' MAZHAR IQBAL SIDHU, J.--- Abid, convict-appellant has challenged his conviction and sentence through Criminal Appeal No.1138 of 2006, whereas Murder Reference No. 578 of 2006 submitted for confirmation of sentence of death of the appellant or otherwise and we propose to decide both the matters together through the present consolidated judgment, as all emanated by impugned judgment.
2. The appellant vide judgment dated 30-6-2006 handed down by the learned Additional Sessions Judge, Kasur in case F.I.R. No. 764 registered under section 302/34, P.P.C. At Police Station Saddar, District Kasur on 14-11-2004, has been convicted and sentenced infra:-- ' Abid ' Under Section 302(b) P. P. C.
' The sentence of death and to pay a sum of Rs.3,00,000 to the legal heirs of the deceased as required under section 544-A, Cr.P.C. And in default whereof, the same shall be recoverable as land revenue.
' Through the same judgment, the learned trial Court acquitted his co-accused Sajid and Arshad.
' Briefly the facts relevant for the disposal of both the matters are that the above mentioned case was registered at the instance of Muhammad Shafi, complainant on 14-11-2004 at 11-30 p.m. He has alleged in the F.I.R., Exh. PC/1 that he is cultivator. Din Muhammad son of Mir Khan is from his brotherhood. His brother Muhammad Rafique had to get an amount of Rs.18,000 from Din Muhammad in relation to business. Muhammad Rafique importunated Din Muhammad from time to time to pay back his money, who delayed to pay the same on one pretext or the other. An altercation took place 3/4 days prior on the demand of the said amount by deceased from Din Muhammad, who promised to pay the same on 14-11-2004. As per consensus, at about 4-00 p.m.
His brother Muhammad Rafique went towards the house of Muhammad Din. The complainant, Muhammad Sharif and Muhammad Iqbal were sitting in the Baithak of Jan Muhammad and found his brother standing with Abid, Sajid and Muhammad Arshad in front of their house in an open place. On the mistreatment of Abid etc., the complainant, Muhammad Sharif and Muhammad Iqbal also proceeded towards there. When they reached near, Arshad raised a lakara that Muhammad Rafique is disrespecting them daily and he be taught a lesson for insulting and demanding of money. Sajid took Muhammad Rafique in his Japha. Abid made a hatchet blow on the back of his brother Muhammad Rafique, which landed on his head resulting into serious injury.
He fell down. The complainant and the witnesses raised alarm that his brother has died. The respectables of the village attracted at the spot. Then all the accused while extending threats fled away towards Jungle. Muhammad Rafique was escorted to DHQ, Hospital, Kasur, where the doctor observing his serious condition, ' referred him to General Hospital, Lahore, who in the emergency ward succumbed to his injury. All the accused in furtherance of their common intention have committed the murder of his brother.
4. The investigation was carried out by Muhammad Riaz, S.-I. (P.W.10). He along with other police officials, on 14-11-2004, on having the information of the occurrence, proceeded to General Hospital, Lahore, where, he recorded the statement Exh. PC/1 of Muhammad Shafi, complainant and sent the same to the police station through Muhammad Ashfaque Constable No. 196 for registration of formal F.I.R. He then inspected the dead body lying in the emergency ward, prepared injury statement Exh. PH, inquest report Exh. PJ and drafted application for postmortem examination Exh PK. Thereafter, he escorted the deadbody of the deceased through a. Private vehicle arranged by the complainant to DHQ, Hospital, Kasur through Muhammad Aslam, constable. He recorded statements under section 161, Cr.P.C. Of two witnesses Iqbal and Sharif. After that he came back to police post Theh Sheikhum and searched for the accused persons. On 15-11-2004, after postmortem examination, Muhammad Aslam, constable produced postmortem report of the deceased, which he annexed with the police file.. He also produced before him the last worn clothes Kamiz P-1, Shalwar P-2 (blood-stained) of the deceased, took the same into possession vide recovery memo Exh. PD. After that he proceeded to the place of occurrence and found the complainant and other P.Ws. There. He joined them in the investigation and inspected the place of occurrence on pointing out by them. He prepared rough site plan of the place of occurrence Ex PL and collected blood stained earth from the spot, which he made the same into sealed parcel and took into possession vide recovery memo Exh. PF in the presence of the witnesses and also recorded their statements. On his return to the police station, he handed over the case property to the Muharrar. On 