' IFTIKHAR HUSSAIN CHAUDHRY, J.--- Brief facts of the prosecution case are that Muhammad Ashraf of Village Jotana was returning home on 28-2-1989 after performing his duty at nearby Gharibwal Cement Factory, Gharibwal, Tehsil Pind Dadan Khan, District Jhelum, and when at about 2-30 p.m., he after alighting from the Factory's bus was proceeding to his home, Muhammad Khan and Muhammad Sharif, real brothers, shot him dead. Grievance for the occurrence was that Mst.
Bilqees Begum daughter of Muhammad Ashraf was married to Muhammad Khan accused/appellant, who had turned her out two years prior to this occurrence and Muhammad Ashraf had been demanding from Muhammad Khan either to take her back to his home or divorce her. Another grievance was that Muhammad Sharif accused/appellant had obtained a sum of Rs,15,000 from Muhammad Ashraf and he had demanded back the sum so advanced. This was the prosecution version as reported to police vide F.I.R. No,29, dated 28-2-1989 at Police Station Pind Dadan Khan, District Jhelum.
2. After due investigation, Muhammad Khan and Muhammad Sharif were found guilty by the police and were challaned in the case. Later, they were tried in the Court of Sessions Judge, Jhelum.
3. The prosecution examined as many as twelve witnesses at the trial. Dr. Muhammad Arshad P.W.1 conducted the post-mortem examination on the dead body of Muhammad Ashraf on 1-3-1989 and found the following injuries on his person:--
(1) A lacerated punctured fire-arm wound with inflammed inverted blackened and burnt margins, 2" x 1-1/4" on the uppermost and outermost part of left upper-arm (wound of entrance).
' Soft tissues protruding through the wound.
' On probing it communicated with the chest cavity.
' Clinically upper part of humerous corresponding to injury No,1 was fractured. A mark of charring 1/2" x 1/4" and 1-1/2" in front of injury No,1.
' Two pellets were recovered from subcutaneous tissues medial to injury No,1 near left clavicle.
(2) A lacerated punctured wound 1/2" x 1/4" on outer aspect of right eye, margins were inverted, inflammed, charred, tattooed and blackened (fire-arm).
' Clinically bone corresponding to the injury was fractured. On postmortem the skull bone was confirmed to be fractured. Fracture was of depressed nature.
' On opening the skull, brain matter in an area of 2" x 2-1/2" was found compressed, meninges were injured corresponding to injury No,2.
(3) A lacerated wound with inflammed inverted margins, 1-1/2" x 1" on lower and anterior part of right ear, blackening, charring and tattooing were present (fire-arm).
' Cartilage was broken into pieces. There was wound of exit on the posterior side of right ear, measuring 1" x 3/4". Some part of injury No,3 was deep to skull bone.
(4) A lacerated punctured wound with inflammed inverted margins, 1" x 1/4" and 1" lateral from right angle of mouth. Tattooing, charring and blackening were present. Wound communicated with oral cavity clinically mandible was found to be fractured. Prosthetic lateral (right) and right central inciser were fractured.
' Denture was fractured. Conclusion wound of entrance with exit into oral cavity (fire-arm).
(5) Mark of blackening and charring 1/2" x 1/4" just below and outer to injury No,4.
(6) A mark of burning 1/4" x 1/4", 3" in front of right ear.
(7) Multiple abrasions on and below right knee, in an area of 3" x 2-1/3.
(8) Multiple abrasions in an area of 3" x 2-1/2" on left front knee.
(9) A wound 3/4" x 1/2", 3" behind left ear lacerated scalp deep and blunt.
' According to this witness, injuries Nos.2, 3, 5 and 6 were the result of one shot. In answer to a question put by the defence, he stated that injury No,4 was the result of an independent shot.
' Mst. Bilqees Begum P.W.6 and Syed Azhar Hussain Shah P.W.7 proved the motive of the occurrence.
Mst. Bilqees Begum stated that she was married to Muhammad Khan and had remained with him in his house for two years when about two years prior to the occurrence, she was turned out of the house by Muhammad Khan and she started living in her parents' house. It was further deposed by her that her father had asked Muhammad Khan either to take her to his house or pronounce divorce on her. It was also deposed by her that son of Muhammad Sharif was murdered and her father Muhammad Ashraf had given a sum of Rs,15,000 as loan to Muhammad Sharif, which was 'still outstanding and her father had sent Syed Azhar Hussain Shah P.W. To both the accused for divorce as well as for return of money. The defence put a suggestion to her that she was divorced by Muhammad Khan on 25-11-1987.
