Zubda-tul-Hussain, J.--This judgment shall deal with and decide Criminal Appeals No, 10, 16 and 17 of 2003 and Criminal Revisions No, 23 and 24 of 2003 and Murder Reference No, 5 of 2003 as having arisen out of the same criminal case FIR No, 500/99, registered under Sections 302/324/148/149 PPC on 6.12.1999, at Police Station, City Sadiqabad, District Rahimyar Khan.
2. In the above said criminal case eight accused, namely, Shehzad alias Shada, Muhammad Shafique, Muhammad Sharif, Sohail Anjum, Muhammad Abdullah, Mst. Shamim Akhtar, Mst. Alia Bibi and Badar Munir were sent to face the trial. Except Badar Munir, accused/appellant, who being a juvenile was tried by the Juvenile Court, the ordinary Court of learned Additional Sessions Judge, Rahimyar Khan, tried all the other accused.
3. The learned Additional Sessions Judge vide judgment dated 18.1.2003 while acquitting Mst.
Shamim Akhtar and Mst. Alia Bibi, convicted and sentenced Muhammad Sharif, Shehzad alias Shada, Sohail Anjum and Muhammad Abdullah to imprisonment in terms they had already undergone. The learned trial Court, however, convicted the accused-appellant Muhammad Shafique and sentenced him under Section 302 (b) PPC to death. He was also directed to pay a sum of Rs, 100,000/- as compensation to the legal heirs of the deceased Muhammad Saleem alias Papu failing which he had to further undergo S.I. for six months.
4. The learned Additional Sessions Judge/Juvenile Court, Rahimyar Khan, convicted and sentenced Badar Munir, accused-appellant to the imprisonment for a period which he had already undergone. He was also liable to pay Rs,2000/- as 'Daman' to both the injured persons, namely, Sanaullah and Zakarullah each.
5. While the appellants, Muhammad Shafique, Shehzad alias Shada and Badar Munir have challenged their conviction and sentence the learned trial Court has sent the above mentioned Murder Reference for confirmation of death sentence imposed upon the accused-appellant, Muhammad Shafique.
6. Dissatisfied with the impugned judgments Sanaullah, complainant, has also filed Cr. Revision No, 23/03 for enhancement of sentence of the accused Shehzad alias Shada, Muhammad Sharif, Sohail Anjum and Muhammad Abdullah and Cr. Revision No, 24/03 for enhancement of the sentence of Badar Munir, accused-appellant.
7. It is alleged in the FIR by the complainant, Sanaullah, that on 6.12.1999 while he, his brother Muhammad Saleem alias Papu and one Sardar were working in their fields Mst. Munaza Riaz who was on her way to them was cut a joke by Shehzad alias Shada. Muhammad Saleem alias Papu re-acted by slapping the said Shehzad alias Shada. At 2.00 p.m. when their job was over they came to the house of Sardar. After a while the accused Sharif, armed with hatchet, Shafique, armed with dagger, Badar Munir, armed with 'soti', Sohail Anjum, armed with dagger, Abdullah, armed with hatchet, Mst. Shamim Akhtar, armed with 'soti' and Mst. Alia, armed with 'soh', Shehzad alias Shada, armed with 'soti' and Rashid Jat, armed with 'soh' came there. They raised `lalkard calling the deceased Muhammad Saleem alias Papu to come out and threatened that they would not let him go alive and would teach him a lesson for slapping Shehzad alias Shada. The complainant, his brother Saleem and Sardar came out of the house and tried to settle the matter but were not able to cool down the accused. Suddenly Muhammad Shafique, accused, inflicted a dagger blow to Saleem alias Papu on his left flank. Saleem tried to run away to save his life but the accused, Shafique, chased him and at some distance repeated the dagger blow inflicting on his left flank due to which he fell down on the ground. In the meantime Zakirullah, brother, Pervez, nephew and Mst. Sajida w/o Saleem reached the spot to save them from the assailants. Abdullah, accused gave hatchet blow from wrong side on the wrist of the complainant, Sharif, accused, inflicted head injury to Zakarullah with wrong side of the hatchet, Badar Munir, accused, inflicted 'soti' blow on the arm of Zakarullah, Sohail Anjum, accused, gave dagger blow on the chin of Pervez, Rashid Jat, caused 'soti' blow to Mst. Sajida on her right shoulder, Abdullah, caused hatchet blow on head of Mst. Sajida, Badar Munir also hit 'soh' on the left eye of the complainant. Mst. Shamim Akhtar hit 'soti' on the head of Sardar and Mst. Alia also hit Sardar with `soti' on his head. Thereafter all the accused went away from the place of occurrence while raising `lalkaras'. Muhammad Saleem alias Papu succumbed to the injuries. It is also stated in the FIR that during the occurrence the accused persons also sustained injuries at the hands of the complainant party.
