' S. ALI HASSAN RIZVI, J.---Muhammad Akhtar and Ghulam Abbas appellants on conclusion of trial in case F.I.R. No,86 dated 4-5-1998, (Exh.PA) registered under sections 302/324/336/ 334/452/34, P.P.0 . At Police Station Rohillanwali District Muzaffargarh, vide judgment dated 24-2-2003 handed down by the learned Additional Sessions Judge-II, Muzaffargarh, were convicted and sentenced as under:- ' Muhammad Akhtar.---Under section 302 (b)/34, P.P.C. And sentenced to death for committing `Qatil-i-Amd' of Abdul Nasir deceased with direction to pay a sum of Rs,50,000 to the heirs of the above-said deceased by way of compensation under section 544-A, Cr.P.C. And in default of payment thereof to further undergo imprisonment for six months' S.I. He was also convicted under section 460, P.P.C. And sentenced to 10 years' R.I.
' Ghulam Abbas.--- Under section 302(c), P.P.C. And sentenced to 10 years' R.I. With direction to pay a sum of Rs,25,000 to the heirs of the above-said deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo imprisonment for six months' S.I.
He was also convicted under section 460, P.P.C. And sentenced to 10 years' R.I. Benefit of section 382-B, Cr.P.C. Was also extended to him.
' Both the appellants have challenged their convictions and sentences before this Court through Criminal Appeal No,133 of 2003 which has been heard . By us along with Murder Reference No,155 of 2003 sent by the learned trial Court under section 374, Cr.P.C. Seeking confirmation of sentence of death awarded to Muhammad Akhtar appellant and we propose to decide both these matters together through the present consolidated judgment.
2. Concisely the facts of the prosecution case set up in the F.I.R. (Exh.PA) got lodged by Ghulam Qadir complainant (P.W.1) are that in the night between 3/4-5-1998 he along with his son Abdul Nasir (deceased), his brother Pir Muhammad (P.W.3) and Riaz Ahmad (P.W.2) was sleeping in the four-walls of Haveli along with their family members. At about 1-15 a.m. On the barking of dogs, he woke up and saw in the electric light that Muhammad Akhtar accused-appellant while having a plastic cane in his hand and Ghulam Abbas accused-appellant while armed with a Sota were standing on the head side of cot of his son Abdul Nasir (deceased) and within his view, appellant Ghulam Abbas removed `Khais' from his son while appellant Muhammad Akhtar poured acid containing in cane on his son. On hearing the shrieks of his son and hue and cry of the complainant, P.Ws. Muhammad Riaz Ahmad complainant (P.W.1) and Pir Muhammad (P.W.3) woke up and identified Muhammad Akhtar and Ghulam Abbas appellants in the electric light. They (P.Ws.) tried to capture the appellant but they succeeded in running away.
3. The motive behind the occurrence was stated to be that Muhammad Akhtar accused-appellant had suspicions of illicit liaison of his wife with Abdul Nasir (deceased), so due to the said grudge, Muhammad Akhtar and Ghulam Abbas accused-appellant in furtherance of their common intention committed house-trespass by night and poured acid on the son of the complainant.
4. The investigation of this case was conducted by Allah Bakhsh, S.I. (P.W.10) and Malik Liaqat Ali, S.I.
(P.W.5), and during the investigation, dead body of Abdul Nasir deceased was inspected, injury statement and inquest report were prepared, statements of the witnesses under sections 161, Cr.P.C. Were recorded, the dead body of the deceased was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, a formal site-plan of the place of occurrence was got prepared, on 25-7-1998 Muhammad Akhtar accused-appellant was arrested who on the next day, i.e, 26-7-1998 while in police custody led to the recovery of plastic cane (Exh.P.6) which was taken into possession through recovery memo Exh.PD and after completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court.
5. At the commencement of trial, the learned trial Court after supplying copies of the documents required under section 265-C, Cr.P.C. To the appellants framed the charge under sections 302/324/ 336/452/34, Cr.P.C. Against them on 24-11-1999, to which they pleaded not guilty and claimed to be tried.
6. During the trial the prosecution produced as many as thirteen witnesses in support of its case.
The ocular account of the incident in question was furnished by Ghulam Qadir, complainant (P.W.1), Riaz Ahmad (P.W.2) and Pir Muhammad (P.W.3) who also deposed about the motive while the medical evidence was adduced through the statement of Dr. Asif Jameel Ansari, (P.W.8), Dr. Zafar Ali Khan, (P.W.9) and Dr. Yousaf Saleem Khawaja (P.W.13). P.W.4 Abdul Sattar, Patwari on the pointing out of the witnesses and on the instructions of the police prepared scaled site-plan while P.W.6 Shafqat Hussain, A.S-I. On the statement of Ghulam Qadir complainant (P.W.1) recorded the formal F.I.R. (Exh.PA). Malik Liaquat Ali, S.-I. (P.W.5) and Allah Bakhsh, S.-I. (P.W.10) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or loss formal in nature.
