RAJA ABDUL AZIZ BHATTI, J.---We propose to dispose of all the abovementioned matters through this single judgment because these pertain to one occurrence.
2. Atif Ramzan son of Muhammad Ramzan, resident of Shumali Mohalla, Tehsil Road, Chakwal, was challaned in a case F.I.R. No.6 dated 22-1-1993 registered under section 302, P.P.C, at Police Station City Chakwal. The challan was submitted in the Court of learned Sessions Judge, Chakwal, and he was tried under section 302, P.P.C. For committing the murder of Riaz Hussain aged 21 years on 22- 1-1993 at about noon time in the Baithak of his own house situated in Shumali Mohalla, Chakwal City. According to the F.I.R. The convict/accused suspected of having illicit relations with his sister.
3. According to the contents of the F.I.R. Ejaz Hussain son of Sikandar Khan, resident of the same Mohalla lodged report at Police Station City Chakwal on 22-1-1993 at 7-15 p.m. To the effect that his younger brother Riaz Hussain was running a shop on Tehsil Road. On 21-1-1993, the complainant along with his mother and children went to Wah Factory on some ceremonial function. On the same date, at 3-50 p.m. Muhammad Akram and Ghulam Ali resident of his Mohalla came to him at Wah Factory (Nawababad). Muhammad Akram told him that at 12 noon, he closed the shop and handed over the keys of the shop to his brother Riaz Hussain with the request to leave these keys at his house. Accordingly, Riaz Hussain proceeded towards his house and was still on the road when Ghulam Ali son of Sultan Ahmad also met them there. They started talking to each other while Riaz Hussain was coming from the front, whereas Atif Rarnzan-convict was standing in the gate of his own house who caught hold of Riaz Hussain from his hand and brought him to his Baithak and from there some noise came out on which both of them namely Muhammad Akram and Ghulam Ali reached at the door of the Baithak and Atif Ramzan the present appellant had a pistol with him with which he fired at Riaz Hussain. It hit on the front of his chest and on receiving the injury he fell down. At the same time, Atif Ramzan took out Chhuri from his Dub and started cutting the neck of Riaz Hussain. They tried to rescue him, but Atif Ramzan warned them and said that he would fire at them. Because of the fear of life, they did not go ahead. After hearing. His narration, the complainant Ijaz Hussain reached his home and saw the dead body of Riaz Hussain lying in the Baithak of the accused/convict. The motive for the commission of this crime is stated to be that the appellant had suspected that the deceased was having illicit relations with his sister and lodged the report and signed it.
4. During the investigation, the appellant was found guilty and challaned to Court. He was charged under section 302, P.P.C. For the murder of Riaz Hussain the younger brother of the complainants.
5. During the trial, the prosecution examined as many as twelve witnesses in-all. Muhammad Sharif P.W.1 prepared the site plans. Muhammad Yaseen P.W.2 took the parcel of blood-stained Chhuri.
Rahim Bakhsh P.W.3 identified the dead body of Riaz Hussain at the time of post-mortem examination. Ghulam Mustafa P.W.4 is a recovery witness of revolver and blood-stained Chhuri which were recovered at the instance of accused on 1-2-1993. Dr. Muhammad Iqbal Ghani P.W.5 carried the autopsy on the dead body of the deceased. Muhammad Akram P.W.6 is an eye-witness and also a recovery witness of blood-stained earth and shoes. Ghulam Ali P.W.7 is also an eye- witness of the occurrence. He is maternal uncle of the deceased and is resident of the neighbouring place. He is also a witness of the recovery. Ejaz Hussain, who is the real brother of the deceased, is not an eye-witness of the occurrence, but lodged the report on the information given to him by Muhammad Akram and Ghulam Ali. Muhammad Akram is also the uncle of the deceased. Nasrullah Khan a police official appeared as P.W.9. He escorted the dead body to the mortuary for post-mortem examination. After post-mortem examination, he produced last worn clothes of the deceased i.e-. Shirt P5, Shalwar P6, vest P7 and Jarsey P8 before Zamurrad Hussain S. I. P.W.10. At the time of arrest of the accused, key P9 was taken into possession from the accused when recovery of pistol/crime weapon was made on the same date. Altaf Hussain P.W.11 is the police official, who kept all the aforesaid parcels along with an empty cartridge. P.W.12 Muhammad Iqbal S. I./Investigating Officer recovered blood-stained Chhuri and revolver on 3-2-1993 and 4-2- 1993 respectively. However, an empty cartridge was taken into possession from the place of occurrence. All these witnesses appeared before the trial Court and supported the story of the prosecution.
6. Learned defence counsel made the following propositions for consideration of the Court:---
(a) that there was delay in lodging the F.I.R. i.e. At 7-15 p.m. On this aspect of the case, learned counsel relies on 1987 M LD 1696. He criticized the statement recorded under section 161, Cr.P.C.
Specially of a person who is close relative of the deceased and resident of the same Mohalla. He also criticized both the eye-witnesses on the ground that it was quite abnormal for the eye- witnesses, who were so close relatives to leave the dead body in the Baithak of the accused and left for Wah Factory to inform the brother of the deceased. The distance between the place of occurrence and Wah Factory is quite lengthy and going of two uncles leaving the dead body unattended was highly improbable and not appealing to reasons. He also made a proposition that both the eye-witnesses are false and their presence at the spot can outrightly be rejected.
