The appellant Abdul Ghaffar along with his co-accused namely Manzoor and Muhammad Saleem was tried by the learned Additional Sessions Judge, Multan, in case FIR No, 305 registered on 20.10.2003 at Police Station Sadar Jalalpur Pirwala, District Multan, for offences under Sections 302/34 PPC. Vide judgment dated 17.12.2004, the learned trial Court, while acquitting the aforesaid co-accused, convicted the appellant for offence under Section 302 (b) PPC and sentenced him to imprisonment for life plus payment of Rs, 1,00,000/- as compensation to the legal heirs of the deceased, in default whereof to further undergo S. I. for six months. Benefit of Section 382-B Cr.P.C. was extended to the convict/appellant.
2. Aggrieved by his above noted conviction and sentence, the convict/appellant has filed the instant appeal, while Abdul Hameed, complainant/petitioner, has brought Criminal Revision No, 17 of 2005, seeking enhancement of sentence of the appellant. Both these matters are being decided through this consolidated judgment.
3. Briefly the facts of the case per statement of the complainant Ex.PF, recorded by Abdul Latif Shah, Inspector/PW-10, who, along with constables Muhammad Azam, Willayat Hussain/PW-4 and Muhammad Tariq on an official vehicle being driven by Majeed Ullah, driver/constable, was present at Bridge Munshiwala in connection with patrol duty, which based registration of formal FIR recorded by Abdul Shakoor, ASI/PW-2, are that on 19.10.2003 at about Ishawela, the complainant/PW-8 along with his nephew Muhammad Imran, a near relative Habibullah/PW-9 and brother Muhammad Aslam was present in his house, when Manzoor Ahmad/acquitted accused came there and asked them that Abdul Ghaffar, accused/appellant, was calling them in his house, whereupon they went there and saw Muhammad Saleem/acquitted accused and the appellant viewing TV in their Baithak. On seeing them, the appellant picked up rifle, lying on the Sofa, and raised Lalkara that he would teach a lesson to Muhammad Imran for demanding money and insulting them, upon-which Muhammad Imran turned back and started running when Abdul Ghaffar/appellant fired a shot, hitting Muhammad Imran on the right side of his back, in view whereof Imran fell down on the ground. The PWs took Imran in injured condition to Civil Hospital, lodhran, where he succumbed to the injuries. The complainant, while leaving Habibullah and Muhammad Aslam to guard the dead body in his house, himself proceeded to report the matter.
3-A. The motive behind the occurrence was allegedly an altercation, which took place between the appellant and the deceased over "Lain Dain" three days prior to the incident.
4. On 20.10.2003, after recording and dispatching the statement of the complainant to the police station, Abdul Latif Shah, Inspector/PW-10, went to the place of occurrence; prepared injury statement Ex.PJ and inquest report Ex.PK of the deceased and sent the dead body for post mortem examination. On spot inspection, he prepared its rough site plan Ex. PL; collected blood stained earth and blood stained Gaddi Sofa P-5 and took the same into possession vide memo Ex.PG, attested by Habibullah/PW-9 and Muhammad Aslam (given up PW). He also collected empty of 8- mm P-6, sealed the same into a parcel and took the same into possession through memo Ex.PH, attested by the said witnesses. He got prepared scaled site plan of the place of occurrence in triplicate Ex.PD, PD/1 & PD/2 from Khushi Muhammad, Draftsman/PW-5. The appellant was arrested on 23.10.2003 and while in custody on 27.10.2003, the appellant led to the recovery of 8-mm rifle P-3 along with its magazine P-7 containing two live bullets P-4/1-2, sealed the same into parcels and took the same into possession vide memo Ex.PE, attested by Nizamuddin/PW-6 and Niaz Ahmad (not produced at the trial). After completion of investigation, report under Section 173 Cr.P.C. was submitted and the accused were sent up to face trial.
