Muhammad Anwar Bhaur, J.--The appellants, namely, Atta Muhammad and Ghulam Akbar sons of Allah Bakhsh along with Shaukat Ali son of Muhammad Ali, Bilal son of Bahawal, Allah Bakhsh son of Raheem Bakhsh, Khuda Bakhsh son of Muhammad Bakhsh and Bahawal son of Faiz Bakhsh were tried for trespassing into the house and committing murder of Ayaz Ahmad son of Mst. Jewan Mai- complainant, by learned Additional Sessions Judge, Muzaffargarh in case F.I.R. No, 75, dated 7.5.2003, registered with Police Station Bait Meer Hazar, District Muzaffargarh for offences under Sections 302, 452, 148, 149 read with Section 109 P.P.C. The learned trial Judge by virtue of his judgment dated 30.11.2004 found the appellants guilty of the said charges, convicted and sentenced them as under:-- I) UNDER SECTION 302(b) P.P.C.: To death each with further direction to pay Rs, 1,00,000/-(rupees one lac) each to the legal heirs of the deceased as compensation, provided under Section 544-A Cr.P.C. or in default thereof to undergo simple imprisonment for one year each.
II) UNDER SECTION 452 P.P.C.: To rigorous imprisonment for four years each with a fine of Rs, 10,000/- each or in default thereof to undergo simple imprisonment one month each.
III) UNDER SECTION 148 P.P.C.: To rigorous imprisonment for two years each.
The said learned Judge, however, by giving benefit of doubt to Shaukat Bilal, Allah Bakhsh, Khuda Bakhsh and Bahawal acquitted them of the charge.
2. The appellants by filing this appeal have called in question the convictions and sentences awarded to them through the impugned judgment, whereas the learned trial Judge has sent Murder Reference No, 851 of 2004 seeking confirmation or otherwise of the said sentence of death awarded to the appellants. During pendency of these matters, it was reported that Ghulam Akbar- appellant had expired in New Central Jail, -Multan on 16.9.2009, as such, this appeal as well as Murder Reference to his extent stands abated.
3. Insofar as this appeal and Murder Reference to the extent of Atta Muhammad appellant is concerned, we propose to dispose of both these matters together through this judgment.
4. Occurrence. in this case took place on 7.5.2003 in the midnight within the revenue estate of village Maila Chacha, situate at a distance of eleven kilometres from Police Station Bait Meer Hazar, District Muzaffargarh, wherein Ayaz Ahmad son of Ghulam Haider as well as of Mst. Jewan Mai- complainant (P.W.7) had lost his life. The matter was reported by Mst. Jewan Mai-complainant (P.W.7) to Imam Bakhsh, SI (P.W.9) at Mauza Pull Hazari on the same day at 3.40 a.m., who reduced into writing complaint (Exh.PJ) as per dictation of the complainant and sent the same to the police station for registration of formal F.I.R. On receipt thereof, Allah Wasaya, MHC (P.W.3) drew up F.I.R.
(Ex.PJ/1) correctly without any Addition on his part.
