' MANZOOOR AHMAD MALIK, J.---This single judgment shall dispose of Criminal Appeal No,164 of 2007 titled "Muhammad Sadiq v. The State and another" filed by Muhammad Sadiq appellant against his conviction and sentence awarded to him by the learned Additional Sessions Judge Gujar Khan, District Rawalpindi and Criminal Revision No,298 of 2006 titled "Mst. Perveen Akhtar and another v. Muhammad Sadiq" enhancement of the sentence awarded to Muhammad Sadiq respondent from imprisonment for life to death sentence and for enhancement of the amount of compensation from Rs.2,00,000 to Rs.4,00,000 payable by Muhammad Sadiq respondent as both these matters have arisen out of the same judgment.
2. Muhammad Sadiq appellant along with his co-accused namely, Muhammad Arif, Qazi Muhammad Ishtiaq, Fazal Hussain (since acquitted) and Khan Bahadur (since dead) was tried by the learned Additional Sessions Judge, Gujar Khan .In case F.I.R. No,302 dated 30-8-2001 offence under sections 302/324/148/149, P.P.C. Registered at Police Station Mandra, District Rawalpindi. The learned Additional Sessions Judge vide. His judgment dated 21-7-2006 acquitted Muhammad Arif, Qazi Muhammad Ishtiaq and Fazal Hussain accused whereas, Khan Bahadur accused died during the trial, therefore, proceedings to his extent were abated. The learned Additional Sessions Judge convicted Muhammad Sadiq appellant 'to life imprisonment under section 302(b), P.P.C. He was also directed to pay Rs.2,00,000 (rupees two lac) as compensation to the legal heirs of the Ghulam Asghar deceased under section 544-A, Cr.P.C. In default whereof to further undergo six months imprisonment.
3. Feeling aggrieved by the above conviction and sentence, Muhammad Sadiq appellant has filed Criminal Appeal No,164 of 2007 against his conviction and sentence whereas, Mst. Parveen Akhtar widow of the deceased and Ghulam Abid brother of the deceased also filed Criminal Revision No,298 of 2006 for enhancement of sentence awarded to Muhammad Sadiq respondent from imprisonment for life to death sentence and also for enhancement of the amount of compensation from Rs.2,00,000 to Rs.4,00,000.
4. Briefly stated the facts of the case are that on 30-8-2001 Ghulam Asghar deceased, who was alive at that time, got recorded his statement (Exh.PE) that on the same day at about 1-00 p.m., he was going to the house of Mst. Nazeer Begum, his sister. When he reached near her house, Muhammad Sadiq appellant armed with .30 bore pistol, Muhammad Arif aimed with .12 bore carbine, Khan Bahadur armed with .12 bore gun, Haji Muhammad Ishtiaq armed with Danda and Fazal Hussain armed with hatchet were standing on the roof of house. On seeing him, Muhammad Ali (acquitted accused) raised lalkara to kill him. Upon which, Muhammad Sadiq appellant made a fire shot with his .30 bore pistol, which hit Ghulam Asghar on right side of his abdomen. Upon receiving the injury, he fell down. Muhammad Arif and Khan Bahadur fired at him many shots but they missed. Thereafter, all the accused came down from the roof while abusing him. Ehsan-ul- Haq, nephew of Ghulam Asghar who was present there was crying to save him. Haji Ishtiaq accused gave Danda blows to him which hit him on his right and left knees. Fazal Hussain accused gave a hatchet blow to Ehsan-ul-Haq P.W which hit him on palm of his right hand. Muhammad Anwar and Mubarik Ali P.Ws reached there and witnessed the occurrence. Both the P.Ws intervened and rescued Ghulam Asghar. All the accused fled away from the spot while making lalkaras.
' Motive for the occurrence was that the accused party wanted to purchase land belonging to one Muhammad Nazeer adjacent to the house of Ehsan-ul-Haq P.W.9 and Ghulam Asghar (deceased/ complainant) was creating hindrance in that deal and due to this grudge, all the accused caused him injuries.
