This is an appeal under Section 410 Cr.P.C. directed against the judgment dated 15.03.2005, passed by the learned Addl. Sessions Judge, Gujranwala, whereby, the appellant has been found guilty by the learned trial Court and convicted/sentenced to imprisonment for life under Section 302(B) PPC with an order to pay Rs, 40,000/- as compensation to the legal heirs of the deceased and in default of payment to further undergo three months S.I. The appellant has been extended the benefit of Section 382 (B) Cr.P.C.
2. The prosecution story in brief, as disclosed in the FIR Exh.PF/1, lodged by the complainant Nazir Masih, PW-9 is that on the fateful day i,e, 08.12.2003 at about 4:00 p.m. a quarrel picked up between his son Nadeem Masih (deceased ) and Ijaz alias Jagi accused which was, however, patched up due to the interference of the complainant; that sometimes afterwards, the complainant was standing at the door of his house when, his son Nadeem Masih went into the street and a little while thereafter, the complainant heard noise of an altercation so, he rushed outside and witnessed that Muhammad Ijaz alias Jagi made a fire shot with his carbine straight on his son which landed on his right shoulder; the occurrence was witnessed by the complainant, PW-9 Dilawar Khokhar, PW-10 and Irshad Bhatti (given up PW); the accused fled away extending threats of dire consequences; the complainant shifted his injured son to THQ Hospital Kamoke where the Medical Officer, medically examined his son and referred him to Mayo Hospital, Lahore, due to his serious condition, where, Nadeem Masih injured succumbed to the injuries at 1:20 a.m. on 12.12.2003.
3. The complainant further contended that he could not report the matter to the police earlier as he had been on the bedside of his injured son, besides being in a tense state of mind and that the dead body of his deceased son was lying in Mayo Hospital, Lahore.
4. Nazir Masih, complainant presented a written application Exh.PF to Khawar Latif SI/SHO, PW-13 on the basis of which, a formal FIR Exh.PF/1 Bearing No, 374 of 2003 dated 12.12.2003 under Section 302, PPC was registered at Police Station City Kamoke, Gujranwala.
5. Khawar Latif SI/SHO assumed the investigation of this case and reached the spot, inspected the place of occurrence, prepared visual site-plan Exh.PG and recorded the statement of the witnesses under Section 161 Cr.P.C. Thereafter he arrived at THQ Hospital Kamoke where the deadbody of the deceased was lying. He inspected the deadbody, prepared inquest report Exh.PH, application Exh.PJ for postmortem examination of the dead body, handed over the police papers alongwith the deadbody of the deceased to Riaz Ahmad constable for post-mortem examination. The dead body was identified by Yousaf Masih PW-3 and Pervez Gill at the time of post-mortem examination. After the autopsy on the dead body of Nadeem Masih, the Investigating Officer took into possession last worn blood-stained cloths of the deceased comprising Shalwar P-1, Chadar P-2 a sealed peal P-3 through recovery memo. Exh.PB, attested by Yousaf Masih, PW-3 and Pervez Gill, PW. The Investigating Office got prepared a scaled site-plan in duplicate Exh.PA and Exh.PA/1 through Masood Ahmad Bhatti, draftsman, PW-1.
6. After his arrest on 04.01.2004, the accused Ijaz alias Jagi made a disclosure about the weapon of offence on 11.01.2004 and led to the recovery of .12 bore Carbine P-4 which was taken into possession through recovery memo. Exh.P.E, attested by Ghulam Rasul 1793-C, PW-6 and Shamshad Ahmad 1299/C, PW. He recorded the statements of the said PWs and prepared a site- plan of the place of recovery as Exh.PE/1. He handed over the sealed parcel of carbine .12 bore to the Moharrer for onward transmission to the office of Forensic Science Laboratory, Lahore. The I.0 recorded the statements of all the concerned witnesses under Section 161 Cr.P.C. during the course of investigation. On conclusion of investigation he challaned the accused.
7. The appellant Ijaz alias Jagi was indicted on the charge of murder of Nadeem Masih (slain ) to which he did not plead guilty and claimed trial. So the prosecution was asked by the learned trial Court to produce its evidence to prove the charge against the appellant-accused.
