Shahid Bilal Hassan, J---Abid Hussain appellant was booked vide FIR No,122 dated 01.05.2008 at Police Station Tranda Muhammad Panah Tehsil Liaqatpur District Rahimyar Khan for committing qatl-iamd of Ghulam Shabbir with firearm and on conclusion of the trial thereof, vide judgment dated 29.10.2009 delivered by the learned Additional Sessions Judge, Liaqatpur, he has been convicted under Section 302(b), PPC and sentenced to death with a direction to pay compensation amounting to Rs,2,00,000/- to the legal heirs of both the deceased as required by Section 544-A, Cr.P.C. or in default of payment thereof to undergo SI for six months. Abid Hussain appellant has challenged his conviction and sentence through Criminal Appeal No, 338 of 2009/BWP which has been heard by us alongwith Murder Reference No, 50 of 2009/BWP, sent by the learned trial Court under Section 374, Cr.P.C. seeking confirmation of the sentence of death passed by it against Abid Hussain appellant. We intend to dispose of both these matters jointly through the instant judgment as the common questions of facts and law are involved therein.
2. Briefly the facts of the prosecution's case setup in the F.I.R. (Ex.PB) got lodged by Ashiq Hussain complainant (PW-2) are that on 30.04.2008 at about evening, he along with Abdul Malik (given up PW) and Bashir Ahmad (PW3) on having been called upon by Malik Abdul Ghaffar to work at the thrasher, reached in Mauza Miani Achha and when contacted, it was told that thrasher would start at about prayer time on the next morning. The complainant along with the PWs went to the house of his paternal cousin Ghulam Shabbir, who was residing in the same Mauza. They slept outside his house at an open place. At about 2/3.00 a.m. (midnight) between 30.4.2008 and 1.5.2008, the complainant along with PWs woke up after hearing the noise of Ghulam Shabbir whereupon they entered his residential room. In the light of torch it was seen that Abid Hussain appellant was grappling with Ghulam Shabbir near his cot. In their view, Abid Hussain appellant fired a shot with his pistol, which hit Ghulam Shabbir on the back of head, who fell on the cot in severe injured condition. They tried to apprehend Abid Hussain appellant, but he succeeded in fleeing from the spot while brandishing pistol in the air. Ghulam Shabbir was attended by the PWs, who succumbed to the injuries at the spot.
The motive behind the occurrence was alleged to be that Abid Hussain appellant had developed illicit relations with Nasrin Mai widow of Ghulam Shabbir deceased and to remove the latter from his way, the present occurrence was committed.
3. The investigation of this case was conducted by Munir Ahmad ASI (PW-10), who recorded the FIR on the statement of the complainant (PW-2) and proceeded to the spot. Then during the Investigation, the dead body of the deceased was inspected, injury statement and inquest report of the deceased were prepared, statements of the witnesses under Section 161, Cr.P.C. were recorded, the place of occurrence was inspected, blood stained earth and an empty of the pistol .30 bore were taken into possession from the spot; rough site-plan of the place of occurrence was prepared, the dead body along with the relevant papers was sent for autopsy, the last-worn clothes of the deceased were received, blood stained chadar, blood stained cot, blood stained Sarhana and blood stained shoes were also taken into possession from the spot; a formal site-plan of the place of occurrence was got prepared, on 4.5.2008 Abid Hussain appellant was arrested and on 6.5.2008 he led to the recovery of crime weapon i,e, pistol .30 bore (P9) on 29.6.2008 from inside his residential room through memo. (Ex:PF). Afterwards on completion of the investigation, the challan was submitted in the Court.
4. At the commencement of the trial the learned trial Court after supplying copies of the documents required under Section 265-C, Cr.P.C. to the appellant framed the charge under Section 302(b), PPC against him to which he pleaded not guilty and claimed a trial. During the trial, the prosecution produced as many as 10 witnesses in support of its case.
5. The ocular account was provided by Ashiq Hussain complainant (PW-2) and Bashir Ahmad (PW- 3), who deposed about the motive as well. PW-3 Hazoor Bakhsh also attested the recoveries from the spot, i,e, blood stained earth, empty (P3) vide memo. (ExPC) as well as bed. Cot, pillow and the shoes of the appellant, all blood stained, vide memo. (Ex:PD). The medical evidence was furnished by Dr. Muhammad Wajid (PW-4) who conducted the post-mortem examination on the dead body of Ghulam Shabbir deceased on 1.5.2008 at 1.00 p.m. and found the following injuries:-- "1. A lacerated wound 2.00 cm x 1.5 cm brain deep situated on the right side of skull about behind the right ear. Tatooing was present. It was a wound of entry.
