' MISS TALLAT YAQUB, J.--- Muhammad Aslam and Mumtaz Hussain were tried under section 302/34, P.P.C. For the murder of Muhammad Amir by the learned Sessions Judge, Mianwali, who vide his judgment, dated 2-3-1993, convicted them thereunder and sentenced them to death with fine of Rs,10,000 each or in default to undergo further R.I. For two years. They were further directed to pay Rs,20,000 each as compensation to the legal heirs of the deceased.
' The convicts have challenged their conviction and sentences through separate appeals, viz. Muhammad Aslam through Criminal Appeal No,153 of 1993 and Mumtaz Hussain through Criminal Appeal No,187 of 1993. The learned Sessions Judge has also referred the case to this Court for confirmation of death sentence. Ghulam Shabbir complainant has filed Criminal Revision No,287 of 1993, for enhancement of compensation from Rs,20,000 to Rs,1,00,000. This judgment will dispose of all the matters.
' The occurrence took place on 11-5-1991 at about 7-00 p.m. Whereas the F.I.R. Was recorded on the same day at 8-00 p.m., police station being at a distance of two miles from the place of occurrence.
' The motive culminating in the present occurrence is stated to be that the appellants suspected that Mst. Amiran, a close relative of theirs, was carrying on illicit relations with Ghulam Shabbir. On account of this grudge, on 27-12-1988, Ghulam Hur etc. Launched a murderous assault on Ghulam Shabbir and a case under section 307/34, P.P.C. Was registered at Police Station, Piplan. The present occurrence, resulting into the death of Muhammad Amir, is also stated to have been committed by the appellants on account of the aforesaid suspicion.
2. Briefly, the prosecution case is that on 11-5-1991, at 7-00 p.m. Ghulam Shabbir complainant alongwith Muhammad Amir deceased was returning home from the tomb of his uncle Yar Muhammad Faqir. When they reached the metaled road in the area of Jaal Janubi, the appellants armed with guns appeared at the scene. They raised Lalkara that they would not spare the complainant. Muhammad Aslam appellant fired with his gun which hit Muhammad Amir in front of his left thigh. He tried to run back, whereupon Muhammad Mumtaz fired at him hitting him at the back of his left hip. Muhammad Aslam appellant then fired second shot, which hit the deceased on the backside of his right hip. Ghulam Shabbir in order to save his life took refuge in a nearby pit.
Muhammad Amir fell on the ground. In the meantime, Ghulam Muhammad alias Gama (P.W.7) and Muhammad Siddique (not produced), who were passing through the road also saw the occurrence by reaching at the spot. The appellants on seeing the witnesses decamped from the spot raising Lalkaras. Muhammad Amir died at the spot.
' Leaving the dead body of Muhammad Amir on the spot under the care of Muhammad Siddique and Ghulam Muhammad, Ghulam Shabbir (P.W.8) went to the police station and lodged F.I.R.
Exh.P.F., which was recorded by Muhammad Aslam S.I. (P.W.10). Thereafter, the said Police Officer went to the spot, prepared the injury statement Exh.P.H. And inquest report Exh.P.J. And sent the dead body to the mortuary for post-mortem examination under the escort of Shifaullah Constable (P.W.2). On 12-5-1991, the Police Officer inspected the spot. He collected blood-stained earth from there vide memo. Exh.P.E. The recovery memo. Was attested by Muhammad Siddique P.W.3, Ghulam Muhammad P.W.7 and Muhammad Aslam S.I. (P.W.10). After the post-mortem examination, Shifaullah produced the last worn clothes of the deceased which were taken into possession vide memo. Exh.P.A. On 20-5-1991, he got prepared site plan Exh.P.B. And Exh.P.B./1 by Muhammad Shafique, Draftsman (P.W.4) . On 18-5-1991, he arrested the appellants. On 23-5-1991, Mumtaz Hussain got recovered gun P.4 and three cartridges P.5/1-3. The same were secured vide memo. Exh.P.C., attested by Muhammad Ramzan (P.W.5), Noor Zaman F.C. (not produced) and Muhammad Aslam S.I. (P.W.10). On the same day Muhammad Aslam got recovered gun P.6 and two live cartridges P.6/1-2, which were secured vide memo. Exh.P.D. This recovery was witnessed by Muhammad Hakam P.W.6, Noor Zaman F.C. (not produced) and Muhammad Aslam S.I. (P.W.10).
