MOHAMMAD BASHIR JEHANGIRI, J.- Zulfiqar, aged about 16/17 years son of Sain Gul Bahar, resident of Hattar, stood his trial in the Court of a learned Additional Sessions Judge, Haripur, under section 302 P.P.C, for having committed on 28.7.1988 at 'Duphar Wela' the murder of Jawaid Khan son of Haji Sarwar Khan, resident of Dingi in 'Bhendar Dhurian Dherian', by firing at him in the area of village Hattar. At the conclusion of the trial, vide the judgment dated 9.3.1991, he was found guilty of offence under section 304 Part-1 of the P.P.C, and was sentenced to rigorous imprisonment for 5 years and a fine of Rs. 2,000/- or in default to undergo further rigorous imprisonment for 6 months.
The benefit of section 382-B Cr.P.C, was also extended to the convict-appellant. Ajab Khan brother of the deceased has challenged in this Criminal Revision the conviction of the accused- respondent under section 304 Part-1 PPC as well as his sentence to rigorous imprisonment for 5 years and fine of Rs. 2,000/- or in default the rigorous imprisonment of 6 months with benefit of section 382-B Cr.P.C.
2. _ By Virtue of this Criminal Revision Ajab Khan, petitioner, has prayed for the reversal of the impugned judgement and retrial of the accused-respondent under section' 302 P.P.C, after remaining the case to the Court of another competent Judge or, in the alternative, for the enhancement of the sentence and fine and payment of compensation to the heirs of the deceased which is found to be commensurate with the gravity of the of fence.
3. The brief facts of the case as alleged in the F.I.R, lodged by the convict-respondent himself in Police Station, Khanpur, on 28.7.1988 at 2100 hours are that he alongwith his parents and an elder sister, who was physically disabled by some defect in her legs, was living in the area called 'Dhaurian Dherian' within the limits of village Hattar. His sister Mst. Rashida was married to Mohammad Ashiq. On the occasion of Eid she had come to the house of her parents. At about noon time Mst. Nazeeran mother of the accused and Mst. Khabib, elder sister, were in the cave- house while the accused-respondent was grazing his cattle in the adjacent jungle. All of a sudden he heard alarm of his sister Mst. Rashida from the direction of Bhundar. He rushed towards that direction and witnessed a young man committing Zina-bil-jabr with Mst. Rashida. He ran towards his cave-house and took out a licensed .12 bore shot gun of his father with 4 cartridges and ran after them. On seeing him the boy who had been identified by the accused- respondent as Javaid Khan son of Sarwar Khan, resident of Dingi, and was his landlord, started running from the spot. The accused-respondent, however, on reaching near him fired at his head as a result of which he bowed down. The accused-respondent then fired another shot which hit him on his back.
Thereafter the accused-respondent re-loaded the shot gun and fired two more shots. In the meantime his sister had gone towards their cave-house. Meanwhile his mother ran towards him and snatched the gun from him. Jawaid had succumbed to the injuries. The accused-respondent straightaway went to village Sarai Gadai where his uncle Miskin resided and informed him about the occurrence so that he should go to his father to Rawalpindi where he had gone for his treatment and also inform him about the occurrence. Thereafter the accused-respondent repaired to village Hattar and informed Malik Mohammad Sarwar Ex-Member of the Union Council, who took him to the Police Station where he lodged the report saying therein that Mohammad Jawaid Khan son of Sarwar Khan, resident of Dingi had committed-Zina-bil-jabr with his sister, therefore, he had killed him.
4. Maghfoor-ur-Rehman S.H.O., Police Station, Khanpur (P.W.8) after registration of the case vide F.I.R. Ex.PA, arrested the accused there and then and himself proceeded to the spot. Mst. Nazeeran mother of the accused- respondent produced to him a D.B. Shot gun alongwith a licence copy in the name of Gul Bahar and sealed into a parcel vide memo Ex. P.W.8/1. On 29.7.1988 vide his application Ex.P.W.8/2 Maghfoorur Rehman S.H.O, got Mst. Rashida sister of the accused- Respondent and wife of Mohammad Ashiq medically examined. Mohammad Nazir A.S.I. (P.W.4) produced to him a sealed parcel containing trousers P.I of Mst. Rashida and a sealed phial P-l/1 containing some swa bs sent by the lady doctor Nageena Parveen of Rural Health Centre, Hattar.
