MANZOOR AHMAD MALIK, J.---Sher Muhammad along with his co-accused namely Aisha Bibi, Muhammad Arif and Muhammad Sharif was tried by the learned Additional Sessions Judge, Faisalabad, in case FIR No,714/2008 dated 5-7-2008 offence under section 302 read with section 34, P.P.C. Registered at Police Station Saddar, District .Faisalabad for the murder of Yousaf Masih (deceased) father of the complainant. Vide judgment dated 31-3-2009 passed by the learned Additional Sessions Judge, Faisalabad, the appellant was convicted under section 302(b), P.P.C.
And sentenced to imprisonment for life. He was also directed to pay a sum of Rs,1,00,000 (rupees one lakh only) to the legal heirs of Yousaf Masih (deceased) as compensation provided under section 544-A Code of Criminal Procedure, which was ordered to be recovered as arrears of land revenue from the appellant and in the event of default, he was ordered to further undergo six months' simple imprisonment. Benefit of section 382-B, Code of Criminal Procedure was extended to the appellant. Assailing the above conviction and sentence the appellant has filed the appeal in hand. Before proceeding further with the case, it is relevant to note here that through the same judgment, co-accused of the appellant namely Aisha Bibi, Muhammad Arif and Muhammad Sharif were acquitted of the charge while extending them benefit of doubt.
2. Prosecution story, as set out in the FIR (Exh.PA/1) registered on the written application (Exh.PA) of Arshad Masih, complainant (PW.6) is that he was resident of Chak No,225/RB, Mohallah Amjad Abad, Street No,3 and a labourer. On 5-7-2008 at about 7-30 a.m. The complainant along with Shahid Mushtaq (PW since given up being won over) and Liaquat Masih (PW since given up being unnecessary) was standing outside their house in the Bazar whereas the complainant's father namely Yousaf Masih was coming towards his house after taking milk from the dera of Ishaq. When Yousaf Masih reached near the house of Mehr Ameen, all of a sudden Sher Muhammad (appellant) armed with a wooden slab (phatti looms), Muhammad Arif (co-accused the appellant since acquitted) armed with sota, Muhammad Sharif and Aisha Bibi (co-accused of the appellant since acquitted) empty handed arrived there while raising lalkaras. Muhammad Sharif raised a lalakara that Yousaf Masih should be taught a lesson for forbidding Sher Muhammad (appellant) from drinking liquor whereupon Sher Muhammad (appellant) inflicted wooden slab blows to Yousaf Masih which landed on his head at different parts. Yousaf Masih fell on the ground and in his falling position, Muhammad Arif gave a sota blow to the complainant's father which hit him on his right leg whereas Aisha Bibi kept on raising lalkaras that Yousaf Masih should not be left alive. Alarm of the complainant's side attracted numerous people whereupon Sher Muhammad etc. Fled away from the spot while raising lalkaras Yousaf Masih father of the complainant was seriously injured who was shifted to Civil Hospital for treatment but on reaching there he succumbed to the injuries.
Motive behind the occurrence was that Sher Muhammad (appellant) time and again hurled abuses after taking liquor who was forbidden by the complainant's father due to which Sher Muhammad bore grudge. Consequent to the said grudge Sher Muhammad (appellant) etc. Assailants in furtherance of their common intention had committed the murder of Yousaf Masih (deceased).
3. The appellant and his co-accused namely Aisha Bibi, Muhammad Arif and Muhammad Sharif were indicted by the learned Additional Sessions Judge Faisalabad under section 302, P.P.C. Read with section 34, P.P.C. After conclusion of the trial, the appellant was convicted and sentenced as detailed in para. 1 supra whereas three co-accused of the appellant Aisha Bibi, Muhammad Arif and Muhammad Sharif were acquitted of the charge while extending them benefit of doubt and no appeal against their acquittal was filed either by the complainant or by the State as confirmed by the learned Deputy District Public Prosecutor for the State.
4. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case and true facts have not been brought on the record by the prosecution; that the prosecution has not proved the time of incident as according to the contents of the FIR and statements of both the witnesses of ocular account, it had taken place at 7-30 a.m.
Whereas Muhammad Akram, S.I. (PW.10) who conducted initial investigation of this case categorically stated during his cross-examination that he had received information of this occurrence, at about 7-00 a.m. i,e, thirty minutes before the occurrence; that the ocular account was furnished by two witnesses namely Arshad Masih complainant (PW.6) and Sanam Masih (PW.7); that no reliance can be placed on the testimony of Sanam Masih (PW.7) as his name is not reflected in the FIR and moreover Arshad Masih (PW.6) while appearing before the learned trial court did not state that Sanam Masih was also present at the time of occurrence; that conduct of the alleged eye-witnesses during the occurrence was highly improbable as it was brought on record through cross-examination of both the witnesses of ocular account that none of the assailants was carrying any firearm and in the circumstances had the witnesses of ocular account been present at the spot along with the given up prosecution witnesses namely Shahid Mushtaq and Liaquat Masih they would have tried to rescue Yousaf Masih (deceased); that while appearing before the learned trial court, the complainant did not state anything regarding motive behind the occurrence; that recovery of phatti looms (P.1) allegedly effected at the instance of the appellant and taken into consideration vide recovery memo. (Exh.PF) is inconsequential as there is no mention in the recovery memo. (Exh.PF) that phatti was stained with blood; that the witnesses who allegedly attested the recovery memo. Of phatti (P.1) did not enter into the witness box and moreover the said phatti was not sent to the Chemical Examiner or Serologist to ascertain whether the same was stained with blood or otherwise; that four persons were indicted in this case out of whom one namely Muhammad Arif was attributed sow blow on the person of Yousaf Masih (deceased) except the appellant all the three were acquitted of the charge while extending them benefit of doubt, therefore, the prosecution evidence, which has been disbelieved to the extent of the co-accused of the appellant since acquitted cannot be believed against the appellant without there being any independent and strong corroboration, which is very much lacking in this case; that viewing from all angles the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
5. Notice was issued to the complainant. Mr Moeez Farooq, Advocate entered appearance on behalf of the complainant on 27-6-2014 and sought time to file his power of attorney and the case was adjourned to a specific date in presence of the said learned counsel. However, thereafter none entered appearance on behalf of the complainant, therefore, I am proceeding with the case after hearing arguments of learned Deputy District Public Prosecutor for the State.
6. Learned Deputy District Public Prosecutor vehemently opposes this appeal on the grounds that the occurrence took place at 7-30 a.m. On 5-7-2008 whereas the matter was reported to the Police on the same day at 8-00 a.m. i,e, just after thirty minutes of the occurrence in Hospital Faisalabad and as such the crime was reported to the Police with due promptitude which establishes presence of the complainant at the spot; that it was brought on record through cross-examination on both the witnesses of ocular account that they could reach at the place of occurrence from their house in two minutes; that the complainant further stated during hi cross-examination that the place of incident was visible even while standing in their house; that the prosecution case to the extent of the appellant is fully supported by the medical evidence; that weapon of offence i,e, phatti (P.1) was recovered at the instance of the appellant which was taken into possession vide recovery memo. (Exh.PF); that the appellant cannot seek any benefit from the acquittal of his co- accused namely Aisha Bibi, Muhammad Sharif and Muhammad Arif as according to the contents of the FIR Aisha Bibi and Muhammad Arif were empty handed whereas the injury attributed to Muhammad Sharif on the right leg of Yousaf Masih (deceased) was not observed during the course of post mortem examination, whereas injuries attributed to the appellant at the head of Yousaf Masih (deceased) were observed as injuries No,1 to 4; that prosecution has successfully brought home guilt against the appellant to the hilt and there is no merit in this appeal.
