SARDAR MUHAMMAD DOGAR, J.~ This appeal is directed against the order dated 18-1-1988 of Additional Sessions Judge-II, Okara, whereby learned Adddl. Sessions Judge on having found Muhammad Ashraf aged 20-22 years, guilty of having committed the murder of Muhammad Naeem Hyder on 15-12-85 at 4-45 p.m., after trespassing into the clinic of Dr. Muhammad Nasar PW4, on Kutchery Road, Depalpur Town, had convicted him under Sections 302 & 449 PPC and awarded sentences as follows: - U/s. 302 PPC - Death plus to pay a fine of Rs. 10,000/- in default whereof to undergo R.I. For 2 years.
U /s.449 PPC - to undergo R.I. For 2 years plus to pay a fine of Rs. 1,000/- in default whereof to suffer further R.I. For six months.
Reference made by learned trial Judge under Section 374 Cr. P.C. For confirmation of death sentence is also before us. Both the matters are being disposed of together.
2. The occurrence was reported by Dr. Muhammad Nasar PW4 at Police Station Depalpur, on 15-12- 85 at 5-00 p.m. The F.I.R, was recorded by Ghulam Farid, Insp/S.H.O. PW13.
Accroding to F.I.R, the complainant was sitting at his clinic along with PWs Manzur Elahi, Ghulam Hyder and Muhammad Ibrahim, Muhammad Naeem Hyder (deceased) who was under treatment of the doctor, came there in a car. In the meantime the appellant also arrived there armed with a pistol. He fired a shot at Muhammad Naeem Hyder. Muhammad Naeem Hyder entered the shop for escape. Muhammad Ashraf appellant followed him. He threatened the PWs and fired at Muhammad Naeem Hyder hitting him on the head, neck and face. He fell down and died at the spot. When Muhammad Ashraf appellant reloaded the carbine, it went off suddenly, as a result of which he (the appellant) received injuries on his left palm. As the cartridges with the accused had exhausted, the complainant succeeded in catching him with help of P.Ws Manzur Elahi, Ghulam Hyder and Muhammad Ibrahim who had witnessed the occurrence.
Motive for the occurrence given in the F.I.R, is that Muhammad Naeem Hyder had filed an application for ejectment and recovery of share of produce of the land which was being cultivated by Muhammad Din father of Muhammad Ashraf and Rehmat Ali his paternal uncle.
3. The complainant also produced Muhammad Asharf and carbine (P13) along with empty (P14) taken form him (the appellant), before the S.H.O. The S.H.O, formally arrested Muhammad Ashraf and took into possession the carbine and the empty vide memo Ex. PH. Thereafter, he reached the spot and despatched the dead body for post-mortem examination after preparing inquest report Ex. PV and injury statement Ex. PW. He also prepared injury statement Ex.PX of the injuries found on the person of Muhammad Ashraf, and sent him to the hospital for medical examination.
Shirt (P15), shawl (P19) and Chaddar (P20) (all stained with blood), worn by him, along with 5-rupee currency note (P15), 1-rupees currency note (P17) and national identity card (P18), found on his person Were also taken into possession vide memo Ex. PI. The S.H.O, also collected bloodstained earth from the spot vide memo Ex. PJ and empty (P27) vide memo Ex. PL. Empty (P28) also found lying at the spot was taken into possession vide memo Ex. PM. Glasses (P23), Wrist watch (P24) and key of the car (P25) belonging to the deceased, found lying near the dead body, were also taken into possession vide memo Ex. PK. Bicycle (P.I) belonging to the accused and car belonging to the deceased were also taken into possession vide memos. Ex. PN and PO respectively.
Copies Ex. PB, PC, PD and PE of the cases pending between the parties, produced by Amal PW, were also taken into possession.
4. The S.H.O, moved application Ex. PT on 16-12-85 for recording statement of Muhammad Ashraf (appellant) under Section 164 Cr.P.C. He produced him before the Magistrate who recorded the statement of the appellant on the same day, which was tendered in evidence as confessional statement and was exhibited as PT/4.