' Azhar Hussain Shah P.W.7 supported the version of the prosecution qua the motive and stated that about a month prior to the occurrence, he was sent to the accused by Muhammad Ashraf over the aforementioned demands but the accused did not oblige.
' Muhammad Bashir P.W.8 and Mulazam Hussain P.W.9 provided the eye-witnesses account of the occurrence and supported the version given in the F.I.R. As narrated above. P.W.11 Muhammad Afzal Virk, S.H.O., Police Station Dina deposed about the investigation conducted by him. The rest of the witnesses are of formal nature.
4. When examined under section 342, Cr.P.C. The accused/appellants denied the allegations against them and stated that they have been involved in the case on account of enmity and suspicion by the P.Ws. They did not appear as witnesses under section 340(2), Cr.P.C. However, they examined three persons as defence witnesses. Habib-ur-Rehman D.W.1 produced record of account of Muhammad Khan kept by him in the National Bank. Mst. Bilqees Begum was summoned through Court as D.W.2. She stated that she was not divorced by Muhammad Khan nor was given any Talaq in writing. Iftikhar Hussain Shah D.W.3 stated that he did not know Muhammad Khan or Mst. Bilqees Begum D.W. This witness was marginal witness of Talaqnama Exh.D.F. Through which Muhammad Khan was stated to have pronounced divorce on Mst. Bilqees Begum.
5. After conclusion of the trial, learned Sessions Judge found both the accused guilty under section 302, P.P.C. For committing the murder of Muhammad Ashraf and sentenced each of them to imprisonment for life and a fine of Rs,20,000 each, which was ordered to be paid as compensation to the legal heirs of the deceased. In default of payment of fine, each of the accused/ appellant was to suffer R.I. For two years further. Benefit of section 382-B, Cr.P.C. Was also extended to the appellants. This judgment, dated 28-4-1991 has been assailed by the appellants through Criminal Appeal No,105 of 1991, whereas the complainant filed Criminal Revision No,68 of 1991, for the enhancement of sentence, which was admitted to regular hearing on 25-4-1993 and notice was directed to be issued to the appellants. Resultantly, the matter was placed before a Division Bench of this Court. This single judgment shall dispose of both the appeal as well as the criminal revision.
6. Learned counsel for the appellants, after taking the Court through evidence recorded in the case, submitted that Mst. Bilqees Begum stood divorced about one and a half years prior to the occurrence and the statement of accounts produced by D.W.1 shows that Muhammad Khan had sufficient funds in his account and there was no necessity for him or his brother to have obtained loan from Muhammad Ashraf and, as such, the motive as advanced by the prosecution stood falsified. It was also contended that the medical evidence and ocular account are at variance to each other as injuries on the face of Muhammad Ashraf i,e, injuries Nos.2, 3, 4, 5 and 6 were the result of one shot and not two shots. It was further submitted by the learned counsel that the relations between the parties were strained for the last two years and due to that the present appellants were implicated by the complainant. It was contended that the occurrence took place somewhere in the mountains and nobody had seen the occurrence and that the witnesses though related yet were not impartial as they were more closely related to the complainant party. It was also urged that recovery of shot-gun was disbelieved by the learned trial Court and that aspect also falsified the case of the prosecution.
' Learned counsel for the State assisted by the learned counsel for the complainant submitted that the F.I.R. In the case was promptly lodged and the motive was clearly and unambiguously given in it and it was not the result of deliberations. The motive as alleged in the F.I.R. Stood fully proved and when Mst. Bilqees Begum appeared in the witness-box, it was suggested to her that she was divorced but the divorce-deed was not put to her. It was also submitted that there is no evidence on record that divorce was ever notified to Mst. Bilqees Begum or to the Chairman of the Local Council concerned or any arbitration in this matter was ever convened. Learned counsel contended that the divorce-deed Exh.D.F. Was a forged document and the accused had deliberately tried to create a defence in this regard. It was also submitted that there was absolutely no contradiction in the ocular account and the medical evidence. According to the doctor, injury No,4 attributed to Muhammad Sharif accused/appellant was result of an independent shot and the defence had not probed the matter further or brought on record anything which could suggest that this injury was result of separate shot. Learned counsel urged that the eyewitnesses are closely related to the accused as well and there was no reason for them to falsely implicate them instead of real culprits in the matter. It was contended that it was a broad daylight occurrence and there was no question of mistaken identity and that the learned trial Court had unduly taken a lenient view while passing the sentence in the matter which, it was prayed, should be enhanced.