8. As is obvious from the facts of the case a number of persons from both sides, the prosecution as well as the defence, were in one way or the other connected with the occurrence. After short listing the number of witnesses the prosecution concluded its evidence by producing 17 witnesses in all.
Of them the ocular account was given by P.Ws. 3 to 7, namely, Sanaullah, Zakarullah, Muhammad Pervez, Sardar Ali and Mst. Sajida. All of them were injured and had sustained various types of injuries on their person. They of course dilated upon the occurrence from the view point of the prosecution version. At the same time giving the details of the injuries received by them they also explained the direction and dimension of the incident right from the inception of the motive and the end of the unfortunate episode which resulted in the death of Muhammad Saleem alias Papu.
Except a few, most of the injuries inflicted on the various parts of the bodies of the P.Ws. were the result of use of blunt weapons. Muhammad Shafique, however, died of the stab injuries received by him on his left flank. P.W. 1, Riaz Ali was a formal witness regarding the collection/recovery of the blood-stained earth from the spot while Muhammad Akram, P.W. 2 and Muhammad Arshad, P.W. 13 deliberated on the recovery of daggers and hatchets at the instance of Sohail Anjum and Muhammad Shafique, accused allegedly used in the occurrence. P.W.3, Sanaullah is also complainant of the case and as such-FIR was recorded at his instance.
9. The medical evidence is quite elaborate in this case in the sense that a number of injured persons from both sides were examined and the postmortem of the deceased was also conducted. Lady Dr. Farah Nisar, P.W. 12, had examined Mst. Sajida while the postmortem of the deceased and the medical examination of the other injured persons was conducted by Dr. Muhammad Muslim, P.W.
11. The draftsman, Muhammad Ramzan, P.W.9, had prepared the scaled site-plan while P.Ws. 10, 13, 14, 16 and 17 were the police officials who had dilated upon the various functions performed by them regarding the retention and delivery of various parcels etc. Fayyaz Ahmed Pansota, P.W. 15 was the I.O. of the case and he recorded his depositions in that context.
10. The defence in spite of denying the occurrence in any sense has its own version which primarily remained the same in the statements of the accused under Section 342 Cr.P.C. For facility of reference, however, we may refer to the statement of the principal accused Muhammad Shafique who put it in the following terms: "I am innocent. Actually on the day of occurrence at 2.00 p.m. I along with my co-accused Muhammad Sharif, Badar Munir, Muhammad Sohail and Abdullah were present in-the house of Muhammad Sharif. In the meanwhile, Muhammad Sharif went out of his house and proceeded to check the water-course, so as to provide water to the animal from the "khal", in the meantime, the P.Ws. Sanaullah, Zakarullah and three companions Pervaiz, Sardar Muhammad and Muhammad Saleem (since deceased) reached there and they in furtherance of their common intention and object due to previous enmity, started manhandling Muhammad Sharif. On his hue and cry, his relatives Badar Munir, Muhammad Shafique, Sohail Anjum and Abdullah reached there. Sanaullah, P.W. struck 'soh' blow to accused Muhammad Sharif on his right arm and back. I along with Sohail Anjum and Abdullah wanted to rescue Muhammad Sharif, but Muhammad Saleem (since deceased) injured me. In this process Sardar gave a soti blow to Muhammad Sharif, Zakarullah, P.W. gave soti blow to Badar Munir, Sohail Anjum and Abdullah, accused. Pervaiz had also injured accused Abdullah. During this process, the women and children of complainant party reached and indulged into fight, whereby Muhammad Saleem might have received injury by his own companions, who later on died. The complainant party is influential and due to our opponent and a person of influence namely Major Zahoor Azam, the P.Ws. colluded with police. We approached first but our version was not recorded. We were unlawfully confined. Hon'ble High Court helped us and thereby we were medically examined. Despite direction of Hon'ble High Court, our version was not recorded. Police was party to the complainant and thereby we were deprived of fair treatment and investigation."
