Muhammad Anwar Bhaur, J.--Shamoan alias Shamman son of Noor Muhammad, the appellant along with Abdul Qadeer son of Muhammad Hussain, Altaf son of Mullah and Dara son of Nazra were tried by the learned Additional Sessions Judge, Okara for the murder of Muhammad Ramzan son of Kamal Din, brother of Muhammad Hussain-complainant in case F.I.R. No, 367, dated 3.8.1999, registered with Police Station Chuchak, District Okara for an offence under Section 302/34 P.P.C. The learned trial Judge found the appellant guilty of the said charge, convicted him under Section 302(b) P.P.C. and sentenced him to death with further direction to pay a sum of Rs, 1,00,000/- to the legal heirs of the deceased by way of compensation or in default of payment thereof to undergo simple imprisonment for six months. The said learned Judge by giving benefit of doubt to Abdul Qadeer, Altaf and Dara acquitted them of the charge.
2. The convict/appellant has approached this Court by filing Criminal Appeal No, 286 of 2004 to call in question conviction and sentente awarded to him through the impugned judgment, whereas the learned trial Court has sent Murder Reference No, 173 of 2004 seeking confirmation or otherwise of said sentence of death awarded to the appellant. We propose to dispose of both these matters together through this single judgment.
3. Occurrence in the instant case took place on 2.8.1999 at 10.00 p.m. in the revenue estate of village Thatha Mianwala Lasharian, situate at a distance of ten kilometres from Police Station Chuchak, District Okara. Muhammad Hussain-complainant, brother of Muhammad Ramzan deceased, reported the matter by making a complaint (Exh.PA) to Muhammad Akram, ASI (P.W.14) at Lorry Adda Lasharian on the same night i,e, on 3.8.1999 at 12.15 a.m., who despatched the same to the police station through a constable for formal registration of a case. On receipt thereof, Azhar Hussain, MHC (P.W.13) drew up formal F.I.R. (Exh.PA/1) on the same day at 1.00 a.m. correctly without any addition or alteration on his part.
4. Concisely, the facts bearing upon the charge available from the complaint (Exh.PA) lodged at the instance of Muhammad Hussain-complainant (P.W.3) are that he is resident of village Thatha Mianwala Dakhli Lasharian and is a labourer by profession; on the fateful night, at about 10.00 p.m., he along with his family members was present in his house; Muhammad Ramzan, Muhammad Tufail, Muhammad Zubair, his brothers and Mst. Siani Bibi, his wife, were busy in conversation with each other; all of a sudden, Shamman son of Noora (the appellant), armed with rifle, Altaf son of Mullah, armed with a carbine, Qadeer son of Muhammad Hussain, armed with .12-bore gun and Dara son of Nazra, empty handed, entered his house; all the four exhorted a Lalkara by warning them that nobody should commit any act, they have to take away Mst. Siani Bibi; he and his brothers Tufail and others immediately stood up and forbade Shamma and others from doing so; meanwhile, both the parties grappled with each other; during the course of quarrel, they came in front of their door on a metalled road; the complainant party tried to catch hold of the accused party, when Shamman-appellant made repeated fire shots through his rifle, which hit Muhammad Ramzan, who on receipt of injury fell down; when Muhammad Tufail stepped forward, Qadeer gave a butt blow on his head; on hearing commotion, Ghafoor son of Nazar Muhammad, Mansha son of Badar Din and others were attracted to the venue of crime; they chased Shamman appellant and apprehended him along with his rifle; during the course of scuffle, the appellant received simple injuries, whereas Qadeer and others succeeded in decamping from the scene; Muhammad Ramzan, in injured condition, was shifted to Okara hospital for treatment purpose.
