' KAZIM ALI MALIK, J.---Muhammad Rafiq -(35), Isam Dad alias Azhar Javaid (53)' and Bukhshish Illahi (42),' all Abbasi by caste and residents of village Potha Sharif, Distt. Rawalpindi were challaned, to the learned Court of Session, Rawalpindi in a case F.I.R. No, 226, ,dated 6.8.1999 registered with Police Station Murree to stand trial under Section .302 of the Pakistan Penal Code.
1860 read with Section 34 of the same Code for having committed Qatl-i-Amd of their co-villager and caste fellow Waheed Ahmad (46) by firing at him with a pistol. On conclusion of trial before a learned Addl. Sessions Judge Rawalpindi, Bukhshish Illahi, appellant was convicted under section 302, P.P.C. And sentenced to death with a fine of Rs, 50,000/- whereas Muhammad Rafiq and Isam Dad alias Azhar Javaid, appellants were awarded life imprisonment each with a fine of Rs, 50,000/- each and in case of default in payment thereof to further undergo six months' simple imprisonment each for the afore-said charge. The amount of fine, if realized, was ordered to be paid to legal heirs of the deceased as compensation. The Trial Court also convicted the three appellants under section 337-A(i), P.P.C. For haying caused an injury to Muhammad Ashiq Abbasi, P.W.6 and sentenced them to one year's rigorous imprisonment each with Daman of Rs, 1000/- each and in case of default in payment thereof to further simple imprisonment for two months each. The sentences imposed on the convicts on all counts were ordered to run concurrently with the benefit of Section 382-I3, Cr.P.C. The convicts challenged their convictions and sentences imposed vide judgment dated 1.10.2002 through Crl. Appeal No, 643 of 2002. Learned Court of Session, Rawalpindi soughi confirmation of death sentence of Bakhshish Illahi, convict through Murder Reference No, 88 of 2004. We propose to dispose 'of these two interconnected matters by this single judgment.
2. The occurrence took place on 6.8.1999 at 9:00 a.m. Within the area of village Potha'Sharif, 18 miles away from Police Station Murree and was reported to the police the same day at 1.50 p.m. By Muhammad Ashiq Abbasi, a real brother-of Waheed Ahmad, deceased. Besides Muhammad Ashiq .Abbasi, complainant (P.W. 6), Javaid Akhtar, (P.W.7) and Mahboob Hussain (given up P.W.) claimed to have witnessed the occurrence. Muhammad Aslam, S . H .O. (P . W .8) and Haji Ghazanfer Ali, Sub-Inspector (P.W.9) investigated this case and challaned the appellants to Court.
3 Prosecution case set up in the F.I.R. Ex.PD, 'in brief, is that on 6.8.1999 Muhammad Ashiq Abbasi, complainant, Waheed Ahrnad, deceased, Mahboob Hussain and Javaid Akhtar, P.Ws. Were present in their house located in village Potha Sharif when at about 9.00 a.m. Isam Dad alias Azhar Javaid, appellant called Muhammad Ashiq Abbasi, complainant and his brother Waheed Ahmad, deceased by name asking them to come out. In response to the challenge by Isam Dad, appellant, Waheed Ahmad, deceased went outside of his house and proceeded towards the house of one Abid son of Suleman Khan from where he had been called by the above-named, appellant/accused. Muhammad Ashiq Abbasi, Mahboob Hussain and Javaid Akhtar, P.Ws. Also followed the deceased. The moment Waheed Ahmad, deceased reached near the house of afore- mentioned Abid, Bukhshish Illahi, Isam Dad and Muhammad Rafiq, appellants confronted him. Isam Dad, appellant, raised lalkara asking Bukhshish Illahi, appellant to kill Waheed Ahmad, upon which the later took out a pistol and fired striking Waheed Ahmad, deceased in the right side of his chest.
After receiving fire shot Waheed Ahmad, deceased changed his position when Bukhshish Illahi, appellant fired second shot hitting him -on the back. Muhammad Rafiq, appellant pelted stones hitting Muhammad Ashiq Abbasi, complainant and his companions. Thereafter,the appellants fled while firing.
4. The P.Ws. Removed Waheed Ahmad injured to the mettled road for his onward transportation to the hospital, but he breathed his last.
