' ASIF SAEED KHAN KHOSA, J.---Abdul Rehmar); Muhammad Safdar, Niaz, Muhammad Aslam, Barkat Ali and Muzammal Hussain alias Zulfiqar Ali appellants were convicted by the learned Additional Sessions Judge, Burewala, District Vehari vide judgment dated 3V-10-1996 for an offence under section 302/149, P.P.C. Sentencing Abdul Rehman appellant to death and the other appellants to imprisonment for life each. All the appellants were also convicted for an offence under section 148, P.P.C. And were sentenced to R.I. For three years each. All of them were also convicted for an offence under section 365/149, P.P.C. And were sentenced to R.I. For four years each. The sentences of imprisonment awarded against all the appellants were ordered to run concurrently and they were also extended the benefit under section 382-B, Cr.P.C. All the appellants. Have challenged their convictions and sentences before this Court through Criminal Appeal No,345 of 1996. We have heard their appeal along with Murder Reference No, 45 of 1997 seeking confirmation of the Sentence of death passed against Abdul Rehman appellant. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was .That Muhammad lqbal complainant was a Canal Patwari' posted at Chak No'.529/EB Circle. On 3-8-1994 he was required by the Ziladar and S.D-.0.
Canals, Burewala to serve certain notices in Chak No,525/EB and for that purpose, while going to that Chak, he spent the night with one Muhammad Shafi at Chak No, 529/EB. Next morning, i,e, on 4-8-1994 immediately, upon his leaving the house of the said Muhammad Shafi at about 7/8 a.m.
For going to Chak No,525/EB the six appellants and their co-accused Riaz Ahmad came there in the street and encircled the complainant. All. The appellants and their co-accused then started giving the complainant blows with their respective Sotas at various parts of his entire body. Thereafter, they lifted the complainant and took him to the Bheini of one Niaz Ahmad situated at a distance of about two squares where, after placing a piece of wood under the complainant's right shin, Abdul Rehman appellant gave a Sota blow fracturing the - complainant's shin bone. The complainant's thrashing and his abduction were witnessed by Muhammad Shafi P.'W, and many other residents of the village. After that the appellants and their co-accused, while sitting aside, started hatching a plan .Against the complainant when a police party reached there whereupon the appellants and their co-accused fled away with their respective weapons. It was stated in the F.I.R, that the complainant was a civil servant and that he had been aggressed against during performance of official duty on account of the fact that some time ago he ' had initiated proceedings against the appellants and their co-accused for their theft of canal water.
3. Upon receipt of information that Muhammad Iqbal Patwari had been belaboured by certain persons Ghulam Murtaza, ((P.W.12)), who was patrolling the area at that time, had rushed to the place of occurrence whereat he had found Muhammad Iqbal Patwari lying in injured condition. He recorded the statement (ExhP.B) of Muhammad Iqbal at the spot at 12-30 p.m. Subsequently formal F .I.R . No .181 (Exh-PB/1) in that regard was recorded at Police Station Sadar, Burewala at 1-35 p.m on the same day by Muhammad Iqbal, M.H.C. (P.W.3) for offences under section 365/342/337- F(v).148/149, P.P.C.
4. After recording the statement of Muhammad Iqbal complainant, Ghulam Murtaza, A.S.I (P.W.12) took, up the investigation of this case, inspected the place of occurrence,. Prepared a rough site- plan thereof, recorded the statements of witnesses and took other steps. Upon the death of Muhammad Iqbal complainant on 15-8-1994 he added section 302, P.P.C. To the F.I.R. Re then applied for post-mortem examination of the dead body and prepared an inquest
5. Muhammad Iqbal complainant was medically examined by Dr. Muhammad Yaqub (P.W.6) on 4- 8-1994. He had found 21 injuries on the person of the complainant. All the injuries had been caused by blunt weapon and were fresh. Three of the injuries were subsequently declared to be grievous whereas the remaining injuries were found to be simple in nature. Dr. M.A. Rauf (P.W.9) had taken X- ray films of the injuries of the complainant and had submitted his report regarding the same. Dr. Abdul Rashid (D.W.3) had conducted the bacteriological and histopathological examinations regarding the kidney, lung and liver of the deceased complainant. Dr. Rahat Anwar Khan had conducted the post-mortem examination of the dead body but on account of his absence from the country he could not be produced as a witness during the appellants' trial. The post-mortem examination report prepared by him and his signatures on the inquest report as well as the injury statement were identified and proved by Muhammad Khalid Cheema (P.W .8).
