Muhammad Sarwar son of Muhammad Sadiq was charged by the learned trial Couit in case FIR No, 321 dated 01.11.2012 registered under Sections 302/34, PPC at Police Station Ghazi Abad, District Sahiwal as under:-- "That on 01.11.2012 at about 02,00. am. (night) in the area of Chak No, 28/11-L Chichawatni within the limits of P/S Ghazi Abad, Chichawatni, you accused named above alongwith your co-accused (since P.O.) with your common intention committed Qatl-e-Arnd of Muhammad Salim by inflicting hatchet blows. Thus you committed an offence punishable u/S. 302/34, P.P.C., which is within the cognizance of this Court.
Learned trial Couit vide its judgment dated 06.11.2014 found Muhammad Sarwar guilty of committing qatl-e-amd of Muhammad Saleem and convicted him under Section 302(b), P.P.C. and awarded imprisonment for life as Ta'zir. He was also directed to pay Rs,2,00,000/- as compensation to the legal heirs of deceased Muhammad Saleem in terms of Section 544-A, Cr.P.C., in default of payment, he shall further undergo simple imprisonment for one year. Benefit of Section 382-B, Cr.P.C. was also extended to him.
Convict Muhammad Sarwar has challenged his conviction and sentence through the instant Criminal Appeal No, 16-J of 2015.
2. Brief facts of the case are that during the night of 31/1-10/11.2012, his son Muhammad Saleem and Muhammad Aslam went to the house of their relative Muhammad habbir in order to watch T.V. at about 10.00 p.m. At about 02.00 a.m. in the night, they returned home from the house of Muhammad Shabbir. When they reached near the house of Muhammad Sarwar accused who armed with hatchet and accused Nasir Mehmood since P.O. armed with Sota came there. They forcibly stopped his son Muhammad Saleem and started to drag him into their house. On hue and cry of Muhammad Saleem etc., he and Muhammad Shehzad also attracted to the place of occurrence. They tried to rescue Muhammad Saleem but both the accused threatened them that whoever came nearer will not be spared. Both the accused caught hold of Muhammad Saleem and dragged him into the room of their house. Complainant and PWs also entered the house to rescue Muhammad Saleem. There, in their view, Muhammad Sarwar accused inflicted hatchet blows to Muhammad Saleem which landed on his head, left cheek, upper lip and also on his forehead while accused Nasir Mehmood caught hold of Muhammad Saleem. The complainant and PWs tried to rescue Muhammad Saleem but the accused threatened them of dire consequences.
Muhammad Saleem fell down on the ground in seriously injured condition and both the. accused decamped from the place of occurrence with their respective weapons. Muhammad Saleem deceased succumbed to the injuries at the spot. The motive behind the occurrence was that Muhammad Sarwar accused had suspicion of illicit relations of Muhammad Saleem deceased with his daughter namely Naila, due to this grudge accused Muhammad Sarwar and Nasir Mehmood with their common intention committed the murder of Muhammad Saleem deceased.
3. I have heard the learned counsel for the appellant and learned Deputy Prosecutor General representing the State duly assisted by the learned counsel for the complainant and have also gone through the record.
4. Occurrence in this case took place during the night of 31/01.11.2012 and matter was reported to police on 01.11.2012 at 8: 45 a.m., on the complaint of Muhammad Ali father of deceased Muhammad Saleem. PW-3 Dr. Kazim Hayat, Medical Officer THQ Hospital Chichawatni conducted post-mortem on the dead body of deceased Muhammad Saleem on 01.11.2012 at 10:30 a.m. and found five injuries on the body caused by sharp edge weapon. According to him probable duration between death and post-mortem is 2 to 14 hours and received papers before post-mortem examination at 10:30 a.m. Prosecution is required to explain the delay in lodging FIR as well as belated post-mortem of the deceased Muhammad Saleem. PW-8 Muhammad Ali is complainant of the case, deposed before the trial Court as under: "About one year and seven months back Saleem and Muhammad Yaseen came back from Lahore to my house in order to celebrate Eid-ul-Ezha. On the same night at about 10:00 p.m. my son Muhammad Saleem and Muhammad Aslam went to the house of Muhammad Shabbir and his wife Mst Bashiran Bibi in order to watch T.V. At about 2/2:30 a.m. night they returned back from the house of Muhammad Shabbir my relative. When they reached near the house of Muhammad Sarwar accused where accused Muhammad Sarwar armed with hatched and Nasir Mehmood since P.O. armed with sota came there. I and Muhammad Shehzad also attracted to the place of occurrence on hearing noise. Nasir accused caught hold Muhammad Saleem deceased and both the accused forcibly took my son in the house of Muhammad Samar accused. Then, in our view Muhammad Sarwar accused inflicted hatchet blow to Muhammad Saleem deceased which landed on his lip, forehead and second hatchet blow which landed on his left eye. Nasir accused caught hold jappha to Muhammad Saleem deceased On our hue and cry the accused persons decamped from the place of occurrence with their respective weapons. Muhammad Saleem deceases succumbed to the injuries at the spot.
