Altaf Ibrahim Qureshi, J.--Riaz Ahmad appellant along with Abdul Rehman and Muhammad Anwar was tried by the learned Additional Sessions Judge, Sadiqabad, in case FIR No, 87, dated 16.05.2005, registered under Section 302/34, P.P.C. at Police Station Saddar, Sadiqabad, District Rahim Yar Khan. He was found guilty of committing Qatl-i-Amad of Aamer Farooq deceased, convicted accordingly and sentenced, to death u/S. 302(b) P.P.C. by the learned Judge subject to confirmation by this Court, vide his judgment dated 16.04.2009. He was directed to pay Rs, 1,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default to suffer S.I. for six months. However, the remaining two co-accused of the appellant namely Abdul Rehman and Muhammad Anwar were acquitted on the benefit of doubt.
2. At the very outset, we have noted that in this case two appeals have been filed by the appellant; one through learned counsel bearing Criminal Appeal No, 109/2009 and the other through Jail Bearing No, 112-J/2009. In presence of the appeal filed by the present learned counsel on behalf of the appellant, the Jail appeal has become infructuous and the same is consigned to record.
3. Murder Reference No, 19 of 2009 was received from the learned trial Court u/S. 374, Cr.P.C. seeking confirmation of sentence of death. The appellant has challenged his conviction and sentence through Criminal Appeal No, 109/2009 whereas the complainant of this case namely Muhammad Farooq challenged the acquittal of Abdul Rehman and Muhammad Anwar through Criminal Appeal No, 152/2009. This judgment shall dispose of both the appeals and reference.
4. Muhammad Farooq complainant stated in the FIR, (Exh.PE/1) that he and his brother Aamer Farooq lived in the house of their maternal uncle Rasheed Ahmad in Chak No, 147/P and they run a grocery shop located near the said house. During the night 15/16.05.2005, his brother slept outside the shop after closing the shop. At about 3/4 a.m. (midnight), on hue and cry, the complainant along with his maternal uncle Rasheed Ahmad ran towards the shop and saw that Muhammad Anwar, Riaz Ahmad (present appellant) and an unknown person were attempting to overpower complainant's brother and in their view Muhammad Riaz inflicted chhuri blow on the neck of Ahmer Farooq from front side. When they raised lalkara, the accused While brandishing chhuri fled away.
Aamer Farooq succumbed to the injury. Suspicion of illicit intimacy between the deceased Aamer Farooq and sister of the appellant was alleged to be the motive of this offence.
5. The learned Trial Court formally charged the appellant along with his co-accused Abdul Rehman and Muhammad Anwar, under Section 302/34, P.P.C. They denied the charge and claimed trial. The prosecution examined Dr. Muhammad Muslim PW-1, Saddique Ahmad PW-2, Muhammad Farooq PW-3, Rasheed Ahmad PW-4, Muhammad Aslam PW-5, Jamal Abdul Nasir SI PW-6, Khalil Ahmad Kamboh PW7, Muhammad Ali PW-8, Ayaz Mehmood SHO PW-9, Raees Muhammad Arshad PW-10, Noor Ahmad PW-11, Abdul Ghaffar PW-12, Muhammad Aslam PW-13. and Ilyas Ali ASI PW-14 to prove the charge.
6. Dr. Muhammad Muslim PW-1 conducted post-mortem examination on the dead body of Aamer Farooq on 1605.2005 at 12.00 noon and found the following injury: "Incised wound 4.4 cm x 2.5 cm x extending deep into the tissues present in transverse direction on the front of the neck, the medial and touching the mid-line skin, muscles, neck vessels on left side are cut. Trachea had also been cut, pharynx were also injured."
In opinion of the Medical Officer, the aforesaid injury was ante-mortem and inflicted with sharp weapon. The death had occurred due to the said injury, which was sufficient to cause death in the ordinary course of nature. Probable time elapsed between injury and death was within thirty minutes and between death and post-mortem 6 to 12 hours. Exh.PA is the post-mortem report and Ehx.PA/1 & Exh.PA/2 the diagram of the injury.
7. Jamal Abdul Nasir, SI, PW-6 recorded the formal FIR Exh.PE/1 on the basis of application Exh.PE for registration of FIR. Muhammad Farooq complainant PW-3, an eye-witness of the occurrence gave eye account of the occurrence as mentioned in the FIR and also supported the motive. Rasheed Ahmad PW/-4, another eye witness, corroborated him.
8. Siddique Ahmad PW-2 deposed that during the police custody, the appellant-Riaz Ahmad led to recovery of blood stained Chhuri P-1 from his residential room lying under an iron box, which was taken into possession vide recovery memo. Exh.PB.