6. After post-mortem examination of the dead body Ghulam Murtaza, A.S.I (P.W.12), the Investigating Officer, secured the last-worn clothes of the deceased and recorded statements of witnesses. Thereafter, the investigation of this case was transferred to Malik Rab Nawaz, Inspector (P.W.11) He got a formal site-plan of the place of occurrence prepared by a draftsman. He then arrested all the appellants except Muzammal Iussain alias. Zulflqar Ali and recovered Sotas from their custody. The investigation was then transferred to Maqbool Ahmad, S.H.O (P.W.10) who arrested Muzamil Hussain alias Zulfiqar Ali appellant and . Recovered a Sota from his possession.
Thereafter, he completed the other formalities, finalized the investigator. And submitted a report under section 173, Cr.P.0 in respect of this case. Due to failure of his arrest the case of Riaz Ahmad accused was separated from that of the appellants for the purposes of the trial.
7. At the commencement of the trial the learned trial Court framed a Charge with three heads tinder sections 148, 365/149 and 302/149, P.P.C. Against the appellants to which they pleaded not guilty and claimed a trial.
8. During the trial the prosecution produced as many as twelve witnesses in support of its case against the appellants. Allah Dad (P.W.7) furnished the ocular account of the incident and also deposed about the motive. Dr. Muhammad Yaqub (P W.6), Dr.M.A. Rauf (P.W.9), Dr.Abdul Rashid (D.W.3) and Muhammad Khalid Cheema .(P.W.8) provided the medical evidence. Ghulam Murtaza, A.S.I. (P.W.12), Malik Rab Nawaz, Inspector (P.W.11) and Maqbool Ahmad, S.H.O. (P.W.10) stated about various steps taken by them, including the recoveries effected from the appellants, during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature. Lkram Javed, F.C, (C.W.I) had stated about the efforts made by him to get Dr.Rahat Anwar Khan served.
9. In their statements recorded under section 342, Cr.P.C. All the appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. While answering a question as to why he had been implicated in this case and why the prosecution witnesses had deposed against him Abdul Rehman appellant had stated as follows: "1 and my co-accused are absolutely innocent. In fact at the odd hours of the night Iqbal was beaten by some unknown persons and thereafter, he was thrown on the soling of the lane of Chak No,529/EB in front of the Ihata of Niaz under the shedow of Kikar tire, Iqbal was not Patwari of Halqa No,529/EB in those days. Lqbal was womanizer and he was carrying on with some women of the, Chak and the inhabitants of the Chak asked him many times not to visit the Chak but he remained obstinate and stubborn which resulted in his beating. 1 and my co-accused had not given any beaten to lqbal as we were not present at the time of the alleged occurrence."
' The remaining appellants also made statements on the same lines. Muzammal Hussain alias Zulfiqar Ali appellant also took a plea of alibi. None of the appellants made any statement on oath under section 340(2), Cr.P.C. However, four witnesses were produced in their defence. Ch.Saghir Aslam, Advocate and Oath Commissioner (D.W.1) stated about attestation of an affidavit (Mark-A) allegedly sworn by Allah Dad (P.W.7) denying witnessing the occurrence. Pervaiz lqbal, Wasiqa Nawis (D.W.2) stated about scribing the said affidavit (Mark-A). Dr. Abdul Rashid (D.W.3) had conducted the bacteriological and histopathological examinations regarding the kidney, lung and liver of the deceased. Rehmat Ali (D.W.4) deposed about the alibi of Muzamil Hussain alias Zulfiqar Ali appellant.