8. During the trial, the prosecution in support of its case produced as many as 13 witnesses. Masood Ahmad .Bhatti, draftsman, PW-1 prepared the scaled site-plan in duplicate Exh.PA and Exh.PA/1 in scale of 1 inch equal to 30 ft, Maqbool Hussain 1283, PW-2 dispatched the sealed parcel of carbine P-4 in the office of Forensic Science Laboratory, Punjab, Lahore on 29.01.2004, Yousaf Masih, PW-3 identified the dead body of the deceased at the time of post-mortem examination and attested the recovery memo. of last worn blood-stained clothes of the deceased Exh.PB.
9. Dr. Syed Zafar Abbas PW-5 medically examined Nadeem Masih injured at 5:00 p.m. on 08.12.2003 through MLR Exh.PD and described the details of injury suffered by the victim as under: "(1) A large ragged lacerated wound 4(1/2) cm x 3 cm on the back of right shoulder, lying 9 cm below the apex of right shoulder, close to the posterior auxiliary line, margins irregular inverted, muscles exposed going deep into the body. No blackening seen. Advised X-Ray of right shoulder and chest. All clothes were moisted, qamiz stained with blood.
(2) Bleeding through nostril, advised X-Ray, skull AP/LAT.
10. The Medical Officer found the injured serious, profusely sweating, semi-conscious, B.P less. pulse less, and vomiting, so, he referred the injured to Mayo Hospital, Lahore for further management.
11. Injury No, 1, according to the Medical Officer was caused by a fire-arm and Injury No, 2 by a blunt weapon, probable duration of injury was mentioned as, within three hours.
12. Dr. Muhammad Munir Hussain, PW-4 who had conducted the autopsy on the dead body of Nadeem Masih (deceased) showed up as PW-4 and prepared the post-mortem examination report Exh.PC. He gave up the detail of injury suffered by the deceased as under:-- (1)A large ragged lacerated wound 5 x 3 cm, going deep on the back of right shoulder about 9 cm. below the apex of shoulder, close to the posterior auxiliary line. There was bleeding from the nose.
(2)On dissection of Injury No, 2 he found no external injury to the nose. There was bleeding from the nose. Apex was due to damage to the lung vessels due to which bleeding occurred from the nostril and it was consequent of Injury No, 1.
13. In his opinion the Injury No, 1 was anti-mortem and caused by fire-arm. According to him, the cause of death in this case was due to massive damage to the right lung and excessive hemorrhage. The probable time elapsed between injury and death was described by him as 3 to 4 days and between the death and post-mortem examination was within 12 hours.
14. Ghulam Rasool 1793/HC, PW-6 deposed about the recovery of carbine .12 bore P-4 at the instance of the appellant-accused vide recovery memo. Exh.PE, attested by him and Shamshad Ahmad 1299/C, Muhammad Rafique 1475/C, PW-7 dispatched the sealed parcel of the carbine to the office of Forensic Science Laboratory, Punjab, Lahore on 31.01.2004 through Maqbool Hussain 1.283/C, PW-2, Nazir Masih PW-9, the complainant endorsed his version as contained in FIR Exh.PF/1, Dilawar Masih, PW-10 furnished an eye-witness account of the occurrence, Javed Iqbal ASI, PW-11 being Duty Officer recorded formal FIR Exh.PF/1, Muhammad Riaz 1056/C, PW-12 got the autopsy done on the dead body of the deceased and later on produced the last worn clothes of the deceased Shalwar P-1, Chaddar P-2, sealed phial P-3, who secured the same vide recovery memo.
Exh.PB attested by him and Yousaf Masih, PW-3, Khawar Latif SI/SHO, PW-13 received the written application Exh.PF from the complainant at City Chowk Karaoke, on 12.12.2003 and after recording police proceedings on it, dispatched it to the Police Station through Ghulam Rasul complainant for registration of formal-FIR. Thereafter, he conducted the investigation in this case, the detail of which has already been mentioned in the preceding paragraphs.
15.Learned Special Public Prosecutor tendered in evidence report of Forensic Science Laboratory, Punjab, Lahore Exh.PK and closed the prosecution evidence.
16.Whereafter, the appellant was called upon to make his statement under Section 342 Cr.P.C. who, while making the said statement denied the prosecution case and gave his own version while responding to Question No, 6 as to why this case against him and why the PWs have deposed against him, Ijaz alias Jagi accused contended that Nadeem Masih being armed with a carbine had trespassed into his house at 2:00 p.m. on 08.12.2003 and pounced upon his sister Mst.
