' SYED IFTIKHAR HUSSAIN SHAH, J.---Appellant Mukhtar Ahmad through Criminal Appeal No,424-J of 2006, has assailed the judgment dated 21-7-2006 passed by the learned Additional Sessions Judge, Faisalabad in case F.I.R. No,280 dated 2-7-2005 under sections 302, 324/34 and 109, P.P.C.
Whereby he has been convicted under section 302(b), P.P.C. And sentenced to life imprisonment with compensation of Rs,1,00,000 under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased and in default thereof, to further undergo six months' S.I.
2. It is pertinent to mention here that the complainant filed Criminal Revision No,864 of 2006 for enhancement of sentence of appellant Mukhtar Ahmad, which, was admitted for regular hearing and notice was issued to Mukhtar Ahmad on 24-9-2007 that why his sentence be not enhanced from imprisonment for life to death. The complainant has also filed Criminal Appeal No,1406 of 2006 against acquittal of respondents Naubahar and Allah Yar, which was admitted for regular hearing only to the extent of respondent No,1 Naubahar vide order dated 1-12-2011. Therefore, all three matters referred above have been fixed before the Division Bench and the same are being disposed of through this single judgment.
3. Briefly stated the facts of the case, as mentioned in the statement of the complainant Abdul Majeed (Exh.PF/1) on the basis of which F.I.R. (Exh.PF) was recorded, are that during the intervening night of 1/2-7-2005 the son of the complainant Khalid Majeed was passing through the Bazar to call him from the cattle shed, at about 11-00 p.m., when he reached in front of the house of Mukhtar Ahmad Kumhar, Mukhtar Ahmad armed with hatchet and Naubahar caught hold of Khalid Majeed, Naubahar put the "Safa" around the neck of Khalid Majeed and after twisting the same they both dragged him towards their house. Khalid Majeed raised hue and cry which attracted the complainant, Abdul Sattar and Ghulam Murtaza. Within their sight, Mukhtar Ahmad inflicted consecutive hatchet blows, which landed on the forehead and chin of Khalid Majeed. Mst. Nusrat d/o Allah Yar tried to intervene but she received blows on her left ear and left cheek. The electric bulbs were on in the house of Mukhtar Ahmad and the nearby houses, in the light of which, the complainant, Abdul Sattar and Ghulam Murtaza witnessed the occurrence. They tried to save Khalid Majeed and to catch hold of the accused persons but they succeeded in making good their escape. They attended Khalid Majeed who had succumbed to the injuries. The motive behind the occurrence as per prosecution is that the complainant had purchased an Ahata near the house of Mukhtar Ahmad, which they wanted to purchase and one day prior to this occurrence Mukhtar Ahmad had a quarrel with Khalid Majeed and Mukhtar Ahmad had extended him threats for dire consequences.
4. After completion of the investigation, Challan was submitted in the court and the appellant along with his co-accused Naubahar and Allah Yar were formally charge-sheeted to which they pleaded not guilty and claimed trial.
5. To substantiate the charge against the accused, prosecution produced as many as twelve witnesses. Dr. Tahir Javed (P.W.1) provided the medical evidence, Abdul Majeed complainant (P.W.6) and Abdul Sattar (P.W.7) provided the evidence of ocular account whereas Umar Hayat S.I.
(P.W.10) and Asghar Ali S.I. (P.W.12) conducted investigations in this case. Mst. Nusrat Bibi was summoned and examined as CW-1 on the application of accused persons.
6. Dr. Tahir Javed P.W.1 conducted autopsy of the dead body of deceased Khalid Majeed on 2-7- 2005 at 8-30 a.m. And observed following injuries on his person:--
(1) A lacerated wound 2 x a cm, bone deep, left side forehead near hair line.
(2) A contused swelling around the whole neck extending from chin to the sternal notch. Multiple abrasions were present on front and back of neck. Marks of ligature were present on both sides of neck obliquely behind the ears and trachea was full of blood.
(3) Two lacerated wounds each of size 3 x 1 cm, bone deep, below the chin.
(4) A contusion mark 5 cm x 4 cm front left shoulder.
(5) A swelling 10 x 4 cm on left cheek, fracture of medible was present.
' An abrasion 3 x 2 cm back left shoulder, ' According to the opinion of the Medical Officer, cause of death in this case was asphyxia due to strangulation, assisted by all the injuries Nos.1 to 6 inflicted by blunt weapon, which were ante- mortem and sufficient to cause death in the ordinary course of nature. The probable time between the injuries and death was immediate and between death and postmortem was 8/9 hours.