16-11-2004, Nasrullah Draftsman inspected the place of occurrence on his direction and on pointing out Of witnesses took rough notes. On 17-11-2004 handed over him scaled site plan Exh. PE and Exh. PE/1 and he recorded his statement. On 19-11-2004, he forwarded the sealed parcel containing blood-stained earth to the office of Chemical Examiner, Lahore and recorded the statement of Muharrar and Ghulam Nabi constable under section 161, Cr.P.C. He arrested Abid, Arshad and Sajid accused on 24-11-2004. He sent Sajid and Arshad to judicial lock up, whereas got physical remand of Abid. On 26-11-2004, he interrogated Abid who while in police custody on his disclosure and pointing out got recovered hatchet P-3 stained with blood from his residential house lying in a room near the door on the eastern side, made it into a sealed parcel and took the same into possession vide memo Exh. PG attested by the P.Ws. He recorded their statements and also prepared rough site plan Exh. PG/1. Thereafter, he came back to the police station and handed over the case property to Muharrer. On 27-11-2004, he sent accused Abid to judicial lock up. On 29-11-2004, he forwarded the sealed parcel of hatchet to the office of Chemical Examiner, Lahore and recorded the statement of Muharrer and Khalid constable. He also collected MLR of Muhammad Rafique and placed the same on the file.
5. Upon completion of the investigation, the Challan was submitted to the learned trial Court.
6. On commencing of the trial, the learned trial Court framed the charge under section 302/34 to which was not pleaded guilty and claimed a trial.
7. During the trial the prosecution produced ten witnesses in support of its case.
8. The medical evidence was provided by Dr. Safdar Iqbal (P.W.1), who performed the medical examination of Muhammad Rafique on 14-11-2004 at 4-45 p.m., who was brought by the his brother, Muhammad Shafi, complainant and observed on his body infra:- ' INJURIES
(i) Wide extensive lacerated wound 10 x 3 cm x bone exposed and fractured over right side of back of skull. Advised X-Ray skull AP/ Lateral view injury was kept under observation.
' He observed that the patient was very serious and unconscious and was referred to Neuro Surgery, Lahore General Hospital, Lahore.
9. Dr. Hafiz Bashir Ahmad (P.W.2) performed the postmortem examination on the dead body of Muhammad Rafique on 15-11-2004 at 11-00 a.m. And observed on it infra:-- ' INJURIES ' An incised wound 10 x 3 cm on the back and right side head in occipital region starting 9 cm back to right ear pinna and going 1 cm to the left side of midline. Underlying bone was seen out through the wound.
(ii) An incised wound 2 1/2 cm bone deep on the left side head 5 cm from left ear in the left temper occipital region.
' In his opinion, the death had occurred due to shock because of intracranial haemorrhage and head injury due to injury No. 1, which was sufficient to cause death in ordinary course of nature.
Injury was ante-mortem and due to sharp-edged heavy weapon. He further opined that probable time between injuries and death was within two hours approximately and between death and postmortem was within sixteen hours approximately.
10. Learned A renounced Muhammad A shfaque and Muhammad Sharif, P.Ws. As being unnecessary. He by ever, opted not to make statement on oath under section 340(2), Cr.P.C. And even did not produce any evidence in his defence. Appellant, Abid, while, answering the question that why this case against you and why the P. Ws. Have deposed against you has answered as follows:-- "The P. Ws. Are inter se related and are interested witnesses. They are inimical towards me. They are not residents of the locality. No independent witness from the surroundings of the alleged place of occurrence has been cited as a witness by the prosecution. The deceased had not a good repute. Many criminal cases including theft case have been registered against the deceased. My mother had died. The real facts are that it was Eidul-Fitr Day, my father and my brothers Sajid and Arshad were not present in the house. Robina wife of my brother Arshad co- accused was alone in the house. Rafique deceased entered in the house where he was kissing and embracing Robina. I came to my house and saw Robina and Rafiaque deceased while kissing and embracing. I lost my temperament. I am Rajpoot by caste. Under Ghairat I picked up a hatchet lying in my house for cutting woods and it was an ordinary hatchet. On seeing me, Rafique deceased started to flee away from my house while Mst. Robina fled away towards the fields. .1 chased Rafique and under grave and sudden provocation I inflicted one hatchet blow on the back of his head. I along with the said hatchet appeared before the police on that day.
