' IFTIKHAR HUSSAIN CHAUDHRY, J.---Muhammad Ghazan son of Rab Nawaz and Mukhtar Ahmad son of Jahangir, were convicted vide judgment dated 14-3-1995 passed by Sessions Judge, Khushab for Qatl-i-Amd of Ahmad Nawa?, deceased, and were sentenced to death and a fine of Rs,50,000 each. In default in payment of fine, the convicts were to undergo rigorous imprisonment for six months each further.
2. The incident in this case took place at about Degarwela on 26-10-1993 in the area of village Botala, Police Station Mitha Tiwana, District Khushab. Criminal case F.I.R. No, 117 dated 26-10-1993 Exh.P.I/1 under sections 302, 148, 149 and 109, P.P.C. Was registered at Police Station Mitha Tiwana, District Khushab on the statement Exh.P.1, made by Habib Nawaz complainant, P.W.10, a real brother of Ahmad Nawaz, deceased. According to Habib Nawaz complainant he was resident of village Botala. Ahmad Nawaz, real brother of complainant, was convicted in a case of murder of Nazar Muhammad, brother of Ghazan accused. According to complainant, on 24-10-1993 Ahmad Nawaz, Bari Sultan and Dost Muhammad, convicts, came to the village on parole under custody, to attend the marriage ceremony of Mst. Afzal and Mst. Mulkhan sisters of Ahmad Nawaz. Ahmad Nawaz deceased escaped from police custody while still handcuffed. The complainant, Mst. Ghazala and Munawar Khatoon, sister of the deceased and Muhammad Yaqoob on knowing that Ahmad Nawaz deceased was hiding in sugarcane crop of Muhammad Khan, proceeded to the said field. The complainant called Ahmad Nawaz deceased and when he was coming out of the sugarcane crop, Ghazan, Mukhtar accused armed with .12 bore guns, Noor Muhammad alias Noora armed with rifle, Umar Draz empty-handed, Ibrahim armed with .12 bore gun emerged from the southern side. Umar Draz, and Ghazan raised a Lalkara that Ahmad Nawaz would not escape today. He stared running towards sugarcane crop. Ghazan fired successive shots which hit Ahmad Nawaz and he fell down in the sugarcane crop. Noor Muhammad and other accused while firing in air came near Ahmad Nawaz deceased and fired at him. The accused escaped towards southern western side on seeing the police party. Ahmad Nawaz succumbed to the injuries at the spot.
' Motive behind the occurrence as stated by the complainant was that Ahmad Nawaz had committed the murder of Nazar Muhammad brother of Ghazan. Due to that grudge and on the instigation of Muhammad Ramzan and Allah Baksh, the accused with their common intention had done away with Ahmad Nawaz deceased.
3. Abdul Sattar S.-I. P.W.15 visited the village on 26-10-1993 at 7-00 p.m. On receiving information about his incident. He went to the place of occurrence, recorded the statement of complainant Exh.P.l. And sent the same to the police station for formal registration of the case where F.I.R. Exh.P.I/I was recorded. The Investigation Officer inspected the spot, prepared inquest report Exh.P.L, injury statement Exh.P.M, secured blood-stained earth from the spot vide memo. Exh.P.B. He also collected three empties Exh.P.8/1-3 from the spot vide memo. Exh.P.D. He also recovered .12 bore gun Exh.P.7 lying on the dead body of Ahmad Nawaz along with 'Jhola, bag, Exh.P.5 containing 4 live cartridges Exh.P.6/1-4 and secured the same as Exh.P.C. The Investigation Officer sent the dead body to District Headquarters Hospital, Jauharabad for post-mortem examination under the escort of Anwar Ali, Constable P.W.6.
4. After completion of investigation all the accused were challenged to Court where charge under section 148, P.P.C., under section 302, P.P.C. And under section 109/ 302, P.P.C. Was framed against the accused to which they pleaded not guilty and claimed trial.
5. Prosecution examined 15 witnesses to prove its case at the trial. Besides that Ghulam Rabani, Patwari Halqa Mitha Tiwana was examined as C.W.1 who clarified his earlier statement regarding the scale employed in preparation of the site-plan.
6. Dr. Muhammad Saleem P.W.1 on 27-10-1993 at 10-30 a.m. Had conducted post-mortem examination on the dead body of Ahmad Nawaz deceased and noted the following injuries:
(1) An entry wound of fire-arm projectile 4 c.m. x 3 c.m. On right side of chest front 1 c.m. Medial to right nipple.
(2) Exit wounds six in number each measuring 3/4 c.m. x 3/4 c.m. On right chest back in an area of 4 c.m. x 4 c.m.
1.2 c.m. Below and medial to angle of right scapula.
(3) An entry wound of fire-arm projectile left shoulder top on back side measuring 4 c.m. x 4 c.m.
Card was present just superficially on the wound.
(4) An exit wound 7 c.m. x 7 c.m. Irregular shape front of left shoulder and upper chest.
(5) An entry wound 4 c.m. x 4 c.m. Right buttock outer middle part.
