QAZI MUHAMMAD AMIN AHMED, J:- Prosecution case is structured upon First Information Repot (Ex.PA) which is lodged straight at Police Station Rohilanwali District Muzaffargarh by Ghulam Haider (PW-1) against his real brother Khadim Hussain and his sons namely Munir Ahmad Appellant and Shakeel Ahmad; prosecution case set up wherein it is alleged that during the fateful night i.e between 7/8.9.2003 his son Fida Hussain, hereinafter referred to as the deceased, was sent for by his brother Khadim Hussain through Shakeel Ahmad; as the deceased did not return till late the complainant accompanied by his son Mukhtar Ahmad, brother Manzoor Hussain and one Bashir Ahmad went to the house of Khadim Hussain, where after hearing commotion, he went inside to see in the light of bulb, the deceased under assault, the appellant was inflicting repeated soti blows. Upon arrival of the PWs, the accused decamped from the scene.
Motive cited for the occurrence is that Khadim Hussain, persuaded the deceased to marry his daughter Kalsoom Akhtar who declined to oblige him as he aspired for a bond with some other cousin. According to the complainant, in this backdrop, the deceased was deceitfully taken to the house of Khadim Hussain, to avenge his refusal.
2. The Investing Officer during spot inspection, secured bloodstained earth vide memo (Ex.PC) and an electric bulb (P-1) vide memo (Ex.PD).
The deceased in injured condition was rushed to RHC, Rohilanwali who succumbed to his injuries.
Dr. Muhammad Iqbal (PW-4), conducted autopsy and noted as many as 33 injuries which included contusions, lacerated wounds and incised wounds on almost all over the body. It's a case of massive violence inflicted upon the deceased. Weapon used were opined as blunt as well as sharp edged. The appellant after his arrest, pursuant to disclosure led to the recovery of bloodstained hatchet (P-2) on 11.9.2003 followed by Khadim Hussain on 18.09.2003 who led to the recovery of Sota (P-3); Shakeel Ahmad got recovered the weapon of offence i.e Sota (P-4) on 18.09.2003. After the conclusion of the investigation, accused were sent to face trial; they were indicted on 02-01- 2004 when they claimed trial.
3. Prosecution in order to bring home charge against the accused produced as many as 9 witnesses besides relying upon the forensic reports, which were confronted with a denial by the appellant. Dr. Muhammad Rafique appeared as DW-1. The appellant took the following plea:- " PWs are related interse out of malice and grudge they have involved me and the whole family I am disable person I was appointed as peon in Education department from the Quota of disable person and I am working at Gujranwala School Alipur. On the night of occurrence I started from Alipur and reached home at Mauza Ponta Malna late due to rain fall and entering my house I heard the shout of my sister inside the room who was sleeping in the room due to rain as I entered in room Fida Hussain who was armed with stick hit on my head I fell down. It was dark night there was no light, even in neighborhood no light, my sister Kalsoom Mai thinking that I am dead out of grave sudden I small wodden plank have sharp edge and started striking Fida Hussain who fell down, when I regained senses I saw that Fida Hussain is injured seriously soon I went to the garden whereby father Khadim Hussain is peon watchman. I told him about the occurrence who rang the police who reached at the spot Fida Hussain was still alive, Police took him in Dala and I and my father reached at RHC, Rohallan Wali, where Muhammad Rafique M.O attended the injured the Fida Hussain meantime Police also called the relative of the injured Fida Hussain, due to loss of blood Fida Hussain could not survive as there was no arrangement of blood at RHC, Rohalwan Wali, my brother Shaqeel Ahmad is juvenile who is getting Education in mosque where he resides. On the night of occurrence he was not at home. PWs are our relatives they have concocted a false story within the connivance of Police and have tried to involved all of our family. I am innocent.
4. Upon conclusion of the trial, vide impugned judgment dated 27-11-2004, Munir Ahmad, present appellant was convicted under Section 302 (c) PPC and sentenced to 25-years SI with benefit of Section 382-B Cr.P.C. however, Khadim Hussain co-accused was acquitted; Shakeel Ahmad co- accused was separately tried as juvenile, he too was acquitted vide judgment of even date.
Appellant has challenged his conviction through Crl. Appeal No.46 of 2005. Crl. Appeal No.196 of 2005 filed by the complainant impugns vires of acquittal of Khadim Hussain and Shakeel Ahmed co-accused; these are being decided together.
5. Learned counsel for the appellant contends that the case of the prosecution is fraught with contradictions, inconsistencies and improbabilities and as such the learned Court below erred in placing reliance thereon in a case involving capital charge; that motive cited in the First Information Report is false and fallacious; that witnesses are closely related and despite availability none from the locality was associated to support the prosecution case and that occurrence being a night affair possibility of mistaken identity cannot be ruled out. Lastly it is argued that ocular account is contradicted by medical evidence and prosecution witnesses resorted to massive improvements duly confronted during the trial.
6. Conversely, the learned D.P.G. assisted by learned counsel for the complainant argued that prosecution had successfully proved its case beyond a shadow of doubt through ocular account furnished by eye witnesses who had no earthly reason to false implicate the appellant and acquitted co-accused given the interse relationship; that acquittal of co-accused merits reversal into conviction as charge against them also stood conclusively established.
7. Heard and record perused.
8. Ocular account has been furnished by Ghulam Haider (PW-1) and his son Mukhtar Ahmad (PW- 2). Ghulam Haider is real brother of Khadim Hussain, Shakeel Ahmad and Munir Ahmad are real paternal nephews, collateral in first degree with Mukhtr Ahmad (PW-2); it is hard to believe, at first sight, that they would falsely implicate the appellant and acquitted co-accused who is their own kith and kin; even otherwise substitution is a rear phenomenon antithetical to retributive human instinct, nonetheless, exaggerations and wider nets are not uncommon in criminal prosecutions.
Visit of PWs to the house of occurrence in the event of failure of the deceased to return home till late in the evening is neither unusual nor unnatural; there appears some intimacy between the deceased and Kalsoom; they are collateral in first degree, so what appears to have happened is an unanticipated intervention which surprised the appellant. Massive violence inflicted upon the deceased, though really unfortunate is nonetheless, indicative of the degree of provocation which his visit offered to the assailant at that unearthly hour of night. In this backdrop, position taken by the appellant sounds more probable than the narrative details furnished by the PWs; they did not come up with the whole truth. Injuries caused by sharp edged weapon have not been properly explained in the First Information Report and explanation offered during the trial is hardly accepted.
Learned trial Court has rightly disbelieved prosecution evidence qua the acquitted co-accused; view taken in this regard is a possible view which does not calls for any interference, so is conviction of Munir Ahmad appellant under Clause(c) of 302 PPC. Acquittal of Munir Ahmad, appellant from the charge of clause (a) and (b) of Section 302 PPC has not been challenged; impugned judgment on this score is also maintained. Crl.Appeal No. 46 of 2005 is dismissed.
However, on an overall analysis of the prosecution case and in the background of our social ethos and values, we feel inclined to reduce sentence of the Munir Ahmad appellant from 25 years to 10 years R.I. With the above modification, the Crl.Appeal is dismissed.
9. As a necessary corollary of above findings, Crl. Appeal No. 196 of 2005 stands dismissed.