The motive behind this occurrence was that Muhammad Sarwar accused had suspected over illicit relations of Saleem deceased with his daughter namely Naila due to this grudge accused Muhammad Sarwar and Nasir Mehmood with their common intention committed the murder of Muhammad Saleem deceased."
According to PW-8 Muhammad Ali house of appellant Muhammad Sarwar is situated at a distance of two and haif acres towards south and also admits that Muhammad Sarwar is his relative and prior to this occurrence complainant as well as appellant Muhammad Sarwar were on visiting terms with each other. According to him, he arrived at the place of occurrence when the accused was infltcing injuries, however, he could not tell exact time. He further stated that he was informed by Muhammad Aslam that murder of Muhammad Saleem was being committed by Muhammad Sarwar appellant. PW-9 Muhammad Aslam another eye-witness of the occurrence supported the version advanced by PW-8 Muhammad Ali complainant of the case who is `Behnoi' of PW-8 Muhammad Ali. He also verified that earlier to this occurrence no grudge existed between Muhammad Ali complainant PW-8 and Muhammad Sarwar appellant and both families had cordial relations with each other. According to him, there are 3/4 houses between his house and house of appellant Muhammad Sarwar. He categorically stated that he informed about the occurrence to his `Behnoi' Muhammad Ali complainant of the case. This shows that complainant of the case Muhammad Ali PW-8 did not witness the occurrence. But manners of occurrence narrated by PW-9 Muhammad Aslam also does not appeal to prudent mind and makes his availability at the time of occurrence doubtful. PW-8 Muhammad Ali stated before the Court that it was dawn time when he proceeded to Police Station at foot and Investigating Officer met him at `Adda' 26/11-L mor and thereafter police came to the place of occurrence. This further added doubts as to the availability of eye-witnesses at the time of occurrence. Muhammad Aslam SI PW- 12 who conducted investigation in the case stated that when he received information regarding the alleged murder of Muhammad Saleem at 26/11-L mor at 8.30 a.m. on 1.11.2012, he went to the place of occurrence. Both the eye-witnesses PW-8 Muhammad Ali and Muhammad Aslam PW-9 were suggested by the defence that it was cold night and fog when deceased Muhammad Saleem went to the house of Muhammad Sarwar accused/appellant deceased Muhammad Saleem had illicit relations with Naila daughter of the appellant Muhammad Sarwar, who found deceased Muhammad Saleem in compromising position with his daughter Naila in the `Bhaithak' of his house which provoked the appellant Muhammad Sarwar who lost his control over himself and caused death of Muhammad Saleem son of the complainant. Appellant Muhammad Sarwar when examined u/S. 342, Cr.P.C. stated as under: "It is all incorrect. The story of the FIR is totally wrong. In fact at that night I was sleeping in my house with my wife and children. At about 2:00 am. (night) I awoke up for the purpose for watering the fields. I entered in second room of the house where "Kassi" and hatchet was lying. I entered in the room and on the electricity bulb where. I saw the deceased namely Saleem and my daughter in compromising position. Upon which the deceased caught hold hatchet and he tried to inflict hatchet blow to me immediately. I found my life in danger. I inflicted "Kassi" blow to the deceased in my self defence. All the PWs are related inter-se, nothing was recovered on my pointation and alleged hatchet was planted on me by I.O. The deceased was not "Masoom-uI-Dam".
5. After perusal of evidence adduced by both the eye-witnesses PW-8 Muhammad Ali and PW-9 Muhammad Aslam, suggestions put to them by the defence and statement of the appellant Muhammad Sarwar recorded u/S. 342, Cr.P.C., it transpires that two versions have been brought on record, one by complainant Muhammad Ali PW-8 and other is by appellant Muhammad Sarwar.
