DR. MUNIR AHMAD MUGHAL, J. This criminal appeal calls into question the legality and propriety of the judgment dated 5.10.1994, passed by the learned Sessions Judge, Okara whereby he convicted Karam Elahi appellant under Section 302 (b) PPC and sentenced him to life imprisonment and fine of Rs. 30,000/- and in default of payment of fine to undergo further R.I. For three years. The fine if realised was ordered to be paid to the legal heirs of the deceased as compensation under Section 544-A Cr.P.C. Co-accused Muhammad Iqbal was acquitted. The complainant has also find Criminal Revision No. 62/95, for enhancement of sentence of appellant to death and also to sentence the acquitted co- accused. This judgment shall dispose of the appeal as well as the revision petition.
2. The case as alleged in the FIR is that on 13.8.1993 at 2.00 p.m. Complainant Javed Hasan, Muhammad Ahmad and Abdul Razzaq were sitting at the well of the Dera arranging programme for Mela Kheri Shah. In the meantime Bashir Ahmad came to the Chah by Mazda Truck and stopped it and the moment he alighted from the truck, appellant Karam Elahi find at Bashir Ahmad with carbine hitting on his right temporal region who fell down on the ground and from his waist a 30-bore pistol also fell down on the ground. The appellant picked up the said pistol and started firing with it on Bashir Ahmad and caused many injuries to him due to which he died at the spot. On reaching the said eye-witnesses the appellant ran away with both the Fire-Arms. The motive alleged was that Bashir Ahmad deceased had illicit relations with Mst. Anwar Bibi wife of Karam Elahi accused- appellant. Bashir Ahmad had come to the Chah for taking her with him and due to it, the appellant murdered him with carbine and 30-bore pistol. The complainant reported the matter to the police on the same day at 6.30 p.m. On which formal FIR (Ex.PB) was recorded by Muhammad Ishaque, Sl/Investigating Officer (PW-12) proceeded to the spot, prepared inspection notes, injury statement and inquest report, sent the dead-body to the mortuary under escort of two Police Constables. He took into possession the blood-stained earth from the spot, two crime empties of 12-bore carbine, two crime empties of 30-bore pistol and the Truck bearing No. 161-LHP.
On 13.8.1993 he prepared the rough site plan, on 22.8.1993 he arrested the accused who led to the recovery of 30-bore pistol. The rough sketch of the place of recovery of pistol 30-bore. On the same day the appellant led to the recovery of 12-bore carbine and he also prepared rough site plan. He arrested Iqbal accused, on 13.1.1994. After completion of investigation he challaned the accused to the Court.
3. At the trial accused-appellant was charged under Section 302 PPC while his co-accused Iqbal was charged under Section 302/109 PPC. They pleaded not guilty before the Trial Court arid the prosecution examined Asghar Ali Patwari (PW-1) who prepared site plan (Ex.PA and Ex.PA/1) in the scale of 20 karams equal to one inch. Ali Sher FC (PW-2) who took two empties from Police Station to Forensic Science Laboratory on 29.8.1993 which were returned with the objection on 30.8.1993, and he delivered back the same to the Moharrir Head Constable of Police Station Sadar Dipalpur and deposited the same in the office of Forensic Science Laboratory, Lahore. Saeed Ahmad (PW-3) who took two empties on 4.9.1993, and deposited in the office of Forensic Science Laboratory, Lahore. Nazir (PW-4) who identified the dead-body of the deceased in the Hospital. Javed Hassan, complainant (PW-5) lodged FIR (Ex.PB). Razzaq (PW-6) who supported the version of the complainant. Dr. Sagheer Ahmad, Medical Officer, Tehsil Head Quarter Hospital, Dipalpur (PW-7) who conducted the post-mortem examination and found the following nine injuries:-
(1) A fire-arm lacerated wound 5 cm x 3.5 cm on right cheek close to angle of right mendible.
Bleeding from right ear was present. Right mendible bone was fractured under the wound.
Blackening around the would was present. Margins of wound were inverted entry wound).
(2) A fire-arm lacerated wound half cm x half cm on the left side of neck. Margins of wound were everted. (exit wound of injury No. 1).
(3) A firearm wound 1/2 cm x 1/2 cm on the right side of abdomen, 4 cm inferolateral to umbilicus (entry wound).
(4) A fire-arm entry wound 1/2 cm x 1/2 cm on the right side of the abdomen 11 cm below injury No. 3.
(5) A fire-arm lacerated wound 1 1/2 cm x 1/2 cm on the left lumber area (exit wound of injury No. 4).
