JUDGMENT MUHAMMAD ANWAARUL HAQ, J.---Appellant Shahid alias Kaka Chand and his two co- accused namely Muhammad Inayat and Mst. Robina (his parents) were tried by learned Additional Sessions Judge, Gujranwala for the murder of Muhammad Jamil in case F.I.R. No. 302 of 2004, dated 13-5-2004, for an offence under sections 302, 34 P.P.C., registered at Police Station Sabzi-Mandi, Gujranwala, who vide judgment dated 15-2-2005 while acquitting Mst. Robina, co-accused of the appellant had convicted and sentenced the appellant and Muhammad Inayat as under:--
(i) Appellant Shahid alias Kaka Chand, under section 302(b), P.P.C. To death. He was also directed to pay Rs.50,000 (Rupees fifty thousand only) to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default thereof to undergo six month's S.I.
(ii) Muhammad Inayat alias Makhan, under section 337-E, P.P.C. To under-go one year rigorous imprisonment with the benefit of section 382-B, Cr.P.C. However he was acquitted from the charge under section 302, P.P.C.
2. Feeling aggrieved by the impugned judgment the appellant filed Criminal Appeal No. 792 of 2009 whereas trial Court has made a reference (Murder Reference No. 336 of 2005) seeking confirmation of death sentence as required under section 374, Cr.P.C. Muhammad Irfan complainant has filed Criminal Appeal No. 331 of 2005, against the acquittal of Muhammad Inayat alias Makhan and Robina Bibi co-accused, which appeal to the extent of Robina Bibi was dismissed in limine on 10-5- 2005 and notice was issued to the extent of Muhammad Inayat alias Makhan. All these interconnected matters are being disposed of together by this single judgment.
3. At the very outset learned counsel of the complainant and learned counsel for the defence confirm that in Criminal Appeal No. 331 of 2005 titled Muhammad Irfan Butt v. Muhammad Inayat, etc., the respondent Muhammad Inayat has died. In this view of the matter Criminal Appeal No. 331 of 2005 stands abated.
4. Prosecution's story in brief unfolded by Muhammad Irfan Bashir, complainant (P.W.4) in the ,F.I.R.
(Exh. PC) is that on 13-5-2004 complainant along with Muhammad Jameel (deceased) went to Bazar situated at Mehr Noor Wala to see their friends, where complainant got engaged in talking with his friends Muhammad Shabir, Muhammad Iqbal and Muhammad Rizwan whereas Muhammad Jameel (deceased) asked them to stay there as he wanted to see his another friend.
Suddenly at about 2-15 p.m. Five accused, appellant Shahid alias Kaka Chand, Muhammad Inayat alias Makhan, both armed with Churri and Robina Bibi along with two un-known accused persons came there. Robina accused raised lalkara that Khan be done to death on which appellant Shahid alias Kaka Chand inflicted two Churri blows hitting on the back of Muhammad Jameel Khan, then, Muhammad Inayat alias Makhan, accused inflicted 2/3 Churi blows hitting on the back and left fire-arm of Jameel Khan who after receipt of these injuries became unconscious and fell down in front of the house of Muhammad Arif. All the accused persons while raising lalkara fled away from the scene of occurrence.
According to the F.I.R., motive behind the occurrence was that the deceased was running business of cable network and one-day prior the deceased and the appellant had a dispute over non payment of the fare of the same.
5. On 14-5-2004 at D.H.Q, Hospital, Gujranwala Dr. Muhammad Riaz Nadim conducted post- mortem examination on the dead body of Muhammad Jamil and found the following injuries:--
(1) Stab wound 4 cm x 2 cm into mussel deep at left arm 10 cm from axilla.
(2) Stab wound 4 cm x 2 cm into mussels deep at left upper arm 18 cm from tip of left shoulder.
Injuries Nos.1 and 2 are communicating with each other.
(3) Stab would 10 cm x 4 cm into deep going at 18 cm below root of neck at mid line more at right side.
(4) Stab would 7 cm x 2 cm into deep going 5 cm below and towards left of Injury No.3 at left chest and vertebral column.
(5) Stab wound 3.5 cm x 1.5 cm into deep going at left flank 11 cm from posterior mid line and 19 cm.