5. To substantiate its version at the trial, prosecution produced ten witnesses. Ocular account was furnished by Abdul Hameed, complainant/PW-8, and Habibullah/PW-9. In addition to that, they also stated about the motive. Habibullah PW-9 also stated about the recoveries effected from the spot. Nizamuddin, Constable/PW-6, stated about the recoveries effected at the instance of the appellant. Khushi Muhammad, Draftsman/PW-5, prepared the scaled site plan Ex.PD on the direction of the police and pointation' of the PWs. Dr Malik Riaz Hussain/PW-3, who conducted post mortem examination on the dead body of the deceased, while observing two injuries, i,e, Injury No, 1, an entry wound, measuring 1 cm x 1 cm, circular in shape going deep, margin irregular and inverted burning present 12 cm below the right shoulder joint, with corresponding tears present at the Kamiz, and Injury No, 2, an exit wound, measuring 4 cm x 1/2 cm going deep on the right side of chest, 2 cm below clavical bone, margins of wound irregular and inverted clotted blood present at the site of wound, on the person of the deceased, opined that cause of death was due to haemorrhage and shock leading to death on account of injuries No, 1 and 2, caused by fire arm weapon. According to him, both the injuries were ante-mortem and were sufficient to, cause death in the ordinary course of nature. He further opined that probable time between injury and death was one hour, while between death and post mortem, the duration was within 15 to 18 houRs, Abdul Shakoor, ASI/PW-2, registered formal, FIR Ex.PA on the basis of complaint Ex.PF. Abdul Latif Shah, Inspector/PW-10, stated about the drafting of complaint, its dispatch to the police station and the investigation thereafter. The rest of the witnesses, being formal in nature, need not be discussed.
After tendering in evidence the reports of Chemical Examiner Ex.PN, Serologist Ex.PO and Forensic Science Laboratory Ex.PP, with regard to blood stained earth, closed its side.
6. In his statement recorded under Section 342 Cr.P.C, the appellant pleaded his innocence and false implication in the following words :- "This is a false case which has been registered against me. None of the PWs was present at the spot nor any body out of the PWs have seen the presence occurrence. In fact, Imran deceased was my friend who had been coming to me off and on. On the day of occurrence we were viewing movie at the TV in my Baithak sitting on the Sofa and a rifle belonging to my brother was lying in the Baithak on the Sofa. The magazine of the rifle was taken out of the rifle. A bullet was in the chamber and the rifle was not in working order and due to that in order to see whether the rifle is in order I suddenly pull the trigger and the bullet which was in the chamber was fired and suddenly it hit Imran deceased who was also sitting on the Sofa with me. I myself and my brother Abdul Sattar immediately took him to the Kanda of Muhammad Sharif in Basti Munshiwala where the complainant and relatives of Imran were got summoned and they were told the entire happening.
My brother Abdul Sattar along with the complainant immediately took injured Imran to Lodhran hospital in a bus but he died. This occurrence was neither intentional nor premature or any mensrea on my part. I have more than 1'A squares of land in Munshiwala and in District Khanewal as well and there was no question to get money from Imran deceased as a loan and the story of "Lain Dain" given by the complainant in the FIR is absolutely false. I never thought to kill Imran deceased because he was my dearest friend. The present case has been got registered on the instigation of Lambardar of the village who is against our family and other people and for that reason the complainant party was hesitating to register the case against me and finally on the persuasion of the Lambardar and others the registration of the case took place at 11.00 a.m. My co- accused Manzoor and Muhammad Saleem were not present in the Baithak and are innocent.
Muhammad Saleem is my driver of the taxi while Manzoor is also my friend but both are not present in the Baithak at that time. The case was investigated by the Addl. SP Multan who found the present occurrence unintentional and changed the offence from 302 PPC to 322 PPC and thereafter the complainant party got the investigation transferred to the Range Crime, Multan and the case was thoroughly investigated and the place of occurrence was visited by the DSP and they also came to the conclusion that it was not a Qatl-i-Amd and they made an amendment in the offence u/Ss. 302 PPC to 322 PPC. Both Manzoor and Muhammad Saleem co-accused were found innocent during the investigation of the case and their discharge report also submitted by the police before the Illaqa Magistrate for their discharge from the case. The witnesses were neither present nor they have seen the occurrence and they have falsely deposed against me and my co-accused but the Investigating Officer has also deposed that it was not a Qatle-Amd but it was a QatleKhata only."
The appellant did not appear as his own witness as contemplated under Section 340(2) Cr.P.C. He, however, produced two witnesses in his defence, namely, Masood Ahmad Javed, DSP/DW-1, and Maqsood-ul-Hassan, DPO/DW-2, who also investigated the case.