(6) A fire-arm lacerated wound 1/2 cm x 1/2 cm on middle and outer side of right elbow (entry wound).
(7) A fire-arm lacerated wound 1 cm x 1/2 cm on upper and inner side of right thigh (margins of wound were everted), (exit wound of injury No. 6)
(8) A fire-arm lacerated wound 1/2 cm x 1/2 cm on middle and outer side of left thigh. Margins of wound were everted (entry wound). Femous bones were fractured under the wound).
(9) An abrasion 2 cm x 1/5 cm on the left side of forehead.
He produced post-mortem examination report as Ex.PF and the diagram showing location of injuries of the deceased Ex.PF/1 and Ex.PF/2. Muhammad Yaqub, Head Constable (PW-8) was Moharrir at the time of occurrence who took into possession the parcels of blood-stained earth to the Chemical Examiner, crime empties, pistol and carbine to the Forensic Science Laboratory.
Shabhir Ahmad (PW-9) is the witness before whom Iqbal accused made the confession about conspiracy of murder of the deceased between the appellant and the co-accused. Dr. Ghulam Sarwar Jamali, S.P., Okara (PW-10) partly investigated the case. Ahmad Shah, FC (PW-11) escorted the dead-body to the mortuary and after post-mortem examination brought back last worn clothes of deceased, Shalwar (P.5), pellets (P.6). Muhammad Ishaque, Sl/Investigating Officer (PW- 12) who recorded the FIR, prepared injury statement of the deceased (Ex.PH), inquest report (Ex.PI), sent dead-body to the mortuary, took into possession blood-stained earth vide memo. (Ex.PC), two empties of 12-bore gun (P.7 & P.8) and two 30-bore pistol empties (P.9 & P.10) vide memo. (Ex.PJ), Truck No. 161-LHP (P.4) vide memo. (Ex.PE), he prepared rough sketch of place of occurrence (Ex.PK).
He arrested the accused Karam Elahi on 22.8.1993 and took into possession the 30-bore pistol (P.12) vide memo. (Ex.PL). On the same day Karam Elahi accused led to the recovery of carbine 12-bore (P.13) which was taken into possession vide memo. (Ex.PM). He arrested Iqbal accused on 3.1.1994.
After completing the investigation challaned the accused to the Court. Muhammad Ashraf Minhas, SI (PW-13) attested the recovery memos. Ex.PL and Ex.PM. The prosecutor gave up Muhammad Ahmad PW on the application of Nazir Ahmad PW as having been won over. He tendered in evidence the report of the Chemical Examiner (Ex.PN), report of Serologist (Ex.PO) and report of the Forensic Science Laboratory (Ex.PP) and closed the prosecution evidence.
4. The accused Karam Elahi in his statement under Section 342 Cr.P.C, denied the recovery of any thing from him and his arrest from Darbar Ahmad Langah. He stated that he never resided at Chah Tooti Wala and was residing at Sahiwal during the days of occurrence and that the alleged place of recovery belongs to Javed Hasan complainant of this case. He further Stated that the PWs were inimical to him and the real facts of the case were that Bashir Ahmad deceased had got illicit relations with Mst. Anwar Bibi his wife who had gone to see her parents at Chah Tooti Wala and that Bashir Ahmad had gone there to abduct her from the house of his parents-in-law and on alarm of women-folk the tenants of Javed Hasan came there and tried to rescue Mst. Anwar Bibi from the clutches of the deceased and the deceased was find at by some of the tenants of Javed Hasan complainant during efforts of getting rescue to Mst. Anwar Bibi. He further stated that neither he nor the complainant nor the PWs were present at the time of occurrence. He also stated that he has been involved in this case falsely due to the reason that the present murder has been committed due to his wife. He further stated that the complainant and PWs have deposed falsely in order to save the skin of their own person. The co-accused Muhammad Iqbal also pleaded his innocence.
He also stated that the PW Shabhir Ahmad was inimical to him as he is real brother of the, deceased Bashir Ahmad and has falsely deposed against him. He further stated that he relied upon the statement of his co-accused Karam Elahi. Both of the accused did not lead any evidence under Section 340 (2) Cr.P.C.
5. The learned Trial Court after perusal of the evidence and hearing the parties came to the conclusion that the medical evidence fully supported the prosecution case against Karam Elahi accused and that no glaring contradiction could be pointed out by the defence. He, therefore, passed the impugned conviction against the. Appellant. The involvement of Iqbal accused was not accepted by the learned Trial Court as both the PWs Javed Hassan and Razzaq did not utter a single word regarding his involvement , as such, a judgment in acquittal was passed concerning him.
