Muhammad Anwar Bhuar, J.--The appellants, namely, Darbar Abbas Shah and Sarkar Abbas Shah sons of Iftikhar Ahmad Shah were tried by the learned Additional Sessions Judge, Gujrat for committing murder of Syed Irfan Haider and murderous assault on Ali Hasnain, in case F.I.R. No, 833, dated 21.10.2003, registered with Police Station Civil Lines, Gujrat for offences under sections 302/324/34 P.P.C. The learned trial Judge by virtue of his judgment dated 7.12.2004 found them guilty of the murder charge, convicted them under Section 302/34 P.P.C. and sentenced each of them to death with further direction to pay a sum of Rs, 1,00,000/- to the legal heirs of the deceased as, compensation under Section 544-A Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months each.
2. The appellants by filing Criminal Appeal No, 351/J of 2004 have called in question the conviction and sentence awarded to them through the impugned judgment, whereas the learned Additional Sessions Judge has sent Murder Reference No, 900 of 2004 seeking confirmation or otherwise of the death sentence awarded to the appellants. We propose to dispose of both these matters together through this single judgment.
3. Succinctly the prosecution story as it unfurled in the F.I.R. (Exh.PA/1) registered on the basis of statement (Exh.PA) of Syed Shabbir Haider Shah son of Syed Ghulam Ghaus, the complainant was that he was resident of Madina Syedan and is employed in the office of DCO as Copy Clerk; on 21.10.2003, at about 1.00 p.m., he was going home to take meals; at about L15 p.m., when he reached near internal road of T.B. Association Store in the hospital, he saw that his son Syed Irfan Haider along with Ali Husnain son of Syed Nisar Hussain was going ahead of him to home after attending the college while riding motorcycle and bicycle, respectively; when they reached near T.B.
Association Store, Darbar Abbas and Sarkar Abbas, the appellants, who while armed with 30-bore pistols were already sitting in ambush with their mutual consultation emerged and exhorted a Lalkara that Irfan Haider be taught a lesson for making quarrel, whereupon Sarkar Abbas fired a pistol shot at Irfan Haider, which hit his chest; thereafter, Darbar Abbas made a fire through his pistol, which landed on the back of Ali Husnain, who fell down; then Sarkar Abbas and Darbar Abbas fired pistol shots, which struck on the left flank and right temporal of Irfan Haider, who on receipt of injuries fell prone and breathed his last instantaneously; the occurrence was witnessed by the complainant as well as Shabbir Hussain Shah and Zulfiqar Ali sons of Gul Hussain, who on hearing commotions reached the spot; the appellants decamped from the scene while raising Lalkaras and making aerial firing.
The reason for the outbreak of this incident was that about two months before, a quarrel took dace between the appellants and Irfan Haider, which was later on patched up. Due to the said grudge, the appellants in consultation with each other committed murder of Irfan Haider and caused injuries to Ali Husnain. The matter was reported by the complainant to Ghazanfar SI (P.W.9) in ABS Hospital on the same day at 2.15 p.m., who as per dictation of the complainant reduced into writing his statement (Exh.PA) and despatched the same to the Police Station through a constable for formal registration of case, whereupon Muhammad Salem, ASI/DO drew up F.I.R. (Exh.PA/1) on the same day at 2.30 p.m. without any addition or alteration on his part.
4. After registration of the case, investigation into the crime commenced. Ghazanfar Ali, SI (P.W.9) carried out investigation and after completing all legal formalities submitted the challan before the trial Court for trial of the appellants in accordance with law.