(6) Incised would 6 cm x 2 cm into muscles deep at left forearm middle 1/3 medially.
(7) Abrasion 1 cm x 2 cm at right knee joint.
In the opinion of doctor, all the injuries were ante mortem caused by sharp edged weapon except Injury No.7 caused by blunt weapon. Injuries Nos.1, 2, 6 and 7 were simple while Injuries Nos.3, 4 and 5 were found grievous. Cause of death in this case was irreversible hypovolumic shock, damage of right lung, right lobe of liver mediastjal vessels esophagus left kidney vertebral column due to Injuries Nos.3, 4 and 5:-- Duration between injuries and death was within 30 to 60 minutes and between death and postmortem was within eleven hours.
6. After registration of F.I.R. Muhammad Javed, S.-I. (P.W.12) inspected the place of occurrence, and conducted formal investigation, prepared injury statement, inquest report and sent the dead body for autopsy, he collected bloodstained earth from the spot. He also sketched the rough site plan of the scene of occurrence. On 21-6-2004. He arrested appellant, Shahid alias Kai. And Muhammad Inayat, accused during investigation on 3-7-2004 appealant, Shahid alias Kaka while in custody led to the recovery of Chhuri (P-5)
7. At trial, the prosecution examined as many as twelve witnesses to prove charge against the accused. Dr. Muhammad Riaz Nadeem (P.W.11) provided the medical evidence. Muhammad Iqbal (P.W.2), Muhammad Shabbir (P.W.3) and Muhammad Irfan Bashir (P.W.4) furnished the ocular account. The investigation of this case was conducted by Muhammad Javed, S.-I. (P.W.12).
8. After recording of the prosecution evidence, statements of the appellant and his co-accused were recorded under section 342, Cr.P.C. The appellant and his co-accused denied the prosecution's evidence, however, in reply to question (Why this case against you and why the P.Ws deposed against you), appellant Shahid alias Kaka replied as under:- "1 have made a victim of fabricated evidence. The occurrence did not take place in the manner and at place as alleged by the prosecution. It did take place in front of the shop of Nadim Butcher.
P.Ws are deliberately interested, thoroughly drilled and beggared. Their villainous activities extended over injunctions of Islam and Sunna. They are members of self styled Cobra gang headed by complainant Muhammad Irfan against whom many criminal cases are pending at various police stations, attested copies are enclosed herewith:--
(a) Attested copy of F.I.R. No.278 of 2004 dated 26-7-2004 under sections 186/325/337-L2 P.P.C.
Police Station Wahndo, Gujranwala against Irfan etc. Mark Exh.DB.
(b) Attested copy of F.I.R. Nos.395 of 2004 dated 28-7-2004 under section 506-B P.P.C. Police Station Civil lines, Gujranwala Mark Exh. DC.
(c) Attested copy of F.I.R. No.472 dated 11-7-1997 under section 506, P.P.C. And 29 of Telegraph Act Police Station Sabzi Mandi, Gujranwala against Ifan, his brothers Muhammad Sarwar, Muhammad Imran etc. Mark Exh. DD.
(d) Attested copy of F.I.R. No.195 dated 4-5-1996 under sections 458/380, P.P.C. Police Station Sabzi Mandi, Gujranwala Mark Exh. DE Deceased was a man of violent temperament. He was mischief maker ( ), wrong doing ( ) and forward folk ( c)it ).
The occurrence originated and culminated in the manner as stated hereinafter:-- "On the fateful day I came to my house from my duty at about 1-30 p.m. I found deceased Jamil standing there and demanding cable fees from my mother Mst. Rubina Bibi. I told him that we had paid all the cable fare and that he should not tease them any more. Deceased became violent and starting abusing me and my mother so much so that he caught my mother from her neck resulting in tearing of her shirt. While exchanging hot word and abuses, we came at Nadim Butcher's shop.
Deceased picked up a churri from there and assaulted me. Feeling imminent apprehension of death/grievous hurt. I also picked up a churri from Nadim Butcher's shop and gave churri bellows to deceased Jamil in self-defence. I could not modulate and systemist my defence step by step while exercising right of defence in state of panic and horror when tampers were high in armed confrontation. I had voluntarily appeared at Police Station Sabzi Mandi on the same day. Police kept me in wrongful confinement and showed my fictitious arrest on 21-6-2004.
