MEHMOOD MAQBOOL BAJWA, J.---Consequent upon the conclusion of trial in case FIR No,242 of 2009, registered under section 302 of The Pakistan Penal Code, 1860 (Act No,XLV of 1860)
(Hereinafter after called The Code), at Police Station Choti, Dera-Ghazi Khan, the then learned Sessions Judge, Dera-Ghazi Khan, through judgment dated 8th of May, 2010, while holding Faiz Muhammad guilty under section 302(b) of The Code, awarded him sentence of death with payment of compensation to the tune of 500,000/- (Five hundred thousand rupees) under section 544-A of The Code of Criminal Procedure, 1898 (Act No,V of 1898) (Hereinafter called Act V of 1898) to be paid to the legal-heirs of Sajid Hussain (deceased) and. In case of default whereof he was directed to further undergo six months' S.I.
2. Aggrieved by the judgment, Faiz Muhammad (appellant) has preferred appeal bearing No,625-J of 2010 titled "Faiz Muhammad v. The State" which shall be disposed of through this judgment along with .Reference sent under section 374 of Act V of 1898 (Murder Reference No,111 of 2010) for confirmation or otherwise of sentence of death.
3. Occurrence took place on the 30th of August, 2009, about 3:00 p.m. Resulting in lodging of FIR (Ex.PA/1) by Gul Muhammad (PW-5), father of Sajid Hussain (deceased) by making statement (Ex.PA) with the grousing that he along with his sons Sajid Hussain (deceased), Rabnawaz (PW-6) and Wajid Hussain (since given up) were watching T.V. In his shop at Chah Jandala when present appellant came there on motorcycle, raised lalkara to take revenge of use of abusive language from Sajid Hussain, followed by shots fired, causing injuries on left eye and right side of the neck of Sajid Hussain who though was brought to the hospital but succumbed to the injuries there.
Initially case was registered under Section 324 of The Code but after the death of deceased (Sajid Hussain) offence under section 302 of The Code was added while deleting earlier mentioned offence.
4. Dr. Muhammad Jamal (PW-4) medically examined the deceased in injured condition on 30th of August, 2009, at about 3:30 p.m. And observed following injures on his person: "INJURIES
1. A lacerated wound of 2 cm x 2 cm with inverted margins. It was going medially and towards right side. The wound was in left eye. The whole eye was damaged by probing the wound. It was going deep.
2. . A kissing wound of fire arm 8 cm x 3 cm. It was anterior to posterior on right side of neck.
3. It a lacerated wound of firearm 4 cm x 3 cm situated at middle of right ear. The margins were everted. The brain matter was coming out from the wound. It was exit wound of injury No,1 which was of firearm."
(Ex. PC) is the copy of Medico-Legal Certificate.
5. On the same day at 6:45 p.m., the same Medical Officer after the death of Sajid Hussain, conducted postmortem on the dead body and noted following injuries: "INJURIES:
1. A lacerated wound of 3 cm x 2 cm with inverted margins. It was an entry wound of firearm. It was going medially and towards right side. The wound was in left eye. The whole eye was damaged by probing the wound. It was communicating to injury No.3.
2. A kissing wound of fire arm 8 cm x 3 cm. It was anterior to posterior on right side of neck.
3. It was a lacerated wound of firearm 4 cm x 3 cm situated at middle of right ear. The margins were everted. The brain matter was coming out from the wound. It was exit wound of injury No,1 which was of firearm."
All the injuries were ante-mortem and were result of firearm.
Probable time between injuries and death was 30 minutes to one and a half hour and between death and postmortem was two to four hours.
Copy of postmortem report is (Ex.PD).
6. After usual investigation, Report under section 173 of Act V of 1898 was submitted in the court.
7. The prosecution in order to prove its case produced Muhammad Sarwar, ASI (PW-1), Ghulam Farid-Constable (PW-2), Muhammad Ashique, AS1 (PW-3), Dr. Muhammad Jamal (PW-4), Gul Muhammad, complainant (PW-5), Rab Nawaz, an eye as well as recovery witness (PW-6), Javed lqbal, SI Investigation Officer, (PW-7) and Ahmad Nawaz Samar (PW-8).