Complainant and the other alleged eye-witnesses were summoned from their houses as they were not present at the time and place of alleged occurrence. Police concocted false and fabricated story involving me and my co-accused Sajid and Arshad in this case. Both of them were not present at the spot. Arshad my co-accused my brother did not raise any alarm nor Sajid co-accused my brother made Japha to Muhammad 'Rafique deceased. The police investigated the case, where DSP examined said Mst. Robina. After that occurrence, parents of Mst. Robina and Robina herself annoyed and relations between us and them became strained. Robina is residing with her father now-a-days and due to this, they annoyed with us. My old father aged about 85 years is pursuing the case. I produced many persons before the I.O. But he was under undue influence' of sitting MNA Sardar Muhammad Tufail, who is opponent to us as we have not cast out votes in his favour in the previous elections, so after concocting a false story regarding Japha and Lalkara to my co-accused, we have been falsely involved in this case. I also stated my above said first version before the 1.0. But he was in league with the complainant and sitting MNA mentioned above, so the 1.0. Did not record my first version correctly. 1 am innocent, and is facing the agony of trial since my arrest".
' His co-accused Arshad and Sajid since acquitted relied it.
12. Upon conclusion of the trial, the learned trial Court convicted and sentenced the appellant as detailed supra and acquitted his co-accused Arshad and Sajid. Hence, the present appeal and the murder reference before this Court.
13. The learned counsel for the appellant submits that the occurrence took place during the dark hours of the night but the complainant party in collusion with the police, stretched the same towards the daylight and the delayed postmortem supports the case of the appellant. It has further been argued that there is delay of seven hours in reporting the matter to the police and every possibility had existed to construe that the complainant party after due deliberations and consultations has planned a false story to involve three real brothers in this case out of whom, two namely Sajid and Muhammad Arshad have been acquitted.
14. As to the igniting cause of the occurrence is concerned, the learned trial Court has held that the prosecution had set up false motive and the same has not been proved during the trial, therefore, it would be expendable to luminate the same. The learned counsel has submitted that complainant Muhammad Shafi, who examined as P.W.8 is real brother of the deceased, whereas Muhammad Iqbal is brother-in-law of the deceased, is resident of Kot Radha Kishan situated at about 40-KM from the place of occurrence and the fateful day had been stated to be the day of Eid-ul-Fitr and his presence in the circumstances of the case is highly doubtful to be present there.
Customarily and conventionally, the elders of the family do not select to leave the house on a ceremonial day such as Eid-ul-Fitr and Eidul-Azha etc. The learned counsel has striven to expatiate the presence of the P.Ws. At the place of occurrence has submitted that none of them has made any attempt to catch hold of any of the accused mentioned in the F.I.R. Or to step for-ward to play such a role, which could prevent the appellant to cause injury on Muhammad Rafique, deceased.
The learned counsel has submitted that natural behaviour of the P.Ws. Necessarily compels to believe non-presence of the P.Ws. At the time of occurrence.
15. The learned counsel has seriously challenged the alleged recovery of hatchet and reports having been found to be stained with blood of homo region by arguing that the same is false and has been planted to beef up the case. The learned counsel has argued concludingly that the occurrence did not take place as alleged by the prosecution, in fact the deceased had illicit relations with Mst. Robina Bibi, wife of his brother, Muhammad Arshad, co-accused since been acquitted, was alone in her house on the day of occurrence. Deceased came in her house and was seen by the appellant in a position of kissing and hugging with her and the appellant being Rajpoot by caste could not control his sentiments, picked up a hatchet from there. In the meanwhile, the deceased tried to escape from the venue, appellant chased him and caused him two injuries in the continuation of heat and passions and to vindicate the family honour. In this way, the appellant cannot be imputed guilty of culpable homicide and in these circumstances of the case, at the maximum would be considered to convict under section 302(c), P.P.C. And not under section 302(b), P.P.C. Making rise, these arguments, it has been solicited for toning down the quantum of sentence.