7. In their statements recorded under section 342, Cr.P.C. The appellants denied and controverted the allegations levelled against them by the prosecution and professed their innocence. However, to a question that "Why this case against you and why the P.Ws. Have deposed against you?".
Muhammad Akhtar appellant replied in the following terms:-- "My father owns 8/9 Bighas agricultural land and I cultivate the same land, I also manage the related works and control of the land. Ghulam Qadir complainant and his son Abdul Nasir deceased laid from our brotherhood. Their agricultural land adjacent to ours. About two months prior to this occurrence Ghulam Qadir complainant irrigated his land forcibly out of our turn of irrigating our land. I along with my brother Ghulam Abbas co-accused went to take our turn of irrigating our land whereupon a fight took place. I had beaten Ghulam Qadir complainant, while Abdul Nasir deceased belaboured my brother Ghulam Abbas co-accused. I went to police station against Ghulam Qadir complainant. Police called for him at police station, where Ghulam Qadir and Abdul Nasir confessed their guilt. However, Ghulam Qadir complainant extended me threats that he would take revenge from me of his disgrace. Abdul Nasir deceased was bearing bad character and womeniser. Some unknown person thrown acid on him but the complainant roped me as well as my brother Ghulam Abbas in thiscase falsely due to previous grudge, party fiction and political rivalry. Local police wanted to kill me in police encounter with collusion of complainant, but I surrendered myself before the Honourable High Court, Multan through W.P.
No,4940/98 dated 15-6-1998, but local police showed my arrest on record on 25-7-1998. I am innocent. I did not hurl the acid on the deceased. In fact it is unseen occurrence but complainant has involved me in this case falsely just to take revenge of previous enmity."
' In reply to the aforesaid question, Ghulam Abbas appellant endorsed the similar reply with slight difference. However, both the appellants did not opt to make statements on oath under section 340(2), Cr.P.C., but they produced Muhammad Moosa Khan, Senior Headmaster, Govt. High School Maraba District Muzaffargarh as DW-1 in proof of the plea that Ghulam Abbas appellant was a juvenile at the time of the alleged occurrence.
8. Upon conclusion of the trial the learned trial Court, after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt convicted and sentenced them as mentioned and detailed above. Hence, both these matters before this Court.
9. The learned counsel for the appellants contends that it was an unseen incident and the complainant party had cooked up a false story in connivance with the police to falsely involve the appellants in the present case; that both the eyewitnesses had made false statements who were not present at the spot and also had not witnessed the occurrence; that the incident had not taken place in a manner as narrated by the eye-witnesses; that in fact the deceased was a man of bad character having illicit relations with different women who had been murdered by some unknown persons while throwing acid on him whereas the prosecution badly failed to prove any motive against the appellants for committing the murder of the deceased; that both the eyewitnesses were interested ones being related inter se and with the deceased closely, that there were contradictions in the statements of the P.Ws; that recovery of plastic cane (P.6), which was of general nature cannot provide any corroboration to the other evidence; and as such the prosecution evidence was not trustworthy, which has been wrongly relied upon by the learned trial Court for recording the conviction against the appellants. It has, thus, been canvassed by the learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond any reasonable doubt and they are entitled to acquittal by this Court.
9-A. Conversely, learned Prosecutor-General on behalf of the State opposes this appeal on the ground that the prosecution had succeeded in establishing the appellants' guilt to the hilt and, therefore, the convictions and sentences of the appellants recorded by the learned trial Court do not warrant any interference by this Court as the witnesses were independent and natural, who had no previous enmity, or grudge to falsely implicate the appellants in the present case by letting off the real culprit. It is also contended that the appellants were duly identified by P.W.1 Ghulam Qadir complainant and P.W.2 Riaz Ahmad in the light of electric bulb which was on at that time and even otherwise, the appellants and the complainant were residents of the same locality and there was no question of misidentification of the appellants. It is also averred that plastic cane (P.6) had been recovered from Muhammad Akhtar appellant which further corroborated the prosecution case; that P.W.1 Ghulam Qadir complainant being inmate of the same house was the natural witness; that medical evidence was also in line with the ocular account. It is further maintained that heinous offence was committed by the appellants; that the eye-witnesses sufficiently explained their presence at the spot at the time of occurrence and there was no reason to falsely implicate the appellants in the present case if they had not participated in the occurrence in hand; hence the Criminal Appeal filed by the appellants-convicts may be dismissed.