6. Learned counsel for the appellant vehemently contended that all the PWs. Are closely related inter se and were chance and interested witnesses and being inimical towards the appellant, the conviction cannot be made on the basic of their evidence; the ocular evidence is full of inconsistencies in the statements of the PWs. The recovery is doubtful and that it was a case of grave and sudden provocation.
7. Learned counsel for the State has submitted that the prosecution has established its case beyond any reasonable doubt hence he supported the judgment of the trial Judge in toto and submitted that there is no mitigating circumstances in favour of the appellant, so he does not deserve any leniency in the imposition of sentence.
8. I have critically examined the submissions of learned counsel on both the sides and have perused the record with their able assistance.
9. The first contention of the learned counsel for the appellant is that the FIR- in this case h^d been recorded after preliminary inquiry and thus the sanctity attached to the FIR vanished. The record shows that the FIR (Ex.PB) was recorded at the statement of complainant Javed Hasan on 13.8.1993, at 6.30 p.m. While the occurrence took place at 2 00 p.m. The distance between the place of occurrence and the Police Station was mentioned in the FIR as 17 1/2 kilometers towards west of Deh-89 in the area of Makranwala. The FIR also shows that the complainant leaving Muhammad Ahmad and Abdul Razzaq eye-witnesses at the spot to take care of the dead-body had gone to the Police Station himself for reporting the incident. In the cross-examination the complainant had stated that he arrived the Police Station at about 4.00 p.m. And that he had gone to the Police Station by Motorcycle. If he had taken half to one hour keeping in view the village paths, he could reach the Police Station within an hour. In this manner there is a difference of about one hour. The complainant further deposed that the Investigating Officer came at the spot at about 7.00 p.m.
And again said at 5.00 p.m. He also stated that it was incorrect to suggest that the case was not registered before the arrival of Mukhtar, ASI. He also stated that Mukhtar, ASI came to the spot on his own official vehicle at about 4.00/5.00 p.m. He also stated that he has already made statement so he did not make preliminary inquiry. To a suggestion he replied that it was incorrect to suggest that the case was not registered before the arrival of Mukhtar, ASI. The complainant also stated that Mukhtar, ASI had come with him from the Police Station. As the FIR was already recorded, the question of its being recorded after preliminary inquiry in the presence of these facts does not appeal to reason. The time taken by the complainant from the village to the Police Station in the circumstances also appears to be natural and in such cases it is not to be counted by minutes. The learned Trial Court has very correctly held that the presence of Mukhtar, ASI and Masood ASI at the spot is of no benefit to the appellant.
10. The next contention of the learned counsel for the appellant is that the witnesses were highly interested inter se and were inimical to the accused. It is proved on the record through Shabhir (PW-9) that Bashir Ahmad deceased was his .Brother like Nazir Ahmad PW. Javed Hasan (PW-5) has admitted in the cross- examination that Muhammad Ahmad PW is his first cousin and Abdul Razzaq PW- is also his relative. This Shabhir Ahmad (PW-9) is the witness of production of Iqbal accused before the ASP in his office and of confession of Iqbal accused that about 2/3 days prior to this murder Bashir deceased had contacted Karam Elahi accused in order to get some debt back and that he advised to Karam Elahi accused to shift to his Chah alongwith his family members and that he asked Karam Elahi to murder Bashir Ahmad, in- case he cornea to his house and he would manage the affairs and consequences thereafter, and that on the third day of the conversation Bashir Ahmad deceased was murdered by Karam Elahi accused by: in the cross- examination this witness himself admitted it correct. That this plea was subsequently proved false during three investigations. He also admitted that no other person was present when Iqbal accused made confession of his guilt before him. No doubt this Shabhir PW and Nazir are inter-related but their very statement has negated of his being a witness to the conspiracy and even the extra-judicial upon lession and the benefit of it if any can go to the accused and that has gone in this case to the accused Iqbal which will be discussed at proper place. No other witnesses are interrelated nor any enmity has come on record concerning them. So far as Nazir PW is concerned his role is that of identification of the dead-body of the deceased and in such cases relationship is not harmful to the prosubstitution.
