' TASSADUQ HUSSAIN JILANI, J.---Three brothers, namely, Rashid Ahmad, Muhammad Jameel and Muhammad All sons of Rehmat Ali, Muhammad Ayyub son of Muhammad Shafi and Abdul Jabbar son of Muhammad Hussain were tried by learned Additional Sessions Judge-II, Bahawalnagar for the murder of Muhammad Ashraf and for murderous assault on Muhammad Hanif (P.W.5). Vide his judgment dated 23-7-1992, he acquitted Ayub and Abdul Jabbar and convicted the rest in the following terms:---
(i) Rashid Ahmad and (ii) Muhammad Jameel:
(a) under section 302/34, P.P.C. Both were sentenced to death.
(b) under section 324/34, P.P.C. For murderous assault on Riasat All (P.W.4) both were sentenced to 3 years' R.I. And a fine of Rs,2,000 each in default whereof to further undergo R.I. For 6 months each.
(ii) Muhammad Ali under section 324, P.P.C. Seven years' R.I. An amount of Rs,15,315 as Arsh (to Muhammad Hanif) for murderous assault on Muhammad Hanif (P.W.5). He was further convicted under section 324, P.P.C. For firing shots at Riasat Ali P.W. And was sentenced to undergo R.I. For three years and to pay a fine of Rs,2,000 in default whereof to undergo R.I. For 6 months. Sentences were directed to run concurrently and benefit of section 382-B, Cr.P.C. Was also extended.
2. Murder Reference No,25 of 1992/BWP seeks confirmation of death sentence awarded to Rashid Ahmad and Muhammad Jameel convicts and all the three convicts have filed Criminal Appeal No,67 of 1992 to impugn the judgment of the learned trial Court. Through Criminal Appeal No,9 of 1993, the acquittal of Muhammad Ayub and Abdul Jabbar has been challenged. The Murder Reference and the two Criminal Appeals are being disposed of through this single judgment.
3. The occurrence in the present case took place on 9-8-1991 at `Maghrabwaila' on a metalled road near Village Abadi, 18 Kilometres away from Police Station, Chishtian and the same was reported by Riasat All (P.W.4) and recorded by Dilshad S.H.O. Of Police Station, Chishtian.
4. Narrating the occurrence, Riasat All (P.W.4) who is brother of Muhammad Ashraf deceased stated that on the fateful day and time, he alongwith Muhammad Hanif P.W. And Muhammad Ashraf (deceased) were going to their lands for mending their watercourse and they had Kassis with them. Muhammad Ashraf and Muhammad Hanif were ahead of the complainant and at a distance of two Kanals. All of a sudden accused Muhammad Jameel, Rashid and Muhammad Ali sons of Rehmat Ali, Ayub son of Muhammad Shafi and Abdul Jabbar son of Muhammad Hussain emerged from the watercourse. All of them were armed with .12 bore guns. They raised a Lalkara that they had come to avenge the murder of their relative Bashir Ahmad. This was followed by fire shots from Jameel, Rashid and Abdul Jabbar which hit Muhammad Ashraf on his right arm and his back. He fell down. Muhammad Ali and Ayub also fired at Muhammad Hanif P.W. Which hit him on his right arm. Accused also fired at the complainant but he took shelter behind Sarkanda bushes.
On hue and cry raised by the P.Ws. All the accused ran away.
5. After recording F.I.R. Exh.P.G. At 12-15 a.m. Dilshad Inspector (P.W.11) went to the spot; prepared the inquest report of Ashraf deceased; inspected the place of occurrence and secured the blood- stained earth vide memo. Exh.P.H. He arrested Muhammad Jameel accused on 28-8-1991. Accused Rashid Ahmad, Abdul Jabbar and Muhammad Ayub were arrested by P.W.8 Muhammad Zaman Inspector. Muhammad Ali accused was arrested by Dilshad Inspector on 11-8-1991.
