Muhammad Anwar Bhaur, J.--This judgment shall dispose of Murder Reference No, 162 of 2004 sent by learned Additional Sessions Judge, Samundri, district Faisalabad for confirmation or otherwise of the death sentence awarded to Allah Ditta son of Ameer and Criminal Appeal No, 1145 of 2009 filed by said convict Allah Ditta, as both these matters arise out of the same judgment dated 30.1.2004 passed by learned Additional Sessions Judge, Samundri, District Faisalabad, whereby Allah Ditta was convicted under Section 302(b) P.P.C. and sentenced to death with a further direction to pay Rs, 1,00,000/- to the legal heirs of Mubarak Ali deceased as compensation as provided under Section 544-A Cr.P.C., in default thereof to further suffer simple imprisonment for six months. Co-accused of the appellant, namely, Ameer Ali, Saleem and Muhammad Akram alias Buba were convicted and sentenced as under:-- (I)Ameer Ali was awarded two years' rigorous imprisonment and Daman of Rs,2,000/- under Section 337-F(i) P.P.C. for causing injury to Mubarak Ali deceased.
(II)Saleem was convicted under Section 337-A(i) P.P.C. and sentenced to rigorous imprisonment for one year with Daman of Rs, 1,000/-. He was also convicted under Section 337-A(ii) P.P.C. and sentenced to rigorous imprisonment for two years with Arsh for causing injuries to Mahboob Ali, injured PW.
(III)Muhammad Akram alias Buba was convicted under Section 337-F(i) P.P.C. and sentenced to rigorous imprisonment for one year with Daman of Rs, 1,000/-. He was also awarded rigorous imprisonment of two years with Daman of Rs,2,000/- under Section 337-F(ii) P.P.C. for causing injuries to Mahboob Ali, injured PW.
Benefit of Section 382-B Cr.P.C. was accorded to Saleem, Muhammad Akram and Ameer Ali and their sentences were ordered to run concurrently.
Amin son of Ameer, Muhammad Iqbal alias Kali son of Boota and Boota son of Lal had earned acquittal, whereas the other two co-accused namely, Muhammad Usman alias Shani and Liaqat son of Khan, being minors, were tried by the learned trial Court under the Juvenile Justice System Ordinance, 2000 and who also earned acquittal, according to the learned counsel for the appellant.
2. Concisely, the facts giving rise to these matters are that Muhammad Akhtar son of Mansab Ali (P.W.2) lodged FIR (Ex.PA/1) with regard to an occurrence, which took place at 8.30 p.m. during the night between 26/27.5.2002 within the area of Chak No, 486/GB, situate at a distance of nineteen miles from Police Station Saddar Samundri with Wali Muhammad, SI of the said Police Station on 27.5.2002 at 8.10 a.m. at Gojra More, who reduced into writing complaint (Exh.PA) as per his dictation and sent the same to the Police Station for registration of formal F.I.R., as result whereof F.I.R. (Exh.PA/1) was drawn up by Abdul Razzaq, MHO (P.W.12) at 8.15 a.m. on the same day. The story as alleged therein by Muhammad Akhtar, complainant (P.W.2) was: That he was resident of Chak No, 486/GB and was a cultivator by profession. It was alleged in the FIR that in the night between 26/27.5.2002, they had a turn of water and in order to irrigate their field, he along with his brother Mahboob Ali went there at about 8.30 p.m., where Ameer and Allah Ditta (appellant) were already irrigating their land. As per FIR the complainant asked them to provide water at Nikal, but they refused to do so, whereupon hot words were exchanged between them. Complainant quarreled there and in the meanwhile, his brother Mubarak Ali and .
