QAZI MUHAMMAD AMIN AHMED, J.---We propose to dispose of Murder Reference No,181 of 2009 filed by the State, and Crl. Appeal No,779 of 2009 filed by M/s Muhammad Ashraf and Muhammad Asghar - appellants, as these matters arise out of judgment dated 03.12.2009 passed by the learned Addl. Sessions Judge, Khanewal.
2. Appellants were tried by the learned Addl. Sessions Judge, Khanewal for committing Qatl-i-amd of Zafar Iqbal (deceased) within the area of Chak No,77/10-R situating at a distance of 8 miles from Police Station Saddar Khanewal. Vide judgment dated 03.12.2009, they were convicted and sentenced as under:- 1) Muhammad Ashraf - Appellant No.1 Under section 302(b)/34, P.P.C.
Awarded death sentence as Tazir. Compensation of Rs,1,00,000/- to the legal heir of Zafar Iqbal deceased under section 544-A of Cr.P.C., or in default thereof to further undergo six months' S.I.
2) Muhammad Asghar - Appellant No.2 Under section 302(b) read with section 34, P.P.C.
Awarded death sentence as Tazir. Compensation of Rs,1,00,000/- to the legal heir of Zafar Iqbal deceased under section 544-A of Cr.P.C., or in default thereof to further undergo six months' S.I.
Both the convicts are also sentenced under section 337-A(i) for causing injuries to Allah Rakha complainant for one year each and each convict will also pay Rs,1000/- as Daman.
3. Prosecution story as contained in the FIR (Ex.PC/1) recorded on the complaint (Ex.PC) of Allah Rakha (PW-4) is that on the fateful day i.e, 22.05.2007, he was present at his `Dera' alongwith his deceased son Zafar Iqbal when Muhammad Ashraf and Muhammad Asghar-appellants each armed with Churri came there. Muhammad Ashraf appellant according to the complainant, raised Lalkara that Qamar Iqbal be taken out, so that, they avenge their insult, today. Zafar Iqbal resisted them, whereupon Muhammad Ashraf appellant dealt 2 churri blows hitting on the left side of his chest and right thigh. Muhammad Asghar caused injuries to Zafar Iqbal (deceased) on his right arm and left side of neck. Ashraf repeated Churri blows hitting his back on the right side and ankle of left arm. When the complainant tried to save his son, appellants caused injuries to him as well.
Shabbir Hussain and Ghulam Sarwar were attracted to the spot and witnessed the occurrence.
PWs tried to apprehend the appellants but they made their escape good while brandishing their weapons. Zafar Iqbal succumbed to the injuries.
Motive cited in (Ex.PC) for the occurrence is that Qamar Iqbal, younger son of Allah Rakha complainant was carrying on illicit liaison with the sister of appellants and for this grudge they murdered Zafar lqbal (deceased).
4. Allah Rakha (PW-4) leaving the deceased at the spot left to lodge report when he met Shah Nawaz S.I (PW-9) at Haleem Shah Chowk at 11.30 a.m. Who recorded complaint (Ex.PC). Formal FIR (Ex.PC/1) was recorded at 11.55 a.m. By Muhammad Ramzan A.S.I (PW-10).
5. On spot inspection, I.O. Prepared site plan without scale (Ex.PL), besides taking other investigative steps that included seizer of blood stained earth secured vide memo (Ex.PD), Blood stained earth was taken and made into a sealed parcel separately. According to the report of Chemical Examiner (Ex.PM), earth taken from the spot was found stained with blood.
6. Postmortem on the dead body of Zafar lqbal (deceased) was conducted 4.00 p.m. On 22.05.2007 by Dr.Muhammad Ajmal (PW-7) DHQ Hospital, Khanewal who observed following injuries:- "i) An incised wound 6 x 1 cm on left side of front of neck, it was skin deep, signs of bleeding were present, it was 3 cm below left ear. ii) An incised wound 5-1/2 x 5-1/2 cm x 3 cm on front of Right forearm, it was on frontal and lateral aspect of right forearm of right elbow joint, it was gapping wound. All blood vessels and tissues had been cut away. iii) An incised wound 4 x 2 cm on front of left side of chest, it was 4 cm up the left nipple. Blood was coming out from this wound. On dissection 4th, 5th, 6th ribs were cut away, pericardium cut away, there was gash of blood coming out side. iv) An incised 3 x 1 cm on Rt. Shoulder, clotted blood was present. v) An incised wound 1 x 1 cm on Rt. Side of back of chest.
Vi) An incised would 2 x 2 cm on left elbow joint".
According to Dr. Muhammad Ajmal (PW.7) injury No,3 was cause of death which proved fatal. Sharp edged weapon, according to the Medical Officer, passed through chest entering into lower portion of the heart resulting into loss of blood, leading to shock and death of the deceased. The probable time between injury and death was 10 to 15 minutes, time between death and post mortem was 5 to 6 hours.
The said Medical Officer on the same day medically examined Allah Rakha (PW-4) and observed following injuries on his person:- i) Bruise 6 x 3 cm on left eye brow. ii) An abrasion 3 x 2 cm on left side of face, 2 cm below the left eye.
