JUDGMENT IFTIKHAR HUSSAIN CHAUDHRY, J.- This order shall dispose of Murder Reference No.452 of 1991, Crl. Appeal No.75 of 1991 and Crl Revision No.102 of 1994.
2. Khalid Iqbal, appellant, was convicted under section 302 PPC and awarded death penalty by judgment dated 83.1991 of Addl: Sessions Judge, Rawalpindi, for committing murder of Muhammad Amin. The appellant was also sentenced to pay a fine of Rs. 20,000/- in default of payment of which he was to undergo R.1, for two years further. The appellant was also directed to pay as compensation under section 544-A Cr.P.C, a sum of Rs. 20,000/- to the legal heirs of the deceased.
In default of payment of compensation the appellant wa$ to undergo R.I. For six months further Khalid Iqbal has appealed to this court against the judgment of conviction.
3. Brief facts of the prosecution case are that the complainant Muhammad Iqbal made a statement before Muhammad Aslam, SI, that on 22.8.1989 he was informed by Mst Yasmin Akhtar his niece that due to rain, the "Bun" of their land in Kherli Wala was broken and was to be repaired.
At about 930 a.m. He went to the house of Mst. Yasmin Akhtar where Riaz son of Lehrasab Khan and Ameen deceased, brother of the Mst. Yasmin Akhtar were present. Ashfaq son of Mazra called Muhammad Ameen deceased out side in connection with certain work. Thereupon, Muhammad Amin went away from the house. After taking tea, he along with Riaz and Mst. Yasmin Akhtar proceeded towards the land owned by Muhammad Taj and Muhammad Riaz. When they reached near the field of Muhammad Asghar they heard alarm and saw that Khalid Iqbal accused was abusing Muhammad Amin and was loading cartridge in the carbine. Khalid Iqbal accused fired a shot of Carbine which hit Muhammad Amin on his chest and he fell down. Thereafter Khalid Iqbal accused ran away. Muhammad Amin succumbed to the injuries at the spot.
4. The motive behind the occurrence is an Altercation between Muhammad Taj and Khalid Iqbal accused. Muhammad am in deceased insulted Khalid Iqbal and due to this grievance, the accused committed the murder of Muhammad Amin deceased.
5. After due investigation Khalid Iqbal was found guilty by the police and was challaned in the case.
Later he was tried in the Court of Addl. Sessions Judge, Rawalpindi.
6. The prosecution examined as many as many as eleven witnesses at the trial. Dr. Tariq Saeed PW-2. Conducted the post-mortem examination on the dead body of Muhammad Amin on 23.8.1989 and found the following injuries on his person:-
(1) There were nine lacerated inverted wounds on the front of chest in the following position, all were of 8 cm x. 8 cm.
(a)
5. Cm from the xiphisternum (vertically down-ward in the mid-line.
(b) 2 cm to the right later of first on and 1 cm above the first one.
(c) At a point 6 cm from mid-line and a line interception 3 cm vertical from the centre of nipple.
(d) 5 cm from the mid-one 5 cm below the centre of nipple.
(e) 8 cm from mid-line 4 cm vertical to the centre of nipple.
(f) 10 cm from mid-line 4 cm vertical to centre of nipple.
(g) 5 cm from mid-line 9 cm vertically below the nipple.
(h) 6 cm from mid-line 11 cm below the nipple.
(i) 5 cm from mid-line 3.5 cm vertical centre of nipple.
According to this witness, death was caused by damage to lungs, liver, leading to haemorrhage and shock resulting from injury No.1 which was sufficient in the ordinary course of nature to cause death. The duration between the injury and death within 30 minutes and between death and post- mortem examination was 18- 30 hours.
7. Saleem Raza, Patwari Halqa Data Bhat appeared as PW 4 and stated that on 9.9.1989 he prepared the site plan Ex-PE. He admitted in cross- examination that the Police Officials pointed out to him the place where the occurrence took place and that no one else pointed out to him anything in that regard.