The challan was submitted to Court after completion of necessary investigation.
5. At the trail prosecution all examined fourteen witnesses. Positive reports Ex. PY and PZ from the offices of the Chemical Examiner and the Serologist were also tendered in evidence.
Dr. Malik Muhammad Afzal who had performed autopsy on the dead body of Muhammad Naeem Hyder at 8-30 a.m. On 16-12-85, appeared as PW10. He had noted thirty-eight firearm injuries on various parts of body of the deceased, 8 of which were on different parts of the head, 5 were on different parts of the neck and the others were on the face, arms and hands. The injury numbered as 7, included description of four wounds on the pigna and one in front of tragus.
Apart from 38 injuries opined to have been suffered by firearm, he had also noted two more injuries, i.e. No. 39 and 40, caused by blunt weapon. They were abrasions on the left knee and superficial lacerated wounds on the right leg.
Death was opined to have occurred due to injuries No. 1 to 6, which were on the head, No, I6 which was on the right eye and No. 26 which was on the upper lip, and had injured inner side & tore gums upto the root of teeth, Death was opined to have occurred within two minutes of the infliction of injuries while the post-mortem was opined to have been performed within about I6 hours.
During cross-examination the doctor expressed his inability to state about the result of different injuries by different shots.
6. The same doctor had also examined Muhammad Ashraf appellant on 15-12-85 at 7-00 p.m. And had noted injuries on his left ring finger, a laceration on the ulnar side of left middle finger, a laceration muscle deep on the plan of left hand and an irregular laceration on the ulnar side or left hand. The said injuries were opined to have resulted form a firearm within about two hours.
7. The ocular account was deposed to by Dr. Muhammad Nasar PW4, Ghulam Hyder PW5 and Manzur Elahi PW6. Dr. Muhammad Nasar repeated the facts given by him in the F.I.R. The other two witnesses corroborated his statement.
8. The defence did not succeed in linking any of the witnesses with the deceased either by way of relationship or any other connection of intimate nature. Interse, as well no relationship was proved.
All that, came on record is that they were known to each other. The only connection of the deceased with PW4 was that of patient and physician.
9. Muhammad Asam Khan, Magistrate who had recorded confessional statement Ex. PT/4 of the appellant on 16-12-85 at the request of the Investigating Officer, appeared as PW11 and verified the said fact. He clarified that he had recorded statement of the accused after removing his handcuffs and turning out the Police officials. He also stated that he had given time to the accused to think for himself to decide whether he wanted to make confessional statement or not. He further stated that before recording statement he had told him that if he makes a statement, it can be used against him as evidence for conviction under Section 302 PPC and in spite of that he insisted to make a statement. He was informed that he will be sent to the judicial lock-up, which in fact the Magistrate ordered after the recording of statement.
10. Ghulam Farid, Insp./S.H.O. Who had registered the case and arrested the appellant on being produced before him and taken into possession the weapon of offence, appeared as PW13 and gave the details of the investigation.
During cross-examination he denied the suggestion that he had coerced the appellant to make a confessional statement. He admitted that the appellant was kept in the Police lock-up for the night between 16th and 17th of December, 1985, after he had been ordered to be sent to the jail by the Magistrate but explained that it so happened, as it had gone late and the Police van which was to carry the accused to judicial loc-up had already left. He denied the suggestion that he had investigated the case partially and dishonestly.