5. Concisely, the prosecution story, as expounded by the complainant (P.W.7) in the F.I.R. (Exh.PJ/1) registered on the basis of her statement (Exh.PJ) is that she is resident of village Maila Chacha; on the fateful night, she along with her son Ayaz Ahmad and other family members was fast asleep in the Courtyard of her house; a lantern was lit on the wall of the Courtyard; in the midnight, on hearing hue and cry raised by her son Ayaz Ahmad, she saw in the lantern light that Muhammad Ramzan son of Muhammad Sadiq, Shakeel Ahmad son of Muhammad Shafi, Muhammad Akbar, Muhammad Ashiq, Ghuas Bakhsh, Atta Muhammad sons of Allah Bakhsh, armed with hatchets, Khadim Hussain son of Allah Bakhsh, Khalil Ahmad son of Muhammad Shafi, armed with Sotas, Muhammad Sadiq son of Allah Bakhsh, armed with gun, residents of village Bhumbu Sandeela, took her son Ayaz Ahmad out of the Haveli by dragging him; she tried to rescue her son, whereupon Muhammad Sadiq inflicted an injury on her right elbow with the butt of his gun; thereafter, all the accused took Ayaz Ahmad towards east at a distance of 13/14 Karams; she also followed them by making hue and cry; in the meantime, Ghulam Akbar son of Ghulam Ali (P.W.6), resident of the village, and her brother Manzoor Hussain son of Elahi Bakhsh (P.W.5), resident of village Bhumbu Sandeela also attracted to the spot on hearing hue and cry; in their sight, Muhammad Ramzan caused a hatchet blow on the right calf of Ayaz Ahmad; Shakeel Ahmad and Muhammad Akbar inflicted hatchet blows on his right knee; Muhammad Ashiq and Ghuas Bakhsh caused hatchet blows on his right bicep; Atta Muhammad-appellant delivered a hatchet blow on the left calf of Ayaz Ahmad, who on receipt of injuries fell down; Muhammad Ramzan, Khadim Hussain, Khalil Ahmad, Shakeel Ahmad, Muhammad Akbar, Muhammad Ashiq, Ghuas Bakhsh and Atta Muhammad continued causing injuries with their respective weapons on the person of Ayaz Ahmad in the lying condition; she and Ghulam Akbar (P.W.6) went forward to rescue Ayaz Ahmad, whereupon Muhammad Sadiq while aiming his gun threatened them not to come near and Khadim Hussain and Khalil Ahmad caused Sota blows to her and Ghulam Akbar, whereas Manzoor Hussain did not come near due to fear; within their view, Ayaz Ahmad succumbed to the injuries at the spot; the accused after confirming that Ayaz Ahmad has died, fled from the scene while brandishing their weapons towards their houses.
Motive behind the occurrence, according to the complainant, was that the accused had a suspicion that Mst. Karam Mai wife of Malik Muhammad daughter of Allah Bakhsh had illicit liaison with Ayaz Ahmad, due to which the accused in consultation with each other and on the abetment of Allah Bakhsh son of Raheem Bakhsh committed the crime in question. According to the complainant, she while leaving Ghulam Akbar, injured PW and Dildar Hussain son of Ghulam Ali PW (not produced) to guard the dead body of Ayaz Ahmad proceeded towards police station along with Manzoor Hussain (P.W.5) and came across Imam Bakhsh, SI (P.W.9) at Mauza Pull Hazari, District Muzaffargarh, who recorded her statement (Exh.PJ), on the basis whereof F.I.R. (Exh.PJ/1) was registered.
6. Immediately after registration of the case, Imam Bakhsh, SI (P.W.9) took over the investigation. He reached at the place of occurrence, inspected the dead body of Ayaz Ahmad deceased, prepared injury statement (Exh.PA) and despatched the dead body to the - mortuary for autopsy through Ameer Bakhsh, constable, who after postmortem examination produced last worn clothes of the deceased i,e, Chadar (P8), Bunian (P7), and Shirt (P6), before him, which were taken into possession vide memo Exh.PN. He also prepared injury statements (Exhs.PC & PF) of Mst. Jewan Mai and Ghulam Akbar PWs. From the place of occurrence, he collected blood-stained earth, which was taken into possession through memo Exh.PM. He recorded statements of the relevant witnesses under Section 161 Cr.P.C. Thereafter, investigation was entrusted to Nader Khan, SI (P.W.10), who arrested Ghulam Akbar and Atta Muhammad accused on 30.5.2003 and subjected them to necessary interrogation, during course whereof both of them got recovered blood-stained hatchets (P9 & P10), which were taken into possession bide memos Exhs.PO & PP, respectively, duly attested by Manzoor Hussain (P.W.5) and Ghulam Akbar (P.W.6). He recorded statements of the relevant witnesses under, Section 161 Cr.P.C. He found both of them involved in the commission of crime and submitted challan against them. Bahawal Bakhsh and Khuda Bakhsh accused were found innocent by him. Against rest of the accused, he got issued non-bailable warrants of arrest from the concerned Magistrate. He submitted incomplete challan before the Court. Thereafter, on 28.1.2004, Mehmood Akbar, SI (P.W.11) took over the investigation and on 2.2.2004, a lantern (P1) was produced before him by Mst. Jewan-complainant, which was taken into possession vide memo Exh.PL; duly attested by the same set of witnesses (P.Ws.5 & 6). This investigating officer after recording statements of the witnesses under Section 161 Cr.P.C. prepared incomplete challan and submitted the same before the Court for trial of the accused in accordance with law.