After giving up Wajid Hussain, an eye-witness being unnecessary and producing report of Chemical Examiner (Ex.PO) pertaining to bloodstained, earth and clothes and that of Forensic Science Laboratory (Ex.PN), prosecution closed its case.
8. The appellant in his statement recorded under section 342 of Act V of 1898 denied the mode and manner of occurrence as suggested by the prosecution. Agitating plea of "Grave and sudden provocation", it was stated that deceased used to cut indecent jokes with his wife, Mst. Asia regarding which grousing was made by him to Gul Muhammad, father of the deceased, complainant (PW-5) who gave assurance on behalf of deceased to avoid repetition of such act but on the day of occurrence, the deceased again made indecent joke with his wife, working in the field who communicated the same to him and he went to the shop of complainant, sitting there with deceased and other sons Rab Nawaz and Wajid, intimated the incident but instead of reprimanding the deceased, beating was given to him, removing his shalwar, torn his shirt and shalwar from right elbow and arm and from two different points respectively resulting in re-action on his part, loosing his senses due to which he went to his house, picked up pistol, came at the shop of complainant and made fire resulting in death of Sajid. Denying the presence of anyone at the shop at that moment, it was further disclosed that he himself went to police station, narrated the occurrence but police did not record his statement.
The appellant, however, neither appeared as witness nor produced evidence in defence.
9. Heard adversaries and perused the record.
10. Learned counsel for the appellant while pleading the case of appellant submitted that the occurrence did not take place in the style and fashion as suggested by the prosecution. Denying the presence of complainant (PW-5) and Rab nawaz, an eye-witness (PW-6), it was argued that factum of death of Sajid is not disputed but it was result of grave and sudden provocation, the detail of which was not only suggested to the witnesses (PWs-5 and 6) in cross-examination but also disclosed by appellant in detail in his statement without oath.
Referring to the reply given in cross-examination regarding registration of case against deceased on this score, it was contended that continuous act of the deceased to use insultive language and indecent jokes with the wife of deceased, it was impossible for the appellant to put restrain particularly in view of assurance given by father of the deceased, complainant (PW-5) as matter was brought to his notice by appellant earlier.
Making reference to the cross-examination of complainant (PW-5), it was submitted that Mst. Asia, wife of the appellant is his niece, 18 years old while appellant is son of sister of the complainant.
Drawing out attention to the replies given in cross-examination by the complainant (PW-5), it was argued that factum of cordial relations between complainant and appellant, their families and visit to each other is not disputed and as such the occurrence cannot be said to be result of premeditation.
Continuing the arguments and making reference to memo (Ex.PK), it was submitted that appellant produced his wearing apparel i,e, shirt and shalwar (both stained with blood) which were also torn and Rab Nawaz (PW-6) to whom shirt was shown admitted that it is torn from right elbow side.
Highlighting the cumulative effect, it was submitted that plea 'agitated by the appellant stands established and as such sentence awarded to the appellant is legally not sustainable particularly when motive set up by prosecution could not be established which even otherwise is so weak.
11. Controverting the arguments, the learned Additional Prosecutor General assisted by learned counsel for the complainant submitted that prosecution in order to prove its case produced Gul Muhammad, complainant (PW-5) and Rab Nawaz, an eye-witness (PW-6) who in a straight manner narrated the mode and manner of occurrence in line with the case of prosecution set up in the crime Report (Ex.PA/1). Contended that credibility of complainant and eye-witness could not be shaken in cross-examination.
Ocular account, argued, finds support from the recovery of .30-bore pistol (P4) taken into custody vide memo (Ex.PL) proved by Rab Nawaz (PW-6) and positive report of Forensic Science Laboratory (Ex.PN). Submitted that ocular account also finds corroboration by the medical evidence in the shape of Medico-Legal Certificate (Ex.PC) and postmortem report (Ex.PD).
