' ABDUL SAMI KHAN, L---Umar Draz, appellant, along with Abdul Ghaffar and Muhammad Ramzan was involved in case F.I.R. No,311 dated 29-6-2004 registered under sections 302, 109 & 34, P.P.C. At Police. Station Jahanian District Khanewal and was tried by the learned Additional Sessions Judge, Khanewal, who vide judgment dated 7-8-2006. Convicted Umar. Draz appellant as under:-- "Under section 302(b), P.P.C. Sentenced to imprisonment for life with compensation amounting to Rs,50,000 to be paid to the legal heirs of the deceased Farman Ali under section 544-A, Cr. P.C.
And in default thereof the amount shall be recovered as arrears of land revenue. Benefit of section 382-B, Cr. P. C. Was extended to the appellant."
' However, Abdul Ghaffar and Muhammad Ramzan sons of Mumtaz Ali, co-accused of the appellant were acquitted.
2. The prosecution story as set forth by Muhammad Sultan complainant in the F.I.R. (Exh.PA/1) is that he is resident of Chak No,96/10-R and is driver. On the fateful day, he along with his brother Farman Ali on a Dalla went to Khanewal and when they on the way coming back to their home, at about 5- 30 p.m. They reached at Adda Fateh Muhammad, suddenly Umar Draz armed with carbine and Muhammad Arif Daultana armed with Pistol 30 bore came in front of their Dalla and halted it.
Muhammad Sultan complainant and Farman Ali de-boarded from the vehicle. Muhammad Arif fired aerial shots with pistol and Umar Draz fired a shot with carbine at Farmam Ali which missed.
Umar Draz inflicted a blow with his carbine on the back side of the head of Farman Ali who sustained injury and fell down. The complainant immediately caught hold of Umar Draz and snatched the carbine. Arif accused (Proclaimed Offender) caused injuries with pistol .30 bore on the back side of Farman Ali. In the meanwhile complainant's brother Altaf and Abdul Latif who were present at the hotel on Adda, attracted to the spot and witnessed the occurrence. Arif Dultana while making aerial firing along with Umar Draz decamped from the place of occurrence. Farman Ali was removed to the Civil Hospital Jahanian where he succumbed to the injuries.
' Motive behind the occurrence as stated by the complainant is that Muhammad Ramzan, brother- in-law of Umar Draz while he was drunk, had made aerial firing in front of the house of Imam Masjid of the Chak. Imam Masjid took it ill and left the Chak. The complainant in this regard made a complaint to Ramzan who grappled with him and due to that, relations between them became strained and on the abetment/instigation of Abdul Ghaffar and Ramzan accused, Umar Draz and Arif Daultana committed the murder of Farman Ali.
3. After registration of formal F.I.R., Muhammad Ashraf S.I. (P.W.8) conducted investigation of the case and after its completion, submitted report under section 173, Cr.P.C. In the court of competent jurisdiction. The learned Additional Sessions Judge, Khanewal, delivered copies to the accused as required under section 265-C of the Code of Criminal Procedure, formally charge-sheeted the accused, to which, they pleaded not guilty and claimed trial. Prosecution in order to prove its case, produced as many as twelve witnesses during the trial.
4. Ocular account in this case was furnished by Muhammad Sultan complainant (P.W.1) and Abdul Latif (P.W.2), Muhammad Akram (P.W.3) is witness of conspiracy hatched for the murder of Farman Ali deceased. Muhammad Ashraf S.I. (P.W.8), is the Investigating Officer of the case. Dr. Aziz Ullah Bhatti, M.O. Tehsil Headquarter Hospital, Jahanian, (P.W.4) had conducted the postmortem examination upon the dead body of Farman Ali deceased and found the following injuries on his person:--
(1) A lacerated wound measuring 3 x 1.5 cm with underlying bone exposed, on left occipital region, five cm from left ear.
(2) A bruise measuring about 8.0 x 4.0 cm on back of chest.
OPINION ' Both the injuries are ante-mortem. According to the opinion of doctor death occurred from brain edema and damage to vital centers of the brain from injury No,1 caused by blunt weapon. It was sufficient to cause death in ordinary course of nature.
5. The probable time elapsed between injuries and death was 1 to 2 hours, time between death and post mortem examination was 1 to 4 hours. Exh.PE is the correct carbon copy of post-mortem report. Exh.PE/1 is diagram showing the seats of injuries. Exh.PF is injury statement and Exh.PG is inquest report. Statements of the remaining prosecution witnesses are formal in nature.
