MAMOON RASHID SHEIKH, J. - The appellant, Ghazi Khan son of Alam Sher along with his son Javed Iqbal, involved in case bearing F.I.R. No,416/2004, dated 29-10-2004, registered at Police Station Jauharabad, District Khushab, for offence under section 302/34, P.P.C., was tried by the learned Additional Sessions Judge, Khushab, in a private complaint entitled "Mansoor Haider v. Ghazi Khan and another". The learned Additional Sessions Judge through his judgment dated 27-4-2006 while acquitting the co- accused Javed Iqbal convicted the appellant under section 302(b), P.P.C. And sentenced him to death for committing qatl-e-amd of Shadi Khan, deceased, with a direction to pay a sum of. Rs,100,000/- as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default to undergo simple imprisonment for six months. The State has filed Murder Reference No,328 of 2006 seeking confirmation of the death sentence awarded to the appellant/convict and the appellant has filed the instant appeal (Criminal Appeal No,700 of 2006) against his conviction and sentence, whereas the complainant has filed Criminal Revision No,480 of 2006 for enhancement of amount of compensation. All these interconnected matters are being disposed of through this single judgment.
2. Briefly, the facts of the prosecution case are that on 29-10-2004, at about 8-00 a.m., Mansoor Haider, complainant, along with Muhammad Sadiq (P.W.10) and Muhammad Feroze (given up P.W.) was present at his Dera when his father Shadi Khan went to the North-East side of the fields to answer the call of nature. Upon his return as Shadi Khan was approaching the Dera, Ghazi Khan (appellant) and Javed Iqbal (acquitted co-accused) armed with .12 bore guns appeared at the spot. Ghazi Khan and Javed Iqbal raised lalkara that they would teach him a lesson for getting a stay order against them. Ghazi Khan fired a shot at Shadi Khan who received it on the right side of his forehead. Javed Iqbal fired a shot which landed on the left side of the forehead of Shadi Khan, Javed Iqbal again fired a shot which landed on the left part of the chest of Shadi Khan. Another shot fired by Javed Iqbal hit the outer side of right thigh of Shadi Khan as a result Shadi Khan fell to the ground. Thereafter, Ghazi Khan fired another shot which hit Shadi Khan on the back. Javed Iqbal also fired another shot which hit Shadi Khan on the back of his right thigh. Ghazi Khan again fired a shot which hit the left buttock of Shadi Khan. The complainant, Muhammad Sadiq and Muhammad Feroze, the witnesses of the occurrence, rushed towards the scene. Shadi Khan, however, died at the spot while the accused fled away.
3. The motive for the occurrence is stated to be that the deceased and the appellant were real brothers, The deceased and the appellant along with one Saeed Akhtar Wattoo obtained some agricultural land. A dispute arose in respect of the share of the appellant and the deceased in the land. The deceased instituted/filed a suit against the appellant and his co-accused through the complainant in the Civil Courts at Khushab for perpetual injunction and obtained a temporary injunction. The appellant and his co-accused were infuriated upon issuance of the temporary injunction against them, therefore, they are said to have murdered the deceased.
4. The complainant after leaving Muhammad Khan and Alain Sher to guard the dead body went to Police Station Jauhar Abad where on his statement F.I.R. No,416/2004 was registered.
5. After registration of the F.I.R. Qazi Asif Mahmood, Medical Officer, DHQ Hospital, Khushab (P W- 11)conducted autopsy on the dead body of Shadi Khan and observed the following injuries:
(1) Wound of entrance 1 1/2 x 1 1/2 cm on the right side of forehead oval shaped.
(2) Wound of entrance 1 1/2 x 1 1/2 cm on the left side of forehead oval shaped.
(3) Wound of entrance 1/2 x 1/2 cm on left side of chest just below the clavicle (left).
(4) There were 4 wounds of entrance on lateral side of right thigh measuring 1/2 x 1/2 cm each in'grouping.
(5) There were 4 wounds of exit on back of right thigh each measuring 1 x 1 cm.
(6) Wound of entrance 1/2 cm x 1/2 cm on back of left buttocks.
(7) Wound of exit on lateral side of left thigh 1 x.1 cm.