Contended that suggestions put to the witnesses (PWs-5 and 6) regarding mode and manner of occurrence on behalf of appellant were categorically denied by the witnesses. Prosecution evidence, argued, is natural, straightforward and is not result of exaggeration, sufficient to prove the guilt of appellant in the style suggested by the prosecution.
Referring to the evidence of complainant (PW-5) and Rab Nawaz (PW-6), it was added that specific motive was disclosed which stands established in view of the evidence of both the witnesses.
Making an attempt to controvert the plea of appellant about "Grave and Sudden provocation" put to the prosecution witnesses in cross-examination and disclosed by appellant in his statement under section 342 of Act V of 1898, it was submitted that neither it is "Grave" nor "Sudden". To substantiate the argument, it was submitted that appellant himself admitted that after receipt of beating by the complainant party who also removed his shalwar, he went to his house, picked pistol and then came to the place of occurrence and fired shot.
Referring to the factum of. Production of Shirt and Shalwar through memo (Ex.PK), it was submitted that how it can substantiate the plea of appellant?
Summing up the arguments, it was submitted that appellant failed to prove the plea set up as defence and as such no premium can be granted to the appellant.
12. Keeping in view the respective contentions, there can be no two opinions that it is a case of two versions.
Principles for appreciation of evidence in criminal cases of one version or of two versions were enunciated by the apex Court in "Ashiq Hussain alias Muhammad Ashraf v. State" (PLD 1994 SC 879) and it was held at page 563 as follow: "For the guidance of all the Courts in the country we propose to lay down rules/principles for the appreciation of evidence in criminal cases of one version or of two versions. The proper and the legal way of dealing with the criminal case is that the court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the possibility of the story told by them, and then examine the statement of the accused under section 342, Cr.P,C., statement under section 340(2), Cr. P. C. And the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr. P. C. Is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C. Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case the counter versions, if the court believes prosecution evidence and is not prepared to exclude the same from consideration it will not straight-away convict the accused but will review the entire evidence including the circumstances appearing in the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxta-position to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the questions, viz., is the plea/version . Raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the court will not reject plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even the Court must accept his plea and acquit or convict him accordingly".
13. Case of prosecution which as per yardstick has to examine first as reflected in the crime Report (Ex.PA/1) is that on 30th of August, 2009, the complainant (PW-5), his sons Rab Nawaz (PW-6), Wajid Hussain (given up) and Sajid Hussain (deceased) were watching T.V. At their shop when appellant came there, raised lalkara showing his intention to take revenge of use of abusive language and then fired two shots causing injury on the left eye and right side of neck of Sajid Hussain, ultimately resulting in his death in the hospital.
14. To prove the case, prosecution produced Gul Muhammad, complainant (PW-5) and Rab Nawaz (PW-6) an eye-witness.
The complainant (PW-5) and eye-witness (PW-6) with one voice narrated the occurrence by deposing that on 30th of August, 2009, they along with Wajid Hussain (since given up) and Sajid Hussain (deceased) were present on their shop when present appellant armed with pistol came there, raised lalkara to teach lesson to deceased for insulting him and then fired two shots causing injuries on his left eye and right side of the neck.
The complainant and eye-witness were cross-examined but their credibility could not be shaken with reference to mode and manner of occurrence. Deposition of both the witnesses as reflected in their direct statements though was subject to cross-examination but inspires confidence stating the factum of occurrence in natural and straightforward manner.
No discrepancy, whatsoever, either could be pointed out by the adversary in the statements of both the witnesses disclosing the manner of occurrence nor were we able to lay our hands on such contradiction casting doubt about the credibility of the witnesses.##T## Though the complainant and eye-witness is father and brother of the deceased but their relationship by itself would not be sufficient either to stamp them as "Interested witnesses" or to depose with exaggeration and embroidery as nothing is available on record to suggest "animosity" against both of them. Failure of defence to highlight the compelling circumstances has prompted us to reach the conclusion that the witnesses .Had no motive to speak against the appellant with malice.