7. On receipt of the challan, the trial Court completed all legal formalities, framed charge against the accused, to which they pleaded not guilty and claimed to be tried. The prosecution in order to prove its case produced as many as eleven witnesses, namely, Khurshid Ahmed, HC (P.W.1), Dr.Muhammad Saleem Akbar, (P.W.2), Allah Wasaya, MHC (P.W.3), Khadim Hussain, constable (P.W.4), Manzoor Hussain (P.W.5), Ghulam Akbar (P.W.6), Mst. Jewan Mai-complainant (P.W.7), Muhammad Hashim Ali, Patwari (P.W.8), Imam Bakhsh, SI (P.W.9), Nadar Khan, SI (P.W. 10) and Mehmood Akbar, SI (P. W. 11).
Out of the whole lot, evidence of Dr.Muhammad Saleem Akbar, MO (P.W.2), Manzoor Hussain (P.W.5), Ghulam Akbar (P.W.6), Mst. Jewan Mai-complainant (P.W.7), Imam Bakhsh, SI (P.W.9), Nadar Khan, SI (P.W. 10) and Mehmood Akbar, SI (P.W. 11) is of great significance, whereas rest of the witnesses are formal in nature.
Dr. Muhammad Saleem Akbar, MO (P.W.2), on 7.5.2003, at 1.15 p.m., conducted autopsy on the dead body of Ayaz Ahmad deceased and observed following injuries on his person:--
1. An incised wound of 3 cm x 1 bone deep exposed on the left side of the head.
2. A lacerated wound of 5 cm x 2 cm bone deep on the top of the head.
3. A lacerated wound of 4 cm x 1 cm bone deep on the right side of forehead.
4. A lacerated wound of 6 cm x 2 cm on the mid line of forehead.
5. Multiple injuries with fracture at left upper arm.
6. An incised wound of 5 cm x 2 cm with fracture on the back of left elbow joint.
7. An incised wound of 12 cm x 8 cm bone cut with fracture on the right elbow joint and upper arm.
8. Left leg totally amputated from the left knee joint.
9. An incised wound of 8 cm x 3 cm bone deep in front of left leg.
10.An incised wound of 8 cm x 3 cm bone deep in front of left leg.
11.An incised wound of 7 cm x 4 cm with bone cut on front of right knee joint.
12.An incised wound of 10 cm x 2 cm bone deep on the front to right knee joint.
13.A lacerated wound of 10 cm x 3 cm bone deep on outer side of right knee joint.
14.An incised wound of 7 cm x 2 cm bone deep on the outer side of right leg.
15.A bruise area of 15 cm x 2 cm on the back of right chest.
16.A bruise area of 7 cm x 1 cm on the front of right chest.
He opined that death in this case was due to injuries to vital organs, i,e, brain and heavy loss of blood due to multiple fracture and major blood vessels of arms and legs and the death occurred due to Hypovolemic and neurogenic shock, which is sufficient in the ordinary course of nature.
Probable time, which elapsed between injuries and death was within half an hour and that between death and post-mortem was within 12 to 13 hours.
This witness on the same day also medically examined Mst. Jewan Mai and Ghulam Akbar PWs and observed two injuries each on their person.