Rukhsana Bibi and dragged her towards a room at gun point to commit Zina Bil Jabar with her; he could not tolerate it so he, in order to save the life and honour of his sister, fired with a .12 bore gun of his brother which hit Nadeem Masih deceased on his back, who, on receiving the shot fell down in injured condition. He further contended that the parents of the deceased learnt lateron about the occurrence and they being ashamed of the indecent act of their son sought apology from the family of the appellant-accused and promised not to report the matter to the police; that the complainant chewed his words and got registered FIR against him so, he voluntarily surrendered himself before the local police alongwith .12 bore gun but the Investigating Officer did not record his plea; he admitted that he caused solitary injury to Nadeem Masih in order to save honour of his sister and exercised his right of private defence lawfully; that the PWs were not present at the spot at the time of occurrence and that they had deposed falsely against him by suppressing the true facts of the occurrence.
17.The appellant-accused did not opt to appear as his own witness under Section 340(2) Cr.P.C. nor he intended to produce any defence evidence.
18.The learned trial Court, after conclusion of the trial appraised the evidence available on the file and passed the impugned judgment, whereby, he convicted and sentenced the appellant- accused as mentioned above.
19.Learned counsel for the appellant by expressing his belief, that the prosecution had been torn apart during the course of trial, has contended, that the prosecution had miserably failed to prove its case beyond any shadow of doubt; that though a motive had been specifically set up by the prosecution but it failed to prove the same; that the witnesses of ocular account were neither present at the spot at the relevant time nor they had witnessed the occurrence as it had taken place inside the house of the appellant-accused; that the deceased had himself invited the trouble by trespassing into the house of the appellant-accused being armed with a carbine and in a devilish manner attempted to commit Zina-bil-Jabbar with his sister, who could not tolerate the scene and having lost self control, fired with his brother's .12 bore gun to save the life, honour and chastity of his sister which was at stake at the hands of the deceased; that the deceased had been fired at by the appellant-accused under grave and sudden provocation and he had not committed Qatl-e-Amd of the deceased; that the appellant-accused had voluntarily appeared before the Investigating Officer alongwith weapon of offence but the Investigating Officer did not record the version of the accused correctly and bonafidely; that it is a case of two versions and the version of the accused was nearer to truth which should have been believed by the learned trial Court; that there is unexplained delay of 92 hours in lodgment of FIR which is fatal to the prosecution case; that there are lots of loopholes in the ocular evidence which do not reconcile with the actual hard facts of the case; that the manner in which the alleged occurrence had been stated to have taken place, was neither believable nor plausible and that no blood-stained earth was collected from the place where the deceased had allegedly received the injuries.
20.On the basis of his contentions, learned counsel for the appellant has prayed for the acquittal of the appellant. In the alternative he has made a prayer that quantum of sentence of the appellant may be reduced and altered to one, punishable under Section 302(c) PPC on the ground that there are many mitigating and extenuating circumstances in favour of the appellant inasmuch as the origin of fight and the place of occurrence have remained shrouded in mystery.
21.Conversely, learned Addl. Prosecutor General has refuted the arguments put forward by the learned counsel for the appellant by contending that the prosecution has successfully proved its case beyond any shadow of doubt; that the delay in lodgment of FIR has been explained in a natural way by the complainant as he had been on the bedside of his deceased son since the time of infliction of fatal injury, on his body and that the deceased had been inching towards the eventuality so his prime duty was to attend his injured son, instead of rushing to the police station to report the matter; that in absence of any previous animosity between the parties, the eye- witnesses could not be termed as interested witnesses, therefore, their statements could not be discarded simply on the ground that there was minor discrepancies in their evidence; that it is a case of single accused, the occurrence had taken place in a broad-day-light in the open street, the parties knew each other since long, so, there was no probability as to mistaken identity of the accused; that the appellant-accused had adopted a delayed and afterthought defence plea during the course of trial as he never raised the said plea' during the course of investigation; that the defence plea was himself rejected by the appellant-accused during the course of the trial when he denied the recovery of carbine with the suggestion that it had been planted upon him and that the proceeding in this regard were fabricated by the Investigating Officer, at the police station; that the report of FSL Exh PK was positive in nature as it disclosed that the .12 bore short pistol (carbine) was in working order, in its present condition; that the appellant-accused had already been held leniently by the learned trial Court by not awarding him the capital punishment; that the defence plea, in a way substantiated the prosecution case which had successfully stood the test of the trial; lastly contends that the instant appeal may be dismissed being devoid of any substance.
