' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,1017 of 2002 filed by Tasawar Ahmad, who, along with Rizwan Rasheed and Rasheed Ahmad, faced trial in case F.I.R. No,40, registered at Police Station Ladhewala Warriach, District Gujranwala, on 16-2-2001, for offences under sections 302/34, P.P.C., before learned Additional Sessions Judge, Gujranwala, who after conclusion of trial, vide his judgment, dated 30-5-2002, while acquitting Rizwan Rasheed and Rasheed Ahmad, convicted the appellant under section 302(b), P.P.C. And sentenced him to death with compensation of Rs,3,00,000 or in default six months' S.I.
2. Murder Reference No,399 of 2002 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
3. According to F.I.R., the brief facts of the case are that on the fateful day, while the complainant Muhammad Ashraf was on duty at Old Powerhouse, WAPDA, his wife Mst. Pervin Begum informed him on telephone that sons of Rasheed Ahmad, Lumberdar, had fired at their son Fakhar-uz- Zaman. The complainant reached his house on motorcycle. Till then, Muhammad Nawaz and Mazhar Abbas had taken the injured to the Civil Hospital, Qila Didar Singh, where the doctor after giving first aid referred him to Mayo Hospital, Lahore, due to his precarious condition. Fakhar-uz- Zaman/injured succumbed to the injuries near Kamoke, while on his way to Lahore. According to F.I.R., Mazhar Abbas and Mushtaq Ahmad were the eye-witnesses of the occurrence, who informed the complainant that they were going on metalled road and Fakhar-uz-Zaman was ahead of them. When they reached in front of Dera of Rasheed Ahmad, Lumbardar, Rasheed Ahmad raised Lalkara that Fakhar-uz-Zaman be killed. Thereupon Tasawar Ahmad, who was armed with .30 bore pistol, caused three successive fires at Fakhar-uzZaman, two of them hit on the front of his chest while one hit on the back. Fakhar-uz-Zaman fell on the ground. In the F.I.R., Rizwan alias Janu, who was armed with rifle, was attributed aerial firing.
4. The motive behind the occurrence was the quarrel, which took place one day prior to the occurrence between Fakhar-uz-Zaman and Tasawar, as Tasawar stopped Fakhar-uz-Zaman from standing on the corner of the street but the matter was patched up by the intervention of the respectables. For that grudge Tasawar, Rizwan and Rasheed Ahmad, Lumbardar, had committed the murder with their common intention.
5. After receipt of information regarding the incident Shahid Mehmood, S.-I./P.W.13 proceeded to the spot, where he recorded the statement of Muhammad Ashraf/complainant Exh.P.F. And sent the statement. For registration of formal F.I.R. Through Hafeez Ullah, Constable. The complainant also handed over him MLR of the deceased. Thereafter he prepared injury statement Exh.P.H., inquest report Exh.P.J. And application for post-mortem examination Exh.P.K. He collected blood from the place of occurrence through cotton vide memo Exh.P.G. On 9-3-2001 he arrested all the three accused persons. On 16-3-2001 at the instance of Tasawar he recovered .30 bore pistol and took the same into possession vide memo Exh.P.B. After completion of investigation, the accused were sent up to face trial.
6. At the trial, the prosecution in order to prove its case produced 13 witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.P.M., Serologist Exh. P. N. And that of forensic Science Laboratory Exh.P.0, closed its case.. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence and false implication. However, Tasawar Ahmad took a specific plea of self-defence, which is being reproduced below:--- "I have been falsely involved in this case due to political rivalry and enmity. In the village there are two political rival groups namely Ayyaz Ahmad Group and Zulfiqar Group. The deceased Fakhar- uz-Zaman was dare devil and was against Zulfiqar (existing Nazam) and was a supporter of Ayyaz Aslam the rival candidate of Zulfiqar. As I and my family were the supporters of Zulfiqar, Nazim, so the deceased Fakhar-uz-Zaman was against me and my family. On the fateful day at the time of occurrence I was present in my drawing room along with a guest. The deceased Fakhar-uz-Zaman armed with pistol came there and entered into the Baithik and fired at me with his pistol which did not hit me. I was saved luckily. The deceased again put his finger on the trigger of his pistol in order to fire the second shot at me. During this period I picked up the licensed pistol of my guest and fired at the deceased in my self-defence when the deceased received the injury his finger was on the trigger on his pistol and fire was went off which hit the deceased on the lower part of his chest.