7. According to Medical Officer death was due to hemorrhage, shock and cardiorespiratory arrest due mainly to injuries Nos.1 and 2 i,e, on chest. All the injuries were ante-mortem and were caused by firearm and were fatal enough to cause death in ordinary course of nature. Probable time between injuries and death was immediate and between death and post-mortem was about 16 to 24 hours. The Medical Officer had tendered in evidence copy of post-mortem examination report as Exh.P.A.
8. Muhammad Hayat P.W.9 had testified that Muhammad Ramzan and Allah Baksh accused had instigated Ghazan, Mukhtar, Noora, Ibrahim and Umar Draz accused to commit the murder of Ahmad Nawaz deceased.
9. Habib Nawaz complainant P.W.10 and Mst. Ghazala P.W.11 sister of the complainant, and the deceased, had furnished the eye-witness account of the incident and supported the prosecution case in all respects.
10. Abdul Sattar, Sub-Inspector P.W.15 testified about the investigation conducted by him. He had stated about the arrest of the accused and recovery of crime weapons at the disclosure of the accused. Rest of the evidence was of formal nature.
11. The accused in their examination under section 342, Cr.P.C. Denied the prosecution case against them and pleaded their false involvement in the case due to previous enmity. Ghazan pleaded that the deceased died in an encounter with police and the police thereafter settled the matter with complainant and framed in the accused in the case. Ghazan, accused examined Ali Nawaz, M.H.C.
As D.W.1 who produced certified copies of F.I.R. No,154 dated 27-9-1987, F.I.R. No,82 dated 31-5-1984 and F.I.R. No,133 dated 18-12-1979 as Exh.D.C., Exh.D.D and Exh.D.E respectively.
12. Learned trial Court believed the prosecution case to the extent of Muhammad Ghazan and Mukhtar accused and convicted and sentenced them as noted above. Remaining accused, however, were acquitted from the case. The convicts filed appeal. Learned trial Court also referred the matter to this Court under section 374, Cr.P.C. For confirmation or otherwise of sentence of death imposed on the convicts.
13. Learned counsel for the appellant argued that both the eye-witnesses were inimical towards the accused-convicts and had old scores to settle and were not reliable witnesses particularly when respective testimonies of the witnesses were full of contradictions as well. It was submitted that the deceased lost his life at the hands of the police and the appellants were falsely involved in the case. It was contended that there was no evidence on record that the police was not carrying shot-guns and the deceased was shot at by police as was the claim of the accused. It was submitted that numerous police functionaries had gone to the village with the convicts and later additional police force was sent to the village and in their presence the accused-appellants could not have committed the offence. It was further argued that there was apparent contradiction in the ocular account of the incident and the medical evidence in respect of the distance between the assailants and the victim. It was also submitted that the deceased had used a gun as well which indicated that he had fired at the accused and the accused might have acted in self-defense and this aspect of the matter warranted awarding of lesser sentence to the convicts. About Mukhtar, it was urged that he had no motive to commit the offence.
14. Learned counsel for the State as well as complainant on the other hand supported the conviction of appellants. It was submitted by them that it was day time occurrence and was sent by the people of the entire village and the prosecution had successfully established its case against the convict- appellants and no mitigation circumstance existed in their favour. It was submitted that the defence version was an afterthought and none had ever supported it, during the investigation or during the trial. They pleaded for maintaining the conviction and sentence of the appellants.
15. Ghazan appellant and the complainant party belong to one village and the same brotherhood.
At a point of time fraternal relations existed between them. Ghazan was married to a sister of the complainant. Another sister of the complainant was married to a brother of Ghazan, who contracted second marriage without permission of sister of the complainant. Relations between the parties took an ill turn and attritional snapping up of marital bonds followed. A brother of Ghazan was murdered and Ahmad Nawaz and others were convicted and awarded sentence of death which later was converted into imprisonment for life. Ghazan, at least, had a score to settle with Ahmad Nawaz, and his escape from custody while attending marriages of his sisters provided opportunity of a lifetime to Ghazan to do that.
16. The incident in this case virtually was a drama in real life which commenced when Ahmad Nawaz convict in a murder case, arrived in the village on parole to attend the marriage of his sisters and escaped from custody. It is not apparent from record as to how the prisoner escaped from custody---his visit to the "Zenana" to meet the brides or presence of 200/400 guests in the house 'apparently' provided him enough cover for escaping from the custody. Certain police functionaries were present in the village and after registration of case, reinforcement also arrived.
