' Ibrahim son of Ahmad Din was tried by learned Sessions Judge, Kasur, who vide his judgment, dated 8-1-1996, convicted him under section 302, P.P.C. And sentenced him to imprisonment for life plus a compensation amount of Rs,25,000.
2. Brief facts of the case as unfolded in the F.I.R. Exh.P.E. Are as under:-- ' Gulzar Ahmad, deceased was a resident of Village Dholan Hatiara, Police Station Khudian, Tehsil and District Kasur. On the day of occurrence, i,e, 28-1-1995, at about 4 p.m. When Rasheed Ahmad (complainant) was present alongwith Zakria and Khair Din (P.Ws.) near the house of his co-villager, Inayat Din, Ibrahim, accused who was armed with a .12 bore carbine suddenly emerged on the spot. Gulzar Ahmad (deceased) was present at the door of his house at that time. The accused (Ibrahim) fired at the deceased (Gulzar) hitting him on his face which felled him on the ground. The accused ran away from the spot raising Lalkaras. Rashid Ahmad, complainant, alongwith his abovesaid companions put his injured brother Gulzar in a pick-up and took him to D.H.Q. Hospital, Kasur where he succumbed to his injuries. Rashid Ahmad, complainant went to the Police Station Khudian and lodged the F.I.R. Exh.P.E. Which was read over to him and he thumb-marked the same in token of its correctness. The motive disclosed in the F.I.R. Was that the accused (Ibrahim) suspected that the deceased (Gulzar) had cultivated illicit relations with his sister Mst. Sakina Bibi and for that reason he killed him. After recording the statement of Rashid Ahmad, complainant, (P.W.5), Shabbir Hussain Shah, S.-I. (P.W.9) went to D.H.Q. Hospital, Kasur where the dead body of the deceased (Gulzar) was lying. He prepared his injury statement Exh.P.G. And inquest report Exh.P.H. And despatched the dead body for autopsy under the escort of Mubarak Ali, Constable. He then recorded the statements of P.Ws. Thereafter, he left for the spot and collected blood-stained earth from the place of occurrence. The same was taken into possession vide memo. Exh.P.C. And was made into a sealed parcel. On. 29-1-1995, Mubarik Ali, Constable produced before him the last-worn clothes of the deceased i,e, Shalwar P.1, Shirt P.2, vest P.3, a pull over P.4 and a Silki Chaddar P.5 (all blood-stained) alongwith a sealed phial containing pellets. Said garments and sealed phial were taken into possession vide memo. Exh.P.A. Said Thanedar recorded the statements of all the remaining P.Ws., got prepared the site plan Exh.P.D. And its copy Exh.P.D./1 from Muhammad Nasrullah, Draftsman (P.W.4). On 5-2-1995, he arrested the accused and on 8-2-1995 while in police custody the accused (Ibrahim) led to the recovery of carbine P.6 from his residential house which was taken into possession vide memo. Exh.P.B. And was made into a sealed parcel. He deposited all the sealed parcels of this case with Moharrar/Head Constable, completed the investigation and put in the challan against the accused (Ibrahim) in Court.
3. On 29-1-1995, at about 3-45 p.m. Dr. Shaukat Ali, Medical Officer, D.H.Q. Hospital, Kasur (P.W.8) conducted post-mortem examination on the dead body of the deceased (Gulzar) and found the following injuries on his person:--
(1) A circular lacerated wounds on prominence of right cheek with edges of the wound inverted and burnt measuring 3/4 c.m. x 1/4 c.m. Clotted blood was present oh the wound.
(2) Two circular lacerated wounds on the bridge and right side of nose 1/2 c.m. From each other each of them measuring 3/4 c.m. x 1/4 c.m. With inverted burnt edges and clotted blood was present on the wound and periphery colour of abrasion was present on the upper part of wound.
(3) A circular lacerated wound on left ola of nostril with surrounding burning and collar of abrasion on the upper part. This wound is continued with the floor of left nostril which is opening in the mouth cavity. Its size (nasal part) is 3/4 c.m. x 1/2 c.m. Collar of abrasion was present on the tip of the nose.