Muhammad Farooq reached there and the matter was patched up and that the complainant party irrigated the land according to their time schedule i,e, 8.50 p.m. without Nikal; that at about 9.30 p.m., the complainant along with his brothers Mubarak Ali, Mahboob Ahmad and one Muhammad Farooq were present in Square No, 22, Killa No, 14, to irrigate their field, then Ameer armed with sota, Allah Ditta with hatchet, Saleem with hatchet, Amin with 30-bore pistol, Akram- with hatchet, Iqbal with 12-bore gun, Usman with sota, Boota with sota and Liaqat with hatchet arrived there while raising Lalkaras, who were identified by the complainant and the other persons in the moon light as well as in the search light; that Allah Ditta (appellant) delivered two successive blows with his hatchet to Mubarak Ali, which landed on his head falling him down. It was alleged in the FIR that then Ameer inflicted Sota blow on the waist of Mubarak Ali in the lying condition and when Muhammad Farooq and Mahboob Ali stepped forward to intervene, Saleem caused two successive hatchet blows on the head of Mahboob, Muhammad Akram alias Buba also delivered two hatchet blows to Mahboob which landed on his right arm, who on receipt of those injuries fell down on the ground. Muhammad Iqbal alias Kali, it was asserted gave butt blows to Mahboob in the lying condition. It was further asserted in the FIR that Muhammad Usman, Boota and Ameer inflicted injuries on different parts of the body of Mahboob with their respective weapons while Liaqat gave hatchet blow to Muhammad Farooq on his right flank. Complainant stated that thereafter all the accused started inflicting injuries to Muhammad Farooq with Sotas and wrong side of the hatchets, hitting on his head and different of parts of the body. According to the complainant due to fear of life, he did not go near and continued raising commotion, whereupon Muhammad Sardar and Muzammal Haq PWs attracted to the scene and witnessed the occurrence, but the accused also extended them threats of life and after a short while Muhammad Amjad and Master Muhammad Bashir along with other people of the village reached there and on catching sight of them, the accused scampered off from the scene.
The motive, behind the incident, as per FIR was that Ameer and others had injured the complainant previously and a complaint case was pending adjudication in the Court but the accused used to extend threats to the complainant to refrain from prosecuting the said complaint case.
3. After registration of the case, investigation into the crime commenced and on completion thereof the appellant along with his aforesaid co-accused had been challaned to Court.
4. On receipt of the challan the trial Court, after framing of charge to which the accused did not plead guilty, called upon the prosecution to prove its case, and in response thereto the prosecution produced as many as twelve witnesses and closed its case by tendering in evidence reports of the Chemical Examiner as Exh.P.CC regarding earth, Exh.PDD regarding Sota, Exh.P.EE regarding hatchet and report of Serologist as Exh.P.FF regarding earth, Exh.P/GG regarding sota and Exh.P/HH regarding hatchet.
5. Thereafter, all the incriminating material was put to the appellant and his co-accused under Section 342 Cr.P.C. to obtain their stance and the appellant while answering a question "Why this case and why the PWs have deposed against you? had simply adopted the stand taken by his co- accused Muhammad Iqbal alias Kali in his reply to the said question, which reads as under:-- "This is a false case. The PWs are inter related with the deceased and the complainant who belongs to Rajput family whereas I belong to Taily Malik Family and since being Mueen of the village were always as per tendency in our village society have to be suppressed by the Zimindars' families. On the fateful day of the occurrence, we were irrigating our fields within our stipulated period of watering at about 8.30 p.m., all of a sudden Muhammad Farooq armed with Ghandasa, Mehboob Ali armed with pistol, Mubarik Ali armed with 12 bore gun, Rana Munsab Ali armed with rifle 7 MM, Muhammad Akhtar armed with hatchet along with other persons who were also armed with lethal weapons while boarding a Tractor Trolly and encircled Ameer, Amin, Muhammad Akram and Liaqat and started bearing them that as to why they had not stopped the watering and tried to convert the water by force to their lands. On which they started beating the above four persons but the said people in order to save' them had grappled with them during the said course both the parties sustained injuries in the dark hours of the night. There was no light at that time except the light of a Tractor and in the said melee no one can say as to who caused injuries to whom. Both the parties were medically examined simultaneously by the concerned Police but since the complainant party was resourceful and Zamindar as well as Mubarik Ali deceased died due to the medical negligence and they connived with the Police and got registered the instant case against us. The complainant party was the aggressor party. They made the aggression and they made their attack firstly on us instead of it they have suppressed the injuries, the persons on our side. It was not a premeditated occurrence. It was taken suddenly though it was pre-planned on the part of the complainant party. The motive as alleged by the complainant is also false and frivolous. Our party suffered (accused party) as many as twenty injuries whereas the complainant party suffered 24 injuries. The recoveries are fake and fabricated one. The reports have got no sanctity since the person who carried their parcels from P.S. to concerned quarters were neither cited as witness nor were examined as such."
