' ABDUS SATTAR ASGHAR, J.---Muhammad Sadiq appellant and Muhammad Iqbal alias Billu co- accused (since acquitted) were tried by the learned Sessions Judge, Bahawalpur in case F.I.R.
No,324 of 2005 dated 4-11-2005, under sections 302/34, P.P.C. Registered at Police Station Musafarkhana, Tehsil and District Bahawalpur. Learned trial court vide judgment dated 4-9-2008 acquitted the accused Muhammad Iqbal alias Billu of the charge whereas convicted Muhammad Sadiq appellant under section 302(b), P.P.C. By way of Tazir for committing Qatl-e-Amd of Ghulam Hussain and sentenced him to death with a direction to pay Rs,50,000 as compensation to the legal heirs of the deceased or in default in payment thereof to suffer S.I. For six months.
2. Feeling aggrieved of the above noted conviction and sentence Muhammad Sadiq has filed Criminal Appeal No,210-J of 2008 through jail. He has, however, filed another appeal through counsel against the same conviction and sentence vide Criminal Appeal No,205 of 2008. The State has approached this Court with Murder Reference No,48 of 2009 seeking confirmation of death sentence awarded to Muhammad Sadiq convict. It may be mentioned here that two appeals filed by Muhammad Sadiq convict (Criminal Appeal No,210-J of 2008 and Criminal Appeal No,205 of 2008) cannot legally proceed simultaneously. Faced with this situation, learned counsel for the convict opted to withdraw Criminal Appeal No,210-J/2008. In this view of the matter, the same is dismissed as being redundant. All the remaining matters being interconnected are being disposed of together through this single judgment.
3. The alleged occurrence took place on 4-11-2005 at about 1-00 p.m. In the area of Mauza Noorpur Naranga within the territorial jurisdiction of Police Station Musafarkhana, District Bahawalpur in which Ghulam Hussain son of Ghulam Fareed was killed and the matter was reported by Khalil Ahmad complainant (P.W.7) through written application to Muhammad Afzal S.-I. At Bridge Noorpur Naranga the same day at 1-35 p.m. Who after recording proceedings thereupon forwarded it to the Police Station through Ghulam Muhammad 1371/C for registration of the case and permission for further investigation. On receipt of the application Exh.PF at the Police Station formal F.I.R. Exh.PD was recorded.
4. Prosecution version as set forth by Khalil Ahmad complainant in the F.I.R. Is that he is cultivator, that he and his real brother Ghulam Hussain along with their families reside at village Ghulam Muhammad Channar; that the same day he along with Ghulam Hussain, Muhammad Maroof and Muhammad Iqbal were proceeding to Jamia Masjid Rizvia Noorpur Naranga to offer Jumma Prayers; that at about 1-00 p.m. When they reached in front of the shop of Abdul Hameed Minhas the accused Muhammad Sadiq and Muhammad Iqbal alias Billu armed with pistols suddenly emerged in front of them; that accused Muhammad Sadiq said to Ghulam Hussain that he has developed illicit relations with his wife Mst. Mukhtar Mai for which they will teach him a lesson, whereupon the accused Muhammad Iqbal alias Billu said to Muhammad Sadiq to fire upon and Muhammad Sadiq fired straight shots with pistol upon Ghulam Hussain which hit on his chest and abdomen who got injured and fell down on the ground; that he along with P.Ws. Attempted to apprehend Muhammad Sadiq whereupon Muhammad Iqbal alias Billu while making aerial firing caused threat to their lives and decamped; that they attended Ghulam Hussain who had succumbed to the injuries at the spot.
5. Before proceeding further in the matter we may mention here that in order to avoid burdening this judgment with unnecessary details we would like to confine ourselves to the facts necessary for disposal of this appeal.
6. Muhammad Afzal S.-I. (P.W.10) the first Investigating Officer of this case after receiving the written application Exh.PF from the complainant and forwarding the same to the police station through Ghulam Muhammad 1371/C for registration of the case reached the place of occurrence, prepared injury statement (Exh.PB) of Ghulam Hussain deceased and inquest report Exh.PB/1 and thereafter handed over the dead-body along with police papers to Bilal Ahmad constable for its autopsy.