7. Appellants were arrested on 01.6.2007 and upon separate disclosures Muhammad Ashraf led to the recovery of knife (P-3) secured vide memo. (Ex.PJ) while Muhammad Asghar got recovered Chuuri secured vide memo. (Ex.PK).
8. Upon submission of report under section 173, Cr.P.C., both the appellants were sent to face trial before the learned Sessions Judge, Khanewal, where they were indicted on 27.03.2008; they pleaded not guilty and claimed trial.
9. Prosecution in order to bring home charge against both the appellants produced as many as 10 witnesses besides relying upon forensic reports. Position taken by both the accused in their examination under section 342 Cr.P.0 is as follows:- Appellant (Muhammad Asghar):- "On the day of occurrence I along with Muhammad Ashraf my brother co-accused changing/digging the water course leading to the land of Amir Alam Shah our land lord when Zafar Iqbal deceased passed by and uttered taunting remarks in an abusive manner at which Muhammad Ashraf my co-accused and myself attempted to capture him, but Gahna Khokhar intervened and stopped us from chasing him. At this Zafar Iqbal again returned and uttered " what have you done already, why, do not you take the Shalwar of your sister from our house" at this Muhammad Ashraf my brother lost control over his senses, picked up churri from the nearby Bhani of Ghana Khokhar and in the heat of movement ran after Zafar Iqbal deceased, over powered him and dealt him churri blows. As it happened all of a sudden, I could not restrain Muhammad Ashraf co-accused who had lost control over his senses due to the provocation offered by Zafar Iqbal deceased. I did not take part in the occurrence. None of the alleged eye-witnesses were present at the spot. Allah Rakha later on cooked up the injuries in order to become a witness. I am innocent. I was involved in this case falsely. The 1.0 planted false recovery of churri upon me by citing the close relations of the deceased as witnesses being in collusion with the complainant party".
Appellant (Muhammad Ashraf):- "All the PWs are closely related inter se and they have deposed against me due to their close relationship with the deceased and the complainant. Actually none of the witnesses (being residents of far off Bhanis) was present at the time of occurrence.
Actually Allah Rakha complainant having been persuaded by Qamar "Iqbal his son, demanded the hand of Mst. Nasreen alias Tahira from my father for him a few days prior to the occurrence to which my family did not concede and refused to same. About three days prior" to this occurrence Qamar Iqbal summoned Mst. Nasreen alias Tahira to his home therefore his sister Mst. Shaheen at the pretext of showing certain purchased which allegedly she had made from Khanewal. When Mst. Nasreen reached there house of the complainant, Mst. Nasreen was confined in a room with an intention to get Nikah Nama thumb marked, when she raised an alarm and upon hearing the noise, Mst. Nasreen Mai my sister, Muhammad Asghar my brother and my maternal uncle rushed to the spot, broke open the lock of the room and got released Mst. Nasreen from the clutches of the complainant party and brought her back with the broken lock with them. A `punchayae was convened regarding this occurrence in which it was decided that Qamar Iqbal will never pass his Bhani of the accused and both the .Parties will not have any further dealing with each other in future. But on the day of occurrence myself and Muhammad Asghar were cleaning the water course leading to the land of Meer Alam Shah our landlord, which passed by the Bhani of the complainant party when Zafar Iqbal passed by them passing taunting remarks and using abusive language, myself and Muhammad Asghar tried to catch hold of him but due to intervention of Ghana Khokhar we left him but Zaffar Iqbal again returned and taunted us by saying "what have you done already, why do not you take the Shalwar your sister from our house". Hearing this I lost control over myself and pick up a churri from the Bhani of Ghana Khokhar, ran after Zaffar Iqbal #nd due to sudden provocation I dealt churri blow at the body of Zafar Khokhar who fell down and I fled away from the spot due to the fear of the complainant party. The thanedar hauled up with of us i.e, me and Muhammad Asghar on the day of occurrence, kept us in wrongful custody till 01.06.2007 and subjected us to torture to please the complainant party and falsely planted the recoveries of churri what J did was under sudden provocation offered by Zafar Iqbal accused and losing control over my senses".
10. After conclusion of the trial, the learned trial court convicted and sentenced the appellants as detailed above. Hence, this appeal and murder reference.
11. Learned counsel for the appellants contends that occurrence did not take place in the manner as alleged in (Ex.PC) which is outcome of deliberations and consultations; that there is inordinate and unexplained delay between the occurrence, report and postmortem examination which is suggestive of the fact that inquest report was not available till 4.00 p.m; that there is absolutely no motive available to appellants for commission of Qatl-i-amd of Zafar Iqbal (deceased) as such the whole superstructure falls to the ground; that accused Asghar has no nexus with the commission of offence whatsoever as alleged by the prosecution; that there is an attempt to widen the net in order to involve two real brothers in this case. He also pointed out the contradictions, discrepancies and dishonest improvements made by the PWs. He had mentioned that the injury as stated by the prosecution witness on buttock of the deceased has not been found on record. Lastly adds that in case position taken by the accused is juxtaposed with prosecution case, the former sounds more plausible. He has prayed for the acquittal of the appellants.
