JUDGMENT M.A. ZAFAR, J. - This judgment will dispose of Criminal Appeal No. 1385 of 2002 filed by Zia-ur-Rehman appellant, who was convicted and sentenced by learned Addl. Sessions Judge, Hafizabad vide impugned judgment dated 30.7.2002 as under:-- Under Section 302(b), PPC.
Death as Tazeer with fine of Rs. 100,000/- and in default thereof to further undergo six months' R.I.
Murder Reference No. 661 of 2002 for confirmation of 'death sentence or otherwise shall also be.
Replied through this single judgment.
2. Brief facts of the case as disclosed by Muhammad Suleman complainant are that on 5:3.2001 at about 3.00 p.m. When he and his brother Abdul Majeed were bringing bundles of cloth on donkey cart from their Power Loom Factory to their house, towards Shahrah-e-Faruq-e- Vam, on their way, their brother Muzamil Ahmad also joined mem and when they reached Chowk Faruq-e-Azam, Naeem-ur-Rehman, who was sitting in front of his house started abusing them, which complainant and his brother ignored and went to their house. On the same day at about 3.0 p.m. When he and his brother Abdul Majeed were going to their Power Loom Factory for brining another lot of cloth and when they reached Chowk Faruq-e-Azam, suddenly, Naeerh-ur-Rehman armed with Danda, Zia-ur-Rehman armed with Screw-Driver/ Arshad Mehmood armed with Danda wand their father Yahya Mujjahid appeared from their house. Yahya Mujahid raised a lalkara and asked his sons to teach a lesson for having an altercation, Arshad Mehmood inflicted blow Of-his Danda, which hit Abdul Majeed at the back of his chest, Naeem-ur-Rehman gave a blow of Danda hitting Abdul fareed at his left shoulder. Then Arshad Mehmood caught hold of complainant from his collar and started pushing him. Listening to the noise, Muzammal Ahmad and Qasim approached there.
Yahya Mujjahid also gave slap at the face of Muzzamal Ahmad. Naeem-ur- Rehman and Zia-ur- Rehman, threw Abdul Majeed brother of the complainant on the ground and Zia-ur-Rehman inflicted injuries at the head of Abdul Majeed with his Screw-Driver due to which Abdul Majeed happened to be seriously injured. Muhammad Qasim and Muhammad Bilal, who witnessed the occurrence, separated them and accused persons fled away raising lalkaras. Complainant and his companions removed Abdul Majeed to Civil Hospital, Hafizabad in an injured condition where he was referred to General Hospital, Lahore and on 8.3.2001 he succumbed to the injuries.
3. After registration of formal FIR Ex. PJ, Ghulam Rasool, SI PW. 13 reached General Hospital, Lahore, received dead-body of Abdul Majeed deceased alongwith death certificate Ex. PN, then, prepared inquest report Ex. PH and injury statement- Ex. PG, he drafted an application for post-mortem examination Ex. PF, dispatched the dead body under the escort of Abdul Rahim FC to Civil Hospital, Hafizabad for autopsy, thereafter, proceeded towards the place of occurrence, inspected the spot, took into possession blood-stained earth vide memo. Ex. PA, also prepared site plan Ex. PO.
Recorded the statements of the witnesses u/s. 161 Cr.P.C. On 11.3.2001 he arrested Zia-ur- Rehman and Naeem-ur-Rehman accused and obtained their physical remand. During interrogation, Zia- ur-Rehman and ' Naeem-ur-Rehman accused got recovered Screw Driver P.4 and Danda, P.3, which were taken into possession vide recovery memo Ex. PD and Ex. PC respectively. On 24.3.2001 he arrested Muhammad Arshad and Muhammad Yahya accused. After completion of remaining formal investigation, all the accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 13 witnesses in all; ocular account was furnished by Muhammad Suleman PW. 10 and Muzamil Ahmad PW.
11. Dr. Captain Khalid Faruq, who conducted post-mortem examination on the dead-body of the deceased appeared as PW. 4 and Dr. Nusrat Abbas, who medically examined Abdul Majeed deceased in an injured condition on 5.3.2001 appeared as PW.
6. Dr. Aamer Ayub, who on death of Abdul Majid on 7.3.2001 issued death certificate Ex. PN appeared as PW.
12. Muhammad Imran in whose presence recoveries of Danda P.
3 and Screwdriver P. 4 were effected appeared as PW. 3 Maqsood Ahmad Bhatti, who prepared site plan Ex. PM. Appeared as PW. 8 Ghulam Rasool SI, who investigated the case appeared as PW. 13, thereafter, learned A.D.A. Tendered in evidence report of Chemical Examiner; Ex. PR, that of Serologist Ex. PS and closed the prosecution case, then, the statements of the accused were recorded u/s. 342, Cr.P.C. In which they pleaded innocence. Dr. Captain Khalid Faruq, Khadim Hussain and Muhammad Anees were examined as DW. 1 to DW. 3 respectively in this case. After conclusion of trial, accused Naeem-ur-Rehman, Arshad .Mehmood and Yahya Mujjahid were acquitted while Zia-ur-Rehman accused (appellant) was convicted and sentenced as stated above by the learned Trial Court.
