Abdul Majeed 30, Rabnawaz 50, Haqnawaz 55 and Muhammad Nawaz 47 were tried for having committed the murder of Muhammad Waris, in case F.I.R. Exh. PD/1, registered with Police Station, Shorkot City on the statement Exh. PD made by Ghulam Muhammad P.W.7, father-in-law of the deceased, which was recorded by Muhammad Siddique, S.I. P.W.10. For an occurrence which took place on 22-1-1990 at 10-30 a.m. Near the railway track in the area of Chak No.490/City Shorkot, at a distance of 27 k.m., from the Police Station, Shorkot City, District Jhang.
2. The learned Sessions Judge, Jhang vide his judgment dated 13-3-1991 convicted Abdul Majeed son of Sher Muhammad under section 302, P.P.C., sentencing him to imprisonment for life with a fine of Rs.25,000 with a direction that the fine shall be recovered as arrears of land revenue and the same shall be defrayed to the heirs of the deceased as compensation. The benefit of section 382- B, Cr.P.C., was also extended to the appellant, Rabnawaz, Haqnawaz and Muhammad Nawaz sons of Sher Muhammad were acquitted of the charge while giving them the benefit of doubt.
3. The legality of the judgment has been assailed through this appeal while the complainant- Ghulam Muhammad has filed Cr.R. No.327/91 for setting aside the acquittal of Rabnawaz, Haqnawaz and Muhammad Nawaz, whereas Muhammad Nawaz, accused, had died on 28-1-1995.
The death certificate has been placed on the record. The Revision to the extent of Muhammad Nawaz abates and the Revision Petition No.231/91 was filed to seek the enhancement in the sentence, compensation and fine awarded to the appellant. All the three cases are being decided through this single judgment.
4. The facts, in brief, of the prosecution case are that Ghulam Muhammad P.W.7 was resident of Chak No.490, Shorkot City, District Jhang and was cultivator by profession and Muhammad Waris, deceased, his son-in-law, was also the resident of the same place and was employed as Gunman in the Railway Department. Muhammad Waris, deceased was in possession of land of the Railway Department and had cultivated tobacco crop thereon. On 22-1-1990 the complainant alongwith his son-in-law was weeding tobacco crop when Abdul Majeed, armed with file, Haqnawaz, Rabnawaz and Muhammad Nawaz, armed with Sotas enraged from the reed bushes and shouted to deceased. Abdul Majeed, fired a shot which struck the deceased-Waris on the back of his chest. He fell down. The accused, on seeing the witnesses, fled away from the venue of the occurrence.
Muhammad Waris, succumbed to the injuries at the spot.
5. The motive behind the murder, as alleged, was that Muhammad waris-- deceased, was suspected of carrying on illicit relations with the wife of Rabnawaz, the real brother and co- accused of the appellant.
6. Muhammad Siddique, S.I. P.W. 10, after recording the statement Exh. PD while he was present at Police Waryam, sent the same to the concerned police station for formal registration of the F.I.R. He, therefore, proceeded to the place of occurrence where he prepared injury statement Exh. PA/2, inquest report Exh. PA/3 and the dead body of Muhammad Waris, deceased, was sent escorted by Muhammad Bakhsh, Constable P.W.3, to the mortuary for post-mortem examination. He mace an inspection of the place of occurrence and blood-stained earth was secured from the venue of the occurrence and the same was taken into possession vide memo. Exh. PF and a crime empty Each.
P.11 was also taken into possession from the place of occurrence vide memo. Exh.PG. He recorded the statements under section 161, Cr.P.C. Of the P.Ws. At the spot. The last worn clothes of the deceased i.e. Shirt P.1, Jarsey, P.2, Bunyan P.3, Chaddar P.4 and Safa P.5 all blood-stained were produced before him by the Constable after post-mortem which were taken into possession vide recovery memo. Exh. PC. He arrested the accused/appellant-Abdul Majeed who was found in possession of 7 MM rifle P.6, bandolier P.7, containing eight live cartridges P.8/1-8, licence P.9 and leave certificate P.10 and the same were taken into possession vide memo. Exh. PE. The rough site plan Exh. PE/1 was also prepared by him. He arrested Rabnawaz accused on 22-1-1990. The investigation, thereafter, was taken over by Agha Zulfiqar Ahmed, Inspector/ Investigating Officer P.W.11, who partly conducted the investigation. He arrested Haqnawaz and Muhammad Nawaz on 13-2-1990 and on the accomplishment of the investigation, prepared the challan against the accused persons.