(8) There were 2 wounds of entrance on back of right thigh 1/2 x 1/2 cm.
(9) There were 2 wounds of exit 1 .x 1 cm on lateral aspect of right thigh.
(10) There were 2 wounds of entrance 1/2 x 1/2 cm on lateral aspect of right thigh.
(11) There were 2 wounds of exit 4 x 4 cm on back of right knee.
(12) There were 9 wounds of entrance on lower back (lumbosacral region) each measuring 1/2 x 1/2 cm in grouping.
' In the opinion of the doctor, all the injuries caused profuse bleeding and hypovolamic shock. All injuries were ante mortem, caused by firearm weapon and were sufficient to cause death in the ordinary course of nature individually as well as collectively. According to the doctor, the probable time which elapsed between the injuries and death was sudden whereas between death and post-mortem it was seven hours.
6. The investigation of the case ensued, the complainant was, however, dissatisfied with the conduct of the investigation by Abdul Rehman Inspector/Investigating Officer: As a consequence, the complainant also filed a private complaint titled "Mansoor Haider v. Ghazi Khan and another" in respect of the occurrence. The trial of the accused commenced on the basis of the complaint filed by the complainant. The charge was framed against the accused (including the appellant) to which they pleaded not guilty and claimed trial.
7. The prosecution in order to prove its case produced 12 witnesses. Muhammad Sarwar, Constable (P.W.1) took the dead body to the mortuary for post-mortem examination. Muhammad Khan (P.W.2) identified the dead body at the time of post-mortem examination before the Medical Officer. Muhammad ljaz, Constable (P. W.3) was the witness of recovery of gun P-3. Azhar Hussain, Constable (P.W.4) took sealed parcels containing blood stained earth and pellets etc. On 4-11-2004 and delivered the same in the office of the Chemical Examiner and the Forensic Science Laboratory, Lahore. Nisar Muhammad, Patwari Halqa Cheena, District Khushab (P.W.5) visited the place of occurrence on 2-11-2004. He took rough notes of the spot on the direction of the police and on pointation of the P. Ws. And prepared a scaled site plan Exh.PC and Exh.PC/1. Muhammad Khalil, Constable (P.W.6) was a formal witness. Said Rasool, Constable (P.W.7) was the witness of the recovery of the 7 mm rifle P-4 from the co-accused. Muhammad Riaz, A.S.I. (P.W.8) kept the sealed parcels for their safe custody in Malkhana till 4-11-2004. Mansoor Haider (P.W.9) and Muhammad Sadiq. (P.W.10) furnished the ocular account of the occurrence. Qazi Asif Mehmood, Medical Officer (P.W.11) conducted the post-mortem examination on the dead body of Shadi Khan, deceased.
Muhammad Afzal, Sub-Inspector (P. W.12) recorded the F.I.R. (Exh.PG) on 29-10-2004 (on the statement of Mansoor Haider, complainant) and thereafter proceeded to the place of occurrence, examined the dead body, prepared the inquest report (Exh.PN) and dispatched the dead body for post-mortem examination to the Civil Hospital, Jauharabad. He recorded the statements of Muhammad Sadiq and Muhammad Feroze, P.Ws. He secured the bloodstained earth, made it into a sealed parcel and took the same into possession vide memo Exh.PD. He collected five crime empties P-1/1-5 from the spot and took them into possession through recovery memo Exh.PE. He prepared the rough site plan of the place of occurrence Exh.PC. He arrested the appellant on 8-11- 2004 and obtained his physical remand. During interrogation the appellant led to the recovery_of gun P-3 double barrel which was taken into possession through recovery memo Exh.PB.
Muhammad Afzal, S.I., prepared a rough site plan of the place of recovery Ex.PE/1 and recorded the statement of the recovery witnesses. Thereafter he was transferred to Police Station Katha Saghral.
Dr. Rao Gulzar Yousaf, Medical Officer, DHQ Hospital, Jauharabad appeared as C.W.I. Abdul Rehman, Inspector, Police Lines, Jauharabad appeared as C.W.2 who, on 1-12-2004, took over the investigation of the case, arrested Javed Iqbal, co-accused and during the course of investigation recovered the 7 mm rifle P-4 on the pointation of the co-accused through recovery memo Exh.PF.
