'MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No,540/07 (Shahid Navid etc. v. The State) and Murder Reference No,237 of 2007 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Shahid Navid appellant, as both these matters have arisen out of the same judgment dated 31-3-2007, passed by the learned Additional Sessions Judge, Faisalabad, whereby, appellants were awarded the following sentences:---
(i) Appellant Shahid Navid was convicted under section 302(b)/34 P.P.C. For the murder of Sardar Muhammad (deceased) and sentenced to death with a further direction to pay a compensation of Rs,50,000 to the legal heirs of the deceased as provided under section 544-A Cr. P.P.C. In default whereof to further undergo S.I. For six months. He was also convicted under section 337-A(i)/34 PPC and sentenced to one year RI with a further direction to pay Rs,5,000 as Daman to Nisar Ahmad injured P.W. He was further convicted under section 337-A(ii)/34 P.P.C. And sentenced to one year RI and to pay a Daman of Rs,5,000 to Nisar Ahmad injured P.W.
(ii) Appellant Muhammad Bashir was convicted under section 302(b)/34 P.P.C. For the murder of Sardar Muhammad (deceased) and sentenced to imprisonment for life with a further direction to pay a compensation of Rs,50,000 to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. In default whereof to further undergo S.I. For six months. He was also convicted under section 337-A(i)/34, P.P.C. And sentenced to one year RI with a further direction to pay Rs,5,000 as Daman to Nisar Ahmad injured P.W. He was further convicted under section 337-A(ii)/34, P.P.C. And sentenced to one year RI and to pay a Daman of Rs,5,000 to Nisar Ahmad injured P.W.
(iii) Sentences of imprisonment of Muhammad Bashir appellant were directed to run concurrently and he was given benefit of section 382-B Cr . P. C .
2. Brief facts of the case, as given by P.W.12 Muhammad Yousaf (complainant) in the F.I.R. (Exh.PE/1) lodged on the basis of complaint Exh.PE) are that on 21-7-2006 at about 11.00 p.m. He was sitting in his shop, when, Shahid Naveed (appellant) armed with a hatchet and Muhammad Bashir (appellant) armed with an iron rod (Sarya) entered into his shop. According to the complaint, Shahid Naveed (appellant) raised a Lalkara to given him a taste for quarrelling with them and started giving beating to him. It has been mentioned by the complainant in the F.I.R. That the hue and cry raised by him attracted his father Sardar Muhammad (deceased), brothers Nisar Ahmad (injured-PW13) and Muhammad Younis. It has further been mentioned in the F.I.R. That Shahid Naveed (appellant) gave a hatchet blow at the left back side of the head of his father Sardar Muhammad (deceased) and Muhammad Bashir (appellant). Then gave an iron rod (Sarya) blow hitting his father Sardar Muhammad (deceased) at the left back side of the head as a result whereof he fell on the ground and become unconscious. As per F.I.R., the complainant also alleged that then Muhammad Bashir (appellant) gave an iron rod (Sarya) blow on the left eye of his brother Nisar Ahmad who also fell down. As per F.I.R., both the appellants decamped from the spot while extending them threats. Complainant has stated that Sardar Muhammad (deceased) succumbed to the injuries on the way to hospital while Nisar Ahmad was admitted in the hospital.
The motive stated in the F.I.R. Was that few days prior to the occurrence an altercation took place between Muhammad Yousaf (complainant) and the accused persons regarding a wall and the appellants nursed a grudge in their mind.
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the appellants as required under section 265-C of the Code of Criminal Procedure, charge was framed to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced as many as 14 witnesses during the trial. The appellants were examined under section 342, Cr.P.C. They neither produced any evidence in defence nor opted to depose on Oath as required under section 340(2), Cr.P.C. However, the learned trial Court convicted and sentenced the appellants as detailed above. In answer to question as to "why this case against you and why the P. Ws. Have deposed against you:, Shahid Naveed (appellant), in his statement under section 342 Cr.P.C., replied as under:--- "It is false case. The PWs being closely related to the complainant have deposed falsely at his behest. It was a blind occurrence. The deceased did not suffer any injury on his person with the help of hatchet or sarya. A dispute took place for beating Mst. Abida by her husband Muhammad Khalil, their (accused persons) elder brother of the accused with the complainant and Muhammad Ashraf PW (since given up). As a result of the said dispute brick batting started at the odd pitch dark hours of the night between Khalil and Muhammad Ashraf aforesaid and during the brick batting a stray brick unluckily hit the deceased Sardar Muhammad, who was at the age of 65 years old and died, which was converted into this false case in order to grab the property due to business rivalry with the complainant. The complainant also introduced a false motive, which he could not substantiate. During the proceedings of this case, he improved his statement with mala fide due to the ill advice of a legal person. Due to the said fact, none from the village had supported the version of the complainant. A false F.I.R. Was chalked out in connivance with the police and, thereafter, managed to take false medical report of the injured in connivance with the doctor. False recovery of hatchet was also hatched on me. I have been involved in his case falsely".