Manzoor Hussain (P.W.5), Ghulam Akbar (P.W.6) and son Mst. Jewan Mai-complainant (P.W.7) are eye-witnesses of the occurrence.. They in a nutshell reiterated the story of the FIR and fully supported the prosecution case. Manzoor Hussain and Ghulam Akbar (P.W.5 & 6) also appeared to prove the factum of recovery of blood-stained hatchets (P9 & P10) from Ghulam Akbar and Atta Muhammad-appellants.
Imam Bakhsh, SI (P.W.9), Nadar Khan, SI (P.W.10) and Mehmood Akbar, SI (P.W. 11) have stated about the acts done and duties performed by them during the course of investigation. Learned Prosecutor after giving up the remaining witnesses as being unnecessary tendered in evidence reports of the Chemical Examiner (Exhs.PS & PT) and report of the Serologist (Exh.PU) and closed the prosecution case.
8. Upon closure of the prosecution evidence, all the incriminating material was put to the accused and his co-accused (since acquitted), when they were examined under Section 342 Cr.P:C. to enable them to understand the same and to offer explanations with regard to the crime attributed to them. They claimed their absolute' innocence in the matter and alleged their false involvement in the case. Atta Muhammad-appellant while answering the question "Why PWs deposed against you and why this case against you?" stated as under:- "Ashiq Hussain injured of case FIR No, 114 u/Ss. 302/324/337L-2/148/149 PPC is my brother while Ashiq Hussain S/0 Khair Muhammad (deceased) is my brother-in-law (Behnohi), who is also injured/PW of case FIR No, 114 while his father Khair Muhammad (deceased) of that case. FIR No, 114 is my Khaloo ( ), who was done to death by Ghulam Sarwar, brother of GhulaM Akbar PW and Dewar () of Mst. Jewan complainant of this case. As my brother and my brdther-in-law (Behnoi) are injured/PW of case FIR No, 114, therefore, the complainant party of this case tried for compromise and on our refusal, they have falsely involved me in this case and falsely deposed against me. The complainant and PWs are inter-se related to each other and they are inimical towards me."
Similar was the standpoint of co-convict Ghulam Akbar (since dead) and those of other co- accused of the appellant. The accused neither opted to make statements on oath in disproof of the accusations brought against them as envisaged by the relevant provisions of Section 340(2)
Cr.P.C. nor to adduce evidence in defence.
9. Ultimately trial culminated into convictions and sentences of the appellant and his co-convict Ghulam Akbar (since dead) as mentioned above.
10.Learned counsel for Atta Muhammad-appellant in support of this appeal contends that it is an unseen occurrence taken place in the dark night and the appellant along with his co-accused has been falsely implicated in this case because in an earlier incident Ashiq Hussain, brother-in-law of the appellant, was injured, whereas Khair Muhammad, his father-in-law, was murdered and the case was registered against Ghulam Sarwar, who is brother of the complainant's husband and also of Ghulam Akbar (P.W.6); that the deceased was a man of notorious character and it has been admitted by Mst. Jewan Mai-complainant (P.W.7) in her cross-examination that as many as seven cases under the different provisions of law were registered against him; that recovery of hatchet (P10) effected at the instance of Atta Muhammad-appellant is of no avail to the prosecution because there is no report from the Serologist with regard thereto and the trial Court has wrongly put Question No, 11 to the appellant regarding report of the Serologist (Exh.PU), which is regarding earth and not the hatchet allegedly recovered from the appellant; that in the F.I.R. it is alleged that the appellant, who was armed with a hatchet, caused a blow on the left calf of the deceased while Manzoor Hussain (P.W.5) also stated before the Court that the injury was on the left calf of the deceased whereas Ghulam Akbar and Mst. Jewan Mai-complainant (P.Ws.6 & 7) stated before the Court that it was on the right calf, but as a matter of fact there was no injury on the left calf of the deceased; that presence of Manzoor Hussain (P.W.5), at the place of occurrence, is not natural as he is not resident of the village where the occurrence took place; that as it has been admitted by Ghulam Akbar (P.W.6) and Mst. Jewan Mai-complainant (P.W.7) that it was a dark night occurrence, therefore, mistaken identity of the accused cannot be ruled out.