Motive behind the occurrence, according to the complainant, was that two days prior to the occurrence, Shamman-appellant cut a joke with his wife Mst. Siani Bibi, whereupon hot words were exchanged between the two; having this grudge, the appellant along with his co-accused while carrying fire-arms entered his house and by making fire shots and giving butt blows caused injuries to Muhammad Ramzan and Muhammad Tufail. That is how, Muhammad Hussain- complainant (P.W.3), brother of Muhammad Ramzan deceased, laid a foundation for trial of the accused in accordance with law. Firstly, crime report was registered under Section 324/34 P.P.C. and upon death of Muhammad Ramzan, Section 302 P.P.C. was added to the list of offences.
5. Succeeding registration of case, investigation into the crime commenced and upon culmination thereof, the appellant along with his co-accused, namely, Abdul Qadeer, Altaf and Dara (since acquitted) were challaned to Court for their trial in accordance with law.
6. On receipt thereof, the learned trial Judge after fulfilling all legal formalities, framed charge and put the same to the accused, to which they pleaded not guilty and claimed to be tried. The prosecution was invited to adduce the best possible evidence available at its end, to bring home guilt to the under trials. In order to achieve its object, prosecution produced as many as fourteen witnesses in all, namely, Khadim Hussain, constable (P.W.1), Muhammad Ameer (P.W.2), Muhammad Hussain-complainant (P.W.3), Muhammad Tufail (P.W.4), Muhammad Mansha (P.W.5), Mst. Siani Bibi (P.W.6), Ubaid Ullah Khan, draftsman (P.W.7), Dr. Arshad Iqbal (P.W.8), Dr.Ishtiaq Ali (P.W.9), Bashir Ahmad, constable (P.W.10), Dr. Muhammad Ashraf (P.W.11), Muhammad Ashiq, retired Inspector (P.W.12), Azhar Hussain, MHC (P.W.13) and Muhammad Akram, ASI (P.W.4). Nazar llussain, Inspector was examined as C.W.
1. Out of the whole lot, evidence of Muhammad Hussain- complainant (P.W.3), Muhammad Tufail (P.W.4), Muhammad Mansha (P.W.5), Mst.Siani Bibi (P.W.6), Dr.Arshad Iqbal (P.W.8), Dr.Ishtiaq Ali (P.W.9), Bashir Ahmad, constable (P.W.10), Dr.Muhammad Ashraf (P.W.11) and Muhammad Akram, ASI (P.W.14) is of great significance, whereas that of remaining witnesses is of formal nature.
Muhammad Hussain-complainant (P.W.3); Muhammad Tufail (P.W.4), and Muhammad Mansha (P.W.5) are eye-witnesses of the occurrence and they reiterated the story of the F.I.R. Mst.Siani Bibi (P.W.6) deposed about attempt of her abduction at the hands of the appellant.
Dr.Arshad Iqbal (P.W.8) medically examined Muhammad Tufail and Shamman-appellant while in injured condition and observed three and sixteen injuries on their person, respectively. He prepared their medico-legal reports (Exh.PF & PG).
Dr.Ishtiaq Ali (P.W.9) conducted autopsy on the dead body of Muhammad Mumtaz deceased and observed following four injuries on his person:--
1. A lacerated wound in going margins were inverted measuring 2x2 cm on back of left knee joint (Entry wound).
2. A lacerated wound ingoing margins everted measuring 2 x 1 cm on inner side of the left knee.
3. A lacerated wound measuring 1 cm x 1/2 cm inner side of right lower part of thigh, in going margins were inverted.
4 A lacerated wound 2 cm x 1 cm ingoing margins everted outer side of lower part of right thigh, 2 cm above right knee joint.
The doctor opined that the cause of death is due to Injuries No, 1 to 4, which were caused by firearm weapon. Injury causing haemorrhage and shock was sufficient to cause death in the ordinary course of nature. According to him, the time between injury and death was 18 to 20 hours, whereas that between death and postmortem was about 15 to 16 hours. He prepared postmortem report Exh.PJ.
Bashir Ahmad, constable (P.W.10) was associated with the recovery proceedings by the Investigating Officer. In his presence, rifle (P1) recovered from the appellant was taken into custody vide memo. Ex h . PB .
Dr. Muhammad Ashraf (P.W. 11) medically examined Muhammad Ramzan deceased in injured condition and observed four injuries on his person.