After completing legal formalities, the challan was submitted in the Court.
3. Dr. Niamatullah Khan (P.W.9) conducted the autopsy of the dead body of Muhammad Amir on 12-5-1991, at 6-30 p.m., and found two fire-arm wounds of entry and two fire-arm wounds of exit on his dead body. The doctor opined that the aforesaid injuries were individually and collectively sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem caused by fire-arm. Death occurred within half an hour on receipt of the injuries and post-mortem was conducted within eight to fourteen hours.
4. Muhammad Aslam appellant in his statement under section 342; Cr.P.C. Admitted his relationship with his co-accused, denied rest of the allegations as well as the recovery, professed innocence and ascribed the case, to enmity. Same was the stance of Mumtaz Hussain appellant.
Muhammad Pervaiz Iqbal, Inspector, and Dr. Mehr Khan were produced as D.W.1 and D.W.2 respectively in defence. Muhammad Pervaiz Iqbal, Inspector deposed that on 21-11-1991, he investigated this case and recorded the statement of Ghulam Shabbir P.W. (Exh.D.C.). Dr. Mehr Khan D.W.2 deposed that on 11-5-1991, he examined Fayyaz son of Fazal Karim and found an entry wound of fire-arm projectile, 1 c.m. x 1 c.m., over right hypogastrium, 3 c.m. From the mid line and 8 c.m.
From the umbilicus on his person and pellet was palpable beneath the skin on the back of right lower chest. In cross-examination he admitted that he did not record the statement either of Fayyaz injured aged about 8 years or his father as to how the child received the injury.
5. The learned trial Judge believing the prosecution evidence convicted and sentenced the appellants as indicated above.
6. The learned counsel for the appellants vigorously urged that it was an unwitnessed crime, which took place when done of the eye-witnesses was present at the spot; the F.I.R. Was recorded after preliminary investigation; hence no reliance can be placed on this dubious document. The motive, though alleged in the F.I.R., remained unproved, which adversely reacts on the veracity of the prosecution case, hence the prosecution has failed to prove its case beyond reasonable doubt.
Both the eye-witnesses, besides being the chance witnesses are the partisans of the deceased as well as inimical towards the appellants they have failed to furnish any reasonable and plausible explanation for their presence at the scene. Ghulam Muhammad P.W.7 as per his own statement is a man of criminal disposition and is resident of far off place. Even he has admitted this fact in his evidence that he was challaned in a case under section 325, P.P.C. On 25-5-1977 and he was also declared Gondola under the Provisions of Goondas Ordinance. Ghulam Shabbir P.W.8 besides being the chance witness is the real brother of the deceased and as per F.I.R., the accused had the prime motive against him, still no harm was caused to him which leads to this inference that he was not present at the spot at the time of occurrence. The ocular evidence is against the medical evidence.
' The learned counsel also contended that it is a case of two versions, one version has been given by the prosecution, whereas the defence has putforth its own version, which is more plausible and reasonable. It further gets support from the evidence of D-r. Mehr Khan (b.W.2) who examined Fayyaz son of Fazal Karim, aged eight years on 11-5-1991 at 9-00 p.m.; hence the trial Court has erroneously come to the conclusion that the prosecution has proved its case against the appellants beyond reasonable doubt. Placed reliance on 1985 SCMR 510.
' In the end, learned counsel submitted that even if it is presumed, without conceding, that the prosecution has proved its case against the appellants, still it is not a fit case in which the sentence of death imposed upon the appellants be confirmed, as the immediate cause of occurrence is shrouded in mystery.
7. The learned counsel for the State has supported the impugned judgment.
' Ghulam Shabbir complainant who has filed criminal revision for the enhancement of amount of compensation, did not appear on the date of hearing, hence the same is dismissed for non- prosecution.