The appellant neither opted to adduce evidence in defence nor appeared as his own witness under Section 340(2) Cr.P.C. The trial Court upon conclusion of the trial proceeded to pronounce verdict of guilt against the appellant as aforementioned.
6. Learned counsel for the appellant, in support of this appeal contends that there is an unexplained delay of twelve hours in reporting the matter to the police as according to the prosecution the occurrence had taken place at about 9.30 p.m. on the intervening night of 26/27.5.2002, whereas complaint (Exh.PA) was recorded on 27.5.2002 at 8.10 a.m., despite the fact that the Investigating Officer of the case had admitted that he was present in the hospital at the time of examination of the injured persons and during this time the chances of deliberations cannot be ruled out; that the prosecution has set two motives in this case, one an altercation regarding the turn of water and the other, a complaint case, which as per prosecution was pending against the appellant side, but no copy of the complaint was produced before the trial Court and similarly as far as turn of water is concerned, their allegation is belied by the fact that the occurrence did not take place at Killa, where it was claimed by the prosecution and Killa No, 1 of Square No, 22 was shown in the site-plan (Exh.PB/1) as admitted by the investigating officer is. a land, where there was no crop, so motive was not proved; that four persons from the appellant side, namely, Muhammad Amin, Muhammad Akram, Liaqat Ali and Ameer had suffered injuries in this occurrence and they were examined by the same doctor (P.W.8-Dr. Zahid Akhtar), who medically examined the injured persons from the prosecution side including the deceased before his autopsy; that it is on record that the investigating officer has admitted that he had prepared the injuries statements of the injured from appellant's side but these injuries were suppressed by the prosecution; that the injuries to the appellant's side were caused by fire-arm, sharp edged and blunt weapons; that it is a case of two versions, one set out by the prosecution and the other suggested by the defence and in these circumstances the latter version appears to be more probable and fits in the circumstances of the case; that it was admittedly a night time occurrence and the version of the prosecution was that they identified the accused in the search light but no search light was produced; that nine persons were implicated in this case, out of whom five have earned acquittal, whereas the appellant was awarded death penalty and his three other co- accused were awarded minor sentences; that the appellant cannot be. sentenced unless and until there is strong corroboration as the prosecution evidence has not been believed qua five accused who have been acquitted; that report of the Serologist though positive is of no avail for the prosecution because the Investigating Officer has admitted that he handed over the recovered weapons of offence to the Moharrar, which were kept in Malkhana and that there is no evidence of sending the said weapon to the Chemical Examiner, therefore, no importance can be attached to the report of the Serologist. The learned counsel in support of his contention has relied upon Ahmad Din v. Faiz Ahmad and 2 others, (1972 SCM R 549).
7. On the other hand, learned Additional Prosecutor General Punjab opposed this appeal on the ground that the prosecution has proved its case through independent and injured witnesses and there is no evidence as far as injuries sustained by the appellant's co-accused, therefore, the conviction and sentence awarded to the appellant be maintained.
8. We have heard learned counsel for the parties at length and have given anxious consideration to their arguments and have also perused the evidence on record with the able assistance of learned counsel for the parties.
9. To substantiate the charge of murder of Mubarak Ali the prosecution has produced as many as 12 witnesses and has also relied on the following pieces of evidence:--
(i) Motive.
(ii) Ocular Account.
(iii)Medical Evidence, and (iv)Recoveries.
10.As far as motive part of the case is concerned, the prosecution has produced P.W-2 (Muhammad Akhtar), P.W-.3 (Mahboob Ali), P.W-4 (Muhammad Farooq) and P.W-7 (Sardar Ali). In this regard they all have stated that previously the accused in the present case had beaten Muhammad Akhtar, complainant in the present case and injured him, regarding which a private complaint was pending against the accused filed by the injured Muhammad Akhtar and the accused had threatened the complainant not to prosecute the complainant case.