5. Mst. Azra Begum wife of Muhammad Sadiq appellant got recorded a cross-version wherein, she stated that on 30-8-2001 at about 7-30 p.m. She was present in her house along with male members of the family when Ghulam Asghar (deceased) raised lalkara that come out, upon which she went outside the house and asked Ghulam Asghar not to quarrel. Ghulam Asghar inflicted hatchet blow which landed on her head; Muhammad Irfan inflicted a blow with iron rod which landed on her right and left arm. Muhammad Irfan also pulled earring from her right ear. In the meanwhile, Muhammad Ikram armed with rifle and Ehsan-ul-Haq armed pistol started firing.
' The people of the area intervened and saved her.
6. After completion of the investigation, the police submitted two separate reports under section 173 Cr.P.C. Regarding challan case and cross-version.
7. Copies as required under section 265-C, Code of Criminal Procedure were delivered to the appellant and his co-accused on 24-3-2003 and formal charge was framed against them on 10- 5-2003, to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as fifteen witnesses. Muhammad Nazir Constable appeared as P.W.1 and stated that he was handed over a sealed parcel said to contain .30 bore pistol which he deposited in the Forensic Science Laboratory. Raja Muhammad Amir A.S.-I. Appeared P.W.2 and stated and he while posted as Moharrar in the relevant Police Station kept the case property in the malkhana. Muhammad Waqar Constable appeared as P.W.3 and stated that after exhumation of the dead-body of Ghulam Asghar deceased by the medical board, he handed over one sealed parcel along with nine phials and another sealed parcel. Along with eight phials to the Investigating Officer. Mushtaq Ahmed appeared as P.W.4 and stated that the Investigating Officer handed over to him the said two sealed parcels which he deposited in the office of Bacteriologist.
Dr Syed Abdul Wahid APM appeared as P.W.5 and stated that he was Member of the Medical Board who conducted the medical examination on the disinterment of the dead body of Ghulam Asghar deceased. Asjad Mehmood Constable appeared as P.W.6 and stated that in his presence weapon of offence i,e, pistol .30 bore was recovered from the appellant. Qamar ud Din Draftsman appeared as P.W.7 and stated that he prepared the site plan of the place of occurrence. Ghulam Abid appeared as P.W.8 and stated that he identified the grave of Chulam Asghar deceased. Ehsanul- Haq (P.W.9) and Muhammad Anwar (P.W.10) furnished the ocular account of the case. M. Sabir retired S.-I. Appeared as P.W.11 and stated that on the basis of complaint he recorded formal F.I.R.
Imdad Hussain Shah S.-I. Who appeared as P.W.12 and stated that he started the investigation. Dur Muhammad (retired S.-I) P.W.13 also investigated the case and stated various steps of the investigation. Dr. Irfan Bashir Medical Officer, Holy Family Hospital Rawalpindi appeared as P. W.14 and stated that he medically examined Ehsan-ul-Haq the injured P.W. Dr. Khalid Moeed was produced as P.W.15 who stated that he medically examined Ghulam Asghar deceased while he was in injured condition. Mobarik Ali P.W. Was given up being unnecessary on 23-5-2006 whereas learned Special Public Prosecutor gave up Muhammad Zer P.W. Being dead and Ehsan-ul-Haq son of Mashib Hussain being wrongly mentioned in the calendar of witnesses on 25-5-2006. After tendering in evidence reports of the Forensic Science Laboratory Exh.PU regarding pistol .30 bore and Exh.PV regarding carbine .12 bore closed the prosecution evidence on 15-6-2006.