Ahmad Nawaz had enemies in the village also. Escape routes of the run-away prisoner appear to have adequately been plugged. He had congenital deformity in left foot also and Ahmad Nawaz could not run far enough from his enemies. He holed up in the village or "Deras" surrounding the village with the aid of friends or relatives which is evident by the fact that his handcuffs were cut- off; he had a shot-gun; and was not found starved on autopsy. On the other hand, escape of Ahmad Nawaz put his enemies on tenterhooks as is evidenced by Exh. D.B copy of application moved by Muhammad Ramzan, brother of Ghazan, Mukhtar, accused, and 8 other villagers belonging to different families who obviously were on the lookout for Ahmad Nawaz when the manhunt started: Later, when presence of Ahmad Nawaz was detected in a sugarcane field located about five furlongs away from the village "Abadi", Ghazan (and in all probability others) out-paced the complainant and his sister P.Ws. As well as the police, and succeeded in eliminating their 'enemy'. A reasonable possible inference from circumstances is that Ghazan was able to detect the presence of Ahmad Nawaz before others. The deceased had fired his shot-gun prior to death, which showed that he had tried to scare away the prowling enemy. Ahmad Nawaz was hiding in a sugarcane field and could not have effectively fired at anybody. Firing a shot-gun while present in a sugarcane field in like shooting at a brick-wall-the shot cannot get too far. Firing of shot-gun by Ahmad Nawaz revealed his position and when he tried to run away, he was fired at by the accused. The time of occurrence and the place of occurrence have not been denied by the accused. Habib Nawaz and other members of his family apprehensive about safety of Ahmad Nawaz as not only the police but also his enemies must have been searching for him like blood- hounds and the complainant and his sister Mst. Ghazala P.W.11 must have made a dash for the sugarcane field and had every opportunity in the world to have seen the entire occurrence which had taken place during broad daylight. All the villagers must have cherished the finale of the cat and the mouse game going on for almost two days. The witnesses were present in their village and had been looking for their brother and their presence at the place of occurrence was most natural and we believe their presence at the scene of crime and also their claim that they had seen the incident. The testimony of the eye-witness is fairly consistent and natural and quite believable. The defence had miserably failed to shatter the prosecution case in any manner to the extent, at least, of Ghazan.
17. It was also argued that the ocular account was liable to rejection, the same being contradicted by the medical evidence which showed that the deceased was fired at from a short range. The witnesses had clearly stated in examination-in-chief that the accused had closed in on Ahmad Nawaz and then had fired at him. This part of the testimony was not assailed by the defence. The ocular account was also supported by explanatory evidence such as the site-plan, Exh.P.E and we do not find any contradiction in the ocular account of the incident and the medical evidence
18. It was submitted that the defense evidence was quite credible and should be given preference over the prosecution evidence. The accused claimed that the deceased was done to death by police and then in order to save themselves from prosecution for a false encounter, the police bargained with the complainant and framed in their enemies the present appellants. The deceased had only gun-shot injuries on his body. There is no evidence on record showing that the police was carrying shotguns at the time of occurrence. Issuing of weapons and ammunition to police is fully documented and the accused never attempted to show that the police was issued the shotgun at the police station or handed over soft-bore weapons in the village by anybody. The incident took place in the view of villagers and none ever came forward during investigation or, later, during trial to support the defence version. There is another aspect of the matter. Escape of Ahmad Nawaz from custody must have annoyed the police some of whom were to face prosecution as well. They must have been quite an unhappy lot and would not have been in any mood to please the complainant. If the run-away prisoner was shot to death by any member of the police party, no one would have hit him even with a pinky and the police really was not under any compulsion to have struck any bargain with the complainant. Any evidence or circumstance or inference deducible from record does not support the defence version. The argument advanced in this behalf appears outcome of jaded wisdom and has been found to be absolutely hollow.
19. In the course of investigation, Ghazan accused-convict, led to recovery of a SBBL shot-gun P.17.
The gun, according to Exh.P.Q was found to have been used for firing 3 spent cartridges recovered from the spot. The recovery further corroborates the case of prosecution against Ghazan.
20. The prosecution case against Ghazan-convict/appellant was fully established on the strength of evidence of motive and ocular account which, was supported by other corroborative, explanatory and investigatory evidence. Case of Mukhtar convict/appellant has, however, been found to be distinguishable. He had no direct motive to commit the offence and recovery evidence qua him was not incriminating either. For safe administration of justice, we are inclined to extend benefit of doubt to him in the case.
21. For the foregoing reasons, Muhammad Ghazan appellant is convicted under section 302(b), Pakistan Penal Code. Lesser sentence of imprisonment for life to the convict would be appropriate on account of certain features of the case. Brother of Muhammad Ghazan was murdered and Ahmad Nawaz was awarded life imprisonment. Ghazan, thus, would have been under intense societal pressure to eliminate the murderer of his real brother and offence was committed by him in that background. Human reactions and behaviour are often shaped by social norms of a particular society. The offence committed by Ghazan, according to those norms, can be considered to be a crime of passion in certain measure. Therefore, we award sentence of imprisonment for life to Muhammad Ghazan convict for offence under section 302-B, Pakistan Penal Code. The sentence of death awarded to him by the trial Court is modified accordingly.
Muhammad Ghazan shall pay compensation amounting to Rs,50,000 to legal heirs of the deceased. The amount shall be recovered from the accused convict as arrears of land revenue.
Mukhtar Ahmad appellant is acquitted of the charge by giving benefit of doubt to him. Mukhtar Ahmad shall be released from custody if not wanted in any criminal case.
22. Benefit of provisions of section 382-B, Cr.P.0 for time served shall be given to the convict.
' Murder Reference is answered in the negative.