2. A lacerated wound 3 cm. x 2 cm situated on back of left pinna on mastoid process and the pinna was also ruptured. It was wound of exit."
According to the opinion of the doctor the deceased had died of haemorrhage and shock by both the injuries individually and collectively, which were ante mortem and sufficient to cause death in the ordinary course of nature. The probable time that elapsed between the injuries and death was sudden while in the death and post-mortem examination was within 12 to 14 hours.
6. Munir Ahmad ASI (PW-10) carried out the investigation and stated about the various steps taken by him in the performance thereof. The other PWs are more or less formal in nature, who escorted the dead body to the hospital, placed different parcels of last worn clothes, blood stained earth, empty and pistol in Malkhana, which were then sent to the concerned offices and prepared the formal site-plan.
7. The learned Law Officer tendered in evidence the report of the Forensic Science Laboratory (Ex:PQ), report of the Chemical Examiner (Ex:PR) and that of the Serologist (Ex:PS) and closed the prosecution evidence. Then the appellant was examined under, Section 342, Cr.P.C., who denied and controverted all the allegations of fact levelled against him by the prosecution and he also professed his innocence. However, to a question that "Why this case against you?" Abid Hussain appellant replied as under:-- "The family of the deceased had abducted a woman of Baloch family. To take revenge, the Baloch family committed the murder of the deceased. The complainant had friendly relations with said Balochs and was also involved in this murder. I know this fact. Just to close my mouth, the complainant has involved me in this false case to save himself and his friends, said Baloch."
However, the appellant neither opted to make statement on oath under Section 340 (2), Cr.P.C. nor produced the evidence in his defence.
8.Upon conclusion of the trial, the learned trial Court while finding the prosecution's case against the appellant to have been proved beyond reasonable doubt convicted and sentenced him as detailed in Para No, 1 ante. Hence, the present appeal and the connected Murder Reference before this Court.
9. The learned counsel for the appellant contends that the appellant has been falsely implicated in the present occurrence due to suspicion whereas the occurrence was committed by the Baloch tribe, whose girl had been abducted by the brother of Ghulam Shabbir deceased; that the appellant has been made a scapegoat and the recovery of the pistol was planted upon him just to strengthen the prosecution version; that the witnesses were closely related to the deceased, who did not witness the occurrence and were chance witnesses, but they failed to utter any plausible explanation for being present at the spot; that widow of the deceased, who could be star witness of the prosecution being resident of the same house was neither joined during the investigation nor she was produced as a witness during the trial, which speaks volumes against the prosecution version; that the motive has been wrongly set up, which could not be proved as widow of Ghulam Shabbir deceased is still residing in the house of the deceased with his brothers, and that the prosecution has failed to prove the case against the appellant beyond any shadow of doubt and he is entitled to be acquitted by allowing this appeal.
10.On the other hand, learned Deputy Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the appeal on the ground that no previous enmity existed between the PWs and the appellant and their evidence cannot be brushed aside merely due to their relationship with the deceased; that the appellant was previously known to the PWs whose identity was not doubtful even at night time; that even otherwise the source of light was disclosed by the complainant and the other witnesses had identified the appellant in the light of torch; that it was the season of harvesting wheat on the day of occurrence and the presence of the P.Ws. at the spot for working at the thrasher was quite possible; that the appellant has committed premeditated occurrence in a brutal manner with firearm after entering the house of the deceased at night time, who is not entitled for any leniency in the quantum of sentence and this appeal is liable to be dismissed.
11.We have heard the learned counsel for the parties at length and also gone through the record of this case with due care and caution.
12.The occurrence in this case had taken place at about 2/3.00 a.m. (midnight) in between 30.4.2008 and 1.5.2008 in the area of Mauza Achha Tehsil Liaqatpur, which is situated at a distance of about 10 kilometers from PS Tranda Muhammad Panah while the matter was reported at PS by Ashiq Hussain complainant (PW-2) through FIR (Ex:PB), which was reduced into writing by Munir Ahmad ASI (PW-10) in the morning at 6.30 a.m. The post-mortem examination on the dead body of Ghulam Shabbir was conducted the same day at 1.00 p.m. by the doctor (PW-4) without any noticeable delay. It shows that the prosecution was not left with any time for concocting the story for false implication of the Abid Hussain appellant as a single accused and we have observed that the FIR was got lodged with promptitude, which can be used as a corroborative piece of evidence to the ocular account.