And after completing the formalities C.W.2 filed the report under section 173 of the Cr.P.C. In respect of both accused. Mansoor Haider, complainant, after tendering the report of the Chemical Examiner, Exh.PP and that of the Serologist, Exh.PQ closed the prosecution evidence.
8. At the end of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. He denied and dismissed each piece of prosecution evidence. In reply to the question, "Why this case against you and why the P.Ws. Deposed against you?" he said: "Due to enmity while the P. Ws. Are also closely related to the complainant. In fact, Shadi Khan deceased wanted to grab our land. I was present on my land when Shadi Khan deceased duly armed with firearm reached there and fired at me. Owing to firearm injuries sustained . By me at the hands of Shadi Khan deceased I remained admitted in the hospital. When Shadi Khan happened to die, false story of my aggression was cooked up and I was falsely challaned in this case."
9. The, appellant did not opt to record his statement under section 340(2) of the Cr.P.C. He also did not produce evidence in his defence. At the. Conclusion of the trial, the appellant was convicted and sentenced as noted above. The co-accused of the appellant namely Javed Iqbal was acquitted of the charge by the learned trial court. The complainant filed an appeal against the acquittal of the co-accused. The said appeal was, however, dismissed.
10. The learned counsel for the appellant contends that the F.I.R. Has been lodged falsely against the appellant. The main motive, if any, would have been against the complainant who was the plaintiff of the suit filed against the appellant in respect bf the land in dispute which became the matter in issue and as a result of which the occurrence took place. The complainant, however, did not receive any injuries whereas the deceased father of the complainant statedly received many firearm injuries. It is contended that no reasons for convicting the main accused were brought on the record. The learned counsel further contends that during investigation it had been clearly brought on record that the dead body of the deceased was found lying in the land of the appellant and similarly five crime empties of .12 bore gun were recovered from the land of the appellant. It is clear that the appellant did not cross the boundary of his land. The learned counsel has mainly emphasized on the point that Javed Iqbal, the co-accused of the appellant, was assigned possession of a similar .12 bore gun and assigned different injuries with that gun on the deceased.
But during investigation he was found to be innocent and the Investigating Officer came to the conclusion that at the relevant time he was not present at the place of occurrence, therefore, his name was placed in Column No,2. On 26-2-2005 that is to say almost four months after the occurrence the complainant narrated the same story which was brought on record and then after trial Javed Iqbal, co-accused, was acquitted by the learned trial Court. The appeal filed against the acquittal of Javed Iqbal, co-accused, was dismissed. It is further contended that one thing is clear that four witnesses had not come to the Court with clean hands as they assigned the same role to the appellant, as was assigned by them to his acquitted co-accused, for conviction of the appellant for a crime entailing capital punishment.
11. The learned counsel for the appellant-further contends that the appellant was also found to be injured immediately after the occurrence. The appellant appeared before the doctor and was medically examined within three hours of the occurrence. The appellant was found to have received two firearm injuries, one on the scapula region and the other on the buttocks. It is contended that thereafter the appellant remained in the hospital for treatment and the factum of the appellant having received injuries was suppressed by the prosecution even though the name of the doctor who examined the appellant was duly mentioned in the calendar of witnesses. It is further contended that in these circumstances and keeping in view the fact that the dead body was found lying in the land of the appellant it appears that the other side was the aggressor. Five crime empties were recovered from the place, of occurrence and later a .12 bore gun was recovered but there is no reasonable cause or evidence to indicate that the gun and the crime empties were sent to the Forensic Science Laboratory. It is contended that the report was intentionally concealed to suppress the original facts that the deceased was aggressor in the occurrence and he fired at the appellant in the first instance. Lastly contends that no specific fatal injury has been described by the doctor and keeping in view that certain specific injuries were assigned to the acquitted co-accused, therefore, it cannot be established with certainty that who is responsible for killing the deceased. The learned counsel relies on the judgment reported as Haji Inayat Ali v. Shahzada and others (2008 SCM R 1565).
12. The learned counsel further relies on the judgments reported as Muhammad Akram v. The State (2012 SCM R 440) wherein it has been held that while disbelieving the witnesses certain accused are acquitted then the same set of witnesses cannot be relied upon for the conviction of the appellant.
