1. SARDAR TARIQ MASOOD, J.---Four accused persons namely Allah Ditta, Faqir Hussain alias Boda, Mushtaq and Umar Hayat were tried by the learned Addl. Sessions Judge, Multan in case F.I.R. No, 279 dated 10-10-2002 registered under sections 302/324/34/109, P.P.C. at Police Station Makhdoom Rasheed District Multan for the murder of Rab Nawaz deceased and for an attempt at the life of Ghulam Rasool and Allah Wasaya injured P.Ws. The learnedtrial Judge vide judgment dated 12-6-2004 acquitted Faqir Hussain alias Boda, Mushtaq and Umer Hayat of the charge whereas convicted and sentenced Allah Ditta appellant as under:--
(i) Under section 302(b), P.P.C.
2. He was sentenced to death. He was further directed to pay Rs,1,00,000 as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased or in default thereof to further undergo 6 months' S.I.
(ii) Under section 324, P.P.C. He was sentenced to 5 years' R.I.
3. Allah Ditta appellant has filed Criminal Appeal No, 378 of 2004 against his conviction and sentence whereas the learned trial Court has sent a reference (M.R. No,60 of 2009) for the confirmation of death sentence of the appellant. We propose to dispose of both these matters by this single judgment.
2. Brief facts of the case as disclosed by P.W.3. Ghulam Rasool complainant are that on 10-10-2002 at 3-30 p.m. he along with his son Rab Nawaz (deceased), P.W.4. Muhammad Ramzan and Ibrahim were sitting in his house. In the meanwhile, Faqir alias Boda and his son Allah Ditta both armed with rifles came there. They said that they will teach lesson to the complainant for not leaving the possession of the land. Allah Ditta fired a shot which hit to Rab Nawaz near umbilicus. Faqir alias Boda tired a shot hitting Rab Nawaz on his right flank. P.W.5 Allah Wasaya, servant of the complainant tried to snatch the rifle from Allah Ditta who again fired a shot which hit Allah Wasaya on his right arm. Faqir alias Boda caused injury to the complainant with butt of the rifle on his head.
4. The accused party gave threats to the complainant and fled away from the place of occurrence.
5. Rab Nawaz died at the spot. The allegation against Mushtaq and Umar Hayat was that Allah Ditta and Faqir alias Boda committed this offence on their instigation.
6. Motive behind this occurrence was dispute of land between both the parties. The suit was decided in favour of the complainant party, as a result of which, the accused party committed this offence.
3. After completion of investigation, challan was submitted against the accused. Charge was framed, to which, they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as 8 P.Ws. in all and also tendered documentary evidence.
7. P.W.1 Dr. Ghulam Asghar Shah conducted the post-mortem examination of Rab Nawaz deceased on 11-10-2002 and found two lacerated injuries on his person. In his opinion, death had occurred due to rupture of various blood vessels of abdomen including lower part of abdominal iota. Injuries Nos. 1 and 2 leading to severe haemorrhage leading to shock and death. These injuries were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by fire-arm. Probable time which elapsed between injuries and death was immediate and between death and post-mortem examination was about 24 to 30 hours.
8. On the same day, he examined Ghulam Rasool and found one blunt weapon injury on his person vide MLR Exh. PD. He also medically examined Allah Wasaya and found two lacerated wounds on his person but he kept three injuries under observation for the- kind of weapon vide MLR Exh:PE.
9. P.W.2 Mushtaq Ahmad Patwari Halqa prepared site-plan Exh.PH, Exh.PH/1 and Exh.PH/2 upon the instructions of the police.
10. P.W.3 Ghulam Rasool complainant stated that on 10-10-2002 at about Deegar. Wela, he along with his son Rab Nawaz deceased, Muhammad Ramzan arid Ibrahim was sitting in his house. Allah Ditta and Faqir Syne came there. They were armed with rifles. Allah Ditta fired at Rab Nawaz. Faqir Syne caused injury to him on his head. Allah Wasaya came there. Allah Ditta fired at Allah Wasaya and caused injury on his arm. Rab Nawaz died at the spot. He recorded his statement Exh.Pl before the police.
11. P.W.4 Muhammad Ramzan is the eye-witness of this occurrence and is son-in-law of the complainant. He supported the version of P.W.3 Ghulam Rasool complainant.
12. P.W.5 Allah Wasaya is an injured witness of the occurrence who also supported the complaint Exh.PJ lodged by P.W.3 .3 Ghulam Rasool.
13. P.W.6 Abdul Sattar S.-I. investigated this case. He recorded the statement Exh.PJ of Ghulam Rasool complainant at Chak No, 5/T at 4-15 p.m. He dispatched the same to the police station for formal registration of F.I.R. He inspected the spot and prepared injury statement Exh.PB and inquest report Exh.PC. He sent the dead bodys, of Rab Nawaz, injured Ghulam Rasool and Allah Wasaya to the hospital for their examination. He obtained blood-stained earth from the place of occurrence, through memo. Exh.PL. He collected two empties of .44 bore P. 1 and P.2 vide recovery memo. Exh.PK.