5. On receipt of the challan, the trial Court proceeded to frame charge and put the same to the appellants, to which they pleaded not guilty and claimed to be tried. In order to prove its case, the trial Court called upon the prosecution to adduce evidence and in consequence thereof as many as nine prosecution witnesses, namely, Syed Shabbir Haider Shah, complainant (P.W.1), Syed Shabbir Hussain. Shah (P.W.2), Akhtar Nagash, Draftsman (P.W.3), Muhammad Iqbal, constable (P.W.4), Dr. Liaqat Ali Khan (P.W.5), Dr. Muhammad Akram (P.W.6), Zulfiqar Ali, MHC (P.W.7), Tariq Mahmood, constable (P.W.8) and Ghazanfar Ali, SI (P.W.9) were produced. Learned Prosecutor closed the case by giving up rest of the witnesses being unnecessary and tendering in evidence reports of the Chemical Examiner, Serologist and Forensic Science Laboratory (Exhs.PS, PT & PU).
6. Thereafter, all the incriminating material was put to the appellants under Section 342 Cr.P.C., who denied the allegations brought against them and claimed innocence. However, Sarkar Abbas- appellant while answering question "Why this case against you and why the PWs have deposed against you?" admitted the occurrence in the following manner:-- "I am innocent. Police has distorted the real version of the occurrence after being in league with the complainant party. Fact of the matter is that deceased Irfan Haider was a boy of chequered character and was also in habit of teasing the girls of locality. A few days ago a brawl took place between the deceased and me over this matter as I used to forbid the deceased from his nefarious activities and deceased Irfan Haider had been extending threats of dire consequences to me at different occasion. As a result of grudge which was wrinkling in the mind of the deceased against me, on the eventful day and time when I was all alone and was on the way to my home, Irfan Haider deceased who was armed with .30 bore pistol and his unknown companion who was armed with .12-bore carbeen waylaid me. After seeing me deceased Irfan Haider raised a lalkara that today you will not be let alive, at the same moment he fired three consecutive shots with his pistol .30 bore out of which one shot hit me on left shoulder and other shots hit one passerby. Feeling myself in impending danger I snatched carbeen from unknown assailant and in order to save my life at the hands of the deceased Irfan Haider I made a fire shot from carbeen and unfortunately two pallets hit the deceased Irfan Haider who died subsequently. The accused Darbar Abbas was not present there and he never participated in this occurrence. I voluntarily appeared before the police in an injured condition and stated the real version of the occurrence but the police did not record my version and recorded the counter version of the occurrence after being in league with the complainant party in the shape of F.I.R. Police has also not recorded my first plea faithfully and honestly. I was also not medically examined by the police on the same day intentionally just to suppress the real version. My arrest was also not incorporated in daily diary of the Police Station P.S. Civil Line, Gujrat, however, I was medically examined at belated stage.
P.Ws were never present at the spot. They deposed falsely against me due to relationship with deceased Irfan Haider. All the P.Ws are interse related."
The standpoint of Darbar Abbas appellant was that he never participated in the occurrence and was involved due to enmity with his brother Sarkar Abbas. Both the appellants although opted to make statements on oath under Section 340(2) Cr.P.C. and also to adduce evidence in defence, but they did not make statements on oath, however, by producing Dr. Malik Abid Mahmood as D.W.1 had closed their defence.
