MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No.2059 of 2004 (Zafar Iqbal and another v, The State) and Murder Reference No.914 of 2004 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to appellants, as they arise out of the same judgment dated 9-12-2004 passed by the learned Additional Sessions Judge, Faisalabad, whereby, appellants were convicted for the murder of Walayat (deceased) and sentenced as under:--
(i) Appellant Zafar Iqbal was convicted under section 302(b), P.P.C. And sentenced to death as Tazir with a further direction to pay a compensation of Rs. 1,00,000 as provided tinder section 544-A, Cr.P.C. To the legal heirs of the deceased in default whereof to further undergo R.I. For six months.
(ii) Appellant Ahmad Ali alias Ahman was convicted under section 302(b)/34, P.P.C. And sentenced to imprisonment for life with a further direction to pay a compensation of Rs.100,000 to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. In default whereof to further undergo R.I. For six months. Benefit of section 382-B, Cr.P.C. Was extended to him.
2. Brief facts of the case, as given by P. W.9' Saifullah (complainant) in the F.I.R. (Exh.PH/1) are that on 3-8-2003 at about 5-00 p.m., he along with his real brother Walayat (deceased) and Anwar Ali reached "Itwar Bazar" Chungi No.224-RB More Abadi Wazir Khan Wali on their respective bicycles to purchase some articles and Amir also joined them. According to the complainant, in the meanwhile, Zafar Iqbal and Ahmad Ali alias Ahman (appellants) along with three.Unknown persons reached there on a white colour Toyota corolla un-numbered car and alighted from it. It has been mentioned by the complainant in the F.I.R. That Zafar Iqbal raised a Lalkara to teach a lesson to Walayat (deceased) for pursuing the case and caused a "sua" blow on the chest of Walayat followed by successive `sua' blows on his head in the falling condition. It has further been mentioned in the F.I.R. That Ahmad Ali also caused a `sua' blow on the head of Walayat after he had fallen on the ground. The complainant also stated in the F.I.R. That Ahmad Ali gave a second `sua' blow on the front of forehead of Walayat who was seriously injured. As per F.I.R., the complainant also alleged that ali the accused decamped from the spot on the said car while raising Lalkaras and Walayat succumbed to the said injuries at the spot whereas the P.Ws. Did not go near due to fear and threats of the accused persons. The motive stated in the F.I.R. Was that one and a half months prior to the occurrence, a Behnoi of the complainant, namely, Abid caused a firearm injury to Ahmad Ali's real brother, namely, Fazal, the said Abid was in Jail and Walayat used to pursue the said case on account of which the accused persons, in furtherance of their common intention, killed the deceased.
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the accused as required under section 265-C of the Code of Criminal Procedure, charge was framed to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution produced as many as 12 witnesses during the trial. The appellants/accused were examined under section 342, Cr.P.C. They neither produced any evidence in defence nor opted to depose on Oath as required under section 340(2), Cr.P.C. However, the learned trial Court convicted and sentenced the appellants as detailed above. In reply to the question "why this case against you and why the P.Ws. Have deposed against you", Zafar Iqbal appellant stated as under:-- "The case is false and the prosecution evidence is also false and fabricated. Saifullah complainant and Anwar Ali P.W. And Amir Ali P.W. Were not present at the place of occurrence at the time of occurrence. Saifullah complainant and Anwar Ali P.W. And Amir Ali P.W. Did not see the occurrence.
Saifullah complainant, falsely implicated me and my alleged co-accused Ahmad Ali in this case because of enmity. The complainant and other P.Ws. Have made false statement being related to Walayat deceased and being inimical to me and being inimical to alleged co-accused Ahmad Ali.
The complainant prevailed upon the police and falsely got me and alleged co-accused Ahmad Ali implicated in this case and that the complainant party being influential, prevailed upon police and got me and my alleged co-accused challaned in this case. Some unknown persons injured Walayat deceased who died as a result of injuries suffered by him at the hands of some unknown persons. The prosecution case is found false by the investigation officer during the investigation including the DSP Investigation. I am innocent. My age at the time of alleged occurrence was less than 18 years".