5. After having read the entire prosecution evidence, statement of the appellant recorded u/s. 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellant submits that it is a case of delayed FIR in-as-much as the occurrence had taken place at 3.00 p.m. On 5.3.2001 while the matter was reported to the police at 12 30 a.m. On 8.3.2001. According to learned counsel, such a delay is sufficient, to demonstrate that the FIR was recorded after due deliberation and consultation. Next submits that the complainant in the FIR alleged no motive with the deceased to commit the murder of the deceased.
6. So far as, ocular account is concerned, it is maintained that the eye-witnesses are closely related to the deceased and there is no independent corroboration to their testimony. According to learned counsel, in fact the eyewitnesses were not present at the spot and this is the reason that there is conflict "between ocular account and the medical evidence so far injuries on the person of the deceased are concerned, it is argued that recoveries being joint one, they are of no help to the prosecution rather the recoveries are fake and planted upon the appellant.
Concluding his submissions, learned counsel submits that prosecution has failed to prove its case against the appellant and he is entitled to acquittal.
On the other hand, learned Deputy Prosecutor General submits that the prosecution has proved its case against the appellant through ocular account, which finds corroboration from medical evidence and also recoveries at the instance of the appellant. However, he supports the judgment of learned Trial Court In toto.
We have heared learned counsel for the parties at length and have perused the record with their able assistance. The deceased in this case is Abdul Majeed while the complainant is Muhammad Suleman, real brother of the deceased. The .Eye-witnesses of. The occurrence are Muhammad Suleman and Muzammal Ahmad PWs 10 and 11 respectively, In the instant case, the occurrence had taken place at 3.0 PM on 5.3.2001 at a distance of 2' A furlongs away from Police Station, City Hafizabad while the matter was reported to the police by Muhammad Suleman on 8.3.2001 and the formal FIR Ex: PJ was drawn by Sub-Inspector Ghulam Rasool at 12.30 a.m. On 8 3.2001.
It is alleged by the complainant in the FIR that the complainant's were four brothers: they have power looms factory at Kolu Road, Yahya Mujahid. Who is real paternal uncle, had a dispute over partition of the property with father of the complainant, because of this dispute, the complainant party and Yahya Mujahid are not on speaking terms but Yayha Mujahid and his sons are in the search to find an excuse to cause loss to the complainant and his other family members; it was on 5.3.2001 that the complainant was taking the lot of cloth on a donkey cart to his house situated at Faruq-e-Azam road and met Muzammal Ahmad his brother in the way; when both complainant and Muzammal Ahmad reached near chowk Faruq-e-Azam, Naeem-ur- Rehman, who was sitting in front of his house started them abusing but they tolerated the matter and went into their house.
It was next alleged by the complainant that at about 3.0 p.m. On 5.3.2001, the complainant alongwith his brother Abdul Majeed went to bring further lots of cloth from their factory and when were passing from Faruq-e-Azam chowk, all of a sudden Naeem-ur-Rehman armed with a danda, Zia- ur-Rehman armed with an iron screw driver, Arshad Mehmood armed with danda and Yahya Mujahid emerged there. According to complainant, Yayha Mujahid raised lalkara to teach a lesson upon which Arshad Mehmood gave a danda blow, which landed on the waist of Abdul Majeed and the second blow given by Naeem-ur-Rehman hit on the left shoulder of the victim (Abdul Majeed).
It is the case of the complainant that after the accused aforesaid had given danda blows to Abdul Majeed, accused Arshad Mahmood caught hold the complainant from his collar and pushed him.
On hearing the noise, Muzammal Ahmad, Qasim, Muhammad Bilal attracted to the place of occurrence. It is further alleged in the FIR that Yayha Mujahid gave slap at the face of Muzammal Ahmad, brother of the complainant. According to complainant, Naeem-ur-Rehman and Arshad Mahmood had thrown Abdul Majeed on the ground and Zia- ur-Rehman inflicted injuries with screwdriver on the forehead and head of Abdul Majeed. The injured was removed to Civil Hospital, Hafizabad by the complainant and other from where he was referred to General Hospital, Lahore and it was on 8.3.2001 that he succumbed to the injuries.
According to case of the prosecution, Arshad Mehmood and Naeem-ur-Rehman accused (since acquitted) gave danda blows on the person of Abdul Majeed deceased while Zia-ur-Rehman caused four injuries with screwdriver on the person of the victim.
