Mazhar Iqbal Sidhu, J.--Zafar Iqbal appellant along with two others was tried by the learned Additional Sessions Judge, Kasur, in case FIR No, 433/2005 dated 20.10.2005 for the offence under Sections 302/34 PPC, registered at the Police Station of Mustafabad, District Kasur. The learned trial Court vide judgment dated 29.11.2005 convicted and sentenced the appellant which reads as under:-- {{TABLE}} U/S. 302(b)Death and to pay Rs, 200,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. and in default whereof to undergo six months SI. {{TABLE}}
2. Feeling aggrieved by the impugned judgment, the appellant filed an appeal i,e, Crl. A. No, 1883/2006, whereas the trial Court sent refefence i,e, M.R.No, 791/2006 seeking confirmation of death sentence awarded to the appellant. Both these matters shall be decided through this single judgment.
3. The brief facts of the prosecution case as set down in the FIR (Ex.PF/1) are that Muhammad Mansha, complainant is a resident of Sarhali Kalan. On 19.10.2005 at about 3:00 p.m., his brother Maqbool Ahmad, son of Abdullah, went to the fields where he saw that a buffalo of Muhammad Sarwar, the accused, was destroying their paddy crop, whereupon deceased had restrained Muhammad Sarwar. Then a fuming argument took place. Thereafter deceased, Maqbool Ahmed as well as the said accused returned to the village. Muhammad Sarwar informed his brothers Zafar Iqbal and Muhammad Aslam alias Acchhu regarding the said occurrence. On it, Zafar Iqbal, appellant took his gun rated .12 bore single barrelled and all the three accused came in front of house of the deceased. They started abusing and tried to break through. The deceased bolted the door of his house from inside and went upstairs to the roof of his house, whereupon all the three accused also went to the roof of their house and Muhammad Aslam alias Acchu and Muhammad Sarwar, accused raised lalkaras to not to leave Maqbool Ahmed alive. Upon hearing hue and cry, Muhammad Shahbaz and Muhammad Yasin also got attracted to the place of occurrence. Zafar Iqbal made a fire shot which hit Maqbool Ahmed on his abdomen, pubic region and legs. Maqbool Ahmed was taken to Mustafabad Hospital where the doctor referred him to the General Hospital, Lahore where Maqbool Ahmed succumbed to the injuries.
4. Dr. Ishfaq Muhammad Akhtar (PW-. 1) conducted the post-mortem examination of Maqbool Ahmed's dead body on 21.10.2005 at 2:45 p.m. and observed the following injuries:--
1. On removing dressing in midline area of abdomen an incised wound 27 cm in length, in the median region of abdomen (from epigastrium to public region). Wound was stitched internally below the skin.
2. An incised wound 2 x 11/2 cm on lower middle of chest, 3 cm above the upper end of median incision (Injury No, 1).
3. On removing dressing a stitched incised wound 21/2 cm in length on left lateral side of chest.
4. Multiple small circular deep going wounds on whole front of abdomen upto the pubic region.
These wound were due to pallets from fire-arm.
5. Multiple small circular wounds of pallets on anterio-medial surface of upper 2/3rd of right thigh.
Some skin and some muscle deep.
6. Multiple small circular wounds of pallets on front and medical surfaces of upper and middle parts of left thigh. Some skin and some muscle deep.
7. Four small and circular wounds of pallets on scrotum.
8. Two small circular wounds of pallets on penis skin deep.
9. A small circular wound of pallet on outer side of middle part of right forearm skin deep.
The doctor observed corresponding holes of bullets on the `Chaddar' and the 'Bunyan' of the deceased but not on the `Usmani Salati' coloured `Shalwar'. In the opinion of the doctor, the cause of death in this case was shock due to haemorrhage caused to the abdominal organs (liver, small intestine) due to Injury No,
4. Injury No, 4 was due to a gun shot and was sufficient to cause death in an ordinary course of nature. Injury Nos, 1, 2 and 3 were operative. Injuries Nos, 5, 6, 7, 8 and 9 were also due to fire-arm. The probable time between injuries and death was about 22 hours approximately.