9. The initial investigation was conducted by Muhammad Ali Sub-Inspector PW-8 who inspected the place of occurrence, prepared the injury statement Exh.PA/3 and dispatched the dead body to mortuary for post-mortem examination through Muhammad Aslam 1093/C (PW5). He prepared site-plan of place of recovery of Chhuri Exh.PB/1. He also sent the blood stained Chhuri in the sealed parcel for its onward transmission to the office of the Chemical Examiner. He arrested the appellant Riaz Ahmad on 09.06.2005, who on 13.06.2005 got recovered Churri P-1. On 11.06.2005, he arrested Abdul Rehman alias Mana and sent him to the Judicial lock-up for his Identification Parade.
Ultimately, on 12.07.2005, he handed over the case file to Khadim Hussain, Inspector (given-up).
Noor Ahmad, Patwari, PW-11, prepared the scaled site-plan Exh. PJ and Exh.PJ/1. PW-7, Khalil Ahmad Kamboh, Special Judicial Magistrate, conducted the Identification Parade, who gave the details of Identification Parade. Exh.PK is the report of Chemical Examiner qua blood stained earth and Exh.PL is regarding blood stained Chhuri.
10.On conclusion of the prosecution evidence, statement of the appellant was recorded u/S. 342, Cr.P.C. To the question as to why this case against him and why the PWs made statement against him, the appellant replied: The deceased was a person of ill-repute and he had habit of having bad eye on different girls and women of respectable families of his native village Chandrami as well as village where allegedly he lastly lived. He had been done to death without having been seen by anybody and his murder is an unseen occurrence. I did not have any dispute with the deceased. However, myself & my father have some normal disputes with = influential persons of the Chak and they have got involved me in this case by misreporting the matter to the complainant as complainant himself and either of his P.Ws was not present at the place of occurrence rather he was present in Chandrami much away from the place of occurrence. The P.Ws are inter se related and they have followed the path of complainant blindly'.
The appellant, however, did not opt to appear as his own witnesses under Section 340(2), Cr.P.C.
11.At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their respective versions learned trial Court proceeded to convict and sentence the appellant and acquit the remaining two accused, as mentioned in the opening paragraph of this judgment.
12.Learned counsel for the appellant in support of this appeal contends that admittedly the occurrence took place on 16.05.2005 at 3/4 a.m. and the matter was reported to the police at 7:30 a.m. through a written complaint Exh.PE and the distance between the place of occurrence and the Police Station is around 06 kilometers. This being so, the matter was reported to the police with the delay of more than four hours, which suggests that both the prosecution witnesses of ocular account i,e, PW-3 & PW-4 namely Muhammad Farooq and Rasheed Ahmad, respectively, were not present at the place of occurrence. Further contends that even otherwise, the story of the prosecution is highly improbable, as it is the case of the complainant in the FIR that on hearing the cries of the deceased, he along with other witness namely Rasheed Ahmad (PW-4) reached at the place of occurrence where two persons were trying to catch hold of the deceased and within their view the third person i,e, the appellant Riaz Ahmad inflicted Chhuri blow at the neck of the deceased Aamer Farooq but the RW-1 Dr. Muhammad Muslim, who conducted the post-mortem examination did not find any injury on the person of the deceased which indicated that whether the deceased person was in standing position and had there been any resistance by the deceased, there must be some marks of the injuries on his body. Further contends that the complainant has tried to justify his presence at the place of occurrence by stating that he was running the grocery shop in the village but in cross-examination he stated that he is resident of Chak Chandrami, which is at a considerable distance of-about 4/5 kilometers from the place of occurrence and both the witnesses in their statements before the. Court while appearing as PW-3 & FW-4 have not been able to give any plausible explanation for their presence at the place of occurrence which occurred at 3/4 a.m. It is also contended that the motive, as alleged by the prosecution, was that the appellant suspected illicit relations or the deceased with his sister but in this respect no evidence has been produced. It is next contended that recovery of Chhuri P-1 is of no avail to the prosecution, as there is no report of Serologist. It is lastly contended that even the recovery witness Siddique Ahmed PW-2 is resident of Sadiqabad, which is at a distance of 4/5 kilometers from the place of occurrence.