7. I have heard arguments of learned counsel for the appellant and the learned Deputy District Public Prosecutor for the State to their entire satisfaction, given serious consideration to their respective submissions and also perused the record.
8. This unfortunate incident, wherein Yousaf Masih father of Arshad Masih complainant (PW.6) lost his life took place at 7-30 a.m. On 5-7-2008 in Chak No,225/RB, within the jurisdiction of Police Station Sadar, District Faisalabad. Matter was reported to the Police by Arshad Masih complainant (PW.6) at 8-00 a.m. Through his application (Exh.PA) i,e, thirty minutes after the occurrence on the basis whereof formal FIR (Exh.PA/1) was chalked out at 9-00 a.m. On the same day. Even post mortem examination on the dead body of Yousaf Masih (deceased) was also conducted on the same day at 12-30 p.m i,e, just after five hours of the occurrence, which establishes presence of the complainant at the place of occurrence.
9. Ocular account in this case was furnished by Arshad Masih complainant (PW.6) and Sanam Masih (PW.7). So far as Sanam Masih (PW.7) is concerned, his name is not mentioned in the HR and similarly Arshad Masih (PW.6) while appearing before the learned trial court did not state that at the time of occurrence Sanam Masih was also present at the time of occurrence. Therefore, no reliance can be placed on the testimony of Sanam Masih and his testimony is straight way taken out of consideration. The question for determination before me is whether the conviction and sentence awarded to Sher Muhammad (appellant) on a capital charge can be maintained on the solitary statement of Arshad Masih complainant (PW.6). Here I am guided by the dictum of law laid down by the Hon'ble Supreme Court of Pakistan in the case reported as "Muhammad Mansha v.
The State" (2001 SCM R 199) wherein at page 204, it was enunciated as under:- "6. ...The question as formulated hereinabove as to whether conviction could have been awarded on the basis of solitary statement of a witness has been examined at first instance in the light of Article 17 of the Qanun-e-Shahadat Order, 1984, (section 134 of the Evidence Act, 1872). The said Article is reproduced hereinbelow for ready reference::-- "17. Competence and number of witnesses.---(1) The competence of a person to testify and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.
(2) Unless otherwise provided in any law relating to the Enforcement of Hudood or any other special law--
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant."
7. A bare perusal would reveal that the language as employed in the said Article 17(1)(b) is free from any ambiguity and no scholarly interpretation is required. The provisions as reproduced hereinabove of the said Article would make it abundant clear that particular number of witnesses shall not be required for the proof of any fact meaning thereby that a fact can be proved only by a single witness "it is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, case where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of Presiding Judge comes into play. The matter thus must depend upbn the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though considerable number of witnesses may be forthcoming to testify to the truth of the case, for the prosecution. The Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact". (Principles and Digest of the Law of Evidence by M. Monir, page 1458)."
Arshad Masih complainant (PW.6) is the resident of the same street where this occurrence took place. He reported the crime to the. Police through a written application just after thirty minutes of its happening. The promptitude in the lodging of FIR establishes the presence of the complainant at the place of occurrence. Therefore, the statement of Arshad Masih (PW.6) is worthy of credence.
No adverse inference can be drawn against the prosecution by the non-production of Shahid Mushtaq and Liaquat Masih (PWs) as Shahid Mushtaq was given up as won over whereas to the extent of Liaquat Masih, it is observed that it is the prerogative of the prosecution to produce as many witnesses as it thinks appropriate and if the defence believed that the said witnesses might not have supported the prosecution case, they might have been examined as defence witnesses but no effort was made by the defence to summon those witnesses in the witness box.
10. In the FIR as well as before the learned trial court it was the case of prosecution that Sher Muhammad (appellant) inflicted successive phatti blows on the head of Yousaf Masih (deceased), which landed on different parts of his head. Dr Bashir Ahmad (PW.5) conducted post mortem examination on the dead body of Yousaf Masih (deceased) and noted the following injuries:-
(1) A lacerated wound 5 x 1 cm on left side of head 5 cm above left ear pinna, 11 cm above left eye brow.