After recording the statement of the P.Ws. Under, section 161, Cr.P.C: he inspected the place of occurrence, secured blood stained earth from the spot, made it into sealed parcel and took into possession through recovery memo. Exh. PG. He collected three crime empties P-4/1-3 from the spot, sealed them into parcel and took into possession through recovery memo Exh.PH and also prepared the site-plan of the place of occurrence without scale Exh.PK. On the same day Muhammad Bilal 1710/C after getting the postmortem examination on the dead-body of Ghulam Hussain deceased produced last-worn clothes of the deceased to the said Investigating Officer who took into possession through recovery memo Exh.PC.
7. Farrukh Javed Inspector/S.H.O. (P.W.9) took over the investigation of this case on 5-11-2005. On 15-11-2005 he joined Muhammad Iqbal alias Billu with the investigation of this case who pleaded his innocence. The S.H.O. During the investigation found him innocent in this case. He arrested the accused Muhammad Sadiq on 27-11-2005. On 30-11-2005 said Muhammad Sadiq in police custody led to the recovery of pistol .30 bore P.S. From an iron box lying in one of the rooms of his house which was sealed into parcel and taken into possession vide recovery memo. Exh.PJ. He also prepared the site-plan Exh.PJ/1 of the place of recovery of the pistol, recorded statements of the P.Ws. Under section 161, Cr.P.C. And the same day handed over the pistol P.5 to Moharrir for safe custody in the Malkhana and onward transmission to the Forensic Science Laboratory, Lahore. After completion of investigation he challaned the accused Muhammad Sadiq as guilty in this case.
8. On submission of the challan learned trial court charge-sheeted both the accused on 19-6-2006 under sections 302/34, P.P.C. Who pleaded not guilty and claimed to be tried.
9. Prosecution examined as many as 10 witnesses to discharge burden of proof. Dr. Mazhar Mushtaq (P.W.1), Khalil Ahmad complainant/eye-witness (P.W.7) and Muhammad Iqbal eye- witness (P.W.8) are material witnesses. Other P.Ws. Are formal in nature.
10. Dr. Mazhar Mushtaq (P.W.1) conducted the postmortem examination on the dead body of Ghulam Hussain on 4-11-2005 at 3-30 p.m. On external appearance he found postmortem staining on the dependent parts of the body. Rigor mortis was not developed. No ligature mark was present around the neck. He noted the following injuries on the dead-body of Ghulam Hussain:--
(1) There was an oval shaped lacerated wound with inverted margin, blind deep 0.6cm in diameter present on the left front of chest. It was a wound of entry of a firearm.
(2) There was an oval shaped lacerated wound present on the right front of chest. The margins of the wound were inverted 0.6 cm in diameter and blind deep. It was the wound of entry of a firearm.
(3) There was an oval shaped lacerated wound with inverted margins, blind deep, 0.6 cm in diameter present on the front of upper abdomen. It was a wound of entry of a fire-arm.
(4) There was an oval shaped lacerated wound with inverted margins, blind deep, 0.6 cm in diameter present on the left front of lower chest. It was a wound of entry of a firearm.
(5) There was an oval shaped lacerated wound with inverted margins, 0.6 cm in diameter, blind deep present in the epigastrium. It was a wound of entry of firearm.
(6) There was an oval shaped lacerated wound with inverted margins, 0.6 cm in diameter; blind deep present on the front of left thigh. It was a wound of entry of a firearm.
(7) There was a lacerated wound with everted margins, 01 cm in diameter present on the right side of upper back of abdomen. It was a wound of exit of a firearm of injury No,5'.
(8) There were two oval shaped lacerated wounds with everted margins present on the back of left chest. There were the wounds of exit of Injuries Nos.1 and 4.
(9) There was an oval shaped lacerated wound with everted margins present on the back of left thigh. It was a wound of exit of Injury No,6.