10. At the conclusion of the trial the learned Additional Sessions Judge, Burewala, District Vehari convicted and sentenced the appellants as noticed and detailed above, Hence, the present appeal and the connected Murder Reference before this Court.
11. We have heard the learned counsel for the appellants and the learned counsel for the State and have also gone through the record of this case with their assistance.
12. The learned counsel for the appellants has argued that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. According to him the F.I.R. Lodged by the deceased could not be treated as a dying declaration; Allah Dad (P.W.7) worked in Lahore and he had been procured and planted as an eye-witness; Allah Dad (P.W.7) was inimical towards the appellants; the motive set up by the prosecution remained far from being proved; the alleged recoveries of Sotas from the appellants had no corroborative value; and the Medical' evidence showed that the deceased might have been injured sometime during the preceding night in an un witnessed occurrence. His alternative argument has been that in any case the prosecution case itself manifests that the appellants never wanted to kill the deceased and, therefore, it was not a case of an offence under section 302/149, P.P.C. But a case of section 315/316, P.P.C. As against that the learned counsel for the State has argued that the prosecution had successfully proved the guilt of the appellants to the hilt and that no mitigating factor existed on the record so as to reduce the appellants' sentences.
13. After hearing the learned counsel for the parties and going through the record we have arrived at a confident conclusion that the prosecution had indeed succeeded in proving the guilt of the appellants beyond reasonable doubt. It was a broad daylight occurrence which had taken place inside the residential area of the village in question. The best person to know about the identity of the assailants was the victim himself and it was the victim himself who had lodged the F.I.R. In this case naming the appellants with precision as the culprits who had perpetrated the offences in question. The F:I.R. Was signed by the victim and Ghulam Murtaza, 'A.S.I. (P.W.12), who had recorded the victim's statement at the spot soon after the occurrence, had not even been challenged regarding the facts of lodging the F.I.R. By the victim himself and his signatures at the bottom of the F:I.R. Lodging of an F.I.R. By a victim is not uncommon and its treatment as a dying declaration is also not unusual. No motive was attributed to Ghulam 'Murtaza, A.S.I (P.W..12) regarding falsely taking down the statement of the victim so as to maliciously implicate the appellants in the alleged offences. Even otherwise, contemporaneous utterances of the victim immediately after the occurrence were relevant facts as res 'gestae under the Qanune-Shahadat, 1984 and admissible evidence as held by the Honourable Supreme Court of Pakistan in the case of Riasat Ali v. The State (PLD 1991 SC 397). Although an F.I.R. Is not a substantive piece of evidence yet an F.I.R. Which can be treated as a dying declaration or res gestae becomes relevant as well as admissible evidence. The learned counsel for the appellants has failed to point out any factor worth serious consideration as to why this piece of evidence, may the best evidence, should not be relied upon by the Court regarding identity as well as culpability of the appellants as the perpetrators of the offences alleged.
14. Allah Dad (P.W.7) was the only eyewitness produced by the prosecution at the trial in this case.
He has inspired our full confidence and we have found him to be worthy of implicit reliance. This 'witness was a resident of the village of occurrence. He was not related to either of the parties to this case. His alleged interest against the appellants was quite remote and not serious enough to propel him into falsely implicating the appellants in a murder case of an unconnected person. He was admittedly employed at Lahore at the relevant time but his explanation was that he hid come to his village on leave during the 'days of occurrence. He was not mentioned in the F.I.R. As an eye- witness because the complainant/victim did not know as to who out of the village population had also witnessed the occurrence. If he was to be a planted witness then his name ought to have been mentioned in the F.I.R. As an eyewitness. We have also noticed that Allah Dad (P.W.7) had made his statement before the police on the very day of occurrence. Had he been present at.