8. During the trial Khan Bahadur co-accused of the appellant died and proceedings to his extent abated. The statement of the appellant was recorded under section 342, Cr.P.C. In reply to question No,10 (as to why this case against you and why the P. Ws. Deposed against . You) the appellant replied as under:-- "In fact there was a demand of Rishta of the daughter of Pahlwan who is brother of Haji Ishtiaq etc. For Ahsan-ul-Haq P.W. But the same was refused. On 30-8-2001 at about 11-00 a.m. Haji Ishtaiq co- accused went to the house of Ahsan-ul-Haq P.W. To see his ailing sister. Ahsan-ul-Haq P.W. Took hatchet and pushed him out of his house while abusing him and the matter was settled due to intervention of women-folk. Ahsan-ul-Haq P.W. Informed Ghulam Asghar deceased who is his maternal uncle about his insult of abuses. The house of Ghulam Asghar deceased would be at a distance of 2 Km from the place of occurrence. After consultation, planning Ghulam Asghar deceased while armed with hatchet proceeded from his house towards my house while raising lalkara. In the meantime Irfan brother of Ahsan-ul-Haq armed with iron rod, Ahsan-ul-Haq armed with pistol his brother Ikram-ul-Haq armed with Rifle started towards our house. As soon as at about 1 p.m. Ghulam Asghar deceased while armed with hatchet raising lalkaras came near to my house, my wife Azra Begum went towards him to forbid him to quarrel but Ghulam Asghar deceased inflicted hatchet blow which landed on her head, Irfan brother of Ahsan-ul-Haq P.W inflicted iron rods which landed on her right and left arm, he also pulled ear-ring forcibly due to which her ear became injured. Ahsan-ul-Haq P.W and his brother Ikram-ul-Haq also made firing with pistol and Rifle respectively.
' Ghulam Asghar deceased received injury at the place of occurrence from the firing of Ahsan-ul- Haq etc. The occurrence was witnessed by Sakhawat Hussain and Piran Ditta. The occurrence took place near my house. After receiving injury by Ghulam Asghar at the hands of Ashan-ul-Haq etc. I fired in air few shots to frighten and to disbuse them from the place of occurrence. Azra Begum was shifted to RHC Mandra where she was medically examined and cross case under sections 337, A.(II) L(II)/34 was also registered against Complainant party.
' The complainant party has suppressed injuries of Arza Begum due to mala fide. P.W. Mubarak Hussain and Muhammad Anwar were not present at the spot. Similarly my co-accused Muhammad Arif, Khan Bahadar, Haji Muhammad Ishtiaq and Fazal Hussain were also not present there at that time. P.Ws. Are inter se closely related to each other. They have special grudge against us due to refusal of rishta and exchange of abuses on the day of occurrence. The so-called P.W Ahsan-ul-Haq never appeared before the police for quite sufficient time for recording the statement under section 161 Cr.P.C. The P.Ws have improved their version in dishonest manner.
Furthermore they have made fatal contradictions and their statements are self-contradictory and self negated to each other. The place where Ghulam Asghar was injured was changed by the complainant in connivance with police. The so called injuries on the person of Ahsan-ul-Haq P.W.
Are result of fall or self-suffered/inflicted being minor in nature. Furthermore there is explanation of his delay of his medical examination. Ghulam Asghar deceased died due to non proper medication or his negligence. The witnesses are interested. They have concealed the real manner and mode of occurrence. The motive set up by the prosecution is false. No independent witness has come forward or produced."
' The appellant did not choose to make a statement under section 340(2), Cr.P.C. However, he tendered in evidence copy of cancellation report of F.I.R. No,190 dated 17-5-2002 as Exh.DB, copy of statement of Dr. Irfan Bashir recorded as P.W. 1 in cross case titled as State v. Irfan and others as Exh.DC, attested copy of Sakhawat Hussain P.W.3 in cross-case titled State v. Irfan as Exh.DD, attested copy of statement of Mst.Azra Begum P.W.2 in the above mentioned case as Exh.DE, attested copy of complaint recorded on the statement of Mst. Azra Begum complainant dated 30- 8-2001 as Exh.DF. MLC of Mst. Azra Begum as Exh.DG, order of Zila Nazim Rawalpindi as Exh.DH and attested copy of report under section 173, Cr.P.C. In cross case titled State v. Irfan and others as Exh.DJ.