11. After thorough external and internal postmortem examination of the dead-body the doctor recorded his opinion that Injuries Nos.2 and 5 ruptured the right lung and liver; Injuries Nos.1 and 4 ruptured the left lung; that due to excessive bleeding examinee went into shock and death; that Injuries Nos.2 and 5 played a major role in the cause of death; that all the injuries were antemortem in nature caused by firearm which were sufficient to cause death in the ordinary course of nature.
Probable time between injuries and death was within half an hour and the time between death and postmortem was within six hours. He handed over the dead-body to the police and verified the postmortem report Exh.PA and pictorial diagram Exh.PA4 in his own hand and signed by him. He also countersigned injury statement Exh.PB and inquest report Exh.PB/1.
12. After concluding the prosecution evidence learned trial court examined the accused under section 342, Cr.P.C. The accused denied and dismissed each peace of prosecution evidence while pleading their innocence. In reply to the question 'Why this case against you and why the P. Ws.
Have deposed against you, the appellant replied as under:-- "Prior to the occurrence I was working as labourer in Karachi.
' I came to know that the deceased Ghulam Hussain had been murdered. I came to my village to condole with the complainant party but the police arrested me and involved me falsely in this case. The real fact is that the deceased was a man of bad character, who often visited the house of one Ghulam Sakina, a woman of ill repute. I came to know that the deceased was coming out of the house of said Ghulam Sakina, situated near the place of occurrence when some unknown persons attacked upon him who died. I am innocent. The complainant has involved me falsely in this case after managing motive of illicit relations of my wife with the deceased. I am father of four sons. The complainant is the real brother of the deceased while the P.Ws. Closely related to the deceased and the complainant. There is a dispute of land between me and the complainant party so due to that revenge I have been involved in this case falsely."
13. Muhammad Iqbal alias Billu (acquitted accused) in reply to the same question 'Why this case against you and why the P. Ws. Have deposed against you' stated as under:-- "On the day of the occurrence at 11-00 a.m. I along with other residents of Mauza Wahi Shah Muhammad went to the house of one Muhammad Akram son of Ghulam Haider, Caste Bhatti resident of Basti Gunj Mochia for offering Janaza prayer of his daughter and remained there till 3- 00 p.m. In that gathering I heard that Ghulam Hussain has been murdered. I came back to my house. On the next day of the occurrence I was arrested by the police in this case. I Joined the investigation and claimed my innocence. 15 respectables of my Mauza, including Malik Ghulam Rasool General Councillor also joined the investigation and they submitted their affidavits before the I.O. About my innocence. During the investigation the local police declared me innocent. On the application of the complainant the case was also investigated by Mr. Asim Khan, ASP, Bahawalpur but who also declared me innocent. I have been falsely involved in this case being brother-in-law of Muhammad Sadiq accused. P.Ws. Are closely related with the complainant and deceased."
14. Learned counsel for the appellant has argued that he is falsely implicated with malice; that it was an unseen occurrence; that the complainant is real brother of the deceased whereas P.W.
Muhammad Iqbal is closely related to the deceased; that the complainant has involved him falsely in this case after managing motive of illicit relation of his wife with the deceased; that he had a dispute of land with the complainant party who implicated him falsely out of the said grudge; that the recovery of empties was not recorded in the inquest report; that the independent witnesses Muhammad Maroof and Rasheed Ahmad have not been produced before the Court and given up by the prosecution for the reasons best known to them leading to an inference against the prosecution version; that motive for the occurrence is shrouded in mystery therefore in the attending circumstances conviction and sentence awarded to the appellant is not warranted in the eye of law.