7. Dr. Muhammad Riaz P.W.1, on 22-1-1990 at 4-30 p.m. Conducted the post-mortem examination of Muhammad Waris, deceased, and found following injuries on his person:---
(1) A fire-arm entrance wound 1 cm x 0.7 cm surrounded by a small zone of denuded epithelium on back of chest and mid line. No burning or blackening was present.
(2) A fire-arm exit wound 2.6 cm x 1.7 cm on front of right chest 2.5 cm above right nipple. The level of this wound was 1.5 cm above as compared to the wound on back.
8. The prosecution in order to substantiate its case against the appellant and others, produced as many, as eleven witnesses. Dr. Muhammad Riaz P. W.1 had conducted the post-mortem examination on the dead body of the deceased, Ghulam Muhammad Patwari P.W.2 prepared the site plans Exh. PB and PB/1 under the direction of the police and on the pointation of the witnesses, Muhammad Bakhsh, Constable P.W.3, had escorted the dead body to the mortuary, Chiragh A.I P.W.4 was given sealed parcels containing rifle for onward transmission to the Office of the Forensic Science Laboratory, Lahore, Amir Bakhsh, H.C. P.W.5, registered the formal F.I.R. Muhammad Akbar, Constable P.W.6 was also given three sealed parcels and he had delivered safely to the concerned office, Ghulam Muhammad P.W.7, Ghulam Mustafa P.W.8 and Allah Jowaya P.W.9, furnished the ocular account and deposed about the recoveries, Muhammad Siddique, S.I. P.W.10 partly investigated the case and gave all the details of it and Agha Zulfiqar, Inspector P.W.11, had also investigated the case.
9. On the conclusion of the prosecution evidence, the same was put to the accused persons, who professed their innocence and refuted the allegations levelled against them. They were examined under section 342, Cr.P.C., but none of them volunteered to appear and make the statement, on oath, under section 340(2), Cr.P.C., in disproof the allegations levelled against them nor any defence witness was produced. The appellant admitted the occurrence but not in the manner as alleged by the prosecution. He said that he had been implicated in this case due to the animosity with the prosecution witnesses, who were closely related to the deceased. In an answer to question No.7, he stated as follows:--- "I am innocent. The P.Ws. Are related to the deceased and inimical to me. "
10. The learned counsel for the appellant while leading me through the evidence, has contended that the ocular account was furnished by the witnesses closely related to the deceased, who were not only interested but also inimical. The recovery is also fabricated as the appellant himself had produced the crime weapon before the Investigating Officer. The occurrence had not taken place as alleged by the prosecution. He argued that the eye-witnesses do not appear to have witnessed the occurrence. Further, contended that the version put forth by the appellant was more probable and nearer the truth than the version put forth by the prosecution.
11. On the other hand, the learned counsel for the State defended the judgment of the learned Trial Court contending that there was no plausible reason to discard the ocular account merely on the ground of relationship with the deceased. The version put forth by the appellant cannot be taken into consideration as he had neither himself appeared to depose on oath nor he had produced any defence witness. The learned counsel for the complainant prayed for the enhancement of the sentence of the appellant and for the conviction of acquitted co-accused.
12. I have gone through the evidence very minutely and have considered the contentions raised by the learned counsel for the respective parties.
13. Ghulam Muhammad P.W.7 had lodged the F.I.R., and specifically stated that he alongwith his son-in-law Muhammad Waris-deceased was engaged in weeding tobacco crop near the railway track. The appellant-Abdul Majeed, armed with rifle, Rabnawaz, Haqnawaz and Muhammad Nawaz, armed with Sotas emerged out from the reed bushes from the eastern side of the railway track and raised "Lalkara" to kill Muhammad Waris then Abdul Majeed fired a shot from his rifle hitting Muhammad Waris on the back side of his chest, who died instantaneously. He, in his cross- examination admitted that the accused had been suspecting the deceased of having illicit liaison with the wife of Rabnawaz, accused, for the last 5/6 months. He also admitted that Abdul Majeed, appellant, had informed him of carrying on the illicit relations with the wife of his brother. The witness took a somersault at this juncture saying that he was not informed by Abdul Majeed, accused/appellant. In cross-examination, he further stated that there were scattered reed bushes along the railway track. The bushes were at a distance of 7-1/2 Kaiams from the place of occurrence and the shot was fired after covering 6/7 Karams from the bushes. In an answer to a question, he deposed that he had noticed when "Lalkara" was raised. The deceased had also stood up when he was fired at. The complainant had attended the deceased but his clothes were not stained with blood. He further stated that he had taken away the scraper of him and of the deceased to his house, Ghulam Mustafa P.W.8 and Allah Jowaya P.W.9 had furnished the ocular account testifying the statements of the complainant. Ghulam Mustafa, however, deposed that there were no trees or bushes on the southern side of the venue of the occurrence. He further stated that scrapers were lying near the dead body when his father had gone to lodge the F.I.R. And remained in the field till the reaching the place. Allah Jowaya, in his. Cross-examination, stated that on hearing the "Lalkara" they had reached near the railway track when the shot was fired. He further stated that the shoes of the deceased were also lying near the dead body.