9. After conclusion of the trial Muhammad Arif, Qazi Muhammad Ishtiaq, Fazal Hussain were acquitted. However, the learned trial Court convicted the appellant and sentenced him as detailed above.
10. Learned counsel for the appellant, in support of this appeal contends that Ghulam Asghar deceased, in the first instance, was medically examined when he was alive by Dr. Khalid Mahmood P.W.15 who observed one injury on his person but after his death no post mortem examination was conducted, however, later on a Medical Board was constituted, dead-body of the deceased was disinterred and examined but the said Medical Board has not given any independent opinion and based its report on MLR Report, Surgical Units File, CMH Death Summary, Chief Chemical Examiner's report and report of Bacteriologist of the Government of Punjab; that the reports relied by the.
Medical Board for the formation of its opinion were not produced during the trial, therefore, there is no evidence on record regarding the cause of death of the deceased; that the report of the Medical Board was not put to the deceased during his statement recorded under section 342, Code of Criminal Procedure, therefore, it can safely be inferred that the cause of death is shrouded in mystery; that the deceased was even discharged from the hospital on 12-9-2001 as per medical report and as a matter of fact he did not die due to the injury attributed to the appellant rather according to the Medical Board cause of death of the deceased was "gun shot wound on abdomen, resulting in enterocutaneous fisulae, septicemia, septicemic shock, leading to cardiopulmonary arrest"; that the reports relied upon by the Medical Board for the formation of its opinion were withheld by the prosecution therefore, an adverse inference shall be drawn in view of Article 129(g) of Qanun-e-Shahadat Order, 1984; that Mst.Azra Begum wife of the appellant was also injured in the same occurrence and she was got medically examined by the Investigating Officer and even a cross-version was recorded on her statement wherein the complainant party was challaned but the injuries sustained by said Azra Begun were suppressed by the complainant party both before the Police as well as before the learned trial Court; that the version offered by the appellant, in the circumstances of the case, seems more probable and convincing; that one co- accused of the appellant namely Khan Bahadar died during the occurrence whereas three co- accused were acquitted by the learned trial Court but the prosecution did not file any appeal against their acquittal; that in the complaint (Exh.PE) it is clearly mentioned that firing was made by Muhammad Arif and Khan Bahadar and since the prosecution evidence has been disbelieved to the extent of Muhammad Arif, it cannot be believed against the appellant without any independent corroboration; that no empty was recovered from the spot and as such the alleged recovery of pistol .30 bore and report of the Forensic Science Laboratory, wherein it is mentioned that the pistol is in working condition, are of no avail to the prosecution; that house of the appellant is about one kilometer away from the house of the deceased whereas house of the appellant is at a distance of two fields from the house of Ehsan-ul-Haq (P.W.9) and there is no regular path from the house of the deceased to the house of Ehsan-ul-Haq (P.W.9) and in the circumstances version of the appellant is more probable; that version put forth by the deceased in his statement (Exh.PE) is altogether different from the ocular account furnished by Ehsan-ul-Haq (P. W.9) and Muhammad Anwar (P. W.10) as both these witnesses have not alleged any firing against Muhammad Arif (since acquitted) and Khan Bahadar (since dead) whereas according to statement of the deceased (Exh.P.E) it has categorically been stated that the deceased was also fired at by Khan Bahadar (since dead) and Muhammad Arif (co-accused, since acquitted) but the firing did not hit him and similarly deceased Ghulam Asghar concealed the firing which as per (Ehsan-ulHaq) P.W.9 and Muhammad Anwar (P. W.10) took place before the occurrence; that statement of the deceased has not been believed qua co-accused of the appellant as they have been acquitted; that statement of the deceased (Exh.P.E) cannot be considered as dying declaration because the Investigating Officer has not stated that the same was read