6. On 5-6-2006 the learned Deputy District Attorney while tendering in evidence report of Chemical Examiner as Exh.PK and report of Serologist as Exh. PL, closed the prosecution evidence.
7. Dr. Sharafat Ali APMO District Headquarter Hospital, Khanewal was examined as C.W.1. He deposed that on 1-7-2004 he examined Umar Draz son of Muhammad Sharif (appellant) who was brought by the police and noted the following injuries:--
(i) A healed lacerated wound 2 x .4 cm on right side of parietal region of skull close to midline, depth cannot be accessed.
(ii) A lacerated wound 4 x 1 cm on right shin, semi healed, depth cannot be accessed.
(iii) A lacerated wound 1.5 x .8 cm wound on right shin 1 cm medial to injury No,2, crust present.
(iv) A lacerated wound 2.5 x 1 cm on right shin, cm below injury No,2.
(v) A lacerated wound .5 x .5 cm with abrasion, 6 x 2 cm on right leg latterly, 15 cm above ankle.
8. Umar Draz, appellant was examined under section 342, Cr.P.C. Wherein he opted not to depose on oath as required under section 340(2), Cr.P.C. In reply to the question, why this case against you and why the P. Ws. Have deposed against you, Umar Draz (appellant) in his statement recorded under section 342, Cr.P.C. Stated as under:- "This is a false case against me. My brother-in-law (Behnoi) Muhammad Ramzan had a dispute of Ihata with Sultan etc. Complainant party of the F.I.R. On 19-6-2004 at about 11-00 a.m. a Panchayat was convened in the village in respect of the said dispute. During the Panchayat I and the complainant Sultan exchanged hot words and 1 abused Sultan for his unfair play upon which the Panchayat was ended. On the same day at about 5-30 p.m. I was coming back to Chak after taking tea from Adda Fate Muhammad, when reached near tube well of Amin Dultana all of a sudden complainant armed with Sota, his brother Khalid, Nadeem, Shahid armed with tyre lever and hatchet etc. Came from back side on Dala and grappled with me and started inflicting injuries upon me and I received five injuries on different parts of my body. During this Nadeem gave blow of tyre lever on me but it hit Farman-deceased on his head. Similarly blow of iron rod made by Altaf upon me hit on the back of Farman deceased. Aas Muhammad and Amin son of Ghulam Farid Daultana witnessed the occurrence and rescued me. I along with witnesses went to local police station in injured condition. I was medically examined through police but subsequently the police in league with the complainant party registered F.I. R. Against me by concealment of facts and changing as well as twisting the actual facts. Story of prosecution is unbelievable, fire shots have been alleged but no injury is sustained by the deceased, allegedly snatched carbine from me at the spot but has been produced before the 1.0. After 11 days, similarly motive part is also beyond logic as despite having alleged apprehension of danger from the accused party the complainant did not report the matter to the police nor the earlier alleged occurrence giving rise to the motive was reported to the police. The alleged eye-witnesses are chance witnesses. I am absolutely innocent in this case. The F.1. R. Is the result of suppression and misrepresentation and based on mala fide. The prosecution story is full of doubts, the evidence of prosecution is self-contradictory. I have been involved in this case in order to give different colour to the occurrence in which I was injured by the complainant party. I further rely upon documents Exh.DD and Exh.DD/1 produced by my co-accused Ramzan in defence.
9. After hearing the arguments advanced by the learned counsel for both the parties, learned trial Court while evaluating the evidence available on record, found the version of the prosecution correct beyond any shadow of doubt, resulting into conviction of the appellant as stated above.
10. Learned counsel for the appellant, in support of this appeal, contends that actually this occurrence is not witnessed by Muhammad Sultan complainant (P.W.1) and Abdul Latif (P.W.2). The coMplainant Muhammad Sultan is brother of the deceased whereas Muhammad Latif P.W.2 is also related to the complainant, in this way, prosecution evidence is not only interested but also inimical whereas no independent person has supported the prosecution in spite of the fact that it took place at a busy place. The prosecution has suppressed the injury on the person of the appellant nevertheless this fact, finds mention in the statement of the Investigating Officer. Moreover, Dr. Sharafat Ali (C.W.1) had stated that the appellant was medically examined by him on 1-7-2004, brought by the police. The motive for the occurrence is shrouded, in mystery, therefore, in the attending circumstances conviction and sentence awarded to the appellant is not warranted in the eyes of law. Learned counsel lastly submitted that this is a case in which evidence is not confidence inspiring, prosecution failed to prove its case against the appellant beyond shadow of reasonable doubt, therefore, he is entitled to be extended benefit of doubt and his ultimate acquittal from the charge.
