' MUHAMMAD QAS1M KHAN, J.---Ashraf Ali alias Jamat Ali accused/appellant, along with Abdul Rasheed, Mst. Andaz Mai, Muhammad Attiq alias Taqi and Muhammad Habib faced trial before learned Additional Sessions Judge, Khanewal, in case F.I.R. No,144 of 2005 dated 21-4-2005 under sections 302/148/149, P.P.C. Registered at Police Station Jahania, District Khanewal, and on conclusion of the trial, vide judgment dated 25-4-2007, while acquitting all the other accused, the appellant was convicted and sentenced as under:-- CONVICTED under section 302-b, P.P.C. And sentenced to death, with further orders to pay Rs, 100,000 as compensation to the legal heirs of the deceased, in case of default in payment thereof to suffer one year' simple imprisonment.
' However, benefit of section 382-B, Cr.P.C. Was not given to him.
2. Criminal Appeal No,201 of 2007 has been filed by Ashraf Ali through counsel to assail his above conviction and sentence, whereas, Criminal Appeal No,230 of 2007 has been filed by Muhammad Rafiq/complainant against acquittal of Mst. Andaz Mai, Muhammad Attiq alias Taqi and Muhammad Habib/respondents. Murder Reference No,312 of 2007 has been sent by the learned trial court in terms of section 374, Cr.P.C. All these matters are being decided by this single Judgment.
3. Briefly the prosecution case, as unfolded through F.I.R. No,144 of 2005 (Exh.PB) is that on 21-4-2005 Muhammad Rafiq (P.W.2) complainant along with Kamal Din and Muhammad Yasin went to see his sister at Chak No,140/10-R. At about 9:30, Muhammad Aslam brother-in-law of the complainant was preparing to go out of his house on a donkey cart to earn his livelihood, suddenly Muhammad Ashraf armed with repeater, Attiq and Habib armed with .12-bore guns, Abdul Rasheed empty handed and his wife Mst. Andaz Mai armed with hatchet arrived there. On the noise, the complainant along with P. Ws. Attracted to the street and saw that Abdul Rasheed was raising Ialkara, whereupon Ashraf Ali made fire shot which hit Muhammad Aslam on his head; Attiq also made two successive fire shots which landed on the right shoulder and front side of chest of Muhammad Aslam; fire shot of gun made by Habib hit left arm of Muhammad Aslam, who fell down. While Muhammad Aslam was lying on the ground, Mst. Andaz Mai inflicted a hatchet blow on the back of Muhammad Aslam. Thereafter all the accused while brandishing their respective weapons fled away from the spot. Muhammad Aslam succumbed to the injuries at the spot.
' The motive as alleged in the F.I.R. Is that two years prior Muhammad Aslam caused fracture of the leg of Mst. Andaz Mai due to her immoral behavior and by the interference of relatives compromise, was affected but Mst. Andaz Mai nurtured grudge and for this reason with common intention all the accused committed murder o. Muhammad Aslam.
4. After the occurrence, Muhammad Rafiq/complainant appeared before Muhammad Afzal Sub- Inspector (P.W.8) at Police Post Thatha Sadiqabad and got recorded his statement as Exh.PB.
Thereafter P.W.8 sent Exh.PB to the police station for formal registration of F.I.R. The Sub-Inspector proceeded to the spot, inspected dead body in presence of the P. Ws. Kamal Din and Muhammad Yasin and complainant; prepared injury statement Exh.PG and inquest report Exh.PH; collected blood stained earth from the spot and secured the same vide recovery memo Exh.PC; collected five empties of .12-bore P.5/1-5 and took the same info possession vide memo Exh.PD, prepared rough site plan Exh.PJ. Further investigation was conducted by Amar Khan, Inspector, who took the last worn clothes of the deceased in to possession vide memo Exh.PA and on 22-4-2005 arrested Mst. Andaz Mai and Abdul Rasheed Mst. Andaz Mai produced before him hatchet P-6, which he took into possession vide recovery memo Exh.PK. On 9-5-2005 he arrested Ashraf (appellant), who led to the recovery of repeater P-7, which was taken into possession vide recovery memo Exh.PL. On 25-5-2003 he also arrested Attiq and Muhammad Habib accused. On 1-6-2005 Attiq got recovered gun P-8, which was to into possession vide recovery memo. Exh.PM. After completion of investigation the accused were sent to Court to face trial.