22.Arguments heard. Record perused.
23.I find that it is a case of two version, one is the version of the complainant as contained in the FIR Exh.PF/1 and the other advanced by the appellant-accused during the course of the trial. So both the versions shall be dealt with together by keeping them in juxta position interse. There are certain circumstances which stand admitted by both the sides. There is no dispute as to the usage of a .12 bore weapon during the occurrence; the seat of injury and the name of the assailant. In the peculiar circumstances of the case I have picked 'up every piece of the prosecution evidence to assess the depth of real facts. I find that in this case, apart from the ocular evidence, the prosecution evidence is based on the evidence of motive, medical, recovery of weapon of offence as well as the report of Forensic Science Laboratory, Punjab, Lahore.
24.So far as, the motivating factor behind the occurrence is concerned I have noticed that according to the prosecution case a quarrel had taken place between Nadeem deceased, the son of Nazir Masih, the complainant and Ijaz alias Jaji, the appellant-accused at 3:45 p.m. at about 08.12.2003 which was interfered and patched up by Nazir Masih, PW-9. Though, the detail of the said altercation had hot been mentioned in the written application Exh.PF, presented by the complainant for registration of FIR yet while appearing as PW-9, the complainant has mentioned that his son Nadeem deceased was distributing invitation cards in the Mohallah qua the marriage of his sister scheduled to be held on 11.01.2004, he was intercepted by Ijaz alias Jagi accused who contemptuously asked the deceased to pay him Salam as he (Appellant) was a Christian to which deceased Nadeem Masih, replied in the same coin which led to an altercation between the two.
That was the time when Nazir Masih, complainant intervened and sought forgiveness from the accused for his deceased son and the matter was compounded. So far as this motive, is concerned, only Nazir Masih had witnessed the motive altercation as it was he who had intervened and patched it up between the deceased and the appellant accused. The statement of the Investigating Officer PW-13 in this regard is not very material when he contended that the complainant had not produced any supporting evidence to prove the factum of motive during the course of investigation but he completely forgot that the complainant had never contended that the earlier altercation had taken place in presence of certain other persons of the locality.
25.Any person familiar with the facts and circumstances of the motive can prove the same without asking for corroboration through other means. The motive is an element which is always worked out in the mind of the assailant and nobody can tell with exactitude as to what was the real motive whereunder, an accused had committed a particular offence. In majority of the criminal cases if is no more than a guess work or a speculation, so far as, the suggested motive is concerned. An accused may conspire to weave certain emotions into a calculated design to commit an offence.
26.The deceased was a Christian and the appellant accused a Muslim and there was hardly anything common between them. In absence of any previous enmity, the immediate cause of the occurrence could not be different from the one as deposed about by the complainant. In his testimony, PW-9 has not changed the motive at all but has only furnished embroidery of the earlier incident, hinted at by him in his written application Exh.PF as well as in his testimony as PW-9. The embroidery work done by the complainant cannot be considered as a dishonest improvement on the part of the complainant, if I go by the defence plea, pressed into service by the appellant- accused it appears that he had not only admitted to deny the incident of motive but also the whole of the prosecution case as according to him the occurrence had taken place inside his house. I would dilate upon the veracity of the defence plea of the appellant-accused in the later part of this judgment but a cursory view of the same does not dent or undermine the value of the prosecution evidence qua the factum of motive. Nazir Masih, PW-9 though the father of the deceased, did not have any bias, grudge or animosity to falsely charge the appellant-accused for none of his fault. The earlier quarrel took place just 15 minutes before the occurrence, so, there was every likelihood or probability that the appellant had reacted violently towards his verbal war of words. A very little time is found between the motive incident and the occurrence of murder. So I hold that the prosecution has successfully proved the motive, as alleged in the FIR Exh.PF/1.