8. We have minutely gone through the record with the able assistance of the learned counsel for the parties and have also critically examined their respective submissions.
' In the present case, the occurrence took place at 7-00 p.m. On 11-5-1991, whereas the matter was reported to the police at 8-00 p.m., the police station being at a distance of two miles, which eliminates the chances of speculation and calculation. The appellants are nominated in the F.I.R.
Which was lodged with great promptitude and there is not an iota of evidence on the record to substantiate the plea of the defence that the F.I.R. Was lodged after preliminary investigation neither any question was put to the Investigating Officer nor any material was brought on the record to justify this assertion. As stated earlier, the F.I.R. Was lodged with great promptitude, which proves that Ghulam Shabbir complainant was present at the scene. Had he not been present at the spot, then it would not have been possible for the police to name the appellants in the F.I.R. As well as the witnesses who saw the occurrence unless and until that man is made available which could have consumed sufficient time and the F.I.R. Would not have been lodged with great promptitude.
' There is no background of enmity between the appellants and the complainant, except that Ghulam Shabbir P.W.8 is alleged to have illicit relations with Mst. Amiran, a relative of the appellants and on account of that a case under section 307/34, P.P.C. Was got registered on 27-12-1988 against Ghulam Hur etc. Whereas close scrutiny of the F.I.R. Shows that the said case was registered with respect to an occurrence regarding dispute of water; neither the defence suggested the relation of Mst. Amiran with the appellants nor anything was brought on the record to show that Ghulam Shabbir P.W.8 had illicit liaison with Mst. Amiran. Even the presence of Ghulam Muhammad P.W.8 is admitted by the defence in his cross-examination. The learned counsel for the defence put a question to Ghulam Shabbir P.W.8 that Fayyaz son of Fazal Karim received the fire- arm injury at the time of occurrence at his hands who used the gun of his own brother. Even he has referred to Exh.D.C., statement under section 161, Cr.P.C. Of Ghulam Shabbir, recorded by Muhammad Pervaiz Iqbal, Inspector (D.W.1) during the course of investigation of this case and also that a case under section 307, P.P.C. Was registered against the complainant on 14-5-1991, with respect to that occurrence, though later on the complainant was got discharged from that case.
' At present, we would not like to discuss this piece of evidence in detail and the same will be discussed later on when the plea of the defence that it is a case of two versions would be discussed.
' The contention of the learned counsel for the appellants that the ocular evidence is being belied by the medical evidence is devoid of force. Injury No,1 as per post-mortem report is an entry wound 1 c.m. x 1/2 c.m., while its exit wound is injury No,2, 3 c.m. x 1-1/2 c.m. Again injury No,3 is also an entry wound of 1 c.m. x 1 c.m. And injury No,4 is its exit wound which is 2 c.m. x 3/4 c.m. If the contention of the learned counsel is accepted as true then injury No,3 is re-entry wound of injury No,2 which is a exit wound of injury No,1 and dimension of the said injury No,3 shows that this assertion of the defence is baseless. Injury No,3 is entry wound and its exit wound is injury No,4, because injury No,3 is less in dimension than injury No,4. The above analysis of the injuries proves that there is no conflict between the medical evidence and the ocular version.
9. The occurrence took place in the broad daylight and complainant's presence at the spot is established. It is highly improbable that the complainant C would leave the real culprits and involve the appellants in this promptly lodged F.I.R. On account of enmity which remained unproved on the record. It is a matter of common sense that substitution is a rare phenomenon, which may occur in a situation where identity of an accused is in doubt either due to the darkness or otherwise depending on the circumstances of each case.
' The learned counsel for the defence has seriously attacked the evidence of Ghulam Muhammad P.W.7 on the ground that he is a man of criminal disposition, hence his evidence needs close scrutiny and should not be believed unless and until it is corroborated by some independent source. We find that Ghulam Muhammad P.W.7 has given reasonable and plausible explanation for his presence at the scene and there is no direct enmity between the appellants and this witness.