7. The case of the prosecution is that Mst. Bilqees Begum was married to Muhammad Khan and was turned out by him about two years prior to the occurrence and she was living since then in her parents' house and that Muhammad Ashraf had been demanding from Muhammad Khan to free her by divorcing her or to take her back. It was also prosecution case that son of Muhammad Sharif was murdered some time back and Muhammad Ashraf deceased had advanced a sum of Rs,15,000 which was till due and Muhammad Ashraf had also demanded back the said amount of money through P.W.7 about a month prior to the occurrence and due to that grievance Muhammad Ashraf was shot dead when he was returning home from the Cement Factory where he was working. The record reveals that the occurrence took place at 2-30 p.m. On 28-2-1989 whereas F.I.R. Was lodged at 4-30 p.m. At Police Station Pind Dadan Khan, which is twelve miles away from Village Jotana, where the occurrence took place and, as such, it appears to be a very promptly lodged F.I.R. The motive for the occurrence has also been elaborately given in the F.I.R.
Which shows that this motive was not engineered or fabricated by the prosecution. Mst. Bilqees Begum P.W.6 and Syed Azhar Hussain Shah P.W.7 have supported the motive in the F.I.R. Though a suggestion was put to Mst. Bilqees Begum that she was divorced but the divorce-deed was not put to her. No evidence was led which could show that the divorce deed was transmitted to Mst.
Bilqees Begum or to the Local Council concerned. In the absence of such evidence, it can safely be concluded that the divorce-deed Exh.D.F. Was prepared subsequently so as to create a defence about non-existence of the motive. Syed Azhar Hussain Shah, an Imam of the local mosque, while appearing as P.W.7 had also sufficiently proved the motive. The only factor brought on record by the defence to discredit this witness was a suggestion to the effect that he used to arrange marriages of different parties and that he had also promised to arrange marriage of Muhammad Safdar son of Muhammad Sharif and on his failure to do so, this witness was insulted in public. This stand of the defence led by Syed Azhar Hussain Shah that he was insulted in public was not supported by any material on record. If such an incident had taken place in public then somebody from the public could have been brought particularly when the appellants had chosen to lead defence evidence in the case also. As such, no hesitation is felt in concluding that motive of the case as alleged by the prosecution stood fully proved.
7. The next contention on behalf of the defence was that the ocular account and the medical evidence are at variance and in this regard locale of the injuries Nos.2, 3, 4, 5 and 6 has been submitted as having been caused by a single shot and not two shots. The defence itself got elaborated the position from the Medical Officer when it asked, whether injury No,4 was result of the same shot or not and the Medical Officer positively stated that injury No,4, which is attributed to Muhammad Sharif appellant, was result of an independent shot. This matter was not further probed by the defence nor the deposition of the witnesses was put to any further scrutiny and it can safely be assumed that there is no contradiction as far as number of shots fired at the deceased as stated by the witnesses and that elaborated by the medical evidence.