There is no denying the fact that both the eyewitnesses, namely, PWs. 10 and'11 are real brothers of the deceased but they had no enmity or ill-will to falsely depose against the appellant. How the real brothers would leave the actual killer and falsely implicate another innocent person. Yahya Mujahid acquitted accused is uncle of Abdul Majid deceased and the present appellant being son of Yahya Mujahid is cousin of deceased and both the eye-witnesses. The occurrence had taken place in broad day light and both the parties are closely related to each other, so there was no question of mistaken identity. According to Ex. PK, the Medico-legal report of Abdul Majeed (deceased) shows that the injured was examined at 3.30 p.m, on 5.3.2001 when the occurrence had taken place at 3.00 p.m. In the column "Name of relative or friend of MLR" it is mentioned as Muhammad Suleman s/o Muhammad Ismail. Abdul Majeed, who was injured expired on 7.3.2001.
Dr. Khalid Faruq PW. 4, on 8.3.2001 conducted postmortem examination on the dead-body of the deceased and found the following injuries:-
(1) A lacerated wound 1 cm x 1/2 cm x bone and on the left side of forehead 3 cm above the left eyebrow.
(2) Lacerated wound 2 cm,-x 1/2 x penetrating deep through the lacrimal bone on the outer margin of left eye orbit.
(3) Contused swelling 5 cm x 31/2 cm bluish black colour on the outer part of left eye brow and left upper eyelid.
(4) Bluish black contused swelling 6 cm x 4 cm on the right temporal area.
(5) Abrasion 114 cm x 14 cm on the back of left abdominal.
(6) Abrasion 10 cm x 14 cm on the left scapular. Area.
According to the opinion of the doctor, the cause of death was excessive haemorrhage and shock as a result of injury No. 2, which was fatal and sufficient to cause death in ordinary course of nature.
This injury was attributed to the appellant. SO the ocular account is fully corroborated by medical evidence.
The recovery screwdriver at the instance of the appellant is of no consequence for the reasons that it stands admitted by the defence itself that the deceased Abdul Majeed received injuries with screwdriver.
Now we may discuss the defence version of the appellant. The appellant in .His statement u/s 342, Cr.P.C. Had admitted the occurrence but with a different version. Here we may reproduce reply to question No. 7 given by Zia- ur-Rehman appellant in his statement recorded u/s. 342, Cr.P.C.
"Private PWs are related inter se and related to Abdul Majeed deceased. I have no enmity or animosity against Abdul Majeed deceased, who was my first cousin. It is not a pre-planned or pre- concerted occurrence and I have no motive at all to commit the murder of Abdul Majeed deceased. The complainant party has suppressed the real facts of the case and did not approach this Honorables Court with clean hands.
In fact, Muhammad Suleman (complainant) Muhammad Tariq, Muzzamal Ahmad and Abdul Majeed deceased in furtherance of their common intention launched murderous assault on 5.3.2001 at 3.0 p.m. At my brother Naeem-ur-Rehman while armed with Danda. Wrench and screwdriver and inflicted injuries at the person of Naeem-ur-Rehman co-accused and gave, beating to my brother Muhammad Suffyan. I have installed embroidery machines in one portion of my house and was repairing said machine with screwdriver. All of a sudden I heard a noise of quarrel outside in front of my house and saw my brother Naeemrur-Rehman in' injured condition and blood was oozing from the head of Naeem-ur-Rehman. The complainant party was also giving beating to my younger brother Muhammad Suffyan. Free fight ensued between us and the complainant party in which Abdul Majeed also sustain injury. The complainant party was aggressor and I and my co-accused. Naeem-ur-Rehman were victim of aggression. My co- accused Naeem-ur-Rehman got medically examined on the same day through police but police city Hafizabad did not register our case and after delay of three days. Police registered case against me, my brothers and my father mala fidley. My father Yahya Mujahid and any brother Arshad were not present at the time of occurrence. We repeatedly requested the Police City, Hafizabad to register, the case against the complainant party but he did not do so and after releasing on bail, my father Muhammad Yahya filed a private complaint against the cc plainant party, which is pending adjudication in this Honorables Court."
A bare purusal of the above-quoted reply shows that according to convict appellant, free fight ensued between the parties, in which Abdul Majeed also sustained injuries. He has not given the details as to how and at whose hands, Abdul Majeed received injuries. Astonishingly, on the day and time of occurrence, according to defence version of the appellant, the accused were armed with a screwdriver apart from dandas and the appellant was also at the same time repairing a machine with a screwdriver. This similarity of weapon of offence creates doubts about veracity of the defence introduced by the appellant.
The alleged independent witness produced by the defence is Muhammad Anees DW.