(4) A circular lacerated wound on preminance on left cheek with inverted and burnt edges with collar of abrasions present on the upper part of wound 3/4 c.m. x 1/4 c.m.
(6) Two circular lacerated wounds on the upper part of left cheek on the infraorbital margin with inverted burnt edges and clotted blood was present each measuring 3/4 c.m. x 1/4 c.m. On palpation, this part of wound was .Fractured.
(6) A lacerated wound with burnt inverted edges and circular in shape present on inner angle of left eye measuring 3/4.c.m. x 1/4 c.m.
(7) A contusion turned darkness on right infraobital region of cheek measuring 4 c.m. x 2 c.m.
' In the opinion ,of the doctor cause of death was shock due to haemorrhage because of injuries Nos.1 to 6 which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem in nature and caused with fire-arm. Probable time between injuries and death was within three hours and between death and post-mortem was within 24 hours.
4. Ibrahim, accused.Denied the prosecution allegation and pleaded false implication. He also categorically denied the recovery of weapon of offence i,e, Carbine P-.6 from his residential house at his instance on 8-2-1995 when he was in police custody and alleged that in fact the accused was murdered by the previous husband of Mst. Hamida who had contracted second marriage with the deceased. The accused however, neither produced any evidence in his defence nor he opted to enter the witness-box to make a sworn statement as a D.W. As envisaged under section 340(2), Cr.P.C.
5. Prosecution examined as many as nine witnesses in support of its case. Mubarik Ali, Constable (P.W.1) is a formal witness who escorted the dead body of the deceased. Sher Muhammad (P.W.2) is a recovery witness before whom the accused (Ibrahim) while in police custody led to the recovery of carbine P.6 from his residential house situate in Mohalla Salamat Pur Mandi Usman Wala. The same was taken into possession vide memo. Exh.P.B. Which bears his signatures. Amanat Ali (P.W.3) is again a formal witness. As per his version police collected blood-stained earth from the spot in his presence. It was taken into possession vide memo. Exh.P.O and was made into a sealed parcel. Muhammad Nasrullah (P.W.4) is a Draftsman who prepared the site plan Exh.P.D.
And its copy Exh.P.D./1 to a scale of 10 feet = 1 inch. All the drawings and notes in black ink are in his hand and bears his signatures. Rasheed Ahmad (P.W.5) and Khair Din (P.W.6) are the eye- witnesses of the occurrence and they supported the prosecution version in toto. Dr. Shaukat Ali, Medical Officer (P.W.8) conducted post-mortem examination on the dead body of the deceased (Gulzar) and Shabbir Hussain Shah, S.-I. (P.W.9) is the Investigating Officer of this case.
6. Learned trial Judge after a careful analysis of the entire evidence believed the motive, ocular evidence and recovery of weapon of offence i,e, carbine P.6. He also observed that medical evidence lends full support to the ocular version and consequently, convicted Ibrahim (accused) under section 302, P.P.C. And sentenced him to imprisonment for life, plus a compensation amount of Rs,25,000. In default of the payment of compensation amount the accused was ordered to suffer further two years' R.I. He was also given the benefit of section 382-B, Cr.P.C. The conviction and sentence was recorded vide judgment, dated 8-1-1996.
7. Feeling aggrieved the convict (Ibrahim) (hereinafter called the appellant) has come up in appeal and I have heard the learned counsel appearing on his behalf, learned counsel appearing for the complainant and learned counsel appearing for the State at length.
8. Prosecution case chiefly rests on the following modes of evidence:--
(1) Motive.
(2) Ocular evidence.
(3) Medical evidence and
(4) Recovery of weapon of offence.
' I now propose to discuss each piece of evidence in seriatim.
9. As regards motive, it has come in the evidence of Rashid Ahmad, complainant (P.W.5) that bad blood existed between the deceased and the appellant because Ibrahim, appellant, had a suspicion that the deceased (Gulzar) had developed illicit relations with his sister Mst. Sakina, who was putting up in the neighbourhood of the deceased. This fact is also mentioned' in the F.I.R.