In the alternative, the learned counsel submits that it is not case of capital punishment for the reasons that only one injury is attributed to the appellant, which too is not on the vital part of the body of the deceased and that the appellant was of tender age at the time of occurrence as is evident from his statement under Section 342 Cr.P.C. wherein his age is mentioned as 18 years.
11.On the other hand, learned Additional Prosecutor General Punjab for the State assisted by learned counsel for the complainant while supporting judgment of the trial Court submitted that the F.I.R. was promptly lodged, wherein the appellant has been duly nominated with a specific role; that presence of Ghulam Akbar and Mst. Jewan Mai (P.Ws.6 & 7) is natural because Mst. Jewan Bibi (P.W.7) is resident of the house, where the occurrence took place and Ghulam Akbar (P.W.6) is resident of the place, which is adjacent to the house of the complainant; that both the eye- witnesses (P.Ws.6 & 7) were injured in the incident and they were examined by the doctor (P.W.2) on the same day and their injuries statements are available on the record as Exhs.PF & PC, respectively; that in such like cases it is very rare that a mother will substitute a real culprit with an innocent person; that the deceased received as many as sixteen injuries and the ocular account is fully supported by the medical evidence; that the prosecution has fully proved its case beyond any shadow of doubt, as such, the convictions and sentences awarded to the appellant may be maintained.
12.We have carefully heard and considered the respective arguments addressed at the bar by both the sides. We have also minutely gone through the evidence available on the record with their able assistance.
13.In this case, the occurrence had taken place on 7.5.2003 at midnight and the matter was reported by the complainant (P.W.7) at 3.40 a.m. to Imam Bakhsh, SI (P.W.9), at Mauza Pull Hazari, District Muzaffargarh and on the basis of statement (Exh.PJ) or the complainant, F.I.R. (Exh.PJ/1) was registered at 4.10 a.m. on the same day. In the F.I.R., necessary details of the incident are mentioned and there is no convincing circumstance to infer that it was registered after due deliberation or consultation. It was a promptly lodged F.I.R.
14.The ocular account in this case has been furnished by Manzoor Hussain (P.W.5), Ghulam Akbar (P.W.6) and Mst. Jewan Mai-complainant (P.W.7). They in a nutshell reiterated the story of the F.I.R.
According to contents of the F.I.R., Atta Muhammad-appellant inflicted a hatchet blow on the left calf of the deceased and Manzoor Hussain (P.W.5) while appearing before the Court fully supported the F.I.R. version, but while conducting autopsy on the dead body of Ayaz Ahmad deceased, the doctor (P.W.2) although observed sixteen injuries in all, but did not find any injury on the left calf of the deceased.
15.Insofar as presence of Manzoor Hussai.n (P.W.5) at the spot at the relevant time of occurrence is concerned, the same is doubtful because he is not resident of the village, where the occurrence had taken place, but he is resident of village Bhumbu Sandeela, which is located at a distance of about one kilometer from the house of the complainant. Moreover in the F.I.R. no explanation was offered by the complainant (P.W.7) as to why and in what connection he was present at the place of occurrence, however, Manzoor Hussain (P.W.5) in his cross-examination has tried to explain the same by saying that On the night of occurrence, I was working at the Theraisher of Ayaz Mohana, which was at a distance of two acre from the house of my sister. The land of Ayaz Mohana is in Mouza Bhumbhu Sandeelah. Theraisher was working in Mouza Bhumbhu Sandeelah. Bhumbu Sandeela and Mella Chacha are adjacent Mouzas. I went to the house of my sister to take water."
This appears to be an afterthought story and cannot be made basis for conviction of an accused involved in the murder case.