No PW was present at the spot. The police was informed immediately after the occurrence and the deceased was escorted for medical examination to Civil Hospital, Qila Didar Singh under the supervision of the police. Zulfiqar, Constable No,882 went with the injured (deceased) to Civil Hospital, Qila Didar Singh. No PW and family member of the deceased was present when he was shifted to Civil Hospital, Qila Didar Singh for his medical treatment. I only made one fire at deceased and I did not repeat the fire shot at the time of occurrence. The second shot received by the deceased was fired by himself when he was near to shoot inadvertently. The post-mortem report shows that there is a burning in injury No,2, while other injuries showing blackening. The deceased received only two injuries but according to the version of the complainant and the P.Ws.
The deceased received three fire shots which is not corroborated by any evidence. After the death of the deceased the complainant and the P.Ws. Had been summoned by the police and after concocting a false and fabricated story in connivance with the police. I and my co-accused have been falsely involved in this case by throwing a wider net. The occurrence had taken place in my Baithak and the deceased was in the door of Baithak at the time of occurrence. The blood was present in the door and on the stairs of the Baithak, but it has not been collected by the police dishonestly, and subsequently the deceased was shown present at the road at the time of occurrence, with mala fide intention. My first plea before the Investigating Officer was that I only fired at deceased in my self defence, a.Single shot but the Investigating Officer did not investigate the matter according to my version, which shows dishonest attitude on the part of the police. I have not committed any offence. The deceased was 'aggressor and was not Masoom-ud-Dam.
The story of the motive is false. No, PW had witnessed the occurrence. They falsely deposed against me and my family due to political rivalry. I am innocent. I myself appeared before the police and narrated my version."
' They did not appear as witness under section 340(2), Cr.P.C. They after placing on record certified copies of F.I.R. No,170 of 1999 Exh.D.G. And F.I.R. No,60 of 2000 Exh.D.H. Closed their defence. After conclusion of trial, the learned trial Court while acquitting rest of the accused convicted and sentenced the appellant as stated above.
7. The learned counsel for the appellant in support of this appeal has contended that both the witnesses were chance witnesses and their statements were belied by the medical evidence and the circumstances of the case that prosecution failed to prove motive that the dishonesty of the Investigating Officer is apparent from the record of the case, who without preparing memo of collection of empties and without depositing the empties with the Moharrar the same were shown to have been sent to Forensic Science Laboratory; that the recovery was planted and of no consequence; and that the defence plea was borne out from the circumstances of the case. Hence the appellant deserves acquittal as he acted in his self-defence.
8. On the other hand, the learned counsel appearing on behalf of the complainant submits that it is a daylight occurrence; that the occurrence stands admitted by the appellant himself; that after admitting the occurrence the appellant neither appeared himself in his defence plea nor produced any defence witness; that the defence taken by the appellant was not borne out from the circumstances of the case; and that no evidence was produced in proof thereof.
9. The learned Deputy Prosecutor General adopts the line of arguments advanced by the learned counsel for the complainant.
10. After hearing the learned counsel for the parties at length and scanning the entire evidence we are of the opinion that it is a case of two versions as the appellant has taken specific plea of self- defence, thus, both the versions are to be put in juxtaposition in order to appreciate, which of the two was true or nearer to the truth.
11. Muhammad Ashraf/complainant, father of the deceased, was not an eyewitness and his statement is relevant to the extent of setting the law in motion and motive behind the occurrence.
Mazhar Abbas, is nephew of the complainant, and Mushtaq Ahmad, who is brother of the complainant, were produced as eyewitnesses before the learned trial Court. Both of them had no special occasion to be present at the time of occurrence. Mazhar Abbas P.W.9 rightly admitted that he and Mushtaq Ahmed P. W.10 met per chance at the relevant time. The occurrence took place at 11-45 a.m. While the statement of the complainant was recorded at 2-00 p.m. At his house by Shahid Mehmood, S.-I./P.W.13, who had received information through some person while he was present in Maddu Khalil. There is no explanation whatsoever as to why the matter was not reported to the police for more than 2-1/2 hours. The A complainant stated before the learned trial Court that after receipt of information he returned to his house at 12-40 p.m. (Noon). He intended to go to the hospital but he remained in his house till arrival of the dead body. The dead body arrived at 1-15 a.m. But neither he nor any of his relatives informed the police. He further stated that the police arrived in the village at 2-00 p.m. After 40 minutes of arrival of the dead body and he did not inform the police till 45 minutes of the arrival of the dead body in the home, although, according to him, Mazhar and Nawaz remained present in his house till that time, who had told him about the occurrence. He added that,he and other P.Ws. Had been consulting about the registration of case during that period but they did not try to inform the police on telephone in spite of availability of facility. Mazhar Abbas also admitted that though the deceased while wounded was accompanied by four persons while he was being taken to Mayo Hospital, Lahore yet none of the companions thought it fit to report the matter at the police station, which fell on the way. We would like to refer here to the statement of lir. Ghulam Sarwar Cheema/P.W.4, who had initially examined Fakhar-uz- Zaman deceased while he was injured. According to his statement he examined Fakhar-uz-Zaman at 12-25 p.m. On the fateful day. He further stated that Fakhar-uz-Zaman was brought by Zulfiqar Ali, Constable No,882/P.W.6. His statement on oath is supported by the documentary evidence in the shape of medico-legal report Exh.P.C., which bears the name of Zulfiqar Ali, Constable No,882 and the names of none of the witnesses or relative has been mentioned in the medico-legal report.