8. Muhammad Iqbal complainant appeared as PW 6. He repeated the narrative give in the FIR. He stated that he saw the occurrence from 200/250 yards from the place of occurrence. He stated that Khalid Iqbal accused was arrested at Bust Stop Jatli but was confronted with the statement under section 161 Cr.P.C, where it was not so recorded.
9. Mst.Yasmin Akhtar sister of the deceased appeared as PW7 and corroborated the statement made by Muhammad Iqbal. She stated that father of her husband and Riaz PW (given up) was alive but the land was independently cultivated by her. She stated that it had rained prior to the occurrence due to which embankment was broken. She has admitted that Yasin in whose house altercation between the accused and her husband took place was present in his house on the day of occurrence. She admitted that there were ten houses in one haveli where house of her husband was situated and all those persons are related inter se. She admitted that Yaqoob, Mansahdar and Ayub maternal cousin of her husband lived in the same haveli and that prior to the occurrence the relations between them and other residents of haveli were cordial. She admitted that Ishfaq was arrested by police but she never asked Ashfaq as to where he had taken away Muhammad Amin on the day of occurrence. She denied the suggestion that the place of occurrence was not visible to them from the place they alleged to be present. However she admitted that the place of occurrence was in a little depression of 2/2 feet. She denied the suggestion that story of embankment having been broken by rain was fabricated and that Muhammad Iqbal PW was not accompanying her and that the occurrence was not seen by them.
10. PW9 Javed Nisar Inspector-SHO investigated the case and supported the investigation conducted by him. He stated that he arrested the accused on 3.9.1989. It was admitted by him that the place from where the carbine was recovered was house of said Jalal and that he could not say whether for brothers of the petitioner jointly owned the said house. He also denied the suggestion that one Manzoor had produced the accused before him at police station.
11. Muhammad Aslam SI who registered the FIR appeared as PW10 and he supported the initial investigation conducted by him. He admitted that inquest report Ex-PD was prepared by him. The other witnesses produced by the prosecution were of formal nature.
12. Thereafter on the application of the accused Khadim Hussain ASI appeared as CW 1 and he produced photo copies of daily of the police station dated 2.9.1989. Hq admitted that according to entry made on 2.9.1989 Javed Nisar PW and others had left for village Data Bat and remained away for investigation of case FIR No.11O dated 22.8.1989. -He admitted that after leaving for village Data Bat, SHO returned to the police station at 1.30 P.M. On 3.9.1989 and that in between his departure from Police Station and arrival back, there was no entry whatsoever that he had returned to the Police Station after conclusion of the trial the accused was examined under section 342 Cr.P.C, who stated that he was very fond of listening to Qawali. He denied that he ever asked Ashfaq to summon Muhammad Amin and stated that Ashfaq was arrested by the and that he had refused to support the prosecution case. He stated that till 26th of August, 1989 he knew nothing about the case and then he asked Manzoor to produce him before the police which he did on 26.8.1989. He stated that he remained in police custody from 26.8.1989 to 3.9.1989 and that nothing was recovered from him. He stated that he was involved in the case at the instance of Iqbal and Mst.
Yasmin. The accused appellant later appeared as his on witness under section 340(2) Cr.P.C, and stated .That he ran a stationary shop in Allama Iqbal Colony, Rawalpindi. That on 11th of Moharram he had gone to village Bia to participate in an Urs ceremony. That on 26.8.1989 he came to know that he had been involved falsely in that case and then he appeared along with Raja Manzoor at Police Station Jatli of his on accord; that he had enmity with Taj and for that reason he was implicated in the case. He denied the prosecution case in toto.
12. The learned Addl:Sessions Judge after conclusion of the trial found the appellant guilty for committing murder of Muhammad Amin and convicted him under section 302 PPC and awarded him sentence as stated above. Khalid Iqbal accused has appealed against his conviction as well as sentence awarded to him. The learned Addl. Sessions Judge has referred the matter for confirmation of death penalty awarded to the appellant.