7. The appellant and his co-accused were examined under section 342, Cr.P.C. But they denied the allegations and professed their innocence. While answering the question "Why this case against you and why the P.Ws. Deposed against you?" the appellant Mukhtar Ahmad stated as under:-- "On the fateful night Khalid Majeed deceased while armed with an iron shord stick, after scaling over the wall entered in my house, whereas Mst. Nusrat Bibi my real sister was sleeping on a cot in the courtyard of the house at a distance -of about 20/25 ft. From me. Khalid Majeed deceased awoke up her by holding her hand and took her forcibly into the room. He intended to commit Zina Bil Jabr with her. On her resistance, Khalid Majid gave iron shord stick blows to Mst. Nusrat Bibi, owing to which Mst. Nusrat Bibi caught hold of Safa, which was wrapped around the neck of the deceased and twisted it. She also raised hue and cry, on this I woke up and rushed into the room.
As a result of sudden provocation, I snatched iron shord stick from the deceased and gave stick blows hitting the deceased, just to save the honour and life of my sister and not to kill him. It was not the first attempt of the deceased, but he had previously outraged the modesty of my sister twice. We complained about this fact to the parents of the deceased through Punchiats, but of no use. All the P. Ws. Have deposed against me and my co-accused as being related inter se to the complainant. "
' The other co-accused of the appellant also gave the similar replies in response to the same question. The accused persons neither opted to make statement under section 340(2), Cr.P.C. Nor produced any evidence in their defence. The learned trial court vide impugned-judgment dated 21-7-2006, while acquitting co-accused namely Naubahar and Allah Yar, sentenced the appellant as mentioned above.
8. Learned counsel for the appellant Mukhtar Ahmad contends that the occurrence took place in the house of the appellant and lie while making statement under section 342, Cr.P.C. Has categorically stated the real facts which are supported by the statement of Mst. Nusrat Bibi (CW-1).
Further contends that the appellant, in order to save the modesty of his sister, only caused minor injuries to the deceased and according to the postmortem report, the main cause of death of the deceased was asphyxia due to strangulation and the same is fully corroborated by the statement of CW-1 wherein she has stated that she while resisting the lust of the deceased caused him strangulation with his own Safa; that case of the appellant is One of self-defence and sudden provocation, however, he did not exceed any limit provided by the law to him and did not cause the deceased any fatal injury; that during cross-examination the. Investigating Officer P.W.12 has categorically stated that the deceased had committed lurking house trespass into the house of the appellant at midnight; that the medical evidence qua the injuries of Mst. Nusrat Bibi also fully supports the version given by the appellant in his defence; that no P.W. Was present at the time of occurrence and they remained fail to submit any plausible explanation for their presence at the place of occurrence at the relevant time; that if for the sake of arguments it is believed that the appellant was armed with a hatchet, he did not cause any injury to the P.Ws. And the P.Ws. Also did not try to apprehend the accused and that's why the complainant did not give the time of occurrence in the F.I.R. Learned counsel while referring Column No,7 of inquest report (Exh.PC) contends that the police had found a "Safa" at the time of examination of the dead body; that the Medical Officer P.W.1 at the time of external examination of the dead body of the deceased had also found Patka around the neck of the deceased stained with blood and in this backdrop recovery of another Safa at the instance of Naubahar accused/respondent is insignificant and a fabrication on the part of the police; that the hatchet has falsely been planted upon the appellant Mukhtar Ahmad; that motive in this case has not been believed by the learned trial court and even otherwise motive has falsely been set up to strengthen the case of the prosecution. Further adds that the learned trial court in the impugned judgment has relied upon the statement of appellant Mukhtar Ahmad under section 342, Cr.P.C. To some extent and has ignored the other part of the statement, however, it is well-settled principle of criminal jurisprudence that the statement under section 342, Cr.P.C. Is to be believed or disbelieved in toto. Lastly contends that if the Court is not convinced with the arguments of acquittal of the appellant, his case does not fall within the purview of section 302(b), P.P.C. And squarely falls within the ambit of section 302(c), P.P.C., as the occurrence took place under sudden provocation at the spur of moment in the house of the appellant at odd hours of the night.
9. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant contends that the matter was promptly reported to the police and the postmortem examination was also conducted within few hours which rules out the possibility of deliberation and concoction; that both the witnesses being residents of the same locality are the most natural witnesses; that mere relationship of the witnesses inter se and with the deceased is not sufficient to discard their evidence; that it was a preplanned murder and the appellant Mukhtar Ahmad in connivance with his sister C'W-1 by twisting the facts have tried to make it a case of sudden provocation but they have miserably failed to prove the same; that according to Article 121 of Qanun-e-Shahadat. Order, 1984 the appellant was bound to prove the plea taken by him but he did not even opt to appear as his own witness under section 340(2), Cr.P.C. Further contends that the prosecution has proved its case against the accused beyond any shadow of doubt; that there is no previous enmity between the parties which could be the reason for false implication of the accused in this case; that the conduct of the witnesses was very natural as according to F.I.R. They tried to catch hold of the accused but they succeeded in making good their escape. Further points out that the weakness or even absence of motive is no ground for awarding a lesser punishment to the accused; that Mst. Nusrat Bibi being the real sister of appellant Mukhtar Ahmad has supported his version, therefore, her statement is not reliable. While arguing the appeal against acquittal of Naubahar, learned counsel contends that Naubahar was attributed the role of putting the Safa around the neck of the deceased and then dragging him towards their house; that the main cause of death of the deceased has categorically been stated as asphyxia and the strangulation was caused by Naubahar as per prosecution evidence and the same finds full support from the medical evidence; that recovery, of Safa has been effected from Naubahar. Further adds that the appellant and his co-accused dragged the deceased from the Bazar to their house and there did not exist any circumstance that could provoke the appellant to kill the deceased, therefore, the offence falls within the purview of section 302(b), P.P.C. While arguing Criminal Revision No,864 of 2006 learned counsel contends that appellant Mukhtar Ahmad had caused injuries on the person of the deceased with the blunt side of hatchet and the prosecution has successfully proved its case against him, therefore, capital sentence should be awarded to him.
10. We have heard the learned counsel for both the sides at length, have given anxious consideration to their arguments and have also scanned the record with their able assistance.
11. Admittedly, it is a case of two versions, one put forth by the prosecution in the F.I.R. And brought on the record through the statements of the eye-witnesses namely Abdul Majeed (P.W.6) and Abdul Sattar (P.W.7) and the second taken by the appellant during the investigation and in his statement recorded under section 342, Cr.P.C. However, it is the primary duty of the prosecution to prove its case against the accused, therefore, we would firstly analyze the prosecution version in order to ascertain its truthfulness or otherwise. In this context, we are guided by the esteemed judgment of august Supreme Court of Pakistan passed in the case reported as Ashiq Hussain v.
State (PLD 1994 SC 879) and the case of Amin Ali v. The State (2011 SCM R 323).
12. The occurrence in this case took place during the midnight of 1/2-7-2005 and the F.I.R. (Exh:PF) was recorded on 2-7-2005 at 12:05 a.m The postmortem of the deceased was conducted on the same day at 8-30 a.m. And the injured Mst. Nusrat Bibi was also medically examined at 2-30 a.m.
The ocular account in this case has been furnished by complainant Abdul Majeed P.W.6 and Abdul Sattar P.W.7. The complainant P.W.6 during the trial has mentioned the time of occurrence as 11-00 p.m. However, the other alleged eye-witness i,e, P.W.7 did not point out the exact time of the occurrence. P.W.6 during cross- examination stated that the deceased remained outside the house after having been wrapped Safa around his neck and having been dragged for 2/3 minutes but he and the P. Ws. Did not try to touch the accused persons, however, as per P.W.7 Abdul Sattar, he was armed with Kassi, at the time of occurrence. The conduct of the witnesses especially the complainant who was the father of the deceased does not seem to be natural, as. The Safa was put around the neck of the deceased, he was dragged and then done to death in their presence but they did not make any effort to save the deceased or to apprehend the appellant. Moreover, P.W.6 stated during cross-examination that the accused persons had ambushed outside the gate of their house and he had passed near them while going to his cattle shed but he admitted that the accused persons had not said anything to him. P.W.6 further stated during his cross- examination that he saw the accused persons while sitting in front of their house just 15/20 minutes prior to the occurrence so it does not appeal to logic that how could the accused persons know that the deceased would pass through the street of their house to call his father at such a time.
Even otherwise P.W.6 remained in his house till midnight and it is illogical that his relatives asked the date of Chehlam after his departure. P.W.7 Abdul Sattar admitted during his cross-examination that they could not count the number of hatchet blows made by Mukhtar accused upon the person of Khalid Majeed deceased despite of the fact that they had entered into the room where the deceased was allegedly taken by the accused. He was also armed with Kassi but he did not use the same to save the deceased. Furthermore, the most natural and the star witness of this case was Mst. Nusrat Bibi, sister of appellant Mukhtar Ahmad who was examined as CW-1, however, she did not support the prosecution version. In view of the which he was having around his neck and above circumstances, the presence of both the witnesses at the spot is not free from doubt.