13. On the other hand, learned counsel for the complainant assisted by the learned Deputy Prosecutor General contends that Rasheed Ahmad PW-4 is admittedly resident of the same village i,e, Chak 147/P, where the occurrence took place and the complainant has also satisfactorily explained his presence in the said village by stating that he was running a grocery shop along with deceased Aamer Farooq; that both the witnesses i,e, PW-3 & PW-4 have stated that they were coming after ploughing, their fields and in their presence the injury was caused by the appellant to the deceased at his neck; that there is no reason for false implication of the appellant in this case and even otherwise substitution in such like cases is a rare phenomenon; that both the witnesses of ocular account are consistent in their statements, which are supported by the medical evidence; that the motive has also been proved and the prosecution case is further strengthened by the evidence of recovery of Chhuri P-1 and the report of the Chemical Examiner.
14.As far as the criminal appeal Bearing No, 152/2009, filed against acquittal of respondents namely Abdul Rehman and Muhammad Anwar, co-accused of the appellant- Riaz Ahmad, is concerned, learned counsel contends that both the respondents actively participated in the occurrence and they are vicariously liable for the act of their co-accused Riaz Ahmad, therefore, they be also punished.
15.We have heard the arguments of both the sides and gone through the record with the able assistance of learned counsel for the parties.
16.The occurrence, wherein Aamer Farooq lost his life, took place on 16.05.2005 at 3/4 a.m., as per prosecution, in Chak No, 147/P, situated within the jurisdiction of Police Station Saddar Sadiqabad, District Rahim Yar Khan, at a distance of 06-kilometers from the place of occurrence. The matter was reported to the police through an A application Exh.PE at 7:30 a.m. on the same day. The first question to be determined by us is whether there is any conscious or deliberate delay in reporting the matter to the Police? We have noted that the occurrence took place in a village at 3/4 a.m. and the application Exh.PE for registration of the FIR was submitted at 7:30 a.m. Considering the place of occurrence, its distance from the Police Station and the social status of the complainant side, we are of the view that there was no deliberate or conscious delay in reporting the matter to the police.
17.The ocular account has been furnished by Muhammad Farooq (PW-3) and Rasheed Ahmad (PW-4). They both are residents of the village where the occurrence took place i,e, Chak No, 147/P, which has not been disputed by the appellant side. They have also stated that they were returning after ploughing their field when they heard the cries of the deceased. No enmity was suggested to these two witnesses for false implication of the appellant in this case. Even otherwise, substitution in such like cases is the rare phenomenon. In the circumstances, we are of the view that both these witnesses were present at the spot and they have witnessed the occurrence. It is the case of both these witnesses that within their view, the appellant had caused a Chhuri blow at the neck of the deceased. The Doctor (PW-1), who conducted the post-mortem on the dead body of the deceased noted an injury on the neck of the deceased, therefore, the ocular account is fully supported by the medical evidence.
18.As far as the recovery of Chhuri is concerned, we may observe here that there is no report of Serologist on the record, therefore, in such like circumstances; recovery of Chhuri P-1 is of no avail to the prosecution.
19. With regard to motive, it has simply been alleged by the prosecution that the appellant suspected illicit relations of the deceased with the sister of the appellant, but no detail of motive has been brought on the record and no witness in this respect has been examined by the prosecution, therefore, we are of the view that the prosecution has failed to prove the motive part of its case. However, even if the motive and recovery of blood stained Chhuri Exh.PB, are excluded from the prosecution case, there remains sufficient evidence in the form of confidence-inspiring ocular account furnished by Muhammad Farooq (PW-3) and Rasheed Ahmad (PW-4) supported fully by the medical evidence for maintaining the conviction of the appellant under Section 302(b), P.P.C., which is accordingly maintained. However because of the following reasons, we are of the considered view that this is not a case of capital punishment:-- (a)A specific motive was alleged by the prosecution but the same has not been proved; (b)Recovery of Chhuri P-1, for the reason mentioned in para 13, is of no avail to prosecution and; (c)The appellant has not repeated the Chhuri blow.
20. Therefore, while maintaining the conviction of the appellant under Section 302(b), P.P.C. his sentence is altered from death to imprisonment for life. The amount of compensation and imprisonment in default thereof as ordered by the learned Trial Court is maintained. However, the benefit under Section 382-B, Cr.P.C. is extended to the appellant. Murder Reference No, 19/2009 is answered in the negative, and the sentence of death awarded to Riaz Ahmad (convict) is not confirmed.
21. As far as Criminal Appeal No, 152/2009 filed against acquittal of Respondents No, 1 and 2 namely Abdul Rehman and Muhammad Anwar, respectively, is concerned, we have noted that no overt act had been attributed to both these respondents by the prosecution, either in the FIR or before the learned Trial Court. The allegation against them simply is that they tried to overpower the deceased-Aamer Farooq. They were not equipped with any weapon. The learned Trial Court was justified in recording acquittal in their favour while extending the benefit of doubt in their favour. We find no substance in this appeal. Resultantly, the same is dismissed.