5. On submission of report under section 173, Cr.P.C. The accused persons were charge sheeted, to which they pleaded not guilty and claimed to be tried. The prosecution examined fourteen witnesses which include the statements of Muhammad Afzal, Sub-Inspector (P.W.8) and Amar Khan, Inspector (P.W.12) who being the Investigating Officers deposed about the investigation, the detail whereof has been given above. Muhammad Rafiq complainant (P.W.2) and Haji Kamal Din (P.W.3) deposed about the ocular account of the occurrence, Khizar Hayat (P.W.1) appeared in the witness box to depose about the identity of the dead body of deceased Muhammad Aslam. Dr. Muhammad Aslam P.W.6 conducted autopsy on the dead body of Muhammad Aslam and observed the following injuries:-
(1) A lacerated wound 9 cm x 3 cm x underlying bone exposed on Rt.Side of head 7 cm from Rt.
Ear, tissue loss was present, blackening and burning of margins was present.
(2) A circular wound 2 cm diameter on Lt.Side of chest blackening and burning of margins was present.
(3) A circular wound 1 cm diameter on Lt. Side of wound was skin deep, blackening and burning of margins was present. Injury No,3 is 2 cm in fero lateral to injury No,2.
(4) An ovoid wound 1.2 cm x .8 cm x skirt deep on Lt. Side of chest, injury No,4 was 1 cm from No,2.
Blackening and burning was present.
(5) A circular wound 6 cm diameter on Rt. Shoulder joint blackening and burning was present, tissue loss was present, entry wound.
(6) A circular wound 2.5 cm diameter on back of Lt. Chest, blackening and burning was not present, exit wound.
(7) An incised wound 2.5 cm x 1 cm x bone deep on back of Rt. Chest x just lateral to mid line.
(8) A circular wound 1 cm diameter on dorsum of fore-arm, blackening and `burning was present, entry wound. Wound was 3 cm above left wrist joint.
(9) A circular wound 1 cm diameter on dorsum of , fore arm, wound is 0.5 cm from injury No,8.
Blackening and burning of margins was present.
(10) A circular wound 2 cm diameter on radial side of Lt. Fore-arm 6 cm from wrist joint, it was communicating with injuries No,8 and 9, blackening and burning of margins was not present.
' The rest of the prosecution witnesses are formal in nature and they made statements about their respective functions performed during the course of investigation. On close of oral evidence, the learned DDPP tendered in evidence the reports of Serologist Exh.PN and Exh.P0, report of Forensic Science Laboratory Exh.PQ; report of Chemical Examiner Exh.PR and with that case of the prosecution was closed. The accused persons when examined under section 342, Cr.P.C. They denied the entire prosecution evidence and Ashraf Ali alias Jamat Ali accused/appellant in answer to a question "why the case against you and why the P.Ws. Have deposed against you" made reply to the following effect:- "`The case is false and fabricated. All the P.Ws. Are inter se related, interested and inimical towards me and my co-accused. They have deposed falsely. They were not present at the place of occurrence nor there was any occasion of their presence at the spot. The reason alleged by P.Ws.
For their presence at the spot for seeing the ailing wife of the deceased is incorrect. The prosecution has not proved it. The P.Ws. Are of far off places.