12. On the other hand, the learned DPG has opposed appeal on the ground that occurrence being a day light affair seen by the prosecution witnesses whose testimony is fully corroborated by medical evidence. According to the learned Law Officer prosecution case is proved beyond a shadow of doubt.
13. We have heard the learned counsel, learned Deputy Prosecutor General and perused the record.
14. Ocular account in this case has been furnished by Allah Rakha (PW-4) and Shabbir Hussain (PW-5) who reiterated prosecution case set up in the (Ex.PC). Roles ascribed to both the appellants are almost corroborated by medical evidence. Injuries on the person of Allah Rakha (PW-4) although trivial in nature have not seriously been challenged by the defence. Churrs allegedly recovered at the instance of appellants are A found stained with blood. There is no report of Serologist on the file to determine the origin of the blood. There is a motive for the occurrence as well. This evidence led by the prosecution, at first sight implicates both the appellants with the crime. However, on a closer scrutiny of prosecution evidence and position taken by the appellants who are real brothers inter se, a different scenario is spelt out. Allah Rakha (PW-4) in his examination in chief shifted the motive of illicit liaison of appellant's sister with his younger son Qamar Iqbal to the deceased. Plea taken by Muhammad Asghar appellant is that on the fateful day, he in the company of his brother Muhammad Ashraf was busy in changing the water course leading to the land of one Amir Alam Shah when Zafar Iqbal (deceased) passed by them and taunted them in a abusive manner when Muhammad Ashraf reacted and attempted to capture him on the intervention of one Ghana Khokhar matter came to an end. It is Muhammad Asghar's plea that Zafar Iqbal deceased again returned and said, "what have you done already, why do not you take the shalwar of your sister from our house". According to the appellants, it was at this juncture when Muhammad Ashraf lost control over his faculties and taking a 'Churri' from nearby Bhani of Ghanna Khokhar chased the deceased and dealt him Thud.' blows. Both the appellants are in unison on this position which is suggested to the PWs as well as taken in their statements under section 342, Cr.P.C.
Evidence of Allah Rakha (PW-4) and Shabbir Hussain (PW-5) cannot be accepted as a whole truth merely because they are in concurrence with each other on the details of the occurrence and that medical evidence is in line with their narrations. In the attending circumstances of the case in hand, they must qualify on the touch stone of truthfulness and probability and this is a criterion which is not necessarily hinged upon the identical narrative rendition of details of the occurrence; such accounts can be successfully manipulated with precession. In order to ensure safe administration of criminal justice we must access the intrinsic value of a statement. When we juxtapose evidence of two eye-witnesses with the position taken by Muhammad Asghar appellant, on overall analysis of the prosecution evidence, we find that in the absence of Serologist report, prosecution has not been able to prove that occurrence took place at the spot where from blood stained earth was taken as there is no evidence on the record that blood taken was of human origin. Same is the case of blood stained 'churris' allegedly recovered at the instance of the appellants. According to the reports of Chemical Examiner (Ex.PM and Ex.PN) these were found stained with blood scrapings whereof were sent to the office of Serologist to determine origin of the blood. No such report is on the record in the absence whereof recoveries being inconsequential do not advance prosecution case. What is left in the field are statements of eye-witnesses versus statements of the accused. In so far as statements of the appellants under sections 342, Cr.P.C. Is concerned, these cannot be made basis to draw any adverse inference against the appellants as these are to be accepted in totality without slicing them favourably or otherwise. Learned trial Court ran into error in making a reference to the statements while recording appellant's conviction.
Now juxtaposing positions taken by the prosecution and the defence we take imputation allegedly made by the deceased, igniting the incident very seriously. In our society particularly in rural areas family honour, is guarded jealously. In this social background it is really hard to believe that a person in order to save his life would put forth the name of his sister, daughter or mother. It is equally hard to conceive that a person in order to save his neck would expose his real brother to the gallows. Blood is thicker than water. For the foregoing reasons, positions taken by the appellants sound more plausible and while sifting grain from Chaff we hold that involvement of Muhammad Asghar-appellant in the case is not free from doubt and it would be unsafe to maintain impugned judgment to his extent. Therefore, we allow Crl. Appeal No, 779 of 2009 to the extent of Muhammad Asghar-appellant and acquit him from the charges on all counts. He shall be released forthwith if not required in any other case. We maintain conviction of Muhammad Ashraf- appellant and dismiss Crl. Appeal No, 779 of 2009 to his extent; however, on the question of sentence, as observed above, prosecution withheld real circumstances leading to the incident, inconsequential nature of recovery of 'Churri' transposition of motive alleged in the complaint (Ex.PC) and deceased's own conduct, cumulatively make out a case for lesser penalty of imprisonment for life, which in our view will meet the ends of justice, therefore, we convert penalty of death awarded to Muhammad Ashraf appellant into imprisonment for life, his conviction and sentence under section 337-A(i) is maintained and amount of compensation is intact. Both sentences shall run concurrently with benefit of section 382-B, Cr.P.C. Murder Reference No,181 of 2009 is answered in NEGATIVE.