11. The motive in this case is of twofold dimensions, the inception thereof being in a small incident in which one Shehzad alias Shada cut a joke to Mst. Munazza Riaz whereupon the complainant's brother Muhammad Saleem gave him slaps. The complainant and his companions continued with their job in the fields and came back to their house at about 2.00 p.m. At that juncture of time the accused equipped with various types of arms the detail whereof has already been given above came there and unfortunate episode started. The complainant supplemented this background of the incident by referring to an earlier occurrence of theft of a motorcycle which though was resolved, by the local nobility, yet it was also germane to the grudge which was still thriving in the minds. What seems from the complaint is that the act of cutting a joke had simply supplemented the malice which had not yet faded out of the hearts of the parties. This motive, however, as such does not lend convincing support to the prosecution story. By this we do not mean that the prosecution version of the case shall be totally dismantled by the weakness of the motive or by the mere fact that it does not correspond to the gravity of the situation or that it does not match to the natural and logical chronology of the events. The reason is very simple. The occurrence especially the way it has taken place is not much disputed. The participants are more or less the same as are claimed or stated by the parties. The role is almost undisputed except to that which resulted in fatal injury to the deceased. The time of occurrence, the result thereof and the other sequences of events are not primarily in dispute. The only controversial' elements are the method and the manner in which the occurrence originated and lead the parties to certain actions or reactions. In this background the given motive may not be the prime-determining factor regarding the liability for the occurrence, especially the death of Muhammad Saleem.
12. It is all the more so for the well settled proposition of law that in murder cases the weakness or insufficiency of motive or even absence of motive cannot be considered as a circumstance to justify the acquittal or mitigation of sentence when the occurrence is fully established by the eye- witnesses and is duly supported by the corroborative evidence.' The dictum laid down in Muhammad Nisar v. The State (2006 SCM R 161) is of valuable guidance to ignore the contention raised on behalf of the appellants in this behalf.
13. The prosecution has primarily banked upon the ocular account of the occurrence and so is the nature of the case that it admits to the same situation or compels the prosecution to advert to the same. The gravamen of this aspect is the sole factor that most of the P.Ws. who were also the eye- witnesses of the occurrence had received multiple injuries on their various parts of the bodies. May it not be out of place to mention at this very juncture that almost same is the position in relation to the various accused persons. They were also injured though it is also a fact that both the parties had tried to suppress hard realities in this behalf.
14. All the same, as already stated, the emphasis of the prosecution is on the ocular aspect of the case starting from the complainant's version, proceeding with the averments of P.W.4, Zakarullah, P.W.5, Muhammad Pervez, P.W.6, Sardar Ali and culminating the same to the statement of Mg.
Sajida, P.W.7. All five of them narrated the occurrence almost on similar lines giving details of the respective roles and the injuries etc. As rightly observed by the learned trial Court the parties are not at variance on the situation and attitude of those involved in the occurrence.