The deceased while under the influence of liquor had become out of senses as usual and was committing Ghul-Ghubbara, in the street and also was abusing the people. My father Abdul Rasheed co-accused, now dead, admonished and restrained him from his mischievous activities, being elder brother of the deceased. The deceased flared up, took hatchet from the Rehri, threatened my father and rushed towards him: My father Abdul Rasheed entered in his house to get rid of the deceased but the deceased while abusing entered our house while chasing my father. In our house the deceased wanted to kill my father with hatchet. My father raised hue and cry saying Bachao Bachao. I only was present in the house. I came out of the room to save my father and tried to restrain the deceased but he challenged me and rushed towards me to attack upon me with hatchet. I finding no way out to save myself, my father and honour of the house, fired with the gun, of our relative lying in our house. The pallets accidentally hit on the body of deceased. The deceased rushed out of the house along with hatchet and fell in the street where he succumbed to the injuries. Muhammad Attiq, Itabib and Mst. Andaz Mai co-accused were not present in the house nor they took part in the occurrence. My father informed the respectable of the village about the actual facts, who informed the police. My father and myself appeared before the police along with the gun and apprised him of the real facts of the case. All the respectable of the village supported our version, that is why no local P. W. Was cited for occurrence in recovery proceedings. Motive alleged by the prosecution is also false and it has not been proved by the local and independent P. Ws. My father also gave the addresses, of the relatives of the deceased i.e, P. Ws. They were called from their respective villages. The wife of the deceased wasalso called along with relatives as she with her brothers dues to the mischievous activities of was livingthe deceased. The 1.0. Sent the dead body to, hospital. He took the hatchet from near dead body. He also took may father and me along with gun and also the P. Ws. To police station. The Roznamcha was stopped. The complainant with due deliberation and consultation with I.O. Got registered this, case that is why the post mortem was conducted later in the evening. The I.O. Delayed my arrest to show his efficiency. In the court I came to know that due to the connivance with complainant party that I.O. Had not recorded our true version and showed the-place of occurrence out of our house, to strengthen the prosecution case. As is clear from the above circumstances, I committed no offence. I am innocent."
' However, neither the accused persons appeared to depose under section 340(2), Cr.P.C. Nor produced any defence and on conclusion of the trial, above conviction and sentence was recorded against Ashraf alias Jamat Ali, whereas, his co-accused were acquitted of the charges against them.
6. It is argued by learned counsel for the accused/appellant that all the prosecution witnesses apart from, being closely related to the deceased and inter se, also hail from a distant area. The learned counsel while referring to the statements of the eye-witnesses argued that it is admitted position that they were residents of about fourteen kilometers away from the place of occurrence, as such, their presence at the place of occurrence is unnatural. Further argued that no person from the locality was associated during investigation when alleged recoveries were being effected and even otherwise, according to the learned counsel, the manner with which the recoveries were allegedly effected makes the case of the prosecution highly doubtful. The learned counsel for the accused/ appellant further argued that even the motive set out in the F.I.R. Could not be proved by the prosecution. It was therefore, concluded by ale learned counsel that since the prosecution has miserably failed to prove its case, the statement of accused/appellant recorded under section 342, Cr.P.C. Has to be taken into. Consideration and as the appellant Muhammad Ashraf reacted in sudden and grave provocation to rescue his life as well as the life of his father, the conviction and sentence, if any, could be recorded accordingly.
7. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant opposed the criminal appeal and argued that it is a case of promptly lodged F.I.R., the broad-daylight occurrence took place near the house of the deceased, the witnesses are although related to the deceased but they have justified their presence at the place of occurrence at the relevant time. Further argued that association of witnesses of the locality in recovery proceedings is not essential in each and every case, as in such like serious offences independent witnesses of the locality hesitate to become witnesses. The learned counsel for the complainant added that in the F.I.R. Specific motive had been taken and in their statements before the court, both the witnesses have made statements in line with the contents of the F.I.R., and even otherwise, according to the learned counsel non-proof of motive is not fatal to the prosecution for the reason that ocular account is consistent. The learned counsel for the complainant, therefore, prayed for dismissal of the appeal.
8. We have heard the arguments of learned counsel for the parties and perused the record.
9. So far as the date and time of the alleged occurrence is concerned, the same is almost admitted by the accused/appellant himself during his statement before the court under section 342, Cr.P.C.