13.As per prosecution version, during the midnight of 30.4.2008 and 1.5.2008 at about 2/3.00 a.m., Abid Hussain appellant while armed with .30 bore pistol after entering the house of Ghulam Shabbir deceased situated in Mauza Achha inflicted a fire shot hitting in the back side of the head of Ghulam Shabbir, who died at the spot. The ocular account was furnished by Ashiq Hussain complainant (PW-2) and Bashir Ahmad (PW-3) while Abdul Malik PW was given up by the prosecution being unnecessary. Ashiq Hussain complainant (PW-2) was paternal cousin of the deceased while Bashir Ahmad (PW-3) was also their caste fellow. It is settled law that mere close relationship of the witnesses inter se and with the deceased is not sufficient to discard their evidence unless they are found to be interested witnesses. From the perusal of the record it is found that there was no previous enmity between the said eye-witnesses and the appellant, who cannot be termed as interested witnesses. The appellant has failed to bring on record any material to show any mala fide or enmity on the part of the PWs for his false implication in the occurrence.
The appellant was previously known to the PWs and there were no chances of his misidentification during night time. Even otherwise, it has been specifically stated by the PWs that the appellant was identified in the light of the torch and the same was also taken into possession by the I/O (PW-10) during the investigation.
14.We are also mindful that both the eye-witnesses were residing at a distance of about 12/13 kilometers from the place of occurrence and they were present there as per chance only. It is admitted position that the evidence of the chance witnesses cannot be relied upon unless they are able to tender plausible explanation for being present at the specific place at a particular time. The occurrence had taken place on the first day of May, 2008 and it was the season of harvesting wheat crop. It is a common practice in the village life that the people from the adjoining Abadies are also called upon to work at the thrasher and harvesting the crops. Thus there does not appear any improbability in the version introduced by the eye-witnesses that they had come to Mauza Achha after having been called upon by Abdul Ghaffar to work at the thrasher. It is also not found unusual that they slept outside the house of Ghulam Shabbir deceased, who was paternal counsel of the complainant (PW-2) as their residence was at a distance of 12/13 kilometers and the thrasher work was to start early in the morning. Even otherwise the defence has failed to bring on record any oral as well as the documentary evidence to show that as per their usual routine, during the time of occurrence the said eye-witnesses could have been present at any specific place other than the house of the deceased situated in Mauza Achha. On the other hand we have found that both the eye-witnesses have been able to establish their presence at the spot during the occurrence which finds corroboration from the factum that the FIR was got lodged with promptitude wherein the names of the eyewitnesses were duly mentioned and Abid Hussain appellant was also named as the single accused with the role ascribed to him.
15.Both the eye-witnesses while appearing in the witness box have made consistent statements regarding the place, time and the manner in which the occurrence was committed. The place of the occurrence was the residential house of Ghulam Shabbir deceased and the occurrence took place during night time when the other inmates i,e, widow and the children of Ghulam Shabbir were also present in the room along with him, which shows that the occurrence could not go unwitnessed. The prosecution version cannot be belied merely for the reason that widow of Ghulam Shabbir deceased was neither joined during the investigation nor produced at the trial as normally the people in the villages dislike to bring their womenfolk to the Police Stations or the Courts as a matter of prestige. We are also not influenced by the version put forward by the appellant that the brother of the deceased had abducted the girl of Baloch tribe and they committed the murder of Ghulam Shabbir as there was no direct enmity against him. It is also admitted position from the record that the said abducted girl was not returned even after the instant occurrence, but so far no untoward incident took place against the brother of Ghulam Shabbir deceased. The substitution of the real culprit is a rare phenomenon and after perusal of the evidence on the record we do not find any mala fide or enmity on the part of the eye-witnesses for false implication of Abid Hussain appellant by letting off real culprit. As such we have no doubt in our minds that the prosecution has been able to prove the ocular account, which is found trustworthy and reliable having been led by independent witnesses and the learned trial Court has rightly relied upon the same for recording conviction against Abid Hussain appellant.