The credentials of a witness may put the Court on guard, but, it would be highly dangerous to brush aside the evidence of a merely merely on the ground that he was declared Goonda.
According to the learned defence counsel Muhammad Ramzan Mirasi was murdered in the year 1969 and the witness had appeared as eye-witness in this case. He also asserted that Sher Muhammad father of Muhammad Aslam and Mehr Khan father of Mumtaz Hussain appeared as witnesses under the Goondas Ordinance proceedings against this witness. Unfortunately both these assertions remained unproved, because the learned counsel failed to bring on meth' the evidence of these witnesses. The presumption is that had these persons appeared as witnesses against Ghulam Muhammad P.W. Then in all probability, the defence would have brought these documents on the record. Even in a criminal case it is not the quantity of evidence which is to be kept in mind in coming to a conclusion whether the case of the prosecution is proved or not, but it is the quality of evidence which has to be seen. As discussed earlier even the presence of the complainant is not denied by the defence itself, because of the case registered against him with respect to the same occurrence.
10. Before embarking upon this discussion that it is a case of two versions, we would like to repeat the principle which is normally made applicable in the case of two versions. The salutary principle of law is that both the versions are put in juxtaposition and then the Court has to see which version is more probable and nearer to truth, subject to this condition that burden to prove the case always remains on the prosecution. Applying the aforesaid principle of law we find the defence no doubt put suggestion to the witnesses that Fayyaz aged 8 years did receive injury in the transaction and was medically examined by Dr. Mehr Khan D.W.2 on 11-5-1991 at 9-00 p.m. In the hospital, whereas the F.I.R. Was lodged at 8-00 p.m. This evidence of the doctor is only corroborative piece of evidence and is not substantive evidence; The learned counsel for the appellants failed to show any substantive evidence by producing Fayyaz who received the injury at the hand of the complainant or his father Fazal Karim. The non-examination of these two witnesses completely demolishes the version taken by the defence. The defence, no doubt, is not required to prove its case to the hilt, at least the defence must produce some sort of evidence, which may get support either from the direct evidence or from circumstantial evidence coming from the side of the prosecution or by way of injuries received by the accused in the occurrence. In the present case, these two pieces of evidence are unfortunately lacking.
' The second limb of the assertion is Exh.D.C. Statement under section 161, Cr.P.C. Allegedly recorded by Muhammad Pervaiz Iqbal, Inspector D.W.1, in which the complainant admitted that he was having the gun of his brother which was used by him by firing in the air. Unfortunately, the Inspector did examine Ghulam Shabbir P.W., but instead of performing his duty in accordance with law i,e, collection of evidence in a criminal case, he has dishonestly tried to destroy the evidence of the prosecution which was already there. This evidence was brought on the record after six months of the incident. At the most;-this statement could have been a statement of the accused in a case under section 307, P.P.C. Which was got registered against the complainant on 14-5-1991 and is not a statement under section 161, Cr.P.C. This Court has in numerous cases held that statements under section 161, Cr.P.C. Are recorded by the police in haphazard manner, hence such like statements are not sufficient to bring the case within the ambit of two versions. In this view of the matter, we find no substance in the defence plea, the appeals are devoid of force and are hereby dismissed on merits.
11. We have given our anxious consideration to this aspect of the case whether the sentence of death imposed upon the appellants needs consideration or not, on the ground that immediate cause of murder is shrouded in mystery and the motive though alleged could not be proved. With respect to the motive, we may observe that it is not fatal to the prosecution, because several murders are committed without motive or the prosecution fails to prove the motive. As the immediate cause of murder is shrouded in mystery, it is a mitigating circumstance in favour of the appellants for the imposition of lesser penalty. Hence while maintaining the conviction of the appellants under section 302/34, P.P.C. And dismissing their appeals on merits, we refrain from confirming their death sentence and alter the same to imprisonment for life. The sentence of fine with all consequences and the compensation as awarded by the trial Court are maintained. The appellants shall be entitled to the benefit of section 382-B, Cr.P.C. The reference is not accepted.
' Both the appeals and the reference stand disposed of accordingly.