But, the factum of the pendency of the complaint has not been proved as no complaint, document or independent witness in that regard was produced during the trial. In these circumstances the motive set out by the prosecution is not proved. However, it has consistently been held by the Hon'ble Supreme Court of Pakistan that the prosecution is not bound to prove motive if the case is otherwise proved. In this regard reliance can be placed upon the case reported as Muhammad Riaz u. The State, (2006 SCM R 954). Therefore, the argument of the learned counsel for the appellant that the prosecution has not proved the motive as setout is not material.
11.The ocular account has been furnished by P.W-2 Muhammad Akhtar, P.W-3 Mehboob Ali, P.W-4 Muhammad Farooq and P.W-7 Sardar Ali, the eye-witnesses of the occurrence. Out of these four prosecution witnesses P.W-3 namely Mahboob Ali and P.W-4 Muhammad Farooq suffered injuries on their persons in the same occurrence, as such their presence at the time of occurrence cannot be doubted. But here one thing is highly astonishing that Muhammad Akhtar, against whom the accused, as per prosecution had a motive of the previous occurrence did not suffer any injury on his person. As such it appears that Muhammad Akhtar was not present at the time of occurrence, otherwise the accused persons would not let him go free as he should have been their prime target and that this is the reason that F.I.R. was not promptly lodged because the occurrence in this case took place at 8.30 p.m. during the night between 26/27.5.2002 within the area of Chak No, 486/GB, situated at a distance of nineteen miles from Police Station Saddar Samundri. The FIR was lodged on 27.5.2002 at 8.15 a.m. against the accused persons on the statement of the complainant namely Muhammad Akhtar son of Mansab All (real brother of the deceased Mubarak Ali). The delay of about 12 hours in lodging of the FIR has not been explained and it is also on record that P.W-9 Wali Muhammad SI/SHO was present at the hospital when the injured were brought to the hospital.
During that period of time the complainant has not made any attempt to get his statement recorded in order to get the FIR registered. Therefore, in these circumstances it appears that FIR in this case has been lodged after due deliberation and consultation. The case of the prosecution is that the occurrence took place in Square No, 22 Qilla No, 14, but it is belied by the site plan Ex.PB/1 whereby the occurrence is stated to have taken place in Square No, 21 Qilla No,
1. It has been stated by all the eye-witnesses that occurrence took place at night, however there was full moonlight and that they have identified the accused persons in the moonlight and also in the searchlight but during the investigation the said searchlight was not produced.
12. Medical evidence in this case has been provided by P.W-6 Dr. Muhammad Saleem, P.W-8 Dr. Muhammad Zahid Akhtar and P.W11 Dr. Muhammad Nasir. P.W-6 Dr. Muhammad Saleem had conducted X-Rays of Mehboob Ali injured PW-3 and Muhammad Farooq injured PW4; whereas P.W-8 had examined all the injured persons from the prosecution as well as from the accused side including the deceased before his autopsy. The autopsy of the deceased was conducted by P.W- 11 Dr. Muhammad Nasir and he has observed the following injuries on the person of the deceased alongwith his opinion:-- "1. A stitched wound 4 cm on the mid of forehead.
2. A stitched wound 3 cm on right side of forehead close to hair line.
3. Three contusions each 8 x 6 cm across back of chest. Cranium and Spinal Card."
"After external and internal post mortem examination of the dead body, the cause of death in my opinion was head injury with its complications caused by Injuries No, 1 and 2 which were sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem. Injuries No, 1 and 2 were caused by sharp edged weapon (heavy cutting). Injury No, 3 was by blunt weapon. The probable time which elapsed between injuries aid death was not described as it was a hospital death and between death and post mortem was 214 hours. Ex.P.AA is the correct carbon copy of P.M.E. report which is in my hand and signed by me and bears my seal."
