' MAZHAR IQBAL SIDHU, J---This judgment will dispose of the above-captioned appeal filed by Tasawar Hussain appellant as well as above-captioned murder reference for confirmation of his death sentence or otherwise, who was convicted and sentenced by the learned Additional Sessions Judge, Gujranwala in a private complaint brought by Rana Gulzar Ahmad (complainant)
(P.W.5) under sections 302/ 148/149/109 of Pakistan Penal Code, vide impugned judgment dated 29-3-2006. Infra conviction and sentence was imposed on the appellant:- Under section 302(b) of Pakistan Penal CodeDeath as Taazeer along with compensation of Rs.1,00,000 under section 544- A, Cr.P.C. payable to the legal heirs of deceased Muhammad Iqbal and in default whereof simple imprisonment for six months.
2.Initially in this case, First Information Report No. 378 of 2004 (Exh. PE/1) dated 10-9-2004 was registered on the statement of Rana Gulzar Ahmad (P.W.5) under sections 302/147/148/109 of Pakistan Penal Code at Police Station Sadar Kamonke, District Gujranwla.
3. Feeling dissatisfied/ aggrieved with the investigation, the complainant had instituted the private complaint being pertinacious to his .F.I.R as some of the accused persons were exonerated and the proceedings were carried out in it.
4. The abridged facts as disclosed by complainant Rana Gulzar Ahmad (P.W.5.) in the private complaint (Exh.PE) are that he was resident of Mandiala Ponaich and cultivator by profession. His brother, Intizar Ahmad parked his motorcycle at the bank of contributory. In the meantime, Shahid son of Muhammad Ashiq had came there on a bullock cart and got fallen his motorcycle, ilue to which acrimony exchanged between them. On 8-9-2004 at about 5/6-00.p.m, Intizar Ahmad was going on his motorcycle towards his dera and when he reached near the Haveli of Muhammad Ashiq (since acquitted),, due to that grudge, Tasawar appellant armed with Sarya and Dilawar Hussain, Munawar Hussain, Sarwar Hussain Ghaffar Hussain, Khalil Khurshid Ahmad armed with - sotas (since been acquitted) in furtherance of their common object were encroached there. On seeing him, Dilawar Hussain raised a Lalkara that he be not spared and taught him a lesson for a quarrel which has taken place yesterday. Upon which Intizar Hussain while leaving behind his motorcycle ran away. From ahead Muhammad Iqbal, his uncle (deceased) and Muhammad Shabbir along with Muhammad Shafique were coming and all the accused attacked upon them.
Khurshid took Muhammad Iqbal into his clasp and Tasawar Hussain appellant gave a sarya blow on his head. Munawar Hussain gave sota blow which landed on the mouth of Muhammad Iqbal.
Due to the injuries, Muhammad Iqbal fell to the ground. The complainant and the P.Ws. Raised hue and cry, upon which the culprits disappeared. Muhammad Iqbal being injured was shifted to Civil Hospital, Kamonke where he was medically examined. But due to his precarious condition, he was referred to General Hospital, Lahore. On 10-9-2004, he succumbed.
5. Occurrence was committed at the. Abetment of Muhammad Ashiq (since acquitted) who was the father of respondents Nos.1 to 5 (in the complaint case), who on 8-9-2004, at morning time ordered the said respondents to avenge for previous occurrence at any cost. He further stated that after registration of the case respondents left the village and they had joined hand with the local police. They were influentials, therefore, they got declared respondents Nos. 2 to 8 as innocent.
When this fact came into the knowledge of the complainant that the police has declared all the respondents innocent except Tasawar Husssain, he filed the private complaint.
6. After recording preliminary/ cursory evidence of the complainant party and perusing the report under section .202, Cr.P.C. Submitted by the learned Illaqa. Magistrate, the appellant as well his co- accused (since acquitted) were summoned by the learned trial court to face trial.
7. Tahir Mehmood, S.-I. Appeared as (P.W.7.). He deposed that on 10-9-2004, Gulzar Ahmad complainant submitted an application Exh.PE before him, on the basis of which, he got registered F.I.R. Exh.PE/1. He went to General Hospital, Lahore from where, he collected dead body and death certificate of Muhammad Iqbal, prepared inquest report Exh.PJ, injury statement Exh.PK, drafted application Exh.PL for postmortem examination and escorted the dead body for postmortem examination through Muhammad Iqbal, constable. He reached at the place of occurrence, inspected it, recorded the statements of the P.Ws., arrested the accused, Riaz constable after postmortem examination produced before him last worn clothes of deceased, shirt P.1, Shalwar P.2, took the same into possession vide memo Exh PB and recoded the statements of the P.Ws. Under section 161, Cr.P.C.