13. The learned counsel further submits that during cross examination'the appellant had brought on record his plea but that has not specifically been taken in his statement under section 342 of the Cr.P.C. And in such circumstances the Court can make an inference in favour of the appellant.
Relies on the judgment reported as Mushtaq Hussain and another v. The State (2011 SCM R 45).
14. The learned counsel for the complainant controverts the stance of the learned counsel for the appellant. The learned counsel submits that the occurrence took place in broad day light in the month of October. Both parties are closely related. The deceased was the brother of the appellant and the complainant is the son of the deceased. The identity of the accused was not a matter in issue. The motive is admitted by both sides. The time of occurrence, the place of occurrence and the weapon used are admitted by both sides. Further submits that the Investigating Agency did not cooperate with the complainant as a result mala fide the name of Javed Iqbal, co-accused, was placed in Column No,2. Feeling dis-satisfied with the investigation the complainant filed a private complaint. The same version which was mentioned in the F.I.R. Was narrated in the complaint. It is contended that in these circumstances the F.I.R. Gains importance as it was recorded just after three hours of the occurrence at Police Station Jauharabad which is about 30 k.m. Away from the place of occurrence.
15. Further submits that the police did not cooperate with the complainant and it was for the same reason the empties and the gun were not sent to the Forensic Science Laboratory with a view to damaging the case of the prosecution.
16. The co-accused was given the benefit of doubt and he was found innocent but the present appellant is not entitled to any such exception especially when his case is distinguishable from his co- accused, firstly on the ground that the appellant was found injured inasmuch as he had received two firearm injuries. Even according to the appellant's own version the site plan indicates the place from where the co-accused fired from a distance of 175 ft. And no crime empty was recovered from that place. The doctor observed that the deceased received all injuries from shots which were fired from same distance. The prosecution proved its case beyond any reasonable doubt.
17. The learned counsel for the complainant further submits that the dispute was mainly between two elders i.e, the deceased and the appellant, as such, they were involved in the matter. The learned counsel, further submits that even according to the defence the appellant only received two pellets injuries but the injuries on the person of the deceased were much more in number and it cannot be said that the same were the result of a single fire. Further contends that such a difference in the number of injuries leads to the inference as to who was the aggressor.
18. The learned counsel relies on the judgement reported as Umar Hayat v. The State (2007 SCM R 1296) wherein the principle of falsus in uno falsus in omnibus was rejected and rather principle of sifting of grain from chaff was adopted,
19. Further contends that the appellant has not taken any specific stance so he is not entitled to any exception. It is the duty of the accused to prove the case if he wants to bring the same under exception which is lacking in this case. Prays for dismissal of the appeal.
20. Heard. Record perused.
21. The deceased and the appellant were related to each other in that they were real brothers. The acquitted co-accused is the son of the appellant. The complainant is the son of the deceased that is to say the nephew of the appellant. Meaning to say thereby that the parties are closely related to each other. The place of occurrence is the adjoining A pieces of land independently owned by the parties. The complainant, the deceased and some of the P. Ws. Were stated to be present at the complainant's Dera at the time of the occurrence and the deceased is stated to have gone to the North-East side of the fields to answer the call of nature. Upon his return, however, the appellant and the co-accused appeared at the spot and whilst raising lalkara that they would teach the deceased a lesson for obtaining a stay order against them both accused are stated to have fired at the deceased with .12 bore guns which the accused were said to be in possession of. The deceased received multiple injuries out of which some were attributed to the appellant. In the opinion of the doctor who conducted the post-mortem examination all injuries to the deceased caused profuse bleeding and hypovolamic shock. All injuries were stated to be ante mortem caused by firearm weapon and were sufficient to cause death in the ordinary course of nature individually as well as collectively.
22. The occurrence is stated to have taken place at around 8-00 a.m. The F.I.R. Was lodged at 11-15 a.m. That is to say around three hours from the time of occurrence at Police Station Jauharabad which is stated to be 30 k.m. From the place of occurrence. It would, therefore, seem that the F.I.R.
Was not lodged with undue delay.