11. On the other hand learned Deputy Prosecutor-General has argued that the prosecution has proved its case to the hilt with the help of testimony of complainant Muhammad Sultan (P.W.1) and Muhammad Latif eye-witness (P.W.2). The statements of both the eye-witnesses are in line with the prosecution version on the material dimensions of this case i.e, time and place of occurrence, nomination of the accused, specific attribution of blow of Umar Draz appellant on the backside of the head of Farman Ali deceased duly verified by the medical evidence and also corroborated by the recovery of carbine, snatched at the spot from the appellant.
12. I have heard the arguments of learned counsel for the appellant as well as learned Deputy Prosecutor-General and scanned the record available on the file of this case with their able assistance.
13. The incident in the present case is admitted. The participation of the appellant in the occurrence is also not denied. However, mode and manner of the occurrence is disputed. As per prosecution, Muhammad Sultan complainant (P.W.1) along with his brother Farman was coming back towards his Chak on a Dala, Umar Draz armed with carbine and Arif Daultana armed with pistol .30 came in front of their Dala, halted it and de-boarded them from the vehicle, Umar Draz appellant fired with carbine at Farman Ali which missed, Umar Draz inflicted a blow with his carbine on the backside of the head of Farman Ali who fell after receiving the same. The complainant Muhammad Sultan (P.W.1) caught hold of Umar Draz (appellant) and snatched the carbine. The co-accused Arif Daultana (P.O.) inflicted injuries on the back of Farman Ali with .30 bore pistol when he was lying on the ground. He also made aerial firing. The injured succumbed to the injuries lateron. The version of the appellant is quite contrary to that advanced by the prosecution viz. The appellant in his statement under section 342, Cr.P.C. Took the stance that on the day of occurrence he was going to his Chak and when he reached near tube-well of Amin Daultana, all of a sudden complainant armed with sota, his brothers Khalid, Nadeem, Shahid armed with tyre lever and hatches etc, came there on a Dala and started beating him due to which he sustained five injuries on his person.
According to Umar Draz (appellant) during the scuffle, Nadeem gave blow of tyre lever on him but it hit Farman Ali deceased on his head and similarly blow of iron rod made by Altaf also hit on the back of Farman Ali deceased and the incident was witnessed by Aas Muhammad and Amin sons of Ghulam Farid. By putting both the stances, one taken by the prosecution and the other taken by the appellant in his statement under section 342, Cr.P.C., in juxtaposition, I am of the view that stance taken by the complainant is near to truth. Both the eye-witnesses of the prosecution are consistent in their statement. There is no contradiction in the statements of both the eye-witnesses on material points. Their statements are fully supported by the medical evidence. F.I.R. In the present case was recorded with promptitude, the medical evidence fully substantiates the prosecution case as the injury assigned to the appellant finds mentioned in the postmortem report and in such circumstances prosecution has been able to prove the case against the appellant beyond any shadow of doubt. The contention of the learned counsel for the appellant that the evidence of eye-witnesses cannot be believed because they are related to the deceased is without any substance for the simple reason that it is well-settled principle of law, that the evidence of a witness cannot be discarded merely on the ground of relationship, if the evidence of a related witness rings true, it cannot be disbelieved simply because witness is related to the concerned party. In this regard reliance is placed on Muhammad Waris v. The State (2008 SCM R 784), wherein it was observed by the Supreme Court of Pakistan as under:-- "It is true that Muhammad Amin P. W. Was a brother of Abbas deceased while Muhammad Hanif P.
W. Was brother-in-law of the two deceased persons but then nothing could be brought on record by the defence which could establish any ill-will, animosity or reason which could have led the said two eyewitnesses to falsely implicate the petitioner in the crime in question and to falsely substitute him for the actual offender. It has also been noticed by the two learned courts including the Hon'ble High Court that the F.I.R. In the present case had been promptly lodged and in the said Waris petitioner stood specifically named as the one who had done the two deceased persons to death and wherein the names of both the eyewitnesses also stood recorded. The names of the said two eyewitnesses could not have been mentioned in such a promptly lodged F.I.R. If they had not been with the deceased persons at the time of their death. The explanation offered by the said two eyewitnesses regarding their presence at the place of occurrence at the relevant time had been accepted by the two learned courts and no reason exisis which could persuade us to hold otherwise. Both these P. Ws were thus, natural and independent witnesses of the occurrence who had been rightly delivered by the two learned courts. Corroboration is only rule of caution and not a rule of law and if the eye-witness account is found reliable and trustworthy then there is hardly any need to look for any corroboration."