13. Learned counsel appearing lor the appellant has stated that the appellant had absolutely no motive to cause death of Muhammad Amin. He contended that according to prosecution altercation took place between Taj and the appellant in the house of Muhammad Yasin but neither Muhammad Yasin nor Muhammad Taj, though available, were produced to support the prosecution version regarding the incident of motive. According to the learned counsel neither the complainant nor Muhammad Yasin were witnesses of that occurrence and, therefore, the prosecution failed to prove the existence of motive in this case. It was contended that the prosecution case regarding repair of embankment by Mrt. Yasmin and her maternal uncle is also highly improbable. According to him Muhammad Taj as well as bis real brother Muhammad Riaz were present and since father of Muhammad Taj was alive, the land obviously was owned by the father and was undivided and that no evidence has been produced that the land stood partitioned or was being independently cultivated by Mst. Yasmin Akhtar. The contention was that such a repair of embankment if normally carried out by male members who on the land or their collaterals and all of them were available to repair the land and their was no occasion for Mft.
Yasmin Akhtar to have called Muhammad Iqbal to her house or to have gone out to repair the embankment which women in this area otherwise do not undertake. The contention of the learned counsel was that prosecution in this regard is totally false and this twist has been given simply to show the presence of Muhammad Iqbal and Mst. Yasmin Akhtar near the place of occurrence . The learned counsel vehemently contended that the prosecution itself put up the case that Muhammad Ashfaq called out Muhammad Amin and thereafter the incident took place but Ashfaq was neither arraigned as conspirator in the case nor was produced as witness and that this factor alone was fatal to the case of the prosecution. It was further contended that the witnesses had allegedly seen the occurrence from a considerable distance and, therefore, it could have been a case of mistaken identity. It was further urged that in the inquest report Ex.PD, the Investigating Officer had mentioned that dead body of Muhammad Amin had become stiff thereby showing that occurrence took place much earlier in the day and that the. Police went to the place of occurrence much later and that considerable time elapsed between the occurrence and the recording of FIR which showed that the case was registered after deliberation. Learned counsel submitted that the dead body was despatched to the Hospital very late on the day of occurrence and the post-mortem examination was conducted next day which showed that the police went to the spot at late hours on 22.8.1989 and that this also showed that the matter was reported to the police belatedly and that the police investigated the case in the first instance and FIR was registered after preliminary investigation.
14. Learned counsel for the State as well as learned counsel for the complainant have urged almost similar grounds. It was contended that the appellant while appearing as his on witness had admitted enmity with Taj Muhammad and as such he had motive to avenge his insult caused to him by said Taj Muhammad. It was urged that the occurrence took place in brought daylight, at a distance of 500 yards from the village and it was not unusual or improbable for the PWs to have witnessed the occurrence. It was submitted that the prosecution and proved its case beyond any shadow of doubt by ocular account as well as medical evidence and recovery of crime weapon and that in these circumstances the appellant was rightly convicted and proper sentence was awarded to him.
15. The case of the prosecution was that some days prior to this occurrence appellant quarreled with Muhammad Taj in the house of Yasin when Muhammad Taj expressed his desire to have Qawali on the occasion of circumcision of his son and that Muhammad Amin deceased had also abused Khalid Iqbal appellant. Neither Muhammad Yasin in whose house the said incident took place nor Muhammad Taj who had quarreled with Khalid Iqbal came forward to support the plea of the prosecution. Muhammad Iqbal and A/sf. Yasmin Akhtar PWs were not the witnesses of that incident as such it would not be unreasonable to hold that no evidence was led at the trial to prove the motive and the motive as alleged by the prosecution went unproved.