23. The investigation in the case ensued and the accused were arrested. The appellant was arrested on 8-11-2004, whereafter he led to the recovery of the gun which is stated to have been used by him in the occurrence. Five crime empties were recovered from the spot.
24. In so far as the motive is concerned, it has been contended by the prosecution that the deceased and the appellant being real brothers purchased a piece of land along with one Saeed Akhtar Wattoo. A dispute, however, arose between them vis-a-vis their respective shares in the land so purchased. The deceased was, therefore, constrained to file a civil suit on behalf of the complainant (who was a minor at the relevant time) against the appellant and his co-accused in the Civil Courts at Khushab for perpetual injunction and was able to obtain a temporary injunction.
The appellant and his co-accused are stated to have been infuriated upon issuance of the temporary injunction against them, therefore, they attacked the deceased and murdered him.
25. The learned counsel for the complainant concedes the above position and contends that the factum of the deceased having filed the suit and obtaining the temporary injunction had infuriated the appellant to such an extent that he murdered the deceased.
26. As said above, the medical evidence supports the version of the prosecution. It may be further noted that during the course of investigation of the case the complainant lost faith in the investigation due to the fact that the co-accused was declared to be innocent and his name was placed in column 2 of the challan. As a consequence, the complainant filed a private complaint and the trial of the case was conducted as a complaint case wherein the complainant narrated the same story as given in the F.I.R. The result was the conviction and sentencing to death of the appellant and acquittal of the co-accused.
27. P.W.10 is the brother of the deceased and the appellant. He has deposed against the appellant, therefore, lending credence to the prosecution case.
28. Under the circumstances, we are not persuaded by the arguments of the learned counsel for the appellant that the appellant is not guilty of the offence he has been convicted of. We, therefore, do, not differ with the finding of the learned trial court vis-a-vis the conviction of the appellant under section 302(b) of the P.P.C. However, there are certain aspects of the case which have remained unexplained. Admittedly the appellant was also injured during the course of the occurrence. It has not been explained as to how the appellant received the injuries. It has, however, been brought on the record that soon after the occurrence the appellant was seen by a doctor and was medically examined within three hours of the occurrence. The appellant was found to have received two firearm injuries, one on the scapula region 6 cm below the left shoulder joint and the other on the left hip joint. The appellant remained hospitalized for receiving treatment, however, the complainant suppressed the evidence of the doctor who had examined the appellant. The said doctor appeared as CW-1 and attested to the fact of the appellant having received firearm injuries on the day of the occurrence. It, therefore, appears that there was an exchange of fire between the parties during the course of which the deceased received fatal injuries and died. The learned counsel for the complainant has been unable to explain the cause of injuries received by the appellant.
29. Another factor which is worth noting is that the dead body of the deceased was recovered from that part of the land which. Belonged to the appellant. This fact has been admitted by the complainant in, his cross-examination. It is further worth noting that even though five crime fG empties were recovered from the place of occurrence and a .12 bore gun was also recovered from the appellant but these items were not sent to the Forensic Science Laboratory for reasons best known to the prosecution.
30. It is a settled principle of law that whilst convicting and sentencing an accused the Court has to consider the prevailing circumstances and if there is any doubt the benefit thereof has to be given to the accused. The Hon'ble Supreme Court of Pakistan in the judgment reported as Israr Ali v. The State (2007 SCM R 525) has held that "accused persons are entitled to extenuating benefit of doubt on the question of sentence". This judgment has been followed in the judgment reported as Rasheed alias Sheeda v. The State (2011 PCr.LJ 129).
31. In view thereof the award of death sentence to the appellant under section 302(b) of the P.P.C.
Would appear to be excessive. We, therefore, whilst maintaining the conviction of the appellant under section 302(b) of the P P.C. Convert his death sentence into that of imprisonment for life. The appellant shall, however, be liable to pay compensation as ordered by the learned trial court.
32. With the above modification in the impugned judgment the appeal filed by the appellant (Criminal Appeal No,700 of 2006) stands dismissed.
33. As a consequence, Criminal Revision No,480 of 2006 also stands dismissed.
34. Resultantly, the death sentence awarded to the appellant is NOT CONFIRMED and the murder reference i.e, Murder Reference No,328 of 2006 is answered in the NEGATIVE.