' While dealing with the credibility of the witnesses, we are also cognizant that appellant is son of real sister of complainant and wife of appellant is his paternal niece and as such despite involvement of appellant in the murder of son and real brother of complainant and eyewitness, prior to twisting facts, they will think and ponder hundred times keeping in view the social fiber particularly prevalent in our rural societies. We while examining their evidence particularly replies given in cross-examination are unable to note any such circumstance.
15. Pursuant to above, we feel no hesitation to conclude that ocular account furnished by prosecution to prove the culpability of appellant inspires confidence and their reliability in order to act upon is beyond shadow of doubt.
16. As per prosecution version, two shots were fired by appellant causing injuries on left eye and right side of neck of deceased.
Deceased in injured condition was medically examined by Dr. Muhammad Jamal (PW-4) on the same day at 3:30 p.m. Who noted three injuries on his person. Injuries Nos.1 and 2 are wound of entry providing support to the ocular account keeping in view the seat and locale of injuries as is evident from copy of Medico-Legal Certificate (Ex. PC).
Copy of postmortem report (Ex.PD) disclosing the same seat of injuries furnishes further corroboration to the ocular account.
Autopsy was conducted at 5:45 P.M. On the day of occurrence as is evident from copy of postmortem report.
As per deposition of Dr. Muhammad Jamal (PW-4) and postmortem report (Ex.PD), time elapsed between death and postmortem was 2 to 4 hours which corresponds with the time of occurrence i,e, 3:00 p.m.
The medical evidence as such provides corroboration to the ocular account with reference to seat and locale of injuries, weapon of F offence used (firearm) and time of occurrence.
17. Factum of recovery of .30-bore pistol (P4) stands established by the evidence of Rab Nawaz (PW-6) through recovery memo. (Ex.PL).
There is no need to examine this aspect of evidence in detail for the simple reason that recovery of pistol is not a moot point as appellant himself admitted production of pistol.
Crime-empties were sent to Forensic Science Laboratory on 4th of September, 2009, while pistol was transmitted for comparison on 26th of September, 2009; after its recovery on 17th of September, 2009. Report of Forensic Science Laboratory (Ex.PN/1) is in positive, another corroborative factor, strengthening prosecution case.
18. Lastly, we advert to the motive.
The complainant (PW-5) in his statement (Ex.PA) upon the strength of which FIR was registered disclosed that three-four hours prior to the occurrence, there was a quarrel between deceased and appellant on watching television and abusive language was also used.
The complainant while appearing as (PW-5) deposed that on the day of occurrence at about 2:30 p.m. Dispute arose between deceased and appellant and due to this motive, the appellant committed occurrence.
Rab Nawaz, an eye-witness (PW-6) in his direct statement disclosed that three-four hours prior to occurrence, they were watching T.V. On shop and appellant was also present there, when altercation took place between the appellant and deceased resulting in occurrence.
Though both the witnesses stated one and the same fact resulting in occurrence but the evidence of both the witnesses when scanned does not appeal to the reason on this aspect.
The complainant (PW-5) and eye-witness (PW-6) who also witnessed the episode of motive are not in agreement with each other regarding the time of quarrel between appellant and deceased.
Occurrence took place approximately at 3:00 p.m. As per FIR, quarrel took place 3-4 hours prior to occurrence on watching T.V.
The complainant (PW-5) in his statement stated that appellant came at 2:30 p.m. And dispute has taken place resulting in occurrence.
Controverting the deposition of complainant (PW-5) about the time, it was stated by Rab Nawaz (PW-6) that dispute arose on watching T.V. Three-four hours prior to the occurrence. Though statement of this witness is in line with the case of prosecution set up in complaint (Ex.PA) but is contradictory to what was stated by complainant.
Matter does not end here. The complainant in his direct statement just narrated about the dispute.
Nature and reasons of dispute were not disclosed by the complainant and as such no implicit reliance can be placed upon the evidence of the complainant to prove this aspect of this case.
Deposition of Rab Nawaz (PW-6) suggesting altercation between appellant and deceased without highlighting the reasons would not be sufficient to prove the motive.
Even otherwise, motive set up in the FIR (Ex.PA/1) regarding dispute on watching T.V. Is neither convincing nor appeal to the reason.