14. Now coming to the argument of learned counsel for the convict/appellant that the injury sustained by Umar Draz at the hands of the complainant party was suppressed by the prosecution all through the case. The injuries were neither mentioned in the crime report nor the prosecution witnesses of ocular account depose even a single word in this regard. However, Dr. Sharafat Ali, APMO, District Headquarter, Hospital Khanewal while appearing as C.W.1 deposed that on 1-7-2004 he examined Umar Draz son of Muhammad Sharif (appellant) who was brought by the police and noted five lacerated wounds on his body.
16. Coming to the question of motive, as set up in the F.I.R. That Muhammad Ramzan brother-in-law of Umar Draz (appellant) had made aerial firing in front of the house of Imam Masjid, while he was in drunk position, the Imam Majid took it ill and left the Chak. When the complainant in this regard made complaint to Muhammad Ramzan, hot words were exchanged between them and due to that grudge, the present incident took place. It is important to mention here that the prosecution has failed to produce Imam Masjid or any other member of the Mosque Committee to prove the alleged motive. There is no doubt that mere weakness or absence of motive for murder cannot justify the departure from awarding normal penalty of death, for murder prescribed in. Section 302, P.P.C. But in a case where the motive as such is shrouded in mystery and the circumstances of the case also indicate that despite the murder, both the parties have suppressed the truth or they have given the version which may not be plausible in stricto sensu; the absence or the weakness of the motive can be considered as an additional factor for the mitigation of the sentence. In the instant case the question of previous enmity as claimed by the prosecution has not been proved on record through tangible evidence and does not support the ocular account.
17. So, far, as the recovery of weapon of offence is concerned, according to complainant Muhammad Sultan (P.W.1) carbine P-4 was snatched by him from Umar Draz (appellant) at the time of occurrence but he produced the same to the I.O. On 30-6-2004 after the lapse of eleven days. Furthermore, the I.O. Had failed to send the carbine P-4 to the Forensic Science Laboratory.
The recovery of carbine P-4 cannot be termed as a corroborative piece of evidence and is inconsequential and does not help the prosecution.
18. In view of the above facts and circumstances of the case and after taking into consideration some material features of this I am of the view that though the prosecution story is correct to the extent of occurrence and participation of the appellant but the manner and mode of occurrence as stated by the complainant does not make sense. It is a sudden affair which took place when both the parties came across each other on the day of occurrence, so I am of the considered view that the case of the appellant does not fall under section 302(b), P.P.C., at the most, the same is covered by the provisions of section 302(c), P.P.C. In this regard reliance is placed on Syed Ali Bepari v. Nibran Mollah and others (PLD 1962 Supreme Court 502) wherein at page 507, the IH honourable Supreme Court of Pakistan has held as under:-- "Here we may observe that in a case of this type the parties do not generally come out with the true story. It is a normal incident of an "adversary proceeding" to minimize one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the table from drawing the inference that properly flow from the evidence and circumstances ...."
19. Now question arises that if the appellant is convicted under section 302(c), P.P.C., what sentence should be exact and meet the ends of justice. This case carries some mitigating circumstance and following points may help in determining this question:--
(i) The motive set up by the prosecution is unbelievable for the reason that the prosecution has failed to examine Imam Masjid or any member of the Mosque Committee to substantiate the motive as set up in the F.I.R.
(ii) The prosecution suppressed injury inflicted upon the appellant.
(iii) The carbine P-4 snatched by Muhammad Sultan complainant (P.W.1) from Umar Draz (appellant) at the time of occurrence but the same was produced before the Investigating Officer on 30-6-2004 after the lapse of eleven days of the alleged occurrence without any plausible explanation. Furthermore, the Investigating Officer had not sent the Carbine P-4 to the Chemical Examiner for its analysis.
(iv) The appellant is behind the bars since his arrest on 30-6-2004 and this period spread over more than nine years and ten months including remission.
(v) Acquittal of two co-accused of the appellant definitely itches the mind of a prudent mind.
20. In view of above captioned grounds taken as mitigating circumstances in favour of the appellant, sentence of the appellant already served would be suffice.
21. For the foregoing reasons, the sentence of the appellant is reduced from life to one already undergone by him. However, the amount of compensation, and the effect in case of default in the same, shall remain the same as ordered by the learned trial Court. With the modification in the conviction and sentence hereinbefore described, the instant criminal appeal is dismissed.
Sentence reduced.