According to him, it was an unseen occurrence, though the accused had taken the plea that some dacoits came there and committed the murder of the deceased. According to him, the accused are at liberty to take as many pleas in their defence as they decided. Even the motive has been much talked about as it was originally mentioned by the complainant in the F.I.R.
7. On the other side, the prosecution argued the case and prayed for the rejection of the appeal on the ground that the delay in lodging the F.I.R. Has been admitted by the accused and there is no previous enmity between the parties. It is not the case of the defence that there was any previous enmity to falsely implicate the accused. The injuries on the person of the deceased have been proved and supported by the medical evidence. Causing of fire-arm injury on the person of the deceased and then cutting of his throat with a Chhuri also makes to believe that there was some deep-crooted hatred with the appellant about the deceased. Explaining it little more, it was stated on behalf of the prosecution that the illicit relations referred to above was the cause of hatred.
Above all, he stated that the dead body of the deceased was found in the Baithak of the appellant.
8. We have heard the learned counsel for the parties and have perused the record and also gone through the judgment given by the learned trial Court. The main question in this case is as to whether Muhammad Akram and Ghulam Ali P. Ws. Were present at the place of occurrence or not and whether there was some motive to implicate the accused falsely or not. Keeping in view these aspects of the case, we deal with the propositions advanced by the defence one by one.
9. As far as abnormal conduct of the prosecution eye-witnesses is concerned, we may say that though admittedly both are the relatives of the deceased, one is living adjoining to the place of occurrence and the other came from a far-off place. When in our society commission of offence takes place, normally some members of the family are contacted by the other relatives. They do not go to lodge the report except the close relative unless having no alternative. In this case, the prosecution story is that both the witnesses went to Wah Factory to contact the complainant instead of reporting the matter to the police. It is not an incident which may be the case of discrediting the witnesses.
One of the uncles lives just near the place of occurrence and it is a routine for him to pass through that street. Coming of other relatives from a far-off place is such a matter which too cannot be called abnormal conduct on the part of the eye-witnesses. The only fact, which needs careful examination as to whether in the given circumstances, they would have gone to Wah Factory or not. Had the dead body been not found in the Baithak of the accused/convict, all the arguments advanced by the defence could have lot of bearing and could also be considered for rejecting the evidence of those close relatives. Admittedly, they have no previous enmity and mere relationship is not sufficient to discard their evidence. It is not the case of the defence that the dead body was not lying in the Baithak of the accused. Thus, the aspect of lodging the F.I.R. With some delay and going of Muhammad Akram and Ghulam Ali P.Ws. To Wah Factory in the given circumstances is not so adverse to disbelieve them. As far as their conduct of interfering in the occurrence is concerned, they went to the door of the Baithak and allegedly saw the accused using pistol and Chhuri when both these witnesses were empty-handed. Any person who is empty-handed takes comparatively more care for his life. Instead of interfering in the fight. There is another circumstance, which is very vital to this end. They were warned by the appellant in case if anybody attempted to interfere.
10. As far as the presence of these two eye-witnesses at the place of occurrence is concerned, it is suffice to say that one uncle of the deceased was living near the place of occurrence and coming of the other uncle there is not beyond thinking. The presence of both the witnesses, under the Circumstances, is natural phenomena. Their statements were also recorded by the Investigating Officer. In their statements no material contradictions have been brought on record by the defence during their cross-examination. In the village life particularly it is not easy job to flout the illicit relations of any one with a lady. Here in this case at one time the complainant party rightly stated about the motive that the deceased had illicit relations with the sister of the convict/appellant.
Later on it was not forcefully pleaded because not for the reason that it was not a fact but because of acquiring bad name. Presence in the Baithak of the appellant of the deceased as stated by the prosecution also leans towards the fact to believe that he had some relations with the sister of the appellant/convict.
11. The recovery evidence is overwhelming in this case. Weapon of offence/pistol and blood-stained Chhuri were recovered and also the shoes which were worn by the deceased. Reports about these articles do go positive for the prosecution.
12. Summing up the arguments mentioned above, this case seems to be of very simple in nature where the murder has been committed because of illicit relations witnessed by two persons. Mere relationship is not sufficient to discard their evidence and even taken into custody the dead body of the deceased fro the Baithak of the convict has not been denied. It is a case where there are certain admissions from either side. Thus, it can safely be said that the prosecution has successfully proved the case against the convict beyond reasonable doubt. However, one important aspect of the case has been ignored by the learned trial Court i.e. Mitigating circumstance with regard to the quantum of sentence. Here in this case maximum sentence has been awarded. But we are of the view that it is a matter, which involves the honour/respect of the family. It was the case of the prosecution that the deceased might had illicit relations with the sister of the accused and this fact came on record at the beginning of the proceedings. We are, therefore, constrained to give benefit of this mitigating circumstance to the accused/appellant.
Hence instead of death sentence, the appellant is awarded imprisonment for life. The sentence of death awarded by the learned trial Court is set aside and instead he is awarded imprisonment for life with a fine of Rs.2,00,000, in default of the payment of fine, he shall undergo further R.I. For four years. However, if the fine is realised as ordered, it shall be paid to the legal heirs of Riaz Hussain deceased as compensation. Benefit of section 382-B, Cr.P.C. Is also granted.
13. With the aforesaid modification in the sentence, the appeal filed by the appellant is dismissed.
Criminal Revision is dismissed and the Murder Reference is disposed of.