(2) A lacerated wound 4 x 1 1/2 cm on top of head.
(3) A lacerated wound 6 x 1-1/2 cm on right side of head, 1 cm just above the right pinna.
(4) A lacerated wound 6 x 1 1/2 cm on right side of head, 6 cm behind/above to right ear pinna, 4 cm below/back to top of head.
5. An abrasion 3 x 1 cm on top of right shoulder.
Same is the position in the post-mortem examination report (Exh.PB). Therefore, the injuries attributed to the appellant on the head of Yousaf Masih (deceased) are available in the post mortem examination report as injuries No,1 to 4 and the ocular account furnished by Arshad Masih complainant (PW.6) to the extent of the appellant is fully supported by the medical evidence.
11. Motive behind the occurrence was that Sher Muhammad (appellant) time and again hurled abuses after taking liquor who was forbidden by the complainant's father due to which Sher Muhammad bore grudge. Consequent upon the said grudge Sher Muhammad (appellant) etc. Assailants in furtherance of their common intention had committed the murder of Yousaf Masih (deceased). The complainant while appearing before the learned trial court as PW.6 did not utter a single word regarding motive behind the occurrence, therefore, I hold that the prosecution failed to prove the motive set out in the FIR.
12. So far as the alleged recovery of wooden slab (phatti looms P.1) at the instance of the appellant which was taken into possession vide recovery memo. (Exh.PF) is concerned, the same is inconsequential as there is no mention in the recovery memo. (Exh.PF) that phatti was stained with blood. No attesting witness of the recovery memo. Was produced before the learned trial court and moreover the said phatti was not sent to the office of Chemical Examiner or Serologist to ascertain whether the same was stained with blood or otherwise. Therefore, no corroboration can be sought from the alleged recovery of wooden slab (phatti looms) at the instance of the appellant.
13. The appellant, however, cannot claim any benefit from the acquittal of his co-accused, namely Muhammad Arif, Muhammad Sharif and Aisha Bibi because the injury attributed to Muhammad Arif at the right leg of Yousaf Masih (deceased) was not observed during the post mortem examination whereas as per contents of the FIR as well as statement of Arshad Masih complainant while appearing before the learned trial court, Muhammad Sharif and Aisha Bibi were empty handed at the time of occurrence and mere lalkaras were attributed to them. Therefore, case of the acquitted co-accused of the appellant is entirely distinguishable from that of the appellant.
14. I have already concluded that Arshad Masih complainant (PW.6) was present at the spot and had witnessed the occurrence but the question before me is whether the circumstances of the prosecution case attract the provisions of section 302(b), P.P.C. Or 302(c), P.P.C. The motive behind the occurrence has not been proved as concluded in para.11 above and the circumstances suggest that something else had happened immediately prior to the incident which has not been brought on the record. Circumstances of the case further suggest that it was a sudden flare up without any premeditation and preplanning on the part of the appellant. According to the recovery memo. (Exh.PF) the phatti (P.1) used by the appellant during the occurrence was 2ft 4 inch in length and 1/2 inch in width, therefore, the same cannot be termed as a lethal weapon. In view of the above, I am of the view that the present case is covered under section 302(c), P.P.C. And not under section 302(b), P.P.C. Resultantly, the conviction and sentence of Sher Muhammad (appellant) under section 302(b), P.P.C. Is not sustainable in the eyes of law. Accordingly, Sher Muhammad (appellant) is convicted under section 302(c), P.P.C. And sentenced to ten years' R.I. The amount of compensation and the sentence of imprisonment in default thereof as ordered by the learned trial court are maintained. The benefit under section 382-B, Code of Criminal Procedure extended to the appellant by the learned trial court is also maintained. With the above modification in the conviction and quantum of sentence of Sher Muhammad (deceased), the appeal in hand is partly allowed.