On the same day Mohammad Iqbal F.C. (not examined) produced blood stained shirt P-1, Shalwar alongwith string P-2 and jacket P-3 of the deceased delivered to him by Dr. Ikramullah (P.W.3) who had conducted the autopsy on the dead body of the deceased. The blood stained earth, the clothes, the swa bs taken by the lady doctor, the shirt and the jacket blood stained were sealed into four different parcels and were sent to the Serologist and Arms Expert. He recorded the statements of the P.Ws. According to Maghfoorur Rehman S.H.O, the complainant party had challenged the veracity of his investigation and for that purpose had moved applications against him and other Investigating Officers, therefore, the senior police officers directed him to get the confessional statement of the accused recorded. On 27.8.1988 Maghfoor-ur-Rehman S.H.O, accordingly produced Zulfiqar accused-respondent before Raja Gustasap Khan a Magistrate of the First Class, Haripur, (P.W.7) who recorded his confessional statement Ex. P.W.7/2. In this confessional statement Zulfiqar accused-respondent has substantially reiterated the details of the incident culminating in the murder of Jawaid Khan deceased. Ultimately on completion of the investigation, Maghfoor-ur- Rehman S.H.O. (P.W.3) submitted complete challan against the accused-respondent.
5. On the commencement of the trial the respondent was charged under section 302 P.P.C, and on pleading not guilty, the prosecution produced as many as 10 witnesses. Of them Dr. Akramullah (P.W.3) who had carried out the postmortem of the dead body of Jawaid Khan deceased had found the following: - "i) Firearm wounds on the left hand, multiple in number, of variable sizes with associated bony lesion and loss of tissue.
Ii) Firearm exit wound on the left upper-chest 5 to 6 in number 1/6" % 1/8" in size penetrating the thorasic cavity: iii) Firearm entrance wounds on the left shoulder back i.e. Scapular region, of variable sizes and about 12 in number.
Iv) Firearm entrance wound on the fore-head measuring 1/8" x 1/10".
On internal examination thorasic walls, pleasure, left lung, blood vessels were found injured while ribs were found fractured and so were the scapula clavicle and left upper 4th and 5th ribs.
According to him, the probable time that elapsed between injury and death was 30 minutes to one hour and that between death and post-mortem was about 20 to 24 hours.
6. The other witness was Mohammad Nazir A.S.I, who testified to the pointation of the dead body by Zulfiqar accused whereupon he had prepared the pointation memo Ex.P.W.4/1; that he had recovered blood stained earth, three plastic card boards P-4 which were taken into possession and separately sealed into parcels vide memo Ex. P.W.4/2. He also deposed to have prepared the Injury Sheet Ex. P.W.4/3 of the deceased and had despatched the dead body for postmortem examination under the escort of Mohammad Iqbal P.W. Lady Dr. Nagecna Parveen (P.W.6) testified to the correctness of her report of medical examination of Mst. Rashida vide her report Ex.P.W.6/1.
Raja Gustasap Khan, Magistrate of the First Class (P.W.7) had deposed to have observed all the legal formalities in recording the confessional statement Ex.P.W.7/2 and testified to the correctness of the certificate Ex.P.W.7/3 appended thereto. Maghfoorur-Rehman S.H.O. (P.W.8) deposed about the verification of the investigation carried out by him. Ajab Khan petitioner herein (P.W.5) and Haider Zaman (P.W.10) were examined to controvert the allegation of the accused-respondent that he had murdered Jawaid deceased under grave and sudden provocation and instead they deposed that the accused-respondent has murdered Jawaid deceased because the accused- respondent and his father were pressing hard for some more irrigated land for cultivation which was denied by the deceased and, therefore, they had advanced this cock and bull story and done the deceased to death and further that Jawaid deceased had taken the land in possession of the father of the accused- respondent for constructing the houses for some other tenants with a view to giving the land to them over which the accused-respondent was annoyed.
7. The accused-respondent in his statement recorded under section 342 Cr.P.C, denied the motive part of the prosecution case alleged by P.Ws. Ajab Khan and Haider Zatnan.