8. Gulzar Ahamd, S.-I. (CW.1) also conducted the investigation. He deposed that on 7-11-2004, he arrested accused Tasawar Hussain and during the interrogation, on his disclosure and pointing out a Saria (iron rod) P.3 was recovered from Lady Park Kamonke, took the -same into possession vide recovery memo Exh.PG attested by the P.Ws., prepared site plan without scale of place of recovery Exh.PG/1 and sent the appellant to judicial lock up on 8-11-2004, recorded the statements of the P.
Ws. Under section 161, Cr.P.C. On 12-11-2004, he arrested accused Muhammad Sarwar, Dilawar Hussain, Munawar Hussain and Abdul Khalil and found them innocent except the appellant.
9. Muhammad Shafi, SI while appearing as (CW.2) deposed that on 8-9-2004, Muhammad Iqbal injured along with some other persons came at Police Station Sadar Kamonki, he examined his body and found, one injury on the back of his head, prepared his injury statement, which was Exh.CW-2/1 and sent him for medical examination under the escort of Ehsan Ullah constable along with injury statement Exh.CW-2/A. He referred injured in the hospital after preparing docket.
10. Learned trial court after observing all the pre-trial codal formalities, indicted the appellant as well as his co-accused in complaint case to which they did not plead guilty and claimed trial.
Thereafter the prosecution was asked to lead its evidence in order to prove its case.
11. At the trial, the prosecution in order- to prove its case produced 10 witnesses in all, out of them 08 witnesses were examined as prosecution witnesses while 02 were examined as Court witnesses.
12. The medical evidence was adduced through the statement of Dr. Syed Zafar Abbas Bukhari, SMO, Tehsil Headquarter Hospital, Kamonki (P.W.2.), who on 8-9-2004 medically examined Muhammad Iqbal and observed following external injuries on his body:-- ' INJURIES.
(i) Large lacerated wound 4 1/2 cm x 1 cm on the mid of octipetal of skull (margin irregular, pariosteum exposed advised X-Ray skull AP/Lat.
(ii) Right upper incisor tooth + 1 was missing from its surface, gingrava freshly lacerated with blood in, and of the socket lacerated has clotted blood. On 10-9-2004 at 1-00 p.m., he conducted the post-mortem examination on the dead body of Muhammad Iqbal and found the following injuries on his body:-- ' INJURIES
(i) A lacerated wound stitched 4-1/2 cm x 0 cm on the mid occipital region of the skull on its back.
(ii) Right upper incisor, central tooth 1 x was missing from its socket, other teeth were also missing from their sockets, deceased/ aged.
(Remarks)
' In his opinion injury Nos. 1 and 2 were ant mortem in nature inflicted by a blunt weapon. Injury No. 1 was most fatal injury head injury directly inflicted on the brain itself inducing neurological and traumatic shock inducing cardio pulmonary failure and death.
' Probable time that elapsed between injury and death was within one/ two days and between death and post mortem was about 6 to 10 hours. Medico-legal Report of Muhammad Iqbal was Exh PB, Exh.PC was the correct carbon copy of post mortem report of the deceased and Exh.PD/1 was the pictofial diagram, the same bore his seal and signatures. Learned S.P.P renounced Sauif Ullah 694-C as being unnecessary and closed the prosecution case.
13. Then the statement of the appellant under section 342, Cr.P.0 was recorded, in which he denied and controverted all the allegations levelled against him by the prosecution and professed his innocence. He, however, opted not to make his statement on oath as required under section 340(2), Cr.P.C. And tendered copies of F.I.Rs. Exh.DA and Exh.DB in his defence.
14. Appellant Tasawar Hussain in reply to the question "why this case against you and why the P.Ws.
Have deposed against you" answered as follows:-- "The witnesses are inter se partisan and inimical. There are two rival political groups in Kamonki.
One is headed by Rana Shamshad Ali. Khan now Provincial Minister and the other headed by Rana Nazir Ahmad Khan Ex. Central Minister. The complainant party is the chief supporters and voters of Rana Shamshad Ali Khan while the accused party is supporter and voters of Rana Nazir Ahmad Khan. Both the parties are at daggers drawn. I produced certified .Copies of F.I.R. No.96 2006 dated 10-3-2006 under sections 324/452/148/149, P.P.C. Police Station, Sadar Kamonki Exh.DA and Certified copy of F.I.R.No. 97 of 2006 dated 10-3-2006 under sections 324/148/149, P. P. C . Registered with Police Station Sadar .Kamonki Exh.DB lodged by the aforementioned rival groups against each other. My father Ashiq, my brothers Sarwar, Dilawar, Munawar, Abdul Ghaffar have been falsely and maliciously implicated in this case by the complainant party. Similarly co. Accused Abdul Khalil and Khurshid have been falsely implicated. The police during investigation have declared all the co-accused innocent except myself. The true facts are that on the fateful day deceased Iqbal alongwith one person had trespassed into my Haveli in our absence and removed bullock cart of my father Ashiq while removing I arrived at the spot inside my. Havaili and we grappled with each other. During this process Iqbal deceased fell down with back of his head on the ground as a result of which he sustained his head injury. The complainant party being influential more powerful in view of the Provincial Minister Rana Shamshad Ali Khan have maneouvered to implicate us due to political rivalry. The Medical Officer who conducted the postmortem under political pressure has given wrong his opinion about injury as fatal under political pressure. I am innocent. Entire family has been roped in maliciously".