However, the place of occurrence, the place where deceased received injuries and the manner in which the occurrence took place are disputed facts. In their statements (examination-in-chief) before the court Muhammad Rafiq complainant (P.W.2) and Kamal Din (P.W.3) remained consistent to some extent and also showed unanimity on the point that they were the permanent residents of a place about fourteen to fifteen kilometers away from the place of occurrence, as such, not being the residents of the area they are not the natural witnesses, therefore, their statements were to be considered with extra caution.
10. It has been observed that there is not a single word in the F.I.R. To explain the presence of the witnesses at the place of occurrence. However, during trial in their statements in order to establish and justify their presence at the place of occurrence at the relevant time, both the witnesses have taken a specific stance by improving their earlier statements recorded by the police that Mst.
Salma (sister of the complainant) was ailing and they had come there to inquire about her health.
Thus, the ailment of Mst. Salma was taken as a ground to justify the presence of the witnesses at the place of occurrence and this fact could be very conveniently established by the prosecution.
But surprisingly neither the alleged ailing lady was produced before the Investigating Officer or the Court nor any medical certificate of the said lady was exhibited in court so as to establish that the lady was really ailing and they had assembled there to inquire about her health. Once it is admitted by the prosecution witnesses themselves that they were not the residents of the locality, and by the above lacuna in the prosecution ,case they also failed to establish their presence at the place of occurrence, their truthfulness becomes extremely doubtful, especially for the reason' that during cross-examination they deviated each other on a material aspect, as according to complainant P.W.2 they reached the house of the deceased at 8-00 a.m., whereas, Kamal Din P.W.3 deposed that they reached there at 9-00 a.m.
11. Further, it is tar be seen that according to scaled site plan of the place of occurrence (Exh.PE), the distance between Point-1 (the place - where deceased is reported to have received fire arm shot and dead body was taken into custody), and Point-3 (the place from where the shots are shown to have been fired by Ashraf accused/appellant) as well as acquitted accused, is more than thirty feet, whereas, according to post mortem report by Dr. Muhammad Akram (P.W.6) the fire arm wounds available on the dead body, also carried burning and blackening. During cross- examination the doctor further stated that blackening and burning can be found when the fire is shot within a distance of three feet, injuries Nos.2, 3 and 4 can be result of one fire shot and that injury No,7 can be caused by a piece of brick. The prosecution witnesses have tried to adjust the distance from Point-1 to Point-3, as Muhammad Rafiq P. W2 has stated that at the relevant time accused were at a distance of 15 feet from the door of -house of Abdul Rasheed and Kamal Din P.W.3 stated that when Ashraf fired the shot, Muhammad Aslam deceased was at a distance of 10/15 feet. But even if this part of their statement is believed even then the distance between the deceased and the accused would remain more than 10/15 feet and by such distance blackening and burning could not exist around the fire-arm wounds. We are conscious of the fact that laymen could not give exact distance between the place where the deceased was present or where the accused made firing, but their opinion could be different only to some extent, whereas, in this case the distance given by the P. Ws. Before the trial is noticeably different. Thus, even the dishonest improvement in statements by the prosecution witnesses have not been beneficial to the prosecution. There is yet another aspect of the matter i.e, according to the scaled site plan Exh.PJ Mst. Andaz Mai (one of the acquitted accused) was just at a distance of five feet from the place where deceased was alleged to be present and was fired at. If that had been so; and the fires were shot by the accused/appellant and acquitted co-accused from such a distance, it is not believable that Mst. Andaz Mai would not receive even a single pellet injury. All these factors are when put in juxtaposition, lead us to an irresistible conclusion that as a matter of fact neither of the prosecution witnesses were present at the place of occurrence at the relevant time, therefore, their presence at the place of occurrence at the relevant time is disbelieved and their testimony is thrown out of consideration.