15. On the other hand, the learned Deputy Prosecutor-General assisted by learned counsel for the complainant has argued that the prosecution has proved its case to the hilt with the help of testimony of Khalil Ahmad complainant and eyewitness (P.W.7), the other eyewitness Muhammad Iqbal (P.W.8) and Muhammad Afzal S.-I./I.O. (P.W.10); that the statement of P.W.8 Muhammad Iqbal eye-witness is in line with the prosecution version as set forth by the complainant on the material dimensions of this case, i.e, time and place of occurrence, nomination of the accused, specific attribution of firearm injuries to Muhammad Sadiq appellant on the chest and abdomen of the deceased duly verified in the medical evidence and also corroborated by the recovery of crime empties from the place of occurrence duly matched with the offence weapon pistol P.5 vide report of the Forensic Science Laboratory; that the appellant is guilty of pre-planned, cold-blooded murder of Ghulam Hussain by causing multiple fire-arm injuries in his chest and abdomen, the vital parts of the body; that the co-accused (since acquitted) Muhammad Iqbal alias Billu actively participated in the commission of murder of Ghulam Hussain in furtherance of common intention with Muhammad Sadiq appellant while associating the appellant at the time and place of occurrence and also by raising a commanding Lalkara to the appellant Muhammad Sadiq to fire upon Ghulam Hussain and thus he too is vicariously liable to the murder of Ghulam Hussain; that in view of the fully proved case of the prosecution the learned trial court has wrongly acquitted the accused Muhammad Iqbal alias Billu and has rightly convicted and sentenced the appellant Muhammad Sadiq with regard to murder of Ghulam Hussain; that in the attending circumstances the appellant does not deserve any leniency Li the quantum of punishment and appeal is liable to be dismissed.
16. We have given patient hearing to the learned counsel for the parties and perused the record.
17. This is a day-light occurrence. Parties are well known to each other. Appellant is nominated in the promptly lodged F.I.R. With specific attribution of the fatal firearm injuries to the deceased Ghulam Hussain duly verified in his postmortem report furnishing full corroboration to A the ocular account. Khalil Ahmad P.W.7 the complainant/eye-witness and real brother of the deceased is a natural witness and has furnished reasonable and probable cause of his presence at the time and place of occurrence. The other alleged eye-witness Muhammad Iqbal P.W.8 is nephew of the deceased and the complainant and also relative of Muhammad Sadiq appellant. Although he is resident of village Kaura Ronjha situated at some distance from the place of occurrence, however, he has furnished a reasonable and probable cause of his presence at the time and place of occurrence stating that the occurrence took place on the day of Eid-ul-Fitr which also happened to be Jumat-ul Mubarik; that Juma prayer is not offered in the mosque of his village Mouza Kaura Ronjha which consists of about 200 houses; that he offered Eid prayer in the Eidgah of Mauza Noorpur Naranga and after offering Eid prayer he went to the home of his relatives in village Ghulam Muhammad Channar and after seeing the relatives he reached the house of Ghulam Husain deceased, his maternal uncle, on foot and from there they all were proceeding to Jamia Mosque Naranga to offer Jumma prayer when the occurrence took place. Details of the occurrence as alleged by the complainant are fully corroborated by Muhammad Iqbal P.W.B. His testimony in this regard is in line with the prosecution version. Therefore ocular account produced by the prosecution bearing inherit worth and intrinsic value can be safely relied upon. Despite lengthy searching cross-examination upon both the P.Ws. Nothing material elicited in favour of the defence. Vide report of the Forensic Science Laboratory Exh.PM crime empties recovered from the spot have been matched with the offence weapon pistol P.5 recovered from the appellant Muhammad Sadiq. Ocular account fully corroborated by medical evidence and the recoveries is sufficient reliable incriminating material to connect the appellant Muhammad Sadiq with the murder of Ghulam Hussain beyond any shadow of doubt. Therefore prosecution has sufficiently brought the guilt home to the appellant Muhammad Sadiq with regard to murder of Ghulam Hussain.
18. There is no cavil to the proposition that the motive is always in the mind of the accused. Be that as it may, prosecution itself has alleged in the F.I.R. That the accused Muhammad Sadiq had disclosed his motive at the very out-set of the occurrence while stating to the deceased that he had developed illicit relations with the accused's wife and he will be taught a lesson in this regard.