7. Upon culmination of the trial, the trial Court pronounced verdict of guilt against the appellant as aforementioned.
8. Learned counsel for the appellants in support of this appeal argued that admittedly there was no deep rooted enmity between the parties, as no details of the previous occurrence is either mentioned in the F.I.R. or in the statements before the Court; that in the F.I.R., the complainant alleged that two months prior a quarrel took place between the deceased and the appellants in the college, whereas while appearing as P.W.1, he stated that the said incident had happened five/six months prior to the present occurrence, therefore, the prosecution itself is not clear about the motive part of the story; that the appellant-Sarkar Abbas had also suffered injury in this occurrence, but this fact was concealed by the complainant in the F.I.R., however, while appearing as P.W.1 he has admitted the same; that Sarkar Abbas appellant was got medically examined and there was a medico-legal report, which, according to Ghazanfar Ali, SI (P.W.9), was handed over to jail authorities and was not taken back for submission thereof with the report under Section 173 Cr.P.C; that even the doctor, who medically examined him, was not cited as a witness by the prosecution; that the complainant (P.W.1) while lodging the F.I.R. has given complete details of injuries, but while appearing before the Court he changed his previous version in view of the post- mortem report, thus, in this case ocular account is not in consonance with the medical evidence because as per F.I.R. first fire was shot by Sarkar Abbas appellant which hit Irfan Haider on front of his chest and thereafter both the appellants jointly fired shots, which hit on his left flank and right side of his temple, but there is no such injury as per medical evidence and even otherwise both the eye-witnesses, namely, Syed Shabbir Haider Shah and Syed Shabbir Hussain Shah (P.W. 1 & 2) themselves admitted that they were present there per chance, but no plausible explanation has been offered by them for their presence at the spot; that in this case a person, namely, Ali Husnain was injured and was medically examined by Dr.Muhammad Akram, M.O. (P.W.6), but he was given up by the prosecution as being unnecessary, therefore, the presumption in view of Article 129-G of the Qanun-e-Shahadat Order, 1984 shall be drawn against the prosecution to the effect that this witness, if appeared, would have not supported the prosecution case, especially when the case of the prosecution is that he was companion of the deceased and was not a passerby; that as per memos (Exhs.PF & PG), recoveries of .30-bore pistols (P8 & P9) were effected from Darbar Abbas and Sarkar Abbas-appellants on 21.10.2003 and 21.11.2003, respectively and the same was deposed by Ghazanfar Ali, SI, Investigating Officer of the case, while appearing as P.W.9, but according to Syed Shabbir Hussain Shah (P.W.2) the recoveries were effected from the appellants on 4.11.2003, therefore, there was no possibility of the recovery from the appellants on the dates mentioned in the recovery memos if the appellants, as per version of the prosecution, were arrested on 30.10.2003 because the appellants were not in police custody and similarly the appellants were admittedly in judicial lock up on 3.11.2003; that even otherwise as per recovery memo. (Exh.PE), six empty cartridges of .30-bore were taken into possession from the spot, whereas Syed Shabbir Hussain Shah (P.W.2), who attested the said memo, stated that three empties were recovered from the spot and both the empties and pistols were sent to the Forensic Science Laboratory together on 13.11.2003, as per statement of Muhammad Iqbal, constable (P.W.4), therefore, in such a situation, report of the Forensic Science Laboratory is of no avail to the prosecution as held by the Hon'ble Supreme Court in cases of Mushtaq.and 3 others v. The State (P.L.D. 2008 S.C. 1) and Ali Sher and others u. The State (2008 S.C.M.R. 707).
The learned counsel further argued that in the F.I.R., the complainant (P.W.1) stated that the deceased died at the spot, whereas while appearing in the Court, he stated that he took his son in injured condition to the hospital, where he succumbed to the injuries; that the deceased, as per statement of the complainant (P.W.1), was immediately taken to the hospital in injured condition and subsequent to his death post-mortem examination was conducted by the doctor, but had he been available in the hospital, then there was no reason for, delay in conducting the post-mortem examination, which was conducted on 21.10.2003 at 6.00 p.m., which clearly shows that the F.I.R. was not registered at the time as alleged, which also suggests that the F.I.R. was got registered after due deliberations. Reliance in this behalf has been placed on the cases of Abdullah and others u.
The State and others (2006 P.Cr.L.J. 1726) and Muhammad Jaued u. The State (2007 Y.L.R. 1).