6. On 31-8-1991, Muhammad Jameel accused led to the recovery of .12 bore gun which was taken into possession vide memo. Exh.P.D. On the same day, Rashid led to the recovery of .12 bore gun which was taken into possession vide memo. Exh.P.E. On 24-4-1992, Muhammad Ayub led to the recovery of gun (P.6) which was taken into possession vide memo. Exh.P.F. On 21-8-1991, Muhammad Ali accused led to the recovery of .12 bore gun (P.7) which was taken into possession vide memo. Exh.P.J. And on 2-10-1991 P.7 was taken into possession vide memo. Exh.P.L. From Abdul Jabbar accused.
7. During trial, the prosecution examined fifteen witnesses including the doctor and the Investigating Officer. Riasat All complainant appeared as P.W.4. He made statement consistent with his earlier statement which formed basis of F.I.R. Exh.P.G. Muhammad Hanif (P.W.5) corroborated the statement of Riasat All (P.W.4) on all material particulars.
8. Dr. Muhammad Afzal Saqib, Medical Officer, T.H.Q. Hospital, Chishtian, appeared as P.W.1 He conducted the post-mortem examination of Muhammad Ashraf deceased and found the following injuries:--- "(1-A) A lacerated rounded wound over postero-lateral aspect of right upper arm. Margins inverted size 1/2 c.m. x 1/2 c.m.
(1-B) A lacerated rounded wound over anterolateral aspect of right upper arm size 3/4 c.m. x 3/4 c.m. Margins everted. Right humerus was fractured and dislocated. Injury No,1-B was lying anteriorly and slightly downward from injury No,1-A. A deranged piece of pellet was found near fractured bone.
(e) A lacerated rounded wound over medial side of posterior aspect of right upper arm. Size 1/2 c.m. x 1/2 c.m. Margin inverted.
(2-ii)A lacerated wound over medial side of right upper arm in the axilla. Margins everted. Size 1/2 c.m. x 1/2 c.m. On probing, it was continuous with injury No,2. Both the injuries were 5 c.m. Apart and at the same level.
(3) A lacerated rounded wound with inverted margins over lateral aspect of posterior side of chest near right axilla Size 1/2 x 1/2 c.m.
(4) Two lacerated rounded wounds with everted margins over right side of chest. Size each 3/4 c.m. x 3/4 c.m. 7 c.m. Apart from each other. Medial one is continuous with injury No3 and lateral one with injury No,2.
(4-A) A lacerated rounded wound with inverted margins over lateral aspect of right chest in right axilla. It was approximated with injury No,2(u).
(5) A lacerated round wound with everted margins over anterior side of abdomen 5 c.m. Above and towards right side of umbilicus. Size 1 c.m. x 1 c.m.
(6) A lacerated wound over left index finger size 1 x 1 x 1/2 c.m.
(7) A lacerated rounded wound with inverted margins over right side of back of lower chest (in right lumber region) size 1/2 c.m. x 1/2 c.m. This injury was continuous with injury No,5. All these injuries were lying in the diameter of 29 c.m."
' According to the doctor, injuries plos.1, 2, 3 and 7 were dangerous to life and were sufficient to cause death in the ordinary course of nature.
9. On the same day i,e, on 10-8-1991 at 1-00 a.m. He examined Muhammad Hanif (injured P.W.) and found the following injuries on his person:--- "(1) A lacerated rounded wound over back of middle of right hand. Margins were inverted. Size 1/2 c.m. x 1/2 c.m. X-ray advised.
(2) A lacerated rounded wound over posterior aspect of right forearm near right wrist. Size 1/2 c.m. x 1/2 c.m. It was 15 c.Ms. Apart from injury No,1 X-ray advised.
(3) A lacerated wound over back of right elbow. Size 1 x 1/2 x 1/2 c.m. Vide MLC X-ray No,1218 dated 10-8-1991 there was seen fracture of proximal phalynx of right middle finger. Fracture of distal of right ulna seen. Injuries Nos.1 and 2 were Ghair Jaifa Hashima. Injury No,3 was Ghair Jaifah Damyah.