16. The prosecution case rested on the motive the ocular account, the medical evidence and the recovery of crime weapon.
As for as medical evidence is concerned, it has not been commented upon by the defence and, hence, is not being adverted to. The ocular account of the case was furnished by Muhammad Iqbal and Ata. Yasmin Akhtar. The defence has objected to their presence as the spot on the ground that Mst Yasmin had a number of relatives of Muhammad Taj residing around her and that in case any repair was needed the brother of Muhammad Taj Riaz or other relatives could have done the same and that there was no need or occasion for calling Muhammad 'Iqbal to her house. The argument though attractive but is considered specious for the reason that the defence has not brought any material on record to discredit Mst Yasmin Akhtar of Muhammad Iqbal on the point of their presence or witnessing the actual occurrence. Only a suggestion has been put to Muhammad Iqbal that the occurrence was an unwitnessed one but this suggestion alone would not be sufficient to hold that Muhammad Iqbal was not present at the spot. It is in evidence that certain collaterals of Muhammad Taj resided in the same haveli where house Muhammad Taj was located but there is no evidence on record to show exact relationship between Muhammad Taj and those persons or the sort of relationship the parties had. It is not at all unusual in this area that women- folk take care of their properties in the absence of their men. The objection raised by the defence regarding presence of Muhammad Iqbal at the spot is too petty to be given any weight to. The manner in which the occurrence took place has sufficiently been explained by both the witnesses.
The place of occurrence has also not been disputed and as such it is considered safe to conclude that the PW witnessed the occurrence and their narrative is the correct version of the incident.
17. Learned counsel for the appellant has strenuously argued that the case put up by the prosecution was that while the PWs were taking tea one Ashfaq called out Muhammad Amin and took him away and that by this the prosecution intended to show that it was a premeditated incident put said Ashfaq was neither made an accused in the case nor produced was witness and that this factor alone was sufficient to throw out the prosecution case. Regretably this contention is considered to be with out much substance. Non-production of Ashfaq as PW or as an accused does not destroy the prosecution case. It only, at the most would mean that the occurrence probably was not preplanned one. The appellant was also at liberty to have called said Ashfaq as defence witness but he also failed to do that.
As such nonproduction of said Ashfaq cannot give rise to any adverse inference qua the prosecution case.
18. As for as question of recovery is concerned the prosecution case is that the accused was arrested from Jatli Bus Stop on 2.9.1989. Was taken to Police Station and after some time was taken to village Data Bhat but the police diary placed on record only shows that Inspector-SHO along with the police party went to the village for investigation of the said case and no entry exists qua arrest of the accused or coming back of the SHO to the Police Station on the night falling between 2.9.1989 and 3.9.1989. This makes the factum of recovery and other proceedings in this regard some what doubtful. But the ocular account furnished by the prosecution has successfully shown that the deceased was fired upon by a fire arm and even if recovery is not believed the prosecution case is not effected in any manner.
19. The prosecution case is that when the witnesses went out of the village, they saw the accused abusing the deceased and in their presence he loaded his carbine and then fired at the deceased.
The occurrence was seen from quite a distance. As observed above the prosecution failed to show that Ashfaq had called deceased from his house and taken him to the place of occurrence and there is no material brought on record which would have shown as to how the accused and the deceased came across at the place of occurrence at the relevant time. It is quite probable that the deceased and the accused came across per-chance and then some sort of altercation took place between them on which the accused fired at the deceased with a country made weapon which is quite fashionable in this area to carry around. It was not premeditated or a preplanned murder as alleged by the prosecution. The motive as alleged by the prosecution was also not proved and what preceded the actual occurrence had not been adequately brought on record. Another intriguing aspect of the case is that husband of Mst. Yasmin, Muhammad Taj in whose house the deceased allegedly lived did not come forward to support the prosecution case in any manner.
Similarly his brother Riaz, PW, and other relatives also did not come forward to support the prosecution version. In view of the above facts it may not be altogether safe to pass maximum penalty of death to the appellant. The sentence awarded to the appellant in view of the above circumstances is converted from death penalty to imprisonment for life. The appellant is also sentenced to pay a fine of Rs.40,000/- which if recovered shall be paid as compensation to legal heirs of the deceased. In case the fine is not paid by the appellant, he shall undergo R.I for a period of three years further. With this modification in sentence the appeal filed by the appellant is dismissed. The murder reference is answered in the negative. The criminal revision filed by the complainant which is in motion hearing is also dismissed.