' M.A. ZAFAR, J.--- This judgment will dispose of Criminal Appeal No,1816 of 2002 filed by Muhammad Hafeez appellant, who was convicted and sentenced by learned Sessions Judge, Khushab vide impugned judgment, dated 23-10-2002 as under:--- Under section 302(b), P.P.C.
' Death as Tazir and to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default thereof to further undergo six months' S.I.
2. Murder Reference No,791 of 2002 for confirmation of death sentence or otherwise of the appellant shall also be answered through this single judgment.
3. Briefly stated the facts of the case as disclosed by Nusrat Fateh Ali complainant are that on 27- 5-2002 at about 9-00 a.m. He along with his nephew Mubasher Iqbal was present in the field of Muhammad Hussain for grazing their cattle. He was present there with the cattle, whereas Mubashar Iqbal was present near Pacca road towards East side when at about 11-00 a.m.
Muhammad Hafeez came there with his bull-cart loaded with earth, who was going towards Abadi of the village and was having a knife with him. He made Lalkara to Mubashar Iqbal on seeing him that he will teach a lesson to him for insulting him and launched attack on him with his knife and inflicted two knife blows on front and left side of his abdomen. The occurrence was witnessed by Muhammad Yasin and Muhammad Ramzan also, who were present nearby and reached there immediately. It was further stated in the F.I.R. That during the scuffle/struggle Muhammad Hafeez also received injuries from the hands of Mubashar Iqbal who then fled away from the spot by waiving his knife. Mubashar Iqbal was taken to Civil Hospital, Mitha Tiwana but due to his precarious condition he was referred to D.H.Q. Hospital, Jauharabad. However, on reaching there he died at 2-00 p.m.
' Motive behind the occurrence was that Muhammad Hafeez had developed illicit relations with Mst. Farzana, Phuphizad of Mubashar Iqbal and was abstained by him to have such relations and he had also insulted Muhammad Hafeez in this regard, on which the said assailant had borne grudge against Mubashar Iqbal in his heart due to which he committed his Qatl-e-Amd.
4. After registration of the case Muhammad Hayat S.-I. P.W.10 took over ,the investigation. He proceeded to D.H.Q. Hospital Jauharabad where dead body of Mubashar Iqbal was lying, prepared injury statement Exh.P.H. And inquest report Exh.P.J. Recorded the statement of witnesses under section 161, Cr.P.C. Then he inspected the spot, took into possession blood-stained earth vide memo. Exh.P.D., cart belonging to the accused P.5 vide memo. Exh.P.E., prepared rough site plan Exh.P.N. Then on the same day he arrested the accused from his house and found him injured, prepared his injury statement Exh.P.K. And on 2-6-2002 he got recovered knife P.4 stained with blood, which was taken into possession vide memo. Exh.P.C. However, after completion of remaining investigation, the accused was chalianed to face the trial.
5. At the trial, the prosecution in order to prove its case produced 10 witnesses in all, out of them P.W.1 Nusrat Fateh Ali (complainant) and P.W.2 Muhammad Yasin eye-witnesses of the occurrence, P.W.3 Ghulam Rasool in whose presence Investigating Officer secured bloodstained earth from the spot, P. W.4 Abdul Shakoor who identified the dead body of the deceased in hospital, P.W.5 Muhammad Shahbaz in whose presence Investigating Officer took into possession bull-cart belonging to the deceased, P.W.6 Dr. Gulzar Yousaf medically examined Mubashar Iqbal deceased when he was in an injured condition and also conducted post-mortem examination on his dead body, P.W.7 Muhammad Mustafa Patwari/draftsman prepared scaled site plan Exh.P M., P.W.8 Muhammad Aslam, Head Constable to whom Investigating Officer gave him one sealed parcel containing blood-stained earth, P.W.9 Amanullah constable a formal witness who escorted the dead body and P.W.10 Muhammad Hayat S.-I. Investigated the case. Learned D.A. After giving up Muhammad Ramzan, Nazakat Ali, Amir Hamza and Amanat Iqbal P.Ws. Being unnecessary and tendering reports of Chemical Examiner regarding earth Exh.P.O. Regarding knife Exh.P.Q. Reports of Serologist as Exh.P.R. And Exh.P.S. Respectively and also producing attested copy of birth certificate of Muhammad Hafeez accused as Exh.P.T. Closed the prosecution case, whereas the statement of the accused was recorded under section 342, Cr.P.C. And on a question as to why this case against him and why the P.Ws. Deposed against him, he replied that the P.Ws. Are close relatives of the deceased, they have made false statements to conceal the aggression of the deceased and while claiming his innocence he produced Photostat copy of F.I.R. Drafted by Muhammad Hayat S.-I. As Mark "A" in his defence however he did not opt to examine himself on oath under section 340(2), Cr.P.C. However, after conclusion of trial, 'the accused was convicted and sentenced by the learned trial Court as stated above.
6. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellant submits that the F.I.R. Was recorded after the deliberation and consultation inasmuch as in Mark "A", the name of Muhammad Iqbal was mentioned as an eye-witness but later his name was substituted with the name of Muhammad Ramzan. According to learned counsel, no motive laid with the appellant to commit the crime rather it was tutored and introduced with the active connivance of investigator and this was the reason that no witness of the alleged motive was mentioned in the F.I.R. Further submits that both the eye-witnesses are closely related to the deceased and there is no independent corroboration to their testimony.
' It is argued with emphasis that it is a case of two versions; one put by the prosecution and the other set up by the defence and if both the versions are put in juxtaposition, the version of the defence is reasonably possible and nearer to the truth. It is maintained by learned counsel that in fact the complainant party launched attack upon the accused and he in order to save his life, inflicted two injured on the person of the deceased after himself having received three injuries from the hands of the complainant party. According to learned counsel, it was also the first version of the appellant but the Investigator colluded with the complainant party and did not bring on record any thing favourable to the accused.
' The nutshell of the arguments of learned counsel for the appellant is that it is a case of self- defence and not intentional murder.
7. On the other hand, learned Additional Prosecutor-General assisted by learned counsel for the complainant submits that ocular account in this case is fully corroborated by medical evidence and recovery of knife at the instance of the appellant. He further submits that there is no mitigating circumstance in favour of the appellant for the reasons that the injuries on the person of the appellant are simple in nature and those being caused with friendly hand cannot be ruled out. He supports the judgment of the learned trial Court.
8. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Mubashar Iqbal deceased is real paternal-nephew of the complainant Nusrat Fateh Ali. The occurrence in this case had taken place at 11-00 a.m. On 27-5- 2002 within the revenue estate of Chak No,40/MB, which is at a distance of five miles away from Police Station Mitha Tiwana, District Khushab while the matter was reported to the police at 3-00 p.m. The same day by Nusrat Fateh Ali and the formal F.I.R. Exh.P.A. Was recorded by Muhammad Hayat S.-I. The occurrence was allegedly witnessed by the complainant, Muhammad Yaseen and Muhammad Ramzan. They on seeing the occurrence rushed towards the scene of occurrence and during the scuffle, Muhammad Hafeez appellant was also injured at the hands of the deceased.
The time, date and the place of occurrence is admitted by the convict appellant. The appellant had tried to make it a case of two versions; one put forth by the prosecution and other introduced by the appellant.
' The prosecution furnished the ocular account through the mouth of Nusrat Fateh Ali and Muhammad Yasin P.Ws. 1 and 2 respectively. Both these P.Ws. Gave full details of incident, the role played by the appellant, the weapon of offence and also the seat of injuries on the person of the deceased. Both the eye-witnesses had no or enmity to falsely depose against the appellant. They being relation of the deceased or the complainant, their testimony cannot be discarded solely on this ground. Both the eye-witnesses were cross-examined by the defence at length but no dent could be created in their statements. It is to be kept in mind that the appellant had admitted the occurrence but with a different stance.
' Dr. Gulzar Yousaf P.W.6 conducted post-mortem examination on the dead body of the deceased at 12-30 p.m. On 27-5-2002 and found the following injuries on his person:--- "(1) An incised wound 2 x 1/2 c.m. In left subcostal region, 7 c.m. From midline and 5 c.m. Below the left costal margins.
(2) An incised wound 1-1/2 c.m. x 1/2 c.m. On lower abdomen, 6 c.m. Below the umbilicus in mid line, omentum was coming out."
The ocular account furnished by two eye-witnesses is fully corroborated by medical evidence. The doctor opined that the injuries were caused by sharp-edged weapon and the duration between death and post-mortem as being four hours fits in with the time of occurrence alleged by the prosecution.