14. He prepared rough site-plan Exh.PO. After post mortem examination, Ijaz Hussain constable brought blood-stained shirt P.4, Chadar P.5 vide recovery memo. Exh.PN. He arrested Allah Ditta appellant on 18-10-2002. On 20-10-2002, he led to the recovery of rifle P.3 which took into possession vide memo. Exh.PF.
15. P.W.7 Bashir Ahmad. HC stated that Abdul Sattar S.-I. handed over to him three sealed parcels of blood-stained earth, empties and rifle for onwards transmission to the office of Chemical Examiner and Forensic Science Laboratory. He handed over those parcels to P.W.8 Ijaz Hussain Constable for onward transmission to the office of Chemical Examiner and. Forensic Science Laboratory which were delivered intact.
16. P.W.8 Ijaz Hussain constable delivered three sealed parcels of this case in the office of Chemical Examiner and FSL.
17. Learned ADA produced Chemical Examiner's Exh.PQ, that of Serologist Exh.PS, FSL report Exh.PR and closed the prosecution case.
4. The statement of Allah Ditta under section 342, Cr.P .C. was recorded. He denied the prosecution allegations levelled against him and stated that due to personal grudge and dispute of land, the case has been registered. In fact, Imam Bakhsh father of P.W.4 Muhammad Ramzan got a case Nos. 317/96 under sections 18/7/79 registered against him, in which he was acquitted. The dispute of land between him and the complainant party is also one of the reason for registration of this case. Neither lie opted to appear under section 340(2), Cr. P. C. nor he produced defence evidence.
5. Learned counsel for the appellant contended that the ocular account is contradicted by the medical evidence, due to which, prosecution case has become doubtful. According to the learned counsel for the appellant, the fire shot attributed to Faqir Syne was found to be an exit wound by the doctor and this clear contradiction indicates that the witnesses had made false statements.
18. Further contended that in the F.I.R., it is mentioned that they were sitting in the house whereas during the trial, all the witnesses stated that they were outside the house and this improvement made by the witnesses supported the defence version. Also contended that in the F.I.R., it is mentioned that PW-5 Allah Wasaya tried to snatch the rifle from the hand of the appellant but during the trial, all the witnesses took a somersault and stated that he did not try to snatch the rifle because assertion in the F.I.R. of snatching the rifle was supporting the version of the appellant.
19. Lastly contended that the appellant was injured in the occurrence and his injury was totally suppressed by the prosecution. At the last, learned counsel for the appellant argued that the prosecution could not prove the motive and it is alleged by the prosecution that the appellant came at the spot along with his father Faqir Syne and there is a possibility of his having acted under the 'influence of his father. Further argued that the suppression of injury on the person of the appellant is also a circumstance which shows that the prosecution had suppressed something which occurred immediately before the occurrence and due to these three circumstances, capital punishment cannot be awarded to the appellant.
6. On the other hand, learned Deputy Prosecutor General for the State assisted by the learned counsel for the complainant although 'frankly conceded that the story mentioned in the F.I.R. regarding the fire shot by Faqir Syne is belied by the medical evidence but according to the learned counsel, so far role of the appellant is concerned, it is fully corroborated by the medical evidence. Further submitted that P .W.3 Ghulam Rasool and P.W.5 Allah Wasaya are the injured witnesses and their presence cannot be doubted. Also submitted that during cross-examination, the presence of appellant was admitted but giving some other story and the defence version put forward to the witnesses is not plausible. Lastly, it is submitted that the appellant was attributed two fire shots, one on the deceased and the other on Allah Wasaya and from the place of occurrence, two empties were recovered which were found waded with the rifle recovered at the instance of the appellant.
7. We have heard the arguments of learned counsel for the parties and have gone through the record with their able assistance.
8. In this case, occurrence took place at 3-30 p.m. whereas the F.I.R. was chalked out at 4-40 p.m. and the complaint was sent from place of occurrence at 4-15 p.m. and the role of the appellant is mentioned in the F.I.R. that he made a fire shot hitting deceased near his umbilicus. It is' also mentioned in the F.I.R. that another fire shot by the appellant hit Allah Wasaya on his right arm.
20. According to P.W.1 Dr. Ghulam Asghar Shah, fatal fire-arm injury was found on the person of deceased in the abdomen 10 c.m. from umbilicus. According to the doctor, the said injury caused rupture of various vessels of abdomen including lower part of abdominal iota which led to severe haemorrhage leading shock and death. It is also mentioned in the and statements of witnesses that fire shot by the appellant hit Allah Wasaya on his right arm and according to the doctor, there was a fire-arm injury on his right arm with an exit wound. Although, medical evidence cannot specify the name of the assailants but medical evidence confirmed the assertion made by the eye-witnesses, then it is strong supporting evidence to the ocular account which is available in this case.