over to him and he admitted the same as correct and moreso there was no immediate apprehension of death of the deceased when his statement was recorded; therefore, no sanctity is attached to Exh.P.E which is generally attached to dying declaration as the deceased admittedly died 2-1/2 months after making such statement; that it has been concluded during the investigation that in fact it was the complainant party who was aggressor and as such provisions of sections 302(a) or 302(b), P.P.C. Are not attracted in the case and at the most the case in hand is covered by the provisions of section 302(c), P.P.C.; that according to the statement of Ehsan-ul-Haq (P.W.9) the deceased was fired at the the lands of Sher Muhammad whereas according to Muhammad Anwar (P.W.10) the deceased was fired at in the courtyard of the house of Ehsan-ul-Haq P.W. And as per site plan (Exh.PD and Ex.PD/1) the deceased received injuries in the land of Nazeer, that since no blood has been taken into possession from the place of occurrence; that the statement of Ehsanul-Haq (P.W.9) under section 161 Code of Criminal Procedure was recorded on 8-4-2002 i,e, after about nine months of the occurrence and there is no explanation for the same; that Ehsan-ul-Haq (P.W.9) who was also injured in the case has been disbelieved by the learned trial Court as according to him he was caused injuries by Ishtiaq Hussain and Fazal Hussain but both these persons have been acquitted by the learned trial Court; that as far as Muhammad Anwar (P.W.10) is concerned he has stated that he was not on talking terms with Ehsan-ul-Haq (P. W .9), therefore, statement of P.W.10 cannot be believed; that the prosecution has not been able to produce any evidence as far as motive part is concerned and even it has not been believed by the learned trial Court; that intention of the appellant or his acquitted co-accused to kill the deceased is absolutely lacking, as according to the prosecution, the appellant and his acquitted co-accused were ex-army personnel and they were armed with firearms, therefore, had they any intention to kill the deceased, they could have easily accomplished.
11. Learned Deputy Prosecutor- General assisted by learned counsel appearing on behalf of wife of the deceased, who has also filed revision for enhancement of sentence of the appellant, opposes this appeal on the grounds that statement of the deceased Ghulam Asghar (Exh.P.E) was produced in the evidence by the prosecution dtiring the statement of lmdad Hussain Shah (P.W.12) and the said prosecution witness was not cross-examined on this aspect of his statement; that even if cross-examination conducted on Imdad Hussain Shah (P. W.12) is taken into consideration contents of Exh. P. E have been admitted; that after death of Ghulam Asghar, the statement Exh.P.E has become a dying declaration; that place of occurrence, as per prosecution, is the place between the house of the appellant and house of Ehsan-ul-Haq (P.W.9) and there is no contradiction between the same as even the appellant and his acquitted co-accused in their statements under section 342, Code of Criminal Procedure have not disputed the place of occurrence; that since statement of the deceased has become dying declaration, therefore, it does not require any corroboration; that in the statement (Exh.P.E). It is clearly mentioned that it was the appellant who caused the fatal shot to the deceased and the cause of death in this case as per medical board is the injury sustained by the deceased during the occurrence; that presence of Ehsan-ul-Haq (P.W.9) at the place of occurrence has not been denied by the defence side during his cross-examination that a specific plea has been taken by the appellant and in view of Article 121 of the Qanun-e-Shahadat Order, 1984 he was required to produce evidence in his support; but the appellant has not produced any evidence in support of his version: that the evidence of the cross version cannot be read in this case; that the prosecution has proved its case against the appellant beyond any shadow of doubt, therefore, the appeal be dismissed and while accepting Criminal Revision No,298 of 2006 sentence awarded to the appellant be enhanced.
12. I have heard the arguments of the learned counsel for the appellant, learned Deputy Prosecutor-General and the learned counsel for the complainant at length and perused the record with their able assistance.