Injuries Nos.1 and 2 were with fire-arm and Injury No,3 was with blunt weapon. Duration was within 12 hours.
10. On the same day and time Dr. Muhammad Afzal Saqib, P.W.1, examined Muhammad All accused and found the following injuries on his person:- "(1) A lacerated rounded wound over left upper arm over lateral aspect 1/2 c.m. x 1/2 c.m. X-ray advised.
(2) A lacerated rounded wound over back of left little finger 1/4 c.m. x 1/4 c.m. X-ray of left hand advised.
(3) A lacerated rounded wound over left shoulder close to left side of neck. Margins were inverted.
Size 1/2 c.m. x 1/2 c.m. X-ray of chest advised.
' The medico-legal examination report is Exh.DA.
11. The accused when examined under section 342, Cr.P.C. Denied the prosecution case and attributed false implication to enmity. The accused Muhammad Ali, however, took up plea of self- defence and stated as follows:--- "I am innocent. The fact of the" matter is that on 9-8-1991 at about 10-00 p.m. I alongwith my real brother Muhammad Rafiq was irrigating my land and Muhammad Hanif P.W. And Muhammad Ashraf alias Manna deceased came there alongwith their guns. Muhammad Ashraf started firing upon me. I received injuries on my back shoulder and left arm. I fell down. My brother Muhammad Rafiq had a licensed gun who also fired at Muhammad Hanif etc. After that Muhammad Hanif fled away and my brother Muhammad Rafiq took me from the spot and brought me to Chak No,33/Fateh. From there I came to the Police Station, Saddar, Chishtian and reported the matter.
The A.S.I. Rashid Ahmad recorded my statement and got my thumb-impression on the same. He also prepared my injury statement and sent me to the Civil Hospital, Chishtian for medical examination where I was medically examined. In fact the F.I.R. Was recorded after the visit of Mr. Dilshad Ali Khan (P.W.11) at the spot who had also stopped Abdur Rashid A.S.I. To lodge my report. I was medically examined under the order of a Magistrate."
12. The learned defence counsel has raised the following pleas in support of his appeal:---
(i) That the accused gave their own defence version which is to the effect that they were attacked by Muhammad Ashraf deceased who was armed with a gun. Muhammad All convict received injuries whereupon his brother Muhammad Rafiq with his licensed gun fired at the assailants.
Muhammad Hanif fled away. The statement of Muhammad All giving the afore-referred version was recorded by A.S.I. Rashid Ahmad P.W. Which is Exh.D.E. He was medically examined. His medico-legal report is Exh.DA.;
(ii) That according to the prosecution, the occurrence took place at Maghrabwaila and the F.I.R.
Was lodged at 12-15 a.m. No explanation is coming forth regarding this delay. This shows that the occurrence took place at 10-00 a.m. As suggested by the defence and the prosecution story is false; and
(iii) That in the presence of background of enmity between the parties, independent corroboration of the ocular account which in this case consists of interested witnesses is imperative to sustain the conviction on a charge of murder. This independent corroboration is lacking in this case.
13. The learned State Counsel assisted by the learned counsel for the complainant have defended the impugned judgment and have submitted as follows:---
(i) That the defence version is a clever attempt to damage the prosecution case. The so called statement of Muhammad All convict (Exh.D.E.) is undated and even the name of the scriber is not written on the same;
(ii) That substitution is rare phenomena in the criminal cases. There was no reason for the prosecution to let off Muhammad Rafiq and to exonerate Muhammad Ali convict if he had given the fatal shot; and
(iii) That there are dishonest aspects of the police investigation. For instance P.W.13 who claims to have written the statement of Muhammad Ali convict had nothing to do with the case on 10-8-1991 when his said statement was allegedly recorded by him. Of his own showing, he was handed over the file of this case on 15-8-1991. How could he write the statement of Muhammad Ali accused- convict on a date when he was not the Investigating Officer?