27.So far as, the medical evidence is concerned, according to the prosecution, Nadeem deceased had received a single fire of a .12 bore weapon on his right shoulder. The medical evidence had been furnished in this case by Dr. Syed Zafar Abbas, PW-5 who had examined Nadim Masih (deceased) in injured condition at 5:00 p.m. on 08.12.2003 -throuh MLR Exh.PD which contains description of a fire-arm injury on the back of right shoulder, 9 cm below the apix of right shoulder with irregular inverted margins and going deep into the body. At the time of his medical examination. the condition of Nadeem Masih was found serious as he was found profusely sweating, semi-conscious, BP and Pulse irrecordable and vomiting by the Medical Officer, PW-5, who, after giving him first aid immediately referred him to Mayo Hospital, Lahore.
28.Dr. Muhammad Muneer Hussain, PW-4 conducted autopsy on the dead body of the deceased, his findings were absolutely in line with that of PW-5 in terms of description of injury of the deceased. On dissection he found the fracture of 4th, 5th and 6th ribs backside, right lung was severely damaged and chest cavity was full of blood. He also found a plastic shell and about 45 metallic round balls from inside of right side of chest, The Injury No, 2, showing bleeding from the nose was found by the Medical Officer, a consequence of Injury No, 1 with the observation that no external injury was present on the nose of the deceased. I have also noticed that the pictorial diagram of the postmortem examination report also shows that there was a single entry wound.
The shape of Injury No, 1 being irregular ragged wound couple with recovery of a number of spherical led balls at the time of postmortem examination, clearly establishes the fact that the deceased had been fired at by means of .12 bore weapon. The appellant-accused had also admitted in his defence plea that he, while exercising his right of private defence, had used .12 bore weapon to fire at the deceased. Nazir Masih complainant, PW-9 and Dilawar Masih, PW-10 have deposed about receipt of a .12 bore shot on the right shoulder by the deceased at the hand of the appellant-accused. Therefore, I conclude that the medical evidence fully corroborates the ocular version.
29.Insofar as, recovery of carbine .12 bore P-4 from the appellant is concerned the same might not have been of any consequence, had the appellant not admitted to have used a .12 bore gun during the course of occurrence, as, this weapon had not been got compared with any crime empty from the office of Forensic Science Laboratory.
30.A .12 bore weapon, like a carbine does not emit empty unless and until its user intends to reload the same. In that eventuality the user would vacate the muzzle of the weapon so as to reload it.
31.The evidence to prove the recovery of carbine, P-4, the prosecution has produced Ghulam Rasul 1793/C, PW-6 and Khawar Latif SI/SHO, PW-13. Maqbool Hussain 1283/C, PW-2 carried the seal parcel of carbine to the office of Forensic Science Laboratory on 29.01.2004 and deposited there, the same day. The report of FSL, Punjab, Lahore Exh.PK reveals that the aforesaid weapon was in working condition.
32.Interestingly, while conducting cross-examination on PW-6 Ghulam Rasul 1793/C the recovery of the said weapon has been challenged and denied by the appellant-accused which is in negation to the defence plea, set up by the accused during the course of the trial. The evidentiary value of the recovery of carbine P-4 would have been nothing at all but for the plea of the accused it cannot be straightway thrown away.
33.Insofar as, the ocular evidence is concerned in absence of any serious enmity between the parties, the same cannot be disbelieved or discarded simply due to the relationship of the eye- witnesses with the deceased. The occurrence took place on 08.12.2003 and the matter was reported to the police on 12.12.2003 as the deceased remained alive till then and Nazir Masih, PW-9, the father of the deceased, remained alongside the bed of his deceased son through and through.
The learned counsel for the appellant has strongly contended that none of the witnesses of ocular account was present at the scene of occurrence nor they had witnessed it and only after having found Nadim Masih in injured condition, they carried him to Civil Hospital, Kamoke. Both the witnesses of ocular account have furnished a clean account of the details of occurrence and have corroborated each other on every material aspect of the case. The occurrence took place in the street, at about 4:00 p.m. witnessed by the complainant as well as by his co-witness, who, shifted Nadim Masih (deceased) in bad injured condition to THQ, Hospital Kamoke. The MLR Exh.PD bears the name of Nazir Masih, complainant PW-9 as a person to have brought the injured to the hospital for medical examination. The time of medical examination indicates that the deceased had been shifted to the hospital within about one hour of the time of occurrence. The Medical Officer has mentioned the duration of injury as within three hours which is not detrimental to the case of the prosecution in any manner as the injured was found bleeding at the time of his medical examination. Had he been bleeding for three hours as claimed by the appellant, he must not have been shifted alive to the hospital due to excessive shock and hemorrhage.