Ahmad Ali alias Ahman appellant, in answer to question "why this case against you and why the P.Ws. Have deposed against you", replied in the following manner:-- "The case is false, the prosecution evidence is also false and fabricated. Saifullah complainant, Anwar Ali P.W. And Amir Ali P.W. Were not present at the place of occurrence at the time of occurrence. Saifullah complainant, Anwar Ali P.W. And Amir Ali P.W. Did not see the occurrence.
Saifullah complainant, falsely implicated me and alleged co-accused Zafar Iqbal in this case because of enmity. The P.Ws. Have made false statement being related to Walayat deceased and being inimical to me and my alleged co-accused above mentioned. The complainant prevailed upon police and falsely got me and alleged co-accused Zafar Iqbal implicated in this case and that the complainant party is being influential, got me and my co-accused Zafar Iqbal challaned in this case, some unknown persons injured Walayat deceased who died as a result of injuries suffered by him at the hands of some unknown persons. The prosecution case was found and the investigation officer including the DSP Investigation have found them. I had not inflicted any injury on the person of said deceased".
5. Learned counsel for the appellants contends that the prosecution has failed to prove motive part of the case; that both the eye-witnesses are residents of Chak No.235-RB, Faisalabad which was 3/4 kilometers away from the place of occurrence and they have not offered any plausible explanation for their presence at the spot; that as per F.I.R., both the eye-witnesses i.e. P.W.9 Saifullah and P.W.10 Anwar Ali along with deceased Walayat, they had reached "Itwar Bazar" situated at Chungi No.224-RB, More Abadi Wazir Khan Wali to purchase articles while P.W.9 Saifullah has stated in Court that they were going towards the said "Itwar Bazar"; that the said P.W. Has also stated in Court that the "Itwar Bazar" takes place in D-Type Colony which was at a distance of 3/4 squares from the place of occurrence; that according to the said P.W., there was no "Itwar Bazar" at the place of occurrence; that P.W.9 Saifullah has also admitted in the cross-examination that normally his father and mother used to purchase the household articles; that similarly, there was no reason for P.W.10 Anwar Ali to be present at the place of occurrence as he too was a resident of Chak No.235-RB, Faisalabad which was at a distance of about three/four kilometers from the place of occurrence; that presence of P.W.9 Saifullah is also belied from the fact that although he was present at the spot along with two other persons when they were attacked but they never made any attempt to save life of the deceased although there is no evidence to the effect that the three unknown persons were carrying any deadly weapons with them, therefore, conduct of this P.W. Was unnatural and improbable and .Hat even otherwise, story of the prosecution that the appellant came at the spot while armed with `sua' in an un-numbered car, which was never recovered during the course of investigation, is not plausible.
Learned counsel further contends that as per P.W.10 Anwar Ali, P.W.9 Saifullah (complainant) remained at the spot for about one hour and thereafter he left the place to inform the police is not acceptable because had he been present there his first effort would have been to save live of his real brother who was in the serious condition. According , to the learned counsel, the prosecution has not produced any witness to show as to who took the dead body of the deceased to the hospital and that all these circumstances are suggestive of the fact that the F.I.R. Was registered after due deliberations and consultations which further finds support from the fact that the dead body was allegedly taken to the hospital on the same day but the postmortem examination was conducted on the next day.
Learned counsel has vehemently argued that according to P.W.5 Zafar Iqbal he took the dead body to the mortuary half an hour before the postmortem examination on the next date of occurrence i.e. 4-8-2003 which shows that the formalities were not complete; that as per P.W.9 Saifullah, the Investigating Officer of the case, namely, P.W.12 Abdul Rauf SI remained in the hospital for about 40/45 minutes, whereas, as per P.W.10 Anwar Ali, the said Investigating Officer (P.W.12) remained in the hospital for about ten hours.