5. Motive for the occurrence as disclosed by the complainant was that 10 days back the appellants quarreled with his son Saqib Khan. Elders of the tribe patched up the dispute, but the accused persons nourished grudge.
6. On 6.8.1999 at 2.00 p.m. Dr. Asif Majeed, P.W. 1 made autopsy on the dead-body of Waheed Ahmad and observed that rigor mortis had developed. Following injuries were found on the dead- body:
(i) Fire-arm entry wound 2 x .5 cm on the right side of chest 3 cm lateral to right nipple.
(ii) Fire-arm exit wound on the back 4 inches above the line joining aliac spines.
(iii) Lacerated wound 3x1 cm on the lip of right shoulder extending down to the back.
' On dissection vertebra was fOund fractured. Intercostal muscles of right fourth spacer lower boarder of right fourth rib, right pleura, diaphragm, 'right kidney and right lung were found damaged and injured.
' The stomach contained fluid. There were massive lacerations on superior and interior surface of liver. Abdominal cavity was full of blood. All the injuries were ante-mortem. Injuries Nos. 1 and 2 were the result of fire-arm while the third one was caused by blunt weapon. Cause of death' was haemorrhage due to massive damage to vital organs. Probable time which elapsed between injuries and death was a few minutes and between death and post-mortem examination was four to six hours. Under his report Ex.P.A. The postmortem examiner certified that Waheed Ahmad died of firearm injury in his chest, which damaged his vital organs.
7. On 6.8.1999 at 1.30 p.m. Haji Ghazanfer Ali, Sub- Inspector, P.W. 9 was present Civil Hospital, Murree in connection with post-mortem examination of a dead-body of some other case when Muhammad Ashiq, complainant appeared before him and made statement Ex. PE, the very basis of formal F.I.R. Ex.PD.. Thereafter, the investigator prepared injury statement, Ex.PH, inquest report, Ex.PK about the dead-body of Waheed, Ahmad and dispatched it to the dead house for autopsy. After post-mortem examination, the escorting constable, Arshad Mahmood, P.W. 4 produced last worn blood-stained clothes of the deceased which were taken into possession under memo. Ex.PL.
Subsequent to this, the investigator reached the spot and secured blood-stained earth from there vide memo. Ex. PG. He recorded statements of the P. Ws. And unsuccessfully searched for the accused persons. He arrested them when their application for pre-arrest bail was dismissed as withdrawn. Thereafter, investigation of the case was taken up by Muhammad Aslam, S.H.O., PW.8.
He examined both the sides twice and then returned the investigation to Haji Ghazanfer Ali, Sub- Inspector, P.W. 9, who got the accused persons challaned to Court
8. At commencement of trial, the accused persons were charged under Section 302 read with section 34 of the Pakistan Penal Code, 1860 for having committed Qatl-i-Amd of Waheed Ahmad by firing at him and under Section 337-A(i) read with section 34 of the same Code for having caused Shajjah-i-khafifah to Muhammad Ashiq Abbasi, complainant in furtherance of their common intention. The accused persons denied the charge and claimed trial:
9. The prosecution examined nine witnesses in all in support of the charge. Dr. Asif Majeed, P.W.1, proved the post-mortem report, Ex.PA already discussed. Tariq Mahmood, Constable, P.W. 2 kept the sealed parcel of bloodstained earth in safe custody till its onward transmission to the office of chemical examiner for analysis through Arshad Mahinood, Constable, P.W.
4. Shakir Ullah Jan, draftsman, P.W.3 prepared the scaled site plan, Ex.PC. Muzhar Ikram, A.S.I., P.W. 5 drew up formal F.I.R. Muhammad Ashiq, P.W. 6 and Javaid Akhtar, P.W. 7 furnished ocular account of the incident. The former mentioned also deposed about the motive. Muhammad Aslam, S.H2O., P.W. 8 and Haji Ghazanfer AM, P.W. 9 proved the investigation.
10. When examined under Section 342, Cr.P.C. The accused persons denied and dismissed each piece of prosecution evidence put to them. In an'answer to a question as to why this case against him, the principal accused Bukhshish Illahi says: ' "The P. Ws. Concededly inimical towards me. There is pitched enmity between the parties, including election rivalries. 1 have been made scape goat in the instant matter. According to the report under section 173, Cr.P.C. The police too have confirmed the factum that many people appeared from the vicinity and made statement before the Various investigating officers qua non- involvement of myself and Waheed was fired at by Babar Khan.