8. The eye-witnesses sought to be discredited by the defence on the ground that they are more closely related to the complainant party than the accused and, as such, they cannot be treated as impartial and independent witnesses. The record reveals that Mulazam Hussain P.W.9 was complainant in the case of murder of son of Muhammad Sharif which shows the fraternal relationship between Mulazam Hussain and the accused party, because unless a person is closely related or trusted, he will not come forward to become a witness muchless a complainant in serious cases such as murder. The other factor highlighted by the learned counsel for the appellants to throw out the testimony of Mulazam Hussain P.W. Was that after performing his duties, he ought to have gone to the house of his father and not to the house of his grandfather as stated by him at the trial. The argument was that Mulazam Hussain P.W. After alighting from the Factory's bus could have gone to his father's house which was on other side of the village and in order to show his presence at the spot, he had stated that he was going to his grandfather's house which was on the side of the village where the occurrence took place. There is nothing unusual or unreasonable for a person to live with his grandparents and on this score, the testimony of Mulazam Hussain P.W. Cannot be discredited. He is closely related to the accused/appellants and his testimony appears to be forthright and inspires confidence. The defence has, however, half- heartedly suggested that the occurrence took place in the mountains between the Cement Factory and the village and nobody had seen the occurrence, but the testimony of the complainant and Mulazam Hussain P.W. Has not been shaken with regard to the place of occurrence or time of occurrence, in any manner. It is accepted principle of law that substitution is' a rare phenomenon and in this particular case, the defence has not brought on record any material or has not evoked any reaction from the prosecution witnesses which is suggestive of the fact that the occurrence did not take place at the site as alleged by the prosecution. Mere suggestion that the occurrence took place in the mountains and was an unseen occurrence would hardly be sufficient to belie the prosecution case because nothing in support of this suggestion has been brought on record. The prosecution case hinged upon motive, medical evidence and the ocular account furnished by the witnesses and all these fully supported and corroborated the prosecution case reported to the police and unfolded at the trial.
9. As noted above, the prosecution version that Muhammad Ashraf deceased was employed in Gharibwal Cement Factory; that he was returning from his work on the day of occurrence and proceeding towards his home at about 2-30 p.m. When Muhammad Khan fired a shot which hit on the right side of his face and the second shot fired by him on the left shoulder of the deceased and that the shot fired by Muhammad Sharif appellant hit the chin of the deceased has adequately been proved by the prosecution by ocular account as well as the medical evidence. The story of the prosecution qua the time and place of occurrence, or the manner of occurrence has not been shaken by the defence. Both the appellants had stated that they were falsely implicated in the case. This was a specific plea taken by them, but they failed to bring forth or highlight any circumstance which could support their plea regarding false implication by the complainant as well as Mulazam Hussain, an eye-witness. No doubt, relations between Muhammad Khan, Muhammad Sharif and Muhammad Ashraf deceased were strained but the defence was unable to show that the complainant or Mulazam Hussain P.W. Nursed a similar grudge against them so as to enrope them in a case of serious nature. The failure of defence to support their plea regarding false implication is a factor which has to be taken against the defence and the prosecution case is also fortified in this regard. Consequently, it is held that the prosecution case was fully proved against the appellants.
10. Now the question arises regarding the sentence to be awarded to the appellants. The learned trial Court had awarded lesser sentence to the appellants with the following observations:-- "It is the prosecution case itself that Mst. Bilqees Begum having estranged relations with her husband Muhammad Khan accused was living at the house of her father Muhammad Ashraf deceased and there was thus matrimonial dispute between the deceased and the accused. The accused would be having a natural desire for the return of Mst. Bilqees Begum P.W. But the deceased would be making the same condition upon the return of the loan. This affair in my view would be an extenuating circumstance for not awarding capital punishment to the accused."
' The record reveals that the deceased had sent an emissaty in the form of Syed Azhar Hussain Shah P.W. To the appellants for the return of loan advanced and also for settlement of dispute regarding Mst. Bilqees Begum about a month prior to the occurrence. This dispute was brewing for the last two years between the parties, but what immediately preceded the actual incident or what sparked of the incident has not been brought-forth by the prosecution. It would be unimmaginable that the accused would have waited for a considerable long time to react in the matter and as is common such an incident is usually preceded by provocation which would make the accused react sharply to the rebuke so caused. Another factor which has not been sufficiently explained by the prosecution is regarding injuries Nos.7 and 8 on the person of the deceased. The explanation advanced by the prosecution is that one or two stone blows were given by the accused to the deceased, but stone blows possibly could not have caused such an injury which appear to be caused by dragging. Probably, the accused and the deceased had a scuffle prior to the occurrence on account of which the deceased was shot dead. Since the prosecution has not brought-forth any evidence as to what immediately preceded the actual occurrence or how the incident was initiated, it appears to be sufficient mitigating circumstance for awarding of lesser punishment to the appellants. Therefore, the conviction and sentence awarded to the appellants is maintained but for the reasons given above, lesser penalty is justified in the facts and circumstances of the case. Resultantly, Criminal Appeal No,105 off 1991 as well as Criminal Revision No,68 of 1991 fail and both are dismissed.