Muhammad Akram, ASI (P.W.14) is the Investigating Officer of the case. He deposed about the duties performed and acts done by him during the course of investigation.
After all the essential evidence had been taken down by the trial Court, learned prosecutor tendered in evidence reports of Chemical Examiner, Serologist and Firearm Expert (Exhs.PU, PV & PX), respectively, and declared the prosecution case close.
7. All the incriminating material was put to the accused under Section 342 Cr.P.C., who proclaimed their absolute innocence in the matter. Shamoan alias Shamman-appellant, however, had admitted the occurrence but in a different manner. He while answering question Have you anything else to say? stated as under:-- "I am innocent. Mst. Rasoolan Bibi d/o Mahla has been divorced ' by her husband. She is d/o my Chacha. Her house is near my house. Muhammad Hussain PW had illicit relations with Mst.
Rasoolan Bibi arid I had forbidden Muhammad Hussain PW not to visit the house of Mst. Rasoolan Bibi. Muhammad Hussain PW kept grudge in his heart. There was circumcision ceremony of son of Bashir s/o Mohabat of my village, at the night of occurrence. Mst. Sakeena Bibi w/o Mansha had fractured her arm. I and Dara accused went to the house of Mst. Sakeena Bibi in order to see her welfare in her house. On that night I heard a fire shot noise came from the house of Bashir s/o Mohabat. On hearing this fire shot, we also fired in the air, which attracted Muhammad Zubair PW who came in the house of Mst. Sakeena. He inquired that who made this fire. There hot words were exchanged in between me, and Zubair. Zubair went away. After short time, Zubair, Muhammad Tufail, PWs, Ramzan deceased, Muhammad Ashraf, Manzoor, Ghafoor and Shan armed with sotas came in the house of Mst. Sakeena and started giving beating to me. The injuries landed on the different parts of my body. My leg and arm were also fractured due to these injuries. Due to the danger to my life, I fired in my self-defence to save my life, which hit Muhammad Ramzan on his leg. There was no intention to kill Ramzan but all this happened in order to save my life. The said occurrence was witnessed by Jafar s/o Khan, Aslam s/o Wasaiya and Mst. Sakeena Bibi. The complainant party with the connivance of the police got a false case registered against me. I tried to get my case registered against the complainant party but the police, being collusive with the complainant party did not record my version. Feeling aggrieved with the attitude of the police, I filed a private complaint, which is still pending in the Court of Mr. Anjum Mumtaz Malik, M.S.30, Okara."
They declined to make statements on oath under Section 340(2) Cr.P.C. in disproof of accusations brought against them. The appellant opted to produce evidence in defence and accordingly got examined Dr. M.Sagheer Ahmad Chaudhry, Mst. Sakeena Bibi and Khadim Hussain Bhatti, S.S.P. as D.Ws. 1 to 3, respectively.