' That Muhammad Aslam Khan, Inspector/ S.H O. (P.W.8) has even stated in examination-in- chief that 26 persons appeared in support of the defence and their statements were recorded. It was further confirmed that the affidavits produced by Raja Khan, Nasir Mahmood, Mahfooz Ahmad and Muhammad Nawaz were also placed on record and he has further stated that 26 persons appeared before him and he recorded their statements and four out of them also produced affidavits caregorically stating about the innocence of mine and false involvement. The witness has also confirmed including Mahfooz Ahmad that there are eye-witnesses of the occurrence and I was not present nor armed with any fire-arm nor I fired at Waheed Ahmad, rather Waheed Ahmad, was fired at, by Babar Khan son of khan Akber Abbasi and he succumbed to the injuries. The version could not be dispelled by the eye-witnesses. F.I.R. Is sequal to deliberation. The deceased was fired at from shed of house of Abid. Occurrence was witnessed by Haji Mahmood Ahmad Abbasi and Mahfooz Ahmad Abbasi also, and they have confirmed that I was not present at the spot and Babar Khan is the assailant.
' Amin-ul-Haq Abbasi son of Isam Dad accused was way-laid and on pistol point Rs, 30,000/- cash and ornaments of Rs, 15000/- were snatched by Munir Khan, brother of the complainant, and Waheed (deceased) and one Tufail, sister's son of the complainant, and a report too:was lodged in this behalf at the police post Phugwari vide report No, 9 dated 21.7.1999 and their enmity is admitted by the complainant himself in so many words and in the eventuality I was made scape goat. The entire vicinity has supported the truthful resume of the matter qua my innocence whereas Muhammad Ashiq, complainant and Javaid Akhtar, cousin, alone supported the concocted version of the complainant, which is duly proved to be false during the investigation by the entire vicinity and this is so conceded by the investigating officer."
11. Mahmood Ahmad Abbasi (DW. 1) and Mahfooz Ahmad Abbasi (DW.2) deposed that within their view one Babar son of Khan Akber fired at Waheed Ahmad, deceased on, account Of previous blood feud enmity and that the challaned accused persons and the P.Ws. Were not present at the spot at relevant time.
12. We find it convenient to take up the case of Muhammad Rafiq and Isam Dad alias Azhar Javaid, appellants, first. Admittedly, these appellants were empty handed at relevant time. They did not cause an injury to the deceased. The learned. Trial. Court held them vicariously liable for the killing of Waheed Ahmad on the only ground that Isam Dad had called Waheed Ahmad, deceased from his house immediately before inception of the -occurrence and raised lalkara while Muhammad Rafiq, appellant pelted stones causing an injury to Muhammad Ashiq, complainant, P.W.
6. It was/is the prosecution case that the complainant and his companions. i.e, Javaid Akhtar, P.W.7 and Mahbood Hussain, given up P.W. Sustained injuries as a result of stone pelting. A perusal of the record would show that Mahbooh Hussain and Javaid Akhtar, P.Ws. Were not medically examined for the injuries which they allegedly sustained at the hands of Muhammad Rafiq, appellant. Al trial Javaid Akhtar, P.W. 7 did not claim to have received any injury during the occurrence at the hands of the said appellant. He introduced another story not in line with the first version set up in the by deposing that besides Muhammad , Ashiq, complainant, two women also sustained injuries 'as a result of stone pelting. The P.W. Did not furnish the names of injured women nor were they medically examined or produced before the investigating officer: The learned law officer and learned counsel for the complainant were possessed with no answer as to why the persons who.
Sustained injuries as a, result of stone pelting, had not been medically examined and cited as P.Ws..
This state of affairs has adversely affected the prosecution case qua the alleged role of Muhammad Rafiq, appellant.
13. While lodging the F.I.R. Muhammad Ashiq Abbasi, P.W. 6 alleged that he alongwith his companions sustained injuries as a result of stone pelting by Muhammad Rafiq, appellant. For facility of reference relevant lines of the F.I.R., Ex.PE are reproduced below: {{URDU TEXT}} ' At trial, Muhammad Ashiq, complainant deposed that he alongwith his sister Mst. Mushtaq Begum sustained injuries at the hands of Muhammad Rafique, appellant. According to the complainant no one else was injured in the incident at the hands of Muhammad Rafiq, appellant. Admittedly, Mst.