14. We have given our anxious consideration to the arguments of the learned counsel on both the sides. The occurrence has partly been admitted by the accused but they have given their own version which is found in the statement of Muhammad Ali convict. The question of two versions has engaged the attention of this Court as also the Honourable Supreme Court in several cases. In Ashiq Hussain v. The State PLD 1994 SC 879 the Honourable Supreme Court has laid down guidelines to be followed by the Courts for the appreciation of evidence in criminal cases of one version or two versions. At page 883 of the said judgment it has been observed as follows:- "The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr.P.C., statement under section 340(2), Cr.P.C. And the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. Is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C.
Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counter-versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the questions, viz. Is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly."
15. Respectfully following the dictum laid down in the afore-referred judgment, we find that the ocular account of the prosecution evidence has been furnished by complainant Riasat All (P.W.4) and his statement on all material particulars has been corroborated by Muhammad Hanif (P.W.5).
Although Muhammad Hanif P.W. Is related to the complainant as also to the deceased yet his presence at the spot is proved by the medical evidence as he received three fire-arm injuries during the occurrence. Riasat All P.W. Has furnished motive of the prosecution case which is that one Muhammad Hussain (father of Abdul Jabbar and uncle of Muhammad Ayub accused) was murdered and Muhammad AshraL deceased was facing trial in the said murder case. About eight months prior to the incident, Muhammad Ashraf (deceased) was bailed out by the High Court and the accused bore a grudge on that account and that is why he had been done to death by the convicts.
16. Much stress has been laid by the learned defence counsel on the delayed F.I.R. Delay in lodging the F.I.R. Cannot in all cases lead to an inference that the case is necessarily false. Each case has to be examined in the light of its own peculiar circumstances and a delay could be a factor in absence of a credible explanation for the same to support the defence plea. In the instant case, the distance of Police Station from the place of occurrence is eighteen Kilometres. Real brother of the complainant had been killed and another had received serious injuries. The complainant and the other relatives were in a state of shock on account of the murder. The reasons for delayed F.I.R.
Have been furnished by complainant himself who stated that in the far flung village he had to wait for a transport to reach the police station and as soon as the said transport was available he took Muhammad Hanif to the Police Station in an injured condition to lodge the F.I.R. In question. This factual assertion of lack of transport has not been controverted by the defence and is a reasonable explanation in the facts and the circumstances of this case. B In Hamid Khan v. The State 1981 SCM R 448 the Honourable Supreme Court upheld the conviction despite three days' delay in lodging the F.I.R. As the explanation in the delay was found to be reasonable.
17. The recovery of guns from the accused has rightly been disbelieved by the learned trial Court and there is nothing on record to interfere with this finding. The guns recovered from Muhammad Ali, Jameel and Rashid Ahmad were unlicensed whereas the guns recovered from Muhammad Ayub and Abdul Jabbar are licensed one. No crime empty was recovered from the place of occurrence. In Dosa v. The State 1988 SCM R 1532 recovery of gun was held to be inconsequential as no empty was recovered from the spot.
18. Coming to the defence plea raised through the statement of Muhammad Ali convict we find that the same is not plausible for following reasons:---
(i) In a case of two opposite versions about the same incident motive assumes a crucial importance. In Ghulam Muhammad v. Allah Yar and 2 others PLD 1976 SC 241 it was held:--- "Criminal trial ---Appreciation of evidence---Two opposite versions of same incident and plea of self-defence or for diminished liability-- Motive, in such case, assumes crucial importance--- Motive---Not only explanatory of conduct of persons concerned in given situation but also helpful in proper appreciation of evidence.
' Where there are two opposite versions of the same incident and there is also a plea of self- defence or for diminished criminal liability, motive assumes crucial importance. It is not only explanatory of the conduct of persons concerned in the incident in the given situation, but also helps in the proper appreciation of evidence in the case, in the light of motivation of their conduct."