Pursuant to above, we are of the considered view that attempt to prove motive is nothing but an exercise in futility.
19. Despite failure of the prosecution to prove motive, convincing and worthy of credit ocular account finding support from medical evidence, factum of recovery and positive report of Forensic Science Laboratory is sufficient to conclude that evidence led and discussed is worthy of credit.
Positive and confidence inspiring ocular evidence finding support from other aspects despite failure to prove motive would be sufficient to hold reliability of prosecution version.
20. Pursuant to discussion made in preceding paragraphs with reference to case of prosecution, we are convinced regarding the reliability of prosecution evidence and as such keeping in view the yardstick enunciated in "Ashiq Hussain alias Muhammad Ashraf v. State" (PLD 1994 SC 879) we would like to deal with the version of appellant regarding "Grave and Sudden provocation".
21. Prior to dealing with the plea on legal premises, it is desirable to re-produce the same in the language of appellant as stated by him while replying question No,8 put to him in his statement under section 342 of Act V of 1898.
"The deceased used to cut indecent jokes with my wife namely Aasia, which I complained to Gul Muhammad father of the deceased. Gul Muhammad replied to me that in future his son Sajid will not do so in future. Due to this we satisfied. On the day of occurrence Sajid deceased again cut indecent jokes with my wife when she was working in the field. My wife told me about it. I came at the shop of Gul Muhammad for complaint where Gul Muhammad, Rab Nawaz, Wajid and Sajid were present and I narrated them all the story and previous commitment upon which Gul Muhammad and his sons infuriated and started quarreling with me, they physically tortured me, removed my shalwar and threw me out from the shop. In the said scuffling my Qameez was torn from right arm, elbow and shalwar was torn from two different places. Upon this unexpected insult I lost my senses and I went to my house, picked up pistol and came on the shop of complainant where Sajid was sitting alone. No body was present there to save Sajid. . I fired at Sajid due to which he died at the spot. I had no intention to kill him. The pistol was lying in my house for security purposes as we reside in rural area. I myself appeared in the Police Station but the police did not record my version. The PWs are related inter-se and due to this reason they have deposed against me".
22. We are not un-mindful that when any plea is taken in defence, burden to substantiate the same is not so stringent and hard as placed upon prosecution to prove its case beyond shadow of doubt.
23. It is the case of the appellant that deceased used to cut indecent jokes with his young wife and despite complaint to the complainant, father of deceased (who is his maternal uncle) the deceased did not mend his ways and on the day of occurrence, same action was done by the deceased, communicated to the appellant by his wife who approached the complainant to make grousing resulting in torture upon him, removal of his shalwar.
24. It is to be noted that in view of the plea taken, the appellant was obliged and required to show that act of deceased as well as action taken by complainant and his sons not only caused "sudden" but also "grave provocation". Expression "provocation" was dealt with by honourable Supreme Court in the case of "Muhammad Saleem v. The State" (PLD 2002 SC 558) and it was held at page 565 as follow: "The point to emphasis is that provocation in law means more than a provocative incident. It is not all provocations that will reduce the crime of murder to manslaughter . Provocation to have that result, must be such as temporarily deprives the person provoked of the power of self-control as a result of which he commits the unlawful act which causes death. In deciding the question whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval, and to all other circumstances tending to show the state of his mind."
25. Though it is the case of the appellant that deceased used to cut indecent jokes with his wife and on the day of occurrence, same act was repeated but nevertheless, the appellant has not produced any evidence to substantiate the same. Fact could have been easily proved by production of his wife. It is to be noted that mere giving of a version by the accused does not make it a case of two versions unless that given by the accused is also supported by evidence. We are fortified in our view by law laid down in "Muhammad Yousaf and others v. The State and others" (PLD 2007 SC 266).
Non-production of the best and primary evidence as referred earlier would adversely affect the defence plea.
26. Matter does not end here. As per appellant, the deceased used to cut indecent jokes with his wife. The appellant in order to prove the plea was under compulsion to give the detail of such filthy jokes. Omission is significant and as such it is nothing but a bald allegation. We are fortified in our view by law laid down in "Muhammad Nasrullah v. The State" (2003 SCM R 189).