But, the injuries suffered by Amin son of Ameer, Muhammad Akram son of Muhammad Boota, Liaqat son of Khan Muhammad and Ameer son of Shahab Din (co-accused of the appellant) have not only been suppressed in the FIR but before the Court as well. It is on the record that all the above named injured were medically examined on 27.5.2002 by PM-8 (Dr. Muhammad Zahid Akhtar). The said Doctor in his cross-examination has admitted this fact that he had medically examined Muhammad Amin son of Amir on 27.5.2002 at 12.30 a.m. who was brought by Wazir Ali C- 1655 and found the following injuries on his person:--
1. An incised wound 4 x (1/4) cm bone deep at left front of head.
2. A fire-arm wound of entry 1.25 x 1.25 cm, with inverted margins at inner side of forearm 7 cm above right wrist deep going up to Injury No, 2-B which is a fire-arm wound of exit with averted margins 1.5 x 1.5 cm at the mid back of right forearm 9 cm above right wrist.
3. An incised wound 1.5 cm x. 0.5 cm on the inner side of left little finger skin deep.
4. A contusion 6 x 1/3 cm on the mid back of left forearm.
5. A swelling 3 x 2 cm on the left elbow.
Injury No, 1 KUO advised X-ray skull AP/lateral. Injuries No, 2-A, B KUO, advised X-ray right forearm.
Injury No, 3 KUO, advised X-ray left hand A.P/lateral. Injury No, 4 KUO, advised X-ray left forearm AP/lateral. Injury No, 5 KUO advised X-ray left elbow AP/lateral. Refer to Radiologist DHQ Hospital, Faisalabad. Injuries No, 1 and 3 were by sharp edged weapon. Injury No, 2 was caused by fire-arm.
Injuries No, 4 and 5 were with blunt weapon. The time between injuries and examination was about 3/4 hours.
He also examined Amir son of Shahab Din aged about 70 years Malik by caste who was brought by Muhammad Imtiaz C-2482 and found the following injuries on his person:--
1. An incised wound 4 x (1/2) cm bone deep at right top of head. KUO advised X-ray skull AP/lateral.
2. An abrasion 8 cm x (1/8) cm at the upper back of the chest.
3. Swelling 2 x 2 cm at the back of left elbow joint. KUO advised X-ray left elbow AP/lateral.
4. An incised wound (1/2) x (1/2) cm, bone exposed, at the lower back of left forearm, 4 cm above elbow joint with swelling 2 x 2 cm at elbow. KUO advised X-ray left forearm AP/lateral and elbow AP/lateral.
5. An abrasion (1/2) x (1/2) cm with swelling 6x6 cm at the mid back of right forearm. KUO advised X-ray right forearm AP/lateral.
6. A contusion 3x4 cm at the back of right shoulder. 'KUO advised X-ray right shoulder AP/lateral.
Referred to the Radiologist, DHQ Hospital, Faisalabad. Injury No, 2 was declared 337-L(2) P.P.C. and the rest were kept under observation. Injuries No, 1 and 4 were by sharp, rest by blunt. The time between injuries and examination was about 4 to 5 hours.
He also examined Muhammad Akram son of Muhammad Boota brought by Muhammad Imtiaz C- 2482 and observed the following injuries:--
1. Loss of about 1 x 1 cm of the left lower ear lob, by incised wound 1.5 x 1/3 cm. KUO referred to Plastic Surgeon Allied Hospital to determine nature of injury.
2. Incised wound 1.5 x 0.5 cm, skin deep, at upper part of left ear.
3. An abrasion 1.5 x 0.5 cm, at left side of neck.
4. An incised wound 1 x (1/2) cm, muscle deep, at the inner mid of lower half of left forearm.
5. A contusion with swelling 4 x 4 cm on the upper left shoulder.
Injury No, 1 KUC referred to Plastic Surgeon Allied Hospital, Faisalabad for expert opinion. Injury No, 2 was declared as Shaja Khafifa. Injury No, 3 was declared as 337-L(2) P.P.C. Injuries No, 4 and 5 were kept under observations, advised X-ray forearm AP/lateral. Injury. No, 6 KUO advised X-ray left shoulder AP/lateral. Injuries No, 1, 2 and 4 were by sharp, rest by blunt. The time between injuries and examination was about 4/5 hours. He also examined Liaqat Ali son of Khan Muhammad, brought by Muhammad Imtiaz C-2482, and found the following injuries:--
1. An incised wound 2(1/2) x (1/2) cm muscle deep at mid upper back of abdomen. KUO advised X- ray abdomen.
2. A swelling at upper back of right elbow joint 4x4 cm. KUO advised X-ray right elbow AP/lateral.
3. A swelling 2 x 2 cm on left elbow joint on back. KUO advised X-ray left elbow AP/lateral.
4. A contusion 2 x 2 cm at the outer front of right knee joint. KUO advised X-ray right knee joint AP/lateral. Referred to Radiologist DHQ Hospital, Faisalabad for above mentioned X-rays.