16. The learned DDA refuted the arguments in this way that the F.I.R. Has been lodged without any loss of time, as deceased being in serious injured condition was taken to DHQ, Hospital, Kasur, ,therefore, the doctor opining him to be in critical condition referred him to General Hospital, Lahore, where the deceased left this world to its entirety. Thereafter, the incident was reported to the police and if the time factor is considered to be utilized for prosecution then one may comprehend that the life being precious is required foremost to be saved and the complainant party has done maximum for the same but the Almighty had decided otherwise. The learned counsel submits that the prosecution story is based on truth as two injuries were received by the deceased but have been attributed to a single person and no exaggeration has been done by the complainant. The learned counsel further adds that in these circumstances an irresistible conclusion can be drawn that the prosecution has not taken any undue advantage by the time consumed in making efforts to save the life of deceased.
17. As to the motivational aspect of the case, it has been submitted that it is not incumbentory upon the prosecution to prove the same fact in issue because Article 19 of the Qanun-e-Shahadat Order, 1984 conveys that motive is a relevant factor but not the fact in issue, on this strength. The learned counsel has orchestrated his arguments that in the fleeting past, the Hon'ble Supreme Court of Pakistan has modulated its view as to motive and it has been held that if the case is found to be proved otherwise then weakness of motive, non-proof of motive and its disproof does not make any adverse effect on the case, if the case has been proved by material available on record.
18. Ocular' testimony of the prosecution case hinges upon the statement of two persons i.e. Muhammad Shafi, the complainant examined as (P.W.8) and Muhammad Iqbal examined as (P.W.9). The learned counsel has argued that in the prevailing circumstances, it has become impossible to look for independent corroboration and societal norms and mores have gone so poor that no person except related to the deceased or the complainant Came forward to put him in hot water by becoming a witness in the case. No doubt both P.Ws. Are related to the deceased but before the occurrence had no spite of such a nature rankling in their minds to become a false witness against the appellant. The occurrence took place in the vicinity where both the parties were living, both the parties were knowing each other and the mistaken of identity of the appellant being the daylight occurrence cannot be questioned. The learned counsel has submitted that so far as natural conduct of the P.Ws. Displayed at the place of occurrence is concerned that none of them tried to rescue the deceased or to quell any of the accused at the place of occurrence is concerned, it differs from man to man and it may not be expected from every person that who would throw himself in the hot water in order to save another. The learned counsel has further argued that injured Muhammad Rafique did not kiss the dust at the time of occurrence rather being injured, he was rushly taken up to the DHQ Hospital, Kasur, there the doctor observing his critical condition referred him to General Hospital, Lahore, where the deceased could not survive.
The learned counsel has further submitted that had the P.Ws. Not been present at the spot then the deceased could not be brought anywhere for medicinizing. The learned counsel has lastly argued that the P.Ws. Have endured rigorously litmus test of cross-examination but the learned defence counsel remains fizzled out in eliciting anything favouring the appellant.
19. As to the recovery of crime weapon i.e. Hatchet is concerned, it has been submitted that the appellant while in police custody on his volunteer disclosure led the police party and the 'P.Ws., had have recovered hatchet stained with blood, the same was made into sealed parcel and sent to the office of the Chemical Examiner, Lahore, the report has resoluted in presence of homo blood on its blade and further the report has been endorsed by the report of Serologist. In this way, the evidence of recovery corroborates the prosecution case.
20. The learned counsel for the State has seriously commented upon the arguments on the defence plea taken by the appellant by developing his arguments that no evidence has been brought on the record to establish the same as much as the appellant himself did not appear under section 340(2), Cr.P.C. In his own defence against the acquisitions of the prosecution and to establish his plea. The learned counsel submits that he also did not produce Mst. Robina Bibi in his defence, therefore, the defence plea is nothing except but cock and bull story.
21. Hearkened and record perused.
22. The occurrence took place in this case on 14-11-2004 at about 4-00 p.m. In the area of Haveli Budha Singh Wali included in Gagar situated at a distance of 12-kilometer from the police station.
The deceased in an injured condition was taken to DHQ, Hospital, Kasur but being precarious was referred to General Hospital, Lahore, where, he succumbed to his injuries. It is discernible that the complainant party has made efforts to save the life of the deceased but it was extremity of the complainant party that they remained fizzled out. After the death of the deceased, the matter was reported to the police and by division of time and its calculation guides us to believe that no delay has been caused by the prosecution in reporting the matter to the police.