5. Investigation of this case was conducted by Muhammad Muzaffar, SI (PW-.12). He along with the constables, upon the receipt of information, regarding the occurrence, went to General Hospital, Lahore where Muhammad Mansha, the complainant appeared before him and produced an application Ex.PF for the registration of the case which was already thumb marked by Muhammad Mansha. He also read over and explained the said application to Muhammad Mansha who verified the same. He then sent the application through Ijaz Ahmad constable to the Police Station for the registration of FIR. He took into possession the dead body of the deceased and obtained the death certificate Ex.PH from the concerned doctor. He prepared an injury statement Ex.PK, inquest report Ex.PL and drafted an application for the post-mortem examination Ex.PM and sent the dead body to the mortuary at DHQ Hospital, Kasur for post-mortem examination. Then he 'inspected the place of occurrence, collected the crime empty of .12 bore cartridge P.1 from the house of accused persons vide recovery memo. Ex.PC. He also collected brickbat P.2 from the roof of `Dewari' of Maqbool Ahmed vide recovery memo. Ex.PD. After the post-mortem examination, the last worn clothes of the deceased were handed over to the police officer which were taken into possession vide recovery memo. Ex.PJ. He also got prepared a scaled site-plan through the draftsman Ex.PB and Ex.PB/1. On 31.10.2005, he arrested Zafar Iqbal appellant, Muhammad Aslam and Muhammad Sarwar. On 02.11.2005 Zafar Iqbal got recovered a .12 bore gun P.3 from his house vide recovery memo. Ex.PE. He also recorded the statements of the witnesses under Section 161 Cr.P.C. who appeared before him during the investigation and,he recommended the accused to be challaned.
6. Finally the matter was placed before the learned trial Court and at trial the prosecution produced as many as twelve witnesses to bring home the charge against the appellant and his co-accused. The trial Court also examined Dr. Safi Ullah as CW.1.
7. The learned trial Court also examined the appellant under Section 342 Cr.P.C. where while answering to question i,e,, "Why this case against you and the P.Ws deposed against you?", made the following reply:-- "On the day of occurrence I was in my house and heard the shriek of my mother. When I came out of the room I was astonished at the licentious nude figure having a gun. Maqbool, Ahmed (deceased) was making indecent gestures. He shouted obscenities at the women. I fizzed a bit then and told to him a swine to say and doing things like that. He jumped at me with the gun. His face had a frightful expression. I became terribly frightened and dogged away from him towards the three. He followed me instantly, he aimed his gun at me and I felt that at that moment he is going to do away me and saw myself that I am at the border line of my life. I seized his gun. He seized me and forced me back against the tree. It became a horrible animal sort of scrap. I remember we were fallen on the ground all in. I seized the gun whole time and tied the arms around it He was rolling me in order to snatch the gun and I was wriggling on the floor by his wild kicking. He stooped and had been clutching and endeavouring to pull the gun with violent force.
On the floor we were two men wrestling in the grip of a bitter struggle which spelt death to one of us. Suddenly a shot rang out, the gun gone off accidently. Maqbool Ahmad (deceased) who was temporarily stooping on me although wounded began to hit me with the kicks. Whine of the accidental shot paralyzed me and he staggered off and prostrated under the tree nearby.
Maqbool Ahmad deceased was a habitual drinker and at that time too he was terribly drunk. Police seized the gun and cartridge from my house underneath the tree. All the story against me is fantacised one. My brothers Muhammad Sarwar and Muhammad Aslam alias Acchhu were not present at that time".
8. Neither the appellant made any statement under Section 340 (2) Cr.P.C. nor produced any evidence in his defence. The learned trial Court vide judgment dated 29.11.2006, convicted and sentenced the appellant as mentioned supra, hence this appeal.
9. In support of this appeal, learned counsel for the appellant submits that the occurrence took place on 10.05.2005 at about 3:00 p.m., whereas the FIR was lodged on the following day at about 3:45 p.m., i,e, with a delay of twenty four hours and sufficient time was consumed by complainant Muhammad Mansha PW-.8 in consultations and deliberations and because of which in a single shot he has involved three real brothers, out of whom Muhammad Sarwar and Muhammad Aslam alias Acchu have been acquitted by the learned trial Court.
Learned _counsel for the appellant has argued that the incident took place in two parts i,e, the first episode had occurred in the paddy crop of the deceased party where allegedly acrimony took place between the deceased and Muhammad Sarwar (acquitted co-accused). But both of them of their own dunce came to their own houses; that in the first episode the appellant was not present. So far as the second episode is concerned, learned counsel has submitted that what had happened immediately before the occurrence shrouds in mystery because as per prosecution's own case no previous vendetta exists between the parties. Learned counsel has further submitted that the story as to the second incident introduced by the prosecution is concerned, it is absolutely false rather the appellant in his statement recorded under Section 342 Cr.P.C. while replying to Question No, 11 which has been narrated by him.
Learned counsel submits that the PW-s did not witness the occurrence and because of their own relationship with the deceased they have made false statements against the appellant and their statements qua the acquitted co-accused have been disbelieved by the learned trial Court.
Learned counsel submits that in fact the deceased launched an attack on Zafar Iqbal after having entered in the house of the appellant. In this process a fire shot was made by the appellant in his self-defence. Learned counsel has further argued that vividly it appears that the deceased received a single fire shot injury and the appellant did not repeat any further fire shot on the deceased, that's why only one cartridge of .12 bore gun was taken into possession from the spot.
Learned counsel has lastly submitted that after evaluating the entire material available on the record, the impugned judgment is not tenable in the eye of law as far as the quantum of sentence is concerned and has prayed for the commutation of death sentence into imprisonment for life.