Exh.P.E. By the complainant. To my great surprise not a single question was put to this P.W. On the question of motive although this motive is categorically denied by the accused in his statement recorded under section 342, Cr.P.C. Evidence of Rashid Ahmad, complainant, therefore, stands unrebutted and intact on this point. To cultivate illicit relations with the wife, daughter, sister, cousin or mother of someone is viewed as the gravest sin and provocation of highest order in rural life and sexual relations between a female of a respectable family by a rascal and a bad character has always given rise to blood feud and unhappy episodes like the instant one. What to speak of sexual relations with one's sister. Even a casual talk with an unmarried girl in rural life is considered to be an act of indecency and this kind of rufianism results in blood stied. After all ours is not a permissive society and sexual indulgence is always considered in rural life as intolerable and serves as a strong motive to kill a rascal who cultivates sexual relations with the female of a family because every member of that family takes it as a stigma and tries to wipe out the rogue who has brought this stigma for the family. I have, therefore, no reason to doubt the veracity of Rashid Ahmad, complainant (P.W.5) whose evidence to the extent of motive stands unrebutted that Ibrahim (appellant) had a strong motive to kill the deceased (Gulzar), who had uglified his family honour by cultivating sexual relations with his sister Mst. Sakina and I need not to labour this point any further.
10. Prosecution case chiefly rests on the testimony of two eye-witnesses namely Rashid Ahmad, complainant (P.W.5) and Khair Din (P.W.6). Rashid Ahmad, complainant (P.W.5) reiterated that he had stated in the F.I.R. Exh.P.E. It stands further fortified/corroborated by the testimony of Khair Din (P.W.6) who deposed on oath that on the day of occurrence at about 4 p.m. When he was sitting near the house of his co-accused Inayat Din alongwith Zakira and Rashid P.Ws. Ibrahim, appellant suddenly emerged on the spot armed with .12 bore carbine. He came there from the side of the village pond. On reaching the spot he fired at the deceased (Gulzar) hitting him on his face, while he was standing at his door. On receipt of this fire shot injury the deceased fell on the ground. The accused then ran away from the spot taking his carbine with him. He further deposed that Gulzar (injured) was removed to D.H.Q. Hospital, Kasur where he succumbed to his injury. Khair Din (P.W.6) identified the dead body of the deceased at the time of post-mortem examination before the doctor.
11. These two eye-witnesses were subjected to a searching cross-examination but there is nothing on the file which may tend to discredit their testimony. It is indeed true that Khair Din (P.W.6) has admitted in his cross-examination that he was a resident of Village Dholan Pir but he had migrated to Village Sham Kot where he was putting up for the last 5/7 years but he has offered a very plausible explanation for his coming to Village Dholan Pir a day prior to the occurrence. He has alleged that he often used to visit his brother Muhammad Din, father of the deceased, who had become blind, in Village Dholan Pir and he had come to the house of his brother who was confined to bed a day prior to the occurrence. His name figures in the promptly lodged F.I.R. He has outrightly dismissed this suggestion that he was in Village Sham Kot on the day of occurrence. Having given my careful consideration to the entire evidence of the aforesaid P.Ws. I am convinced that they are witnesses of truth and I place my implicit reliance on their testimony, inter alia, on the grounds which I propose to elicit in the paragraphs to follow.
12. The occurrence has taken place in front of the house of the deceased and the residential houses of Rashid Ahmad and Khair Din P.Ws. Are situate at a little distance from the spot. They can, thus, be recorded as natural witnesses of the occurrence. The fact that help was available to the deceased as soon as he was injured would make it probable that some of his nearest and dearest ones were at hand and this factor lends assurance to the presence of these two eye-witnesses namely Rashid Ahmad (P.W.5) and Khair Din (P.W.6), on the spot at the time of occurrence. Another towering circumstance which goes a long way to lend assurance to the claim of Rashid Ahmad, complainant (P.W.5) that he was an eye-witness of the occurrence, C is the promptly lodged F.I.R.