'Muhammad Bashir (appellant), stated as under:--- "It is a false case. I have heard the answer given by my brother Shahid Navid. My answer is the same as that given by my brother. I am innocent and have been involved in this case falsely.
Nothing incriminating was ever recovered from my possession or at my instance".
5. Learned counsel for the appellants contends that the case against the appellants is false and concocted one; that the story of the prosecution, in the given circumstances, is not probable because in the F.I.R. It was alleged that the appellants while armed with a hatchet and iron rod (Sarya) entered the shop of the complainant and started giving beating on his person but there is no injury on his body as no Doctor has appeared in support of this allegation; that P.W.12 Muhammad Yousaf (complainant) and Nisar Ahmad (injured P.W.13) have made dishonest improvements in their statements because in the F.I.R. And statement recorded under section 161 Cr.P.C. It was simply mentioned that Muhammad Bashir (appellant) was armed with an iron rod (Sarya) but while appearing before the Court he has stated that although the said appellant was armed with an iron rod (Sarya) but was sharped from one side; that both these witnesses were duly confronted with their previous statements recorded under sections 154 & 161 Cr.P.C.
Respectively; that in the F.I.R., the complainant has stated that he was present in the shop when both the appellants entered into it, started giving him beating and on the ' intervention of his father, he was given hatchet and Sarya blows, whereas, while appearing before the Court, he has stated that he was given beating and then dragged. This dishonest improvement was made in order to bring the story in line with the Site Plan (Exh.PG/1) because father of the complainant allegedly received injury at a point which was at a distance of about 41 feet from the point where the complainant was allegedly given beating.
'Learned counsel further contends that the prosecution has not been able to substantiate the motive part of its story as no witness was produced in this respect; that the complainant submitted a written application to the police which is very unusual in the circumstances of the case and the version of the appellants that the deceased received injuries during the brick batting is more plausible, convincing and confidence inspiring. According to the learned counsel, recovery of hatchet is of no avail to the prosecution as it is an ordinary hatchet which is easily available in the market. As far as recovery of iron rod (Sarya) is concerned, learned counsel submits that it was not blood stained.
'Learned counsel has also argued that there is a conflict between the medical evidence and the ocular account qua Muhammad Bashir (appellant) because he was alleged to have caused an iron rod (Sarya) blow which landed on the head of the deceased but the Doctor, who conducted postmortem examination on the body of deceased Sardar Muhammad (deceased) has stated that both the injuries were caused with sharp edged weapon, so, in the afore-referred circumstances both the appellants are entitled to acquittal especially Muhammad Bashir (appellant) because he did not cause any injury on the person of the deceased and is attributed only an injury on the person of an injured P.W.
'Learned counsel lastly contends that if this Court is not persuaded with the argument of acquittal of the appellants then at least it is not a case of capital sentence qua Shahid Naveed (appellant) because it was a sudden fight and the prosecution has not been able to prove any motive or pre- mediation on the part of this appellant and as such provisions of section 34 P.P.C. Are not attracted; that the attack was not a pre-mediated one and that he caused only one injury on the person of the deceased.
6. Conversely, the learned Additional Prosecutor General for the State assisted by the learned counsel for the complainant, while vehemently opposing this appeal, contends that both the appellants are named in the F.I.R. With specific roles; that the natural eye-witness account was furnished by the prosecution and despite cross-examination the defence could shake nothing from their testimony; that the P.Ws. Had no enmity with the appellants to falsely depose against them during the trial; that, even otherwise, in such like cases substitution is a rare phenomenon; that the ocular account in this case is supported by the medical evidence, evidence of recovery and positive report of the Serologist; that even if the motive is not proved, then it is not fatal to the prosecution case; that the prosecution has proved its case against the appellants beyond any shadow of doubt; that the defence version is highly vague and improbable and that the convictions and sentences awarded to the appellants by the learned trial Court be maintained.