8. After hearing both the sides and considering totality of facts and circumstances revolving around this matter, the trial court pronounced verdict of guilt against the appellant as aforementioned:
9. Learned counsel for the appellant in support of this appeal argued that there is two hours delay in lodging report of the incident with the police as the occurrence in this case had taken place on 2.8.1999 at 10.00 p.m., whereas statement (Exh.PA) was recorded on the same night i,e, on 3.8.1999 at 12.15 a.m. and the F.I.R. on the basis thereof was registered at 1.00 a.m. that as a matter of fact in this case it was the complainant side who entered the house of MU. Sakeena Bibi and inflicted as many as sixteen injuries on different parts of the body of the appellant and the appellant fired at the deceased in his right of private-defence and this is clear from the fact that the deceased received injuries on his legs; that all the witnesses being related inter-se are interested witnesses and their testimony has not been accepted by the learned trial Judge while acquitting co-accused of the appellant; that this is a case of two versions and the version put forth by the appellant is more probable in the circumstances of the case; that Mst. Sakeena Bibi appeared as D.W.2 and admitted that her house is adjacent to the house of the complainant and she has no relationship with the appellant or enmity with the deceased, therefore, her testimony is to be accepted and the injuries sustained by the appellant were suppressed by the complainant in the F.I.R. and even during cross-examination all the prosecution witnesses have accepted that they caused injuries on the person of the appellant; that the appellant was medically examined through police by Dr. Arshad Iqbal (P.W.8), who observed sixteen injuries on the person of the appellant and as per doctor's report duration between the injuries and medical examination was 48 hours and since the appellant was examined on' 5.8.1999, therefore, the injuries coincide with the occurrence; that even Dr. Sagheer Ahmad Chaudhry (D.W.1) while appearing before the Court stated that the appellant remained admitted in jail hospital as the appellant had received two fractures; that since the appellant inflicted injuries on the leg of the deceased, so he had no intention to kill the deceased; that the motive set up by the prosecution that two days prior to the occurrence, the appellant had cut a joke with the wife of the complainant, which was reprimanded by the wife of the complainant and, therefore, he entered the house of the complainant with a view to abduct her, has not been proved because Mst. Siani Bibi while appearing as P.W.6 has admitted that her statement was not recorded by the police during the course of investigation and even nobody else from the village has been produced in support of this version. Last of all, he argued that the appellant deserves clean acquittal and if he fails in his appeal, then in the alternative, he would pray for award of lesser sentence AS he had acted in his self-defence. In support of his contentions, the learned counsel has relied upon the cases of Syed Ali Bepari v. Ntharan Mollah and others (P.L.D. 1962 S.C.
502), Malik Waris Khan and another v. Ishtiaq alias Naga and others (P.L.D. 1986 S.C. 335), Muhammad Rafigue v. The State (2008 Y.L.R. 1725).
10.Conversely, learned Additional Prosecutor General Punjab for the State opposed this appeal on the grounds that the prosecution has successfully proved its case against the appellant; that the appellant was apprehended from the spot along with rifle, the weapon of offence and the report of Forensic Science Laboratory regarding empties recovered from the place of occurrence and the rifle recovered, from the appellant was in the positive; that if both the stories i,e, one by the prosecution and the other by the defence are put in juxtaposition, the story put forth by the prosecution is more probable and natural and the reason given by the appellant that he has gone to the house of Mst. Sakeena, who got fractures is also improable because if she (Mst. Sakeena Bibi) had got fractures about two months prior to the incident and they have no relationship with her, therefore, it is highly improbable that the appellant had gone there.
11.We have heard and considered respective arguments addressed by both the sides. We have also gone through the record with their able assistance.
12.In the instant case, the event had happened on 2.8.1999 at 10.00 p.m. in village Thatha Mianwala Lasharian, situate at a distance of about ten kilometres from the police station.
Muhammad Hussain-- complainant (P.W.3) made his statement (Exh.PA) before Muhammad Akram, ASI on the same night at 12.15 a.m., when he was available at Lorry Adda Lasharian, as a result whereof formal F.I.R. (Exh.PA/1) stood registered at the police station on 3.8.1999 at 1.00 a.m.
This F.I.R. not only contains names of the accused and witnesses but also reasons behind outbreak of the incident. Muhammad Hussain-complainant (P.W.3), Muhammad Tufail (P.W.4) and Muhammad Mansha in a nutshell ascribed the role of firing to the appellant. All the three witnesses have been disbelieved by the trial Court qua participation of co-accused of the appellant, who earned acquittal, but the appellant was found guilty of the charge, as he has admitted the incident in his statement under Section 342 Cr.P.C., wherein he had asserted that he had acted in- his self- defence. According to the prosecution, two days prior to the occurrence, the appellant had cut a joke with Mst. Siani Bibi (P.W.6), wife of the complainant (P.W.3) and an altercation had taken place between the two, due to which the appellant along with his co-accused had entered the house of the complainant, where he along with his brothers was sitting, and had made an attempt to, abduct Mst. Siani Bibi, but they were reprimanded by the complainant party from doing so, whereupon both the sides grappled with each other and came out of the house in front of the door and thereafter the appellant fired two shots hitting Muhammad Ramzan deceased, who on receipt of injuries fell down. He was shifted to hospital for treatment but could not survive and breathed his last after some time. The prosecution in order to prove its case produced Muhammad Hussain- complainant, Muhammad Tufail, injured and Muhammad Mansha as eye-witnesses of the occurrence, who furnished ocular account, however, in their cross-examination they had admitted that they had caused injuries to the appellant, which landed on different parts of his body. The ocular account furnished by them is corroborated by the medical evidence as well as recovery of weapon of offence and empties from the spot, the result whereof was positive report by Forensic Science Laboratory.