He also denied all the incriminating circumstances figuring against him in the prosecution evidence. When asked as to what was his statement and why has he been charged, the accused- respondent stated as under:- "On the day of occurrence at about noon time I was grazing my cattle while my sister Rashida who had also come to our house and my other sister who is an infirm one were present in our house which is situated in a cattle cave. I heard the hue and cry of Mst. Rashida Bibi from an unhabited bunder. I rushed towards my house, picked up the shot gun of my father and ran towards that place where from I heard the hur and cry of my sister Mst. Rashida. When I reached there 1 noticed a young body committing "Zina-bil-Jabr" with my sister who was fired at by me when he was to run away from there. With the fire shots he fell down and on reaching close to them I noticed that he was Jawaid s/o Sarwar Khan of village Dingi and on my inquiry my sister told me that he had committed Zina-bil-Jabr with her. I could not control myself seeing him committing Zina-bil-Jabr with my sister Mil.Rashida so under grave and sudden provocation fired at him and killed him. I informed Malik Sarwar Member Local Council and took him with me to the P.S. Where I lodged the report Ex.P.A. About the occurrence, and subsequently made a confessional statement before a Magistrate. I am innocent".
8. On the conclusion of the trial and after hearing the learned counsel representing the parties, the learned trial Judge by the judgement now under challenge, as stated earlier, convicted him under section 304 Part-1, P.P.C, and sentenced him to rigorous imprisonment for 5 years and fine of Rs.
2,000/- or in default of payment to undergo further rigorous imprisonment for 6 months. Aggrieved by these findings the complainant had filed this criminal revision.
9. Mufti Mohammad Idris, learned counsel for the complainant- petitioner, submitted that the motive, the circumstantial evidence and the manner in which the wanton murder had been committed clearly attracted the provision of section 302 P.P.C. He had also challenged the bonafides of investigation by the police for interior motives in view of the sworn testimony of the petitioner (P.W.5) and Haider Zaman (P.W.10) particularly the latter one who was completely disinterested person which clearly established the murder of the first degree coupled with the number of shots and the seats of various injuries. According to the learned counsel for the petitioner, it was a clear mis-reading of the report of Forensic Science Expert and the deductions made therefrom were not borne out by the facts established on record. In my case, according to the learned counsel for the petitioner, from the narration of the facts by the accused in the F.O.R.
And subsequently reiterated by him in his statement under section 342 Cr.P.C, a clear case of murder has been made out. The learned counsel for the petitioner had serious reservations on the non-production of the alleged victim of rape, namely. Mst. Rashida after her medical examination when she had spent a night with her husband which had exposed the weakness of the case of the accused-respondent. Similar criticism was made against the prosecution for their failure to produce the sister and mother of the accused-respondent who were cited as prosecution witnesses but were with-held with ulterior motives and which, according to the learned counsel, smacked of the dishonesty of the police. Lastly, the learned counsel for the petitioner arguerd that from the facts adduced on the record coupled with the stand of the accused-respondent when placed in juxtaposition with the prosecution case may render it a case of grave provocation but not sudden one which may be taken into consideration as mitigating circumstance but would not attract the ingredient of section 304 Part-1 P.P.C, and that in any case even if section 304 Part-1 was attracted the sentence of imprisonment awarded and the fine imposed upon the accused- respondent were not commensurate with the manner and the gravity of the offence.
10. On the contrary, it is argued on behalf of the respondent that the evidence of two so-called prosecution witnesses, namely, Ajab Khan (P.W.5) and Haider Zaman (P.W.10) was full of improbabilities and therefore, the learned trial Judge was perfectly justified in convicting the accused-respondent under section 304 Part-1 of section 302 P.P.C. According to the learned counsel the so- called motive which had been tried to be substantiated by Ajab Khan and Haidar Zaman P.Ws, besides being belated one was bereft of true facts.
11. After going through the evidence of Ajab Khan and Haider Zaman (P. Ws.5 and 10 respectively) I have no hesitation to hold that their testimony inspires no confidence, firstly, because it was belated one and secondly, that it was full of improbabilities. Both then have set up a case of culpable homicide amounting to murder which does not at all sound reasonable and is bereft of probabilities. On the contrary, the case of the prosecution right from the beginning is one of grave and sudden provocation.