Lahore on that day he was not likely to be summoned to the village of occurrence on that very day to be planted as an eye-witness as ostensibly he had no connection with the deceased. His explanation for presence in the village of occurrence on the day of occurrence was not seriously challenged or disproved in his cross-examination. Thus,, we have been unable to find any good reason for disbelieving his explanation in that regard. His narration of the main incident was forthright and without any contradiction or blemish. We have, therefore, found this witness to be independent, consistent, reliable and worthy of credit.. As regards the affidavit (Mark-A) allegedly sworn by him denying 'his witnessing the occurrence suffice it to observe that before the learned trial Court he had denied swearing of that affidavit and the defence had failed to prove that it was actually sworn by him and none else. D.W.1 and D.W.2 did not know Allah Dad (P.W.7) personally and the Lambardar who had 'allegedly identified him at the time of executing and swearing of that affidavit had not been produced as a witness before the learned trial Court.
15. The medical evidence produced by the prosecution fully supported the ocular account regarding the weapons used by the appellants, the locale of injuries and the time of occurrence.
The defence had remained unable to draw any capital out of stretching of the approximate duration of injuries mentioned by the doctor as no other confirmatory circumstance was available on the record regarding the hypothesis advanced by the defence that the deceased might have been injured during the preceding night.
16. It is true that the motive set up by the prosecution in this case had remained unproved. As a matter of fact no evidence Worth the name was available on the record to substantiate the alleged motive. The alleged recoveries of Sotas from the appellants were also of no corroboratory value as the said Sotas were of ordinary nature and admittedly they were not stained with blood.
Thus, they remained unconnected with the occurrence' in question. However, absence of motive or recoveries of weapons of offence does not ipso facto render the other pieces of evidence available in a case unreliable. In the present case we have found that the ocular account, the dying declaration, res gestae, prompt F.I.R. And the medical evidence were cumulatively sufficient to satisfactorily bring the guilt of the appellants home: Thus, we have entertained no doubt that the appellants were in fact the perpetrators of the offences committed in this case.
17. The plea of alibi of Muzammal Hussain alias Zulfiqar Ali appellant had been rejected by the learned trial Court after giving elaborate reasons for discarding the same and we have found no reason to take a different view in that regard.
18. Notwithstanding the conclusions arrived at by us above we have, however, felt convinced that the appellants did not intend murdering the deceased. The weapons used by them. Were ordinary Sotas; out of 21 injuries caused by them to the unarmed deceased only one injury was caused at his 'head and one at his face and both the said injuries turned out to be simple in nature, all the other injuries caused to the deceased were on the non-vital parts of his body, when the deceased was completely at their mercy at the Bheini of Niaz Ahmad they only fractured his shill bone; after belabouring him they kept him lying under the shade of a tree and did not leave him under the scorching sun of August; the cause of death in this case was also not conclusively established through the medical evidence: and, as already held above no motive on their part was proved which could have prompted diem to kill the deceased. All these factors available on the record have persuaded us to hold that the appellants had not committed Qatl-e-Amd *under section 302, P.P.C. But they were guilty of committing Qatl-Shibh-i-Amd defined by section 315, P.P.C. And punishable under section 316, P.P.C.
19. For the foregoing reasons Criminal Appeal No,344 of 1996 is partly allowed and, while upholding and maintaining the appellants' convictions and sentences for offences under sections 148 and 365/149, P.P.C., the convictions and sentences of F the appellants for an offence under section 302/149, P.P.C. Are set aside and instead they are convicted for an offence under section 315/149, P.P.C. And are held liable to pay Diyat and also punished with R.I. For fourteen years each as Ta'zir under section 316/149, P.P.C. In view of their liability to pay Diyat they are not required to pay any compensation under section 544-A, Cr.P.C. All the sentences of imprisonment passed against the appellants shall run concurrently and they shall also be entitled to 'the benefit under section 382-B, Cr.P.C.
20. As the sentence of death passed by the learned trial Court against .Abdul Rehman appellant has been set aside by us, therefore, Murder Reference No,45 of 1997 is hereby answered in the negative.
Death sentence is not confirmed.