Mushtaq Begum, whose name had not been given in the F.I.R. As an injured witness, was neither medically examined for her alleged injuries nor she joined investigation. In this view of the matter, the claim by the P.Ws. That companions of Muhammad Ashiq, complainant sustained injuries at the hands of Muhammad Rafiq, appellant falls to the ground.
14. The medical examiner found lacerated wound 1. Cm x :5 cm muscle deep with swelling on the chin of the complainant. Here we may add that if an enemy had pelted stone with full force hitting Muhammad Ashiq, P.W.6 on his chin,, the damage would have been much more than above-noted.
We are not ready to accept that Muhammad Rafiq, appellant hurled stone striking Muhammad Ashiq; complainant at his chin causing an injury 1 cm x 0.5 cm x muscle deep only. The dimension and nature, of the injury itself is evidence to show that the same could not be the result of stone pelting.
15. Now adverting to the role of Isam Dad, appellant, it is note-worthy that he neither raised a finger against the deceased nor caused any injury to the P. Ws. Only an allegation of lalkara had been made against him. This is a question of common knowledge and we would say with judicial experience that the role of proverbial lalkara is popularly attributed to innocent persons in order to widen the net. In the circumstances, it would not be safe to hold Muhammad Rafiq, and Isam Dad, appellants vicariously liable for the offence.
16. For what has been stated above, we are of the considered view that the prosecution failed to prove the' charge against these two appellants beyond any shadow of doubt. This is an established principle of law that benefit of doubt, however, slight is right of the accused. We feel inclined to give them the benefit of doubt.
17.Now remains in field Bukhshish Illahi, appellant against. Whom the allegation, in brief, is that he fired two successive pistol shots striking Waheed Ahmad. Deceased on his chest and back. Learned counsel for the appellant took exception to the testimonies of Muhammad Ashiq, P.W.6 and Javaid Akhtar, P.W. 7 with the plea that their claim stood divorced from the support of ,medical evidence according to which the deceased suffered only one shot in his chest causing exit wound nn the back. Learned counsel for the appellant is right in his assertion that the deceased received only one fire shot in his chest. It is also true that the two eye-witnesses described exit wound on his back as an entry wound. An important question which requires .Serious thought is as to whether the contradiction between ocular account furnished by the two eye-witnesses and the medical evidence would provide a basis to acquit the principal accused of the charge on this sole ground.
We are of the view that the above-said contradiction itself is not sufficient to damage the entire prosecution case because the P.Ws. Were not expected to see the projectile(s) while landing; on a specific part of the body. Bukhshish Illahi, appellant fired two shots in presence of two eye- witnesses as a result Waheed Ahmad, deceased fell down on the ground. The P.Ws. Rushed towards the injured and found one injury on his chest and the other on the back. They innocently formed an opinion that the deceased might have received two injuries at the hands of the assailant and that is why they laid straight forward version before the investigator as well as before the Trial Court that the deceased sustained two injuries. Had the PWs. Been tutored lawyerly, they.
Would have made statements .Before the investigator and the Trial Court in line with that of the post-mortem 'examiner. The P.Ws. Remained consistent on each and every stage of investigation and trial and did not change their stance even at trial, when they were admittedly equipped with legal advice. To our mind the honest, straight forward and unadulterated version of the two witnesses is worthy of credence and truth inspiring. The eye-witnesses were fully aware at the inception of trial that as per Medical evidence the deceased had received only one fire shot in his chest causing an exit wound on the back which had been wrongly described by them as an independent entry wound. Despite all this they chose to make a statement in line with their earlier one instead of bringing on record a parrot-fashion-statement We, therefore, do not attach much importance to the contradiction between ocular account and the medical evidence.
18. Learned counsel for the appellant further argued that the two close relations of the deceased claimed to have witnessed the killing and in absence of corroboration coming from an independent and unbiased source it was not safe for the Trial Court to believe them. This contention is not receiving support from the record. There was no background of previous enmity or illwill between the parties An altercation took place between a brother of the deceased' and the.
Appellant before the incident which served as a motive for the killing. With no stretch of imagination, the two eye-witnesses could he termed as inimical or hostile towards the appellant.