Murder of deceased took place in sudden fight, in heat passion, upon a sudden quarrel and without premeditation. My father Inayat co-accused and my mother Mst. Robina co-accused are sick and infirm. They did not participate in the occurrence in any manner. They have been involved by the complainant Irfan with ovique motive to extort money. Many inhabitants of the locality had appeared before the police to vouchsafe the defence."
9. Neither the appellant nor his co-accused opted to produce evidence in their defence nor deposed on oath under section 340(2), Cr.P.C. As their on witnesses in disproof of the allegation appearing against them in the prosecution evidence. The trial culminated into conviction and sentence of the appellant and Muhammad Inayat and acquittal of his co-accused as mentioned above.
10. Learned counsel for the appellant contends that the witnesses are admittedly chance witnesses and they have not spoken the whole truth; that the injuries attributed to the appellant are on the back of the deceased and the injury which was more serious in nature was attributed to Inayat, co- accused who has not been convicted under section 302, P.P.C.; that the injury attributed to the appellant does not co-, ordinate with the ocular account; that even according to the prosecution the occurrence took place due to provocation of the deceased as he gave abuses to the mother of the appellant; that occurrence took place at the spur of the moment and was not premeditated; that the cause of death was Injures Nos. 3, 4 and 5 and only two injuries are attributed to the appellant which are on the lower part of body of the deceased and the appellant cannot be held responsible for causing fatal injury on the deceased; that the appellant was a young man of 23 years of age whereas the deceased was a criminal record holder. Learned counsel lastly contends, that circumstances of the case lead to a definite inference that something had happened at the spur of the moment and even otherwise, case of the prosecution itself is that the appellant acted under the instructions and order of his mother as such capital punishment in the peculiar circumstances of this case is not at all warranted.
11. Conversely, learned Law Officer assisted by the learned counsel for the complainant submits that the appellant was specifically named in the F.I.R. And specific role of causing injuries on the vital part of the deceased has been attributed to him which were found present by the doctor and thus medical evidence fully corroborates the ocular account; that seven injuries were found on the person of the deceased whereas there was not even a scratch on the body of the appellant and the deceased was not armed with any weapon at the time of occurrence as such there was no question of self-defence. Further contends that the occurrence did not take place in front of the house of the appellant and the version of the appellant that the deceased abused his mother is belied by the site plan; that the appellant was arrested after one month and eight days of the occurrence as such his first version before the investigation has lost its efficacy and cannot be relied; that there was no enmity between the parties and false implication in an occurrence which took place in the bazaar was not possible, it cannot be presumed that the occurrence was unseen and that recovery of blood-stained chhuri from the appellant also supports the prosecution version, therefore, the appellant is not entitled to any exception.
12. We have heard the learned counsel for both the parties, learned Additional Prosecutor-General and have perused the record.
13. The occurrence in this case has been admitted by the appellant during the cross-examination on P.W.4 complainant of this case in the following words:-- "It is incorrect that there was a dispute about cable between Jameel deceased and Shahid accused and both quarreled in Bazar during which they both tried to get a Churri from nearby Butcher's shop namely Nadeem Qasai. It is further incorrect that Shahid accused picking up Churri and in the said quarrel injuries were caused to Jameel deceased"
Same was the stance of the appellant during the cross-examination of P.W.2 Muhammad Iqbal.
P.W.12 Muhammad Javed S.-I./Investigating Officer of this case regarding the first version of the petitioner stated as under-- 4 arrested Shahid accused on 21-6-2004 according to his first version he put Churri from the Butcher's shop which was nearby the place of occurrence and inflicted blow to the person of the deceased. It is correct that according to first version of Inayat accused, both Shahid accused and Jameel deceased ran to nearby Butcher's shop and insulted each other."
14. The above stand of the appellant regarding the occurrence is further elaborated in his statement under section 342, Cr.P.C. But if we accept his statement under section 342, Cr.P.C. That has to be accepted in totality, we therefore, shall only consider his stand taken by his learned counsel on his behalf during the trial.