The learned APG adds that the prosecution has not proved its case against Muhammad Bashir (appellant) beyond any shadow of doubt.
7. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.
8. Occurrence in this case took place on 21-7-2006 at about 11-00 p.m. (night), the matter was reported to the police by P.W.12 Muhammad Yousaf (complainant) at 12-45 a.m. On 22-7-2006 at "Lasani Pulli", the formal F.I.R. Was registered at about 1-10 a.m. While, the distance between the place of occurrence and the Police Station was about 11 kilometers.
9. The prosecution, in order to prove the ocular account produced P.W.12 Muhammad Yousaf (complaint) and Nisar Ahmad (injured P.W.13) while the medical evidence in this case was furnished by P.W.1 Dr. Samiullah and P.W.2 Dr. Muhammad Naeem, P. W.1 medically examined Nisar Ahmad.P.W.13 and noted following injuries on his person:- "(1) A lacerated wound 1 1/2 c.m. x 1/2 c.m., bone, exposed on outer side of left eye-brow with fresh bleeding,
(2) An abrasion 1/2 c.m. x 1/2 c.m. With contused swelling 3 c.m. x 2 cm on left cheek, reddish in colour. P.W.2 Dr. Muhammad Naeem noted following injuries on dead body of Sardar Muhammad (deceased):- "(1) An incised wound 6 cm x 2 cm x depressed fracture of skull bone on left side of head in left parietal area, 4 cm above left ear and 6 cm from midline.
(2) An incised wound 2 cm x 1 1/2 cm with tractured skull on back of left side of head, 4 cm behind the left ear and 8 cm from posterior hair line.
' An abrasion 7 cm x 2 cm in size on front of left chest, in clavicular area, 12 cm above left nipple.
(4) An abrasion 9 cm x 1 cm in size on outer aspect of right side, 7 cm above right knee-joint".
10. The prosecution story furnished by P.W.12 Muhammad Yousaf (complainant) in the F.I.R. Was that when he was present in his shop both the appellants entered into it while armed with a hatchet and iron rod (Sarya), respectively, and started beating. But surprisingly no injury is available on the person of the complainant while it is the case of the complainant that it was the complainant who was attacked first and then his father was caused injuries when he intervened to rescue the complainant from their clutches. Even as per complainant, he was the target of attack but he has not received any injury on his person. If this version is accepted as correct then question arises, why the complainant was not injured by the appellants. Further more, the motive alleged by the complainant and the injuredP.W. Has also not been proved by the prosecution, so, in our view, the occurrence, as claimed by the Prosecution Witnesses, did not take place in the manner alleged by them. On the other hand, the defence version has been furnished by the appellant Shahid Naved, in his statement made before the Court under section 342, Cr.P.C. Which was adopted by the other appellant Muhammad Bashir. It was to the effect that a dispute took place between complainant and Muhammad Ashraf for beating Mst. Abida by her husband Muhammad Khalil and, as a result of the said dispute, brick batting started at the odd pitch dark hours of the night between the said Khalil and Muhammad Ashraf and it was during the said brick batting that a stray brick unluckily hit Sardar Muhammad (deceased), aged 65 years, who died, and the said accidental death was converted into the instant criminal case just to grab the property. This version/plea is not believable because the appellant has not produced any evidence to substantiate this plea as required under Article 121 of the Qanun-e-Shahadat Order, 1984.
11. We have noted that it is a case of two versions one set up by the prosecution in the F.I.R. And statements of the P.Ws. Before the Court while the defence version was put forth by both the appellants in their statements recorded under section 342 Cr.P.C. We are of the view that neither the versions of both the parties are totally correct nor probable. In this backdrop of the situation, we hold that both the parties have not approached the Court with clean hands and have tried to suppress their own role and have made an attempt to highlight me role of the other side, therefore, in such a situation, the Court cannot be deterred by the incompleteness of the tale from drawing the inference that properly flow from the evidence and circumstances of the case. In this regard reliance is placed on Syed Ali Beopari v. Nibaran Mollah and others (PLD 1962 Supreme Court 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 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 one's own part in the incident.