15. It is true that the P.Ws. inter se and with the deceased had established relationship but it can hardly be disputed that mere relationship of the witnesses with each other could not be a ground to impeach their credibility. In a series of judgments, including those reported as Abdul Khalid and another v. The State (2002 SCM R 1232), Abdur Rauf v. The State and another (2003 SCM R 522) and Noor Muhammad v. The State and another (2005 SCM R 1958), it was concluded that mere relationship of witnesses with the deceased or their inter se relationship would not render them as interested or partisan witnesses. The factor of relationship can injure the prosecution story only if there is established malice or there is a very strong motive for falsely implicating the accused or there are such circumstances that lead to conclude the presence of such witnesses at the spot totally improbable. As already stated, neither there was a very strong motive falsely implicating the accused nor the presence of the persons of both the parties was in dispute. Hence, the depositions of the prosecution's witnesses were to be given weight in total perspective of the case keeping aside their relationship.
16. Among the cognate factors over and above the controversy of relationship there were also such factors that rendered evidence and the position of the witnesses natural and in line with the logical circumstances. None of the witnesses was an outsider nor was any accused an alien to them. They all hail almost from the convicinity of the place of occurrence. It is in the evidence, and is of course plausible as well, that immediately with the alarm caused at the spot the people/witnesses came out and gathered around the point of occurrence, they seemed to have been confronted with some sort of the spontaneous occurrence and all these rivals included persons from both sides/parties. Thus, it is then and there that almost everyone of them assessed the situation by his own quick perception and jumped into the situation the way he thought it proper at that time In ordinary course of affairs this would have resulted in a fight which had erupted without any premeditation and preplanning.
17. How and in what circumstances the accused Muhammad Shafique indulged in stabbing Muhammad Saleem deceased is not so appropriately explained on record by any of the parties.
The circumstances, however, tend to show that it was something between Muhammad Shafique and Muhammad Saleem that ignited the whole affair. The occurrence seems to have developed into the form of fight as the parties by forming their own respective point of view committed assault or for attempting a defence. Now, it became a hard fact that persons from both sides received injuries in the occurrence. In spite of that they did not come forward with the whole truth in an attempt to claim self defence and attribute aggression to the opponent party, deliberately concealed the true facts. Even the investigation tends to show that a free fight had emerged between the parties at the spot. Confronted with almost similar facts a Division Bench of this Court while dealing with the case of Ahmad Hassan and another v. The State (2006 YLR 772) was constrained to observe that none of the parties in that case had come with clean hands and had deliberately concealed the true facts. It was also observed that witnesses while deposing before the learned trial Court had not explained the injuries received by the opposite party at their hands.
In that case the approach of the learned trial Court which had observed that neither of the parties had waylaid the other and it was a case of free fight which took place near their residences was approved in the cited case. The facts of the cited case those are relevant for the present purposes are almost identical to the facts of the present case. The observation that from the facts available on record, it was difficult to find out the reasons which had ignited the whole affair and the genesis of the crime was shrouded in mystery, is aptly applicable in the present case as well.
18. Subject to all that has been stated above, we are of the considered opinion that the ocular account of the case as put forth by the prosecution can validly be taken into account for passing an order of conviction to the accused-appellant. We do not find any reason to discard evidence of the injured P.Ws.
19. In the wake of the finding that the, occurrence was an abrupt occasion we would not be inclined to accept the version of self defence raised on part of the accused. The mere fact that the accused party also received injuries cannot lead to an irresistible conclusion that they had responded to the aggression of the complainant party and had charged upon them in an attempt to save their lives.
Besides, what has already been observed and discussed, such plea cannot be justified or justifiably co-related with what happened between Muhammad Shafique and Muhammad Saleem. It has pertinently been noted that it was not only the men but the womenfolk as well as some children who also got involved into the situation. This fact alone should be sufficient to justify the conclusions already drawn regarding the primary nature of the occurrence. The plea of self defence, as already observed, also cannot be made out from the injuries respectively received by the parties.