Investigating Officer Shahid Mehmood, S.-I./P.W.13 admitted that Zulfiqar Ali, Constable 882, was with him while he received information about the occurrence at Maddu Khalil. All the above noted facts reveal that by 12-25 p.m. The police knew about the incident and rest of the time was consumed in deliberations and in preparation of story. The statement of both the eyewitnesses Mazhar Abbas and Mushtaq Ahmad are not convincing. Mushtaq Ahmad firstly stated that his statement under section 161, Cr.P.C. Was recorded by the police at the spot and not in the house of the complainant then took a 180 degree shift and stated that he was summoned after the police had reached the house of the complainant and he remained present in the house of the complainant in the company of police for one hour and in his presence the police recorded the statement of Muhammad Ashraf/ complainant and statement of Mazhar Abbas as P.W. He further stated that he remained present in the house of complainant while the police left his house and he did not know where the police had gone, he never joined the investigation of the case later and met the police only once when he was in the house of the complainant. The later part of his statement belies the earlier part of his statement. It is also not believable that he being uncle of the deceased he would go back to his house instead of remaining present with his brother and console him for the loss of his son. In his statement Mushtaq Ahmad further stated that the appellant caused two successive fires, which hit on the chest of the deceased. He was duly confronted by his earlier statement Exh.D.E., wherein it was stated that the appellant caused three fires, two hit on the chest while the third hit on the back. The improvement was made after going through the medical evidence, according to which, injury on the back was exit C wound. On the same point Mazhar Abbas simply stated that appellant fired at the deceased, which landed on the front of his chest.
He did not mention about the second or third fire in his examination-in-chief. He was also confronted with his earlier statement, wherein the appellant was attributed three fires including one which was an exit wound. If the P.Ws. Were present at the time of occurrence, they would not have committed such a blunder. The story of three effective fifes was created after seeing the dead body, which contained three wounds, two on the chest and one on the back. The inquest report Exh.P.J. Supports our view as in column No,10 of the report three injuries have been mentioned, two on the chest and one on the back and on the relevant page relating to facts of the case three injuries have been attributed to the appellant.
12. The medical evidence supports the prosecution case to the extent that the deceased lost his life due to fire-arm injuries but no further. As noted above, according to P.W.4 Dr. Ghulam Sarwar Cheema, Fakharuz-Zaman in injured condition was brought to RHC, Qila Dedar Singh by Zulfiqar Ali, Constable, at 12-25 p.m. And MLR was Janded over to him. He observed three injuries on the person of Fakhar-uz-Zaman. First one was on the right side of chest while second one was in the region of epigastrum and the third one was an exit wound. Dr. Muhammad Farooq P.W.1, who conducted post-mortem examination, further clarified that injury No,3 on the back of the deceased was an exit wound. He observed blackening around the wounds mentioned as injuries Nos.1 and 2, which means all the fires were shot from a very close range, while according to scaled site plan Exh.P.E.
Prepared in the presence of the witnesses the distance between the assailant and the deceased was about 16 feet, so D medical evidence also supports the view that both the P. Ws. Were not present at the time of occurrence.