11. The next contention of the learned counsel for the appellant is that the ocular evidence is full of inconsistencies in the statements of PWs. The scrutiny of the evidence reveals that according to Javed Hasan (PW-5) the complainant Muhammad Ahmad and Razzaq PWs were sitting at the Dera of the complainant , Bashir deceased brought a truck at the Dera. Karam Elahi accused was already present at the spot. The moment Bashir deceased alighted from the truck Karam Elahi accused find at him from his pistol which hit him on the temporal region. Bashir fell down in injured condition. Karam Elahi accused was in possession of two pistols. Bashir deceased had also a pistol with him. Karam Elahi picked up the pistol in possession of Bashir deceased then injured and find at Bashir deceased. Bashir died at the spot after receiving fires. The medical evidence shows nine injuries. All were ante-mortem, caused by fire-arm weapon except injury No. 9 which was with blunt weapon and death was immediate. It has also come on the record that injury No. 1 was caused within six feet and there was no blackening on injuries No. 3, 4, 6 and 8 and those were caused from a distance of more than six feet and that it was possible that injuries No. 3, 4, 6 and 8 may be caused when the victim was in standing position and that injury Nos.9 could be caused by a blunt weapon and that injuries Nos.6 & 7 may be caused when the assailant is standing on a lower place and the victim is standing on a higher pedestal from the assailant and that injuries No. 3 & 4 were caused when the assailant was in front of the victim. It was also admitted by the Medical Officer in his cross examination that injury No. 6 could only be caused when the assailant was standing on the right side of the victim and injury No. 8 while standing on the left side of the victim. Both the recoveries have been effected from accused Karam Elahi and the two crime empties of 12-bore and two crime empties of 3-bore and crime pistol of 30-bore and shot pistol of 12- bore were sent to the Forensic Science Laboratory which according to the report (Ex.PP) proved to be find from the pistols in reference. Razzaq (PW-6) deposed that when Karam Elahi accused find at the deceased with carbine which hit him on the temporal region on the right side and when he again find with the carbine and that Karam Elahi accused find again with his carbine at the deceased and then picked up 30-bore pistol of the deceased and find at him twice or thrice. Bashir died at the spot on account of the injuries. The medical evidence also shows for entry wounds. The sealed phial (P.6) containing pellets was also handed over by the Medical Officer after post-mortem examination to Syed Ahmad Shah, Constable No. 213 which were taken into possession by the Investigating Officer vide memo. Ex.PG/I js stated by PW-11. Similarly, the Investigating Officer PW-12 has taken into possession two empties P.7 and P.8 of 12 bore pistol and two crime empties of 30 bore pistol P.9 and P.10 from the spot and took into possession vide memo. Ex.PJ which were sent to the Forensic Science Laboratory by the Muhammad Yaqub, Head Constable (PW-8) through Ali Sher Constable.
Thus the ocular account is corroborated-by medical account and also the recoveries. The ocular account witnesses are independent witnesses and the defence failed to create any doubt in their evidence despite lengthy cross-examination. It has also come on the record that the motive was the illicit relationship of Bashir deceased with the wife of Karam Elahi accused. The same fact has been stated by Razzaq PW. This fact could, not be denied by the accused Karam Elahi although his denial or non-denial is not to be of any benefit to the prosecution as the prosecution has to stand on its own legs and in this case the motive is also proved as alleged by the prosecution. The plea of alibi of the accused Karam Elahi that he was falsely involved due to the reason that the occurrence had taken place due to his wife was denied by the plaintiff categorically when he stated that it was incorrect that Karam Elahi was not present there. Razzaq (PW-6) even stated in his cross- examination that the children of Karam Elahi accused told about the illicit relations of Anwar Bibi and Bashir deceased.
12. In this view of the matter the conviction of Karam Elahi appellant appears to be correct and the same is upheld but it does not fall under Section 302 (b) PPC and should have been under Section 302 (c) PPC as the abduction of appellant's wife in his view was certainly such act that could give him the right to protect the abduction. In this circumstance according to the injunctions of Islam the punishment of Qisas is not applicable. The conviction is, therefore, altered from Section 302 (b)
PPC to Section 302 (c) PPC and the accused-appellant Karam Elahi is sentenced with TEN (10) years' R.I. He shall also pay a compensation of Rs.25,000/- under Section 544-A Cr.P.C, to the heirs of the deceased and in default to undergo S.I. For six months. The benefit of Sec. 382-B Cr.P.C shall also be given to him.
13. So far as the acquittal of accused Iqbal is concerned the very statement of the person before whom /he conspiracy or extra-judicial confession was made was the real brother of the deceased Bashir Ahmad and he admitted it as correct that the plea of murder of Bashir proved false during three investigations. When this witness was asked that who were the other persons when such confession was made by Iqbal accused he deposed that he did not remember their names. On such an interested and false witness reliance cannot be placed to prove the charge of murder.
14. For the above reasons Iqbal accused was correctly acquitted by the learned Trial Court.
15. Both the Criminal Appeal and Criminal Revision are disposed of accordingly.