The learned counsel further 'contended that Ali Husnain, injured in this case, was taken to the hospital by a police constable and not by the complainant or any other witness and that the stance of the complainant that he took his son in injured condition to the hospital is belied by the statement of Dr. Muhammad Akram, MO (P.W.6) as he has categorically stated that no such person of the name of Irfan Haider was brought before him and neither name of the complainant nor any other private person is mentioned in the relevant column of inquest report (Exh.PR); that the defence plea of Sarkar Abbas-appellant if put in juxta-position with the prosecution case appears to be more probable, convincing and genuine as he stated that he was attacked by the deceased along with his unknown companion and he snatched a carbine of his unknown companion after receiving fire shot at his shoulder and fired; that though the accused is required to prove his plea but the burden of proving such plea is not such as the prosecution is required to prove its case and if plea of the accused appears to be probable, it must be given preference over the prosecution case; that the seat of injuries and dimension of wounds suggest that these were caused with scattering of the pellets; that it is proved on the record that biased investigation was conducted by the police.
Lastly, the learned counsel submitted that there is no case against Darbar Abbas-appellant and even if the prosecution story is accepted, the allegation against him was that he caused fire-arm injury to Ali Husnain, but he did not appear and there is another joint allegation against him and his brother Sarkar Abbas of causing injuries to the deceased, but these injuries are not available in the post-mortem report; that as far as case of Sarkar Abbas appellant is concerned, there are following mitigating circumstances:-- (a)that the motive has not been proved and the circumstances suggest that it was a sudden flair up and immediate cause of incident is shrouded in mystery; (b)that he has admitted in his statement under Section 342 Cr.P.C. that he had made one fire shot at the deceased and that he is a young man of 24 years.
9. Conversely, the learned Additional Prosecutor General Punjab opposed this appeal on the ground that the prosecution has proved its case against both the appellants through natural, convincing and confidence inspiring evidence; that it is on the record that the complainant of the case is real paternal uncle of both the appellants, as such, there could not be many possibility of false implication or substitution; that the matter was timely reported to the police and the fact that the statement (Exh.PA) was recorded at 2.15 p.m. on the same day suggests that the witnesses were present at the time of occurrence as they have given full description of the event with details of role played by each of the appellant, therefore, they cannot be termed as chance witnesses because it has not been disputed that the complainant (P.W.1) was working in the DCO Office and was resident of Madina Syedan and similarly the other witness, namely, Syed Shabbir Hussain Shah (P.W.2) was also resident of the same place, which is very close to the place of his working as he was a petition-writer in front of Passport Office, Gujrat and during the interval in the Government offices, ordinarily. the officials go to their homes for taking meals.
10.We have heard learned counsel for the appellants as well as the learned Additional Prosecutor General Punjab for the State and have also gone through the record with their able assistance.
11.In this case the occurrence took place at 1.15 p.m. on 21.10.2003 and the matter was reported to the police on the same day at 2.15 p.m. through the statement of the complainant (Exh.PA) and the formal F.I.R. (Exh.PA/1) was registered at 2.30 p.m. The distance between the place of occurrence and the police station is about one mile. The F.I.R. in this case stood registered promptly, so any chance of entering into deliberations and consultations with others to involve the appellants falsely is excluded. All the material details of the occurrence have been elaborately given in the F.I.R. The appellants are fully known to the eye-witnesses (P.Ws. 1 & 2) being closely related inter-se. It was a daytime occurrence. The prosecution produced as many as nine witnesses to prove its case against the accused persons including two eye-witnesses, namely, Syed Shabbir Haider Shah and Syed Shabbir Hussain Shah (P.Ws. 1 & 2).
12.Medical evidence has been furnished by Dr. Liaqat Ali Khan and Dr. Muhammad Akram (P.Ws.5 & 6). Post-mortem examination on the dead body of Irfan Haider deceased was conducted by Dr.Liaqat Ali Khan (P.W.5), who observed following injuries on the person of the deceased:-- "1. Fire-arm wound of entry with inverted margin on left temple measuring 0.5 x 0.5 cm.
1-B Fire-arm wound of exit measuring lx1 cm with everted margins on back of head approximate 6 cm backward and upward from left ear.
2. Fire-arm wound of entry measuring 0.5. x 0.5 cm with inverted margins on right chest 4 cm from right nipple upward and medially.