The motive of the occurrence, therefore, has been reflected in the F.I.R. Through the mouth of the appellant Muhammad Sadiq. It is thus obvious that the accused killed Ghulam Hussain on account of Ghairat and family honour i.e, having suspicion or belief that the deceased Ghulam Hussain had developed illicit relations with his wife. Although the accused did not maintain during his statement under section 342, Cr.P.C., however, fact remains that in his first version before the police after arrest on 27-11-2005 he categorically contended that Ghulam Hussain deceased had developed illicit relations with his wife Mst. Mukhtar Mai; that initially he kept silent but later on when their affairs had gone beyond limits he requested Ghulam Farid father of Ghulam Hussain and Muhammad Maroof (given up P.W.) to make Ghulam Hussain understand not to destroy his family life whereupon Ghulam Farid and Muhammad Maroof responded him to take any decision he likes; that he also tried to give a piece of advice to Mukhtar Mai but she did not respond positively and continuously maintained her illicit relations with Ghulam Hussain; that about five months back she suddenly disappeared from his house while taking minor daughter Rabia aged about nine years and her whereabouts could not be traced whereupon he got emotional and decided to kill Ghulam Hussain and Mukhtar Mai and remained in their search; that on the day of the occurrence he waylaid the deceased Ghulam Hussain and killed him by firing with his pistol. Besides above, infliction of multiple firearm injuries on the chest and abdomen of the deceased Ghulam Hussain reflects that the appellant Muhammad Sadiq had nurtured grave provocation in his mind on the basis of suspicion of illicit relations of his wife with the deceased. It therefore furnishes considerable mitigating circumstance to reconsider the quantum of punishment of death awarded to Muhammad Sadiq appellant. In the attending circumstances awarding of sentence of death to Muhammad Sadiq appellant would be harsh and instead imprisonment for life would be sufficient to meet the ends of justice.
19. In view of the above discussion and reasons the conviction of the appellant Muhammad Sadiq under section 302(b), P.P.C. Is maintained and the sentence of death is modified into the sentence of imprisonment for life. However, compensation of Rs,50,000 to be paid to the legal heirs or in default of payment six months' S.I. Is maintained. The appellant is also given benefit of section 382- B, Cr.P.C. With the above modification in the sentence this appeal is dismissed. Death sentence is NOT confirmed and the Murder Reference is answered in the negative.
20. Arraignment of Muhammad Iqbal alias Billu co-accused however is shrouded in doubt.
Although he is attributed a Lalkara to the appellant Muhammad Sadiq to fire upon the deceased, however, it is not established on the record that the appellant Muhammad Sadiq acted under the effective control and command of Muhammad Iqbal alias Billu. Prosecution has not attributed any motive against Muhammad Iqbal alias Billu to kill Ghulam Hussain. Therefore, it is our bounden duty to appraise the ocular account produced by the prosecution under the principle of separating the grain from the chaff. It is evident on the record that co-accused Muhammad Iqbal alias Billu has been found innocent in the police investigation and thus was challaned in Column No,2 of the report under section 173, Cr.P.C. The complainant side had never questioned the findings of the police investigation before any higher authority. No overt act or injury to the deceased is attributed to Muhammad Iqbal alias Billu accused. Therefore his implication in this case appears to be result of throwing a wider net to involve him in this case. It is pertinent to mention that principle of falsus in uno falsus in omni bus is alien to the Criminal Jurisprudence being followed in Pakistan.
Therefore testimonies of the complainant/eye-witnesses Khalil Ahmad P.W.7 and Muhammad Iqbal P.W.8 with regard to implication of Muhammad Iqbal alias Billu accused are exceptionable under the principle of separation of grain from the chaff. The learned trial Court has rightly appraised the ocular account of the prosecution while granting acquittal to the accused Muhammad Iqbal alias Billu given benefit of doubt. Findings of the learned trial court in this regard do not call for any interference.
21. As a sequel to the above, Criminal Appeal No,225 of 2008 lodged by complainant Khalil Ahmad under section 417(2-A) of the Cr.P.C. Against the acquittal of Muhammad Iqbal alias Billu is devoid of any merit and dismissed.