20. The self defence is a multi-dimension law. Primarily it is in the nature of an offence as well as the sequence of the events, which help determine the right of self defence. Again, the right of private defence does not provide a licence for an unlimited description to go on causing excessive harm to the opposite party. This right commences only when reasonable apprehension arises from an attempt or threat to commit offence. It may also continue as long as such apprehension or danger to the body continues. In the given situation as everyone of both the parties had spontaneously either jumped into the occurrence or was compelled to intervene, the right of private defence as such against any plea contemplating assault did not arise at all. The occurrence originated suddenly and the whole episode was spontaneous and emergent. The plea of the right of private defence raised by the accused-appellant is, therefore, not admissible in the circumstances of the case. It is particularly so in the case of Muhammad Shaflque, appellant because the reasons of his assault with stab inflicting injuries on the left flank of the deceased are not properly explained in the evidence.
21. The medical evidence has its significance to the factors already described in the above. The facts transpiring out of the medical examination of persons of both parties almost became admitted and undisputed during the trial. The cause of the death of Muhammad Saleem by sharp- edged weapon was also not a point of dispute. The ocular account, therefore, does find corroboration from the medical evidence.
22. Similarly much emphasis or controversy is not raised in relation to the recoveries except that of the dagger allegedly recovered on the pointation of Muhammad Shafique, accused-appellant.
This recovery of course is relevant to the facts of the case and especially in relation to the depositions against Muhammad Shafique. It was probably for this reason that the recovery of the dagger was emphatically disputed on behalf of the defence. In this behalf it was asserted that this recovery was planted by the police only on the asking of one Major Zahoor Azam who allegedly was an influential personality of the area. The diagram of the dagger shown in the recovery memo. was also referred to by the defence to claim that it was rather a 'churri' and not a dagger. The mere fact that the form or shape of the weapon had similarity with that of a "dagger' or a 'churri' could not be considered sufficient to discard the recovery because the basic thing was the harm done by the sharp-edged weapon. It is also relevant and important for the reason that as per report of the Chemical Examiner and the Serologist the "article" examined was found to be stained with human blood. Above all, atleast in relation to the recovery of the "dagger", it cannot be ignored that none of the witnesses of the recovery had any enmity or ill will against Muhammad Shafique or any other accused.
23. As repeatedly stated above it was a case of sudden fight and the circumstances did not show that the accused had a common object or intention to cause the murder of the deceased. Even by the circumstances it cannot be gathered or concluded that the common object or intention had emerged or developed among the assailants at the spot. All that happened was the result of a situation which had developed at the spur of the moment. The learned trial Court was, therefore, justified to conclude that in the given situation every accused person who took part in the incident was responsible for his own individual act.
24. The learned counsel for the accused emphasized that the mere fact of the witnesses being injured may not be relied upon for the complicity of the accused persons because, according to him, the injured persons were not truthful witnesses and their truthfulness needed to be judged independent of their injuries., This contention, however, does not commensurate with the circumstances of the case. Admittedly the witnesses and the accused both hail from the same vicinity. They had contacts with each other. The occurrence having taken place in the broad day light there could be no dispute as to the identity of the parties. There was no deep rooted or inherent enmity between them. It is neither a case of anybody nor was there any possibility of substitution. Hence, the witnesses were reliable and the factum of the injuries on their person, further corroborated this aspect of the evidence. The contention of the learned counsel that where the Court had once come to the conclusion that the prosecution had not come out with the whole truth, the conviction could not be based on the statements of the P.Ws. is not tenable in the eye of law.