10. We have heard the learned counsel for the parties and perused the record with due care and caution.
11. The occurrence in the present case according to the prosecution had taken place during the night between 3/4-5-2008 within the area of Mauza Mahra Gharbi, 6 miles away towards West from Police Station Rohillanwali and on the statement of Ghulam Qadir complainant (P.W.1) case F.I.R. No,86 (Exh.PA) was registered by Shafqat Hussain, A.S-I. (P.W.6) at the Police Station on 4-5- 1998 at 10-20 p.m. Under sections 324/336/452/34, P.P.C. On the other hand, as Abdul Nasir deceased was severely injured with acid by the accused-appellant was taken to RHC immediately whereafter he was referred to Nishtar Hospital, Multan. Then Dr. Asif Jameel Ansari, (P.W.8) had medically examined Abdul Nasir deceased on 4-5-1998 at 6-20 a.m. Who was brought by Ghulam Qadir complainant (P.W.1) and also issued MLC (Exh.PH). The police station was at a distance of 6 miles away from the place of occurrence and time must have been consumed in taking the injured to the hospital for medical examination by the witnesses as Abdul Nasir deceased was severely injured with acid by the accused-appellant. In such circumstances the first priority of the complainant party was to save the life of the injured by taking him to the hospital which was quite natural. Moreover, taking of deceased to the hospital by Ghulam Qadir complainant immediately after the occurrence gives support that he was present at the time of occurrence. As such it is found that the F.I.R. Was not registered with inordinate delay in which names of the witnesses as well as the accused were duly mentioned with their roles.
12. To prove the ocular account the prosecution produced Ghulam Qadir complainant (P.W.1), Riaz Ahmad (P.W.2) and Pir Muhammad (P.W.3) Ghulam Qadir complainant (P.W.1) was father of Abdul Nasir deceased, P.W.3 Pir Muhammad was brother of Ghulam Qadir complainant (P.W.1) and father-in-law of P.W.2 Riaz Ahmad. Although the eyewitnesses were related inter se and with the deceased closely, but mere close relationship of the eyewitnesses with the deceased is not sufficient to discard their statements and also to declare them as interested witnesses as it has not been brought on the record that the eyewitnesses had any previous enmity or grudge to falsely implicate the appellants in the present case if they had not participated in the present occurrence.
Presence of P.W.1 Ghulam Qadir complainant being father of the deceased during odd hours of night in the house cannot be doubted which otherwise was quite natural. P.W.1 Ghulam Qadir complainant had categorically stated that he woke up on the barking of the dogs and in the light of electric bulb he saw that Muhammad Akhtar appellant had thrown acid on the body of Abdul Nasir deceased who woke up and made cries. Likewise, P.W.2 Riaz Ahmad and P.W.3 Pir Muhammad had also supported the statement of P.W.1. They remained, consistent on each and every detail of the occurrence, i.e, identity of the accused-appellant, the role ascribed to Muhammad Akhtar appellant, date, time and place of occurrence. All the eyewitnesses had given consistent, straightforward and confidence inspiring account of occurrence and the appellant had miserably failed to shatter, their credibility during the lengthy cross-examination nor could succeed in bringing on record any iota of evidence to show that the said witnesses had any malice or ulterior motive or enmity to depose falsely and implicate them falsely in the present case. No doubt during the cross-examination of these witnesses some discrepancies have been pointed out, but such minor discrepancies and contradictions cannot render the ocular testimonies unbelievable and un-trustworthy as all the witnesses have supported each other regarding the time, place and the manner in which the occurrence had taken place. Although it was a night occurrence but there was no possibility of misidentity of the real culprit as the appellant was correctly identified in the light of electric bulbs which were on at the time of occurrence at the place of incident. Even the appellant was resident of the same locality and was known to the complainant previously. So far the contention of the learned counsel for the appellants that Patwari (P.W.4) and the Investigating Officer had not mentioned about the presence of lightening of electric bulbs in the respective site-plans prepared by them is concerned, suffice if to say that all the eyewitnesses are unanimous on the point of identification of the accused and the role played by them and have stated that they had identified them in the light of electric bulb. However, not showing the same in the respective site plans by the Patwari and the Investigating Officer could be termed as an omission on their part but the same cannot adversely affect the prosecution case. Even otherwise, site-plan is not substantive piece of evidence rather the same is corroboratory in nature. Mere assertion of the appellant that the deceased had been murdered by some unknown person is not sufficient to exonerate him D from the commission of the offence. The substitution of the real culprit is a rare phenomenon and the appellant has failed to lead any evidence that why he had been nominated as the main accused to have thrown acid on the body of the deceased. During the cross-examination on the P.Ws. The defence had failed to gain anything in its favour for casting any doubt in the prosecution version. Hence, the ocular account furnished by the eye-witnesses is trustworthy and confidence inspiring, which E alone is sufficient to connect Muhammad Akhtar appellant with the commission of the crime.