12. As regards the motive part, it is specific stance< of the prosecution witnesses that about two years back because of indecent activities of Mst. Andaz, sister-in-law of the deceased, her leg was fractured by Muhammad Aslam deceased and because of that grudge the accused persons committed this offence. Firstly, it has been noticed that said alleged occurrence took place there than two years back and per prosecution story compromise between the parties was effected, hence after such a long period and even after the compromise, the alleged motive does not appeal to reason, especially when as admitted' by the prosecution witnesses themselves said incident Was never reported to the police, nor even any person from the locality was produced either before the police during the course of investigation or during trial before the court, to prove such earlier incident; which allegedly formed basis of the motive. We are conscious of the fact that it was not essential for the prosecution to come out with a specific motive, but there is abundant law on the point that where a motive is alleged but the same remains unproved, then the prosecution has to suffer. Here in this case, it can safely be said that prosecution has even failed to motive part of the incident and as to what happened immediately before the occurrence has been concealed by the prosecution.
13. While discarding the statements of the prosecution witnesses and also the motive part of the alleged occurrence, we are left with the statement of the accused (reproduced above), wherein, he admitted to have fired at the deceased, but he alleged the occurrence to have taken place in a totally different, manner and with a different background. Material contradictions appearing in the statements of the prosecution witnesses and even the conflict amongst the ocular account and the medical evidence go a long way to support the stance taken by the accused/appellant in his statement under section 342, Cr.P.C. It is specific position of the accused/appellant that deceased while armed with hatchet entered his house to kill his father, when the accused/appellant tried to restrain him, the deceased rushed towards him to attack, whereupon, gun fire was shot by accused/appellant to save his life as well as life of his father. This stance appears to be closer to reality when we see that according to the medical evidence, the fire arm injuries found on the dead body carried burning and blackening, which could only be possible when the fire is shot from a distance of three to four feet, whereas, as discussed above, the scaled site plan disclosed it to be a distance of about thirty eight feet and although the prosecution witnesses tried to cover up this distance, yet they could not bring their statements in line with the said site plan: Furthermore, non- proof of motive also lends support to the statement of the accused/appellant and it can very conveniently be observed that in fact there was no previous hostility amongst the parties and the matter erupted at spur of moment without their being any premeditation on the part of the accused/appellant and it appears that the accused/appellant reacted due to sudden and grave provocation in order to save his life as well as the life of his father.
14. Taking stock of the above situation, we hold that defence plea C taken by the accused/appellant is not only plausible but also borne out from the circumstances of the case, as there is no other reason available on record as to why he would launch an assault on the deceased, who also happened to be his real paternal uncle. It therefore, becomes quite obvious the accused/appellant reacted due to sudden and grave provocation in order to save his life as well as the life of his father. Consequently, we partly allow this Criminal Appeal No,201 of 2007, set aside the conviction of the accused/appellant under section 302-b, P.P.C. And convict him under section 302(c), P.P.C. Considering that at the time of recording of his statement under section 342, Cr.P.C. On 16-4-2007 the age of the accused/appellant has been recorded as nineteen years, as such, at the time of occurrence i.e, 21-4-2005, he would be hardly eighteen years of age, therefore keeping in mind his tender age, the accused/appellant might have been forced by harshness of raw youth, a lenient view is taken and the accused/appellant is sentenced to undergo simple imprisonment for twelve years. Benefit of section 382-B, Cr.P.C. Is extended. The record of the trial Court be remitted immediately and the case property if any shall be disposed of in accordance with law.
15. Since the prosecution case has been disbelieved and the conviction/sentence against the accused/appellant Ashraf has been recorded pursuant to his statement under section 342, Cr.P.C., wherein, he has taken a specific stance that he was lonely present in the house when assault was launched by the deceased and this stance weighed with the learned trial Court as well when Mst.
Andaz Mai, Habib and Attiq co-accused of the appellant were acquitted, therefore, we see no infirmity so far as acquittal of said co-accused is concerned. Criminal Appeal No,230 of 2007 therefore, is dismissed.