Injury No, 1 was by sharp, rest by blunt. The time between injuries and examination was about 4/5 hours.
13.The Investigating Officer i,e, Wali Muhammad (P.W-9) in his cross-examination has admitted that Amin, Ameer, Akram and Liaqat accused were present in the hospital and he prepared their injury statements. He has also admitted that he did not attach the M.L.Cs. of the accused persons with the judicial file of this case.
14.Learned counsel for the appellant has vehemently argued that in fact the complainant party was the aggressor. They have attacked the accused party in Square No, 22 Qilla No, 1 and the accused party acted in their right of private defence. But no such plea was specifically taken during the trial.
15.Taking the entire evidence into consideration, we are constrained to hold that it is a case in which both the parties, have not come with truth regarding the motive of the occurrence, the manner in which the occurrence had taken place aid how the injuries were suffered by various persons of either side. The argument of the learned counsel for the appellant that appellant Allah Ditta has acted in his self defence does not inspire confidence because no such plea has been taken before the learned trial Court. However, the question remains whether the case is covered under Section 302(b) P.P.C. or 302(c) P.P.C. In this respect, the learned counsel for the appellant has placed reliance on the following judgments: Aziz Ullah v. The State, (2008 SCM R 922), Tasawar Ahmad Vs. The. State, (2008 P.Cr.L.J. 202), and Ghulam Sarwar alias Baga Vs. The State, (2002 P.Cr.LJ. 908).
In the case of Tasawar Ahmad Vs. The State, (200k P.Cr.L.J. 202) the conviction was altered from Section 302(b) P.P.C. to Section 302(c) PPC. The relevant portion is reproduced as under: "Motive as set up in the F.I.R. was only a fiction -- Favourable report had been obtained from Forensic Science Laboratory even without sending the crime-empties to it and no reliance could, therefore, be placed on evidence of recovery -- Prosecution case was replete with doubts -- Defence plea of exercise of right of self-defence taken by accused was not made out on the record -None of the parties had come out with true story, but such fact could not deter the Court from drawing proper inferences from the evidence and circumstances of the case -- Deceased and the accused who were political rivals appeared to have come across with each other and situation worsened on passing of some remarks, which resulted in the incident -- Conviction of accused under S. 302(b), P.P.C. was altered to S. 302(c), P.P.C. and his sentence of death was reduced to twenty years' R.I. in circumstances with benefit of S. 382-B, Cr.P.C."
16.The recoveries in this case consists of blood stained earth recovered from the place of injury of Mubaraak Ali deceased vide memo Ex.P.T. and the recovery of hatchet Ex.P10 from Allah Ditta accused vide memo Ex.P.N. The report of Serologist regarding hatchet is Ex.P.HH. Though this report is positive as it is stained with human blood but it is not clear from the evidence as to when it was sent to Malkhana, how long it remained there and when it was despatched to the Chemical Examiner, therefore, in these circumstances recovery of hatchet is not so material.
17. After having applied independent judicial mind, this Court is of the considered view that the prosecution has failed to prove/establish that it is a case of Qatl-e-Amad falling under Section 302(b) P.P.C. Therefore, we alter the conviction of the appellant Allah Ditta from the offence under Section 302(b) P.P.C. to offence under Section 302(c) P.P.C. and his sentence is reduced to ten years R.I. with benefit of Section 382-B Cr.P.C. The amount of compensation under Section 544-A Cr.P C. and the imprisonment in default thereof as awarded by the learn;d trial Court is maintained.
18.With this modification this appeal is partly allowed and disposed of accordingly.
19.Murder Reference is answered in the NEGATIVE and sentence of death IS NOT CONFIRMED.