7. Learned counsel for the appellant submits that both the eye-witnesses besides being related to the deceased and interested ones and, thus, unreliable, were not present at the time of occurrence and the learned trial Court has rightly held so in the impugned judgment; that the two eye- witnesses made dishonest improvements in their statements; that there is delay of about fourteen hours in the lodging the FIR, which shows that the same was lodged with due deliberations and consultations and as such, has lost its veracity; that the alleged ocular account is in conflict with the medical evidence; that the motive has not been proved by the prosecution and as such rightly disbelieved by the learned trial Court; that the version of the appellant, being true or more nearer to the truth, is to be accepted in totality, as the same was also found to be true during the course of investigation conducted by the higher police officers like the DSP and the Addl SP.
8. Conversely, the learned DPG, assisted by the learned counsel for the complainant, has defended the impugned judgment, stating that the prosecution has proved its case against the appellant through ocular account, supported by the medical evidence, recovery of crime weapon at the instance of the appellant and the motive.
9. After having gone through the record and considering the contentions of the learned counsel for the parties, it has been noticed that the ocular account furnished by the two eye-witnesses namely Abdul Hameed, complainant/PW-8, and Habibullah/PW-9 has been disbelieved by the learned trial Court, as their presence at the spot hardly established on the ground that the deceased as well as the appellant were admittedly best friends, who occasionally used to visit each other to see films and served most of the time in the association of each other even till late hours. The occurrence as alleged by the eyewitnesses took place between 9.00 and 10.00 p.m. on 19.10.2003 but the matter was reported to the police on the next day, i,e, 20.10.2003 at about 11.00 a.m., more than thirteen hours of the occurrence. Such delay by itself speaks volumes, especially when the presence of the eyewitnesses at the spot is claimed. Had they been present at the time of occurrence at the spot, then the question arises as to why they remained silent during the whole night and the matter was firstly reported to the police after twelve hours despite the fact that both the eye-witnesses are closely related to the deceased. The other aspect of the matter in regard to ocular account is that when the deceased was called by the appellant to see film/movie in his Baithak and the deceased went on his call, then there was no occasion for the witnesses to chase him when they have admitted close friendship between the deceased and the appellant. In these circumstances, the ocular account has rightly been disbelieved by the learned trial Court.
10.As far as the defence version taken up by the appellant is concerned, the same is plausible, as he had taken the plea that the magazine of the rifle was already separate when he pushed the trigger of the rifle just in a playing manner and one bullet, which was not in his knowledge, was already in the barrel, hit the deceased and resultantly caused the death. This plea has been taken by the appellant on very first day of his arrest before the Investigating Officer and the Investigating Officer has also supported the same, while appearing as PW-10, stating that no intention of the appellant to kill the deceased was found during the investigation and the occurrence took place without any premeditation or pre-planning, as the magazine of the rifle at the time of firing was not attached with the weapon and the same remained lying near the appellant. This fact has been admitted by the eye-witnesses as well as the. JO. In these circumstances, the question arises that, when the prosecution has, failed to prove its version against the appellant, then what should be done. The answer is to believe the defence version taken by the appellant in toto, if it is convincing and plausible. As such the plea taken by the appellant is strengthened by the statement of the IO, coupled with the fact that the ocular account, as observed earlier, is not reliable and trust-worthy and the motive having also not been proved by the prosecution besides non-proof of any enmity between the deceased and the appellant. On the other hand, close friendship between the two has been admitted even by the eye-witnesses. In this view of the matter, I have no option but to believe the version of the appellant that he pressed the trigger, believing that there was no bullet inside the barrel, as the magazine containing bullets was admittedly lying aside. This plea is also supported by the statements of Maqsood Ahmad Javed. DSP/DW-1 and Maqsood-ul-Hassan. DPO-the then Addl SP/DW-2 (who also investigated the case), stating that in their opinion, it was an intentional murder and not intentional one, so they substituted the offence under Section 302 PPC by offence under Section 322 PPC. Besides this, Abdul Latif Shah. Inspector/PW-10, corroborated the statements of the two PWs, stating that dating his investigation, it was found that there was no intention of the appellant to kill the deceased and it was an accidental murder. The prosecution has not been able to show any mala fide or malice on the part of the three Investigating Officers to form such opinion. In these circumstances, the plea taken by the appellant is plausible and convincing one. As such, the offence committed by the appellant is punishable under Section 322 PPC.
11. Before imposing Diyat, following questions arise, which need to be discussed, in detail, to reach the final conclusion and to resolve the controversy in this regard:-- (a)Whether quantum of Diyat is to be determined according to the prescribed rate of silver prevailing at the time of occurrence or at the time of final decision of the case or the judgment or derision of appeal?