13.Analyzing the story independent of the version of the appellant, it appears highly improbable that a person who is cutting joke with a woman will go to her house in presence of other persons for her abduction after two days. Even Mst. Siani Bibi (P.W.6) stated that her statement was not recorded by the police and in the F.I.R. injuries on the person of the appellant have not been described in details, rather there is passing remarks that he sustained simple injuries, when he was apprehended at the spot. On the other hand, the story put forth by the appellant is that he had gone to the house of Mst. Sakeena Bibi along with Dara to know about her health as she had fractured her arm, when they heard noise of fire shot from the house of one Bashir son of Mohabat and on hearing the same, they also fired in the air, which attracted Muhammad Zubair, who came to the house of Mst. Sakeena and when he inquired that who fired this shot, a quarrel took place. In her cross-examination, Mst. Sakeena (D.W.2) admitted that the appellant and Dara are not related to her and at the relevant time her husband was not present at house, because he had gone to see some relative. She further stated she got fractured two months prior to the present incident, therefore, this also appears to be highly improbable as in village life and in normal circumstances one can go to his relative for inquiring about their health, but there was no relationship between the appellant and Dara, on one side, and Mst. Sakeena, on the other side, so this story is also not believable. In such like circumstances, it is for the Court to make efforts to find out the truth.
14.We have given our very serious consideration to the respective contentions of the learned counsel for the parties and gone through the record in detail with their able assistance. After going through the entire oral as well as documentary evidence available on the record, we have no other option but to conclude that it is a case of two versions however, both the parties have not come with true story. In this backdrop, we have to examine as to which version is more probable, believable and nearer to truth. There is another aspect of the case, which cannot be overruled, is that on the basis of similar ocular evidence three, co-accused of the appellant were acquitted by the trial Court by disbelieving the prosecution evidence, as such, conviction on capital charge of the present appellant cannot be upheld, unless the prosecution evidence has succeeded in furnishing independent corroboration to the ocular account, which has already been partly disbelieved by the trial Court. After having been disbelieved by the trial Court, it can safely be concluded that the eye-witnesses have not been found fully reliable witnesses, therefore, to entail maximum sentence on a capital charge required strong corroboration from other unimpeachable source. We have also taken into account very carefully the feet that the appellant had fired though twice, but on the legs of the deceased, which clearly shows that he had no intention whatsoever to kill Muhammad Ramzan deceased, which he could very easily achieve by firing right into his chest.
We have found that the ocular account is consistent with the medical evidence and corroborated by the recovery of gun from the appellant, which was found wedded by the Forensic Science Laboratory with the empties recovered from the spot. In view of this situation, we have come to the conclusion that this a sudden fight, in which the appellant had also suffered sixteen injuries, therefore, keeping in view the facts and circumstances of the case, we are of the view that this is not a case, which attracts the provisions of Section 302 (b) P.P.C. but is a case attracting the provisions of Section 302(c) P.P.C. We accordingly set aside the conviction of the appellant under Section 302(b) P.P.C. and instead convict him under Section 302(c) P.P.C. He is sentenced to undergo rigorous imprisonment for ten years. Order qua compensation and imprisonment in default thereof as ordered by the trial Court shall remain in tact. Benefit of Section 382-B Cr.P.C. shall be afforded to the appellant.
15. This appeal stands dismissed in the above terms.
16.Death sentence is not confirmed and Murder Reference is answered in the negative.