3. This witness too had not given any details as to how and at whose hands, Abdul Majeed deceased received injuries.
To prove the falsity of the defence version of the appellant, we may also advert to Ex.DD {page 105 of the paper book). It was alleged in para 4 of the complaint filed by Muhammad Yayha Mujahid, father of the convict that Muzammal Ahmad, brother of the deceased gave a blow with wrench on the head of Naeem-ur-Rehman. Dr. Khalid Faruq while appearing as DW. 1 deposed that all the injuries on the person of Naeem-ur-Rehman were inflicted by blunt weapon. To substantiate the defence version besides Dr. Captain Khalid Faruq DW.1, who medically examined Naeem-ur- Rehman accused, appellant produced Khadim Hussain, ASI DW.2, who got- Naeem-ur-Rehman medically examined at 6.00 p.m. Subsequent to the medical examination of Abdul Majeed deceased at 3.30 p.m. . And Muhammad Anees DW.3. In support of their plea accused persons have not brought on record any details that how the complainant party was aggressor in the occurrence. The statement of DW. 3 does not get support from any other corner. Private complaint was filed by the accused on 26.7.2001 i.e. 41/2 months after the occurrence. The submissions of learned counsel for the appellant that after the registration of present case accused were arrested and they could not file the said Complainant well in time does not get support either from the prosecution evidence or the defence witnesses. Yahya Mujahid accused remained on pre-arrest bail as admitted by Muhammad Anees DW.3 and thus it cannot be said that on account of arrest of accused person in this case they could not file the complaint earlier. There .Is nothing on record to substantiate the plea of defence that in fact the complainant party was aggressor.- We therefore, rule out of consideration the defence version of the appellant.
So far as, delay in the FIR is concerned, we may observe that the occurrence had taken place at 3.00 p.m. On 5.3.2001; the injured was medically examined by the doctor at 3.30 PM, the same day, because of his serious condition, he was referred to General Hospital, Lahore according, to doctor Nusrat Abbas PW. 6, the injured was unconscious, vomiting as such was referred to General Hospital. According to Dr. Aamer Ayub PW, 12, who was posted as Medical Officer in General Hospital, Lahore the injured expired at 10.00 p.m. On 7.3.2001. The injured having received injury with a screwdriver at the head and being unconscious, the first priority of the complainant party was to save the life of the injured, which they did and sooner the injured lost his life at 10.00 p.m. On 7.3.20Q1, the matter was reported to Police at 12.30 (midnight).. There is no serious enmity between the parties. Muhammad Suleman PW. 10 stated during cross examination that:-- "We had no criminal or civil litigation with the accused ^ party prior to occurrence. Volunteered we had only dispute over property."
Ghulam Rasool, SI PW. 13 stated about the motive as under:-- "It is correct that motive of the occurrence was stated to be a dispute over a property between the parties however, no document was produced to establish said motive but complainant party produced oral proof in this regard. I did not record statement of any PW with regard to motive. I. Did not associate in investigation, the owner of donkey cart, who was present at the time of occurrence."
The ocular account being confidence inspiring and finding corroboration from the medical evidence, we are fully satisfied that the prosecution has proved its case against the appellant beyond any shadow of doubt. However, there are some mitigating circumstances in favour of the appellant and those are that although there is allegation that the present appellant who was armed with screwdriver gave four injuries at the head of Abdul Majeed deceased but there is only one lacerated wound penetrating deep on the outer margin of left eye orbit, with sharp edge weapon, other injuries are with blunt weapon its means that appellant has not repeated the blow, origin of fight has been shrouded in mystery, according to PW. 11 when he and other PWs reached at the place of occurrence, fight between accused party and Muhammad Suleman PW.
10. And Abdul Majeed was going on. Weapon used is not a formidable weapon, parties are closely related to each other, there is no serious enmity, something did happen before appellant gave blow of screwdriver, we are fortified in our view from the judgment of Honorables Supreme Court in Sher Ali's case (1980 SCM R 291) for awarding lesser sentence. There is every possibility that there was some sort of altercation and deceased might have been proactive and there is another possibility that one occurrence has been bifurcated in two occurrences without disclosing the interval in between the two, the house of accused is only at a distance, of 150/200 yards from the house of deceased, altercation never occurred between the parties prior to the occurrence as admitted by Muhammad Suleman PW. 10.
Resultantly, we though maintain conviction of the appellant u/s. 302(b), PPC but convert his sentence from death to Imprisonment for life with the benefit of Section 382- B, Cr.P.C. Sentence of fine and sentence of six months in default thereof is converted into compensation under Section 544-A, Cr.P.C. As no sentence of fine u/s. 302, PPC is provided under the law. The death sentence of the appellant Zia-ur-Rehman is Not confirmed and Murder Reference is replied in the Negative.
Death Sentence is not confirmed.