13. According to F.I.R, the motive behind the occurrence was that a day earlier i.e. On 15-2-2001 altercation took place between the deceased and the appellant over standing of the deceased on the edge of metalled road of the street, the matter was patched up after intervention of the notables of the locality but the appellant and the acquitted co-accused kept grudge in their hearts. During trial the complainant admitted that he did not produce any independent witness to prove motive. P.W.13/Inverstigating Officer also admitted it to be correct that the motive could not be established during investigation. On the other hand, the complainant admitted that Zulfiqar Nazim was known to him and it was on record that case was registered against his deceased son for firing on the said Nazim. He further admitted that Ayyaz Aslam was opponent of said Nazim and it was correct that the complainant party was the opponent of Zulfiqar Nazim and case Was earlier registered against the deceased due to political rivalry. He also admitted that Mazhar P.W. Was also opponent of Zulfiqar Nazim. The appellant has brought on record certified copies of two F.I.Rs, Exh.D.G. And Exh.D.H,, which reveal that cases were registered at the instance of Zulfiqar against accused including Fakhar-uz-Zaman deceased for causing fires at Zulfiqar. So it stands established that the motive as set down in the F.I.R was only a fiction.
14. As far as the evidence of recovery of pistol at the instance of appellant and its tallying with the two empties recovered from the spot is concerned, it only proves the dishonesty on the part of the Investigating Officer. It also reflects as to how favourable report can be obtained from the Forensic Science Laboratory. The Investigating Officer admitted that he had not prepared any recovery memo about collection of crime empties from the place of occurrence during investigation. He also admitted that he did not mention in case diary the delivery of the crime empties to the Moharrar. He further admitted it to be 'correct that the recovery of crime empties was not mentioned in his inspection note and neither the presence of empties was shown in the rough site plan or scaled site plan nor in the inquest report. He went on to admit that it was not clear from Exh.D.F. As to how many crime empties were recovered from the spot. Abdul Naeem Tariq, A.S.-I.
Appeared as P.W.11. He stated that on 16-2-2001 he was posted as Moharrar at Police Station Ladhewala Waraich and on the said date sealed parcel containing bloodstained cotton was given to him, which he kept in- Malkhana and handed over the same to Iftikar Ahmed, Constable, for its transmission to the office of Chemical Examiner on 22-2-2001. He further stated that on 16-3-2001 Shahid Mehmood, S.-I./Investigating Officer handed over to him sealed parcel containing pistol, which was kept at Malkhana and was handed over to Iftikhar Ahmad, Constable, for its transmission to the office of Forensic Science Laboratory, Lahore, on 2-4-2001. He did not say a word about handing over of crime empties to him or transmission of the empties to the Forensic Science Laboratory. Iftikhar Ahmad, Constable, appeared as P.W.S. He only stated about delivering of parcels of bloodstained cotton and pistol to the concerned Laboratories and did not speak a word about parcel containing crime empties. It is not proved that the crime empties were ever sent to the Forensic Science Laboratory. It is a matter of great concern that even in such like circumstances favourable reports can be obtained from the Forensic Science Laboratory. In these circumstances no reliance can be placed upon the recovery evidence and we are of the opinion that the prosecution case is replete with doubts.
15. Now coming to the defence plea, which has already been reproduced above, neither the appellant himself appeared in support of defence plea nor he produced the Guest, who was present at the time of occurrence and whose Licensed pistol the appellant had used. The appellant even did not disclose the name of the guest. So-called guest was never produced before the Investigating Officer. 'According to defence plea the appellant was present in his drawing room along with guest when the deceased, who was armed with pistol reached there, entered the Baithak and fired at the appellant, who luckily escaped, but the fact remains that neither any empty was recovered from the Baithak nor any mark of bullet on any of the walls of Baithak was shown to the Investigating Officer. The deceased after receipt of injury fell on the ground but there is no evidence that his pistol used by him was given to the police or was found lying near the place where the deceased fell. The plea to the extent that the deceased received second injury through his own pistol is also not supported by any evidence. The plea of exercise of right of defence of body as put forward by the appellant is not made out in the above noted circumstances.
16. In short both the parties have not come out with true story, so incompleteness of tale would not deter us from drawing proper inferences from the evidence and circumstances of the case.
Reliance is placed on the judgment passed by the Honourable Supreme Court in the case of Syed Ali Bepari v. Nibran Mollah and others PLD 1962 SC 502. It appears that the deceased and the appellant, who were politically opposed to each other, came across and over passing of some remarks the situation worsened, which resulted into this unfortunate incident.
17. As a consequence for all what has been stated above, we alter the conviction of the appellant for offence under section 302(c), P.P.0 and reduce his sentence to 20 years' R.I. Benefit of section 382-B, Cr.P.C. Is given to the appellant. Order passed by the learned trial Court under section 544-A, Cr.P.C. Is set aside considering the circumstances of the case in view of judgment passed by the apex Court in the case of Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294. This appeal is partly allowed.
18. Resultantly, Murder Reference is answered in the negative and death sentence is not confirmed.