' SAGHIR AHMAD, J.---In case F.I.R. No,58 dated 13-3-2003 under sections 302, 34, 109, P.P.C.
Registered with Police Station Faqirwali, Tehsil Haroonabad, Muhammad Riaz along with two others namely Munir Ahmad and Zahid Munir, was tried and on conclusion of the trial vide judgment dated 31-1-2004 the learned Additional Sessions Judge, while acquitting Munir Ahmad and Zahid Munir of the charges against them, convicted Muhammad Riaz under section 302(b), P.P.C. And sentenced him to death, with further orders to pay Rs,1,00,000 (one lac rupees) as compensation to the legal heirs of deceased Muhammad Asif, in default to undergo six months simple imprisonment. Criminal Appeal No,51 of 2004 has been filed by Muhammad Riaz challenging his above conviction and sentence, Criminal Appeal No,80 of 2004 has been filed by Muhammad Siddique complainant against the acquittal of Munir Ahmad and Zahid Munir, whereas, Murder Reference No,13 of 2004 has been sent by the learned trial Court in terms of section 374, Cr.P.C. All these matters are being decided through this single judgment.
2. The prosecution case in brief got lodged by Muhammad Siddique complainant (P.W.1) is that his father Muhammad Sharif had been allotted the disputed Ihata and the (complainant) intended to get it on lease, whereas, accused Munir Ahmad also wanted to get the said land through Muhammad Yaqoob (real brother of the complainant). The complainant moved an application to the District Officer (Revenue) through his father, but Munir Ahmad took Muhammad Yaqoob to the Court and obtained a stay order, which was later on dismissed. Munir Ahmad thus, nourished grudge and had also extended threats to the complainant. According to the F.I.R. Zahid Munir and Muhammad Munir had also manhandled Muhammad Asif (son of the complainant). On the fateful day at about Asr vela, Muhammad Riaz gave slaps to Atif Siddique (complainant's other son) who came to the house weeping. At Maghrib time, the complainant and Muhammad Asif were going to Muhammad Riaz and when they reached near the house of Mukhtiar Ahmad Arain, Zahid Munir and Muhammad Riaz armed with Chhuri emerged. When the complainant asked the reason from Muhammad Riaz for beating his son, Muhammad Riaz and Zahid Munir hurled abuses, Zahid Munir caught hold of Muhammad Asif from arms, whereas, Muhammad Riaz inflicted 2/3 Chhuri blows on his chest, Akhtar All son of Muhammad Shafi and Muhammad Siddique son of Ali Muhammad Arain also witnessed the occurrence. The accused ran away while brandishing their weapon, the injured Muhammad Asif was taken to the Hospital but he succumbed to the injuries.
3. After completion of formal investigation, initially the challan was sent to the court only to the extent of Muhammad Riaz convict but lateron the learned trial Court on an application by the prosecution also summoned the remaining two co-accused and charge was framed, to which the accused pleaded not guilty and claimed to be tried. During trial the prosecution examined eleven witnesses, which include the statement of the Investigating Officer Muhammad Farooq Inspector/SHO P.W.6 who deposed about his investigation notes: Muhammad Siddique complainant P.W.1 and Akhtar Ali P.W.2 made statements giving details of the occurrence: Dr. Muhammad Razman P.W.3 deposed about the autopsy conducted by him over the dead body of Muhammad Asif deceased and Nazir Ahmad P.W.7 is the witness who verified the recovery of crime weapon on the pointation of Muhammad Riaz accused/convict, whereas, all the remaining witnesses are formal in nature who gave details of their respective functions performed during the course of investigation and ultimately on conclusion of the trial, while acquitting to co-accused Muhammad Riaz was convicted and sentenced as detailed above.
4. We have heard the arguments of learned counsel for the parties and have also perused the record with their assistance.
5. Taking up the ocular account, we note that F.I.R. Was lodged with all promptness because the occurrence took place at about Maghrib time and the F.I.R. Had been got registered at 8-30 the same evening at the police station which was eight kilometers from the place of occurrence. The contents of the F.I.R. Were fully supported by the complainant while appearing in the witness box as P.W.1 who explained the narration right in line with the story as set up in the F.I.R. And also deposed about the motive part of the occurrence. His statement was further corroborated by statement of P.W.2. Akhtar Ali who fully toed the line of the complainant and the statements of both these witnesses are corroborating each other on almost all important aspects of the A case. Both the witnesses were subjected to cross-examination but nothing fatal to the prosecution could be brought out from their statements. However, we note a substantial and worth-noting contradiction in the statements of these two witnesses i.e, according to the F.I.R. As well as in his statement before the Court as P.W.1 the complainant took a stance that 2/3 Chhuri blows were given by Muhammad Riaz on the chest of Muhammad Asif, whereas, Akhtar Ali P.W.2 in his examination in chief deposed that deceased Muhammad Asif received one Chhuri blow on his chest and further during cross- examination he again admitted that after receiving one Chhuri blow. Muhammad Asif had fallen on the ground, thus, except above contradiction, we have not been able to find out any other inconsistency in the statements of above two eye-witnesses.
6. Apart from the above oral statements of the eye-witnesses, Dr. Muhammad Ramzan while appearing as P.W.3 deposed that he had conducted autopsy on the dead body of Muhammad Asif and noted the following injuries:--
1. An incised wound 3 x 1-1/2 cm on the left side of sternum at the medial end of 5th rib. Bone was exposed 5th rib & 1/2 sternums was cut.