14. Muhammad Siddique, S.I. P.W.10, in an answer to a question stated that the accused/appellant on the very first day had taken a stance regarding the occurrence, that he had suspicion about the illicit liason of the deceased with the wife of his brother. On the fateful day he saw the deceased with the wife of Rabnawaz and he under grave and sudden provocation committed the murder. He further stated that he had not associated the wife of Rabnawaz with the investigation nor he interrogated.
15. According to the eye-witnesses the occurrence had taken place at about 10-30 a.m., and the report was lodged on the same day at about 1 p.m. The Investigating Officer had inspected the spot on the same day. He was shown at the spot scraper and the shoes of the deceased but he had not secured the same into possession. Even otherwise the site plan does not show any field of tobacco crop which according to the prosecution was being weeded at the time of the occurrence by the complainant party nor any Revenue Record has been brought on the file to show that the land in question was under cultivation of the deceased and tobacco crop was sown there. The statement of Ghulam Muhammad, Patwari P.W.2 has made it more clear when he in cross- examination categorically stated that the place of occurrence was a vacant field and there was no crop standing in the field when he had prepared the site plans Exh.PB and Exh.PB/1 on 10-2-1990.
The stance that he had found the dead body in the crop of tobacco, itself stands demolished. As it is the case of the prosecution that only one shot was fired and the empty was found lying at the spot, the question arises as to why the other articles i.e., scraper and shoes of the deceased lying the spot were not taken into possession as being the proof of the presence of the deceased in the alleged field which remains unanswered and loses the credibility of the recovery of the blood- stained earth and the crime empty from the spot.
16. Keeping in view the circumstances of the case, the stance taken by the appellant that the occurrence had not taken place as alleged by the 6 witnesses, cannot be disbelieved totally as misconceived. The recovery of the rifle from the possession of the accused/appellant is of no avail to the prosecution as the same was licensed rifle and particularly when the appellant himself did not deny to have used the same for firing at the deceased. The statements of the witnessed are also discrepant on two/three points which leads to the inference that occurrence had not taken place in a manner as alleged by the prosecution. The eye-witnesses, who furnished the ocular account, were closely related to the deceased.
17. The motive as alleged by the prosecution was that the deceased had been carrying on illicit relations with the wife of the brother of the appellant. This fact has also been admitted in the statement made by the appellant under section 342, Cr.P.C., I, therefore, in the peculiar circumstances of the case, do not find any reason to disbelieve his statement particularly when the defence version is examined in juxtaposition, the defence version appears to be more probable and the prosecution version about the occurrence has not been found to be confidence inspiring.
The accused/appellant had not only taken this stance while making the statement under section 342, Cr.P.C., but he had taken his plea, according to the Investigating Officer, on the very first day while making the statement before the Police Officer.
18. For the foregoing reasons, I feel convinced that the version put forth by the prosecution was not correct and the version put forth by the defence is more nearer the truth. The conviction under section 302, P.P.C., is not maintainable and is, therefore, set aside. It is altered to one under section 304, Part II, P.P.C., and taking into consideration the nature of the prosecution sentence is reduced to seven years' R.I. The period of his detention as under-trial prisoner shall be deducted. However, I maintain the sentence of the fine of Rs.25,000 and the same shall be defrayed to the legal heirs of the deceased as compensation and this amount shall be recovered as arrears of land revenue.
19. Criminal Revisions Nos.231 and 327 of 1991 shall also follow the suit.