25. Considering all the circumstances in the light of the evidence on record we are inclined to uphold the finding of conviction of the accused. We, however, have reservations about the quantum of the sentence of death awarded to Muhammad Shafique, which, in our considered opinion, was not warranted in the circumstances of the case. It may be stated even at the cost of repetition that the circumstances have not left any doubt to the fact that the occurrence in so far as it relates to the participation of a number of persons of both parties, was an abrupt event which most probably erupted when Muhammad Shafique, appellant and Muhammad Saleem deceased were found grappled with each other and Muhammad Shafique stabbed Muhammad Saleem. It has also been stated in the above that from the facts available on record it was difficult to find out the reasons which had caused the offence of stabbing by Muhammad Shafique to Muhammad Saleem. This aspect of the affair and the genesis of the crime was shrouded in the mystery. The learned DPG and the learned counsel for the complainant repeatedly emphasized that the intention of Muhammad Shafique to commit intentional murder of Muhammad Saleem was obvious from the simple and the mere fact that he repeated the injury on the person of Muhammad Saleem. In this behalf the prosecution has also referred to the evidence and contended that not only Muhammad Shafique attacked on Muhammad Saleem and inflicted dagger blow on his left flank but he also chased him to reasonable distance and then gave him the second dagger blow causing injury on the same flank. The site-plan as well as the evidence of I.O. and the draftsman has also been referred to in this behalf. There is no issue that as per the site- plan the point of place of occurrence where the first injury was inflicted by Muhammad Shafique has been shown to be situated at a distance of about 20 karams from the point at which he chased him and gave the second blow.
26. It will, however, be difficult to simply rely upon the site-plan and its evidence to concur with the conclusion drawn by the learned DPG and the complainant's counsel, firstly, because the site-plan is not a substantial piece of evidence and in order to rely upon it direct and positive evidence duly supported by the relevant circumstances must be available. Reliance in this behalf can be placed on Mst. Shamim Akhtar v. Fiaz Akhtar and two others (PLD 1992 SC 211).
27. In the present case it is the evidence of the prosecution that the first stab infliction had gone down in the body of the deceased whereafter he tried to save and escape himself from the assailant. If that was the case, the trail of blood on the earth in between the two points was inevitable but neither in the ocular account nor in the recovery memos. or in the very site-plan is anything visible which could show the existence of the trail of blood. It would, therefore, be difficult to opine conclusively that Muhammad Shafique had chased Muhammad Saleem for causing him the repeated stab blow.
28. In the circumstances of the case we are also of the view that in the absence of the evidence and the circumstances which could unfold the mystery of cause of fatal attack by Muhammad Shafique on the person of Muhammad Saleem it could not be safe to conclude that Muhammad Shafique had a determined or pre-determined mensrea for committing the `Qatal-i-amd' of Muhammad Saleem. The peculiar circumstances of the case bring about a situation of mitigation in his favour because of which his conviction under Section 302(b) PPC is not sustainable. Thus while maintaining the sentence of conviction recorded by the 'learned trial Court we are of the considered opinion that Muhammad Shafique also deserves leniency. His case falls under Section 302 (c) PPC. The conviction and sentence of other accused as recorded by the learned trial Court is maintained. So far as Muhammad Shafique is concerned he is in confinement since the inception of the case, which, in our opinion is commensurate with the nature of the offence. The sentence awarded to him, is, therefore, converted into the imprisonment already undergone by him.
29.As a result of the above, Criminal Appeals No, 16 and 17 of 2003 respectively filed by Badar Munir and Shehzad Alias Shada, Muhammad Sharif S/o Ghulam Siddique, Sohail Anjum S/o Muhammad Amir and Muhammad Abdullah S/o Gul Muhammad are dismissed. Criminal Appeal No, 10 of 2003 filed by Muhammad Shafique is partly allowed to the extent of alteration of the sentence already undergone by him: Muhammad Shafique, appellant, if not required to be confined in any other case, shall be released forthwith. The appellants in Criminal Appeals No, 16 and 17 of 2003 are stated to have already served out the entire sentence. For the same reasons Criminal Revisions No, 23 and 24 of 2003 filed by Sanaullah, complainant for the enhancement of the sentence are dismissed.
30. The death sentence imposed by the learned trial Court on the appellant, Muhammad Shafique, is not confirmed and the Murder Reference is replied in the negative.