15. The appellant after taking a specific plea of sudden provocation and self-defence in this case did not produce any evidence to substantiate his plea, he even did not opt to appear as his on witness to disprove the allegations levelled against him under section 340(2), Cr.P.C. It is well settled principle of law that accused if takes any special plea in his defence he is to prove the same under Article 121 of Qanun-e-Shahadat Order, 1984, however, basic burden to prove still remains on the prosecution to prove its case beyond any shadow of doubt. In this view of the matter, first we shall examine the case of the prosecution whether that is proved against the appellant and thereafter we shall see the defence plea of the accused whether that spells out from the surrounding circumstances of the case or not.
15. We have noticed that prosecution in this case, to prove the charge against the petitioner has examined three eyewitnesses, Muhammad Iqbal P.W.2, Muhammad Shabbir P.W.3 and Muhammad Irfan Bashir P.W.4. The occurrence took place on 13-5-2004 at 2-15 pm and Exh.PC/2 reflects that matter was reported to the police at 3-20 p.m. At DHQ Hospital, Gujranwala. Formal F.I.R. In this case was recorded at 3-35 pm at the relevant police station, we therefore find that F.I.R. In this case is promptly lodged wherein appellant is specifically nominated with a specific role. All the three eyewitnesses are consistent on all material aspects of the case, their statements are straightforward and even after lengthy cross-examination defence failed to get any material discrepancy or contradiction in the same even otherwise these three P.Ws. Have no previous enmity, grudge or ill will of their on against the appellant to falsely involve him in this case. The P.Ws. Have reasonably explained their presence at the relevant time. Their statements before the police were immediately recorded after the occurrence and their evidence is worth reliance on all material particulars in this regard. Ocular account is further corroborated by medical evidence.
Recovery of weapon of offence Churri (P5) is an added corroboration to the ocular account coupled with positive report of Chemical Examiner and Serologist.
16. We, therefore, do not see any reason to disagree with the finding of conviction of the appellant recorded by the learned trial Court after appraisal of evidence that is quite inconsonance with the basic principles of appreciation of evidence in a criminal trial. We, however, are inclined to consider his plea of mitigation in the light of peculiar circumstances of this case.
17. In this regard the basic stone of prosecution case i.e. F.I.R. Contains a valid ground in itself for mitigation in favour of the appellant. F.I.R. Reflects that whatever happened at the time of this unfortunate occurrence was on the instigation of the mother of the appellant Mst. Robina, who made a Lalkara and asked the appellant to kill the deceased. Learned trial Court had already acquitted Mst. Robina and to her extent appeal against her acquittal i.e. Criminal Appeal No. 331 of 2005 has already been dismissed in limine by this Court vide order dated 10-5-2005. According to police record, appellant was aged about 23/24 years at the time of occurrence and his action under the influence of his co-accused parents cannot be ruled out in the peculiar circumstances of the case. We respectfully refer the cases of Noor Muhammad v. The State (1988 SCM R 1640), Tariq and 2 others v. The State (1995 SCM R 168), Mst. Hafeezan Bibi v. Muhammad Tufail and others (1995 SCM R 256) and Nazeer Ahmad v. The State (1999 SCM R 396) wherein Hon'ble Supreme Court of Pakistan has observed that Lalkara of the father or the mother can be treated as a mitigating circumstance for lesser sentence especially where the accused is of young age.
18. In view of the above we, alter the death sentence of the appellant into life imprisonment as admittedly he acted under the influence of his mother and further that his to F.I.R. Is at par with his (father) acquitted co-accused Muhammad Inayat against whom, there is an allegation of three Chhuri blows on the person of deceased; Benefit of section 382-B, Cr.P.C. Is also extended to him, however, order of learned trial Court regarding compensation to be paid to the legal heirs of the deceased shall remain intact on the same terms and conditions. With this modification in the, sentence of the appellant Shahid alias Kaka Chanel, his Criminal Appeal No. 792 of 2009, is dismissed.
19. Murder Reference (M.R. No. 336 of 2005) is answered in the Negative and death sentence of the appellant Shahid alias Kaka Chand is Not Confirmed.