15. Upon conclusion of the trial, appellant was convicted and sentenced as mentioned above by the learned trial court while his co-accused Dilawar Hussain, Munawar Hussain, Sarwar Hussain, Ghaffar Hussain, Khalil Ahmad, Muhammad Khurshid and Muhammad Ashiq were acquitted.
16. Learned counsel for the appellant submits that the incident was reported with the delay of two days without its reasonable perspicuity; the alleged recovery of iron rod is inconsequential on account of its being not imbrued with blood; appellant is alien to the motive; the learned trial court has disbelieved the prosecution evidence qua seven acquitted accused against whom Leave to Appeal was filed, the same has also been dismissed on 12-9-2006 by this Court; during the investigation, the version of the complainant has also not been found correct in totality; the presence of the P. Ws. Being related to the deceased and non-use of conventional weapon by not trying to save the life of the deceased is highly improbable and unbelievable; the case falls out of the mischief of deep-rooted enmity; singular blow has been attributed to the petitioner; doctor while performing the autopsy in the first instance deferred the cause of death till the receipt of the operation notes etc of the deceased and without their being taken into consideration cause of death has been declared, this by itself makes doubt as to the implication of culpable homicide amounting to murder and has, thus, epitomized his arguments in praying acquittal of the appellant or in the alternate toning down the quantum of sentence adequately.
17. Learned DPP assisted by the learned counsel for the complainant has opposed the submissions by contending that consuming of period in reporting the incident to the police by itself does not discredit the prosecution case even otherwise the complainant party remained busy in looking after the deceased who ultimately succumbed; then in posthaste, the incident was reported to the police; the motive has not been denied during the cross-examination which would be taken to have been admitted and proved; occurrence is pre-concerted; acquittal of the co-accused is inconsequential qua the appellant on account of his case being stood on distinct footings; injury attributed to the appellant has been found on the head, the most vital part of the body and the doctor has given in his opinion while exploring the injury that huge loss was caused by the injury; recavery of the weapon being corroborative supports the case; investigation resolved in involvement of the appellant, the learned trial court while applying the principle of sifting the grains from chaff has rightly chosen the appellant to be guilty and, in the circumstances of the case sentence imposed upon the appellant is condign as being the normal one and no reason of extenuation exists, thus, has prayed for the dismissal of the appeal and for upholding the impugned judgment.
18. We have mused over the arguments and have also gone through the record.
19. Consumption of reasonable time in reporting the incident rather its being deferred till the death of the deceased is indubitable. Obviously the appellant is not related directly or indirectly with the motive alleged and the deceased Muhammad Iqbal has also not been found party to the previous quarrel which allegedly had taken place in between Intizar Ahmad (P.W.6) and Shahid (not accused). The presence of the P.Ws. Has been found proved at the place of occurrence beyond shadow of doubts. Ocular version has supported the medical evidence and another element cannot be gone oblivious that Intizar Ahmad (P.W.6) directly related to the motive has not been trounced during the incident and undeniably solitary blow has been attributed to the appellant Of course, the recovery is deemed as corroborative but the same has not been proved as such in the instant case. The aftermath of the entire discussion is that the prosecution has fully proved its case against the appellant indubitably but at the same time, following factors have persuaded us to tone down in sentence to make it condign to the circumstances of the case infra:--
(i) Delay of two days in reporting the matter has been found, as to the same no reasonable exegesis has been brought by the prosecution.
(ii) The appellant has not been found directly or indirectly connected with the motive and on the other side, deceased Muhammad Iqbal was not party to the motive incident allegedly had taken place a day before the unfortunate incident.
(iii) Intizar Ahmad with whom the incident of motive alleged has not been found trounced despite being available within the compass of the appellant and his co-accused since acquitted.
(iv) Prosecution evidence has been disbelieved qua all other accused.
(v) The weapon i.e. Iron rod normally is not treated as the weapon of offence.
(vi) The incident has not been found as outcome of deep rooted enmity.
(vii) Solitary blow has been alleged against the appellant despite having command to repeat but he did not.
(viii)Involvement of the co-accused (since been acquitted) has been found false.
20. In these circumstances, we are of the view that capital sentence is harsh. The same is set aside and the appellant is convicted under section 302(b), P.P.C. And is sentenced to life penal servitude, directing to reckon the period which he has undergone by yet to be counted to the substantive quantum of sentence as envisaged under section 382-43, Cr.P.C. With this modification, this appeal stands dismissed. Murder Reference is answered in negative. The sentence of death is not confirmed.
Sentence reduced.