In B 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....".
The circumstances of this case suggest that it was a sudden fight without any pre-meditation and immediate cause of the incident is not known.
12. At first, we would like to take up the case of Muhammad Bashir (appellant). Site Plan (Exh.PG/1) shows that father of the complainant received injuries at "Point No,2" which is at a distance of about 41 feet from the place where the complainant was sitting. Moreover, in the F.I.R. It is mentioned that Muhammad Bashir (appellant) was armed with a "Sarya" and caused an injury with the said "Sarya" on the front of left side of head of the deceased. The perusal of report of the postmortem examination conducted by PW2 Dr. Muhammad Naeem on the body of Sardar Muhammad (deceased) shows that there are four injuries in all on his person out of whom two are incised wounds and two are abrasions. According to the Doctor Injuries Nos.1 and 2 were with sharped edge weapon. In the F.I.R. It is simply stated that Muhammad Bashir (appellant) was armed with a "Sarya" but there is no mention whether the same was sharp edged or not but while appearing before the Court, both the witnesses have changed their stance by stating that Muhammad Bashir (appellant) was armed with a "Sarya" which was with sharped edge from one side. P.W.12 Muhammad Yousaf and P.W.13 Nisar Ahmad, while appearing before the Courts made an attempt to bring their case in line with the medical evidence by stating that the "Sarya" which was allegedly recovered at the instance of Muhammad Bashir (appellant) was having one sharped edge. They were duly confronted with their previous statements recorded under sections 161 & 154 Cr.P.C.
The Investigating Officer P. W.14 Muhammad Ashraf S.-I. Had examined the, "Sarya" (P3) in Court and admitted (at page 4 of his statement) that it was not sharp edged from both the sides. Even there is no report of the Serologist in this respect. Therefore, the recovery of "Sarya" at the hands of Muhammad Bashir (appellant) is of no avail to the prosecution.
13. Therefore, in our view, the case against Muhammad Bashir (appellant) is of doubtful in nature and the prosecution has failed to prove its case against the said appellant beyond any shadow of doubt qua E the murder of Sardar Muhammad (deceased). It is settled by the Apex Court of the country that in case of doubt, its benefit must go to the accused not as a matter of grace but of right. The same proposition came up for consideration in the case reported as Muhammad Akram v. The State (2009 SCM R 230), wherein, at page 236, the Hon'ble Supreme Court of Pakistan, held as under:-- "13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCM R 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a Matter of right", (emphasis supplied).
14. There is yet another aspect of the case. Muhammad Bashir (appellant) is also F attributed an injury on the person of Nisar Ahmad (injured-PW13) near the left eye. The said injured PW has appeared before the Court to prove the said injury which finds support by the medical evidence furnished by P.W.1 Dr. Samiullah who noted the same as Injury No,
1. In this view of the matter, while maintaining his conviction under section 337-A(i)(ii), P.P.C. For the injury caused on the person of Nisar Ahmad (injured P ,W . 13), Muhammad Bashir (appellant) is extended the benefit of doubt and is acquitted from the charge of murder of Sardar Muhammad (deceased), His sentences of imprisonment under sections 337-A(i)(ii) F.P.C. For the above mentioned injuries are directed to run concurrently and he is given the benefit of section 382-B, Cr.P.C.
15. Now, we would like to take up the case of Shahid Naveed (appellant), P.W.12 Muhammad Yousaf (complainant) and Nisar Ahmad (injured-P. W.13) have appeared to prove the ocular account against this appellant. Their statements corroborate each other on material aspects of the case as far as this appellant is concerned. Both the parties are known to each other, so, no question of false identity arises. The ocular account furnished by them against this appellant inspires confidence.
The allegation against this appellant was that he caused a hatchet blow on the left back side of the head of the deceased which has been noted by P.W.2 Dr. Muhammad Naeem as Injury No,1, so, the ocular account in this case finds support from the medical evidence. The ocular account against this appellant finds further support from the recovery of hatchet (Exh.PJ) at the instance of this appellant and positive report of the Serologist (Exh.PN/1). Therefore, we are of the considered view that the prosecution has proved its case against Shahid Naveed (appellant), therefore, the conviction of the said appellant under section 302(b), P.P.C. For the murder of Sardar Muhammad (deceased) is maintained. It has already been held by us that it was a case of sudden fight. We have also noted that Nisar Ahmad (injured-P. W.13), while appearing before the Court, has not attributed any injury to this appellant on his person, hence, provisions of section 34 P.P.C. Are not attracted in this case, therefore, he is acquitted from the charges under sections 337-A(i)(ii)/34 P.P.C. For the injuries on the person of the said P.W.