10. On the other hand, the learned DDPP assisted by the learned counsel for the complainant has opposed the contentions of the appellant's counsel by submitting that the occurrence took place in the bright of the day. Also the parties of the case knew each other before the occurrence; that the delay statedly caused in the lodgment of the FIR has been explained by the complainant as immediately after the receipt of the injuries by the deceased he was taken to the hospital and the complainant party remained associated with the deceased for his treatment but unfortunately on the following day the deceased succumbed to the injuries and immediately thereafter the matter was reported to the police. Learned counsel further submits that the appellant intentionally made a fire shot injury on the deceased and the medical evidence supports the ocular account and the report of the ballistic expert vis-a-vis the usage of the weapon of offence is also positive, therefore, the prosecution has its foolproof case against the appellant and his appeal may be dismissed.
11.Hearkened. Record perused.
12. The FIR was lodged against three persons namely Zafar Iqbal appellant and his real brothers Muhammad Sarwar and Muhammad Aslam alias Acchu who have been acquitted by the learned trial Court. Apparently the mala fide on part of the complainant exists that for a single shot he has involved three real brothers.
13. The occurrence took place on 19.10.2005 at about 3:00 p.m. and the FIR was lodged on the following day at 3:45 p.m., i,e, after the delay of twenty four hours and unless the deceased succumbed to the injuries no body reported the matter to the police. Obviously twenty four hours were consumed by the complainant party in order to cook up a story against the appellant. There was no hurdle in the prosecution to lay information to the police about the incident. There was no previous enmity between the parties but the fact remains that when no enmity has been found it does not mean that the complainant could not fabricate a story.
14. As to the first episode of the incident which allegedly took place in the paddy crop fields of the deceased party in between the deceased and Muhammad Sarwar acquitted co-accused, nobody supported the same during the trial and the deceased was not party to the said incident.
Therefore, the motive allegedly mentioned in the FIR directly cannot be attributed to the appellant.
15. So far as the incident of causing injuries to the deceased is concerned, it has been noted that before causing injuries, brick batting as well as expletive language was used by both the parties and it has not been manifested as to why the matter reached upto the making of fire shot injuries to the deceased. One thing is otherwise important that when the appellant party allegedly mounted an attack on the deceased who entered in his house and bolted the door from inside and ascended to the roof of his house, it is not understandable. Had the deceased been present on the roof top of the house, perhaps the appellant might not have gone to the roof top of his own house.
Again one thing is important that what was the gesture/posture/behavior displayed by the deceased when he was present at the roof top of the house which compelled the appellant to make a fire shot upon him. This part of the prosecution story remains shrouded in gloom and it appears that something has been concealed by the complainant party and if it would have been brought on the record it could have been used against the prosecution. The appellant in his statement, recorded under Section 342 Cr.P.C. has given a detailed circumstances under which allegedly the incident took place. We have also perused the same but it appears that the appellant has also not come with true version of the occurrence. In this way we have legitimately come to the conclusion after assessing the entire material available on the record that both the parties have concealed their roles played by them in the commission of crime. The version introduced by the appellant in his statement appears to be preposterous, therefore, we are inclined not to accept the same.
16. However, it has also been noted by us that the crime empty which was taken into possession from the spot in a sealed cover, was sent to the office of Forensic Science Laboratory; Lahore, thereafter the gun allegedly was recovered from the appellant was also sent for its comparison to the said office. The report of the ballistic expert shows that the alleged empty was fired from the barrel of the gun of the appellant. In this way the evidence of recovery synchronized the prosecution case.
17. In the said circumstances, we hold that the prosecution has fully proved its case against the appellant beyond any shadows of doubt. However, some extenuating circumstances have been explored by us and these are as follows:--
(i) The appellant did not participate in the incident of motive which had allegedly happened in the fields in between the deceased and Muhammad Sarwar co-accused (acquitted).
(ii) What happened immediately before the causing of fire shot injury to the deceased has been found shrouded.
(iii) Previous vendetta between the parties has been found missing.
(iv) Single fire shot was allegedly made by the appellant despite the fact that he could repeat the same but did not do so.
(v) The circumstances allegedly compelled to the deceased to come on the roof top of his house have not been explained by the prosecution.
(vi)Both the parties have allegedly made clandestine true circumstances for happening of the incident.
18. For what has been discussed above, legitimately it has been observed that the quantum of sentence of the case is harsh and is not condign. Therefore, while maintaining the conviction of the appellant under Section 302 (b) PPC, the death sentence of the appellant is commuted to the imprisonment for life under Section 376(b) Cr.P.C. The appellant shall be entitled to take benefit of the period undergone by him so far, as required under Section 382-B Cr.P.C. The amount of compensation levied by the learned trial Court shall stand as such. With this modification the appeal of the appellant is dismissed.
19. Resultantly the death sentence awarded to the appellant is not confirmed and the murder reference (M.R. No, 791/2006) is answered in the Negative.