13. Although recovery of blood-stained hatchet has been effected at the instance of the appellant and there are positive reports of the Chemical Examiner and of the Serologist yet admittedly the sharp side of the hatchet was not used during the occurrence and the appellant has also admitted that he had caused injuries with an iron rod which is also a blunt weapon so the determination of kind of weapon is inconsequential. Even otherwise the recovery is not a substantive piece of evidence. The motive, as stated by the prosecution, has been disbelieved by the learned trial court, as no cogent and plausible evidence has been brought on record by the prosecution to prove the same.
14. In view of the above, when the prosecution case is full of infirmities as mentioned above and cannot survive on its own strength and we have disbelieved/excluded from consideration the prosecution evidence, then in view of the law laid down in the case of Amin Ali v. The State (2011 SCM R 323), statement of the accused/appellant is accepted as a whole without scrutiny, however, it is to be ascertained as to whether statement of the accused/appellant under section 342, Cr.P.C.
When believed as a whole, constitutes some offence punishable under the Code/law. It is the case of the appellant that the deceased had entered his house by scaling over the wall and took his sister Mst. Nusrat Bibi forcibly towards the room and intended to commit Zina-bil-Jabr with her who showed resistance and raised hue and cry, strangulated him with the Safa the appellant when attracted had caused injuries on his person with the iron rod. The Investigating Officer P.W,12 during cross-examination admitted the defence version in a following manner:- "It is correct that I concluded that both the parties are neighbourers and that Khalid Majeed deceased had illicit relations with Nusrat Bibi, and the deceased had been visiting Nusrat Bibi in her house and that this fact came into the knowledge of accused persons and that they repeatedly complained about the conduct of Khalid Majeed deceased and the deceased's father did not take notice of the said complaint. It is correct that in my investigation it was found that the deceased entered the house of the accused persons by scaling over the wall. According to my investigation the facts which were found and the same have been stated above irrespective of the story narrated in the F.I.R."
The star witness of the occurrence namely Mst. Nusrat Bibi who was examined as CW-1 fully supported the defence version. She has made the same statement as is stated by the appellant in his statement under section 342, Cr.P.C. And concluded by the Investigating Officer after his investigation.
15. Keeping in view the above discussion, we are convinced that the appellant had committed the occurrence under sudden provocation at the spur of moment without premeditation and pre- concert because he had seen the deceased forcing his sister to concede for his lust. There is no denying to this fact that the appellant had inflicted blows with a blunt weapon on the person of the deceased, however, the main cause of death has been declared to be asphyxia due to strangulation which has not been attributed to the appellant. Therefore, we are quite in agreement with the argument of learned counsel for the appellant that case of the appellant falls within the purview of section 302(c), P.P.C. And not under section 302(b), P.P.C. Reliance in this regard is respectfully placed upon the case of Hassan Muhammad v. The State (1994 SCM R 1212) and the case of Anwar and others v. The State (1985 SCM R 1123) wherein the Hon'ble Supreme Court of Pakistan has held that the occurrence committed without premeditation falls within section 300 Exception 4, P.P.C. And it has been held by the Hon'ble Supreme Court of Pakistan in the case of All G Muhammad v. Ali Muhammad and another (PLD 1996 SC 274) that the cases covered by section 304, P.P.C. Under the old law will be dealt with under section 302(c), P.P.C.
16. For what has been discussed above, the conviction of the appellant Mukhtar Ahmad under section 302(b), P.P.C. For the murder of Khalid Majeed is converted to that under section 302(c), P.P.C. And he is sentenced to 10 years R.I. With the benefit of section 382-B, Cr.P.C, however, the compensation of Rs,1,00,000 awarded by the learned trial court under section 544-A, Cr.P.C. And the sentence in default thereof are maintained. Accordingly with the above modifications in the conviction and sentence, Criminal Appeal No,424-J of 2006 is disposed of, consequently, Criminal Revision No,864 of 2006 for enhancement of sentence of the appellant is dismissed and notice issued to him for enhancement of his sentence is withdrawn.
17. As far as Criminal Appeal No,1406 of 2006 filed by the complainant is concerned, as the defence version has been considered to be more plausible according to which the deceased had entered the house by scaling over the wall and he was done to death by the appellant Mukhtar Ahmad, as he was making attempt to commit zina with his sister and none else was present there, therefore, we are not inclined to interfere in the acquittal order of respondent Naubahar that in our view is based upon proper appreciation of evidence on record. Even otherwise the acquitted accused enjoys double presumption of benefit of doubt, one during the trial and the second after his acquittal and very strong and exceptional grounds are required to upset the acquittal recorded by the court of competent jurisdiction. Therefore, Criminal Appeal No,1406 of 2006 filed by the complainant being without force is hereby dismissed.