' So far as, motive is concerned, from the trend of cross-examination of P. Ws. 1 and 2, it is sufficiently proved inasmuch as suggestion was made to P.W.1 that a Punchayat had been convened in the matter of said illicit relations and the accused had offered his innocence there.
The motive for committing the murder of Mubashar IC Iqbal at the hands of convict appellant is thus, proved on record and at the same time it may be the reason to implicate the accused with exaggerated version. Motive is a double-edged weapon and it cuts both ways.
' Now we take up the case of defence. The appellant while admitting the occurrence alleged that he was firstly attacked by Mubashar and Farid armed with knives and he received three injuries and it was thereafter that he in order to save his life and while exercising his right of self-defence, snatched knife from Farid and injured Mubashar Iqbal.
' There is no denying the fact that Muhammad Hafeez appellan was examined by the doctor on the same day of occurrence and was brought to the doctor by the police and the doctor observed three injuries with sharp-edged weapon on his person:--
(i) An incised wound 2 x 1/2 c.m. On laterally left side of forehead.
(ii) An incised wound 2 x 1/2 c.m. On front of right arm 20 c.m. Below shoulder joint.
(iii) An incised wound 6 c.m. On centre of left palm extending medially.
' All the injuries were caused sharp-edged weapon within a duration of about 8 to 15 hours. Injury No,1 was declared as Shajjah Khafifah. Injuries Nos.2 and 3 were Ghair Jaifah Damiyah in nature Exh.P.K. Is his injury statement.
But we may observe here that Mubashar Iqbal deceased having received injuries below the left ribs and other below the umbilicus, with knife, it was not possible for him to snatch knife from Farid and give injuries to Hafeez appellant and too on forehead, right arm below shoulder joint and left palm.
' The appellant in his statement under section 342, Cr.P.C. Did not take the special plea of right of self-defence. He even neither opted to make statement under section 340(2), Cr.P.C. Nor produced any evidence in support of his defence plea.
' We, therefore, rule out of consideration the defence plea of the appellant. In fact both the parties have not come to the Court with clean hands inasmuch as both the eye-witnesses namely, Nusrat Fateh Ali and Muhammad Yasin contradicted each other so far as receiving of injuries by the appellant is concerned.
' Nusrat Fateh Ali P.W.1 stated that during the struggle the accused also received injuries while Muhammad Yasin P.W.2 deposed that during the struggle Muhammad Hafeez was injured from his own knife.
The law is that where the parties do not come to the Court with the true story and 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. Reliance is placed on Syed Ali Bepari v. Syed Nibaran Mollah and others PLD 1962 SC 506 and Zahid Pervaiz and another v. The State PLD 1991 SC 558.
' From the above resume of the evidence on record and examining the facts and circumstances of the case in the light of law laid down in Syed Ali Beopari (supra), we are of the considered opinion that the prosecution has proved its case against the appellant beyond any shadow doubt, but both the parties have tried to minimize their role in the occurrence, so the conviction and sentence recorded against the appellant the learned trial Court is maintained. However, there are some mitingating circumstances for lesser sentence and those are:--- The eye-witnesses contradicted each other so far as injuries on the person of Muhammad Hafeez appellant is concerned inasmuch as Nusrat Fateh Ali P.W.1 stated that during the struggle the appellant also received injuries while Muhammad Yasin P.W.2 stated that Hafeez was injured with his own knife.
(2) The deceased was grazing the cattle while according to the case of the prosecution itself, the appellant was going towards Deh on a bull cart having loaded mud on it on Puma road and both met per chance, so it was not a case of premeditation rather there is every possibility that the occurrence had taken place at the spur of the moment in which both the parties received injuries.
' Here we may also rely upon the case of Muhammad Nawaz v. State PLD 2005 SC 40, wherein their Lordships of the Honourable Supreme Court of Pakistan ruled that the benefit of all favourable instances in the prosecution evidence must go to the accused regardless of the fact whether he has taken such plea or not.
' So by taking above two factors as extenuating circumstances, we though maintain conviction of the appellant under section 302(b), P.P.C. But reduce the sentence from death to imprisonment for life with the benefit of section 382-B, Cr .P. C. However, the sentence of compensation and in default thereof is maintained in toto. The death sentence of the appellant is not confirmed and Murder Reference is answered in the "Negative".