While advancing his submissions learned counsel contends that there is no recovery from Ahmad Ali alias Ahman appellant and as far as recovery from Zafar Iqbal appellant is concerned, as per P.W.7 Ahmad Ali, the said appellant got recovered `sua' P4 from near the dismantled wall near the house of Iftikhar, situated in Street No.2, Sindhu Town, Faisalabad, whereas as per Investigating Officer of the case, namely, P.W.12 Abdul Rauf SI, the appellant got recovered 'sua' P4 from his residential house lying near a wall under the neap of brick kiln which shows that nothing was recovered from the appellant; that even otherwise, it was an ordinary `sua' which was easily available in the market as such no reliance can be placed on the said recovery; that as per his own admissions, P.W.10 Anwar Ali was a criminal person; that it is on the record that the deceased was also a man of criminal character which fact is admitted by P.W.10 in his cross-examination; that even if the prosecution story is believed, then it was not an intentional murder as injuries were caused only with a `sua'.
As far as appellant Ahmad Ali is concerned, learned counsel for the appellants contends that his case is distinguishable because no recovery was effected from him and he was found innocent during the course of investigation coupled with the fact that the fatal injury is not attributed to him, therefore, the prosecution story is'not believable qua him.
While concluding his submissions learned counsel submits that as the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, benefit of doubt be extended to the appellants and that, in the afore-referred circumstances, appellants are entitled to acquittal.
6. Conversely, the learned Additional Prosecutor-General for the State assisted by the learned counsel for the complainant, while vehemently opposing this appeal, contends that the appellants are named in the promptly lodged F.I.R. With specific roles; that the natural eyewitness account was furnished by the prosecution and despite cross-examination the defence could shake nothing from their testimony; that the 'P.Ws. Had no enmity with the appellants to falsely depose against him during the trial; that both the eye-witnesses have proved their presence at the spot; that the place of incident is not normally the place of residence of the deceased and the P.Ws. And since the place of occurrence is not disputed by the appellant side, therefore, if the deceased was present at the spot then presence of both the eye-witnesses is also probable; that presence of P.W.9 Saifullah is established from the circumstances that Farad Bayan was recorded one and a half hours of the occurrence wherein details of the whole incident are mentioned; that, even otherwise, in such like cases substitution is a rare phenomenon; that the prosecution has proved its case against the appellants beyond any shadow of doubt and that the conviction and sentence awarded to the appellants by the learned trial Court be maintained. The learned APG further contends that the circumstances of the case suggest that appellant Zafar Iqbal took up `sua' from the nearby shop of Faiz and caused injuries on the person of the deceased; that as far as appellant Ahmad Ali alias Ahman is concerned, his presence at the place of occurrence is doubtful because no recovery has been effected from him and even 'otherwise circumstances further suggest that it was only one person who caused injuries on the person of the deceased.
7. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.
8. Occurrence in this case took place on 3-8-2003 at about 5-00 p.m., the matter was reported to the police by P.W. Saifullah at 6-30 p.m. Within the area of Iron Market, the formal F.I.R. Was registered on the same day at about 5-00 p.m. While the distance between the place of occurrence and the Police Station was about 3-1/2 kilometers .
9. The ocular account in this case has been furnished by P.W.9 Saifullah who is real brother of deceased Walayat and complainant of the case and by one P.W.10 Anwar Ali. P.W.4 Dr. Altaf Pervez Qasim, who conducted postmortem examination on the body of deceased, has furnished the medical evidence and noted following injuries on the person of deceased Walayat:-- "(1) Perforated wound 1/2cm x 1/2cm, circular in shape on front of right side of forehead at 4-1/2 cm above the level of right eye brow and 4 cm away from midline. The skin was perforated but no bony lesion observed.
(2) A perforated wound 1/4 x 1/4 cm circular in shape on right parietal area of head, at 11 cm above the right eye brow. The scalp is perforated through and through and underlying right parietal bone was also perforated and inner table is beveled touching the meninges only but brain was not injured.
(3) A perforated wound 1/4 cm x 1/4 cm circular in shape on right parietal area of head at 13 cm upward/backward right eye brow. The scalp underlying bone was perforated but no injury to brain.