(b)Whether the value of Diyat is to be determined on the basis of notification issued by the Government of Pakistan in this regard on yearly basis or on the basis of prevalent market price of silver at the time of its imposition?
(c) Whether Diyat is to be determined in kind of silver with specific weight or its equivalent value prevailing at the time of its payment.
12.It would he advantageous to reproduce Section 323 PPC, which deals with the value of Diyat.
The same reads as under:-- "323. Value of diyat.--(1) The Court shall, subject to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and keeping in view the financial position of the convict and the heirs of the victim, fix the value of diyat which shall not be less than the value of thirty thousand six hundred and thirty grams of silver.
(2) For the purposes of sub-section (1), the Federal Government shall, by notification in the official Gazette, declare the value of silver on the first day of July each year or on such date as it may deem fit, which shall be the value payable during a financial year."
Intention of the Legislature is of supreme importance and such intention can be ascertained from the language used in statute. Courts before resorting to any other source for assistance first seek to find out the basic legislative intention from words, phrases and sentences used in statute. Where any doubt arises, the Courts may resort to other elements for ascertaining the intention of the legislative. Section 323 of the PPC clearly speaks about the value of diyat which is to be determined keeping in view the financial position of the convict as well as the legal heirs of the victim and fix the value of diyat which in no case shall be less than the value of 30630 grams of silver, meaning thereby, the Courts are at liberty to determine the amount of diyat as they deem fit but they are restricted by law not to award the diyat amount less than the value of 30630 grams of silver. As such, no maximum limit for the quantum of diyat is prescribed. The Courts are to ascertain diyat considering the circumstance of the case, financial position of the convict as well as that of the legal heirs of the victim.
13.Diyat is, in fact, a pecuniary compensation which is paid to the legal heirs of the deceased. The intention of Legislature in this regard is to compensate the legal heirs in order to meet with the financial problems to some extent. The golden principles of diyat is not only the punishment or penalty for the convict but it is also a safeguard for the welfare of the heirs of the victim. In our country, the prices of the items of daily use are increasing at a tremendously high rate and survival of a common man has become difficult. Obviously, the legal heirs of the victim are also the members of this society.
14.After having gone through the Islamic references recording the mode of payment it has been noticed that during the period of "KhuIfa-e-Rashidin". Diyat was normally paid in the shape of camels, sheep, goats and cloths and the beneficiary of said Diyat was at liberty either to retain the same for his own use or to sell it in the market to fetch its market price. The intention of the legislature in Section 323 PPC is to compensate the legal heirs of the deceased in a proper manner and that is why the minimum limit of value of Diyat is given but maximum limit of the Diyat is not described.
15.As far as the question, whether the value of Diyat is to be determined from the notification issued in this regard by the Government on yearly basis is concerned. I am tempted to say that the prices of each item of daily use as well as the rate of silver (Chandi) are being increased day by day and the rate of silver can easily be determined from the daily newspapers as well as other sources, including electronic media. If the value of Diyat is determined on the basis of such notification issued much prior to the date of award of Diyat, it would certain affect the rights of legal heirs of the deceased. As such, it will be appropriate, if value of Diyat is determined on the basis of prevailing rate of silver at the time of its award. By adopting this mode, the legal heirs would be compensated in the real, letter and spirit of the Legislature.
16.To resolve the controversy as to whether Diyat is to be awarded according to the rate of silver prevailing at the time of passing of the judgment by the trial Court or at the time of decision of appeal/revision, etc., I am of the view that if Diyat is imposed in kind of silver by giving specific weight or with a direction to the convict that he should either pay the silver of such weight or its equivalent value at prevailing rate of the day of payment. If Diyat is awarded in this manner, the controversy regarding the determination of the date of imposition of Diyat would automatically he resolved and whenever Diyat is paid, in such manner, the same would fully compensate the legal heirs of victim according to the letter and spirit of the legislation.
17. In view of the of the above discussions and considering the facts of the instant case, this appeal is partly allowed; the impugned judgment of the learned trial Court is set aside and the appellant is convicted for offence under Section 322 PPC and is directed to pay Diyat in kind of 30630 grams of Silver or its value prevailing at the time of payment to the legal heirs of the deceased in lump sum.
Till the payment of aforesaid Diyat amount, the convict/appellant shall be kept in jail and dealt with in the manner as if sentenced to simple imprisonment.
18. For the same reasons. Criminal Revision No, 17 of 2005, seeking enhancement of sentence of the appellant having no substance is dismissed.