11. The appellant during his statement under Section 342 Cr. P.C. Denied the prosecution case as a whole and pleaded innocence. He did not deny the pendency of the ejectment suit filed by the deceased against his father and uncle. While denyin, that he had committed intentional murder, he put his own version in answer to ne question, 'why the P.Ws, have deposed against you and why this case against ,ou?. In that, he stated as follows:- "The P.Ws are connected with the deceased. Some of them are relatives of the deceased and rest of them are connected with him on one way or the other. My father and unde had purchased five acres of land each. The deceased got these lands transferred in his name with an object to become Khewatdar because he wanted to pre-empt some other sales. There was an understanding between the deceased and my father and uncle that their lands would be restored to them after the deceased had obtained pre-emption decrees in his favour. The litigation got lengthy and during this period the deceased handed over to us 4\ acres of land for our substance with the promise that he would ultimately return our land. Later on he started instituting suit to eject us. He did not return our lands in spite of our requests, we filed suits for specific performance of the contract against the deceased. We obtained the injunction orders and next date of hearing was fixed for 16-12-85. Deceased was annoyed with me on this case and threatened my life. The deceased was related to Dr .Nisar PW and have also friendly relations with him. On 15-12-85 at about 6 p.m I went to the clinic of Dr. Nisar to make request to Dr. Nisar that he should prevail upon the deceased and help us to get our lands restored to us. The deceased was present in the clinic.
No other PW was present in the clinic. However, I made request to him but he got infuriated and he fired at me with his carbine and injured my left hand. He wanted to fire second shot but in the meantime I grappled with him. In this process the glasses and wrist watch of the deceased fell down on the ground. Glasses and come cartridges fell on the ground from the pocket of the deceased. In the meantime the deceased picked up surgical tool and assaulted me. Apprehending my death I fired with carbine in self-defence. I myself appeared in the Police Station. The Police threatened me and coerced me to get a statement from me. They also threatened me to involve my father, my uncle and other relatives in case I did not make any confessional statement as there were many injuries on the person of the deceased. At about sun set the Police produced me at the residence of the officer and there my signatures were obtained on certain papers. I was again brought back to the police lock-up. I had no intention to kill the deceased. I and deceased resided in the same village and it was very easy for me to kill him, if I have any intention. I am innocent."
He also examined in defence Muhammad Hassan, Head Draftsman of Wapda. Inter alia, he stated that on the day of occurrence load shadding had been ordered by the S.E. He produced a copy of the order of the S.E., which, however, did not bear signatures of the S.E. He conceded during cross- examination that there was no certificate from the Executive Engineer that the order had been complied with.
12. The prosecution had also tendered in evidence copies Ex. PD and PE of the suits filed by Rehmat Ali son of Jan Muhammad uncle of the appellant and Haji Muhammad Din son of Jan Muhammad father of the appellant against Muhammad Kaleem, Hyder Khan minor son of the deceased and the deceased himself for specific performance of agreement to sell the land, which he had entered into with them. Therein they had claimed that the land was in their possession, Both the suits had been filed 'on 16-11-85, i.e. a month before the occurrence.
Copies Ex. PB and PC of applications filed by the deceased against Muhammad Din and Rehmat Ali (father and uncle of the appellant) before the Tehsildar, Depalpur with powers of Assistant Collector, for their ejectment and for recovery of produce from the land in possession of the respondents (Muhammad Din and Rehmat Ali), had also been tendered in evidence.
13. We have gone through the evidence with the assistance of learned counsel for the appellants and have considered the contentions raised by learned counsel for the appellant as well as learned counsel for the State and the complainant.
14. It is not the case of the defence that the appellant was falsely involved in the case by way of substitution. The plea of the appellant at the trial, was, that he had acted in self-defence and had fired at the deceased which resulted in .with, after having snatched pistol from him when he had launched attack on him with an intention to commit his murder.
The case before us, thus, is of two versions. Both the versions have to be juxta posed to reach a conclusion whether the prosecution version is confidence inspiring and can be acted upon for the safe administration of justice or the version put forth by the appellant possesses semblance of truth and bears enough strength to create doubts in the prosecution version.
15. As noted in the earlier part of the judgment all the three eyewitnesses in this case were independent and un-interested. They were neither related inter-se, nor inimical to the appellant.