13. Occurrence in this case took place at 1-00 p.m. On 30-8-2001 and the matter was reported to the Police on the same day at 2-30 p.m. Whereas F.I.R. (Exh.P.1) was recorded at 4-00 p.m. Ghulam Asghar Ideceased received fire-arm injuries and died on 18-11-2001 as such his statement was proved by Syed Imdad Hussain Shah (P.W.12) Investigating Officer of the case. Apart from that the prosecution has also produced Ehsan-ul-Haq (P.W.9) and Muhammad Anwar (P.W.10) who have supported the version of Ghulam Asghar. As far as contention of learned counsel for the appellant that injury could not be considered the cause of death of deceased is not convincing because the medical board in his report has categorically stated the cause of death in the following words:-- "gun shot wound abdomen, resulting in enterocutaneous fisulae, septicemia, septicemic shock: leading to cardiopulmonary arrest"
14. The appellant has taken a specific plea and it has been argued on behalf of the appellant that in fact the complainant side was aggressor and in the occurrence wife of the appellant was injured. She was got medically examined and a cross-version on her statement was also registered against the other side. It was further argued on behalf of the appellant that deceased died due to fire of Ehsan-ul-Haq (P.W.9) but the appellant's side has not produced any evidence to substantiate this plea. Even Mst.Azra Begum who is wife of the appellant has not been examined.
The appellant has tendered in evidence certain documents relating to the cross-version case. But the evidence produced by the parties in the cross version case cannot be read in this case.
However it is on the record that Mst. Azra Begum was injured in this occurrence as the same has been admitted by the Investigating Officer while appearing as P.W.12. He has further admitted that she was injured in the same occurrence and she was got medically examined by him on the same day and he also recorded a cross version against the complainant side. But this fact was concealed by the deceased in his statement (Exh.P.E) and in the statements made by the Ehsan- ul-Haq (P.W.9) and Muhammad Anwar (P.W.10) before the Police and the learned trial Court.
15. There is another fact of the case i,e, statements of Ehsan-ul-Haq (P.W.9) and Muhammad Anwar (P.W.10) are not exactly in line with the statement of the deceased because Ehsan-ul-Haq (P.W.9) and Muhammad Anwar (P.W.10) have stated that the deceased attracted to the place of occurrence because of firing which took place before the actual occurrence whereas no such firing has been mentioned in the statement of the deceased (Exh.P.E). I have already observed that the plea of the appellant is not acceptable because he has not produced any evidence in this respect.
In this. Backdrop of the situation I hold that both the parties have not approached the Court with clean hands and have tried to suppress their own role and to highlight the role of the other side. In a situation, the Court cannot be deterred by the incompleteness of the tale from drawing the inference that properly flows from the evidence and circumstances of the case. In this regard reliance is placed on "Syed Ali Bepari v. Nibran Mollah and others" (PLD 1962 SC 502) wherein at page 507, the Hon'ble Supreme Court of Pakistan has been pleased to observe as under:-- "Here we may observe that in a case of this type the parties do not generally come out with the true story. It is a normal incident of an "adversary proceeding" to minimize ones own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inference that properly flow from the evidence and circumstances."
16. As far as recovery of firearm is concerned, the same has no evidentiary value as no empty was taken into possession from the place of occurrence. In this case the motive set out by the prosecution is that the appellant's side wanted to purchase some land wherein the deceased was an obstacle. Learned trial Court has not believed this motive and even the prosecution has not produced any evidence to substantiate the same. Statements of the P.Ws. And statement of the deceased and the plea of the accused, if kept in juxtaposition, lead to a safe conclusion that it was a case of sudden fight. There was no long-standing enmity between the parties. However, the prosecution has proved its case as far the appellant is concerned. Now the question remains whether the case is covered under section 302(b), P.P.C. As held by the learned trial Court or section 302(c), P.P.C. As already observed it was a sudden fight without any premeditation and wife of the appellant, namely, Azra Begun was also injured, so, the case is covered under provisions of section 302(c), P.P.C., therefore, this appeal is partly allowed. Conviction and sentence awarded to the appellant is converted from section 302(b), P.P.C. To section 302(c), P.P.C. And the appellant is sentenced to 10 years R.I. With benefit of section 382-B, Code of Criminal Procedure. The sentence of compensation and the sentence of imprisonment in default thereof awarded to the appellant by the learned trial Court is, however, maintained.
17. For aforesaid reasons, Criminal Revision No, 298 of 2006 filed by Mst. Parveen Akhtar and others is dismissed.