(4) A perforated wound 1/2 cm x 1/2cm circular in shape on front of right chest, middle part at 2 cm away from midline and 9 cm medially from the right nipple. Piercing the skin, sterna costal cartilage perforated the right lung pericardium, sort, chest cavity was full of blood".
The doctor (P.W.4) opined as under:-- "In my opinion, the death of the deceased occurred due to excessive haemorrhage and shock, resulting from injury No.4 caused by sharp pointed weapon which was ante-mortem and sufficient to cause the death in ordinary course of nature. However, injuries Nos. 1, 2 and 3 were also ante- mortem and caused by sharp pointed weapon. The time between injuries and death was immediate while between death and post mortem was about 12 to 18 hours..... "
10. The first point which is to be dilated upon by this Court is whether both these eye-witnesses were present at the spot at the time of occurrence.
11. We have noted that the statement of the complainant P.W.9 Saifullah was recorded at about 6- 30 p.m. At Iron Market regarding the occurrence which took place at about 5-00 p.m. i.e. Just after one and a half hour of the occurrence in which whole details of the incident have been mentioned.
There is no circumstance which could suggest that there was a delay in the registration of the F.I.R.
The place of incident is not disputed or denied by the defence side which is not the normal place of business or residence of the deceased and if the deceased was present there then presence of both the eye-witnesses at the said place is also probable and we hold accordingly.
12. The next question is whether the story narrated by both the eyewitnesses, namely, P.W.9 Saifullah and P.W.10 Anwar Ali is whole truth or these P. Ws. Have made exaggerations. In this respect, it is to be observed that the story narrated by both these eye-witnesses that the appellants along with three unknown persons came in an un-numbered car at the spot while armed with `suas' does not appeal to common sense because circumstances of the case suggest that it was a fight which started between the parties suddenly because of something which happened amongst them at the spur of the moment but has not been brought on record.
13. As far as Zafar Iqbal appellant is concerned, he has been sentenced to death by the learned trial Court. The allegation against him' was that he caused `sua' blows on the person of the deceased.
We have noted that the role attributed to him finds support from the medical evidence furnished by P.W.4 Dr. Altaf Pervez Qasim who conducted postmortem examination on the body of deceased and noted four injures on the person of the deceased. The injuries attributed to Zafar Iqbal appellant did exist there, so, the ocular account in this case is corroborated by the medical evidence to the extent of this appellant. Apart from above, the role assigned to him finds support from the recovery of `sua' P4 at the instance of the said appellant. The discrepancies pointed out by the learned counsel for the appellants regarding the recovery of `sua' P4 from Zafar Iqbal, appellant, are not material. Therefore, we are of the considered view that the prosecution has proved its case against Zafar Iqbal appellant.
14. However, we have also noted that it is not a case of capital sentence qua Zafar Iqbal appellant as circumstances of the case suggest that a fight took place between the parties at the place of occurrence. P.W.9 Saifullah, who is also complainant of the case, has admitted during his cross- examination that there were shops in the Bazar where the occurrence took place. He has also admitted that one Faiz ran a Karyana shop and used to sell 'Bad' (Ice) on the `Thara' which was in front of his shop and the ice blocks were used to put on the said `Thara'. This fact also finds support from the Site Plan (Exh.PA) wherein shop of the said Faiz is shown. Although this P.W. Has not categorically admitted availability of `sua' at the said ice shop but it is known to everyone that the ice is broken with a `sua', so, in our view `sua' was available at the said shop. From the above circumstances, one can easily infer that some fight took place between the parties at the spot upon which the appellant took `sua' from the nearby shop of Faiz and caused injuries on the person of the deceased with the said `sua' amongst whom injury No.4 became fatal which led to the death of the deceased. In our view, it was not a pre-planned murder. Moreso, no body knows as to what exactly happened at the spot between the parties and the motive is not 'alleged to this appellant coupled with the fact that it has come on record that the deceased' was involved in many criminal cases and immediate cause of action remained shrouded in mystery which are sufficient factors creating