Exh.P.E. The occurrence took place on 28-1-1995 at about 4 p.m. While the F.I.R. Was lodged by him at Police Station Khudian at 7-30 p.m. After covering a distance of eight kilometres which contains all the necessary details of the occurrence and, thus, the complainant had practically no time to spin out a false story. Had he not witnessed the occurrence it would not have been possible for him to mention the details of the occurrence i,e, name of the accused, the weapon used (.12 bore carbine), single fire shot hitting the deceased, seat of injury(s), time of occurrence, names of the eye-witnesses, death of the deceased in the hospital, etc. With a scientific exactitude. Having no motive or malice against the appellant (Ibrahim) I see no rhyme or reason why he should trumpt up a false case against him.
13. It is true that both these eye-witnesses are related to the deceased but mere relationship is not ground for discarding their testimony when I have already held their presence at the scene of occurrence was probable. All that was necessary to scrutinise their evidence with more than ordinary care and circumspection.
14. I have carefully considered the contention canvassed on both the sides. There is no good ground for holding that Rashid Ahmad and Khair Din P.Ws. Were not present at the spot at the relevant time. The mere fact that these two eye-witnesses had succeeded in escaping unhurt or that there are discrepancies in their statements because Rashid Ahmad (P.W.5) has alleged that some other persons who were also sitting alongwith the P.Ws. Witnessed the occurrence while Khair Din (P.W.6) has categorically denied this fact by saying that none else had seen the occurrence except the P.Ws. As per the version of Rashid Ahmad (P.W.5) the accused fired only a single shot while Khair Din (P.W.6) says that after injuring the deceased, the appellant (Ibrahim) fired 3/4 other shots when he was retreating, cannot be taken to be a sufficient ground for discarding their evidence.
15. It is indeed true that the prosecution evidence does suffer from the above discrepancies but that is shortcoming from which no criminal case is free, particularly when the witnesses are examined to depose to events which happened long before their examination. Such discrepancy is hardly a ground to reject the evidence of a witness when there is general agreement and consistency in regard to substratum of the prosecution case. There is complete consensus between both the eye-witnesses so far as the main occurrence is concerned. They have rightly pointed out the name of the accused; they have correctly described the weapon of offence i,e, .12 bore carbine; they have correctly mentioned the seat of injury, hence the defence is not justified in seeking advantage of the incongruities obtaining in the evidence of the aforesaid P.Ws. In the form of the abovesaid discrepancies which pertain to insignificant aspect of the occurrence and do not go to the root of the case.
16. It is a daylight occurrence. The accused is related to the eyewitnesses and this has come in the evidence of Khair Din (P.W.6). Rashid Ahmad and Khair Din P.Ws. Are natural witnesses of the occurrence because it has taken place close to their houses. The F.I.R. Was promptly lodged and contains all the necessary details of the occurrence. The motive is very strong and last but not the least that the medical evidence fully supports the case for the prosecution.
17. Learned counsel for the appellant has tried to make a mole out of a mountain by alleging that Dr. Shaukat Ali, Medical Officer (P.W.8) who conducted the post-mortem examination on the dead body of the deceased (Gulzar) has mentioned that edges of the wound were inverted and burnt which shows that the deceased was fired at from a close range but as per the version of these two eye-witnesses (Rashid Ahmad and Khair Din P.Ws.), Ibrahim (appellant) fired at Gulzar (deceased) from a distance of about six feet and this fact falsifies the ocular version and goes a long way to prove that these two eye-witnesses were not present at the spot at the relevant time. I do not see any merit in this contention, because it is too much to expect from rustic villagers that they would give the distance with a mathematical calculation. They always give distance, by guess. Even otherwise the accused could fire at the deceased from a close range even while standing at a distance of about six feet by stretching his hands because by so doing the barrel of the carbine could reach very close to the victim. Had it been suggested to the eye-witnesses that the appellant (Ibrahim) had not stretched his hand in which he was holding his carbine when he fired at the deceased and had they answered in affirmative, the criticism of the learned counsel for the appellant would have certainly carried weight but in the absence of such clarification I have not been able to pursuade myself to hold that there was any conflict between the ocular evidence and medical evidence. The burning of edges of entry wound is a positive indication of the fact that the deceased was fired at by the assailant from a close range and that was quite possible for the appellant to execute his wicked design by stretching his hand and thus, covering a distance of 3/4 feet. Even a metallic was found during the post-mortem examination, which also lends assurance that either .12 bore gun was used or the injury was caused with a .12 bore carbine because the nature of injury shows that a cartridge was used. Had these two eyewitnesses not seen the occurrence they could err in giving the number of fire shots hitting the deceased because he had received several pellets on his face and a rustic villager was apt to be misled by the number of injuries. The correct description of a single shot with .12 bore carbine leaves no room for doubt that the aforesaid eye-witnesses were present at the spot at the relevant time and they had witnessed the occurrence. To my mind they are witnesses of truth and the learned trial Judge has rightly believed their testimony.