34.It was a broad-day-light occurrence. Both the parties knew each other since long. There cannot be any probability of mistaken identity of the accused, specially, when the appellant accused himself had contended by way of his defence plea that he had fired at the deceased with a .12 bore gun. The reporting of the matter to the police on 12.12.2003 indicates that Nazir Masih complainant had been worried and interested much more in saving the life of his son than rushing towards the police station to report the matter to the police, leaving his son on the death bed. His continuous presence alongside the bed of his deceased son is understandable, which, does not dent the prosecution case in any manner. The ocular account is fully supported by the medical evidence. It is true that there are some contradictions and improvements made by the eye- witnesses but they are minor in nature and cannot be regarded of such a nature which can cause discarding the ocular evidence, therefore, I have come to the conclusion that the prosecution has proved its case against the appellant beyond any shadow of doubt.
35.Insofar as, the plea of the accused is concerned, it appears to be afterthought as he did not raise this plea during the course of investigation, rather, at the time of his arrest on 04.01.2004 the first plea , recorded by the accused was absolutely different from the one he pressed into service, during the course of trial. In his statement under Section 342 Cr.P.C. he contended that Nadim Masih deceased had trespassed into his house at 2:00 p.m on the fateful day, being armed with a carbine, took his sister Rukhsana in clutches at gun point and dragged him towards a room of the house, with intention to commit Zina with her. He further contended that on seeing this scene he lost his self control and with a view to safe the honour, dignity and life of his sister, he fired with a licenced .12 bore gun upon the deceased which landed on his right shoulder and he fall down in injured condition. He further contended that the deceased was lateron lifted and taken to his house, wherefrom he was taken to the hospital. He has also alleged in his defence plea that the parents of the deceased were apologetic of the "shameful ace of their son so they had decided not to report the matter to the police. The defence plea of the accused is not entertainable in many ways. He did not produce the said licenced gun to the police during the course of investigation, did not adopt the said version at the time of recording his first plea immediately on his arrest, he has denied the recovery of carbine .12 bore P-4 recovered at his instance and he opted not to produce any defence evidence in support of his plea and lastly, he kept his sister away, both, from the investigation as well as from the proceeding of the trial. The exercise of right of self-defence undoubtedly, is conferred upon every citizen of the country, under the statute, but once the accused adopts a specific plea, falling within the recognized exceptions, the burden to prove the same shall shift to the accused. There are certain circumstances whereunder the accused may be found entitled to the benefit of exercise of right of self-defence despite having not adopted a specific plea in this regard but it shall happen only if, some material, favourable to the accused, flows from the prosecution evidence. Here in this case, the prosecution does not disclose any such circumstance, the benefit of which, could be extended to the accused in the backdrop of his defence plea.
36.The non-recovery of the blood-stained earth from the place of occurrence, does not dent the prosecution case, as, after four days of the occurrence, the blood-stained earth could only be recovered if the place of occurrence had been properly safe guarded. The spot of occurrence was a thoroughfare, used by the inhabitants of the locality, so, there is every probability that the evidence of blood-stained earth might have been lost under the feet of the pedestrians.
37.If the occurrence as claimed by the appellant-accused had taken place inside his house and that the deceased had fallen in injured condition there then, he must have shown the said place to the police, after he had been arrested. The gun allegedly produced by him before the police at the time of his arrest, is also found nowhere. The claim of, the appellant-accused that the parents of the deceased were apologetic due to the act of the deceased is equally non-sensical, otherwise, he would have led some evidence to prove this part of the defence plea.
38. A belated and afterthought defence plea, not supported by any evidence, is inconsequential to the case of the appellant-accused. The defence plea being devoid of any merit is thus, declared as incredible, improbable, afterthought and meaningless. It, however, lends a sense of corroboration to the case of the prosecution, which otherwise, stands proven on its own facts and circumstances.
39.For what has been discussed above, the instant appeal is dismissed and the impugned judgment is upheld.