13. Muhammad Akhtar appellant in the present case was arrested on 26-7-1998 by Liaqat Ali, S.I.
(P.W.5) who while in police custody led to the recovery of cane (P.6) from his residential Kotha in presence of the P.Ws. There is nothing on the record to disbelieve the recovery of cane (P.6) from the possession of Muhammad Akhtar appellant which has rightly been believed by the learned trial Court and the same also provides corroboration to the ocular account.
14. Medical evidence in the present case was supplied by Dr. Asif Jamil (P.W.8) who on 4-5-1998 had medically examined Abdul Nasir deceased while Dr. Zaffar Ali Khan (P.W.9) had conducted postmortem examination on the dead body of Abdul Nasir deceased on 21-5-1998. Both these P.
Ws. have furnished necessary corroboration to the ocular account and as per opinion of Dr. Zaffar Ali Khan (P.W.9) the cause of death was skin injury leading to septecimias shock and death. The injury was due to acid. It was ante-mortem in nature and sufficient to cause death in ordinary course of nature and as such the medical evidence in this case fully confirms and supported the testimony of ocular account.
15. Learned counsel for the appellants has also argued that as per statement of P.W. 13 Dr. Yousaf Saleem Khawaja, M.O. An application was received by him for recording the dying declaration of the deceased and he also made endorsement on the one side of the application that the deceased was fit to make statement but the prosecution failed to produce any such statement on the record though it was admitted by the Investigating Officer that his statement was recorded. We are afraid that the document which has not been produced by the prosecution its benefit can be extended to the defence, but we have to rely upon the evidence which is available on the record.
We have only to see the evidence which has been brought on the record and as discussed above the case to the extent of Muhammad Akhtar appellant was fully proved.
16. The defence plea raised by Muhammad Akhtar appellant while recording his statement under section 342, Cr.P.C.:---
(i) that there was a dispute over return of water between them and a fight had also taken place in this regard.
(ii) that Abdul Nasir deceased was a womenizer and was a man of bad character who was killed by someone else, and
(iii) that he was arrested by police of Police Station Cantt. Multan on 15-6-1998 on the direction of the Honourable High Court. is concerned, the same had not been substantiated through any cogent evidence and is not found correct as there was no previous enmity between Muhammad Akhtar appellant and the complainant whose son had been murdered to falsely implicate him as a main accused by attributing role of throwing acid on the body of the deceased. The substitution of the real culprit is a rare phenomena and we don't find anything on the record, which would show about false implication of the appellant in this case, if he had not committed this occurrence. As such the defence plea raised by the appellant cannot be accepted and is not sufficient to exonerate him from the commission of the crime. Even otherwise, the same has rightly been disbelieved by the learned trial Court.
17. For the foregoing discussion, we have no hesitation in holding that the prosecution had been able to bring home guilt to Muhammad Akhtar appellant beyond any shadow of doubt. Hence, his conviction recorded by the learned trial Court under sections 302 (b)/34, P.P.C. And 460, P.P.C. Is maintained. So far the quantum of sentence is concerned, the motive introduced by the prosecution itself was that the appellant had a suspicion of illicit liaison of the deceased with his wife and the possibility of committing this occurrence by Muhammad Akhtar appellant due to Ghairat cannot be ruled out. As such we feel that awarding of capital sentence is a harsh order and as such the death penalty awarded to Muhammad Akhtar appellant by the learned trial Court is converted to life imprisonment. However, the compensation is maintained and benefit of section 382-B, Cr.P.C. Will be extended to him. The sentence under section 460, P.P.C. Is also maintained.
Both the sentences shall run concurrently.
18. So far as case of Ghulam Abbas appellant is concerned, admittedly he was minor at the time of occurrence and it was not possible for a minor to scale over the wall and after committing the occurrence to run away in the manner as narrated by the eye-witnesses. Even otherwise, it is also] not believable that a person who was going to commit an offence would seek help of a minor just to pull khais from the body of the deceased. Moreover, possibility of false implication of Ghulam Abbas appellant being brother of Muhammad Akhtar appellant cannot be ruled out. Admittedly, he had not caused any injury to the deceased though he was armed with Sota and had not used the same during the occurrence. Even otherwise weapon of offence, Sota has also not been recovered from Ghulam Abbas appellant. There is no other evidence on the record to connect him with the alleged crime. Resultantly, Criminal Appeal No, 133 of 2003, is accepted only to the extent of Ghulam Abbas appellant, the impugned conviction and sentence recorded by the learned trial Court against Ghulam Abbas appellant is set aside and he is acquitted of the charge by extending benefit of doubt to him. He is on bail and shall discharged of the liability of the bail bonds. In view of above, this appeal is disposed of accordingly.
19. Consequently, Murder Reference No,155 of 2003, is replied in the negative and the sentence of death passed by the learned trial Court against Muhammad Akhtar appellant is not confirmed.