The suggestion put to the complainant durign cross-examination that the relatives of the deceased had reached the spot and the case was registered against the appellant in consultation and collaboration with them, in our view, possesses no substance. Our reasons, for recording such a finding is that had any-one of the relatives of the deceased arrived at the spot before the F.I.R, was lodged, someone of them would have definitely come up as a witness. Even if none of them had come up as an eyewitness, they would have been atleast associated as witnesses of recoveries, all of which were effected on the same day, after the registration of case. The recoveries included not only the weapon of offence snatched form the accused but also his belongings as well as the belongings of the deceased from the spot. It is clear from the record that none of the relatives of the deceased had attested the recovery memos. Obviously, we find no justification in discarding testimony of eye witnesses. The suggestion put to each one of them that they had not witnessed the occurrence, was rejected by them categorically. In fact the suggestion put to Dr. Muhammad Nasar PW that he was not present at his clinic when the occurrence had taken place, even otherwise appears to be without any substance because there could have been no reason for him to be absent. He was not residing at Depalpur and lised to come from Okara daily only for running his clinic. As such he could not have been absent from the place of occurrence. The story/suggestion put to him that his daughter had been engaged to a relative of the deceased, proved to be a hox, as while refuting that suggestion he stated that his daughter was only aged 1- 1/2 years.
16. The defence version put forth by the appellant even otherwise is incongruent with the sequence of the events and happenings. In that, the appellant was found to have suffered injuries on the hand. Had he been injured prior to the infliction of injuries to the deceased, he could not have handled the pistol because for causing a number of injuries, found on the body of the deceased, he was required to have reloaded the pistol more than once, which with an injured hand, he could not have done. The explanation given by the P.Ws. Regarding sufferance of injuries by him, seems to be more probable and worth relying upon.
17. Apart from all what has been observed above, we find no reason to disbelieve or discard the confessional statement (Ex. PT/4) made by the appellant, to Mr. Muhammad Asam Khan, Magistrate PW11. The statement was made by him on the following day of the occurrence and in less than 24 hours since he was taken into custody by the Police. The Magistrate, as noted in the earlier part of the judgment, provided him all opportunities and facilities to ward off any influence or fear, if there had been any, In fact, the statement made by him about the dispute of land between the deceased and his father as well as his uncle, finds support from the documents placed on record, which he himself, did not disown while making statement under is 'petition 342 Cr. P.C. As such, the prosecution version gets full support from the s id statement as well.
18. For the reasons noted above, we have no reason to doubt that the prosecution succeeded in proving the case against the appellant, for having committed the offence under Section 302/449 PPC.
19. We are, however, not inclined to confirm the extreme penalty of death awarded to the appellant.
Our reasons, for that are, that it is apparent from the copies of the suits for specific performance filed by the father and uncle of the appellant against the deceased and his minor son that the deceased was not transferring the land they had purchased from him, in spite of the fact of having received the sale price, though the possession of the land was with the father and uncle of the appellant. Not only the deceased had refused to regularly transfer the land but had also filed ejectment applications wherein prayer had been made for recovery of produce as well. It is also clear from the reading of the evidence that the deceased was a well to do land-owner while the appellant belonged to a family of low means. It seems that the deceased by having refused to transfer the land sold by him to the father and uncle of the appellant and by having resorted to get them ejected form the land, has pushed the family to the wall, which must have caused a lot of frustration to all members of the family including the appellant who a young boy of 20-22 years.
The offence seems to have been committed by him in utter frustration which resulted from the doings of the deceased. In fact the appellant, gave out all that, in the statement that he made before the Magistrate on the following day of the occurrence. The reason, on the strength of which we are visualising to alter the extreme penalty of death to lesser penalty of imprisonment for life, was given by the appellant within less than 24 hours of his arrest in the case, in the confessional statement made by him on 16-12-85. In fact, what he stated therein, was his first version and plea.
For the reasons enumerated above, we decline to confirm the sentence of death, and instead alter the same to imprisonment for life. The sentence of fine on that account is maintained. However, whole of the fine, on recovery shall be paid as compensation to the legal heirs of the deceased.
The conviction and sentences of the appellant under Section 449 PPC are also maintained. The sentences awarded on both the counts shall run concurrently.
The appellant shall also be given benefit of the provisions of Section 382-B of the Code of Criminal Procedure.
Death sentence not confirmed.