mitigation in this case. In this regard reliance is placed on Mushtaq Ahmad v. The State (PLD 2004 Supreme Court 150), wherein, their Lordships of the Apex Court, at page 154, held as under:-- "16. We have given our anxious thought to the contentions raised at bar and are of the considered opinion that the prosecution has fully proved its case by bringing on record the ocular testimony furnished by P.Ws. 1, 2 and 3 fully corroborated by the medical evidence. Irrespective of this, his remaining fugitive from law till 1993 is also strong corroborative piece of circumstantial evidence to connect him with the commission of crime. As regards the quantum of sentence, it would be appropriate to have a glance over the evidence of complainant Liaqat Ali who in unequivocal words admitted before the trial Court that the deceased was challaned in 5/6 criminal cases which were still pending. Though denied to the suggestion that his brother was involved in assault, narcotics and unlicensed arms cases yet he voluntarily admitted that he had fought with the guard of Makhdoon Syed Faisal Saleh Hayat while trespassing into his bungalow and such case was registered against him. From the above resume, it transpires that the deceased was man of questionable character which in our 2 uopinion is a sufficient extenuating circumstance to reduce the sentence of the appellant from death to imprisonment for life. According, while maintaining the conviction, we reduce the sentence of appellant from death to imprisonment for life. However, the order of compensation is upheld". (Emphasis supplied)
The question of mitigation on account of non-existence of premeditation came up for consideration before the august Supreme Court of Pakistan in the case of Muhammad Ibrar v. The State (2006 SCM R 1175), wherein, at page 1179, the Apex Court of Pakistan observed as under:-- ............. The main reason which weighed with the learned High Court for reduction in sentence of petitioner was that it was not a pre-meditated incident and that it took place at the door of petitioner. Impugned judgment is based on proper appraisal of evidence and does not require interference."
15. Therefore, after having taken into consideration the above factors, while maintaining conviction of Zafar Iqbal appellant under D section 302(b), P.P.C., his sentence of death is converted into imprisonment for life. The amount of compensation, as awarded by the learned trial Court, shall remain in tact and in default whereof to further undergo SI for six months. Benefit of section 382-B, Cr.P.C. Shall be extended to him. This appeal is partly allowed with the above modification in the quantum of sentence to the extent of Zafar Iqbal appellant.
16. Now we would like to take up the case of Ahmad Ali alias Ahman appellant. The allegation against him was that he also caused injuries with sua' on the person of the deceased when he had fallen on the ground but the circumstances suggest that he was not present at the spot and did not cause any injury on the person of the deceased coupled with the fact that nothing was recovered from him. Moreso, this appellant in answer to a question as to "why this case against you and why the P. Ws. Have deposed against you", he has categorically denied to have caused any injury on the person of the deceased. The motive alleged by the prosecution against this appellant that one and a half E month prior to the occurrence, Behnoi' of the complainant, Abid caused a firearm injury to Ahmad Ali's real brother, namely, Fazal, the said Abid was in Jail and deceased Walayat used to pursue the said case which bore a grudge in the mind of the accused persons, is also not convincing. The learned trial Court, while awarding sentence of imprisonment for life to the said appellant, has agreed with the finding of the Investigating Officer that this appellant though was present at the spot but was not armed with any weapon and did not cause any injury on the body of the deceased, so, in such circumstances it is difficult to hold that he shared the common intention with Zafar Iqbal appellant. Therefore, in the afore-referred circumstances, false implication of this appellant cannot be ruled out as it is very common in our society that along with the actual culprit, innocent persons of the accused party are also implicated in the criminal cases.
Resultantly, while extending him benefit of doubt, this appeal is allowed to the extent of Ahmad Ali alias Ahman appellant, the impugned judgment of conviction is set aside to his extent and he is acquitted of the charge levelled against him. He is behind the bars and shall be released forthwith if not required to be detained in any other case.
Murder Reference is answered in the Negative and sentence of death is Not Confirmed.