We find that the prosecution attributed a definite motive to the accused for the alleged occurrence and the same has been proved. On the other hand, there was no motive for Muhammad Ashraf deceased and Muhammad Hanif P.W. To have gone to the place of occurrence with guns and to have attacked the accused party. Muhammad All convict in his statement under section 342, Cr.P.C. Did not allege any motive to the prosecution for the alleged attack on the accused.
However, during cross-examination on P.W.4 Riasat Ali complainant it was suggested that a son of one Abdur Rehman was murdered in the year 1987 and Muhammad Ayub and Abdul Jabbar and father of Abdul Jabbar were tried and acquitted in the said case. According to the defence, Abdul Jabbar and Ayub have been falsely involved in the instant case on the instigation of Abdur Rehman. Yet another motive suggested in the cross-examination was that one Sharif Chatia is brother of Muhammad Hanif P.W. The said Sharif was sentenced to death for the murder of father of Abdul Jabbar and uncle of Ayub accused and that Abdul Jabbar and Ayub had been falsely involved at the instance of Muhammad Hanif (injured P.W.). The afore-referred analysis of the defence plea qua the motive attributed to prosecution would indicate that the defence has been inconsistent and waivering and the motive alleged by them has neither been supported by anything on record nor the same is believable; ' The defence case is that it was one Muhammad Rafiq brother of Muhammad Ali accused who fired at Muhammad Hanif P.W. And that the accused were innocent. Substitution in criminal cases is a rare phenomena. It is repellent to common sense that the complainant would let off Muhammad Rafiq who fired-the fatal shot and involve other innocent persons;
(iii) The statement of Muhammad Ali accused (Exh.D.E.) does not find mention in the case diary (this is admitted by P.W.13 Rashid Ahmad, A.S.I.). Neither any date has been written on the said statement nor it is shown as to who scribed it. It appears to be an attempt by the accused to create a plea of defence with the assistance of P.W.13 Rashid Ahmad, A.S.I. The manner in which it has been written, its intrinsic unreasonability and the fact that the accused never pursued this plea vigorously either during investigation or by filing a private complaint makes it unworthy of any credit;
(iv) The medico-legal report of Muhammad All convict (Exh.DA.) does not connect the so-called injuries mentioned therein with the instant case. For instance in the column of duration of injury, no duration of time between the injury and the medico-legal examination has been mentioned. Even otherwise having bullet injury (a pellet was found to be present in the chest) it is unbelievable that the said convict would go about visiting hospital, District Courts and the Police Station. He was never hospitalised. These circumstances, by itself, make the injuries mentioned in Exh.DA. To be doubtful.
19. We do not see any reasonable possibility of defence version being true and there is no valid reason for the substitution of Muhammad Ali with Muhammad Rafiq. The defence plea is, therefore, an afterthought and devoid of any force and the same is held to be so.
20. For what has been discussed above, there is no merit in Criminal Appeal No,67 of 1992. However, so far as the question of sentence awarded to Rashid Ahmed and Muhammad Jameel appellants is concerned we are inclined to hold that as it is not clear as to who caused the fatal injury, both of them merit lesser sentence. The sentence of death awarded to them is, therefore, modified and converted into life imprisonment. The conviction of Rashid Ahmad, Muhammad Jameel and Muhammad All under section 324, P.P.C. For murderous assault on Riasat P.W. Is set aside as he did not receive any injury and, therefore, the charge to this extent is not free from doubt. Criminal Appeal No,67 of 1992 is, therefore, partly allowed with this modification in the impugned judgment.
They shall be given the benefit of section 382-B, Cr.P.C.
21. Criminal Appeal No,9 of 1993 filed by the State against the acquittal of Abdul Jabbar and Muhammad Ayub is devoid of any force which is hereby dismissed. Murder Reference is answered in the negative. Death sentence not confirmed.