Significant aspect of the case is that both the parties earlier to this occurrence were on pleasant terms. It has been argued by the learned counsel for the complainant that since Muhammad Sarwar has taken plea of grave and sudden provocation, so, burden is on him to establish the said plea. This contention of learned counsel for the complainant is misconceived. Law had laid burden on the prosecution to prove its case and cannot take advantage of the lapse, omission or failure of appellant/accused to explain certain facts of the case. In this regard guidance may be sought from the judgment reported as "Ashiq Hussain alias Muhammad Ashraf v. The State (PLD 1994 SC 879)" wherein it was held: "Taking Point No, (i), we find that the prosecution and the accused both parties admitted the occurrence but have given different versions. Onus lies on the prosecution to prove its case through reliable evidence, direct or circumstantial, and that too, beyond reasonable doubt. In the instant case, the. High Court has discussed the defence plea/case/evidence first and after rejecting it, has considered and believed the prosecution case/evidence. We cannot help remarking that the High Court has approached the case in an entirely illegal and improper manner insofar as it has discussed the defence case first and then the prosecution case. After rejecting the defence case, the High Court has accepted the prosecution case. This is, to say the least, a topsy- turvy way of dealing with a criminal case and cannot be approved by this Court. 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 a 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 probability 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 of counter-versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing 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 juxtaposition 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 the defence 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 has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly. "
In Balmakund's case AIR 1931 All.
1. The Full Bench noted that during the last one hundred years the following two rules of criminal jurisdiction have been consistently observed without any attempt to engraft as exception:--
(a) Where there is other evidence a portion of the confession may, in the light of that evidence, be rejected while acting upon the remainder with the other evidence.
(b) Where there is no other evidence, the Court cannot accept the inculpatory element and reject the exculpatory element as inherently incredible.
In the case of Rahim Bux PLD 1952 FC 1 also it was held that where the conviction is based entirely on the statement of the accused then that statement should be taken into consideration in its entirety.
6. When the present case is analyzed on the touchstone of principles laid down in the above referred case, it can safely be concluded after appreciating the facts and circumstances of the case noted and discussed above that availability of both the eye-witnesses PW-8 Muhammad Ali complainant of the case and PW-9 Muhammad Aslam could not be established by the prosecution. Once the ocular account is disbelieved then no other evidence even of a high degree and value, would be sufficient for recording conviction of capital charge. In present case statement given by the appellant u/S. 342, Cr.P.C. is to be believed or disbelieved in its entirety and if any offence is made out according to the facts disclosed by him then he is to be punished accordingly.
Appellant Muhammad Samar was provoked after finding his daughter Naila and deceased Muhammad Saleem in objectionable position and lost his control. This brings instant case out of preview of Section 302(b), P.P.C. and instead provisions of Section 302(c), P.P.C. will apply.
According to law laid down in case of "Ali Ahmad v. Ali Muhammad and another (PLD 1996 SC 274)", exceptions given in the erstwhile provision of Section 300, P.P.C. fall within the domain of provision of S. 302(c), P.P.C. It would be advantageous to reproduce exceptions to the erstwhile Section 300, P.P.C. which are as under: " Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-- Secondly.--If it is done with intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-- 3rdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-- 4thly.--It the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos: First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.--Culpable homicide is not murder if the offender being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith believes to be lawful and necessary for the due discharge of his duty as such public servant and withouttowards the person whose death is caused.
Exceptions 4.--Culpable homicide is not murder If it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
It is noticed that appellant caused five incised wound on the dead body of the deceased Muhammad Saleem which he had exceeded and had taken undue advantage.
7. For what has been discussed above; prosecution has failed to establish its case against appellant Muhammad Sarwar and by accepting his plea in its entirety, his conviction u/S. 302(b), P.P.C. is set aside and is converted into S. 302(c), P.P.C. Keeping in view the facts and circumstances of the case, sentence of ten years rigorous imprisonment is awarded to the appellant Muhammad Sarwar which will meet the ends of justice. Compensation awarded' in terms of Section 544-A, Cr.P.C. is set aside. Benefit of Section 382-B, Cr.P.C. is also extended to the appellant. Instant Criminal Appeal is dismissed in the above terms.