16. The post-mortem examination on the dead body of Ghulam Shabbir deceased was conducted by Dr. Muhammad Wajid (PW-4) on 1.5.2008 at 1.00 p.m, who found the following injuries:-- "1. A lacerated wound 2.00 cm x 1.5 cm brain deep situated on the right side of skull about behind the right ear. Tatooing was present. It was a wound of entry.
2. A lacerated wound 3 cm. x 2 cm situated on back of left pinna on mastoid process and the pinna was also ruptured. It was wound of exit"
Injury No, 1 was an entry wound while Injury No,2 was its exit and tatooing was found at Injury No, 1.
During the cross-examination the doctor has ruled out the possibility of it a case of suicidal death and specifically opined that the bullet at the deceased had been fired from a distance of 2 to 2(1/2) feet, which has also supported the prosecution version that both the appellant and the deceased had grappled with each other during the occurrence and the fire was made from close range. The medical evidence is found in line with the ocular account regarding the seat of the injuries and the nature of the weapon of offence and it is also sufficient to corroborate the prosecution version that firearm weapon was used during the incident.
17.So far as the recovery evidence is concerned, it is brought on the record that an empty of pistol .30 bore was collected by the I/O (PW10) during the first inspection of the spot on 1.5.2008 and subsequently the appellant led to the recovery of pistol from his residential room on 6.5.2008.
According to the report of the Forensic Science Laboratory (Ex:PQ) the empty collected from the spot had been fired from the pistol alleged to have been recovered at the instance of Abid Hussain appellant. After thrashing out the evidence on the record, we have found that no independent person was joined during the investigation to witness the recovery of pistol .30 bore on the pointation of the appellant and it was violation of Section 103, Cr.P.C. Moreover, the parcels of the empty and the pistol were sent to the office of the Forensic Science Laboratory jointly and no reliance can be placed even on the positive report of the Forensic Science Laboratory. As such the recovery evidence in the present case is inconsequential, which cannot be used as a corroborative piece of evidence to the ocular account.
18.The motive set up by the prosecution was that Abid Hussain appellant had developed illicit relations with Nasrin Mai widow of Ghulam Shabbir deceased and to remove the latter from his way, the present occurrence was committed. The evidence led by PWs 2 and 3 regarding the motive is based on hearsay as the complainant (PW-2) has claimed that he was told about the said relations by Ghulam Shabbir deceased 15/20 days prior to the occurrence, but no direct evidence has been adduced by the is prosecution to prove the motive. It is also brought on the record during the cross-examination on the PWs that Mst. Nasrin Bibi widow of Ghulam Shabbir deceased is still living with the latter's brothers in the same house. Hence we have observed that the motive set up by the prosecution is not proved. However, it is not sufficient to discard the prosecution version straightaway as the motive is always between the victim and the assailant, which cannot be expected to have been known to others. In case of Abdul Rashid VS Umit Ali & 2 others PLD 1975 SC 227) it was held that weakness of motive or even, its conspicuous absence might not be helpful to accused when unimpeachable ocular evidence is available.
19. From the above discussion, we have no hesitation in holding that the prosecution has been able to prove the charge of qatl-i-amd of. Ghulam Shabbir deceased against Abid Hussain appellant beyond any shadow of doubt through the ocular account of unimpeachable character, which was supported by the medical evidence and also corroborated by the recording of the FIR with promptitude. As such the conviction recorded by the learned trial Court against Abid Hussain appellant u/S. 302(b), PPC is maintained. So far as the quantum of sentence is concerned, it is found that the occurrence had taken place at the spur of moment for some immediate cause as when the PWs attracted to the spot, both the deceased and the appellant were found grappling with each other when the fire was made by the latter, but what happened immediately before the occurrence resulting into commission thereof could not be brought on the record by either side.
The motive as well as the recovery also could not be proved. In such facts and circumstances we are of the considered opinion that awarding of the capital sentence of death to Abid Hussain appellant by the learned trial Court through the impugned judgment is not warranted, which is converted to life, imprisonment. However, the amount of compensation and the sentence in default thereof awarded by the learned trial Court is maintained and the benefit as required u/S. 382-B, Cr.P.C. will be extended to Abid Hussain appellant. With the said reduction in the quantum of sentence only, the impugned judgment stands modified accordingly and Crl. Appeal No,338 of 2009/BWP is disposed of in the said terms.
20. Murder Reference No, 50 of 2009 is answered in the negative and the sentence of death awarded by the learned trial Court to Abid Hussain appellant is not confirmed.