18. Recovery of carbine P.6 is not of much evidentiary value because no empty cartridge was recovered from the spot nor the aforesaid carbine was sent to the Fire-arm Expert for comparison or even to find out whether it was in working condition. I, therefore, exclude this piece of evidence i,e, recovery of .12 bore carbine P.6. But non-proof of recovery of weapon of offence does not adversely affect the prosecution case at all which stands proved through the ocular evidence which receives corroboration from the medical evidence and other relevant circumstances e.g. Prompt lodging of F.I.R., strong motive, etc. Fully detailed above.
19. The accused-appellant (Ibrahim) has taken the plea of denial simpliciter and substitution by alleging that Mst. Hamidan with whom the deceased had contracted marriage was a married woman and the deceased had contracted marriage with her during the subsistence of her first marriage which had offended and provoked her first husband and it was he who had actually murdered the deceased. By propounding this defence plea the appellant has pleaded substitution which as per the observation of the Honourable Supreme Court is a rare phenomenon and one who alleges substitution must lay the foundation for it. It has been suggested to the eyewitnesses and they have outrightly dismissed this suggestion. The appellant has also pleaded this version in his statement recorded under section 342, Cr.P.C. But that does not carry any evidentiary value. It is highly inconceivable that Rashid Ahmad, real brother of the deceased and Khair Din real nephew of the deceased would screen out the real murderer of the deceased and falsely implicate the accused-appellant (Ibrahim) against whom they had no motive or malice whatsoever. The defence plea is neither borne out from the prosecution evidence nor established by the defence by adducing any evidence, I am, therefore, constrained to hold that this plea is false and imaginary which has no grain of truth in it. The occurrence had taken place in a broad daylight. Identification of the accused-appellant was not in doubt. It is, therefore, highly inconceivable that nearest and dearest of the deceased would allow the real murderer go scot free and implicate an innocent person in a case of capital charge. It is also significant to note that the appellant had failed to substantiate his defence plea before the police during the investigation.
20. The uphsot of the above discussion, therefore, is that the prosecution has fully established the guilt of the accused-appellant (Ibrahim) for causing the intentional death (Qatl-e-Amd) of Gulzar Ahmad (deceased) I, therefore, uphold his conviction recorded under section 302(b), P.P.C.
21. As regards the sentence, learned trial Judge has already taken a lenient and charitable view because the deceased by cultivating sexual relations with the sister of me accused-appellant had caused provocation to him (Ibrahim, appellant). The deceased, therefore, was not "Masoom- udDam", hence his murderer did not deserve extreme penalty of death and has been rightly awarded lesser sentence of imprisonment for life. However, the amount of compensation in the tune of Rs,25,000 is wholly unwarranted in this case because compensation is awarded to the legal heirs of the deceased person who is Massom-ud-Dam but in the instant case where the appellant has committed the murder of the deceased out of Ghairat and provocation and this is the prosecution's own case, his legal heirs do not deserve any compensation at all. I, therefore, set aside the penalty of compensation and accept the appeal to this extent. The appellant shall be entitled to the benefit of section 382-B, Cr.P.C.