23. So far as the motive portion of this case is concerned, it has been seen that the learned trial Court has not believed the motive part of the prosecution case in its judgment. However, alone this fact cannot be taken to react whole of the prosecution version and its non-disproof or its disproof does not absolve the appellant from his culpable act. Even otherwise, if the defence version is seen, then the motive had hidden in the mind of the appellant on account of illicit intimacy in between Robina and the deceased.
24. Ocular testimony has been offered by P.W.8., Muhammad Shafi, the brother of the complainant and P.W.9 Muhammad Iqbal, brother-in-law of the deceased. Undoubtedly both are related inter se but fact remains that nothing has been brought on the record that they had ever any or malice and grudge in their minds to become .False witness and to make false statement. We have seen that both the P.Ws. Have been tested on cross-examination but they remained consistent and the statements of both of them are unison no material contradictions and improvements have been found therein. No doubt Muhammad Iqbal is not resident of the vicinity where the unfortunate incident took place but his arrival in the house of the complainant on the day of occurrence could not be considered as usual being related to the deceased as well as the complainant. If he is treated then he was a chance witness, then his presence in the vicinity is not objectionable on the ground of his relationship. So far as the behaviour of the P.Ws. At the time of occurrence demonstrated by them is concerned that the P.Ws. Did not attempt to rescue the deceased or to catch hold of any of the culprits from the spot is concerned, it depends upon man to man and it also varies from individual to individual. In this case, it is apprehensible that the deceased was seriously injured at the time of occurrence and to save his life was the foremost consideration of the complainant party and they acted upon the same. The deceased was taken by them to one hospital then the other but they remained unsuccessful in saving the life of the deceased. During the cross-examination, the defence has failed to bring anything against the prosecution version or in favour of the appellant. In this situation, we have been persuaded that the P.Ws. Have seen the occurrence and their presence at the place of occurrence has been established.
25. Needless to discuss the recovery of crime weapon, the same was allegedly got recovered by the appellant, suffice it to say that the reports of the Chemical Examiner as well as the Serologist are positive to the effect that homo-blood was found on its blade and the doctor has also opined that the injuries were caused to the deceased with a heavy sharp-edged weapon.
26. The medical evidence has been brought on the record through the statement of Dr. Mumtaz Ahmad (P.W.2), who observed two injuries on the body of the deceased having been caused with sharp edged weapon. The defence remains failed to bring anything in his favour from the testimony of the doctor. The ocular account is consonant/compatible with the medical evidence.
So far as the defence plea is concerned, during the trial, no doubt in the suggestive form, it has been put to the P.Ws., who replied in the negative and the I.O. Has admitted in his cross- examination that first plea of the appellant before him was that the deceased had illicit relations with Mst. Robina, the wife of Muhammad Arshad, co-accused, the brother of the appellant and on the day of occurrence, the appellant saw him in her house, when she was alone and committed the murder of the deceased due to family honour. We have also perused the police diaries as empowered under section 172, Cr.P.C. In order to search out the truth of the matter and have found that Mst. Robina Bibi appeared before the DSP during the investigation and stated that the deceased had illicit intimacy with her. We have observed that both the parties have not pleaded their case honestly. It is very unfortunate in our society that knowingly and deliberately the people speak not truth in its totality. In these circumstances; the more burden comes on the shoulder of courts to search out the truth in diving deep in the facts and circumstances of the case and its material. Some factors manifest that there was no previous enmity between the parties, the motive has been found false and contrary to that it has been brought on the record though in a dimmy and dingy manner that the deceased had illicit intimacy with Mst. Robina Bibi.
27. In all these circumstances, we have considered it safe not to uphold the capital sentence of the appellant as imposed by the learned trial Court but it has been found by us that the quantum is excessive in the circumstances of the case, therefore, the sentence of death of the appellant is commuted to imprisonment for life under section 302(b), P.P.C. The appellant shall be entitled to be benefited for the period, which he had undergone so far in this case as required under section 382- B, Cr.P.C. The amount of compensation shall remain the same as ordered by the learned trial Court.
With this modification, the instant appeal fails and is dismissed. The Murder Reference is also answered in the negative. The sentence of death of the appellant is not confirmed.
Sentence reduced.