16. But, simultaneously we have noted that it is not a case of capital sentence qua Shaid Naveed (appellant) for the reasons, firstly, motive part of the prosecution case was that there was a quarrel between both the parties regarding a wall but no evidence has been produced by the prosecution to substantiate the said part of its case. Muhammad Ashraf S.-I.(P.W.14), who was Investigating Officer of the case has admitted at page 5 of his statement that the complainant party did not produce any proof or witness in respect of the motive, so, in our view the prosecution has failed to prove the motive part of its story, secondly, he is attributed only one injury on the person of the deceased, thirdly, it is not known as to what exactly happened at the spot prior to the occurrence as the circumstances suggest that it was not a pre-planned murder. To fortify our view, qua mitigation in case where motive alleged but not proved and immediate cause of incident being shrouded in mystery, reliance is made to the case of Muhammad Ayaz Khan v. Murtaza and others 2008 SCM R 984 wherein, at page 986, the august Supreme Court was pleased to observe as under:- 'The High Court having considered the circumstances leading to the occurrence modified the sentence with the consideration that motive set up by the prosecution was not proved and the immediate cause of the occurrence was also not unfolded. This is correct that motive is not always an essential element of murder and weakness or absence of motive by itself may not be a valid reason for lesser punishment but in the present case, the prosecution has not been able to bring on record the material facts relating to the manner of taking place the occurrence and the immediate cause of occurrence, therefore, apart from the motive, the mystery in the circumstances leading to the occurrence would create sufficient mitigation in favour of the accused for lesser punishment".
'In Noor Muhammad v. The State and another (2010 SCM R 97) at page 101, the Hon'ble Supreme Court of Pakistan, has been pleased to observe as under:- .Thus the prosecution has failed to prove the motive. It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar (1979 SCM R 214) that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim Ali v. The State (1971 SCM R 432) it has been held that the prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defence. In the case of Ameenullah vs. State (PLD 1976 SC 629), it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story".
'The question of mitigation on account of non-existence of pre-mediation and the occurrence having taken place at the door of the accused came up for consideration before the august Supreme Court of Pakistan in the case of Muhammad Ibrar s. The State (2006 SCM R 1175), wherein, at page 1179, the apex Court of Pakistan observed as under:- 'The main reason which weighed with the learned High Court for reduction in sentence of petitioner was that it was not a pre-meditated incident and that it took place at the door of petitioner.
Impugned judgment is based on proper appraisal of evidence and does not require interference".
'Apart from above, the question of discretion in awarding sentence to the accused in case of "Qatl- e-Amd" came up for consideration before the august Supreme Court of Pakistan in the case of Iftikhar Hassan v. Israr and another (PLD 2007 SC 111) and we are of the affirmed view that it is a fit case in which such a discretion needs to be exercised. In the said judgment, at page 119, the learned apex Court has been pleased to hold as under:- ".....The difference of punishment for Qatl-e-amd as Qisas and Tazir provided under sections 302(a) and 302(b) P.P.C. Respectively is that in case of Qisas, Court has no discretion in the matter of sentence whereas in case of Trial Court may award either of the sentence provided under section 302(b) P.P.C. And exercise of this discretion in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of Qisas if he is minor at the time of occurrence but in a case in which Qisas is not enforceable, the Court in a case of Qatl-e-Amd, keeping in view the circumstances of the case award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v State (2004 SCM R 4), Faqir Ullah v. Khalil-uz-Zaman (1999 SCM R 2203), Muhammad Akram v. State (2003 SCM R 855) and Abdus Salam v. State (2000 SCM R 338)".
17. In view of the above discussion, the sentence of death of the Shahid Naveed (appellant) is converted into imprisonment for life. The amount of compensation and the imprisonment in default thereof as ordered by the learned trial Court shall remain intact. Benefit of section 382-B Cr.P.C. Is extended to the appellant. This appeal is partly allowed in the above noted terms.
'Murder Reference is answered in the Negative and sentence of death is not confirmed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.