2-B. Fire-arm wound of entry measuring lx1 cm on left lumber region posteriorly."
According to him, Injuries No, 1 and 2 were sufficient to cause death separately in the ordinary course of nature, as Injury No, 1 injured the vital organ (brain) and Injury No, 2 injured the vital organ heart. This witness in cross-examination stated that there are only two entry wounds and those are on the frontal portion of the body. He has further admitted that Injury No, 2-B is not an independent wound and is exit wound.
Dr. Muhammad Akram, MO (P.W.6) had medically examined Ali Husnain, injured, however, there is no need to discuss his evidence, as the said injured PW did not appear in Court and was given up as being unnecessary.
13. It is a case of two versions, one set up by the prosecution and other by the appellant, namely, Sarkar Abbas. The prosecution story, according to the complainant (P.W.1) was that his son Syed Irfan Haider along with one Ali Husnain was on his way to home, when the appellants waylaid them.
Sarkar Abbas appellant made a fire shot at Irfan Haider hitting front of his chest. The fire shot made by Darbar Hussain-appellant struck the back of Ali Husnain. Thereafter, both the appellants jointly fired shots with their respective pistols, which landed on the left flank and right temporal of Irfan Haider, who succumbed to the injuries at the spot. Whereas, standpoint of Sarkar Abbas appellant in his statement under Section 342 Cr.P.C. was that on the eventful day, when he was on his way to home, Irfan Haider and his unknown companion while carrying .30-bore pistol and a carbine, respectively, assaulted upon him by making three consecutive shots, out of which one shot hit his shoulder and the other shots hit one passerby. He feeling danger to his life snatched the carbine from the unknown assailant and in order to save his life shot a fire and unfortunately two pellets hit Irfan Haider, who breathed his last subsequently. According to him, his brother Darbar Abbas was not present at the time of occurrence.
The defence version in this case is that Sarkar Abbas appellant was injured by Irfan Haider deceased in this incident and was medically examined and subsequently Dr.Malik Abid Mahmood (D.W.1) stated that he examined the appellant but there is no medico-legal report on the record.
The argument of the learned counsel for the appellants that Ghazanfar Ali, SI (P.W.9) admitted that there was a medico-legal report, which was handed over to the jail authorities and has not been attached with the report under Section 173 Cr.P.C. does not appear plausible because has there been any medico-legal report, a copy thereof could be brought on record through the doctor, who was called as defence witness and even otherwise this plea was taken by Sarkar Abbas-appellant, when he was arrested. The story narrated by him that he snatched a carbine from the unknown companion of the deceased also does not appeal to the common sense or the reason. Therefore, this plea in these circumstances is not acceptable.
14.Insofar as prosecution case is concerned, both the eye-witnesses, namely, Syed Shabbir Haider Shah-complainant (P.W.1) and Syed Shabbir Hussain Shah (P.W.2) have given an explanation for their presence at the spot and both of them stated that they are working in the Government offices and at the relevant time they were going to homes for taking meals and that the fact that the matter was reported to the police at 2.15 p.m. with full details as mentioned in the F.I.R. and even other documents such as inquest report also contains the details of the event. We have carefully scanned the evidence given by both the eyewitnesses and have come to an irresistible conclusion that their presence at the spot was quite natural as they are the residents of the locality where the occurrence took place, they identified the assailants as it was a daytime occurrence and that there is no question of mistaken identity as the appellants are closely related to the complainant (P.W.1) being paternal nephews. Their statements are consistent and confidence inspiring on all material and relevant aspects of the case, as such, they cannot be termed as chance witnesses.
15.As regards recovery of weapons of offence, allegedly used by the appellants during the incident, it is on record that Darbar Abbas and Sarkar Abbas-appellants were arrested on 30.10.2003 and sent to judicial lock up on 3.11.2003. According to the investigating officer (P.W.9), pistols (P8 & P9) taken into possession through memos Exhs.PF & PG were recovered on their pointation on 21.10.2003 and 21.11.2003, respectively, whereas Syed Shabbir Hussain Shah (P.W.2), who attested the recovery memos, stated that the recoveries were effected from them on 4.11.2003.