To our mind, absence of enmity between the parties D was a circumstance which corroborated and strengthened the claim of two eye-witnesses that within their view Bukhshish Illahi, appellant fired at the deceased and killed him.
19. Learned counsel for the appellant next argued that Bukhshish Illahi, appellant put forward a specific defence version to the effect that in presence of D. Ws. 1 and 2, one Babar Khan, murdered the deceased by firing at him and that the learned Trial Court disbelieved the defence version without its examination and analysis by keeping it in juxta position with the prosecution case. It has come in evidence from both sides that blood feud enmity existed between the complainant party and afore-mentioned Babar Khan. The two eye-witnesses had no sympathy or soft corner for Babar Khan against whom they were/are hostile and inimical. Muhammad Ashiq, P.W. 6 is a real brother of the deceased while Javaid Akhtar, P.W. Is his first cousin. We are not ready to accept that the real brother and first cousin of the deceased chose to let-effctual killer of their dear one 6y substituting him with Bukhshish Illahi, appellant against whom they had no illwill or malice except the asserted motive. The theory of substitution in these circumstances is not worthy of credence.
20. For the forgoing reasons we are of the calculated opinion that the prosecution successfully proved the charge of Qatl-i-Amd liable to Tazir against Bukhshish Illahi, appellant. He was rightly convicted under Section 302(b),. P.P.C. By the learned Trial Court.
21. The learned Trial Court imposed the sentence of death upon Bukhshish Illahi, appellant. For the following reasons', we are of the View that death sentence in the case was not warranted in law:
(i) Bukhshish Illahi, appellant had no malice or illwill against Waheed Ahmad, deceased as per prosecution case. The earlier quarrel which served as a motive for the killing was between a brother's son of the deceased and the appellant. The available record does not show as to why Bukhshish Illahi, appellant chose to kill Waheed Ahmad, instead of his brother's son Saqib Khan against whom he had the motive.
' Bukhshish Illahi fired only one effective shot at the deceased. The deceased and the P.Ws. Were empty handed and defenceless. The appellant was in a position to cause much 'damage to the deceased and his companions but he confined himself to one fire .Shot only.
(iii) A combined examination of the Ex.PE, the site plan, Ex.PC and statements of the two eyewitnesses would show that at relevant time Bukhshish Illahi, appellant was present near the house of one Abid. It was the deceased who came out of his residential house and proceeded towards his assailant after hearing lalkara and challenge from the co-accused. Had Waheed Ahmad, deceased kept on sitting inside his hpuse despite hearing challenge and lalkara from his rival and had he not proceeded towards his assailant, the unfortunate incident resulting in his death would not have taken place. It is the prosecution case that the accused persons threw challenge while standing near the house Of said Abid and the deceased went towards the assailant accepting the challenge and suffered death at his hands. Keeping in view the mode and manner of incident it can be said that Waheed Ahmad also contributed towards his killing to some extent.
22. For what has been stated above, while maintaining conviction of Bukhshish Illahi, appellant, under section 302(b), P.P.C. We commute his death sentence into imprisonment for life with the benefit of Section 382-B, Cr.P.C.
23. The learned Trial Court imposed fine of Rs, 50,000/- on Bukhshish Illahi, appellant in utter disregard of the penal provisions of Section 302(b), P.P.C. Whereunder only the sentence of death or imprisonment for life are provided. We, therefore, treat the amount of fine as compensation payable to legal heirs of the deceased on its realization and in case of default thereof the convict Would suffer simple imprisonment for six months under Section 544A, Cr.P.C.
24. With the modification in the sentence of Bukhshish Illahi appellant to the above effect, Crl.
Appeal No, 643 of 2002 to his extent stands dismissed. However, for the reasons recorded in the preceding paragraphs, to the extent of Muhammad Rafiq and Isam Dad, appellants, it is allowed.
Muhammad Rafiq and Isam Dad, appellants are acquitted of the charge. Isam Dad, appellant is in.
Custody. He be set at liberty forthwith if not required to be detained in any, other case. Muhammad Rafiq, appellant is on bail and is discharged of his hail bonds.
25. Murder Reference No, 88 of 2004 is answered in the negative.
26. Death sentence recorded by the Trial Court against Bukhshish Illahi, appellant is NOT CONFIRMED. .