2. Abrasion 1 x 1/2 cm on the front of right side of chest 6 cm below in the line of center of right clavicle.
3. Abrasion 1 cm x 1/2 cm on the an axillary line of right side of chest 1 cm below axilla.
' As shall be seen from the seat, dimension and nature of above mentioned injuries, it is quite apparent that in fact Injury No,1 was the fatal injury caused by sharp-edged weapon, whereas, Injuries Nos.2 and 3 were only abrasions, and according to the Medical Officer also the Injury No,1 was sufficient to cause death in ordinary course of nature. We are therefore, convinced that the medical evidence is more nearer to the statement of Akhtar Ali P.W.2, according to whom only one Chhuri blow had been inflicted by Muhammad Riaz on the chest of Muhammad Asif deceased.
Anyhow, the medical evidence, in such a situation, lends credible support to the ocular part of the prosecution story coming from the mouth of Akhtar Ali P.W.2 i.e, one Chhuri blow by Muhammad Riaz.
7. As regards motive, though even according to the F.I.R. Itself there was a dispute over some land and also that on the said day there had been a quarrel between the accused and a son of the complainant, but it depends on the psyche of the person how graver impact of the circumstances he keeps in his mind. Even otherwise, there is abundant case law on the point that motive alone cannot be made basis for recording conviction, as it being a double edged weapon can be a reason for the accused to commit the crime and also it can be a motivating circumstance for the complainant to falsely rope in some innocent persons.
8. Coming to the recovery of crime weapon i.e, Chhuri P.5 on the pointation of Muhammad Riaz convict/accused, Nazir Ahmad P.W.7 was examined by the prosecution to prove said recovery, but this witness during cross-examination admitted that he was called by the police, people of the village had also gathered at the time of recovery but they were sent out of the premises and that said Chhuri P.5 was made into sealed parcel by the Investigating Officer at the Police Station.
Analyzing the above statement of Nazir Ahmad P.W.7 we are of the view that the prosecution has not been able to prove the recovery of Churri at least through the statement of Nazir Ahmad P.W.7.
Even otherwise, Chhuri being an ordinary household article without any specific identification mark could easily be planted upon any person.
9. In view of the above, we are convinced that the prosecution case to the extent of Muhammad Riaz, so far as it relates to ocular account and motive, it stood sufficiently proved and also supported by the medical evidence. Therefore, conviction of Muhammad Riaz accused/ appellant under section 302(b), P.P.C. Being unexceptionable is upheld and maintained. However, while taking up the imposition of maximum sentence of death, as detailed above, although according to the prosecution case the crime weapon Churri was effected on the pointation of Muhammd Riaz, but firstly the statement of Nazir Ahmad P.W.7 who came forward to verify the said recovery, is not confidence inspiring and further it being an ordinary household article could easily be planted upon the accused, and that according to the statement of P.W.2 Akhtar Ali only one Chhuri blow was inflicted by Muhammad Riaz on the chest of Muhammad Asif and the statement of this witness also finds strength from the statement of medical officer. Further, with the assistance of learned counsel for the appellant we have also examined the first statement of Muhammad Riaz recorded by the police at the time of his arrest, wherein, he too had alleged that he had inflicted only one injury, although in his examination in terms of section 342, Cr.P.C. He came up with D altogether different version. However, it abundantly stood proved from the prosecution evidence itself that only one chhuri blow was given by Muhammad Riaz on the person of Muhammad Asif deceased which unfortunately proved fatal and in the, case of Muhammad Arshad and other's, PLD 1996 SC 122, the Hon'ble Supreme Court of Pakistan in such a situation where there existed some previous enmity and hostility between the parties and only one fire shot was attributed to the accused, converted the death sentence into life imprisonment. Respectfully following the above dictum of the apex Court, while maintaining the conviction of Muhammad Riaz appellant under section 302(b), P.P.C. We convert the death sentence with that of life imprisonment. However, the remaining sentence of compensation and imprisonment in default whereof, shall remain intact.
Criminal Appeal No,51 of 2004 is dismissed with above modification in sentence.
10. Taking up Criminal Appeal No,80 of 2004 challenging the acquittal of Munir Ahmad and Zahid Munir, the instant appeal to the extent of Munir Ahmad respondent already stands dismissed by the court vide order dated 31-3-2004, and similarly, while considering the case of Zahid Munir respondent, we note that he too was declared innocent during investigation and was only summoned by the learned trial Court on an application by the prosecution, but neither he was ever arrested by the police nor any sort of recovery was effected from him. We also note that the complainant during course of investigation had also sworn an affidavit Exh.DB in favour of Zahid Munir, although in Court he denied to have executed any such affidavit, but his signatures on the said affidavit were admitted by him and its execution was also witnessed by Raja Muhammad Ayub and Nazir Ahmad, but none of these two witnesses was produced to support the contention of the complainant that his signatures were in fact obtained on blank paper. This fact of affidavit also finds mention from Rapt. No, 6 dated 17-4-2003. In such situation, we are of the view that the learned trial Court recorded cogent and solid reasons while recording acquittal in favour of Zahid Munir and findings of acquittal cannot be interfered, merely for the reason that re-analysis of the same evidence may lead to another inference. Even otherwise after his acquittal, the respondent has earned a double presumption of innocence In his favour. Resultantly, we see no substance in this criminal appeal, which is accordingly dismissed.