27. Since appellant failed to prove both aspects, therefore, his stance regarding beating to him by complainant party, removal of shalwar and torn of shirt during the quarrel by itself would not be sufficient to prove element of provocation.
28. Perusal of trend of cross-examination and stance taken by appellant in his statement without oath reveals that appellant after torture went to his house, picked his pistol, came back and then fired shot. Though in reply to question No,8, it was stated that upon this unexpected insult, he lost his senses and went to his house but in the circumstances, there must have been some evidence to suggest inter-se time which elapsed between the provocation (if it is) and the time of occurrence but admittedly nothing is available 'on record to substantiate this aspect.
29. We are conscious that it was the first version of appellant during the course of investigation as argued but this fact by itself would not be sufficient to act upon the plea in view of failure of appellant to produce best and primary evidence and that too on the lines suggested.
30. It can be validly pleaded that if the Shalwar of a person is removed, how he can put control on his senses but this argument would also be of little help to the appellant for two fold reasons. First, as discussed earlier, time of this incident is not known and as such it is not possible to determine factum of loss of self-control keeping in view the time of occurrence. Second, omission on the part of defence to disclose detail of indecent jokes is another factor which has to be kept in view while deciding the moot point. Loss of self-control .Depends upon the detail of indecent jokes and torture.
Same cannot be decided independently.
31. We are also cognizant that appellant produced his torn shirt to the Investigating Officer, which he was wearing at the time of scuffle when he statedly went to make complaint. Production of shirt by itself would not be sufficient to prove the plea agitated in view of definition of provocation which must not only be grave but also sudden.
32. Production of wearing apparels by appellant stained with -blood taken into custody through recovery memo (Ex.PK) by itself would not be sufficient to substantiate the plea under discussion.
33. Pursuant to above discussion, evidence led by prosecution when put in juxta position with the plea of defence appears to be more plausible, inspires confidence and corroborative and as such while believing, relying and acting upon the same, mode and manner of occurrence as suggested by the prosecution resulting in murder of son of the complainant stand proved.
34. Epitome of above discussion is that while relying upon evidence of prosecution, we maintain the conviction of the appellant under section 302(b) of The Code.
35. In view of plea taken by the appellant in defence and motive, arguments were also advanced on behalf of the appellant about the quantum of sentence, controverted by adversary.
36. Motive was specifically alleged which in view of discussion made earlier could not be proved.
37. In view of failure of prosecution to prove motive, though no indulgence can be shown in favour of appellant about his guilt but premium has to be granted to the appellant with reference to quantum of punishment as it has to be considered a 'mitigating circumstance'. Reliance is placed upon "Muhammad Ishaque Khan and others v. The State and others" (PLD 1994 SC 259), "Mir Muhammad alias Miro v. The State" (2009 SCM R 1188), "Muhammad Ashraf v.' The State" (1998 SCM R 1764), "Muhammad Yaqoob alias Qooba v. The State" (1999 SCM R 1138), "Feroze Khan v. The State" (2002 SCM R 99), "Iftikhar Mehmood and another v. Qaiser Iftikhar and others" (2011 SCM R 1165), "Muhammad Yaseen and others v. Muhammad Shafique and others" (1997 SCM R 1527), "Noor Muhammad v. The State and another" (2010 SCM R 97), "Zulfiqar Hussain and another v.
The State" (2011 SCM R 379) and "Ghulam Mohy-ud-Din alias Haji Babu and others v. The State"
(2014 SCM R 1034).
38. Pursuant to above state of facts and law, we convert the sentence of death awarded to the appellant into life imprisonment under section 302(b) of The Code but endorsing quantum of compensation awarded under section 544-A of Act V of 1898 and the sentence to be suffered in lieu of payment of compensation, recoverable as arrears of land revenue, in case of its non- recovery.
39. The appellant is extended benefit of section 382-B of Act V of 1898.
40. Sentence of death awarded to the appellant is not confirmed.
41. Murder Reference No,111 of 2010 is accordingly answered in the Negative.