16.Even if the testimony of Manzoor Hussain (P.W.5) is brushed aside, there are two other eye- witnesses, namely, Ghulam Akbar (P.W.6) and Mst. Jewan Mai-complainant (P.W.7), whose presence at the place of occurrence cannot be doubted because they are residents of the village, where the occurrence had taken place, rather Mst. Jewan Mai-complainant (P.W.7) is resident of the house, where the incident had happened and both of them suffered injuries during the course whereof at the hands of the accused, which fact is supported by the medical evidence furnished by Dr. Muhammad Saleem Akbar (P.W.2), who had medically examined them on the day of occurrence and found two injuries each on their person. Their medico-legal reports are available on record as Exhs.PG PD, respectively. So they are natural witnesses and their presence at the spot is proved beyond any shadow of doubt.
17.As far as recovery of blood-stained hatchet (P10) effected at the instance of the appellant (Atta Muhammad) is concerned, it has no evidentiary value because we have noted that reports of the Chemical Examiner with regard to blood-stained earth and blood-stained hatchets (Exhs.PS & PT) are available on the record, but report of the Serologist regarding blood-stained hatchets is not available on the record and the trial Court while recording statement of the appellant under Section 342 Cr.P.C. had wrongly put Question No, 11, which is as under: "It is in the evidence that the hatchet was ,sent to the office of Chemical Examiner, who vide his report Ex.P.S. found it stained with blood and sent its scrapings to the Serologist, who vide his report Exh.P.0 confirmed that the scrapings of the blood on the hatchet contained human blood. What have you to say about it?", Whereas report of the Serologist (Exh.PU) is regarding the blood-stained earth, so this evidence is also of no avail.to the prosecution.
18.Although in the F.I.R., it is mentioned that the appellant had caused an injury on the left calf of the deceased, but while appearing before the Court Ghulam Akbar (P.W.6) and Mst. Jewan Mai- complainant (P.W.7) deposed that the injury was on the right calf, but they were not confronted with their previous statements made before the police under Sections 161 & 154 Cr.P.C.
19.Insofar as motive part of the prosecution story is concerned, no question with regard thereto was put by the defence to these two witnesses (P.W.6 & 7), therefore, in these circumstances, we are of the view that the prosecution has proved its case against the appellant beyond any shadow of doubt. As such, we maintain convictions of the appellant recorded under Sections 302(b), 452, 148 P.P.C.
20. As regards quantum of sentence awarded to the appellant, considering the case from all angles, we are of the view that it is not a case of capital punishment for the reason that it is in evidence that the 13 appellant has inflicted only one injury on the person of the deceased and that too on the non-vital part. In such like cases, it is well settled principle of law that though normal penalty for offence of murder is death but in appropriate cases, where some extenuating circumstances are available, the Courts could exercise discretion to award lesser punishment.
Reference can advantageously be made to the cases of C Muhammad Arshad and two others v.
The State (P.L.D. 1996 S.C. 122) and Iftikharul Hassan v. Israr Bashir and another (P.L.D. 2007 S.C. 111).
21. Keeping in view all aspects of the case and the case law cited above, we are of the view that it is not a case of capital punishment, therefore, while maintaining the conviction of the appellant under Section 302(b) P.P.C. we alter sentence of death awarded to him into imprisonment for life.
The order with regard to payment of compensation is also maintained, however, the sentence in case of non- payment thereof is modified to simple imprisonment for six months. The sentences awarded to the appellant under Sections 452, 148 P.P.C. are also maintained. Benefit of Section 382- B Cr.P.C. shall be extended to the appellant. All the sentences awarded to the appellant shall run concurrently.
22.Resultantly, this appeal stands dismissed with the above modification.
23.Death sentence awarded to the appellant is not confirmed and Murder Reference to the extent of the appellant is answered in the negative.
24.Before parting with this judgment, we may observe that during course of hearing of these matters it was brought to our notice that some of the co-accused of the appellant, who were declared Proclaimed Offenders, have been arrested and are being tried by the trial Court, therefore, the observations made hereinabove will not influence the mind of the trial Court, which shall decide the case independently on the basis of evidence brought before it.