There is clear contradiction between the statements of both these witnesses.
It has also been observed that as per recovery memo. (Exh.PE) six empties were taken into possession from the spot by the investigating officer (P.W.9) on 21.10.2003 in presence of the Syed Shabbir Hussain Shah (P.W.2) and one Zulfiqar Ali, PW (not produced), but P.W.2 while appearing in Court stated that three empties were seized by the investigating officer from the venue of crime.
Perusal of record also reveals that the empties recovered from the spot and the pistols, allegedly recovered on the pointation of the appellants, were sent to the Forensic Science Laboratory together on 13.11.2003 as per statement of Muhammad Iqbal, constable (P.W.4). In view of this situation, although the report of the Forensic Science Laboratory is in the positive, but it is of no avail to the prosecution and cannot be taken into consideration because it is settled principle of law that delay in sending the empties and the crime weapon would destroy the evidentiary value of such piece of evidence. Reference may be made to the cases of Mushtaq and Ali Sher (Supra).
16.Insofar as motive part of the prosecutfon story is concerned, the same is shrouded in mystery because in the F.I.R. the complainant (P.W.1) had alleged that a quarrel had taken place between the deceased and the appellants about two months prior to the present incident, but while appearing in Court he enhanced the interregnum period to five/six months and even no other witness has been produced to prove the same.
17.Another important circumstances of the case is that the complainant (P.W.1) is real paternal uncle (Chacha) of the appellants, as such, chances of their false implication and substitution are very rare. However, as far as case of Darbar Abbas-appellant is concerned, he had allegedly caused a fire-arm injury to one Ali Husnain PW, but the said injured did not appear before the Court and as such there is no conviction with regard to murderous assault. As per F.I.R., he and his co- appellant jointly fired at the deceased and the shots hit on the left flank and right side of his temple, whereas as per statement of Dr.Liaqat Ali Khan, MO (P.W.5), who conducted post-mortem examination, there was no entry wound on the left flank of the deceased and similarly there was no injury on the right temple, which creates doubt qua the presence of Darbar Abbas-appellant.
Therefore, by extending benefit of doubt to said Darbar Abbas-appellant, we acquit him of the charge. He is directed to be released from custody forthwith, if not required in any other case.
18.Insofar as Sarkar Abbas-appellant is concerned, as per prosecution case he had fired on the deceased and the shot fired by him landed on his chest and this fact is supported by the medical evidence i,e, the statement of Dr.Liaqat All Khan (P.W.5), therefore, his conviction under Section 302(b) P.P.C. is maintained.
19.As regards quantum of sentence of Sarkar Abbas-appellant under Section 302(b) P.P.C; we have noted following mitigating circumstances for awarding him lesser sentence--
(a) that the appellant too was injured in this occurrence and this fact was admitted by Dr.Malik Abid Mahmood (D.W.1), who deposed that on 31.10.2003, the appellant was produced before him on the direction of the Medical Superintendent and the report recorded on the application (Exh.PM) was signed by him, but no detail of injury was given.
(b)That there was no serious enmity between the deceased and the appellant and even motive set up by the prosecution was not proved.
(c)That immediate cause of the incident is not known.
Taking all these circumstances into consideration, we alter the sentence of Sarkar Abbas- appellant from death to imprisonment for life. However, the order with regard to payment of amount of compensation and sentence in lieu of its non-payment is maintained. The appellant shall be extended benefit of Section 382-B Cr.P.C.
20.Resultantly, this appeal to the extent of Darbar Abbas-appellant is allowed and the same qua Sarkar Abbas-appellant stands dismissed with the modification of sentence as mentioned above.
21.Death sentence awarded to both the appellants is NOT confirmed and Murder Reference is answered in the negative.