggested to the doctor that the injury on the person of Muhammad Hanif was the result of the exit wound of injury caused on the person of Younis. It was suggested to him that after spreading the pellets could hit two different persons if they were standing close to each other. But in the instant case blackening and charring around the wound indicated that the injury was caused from almost point blank range and the spreading of pellets was not possible. It has also not been explained by the injured appellants that as to why they kept quite till their arrest and why they did not appear before the police or Doctor on the date of occurrence.
20. Upshot of the whole discussion is that both the parties have not come out with whole truth. It was observed by apex Court in the case of Syed Ali Bepari v. Nibaran Mullah and others PLD 1962 SC 502 that "here we may observe that in a case of thistype the parties do not generally come out with the true story. It is a normal incident of an "adversary proceeding" to minimize one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances".
21. After scanning the entire evidence we are of the opinion that initially quarrel took place between Shafqat and the complainant party thereafter situation worsened and Nadeem appellant used his gun. Thus, we alter the conviction of Nadeem Asif alias Mithu appellant from offence under section 302(b), P.P.C. To section 302(c), P.P.C. And reduce his sentence to 14 years' R.I. Benefit of section 382-B, Cr.P.C. Is given to him. Muhammad Hussain appellant has already served out his sentence and has been released .As far as Muhammad Shafqat alias Shaukat is concerned, it has been noticed by us that he was arrested on 7-10-1999 and remained in jail for about three years and four months. His sentence is reduced to the period already served out by him in Jail, as the same would meet the ends of justice. He is on bail, his bail bonds are cancelled and the sureties are discharged.
This appeal is partly allowed.
22. Murder Reference is answered in the negative. Sentence of death is not confirmed.