12. There is no direct ocular evidence in the case to connect the accused- respondent with the crime of murdering the deceased. As indicated above, the evidence of the two prosecution witnesses, namely, Ajab Khan and Haider Zaman which implicates the accused with the crime is only relevant qua a belated motive which was not worthy of credence.
13. There is, however, no difficulty in fixing up the responsibility at the accused-respondent for causing the murder of the deceased as he himself admitted having done so in his F.I.R., his confessional statement Ex.P.W.7/2 and in his statement at the trial. He admitted having fired the deceased to death. The question, therefore, that arises for determination in the case is as to the circumstance in which the appellant caused the murder of the deceased. It is a settled law that in the absence of any direct or indirect evidence from the prosecution side to prove the circumstances of this murder I have perforce to fall back on the confessional statement coupled with his statement at the trial which I have to accept unless I could find any evidence, circumstantial or otherwise, to negative or contradict his statement, in whole or in part. I am fully conscious that the accused-respondent had killed the deceased in grave and sudden provocation, the onus is on him to prove that in order to derive benefit of exception to section 300 P.P.C, with reference to Article 121 of the Qanun-e-Shahadat, 1984 which reads:- "121. Burden of proving that case of accused comes within exceptions,-When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code Act (XLV of 1860), of or within any special exception or provision contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances".
14. The effect of this Article in criminal trial on the question of proof of guilt of an accused including the proof of a special plea taken by the accused in his defence has been considered in several authoritative decisions including the decision of the Federal Court of Pakistan in well known case of 'Safdar Ali Vs. The Crown' (PLD 1953 FC 93) followed in the subsequent judgments by the same Court in M. Aslant Vs. The Crown (PLD 1953 FC 115) and 'Sultan Vs The Crown' (P.L.D. 1954 FC 29). In a nut shell the legal position as crystallized in these decisions on the point in question is that there is a complete lack of evidence by the prosecution providing the basis for conviction of the accused- respondent for willful murder of the deceased, I have, in the appellant's own statement in the explanation admittedly committed by him for which there is no apparent contradiction from the prosecution side, although there are slight contradictions from the prosecution side what may appear to be weak links in that version creating a hurdle in the positive establishment of the plea of the accused- respondent. To my mind version of the accused-respondent in its over all effect reacts on the prosecution case to assail it with a doubt on the one hand and to create the feeling on the other, that the version of the appellant may probably be true. On the face of the record and in the absence of any plausible motive for this murder than the one which has been set up by the accused-respondent it is clear to me that the appellant was provoked gravely and suddenly and in that state of mind had done the deceased to death.
15. From this if follows that the occurrence had not taken place on account of what has been described by Ajab Khan and Haider Zaman but it had occurred in the circumstances admitted by Zulfiqar accused-respondent both in his F.I.R., in his confessional statement and in the statement before the trial Judge.
16. In the result I affirm the finding of the learned trial Judge that accused-respondent had killed Jawaid Khan under grave and sudden provocation and that his case did not amount to culpable homicide amounting to murder but fell under the first Exception to Section 300 P.P.C, for which he had been rightly convicted under section 304 Part-1 P.P.C. In so far as his sentence of 5 years rigorous imprisonment is concerned it is quite commensurate with the gravity of the offence. In so far as award of compensation under section 544-A. Cr.P.C, is concerned the petitioner is not entitled to it. In a recent case of 'Mohammad Sadiq Vs. Mohammad Yaqoob etc' (NLR 1991 Cr.361)
Mohammad Munir Khan, J. As his Lordship then was, had held that the words "unless for reasons to be recorded in writing" occurring in section 544-A Cr.P.C, will show that provisions are not mandatory and the trial Court and the appellate Court, the Court of revision, for reasons to be recorded, may refuse to award compensation to the heirs of the deceased. I would respectfully follow the dictum laid down in Mohammad Sadiq's case cited above and hold that since in the instant case the prosecution evidence was disbelieved and Zulfiqar accused respondent was condemned on his own mouth as he had admitted to have killed Jawaid on seeing him in compromising position with his sister, I feel that in such like circumstances it may not be proper to direct payment of compensation for the death of 'Zania' and "Zani' who herself/himself provokes other and invites them. I feel that no case for payment of compensation to the heirs of the deceased has been made out.
17 In the circumstances this revision petition has no merits and is accordingly, dismissed.