21. Apart from this, two empties of .44 bore P. 1 and P.2 were recovered from the spot vide memo.
22. Exh.PK on the day of occurrence which were deposited to the office of Forensic Science Laboratory on 15-10-2002 much prior to the arrest of the appellant as he was arrested on 18-10-2002.
23. Subsequently, during investigation on 20-2-2002 the appellant got recovered rifle P.3 along with its licence P.3/1-2. The said rifle was deposited to the office of FSL on 24-10-2002 intact. The report of FSL Exh.PR confirmed that the empties recovered from the spot were found to have been fired from the licensed rifle of the appellant; hence the recovery of rifle, empties and the report of FSL further corroborated the ocular account.
24. No doubt, the witnesses are related to the deceased and also inimical to the appellant but as there is sufficient corroboration available as mentioned above, hence their evidence cannot be discarded only on the ground of relationship with the deceased and animosity towards the appellant.
25. From the above mentioned circumstances, the prosecution had proved the case against the appellant beyond any shadow of doubt.
26. With regard to the quantum of sentence, there are certain circumstances which entail mitigation in this case. According to the prosecution, deceased and witnesses were present in the house but during the trial, all the witnesses changed the venue of occurrence and stated that they were outside the house. The accused had taken a plea that when he was being abducted and was being taken in house of the complainant, on his hue and cry, the wife of the appellant brought a rifle which A was snatched by Allah Wasaya and Allah Wasaya made fire shot hitting the deceased. According to the defence, he was injured by the complainant side during that process.
27. This assertion of the defence is not plausible but Exh.PP confirmed that at the time of arrest, the appellant was having an injury on his head. The said injury-was simple in nature but duration of the said injury was 8 to 10 days and the said injury was caused by blunt weapon. Suppression of the said injury is a circumstance which indicates that the prosecution had concealed something which occurred prior to the occurrence, still this does not dismantle the stable prosecution structure.
28. Another circumstance is that in the F.I.R. it is mentioned that the complainant Ghulam Rasool was having dispute with the appellant and his father but surprisingly Ghulam Rasool was available there but neither the appellant nor Faqir Syne fired any shot upon Ghulam Rasool who was available there. If the motive asserted by the prosecution was true, then Ghulam Rasool should have been the first target. Regarding motive, it is mentioned that the dispute of land between Ghulam Rasool and the appellant and his father was going on and the Court decided the case in favour of the complainant but no such document or decision was produced by the prosecution. On the other hand, it was the case of the defence that actually the decision was in their favour, due to which, the complainant party attacked upon the appellant and tried to abduct him. Although, both the sides admitted the motive part but it is very important aspect that in whose favour the decision was made in the Court. It is the primary duty of the prosecution to prove the same by producing the best evidence but no document was produced during the investigation or during the trial.
29. Astonishingly, in the F.I.R., it is mentioned that both the accused had committed this offence on the abetment of Mushtaq Ahmad and Umer Hayat but no reason was given in the F.I.R. or in the investigation or during the trial why Mushtaq and Umer Hayat wanted to get murdered the deceased; meaning thereby the prosecution had concealed something from the Court regarding the reasons for murder of Rab Nawaz deceased.
30. Lastly, another circumstance which also persuaded us for going towards the mitigation in this case is that in the F.I.R., it is specifically mentioned that shot fired by the appellant hit near umbilicus and the shot fired by Faqir Syne, father of the appellant hit the deceased on his flank. Admittedly, the inquest report which was prepared by the I.O., in brief history of the case, it is mentioned that Faqir Syne and Allah Data while armed with rifles came, raised lalkara and then made firing, due to which, Rab Nawaz deceased was injured and due to the injuries, he died at the spot. This fact indicates that it was the case of the prosecution that both the appellant and Faqir Syne made firing jointly at the deceased and in the inquest report, it is not specified that whose fire shot hit near the umbilicus of the deceased. Said Faqir Syne was acquitted and no appeal against his acquittal was filed by the complainant.
31. As earlier discussed, the prosecution changed the venue of occurrence and the motive asserted by the prosecution is not proved and the fact that in the inquest report, it is mentioned A that both father and son jointly made firing upon the deceased whereas the said father, was acquitted by the learned trial Court; hence we are not inclined to impose the extreme penalty of death upon the appellant.
9. For what has been discussed above, the appeal filed by the appellant is dismissed. However as discussed above, there are mitigating circumstances, hence his death sentence is converted into imprisonment for life. The compensation awarded by learned trial Court shall be maintained. The sentence of the appellant under section 324, P.P.C. awarded by the learned trial Court is upheld.
32. The benefit of section 382-B, Cr.P.C. is given to the appellant. Both the sentences were ordered to run concurrently.
33. 10.The sentence of death of the appellant is not confirmed. Murder Reference is answered in the negative.