' ZAFAR PASHA CHAUDHARY, J.--- Vide F.I.R. No,155 of 1987 (Exh.P.C.), case was registered with Police Station Saddar, Toba Tek Singh on 19-10-1987 at 1-00 a.m. (mid-night) regarding an occurrence which took place at 6-00 p.m. On 18-10-1987, at the instance of Muhammad Akram P.W.11 under section 302/34, P.P.C.
2. The prosecution case in brief is that at about 6-00 p.m. On 18th of October, 1987, Muhammad Akram complainant (P.W.11), Muhammad Din (P.W.12) and Muhammad Siddique deceased were coming from Chak No,519/G.B. On foot and were heading towards Chak No,292/J.B. Where the complainant, the deceased as well as the three accused lived. Muhammad Siddique deceased had a bicycle and was holding it with one hand and was walking aside. He was ahead of the complainant and Muhammad Din. When they reached near Killa No,21, Square No,24, all of a sudden, Abdul Jabbar and Muhammad Ramzan accused armed with .12 bore single-barrel guns and Bashir Ahmad accused armed with .12 bore double-barrel gun, came out of the cotton crop.
Out of the said accused, Bashir Ahmad took the lead and uttered Lalkara having accosted Muhammad Siddique deceased that for the abduction of his sister, revenge shall be taken. Then this accused fired his gun shot at the deceased. The eyes of the deceased were injured. The deceased fell down. After the fall of the deceased, Abdul Jabbar accused and Muhammad Ramzan accused lifted the Kurta of the deceased and fired at his abdomen. The deceased died at the spot.
' The motive as described by the complainant in the F.I.R. Is that two and a half, years before this occurrence, Muhammad Siddique deceased abducted Mst. Bashiran Bibi, a real sister of Bashir Ahmad accused. Then, he married her. About three and a half months earlier than the death of deceased, a Talaq was secured by Mst. Bashiran Bibi through the elders in a Punchayat.
3. After recording the statement Exh.P.C. Nazir Ahmad, S.-I. P.W.14 reached the place of occurrence, prepared injury statement of Muhammad Siddique deceased Exh.P.L. And inquest report Exh.P.M. He thereafter, dispatched the dead body to mortuary for post-mortem examination. He secured bicycle P.4, a pair of moccasions P.5/1-2 and a clasp knife P.6 of the deceased. He also took into possession five broken pieces of butt of a gun P.7/1-5 vide memo. Exh.P.H. He secured two crime- empties P.12 and P.13 vide memo. Exh.P.F. From the spot. Apart from that blood-stained clothes of the deceased were also taken into possession, vide memo. Exh.P.K.
4. All the three accused persons namely Bashir Ahmad, Muhammad Ramzan and Abdul Jabbar were arrested on 3-11-1987. Bashir Ahmad while in custody got recovered his double-barrel .12 bore gun P.15 from inside the house which was taken into possession vide memo. Exh.P.K. Alongwith its licence P.11. Bashir Ahmad accused also got recovered his blood-stained Chaddar P.8, shirt P.9 and Safa P.10 from the corner of his cattleshed. Muhammad Ramzan accused got recovered his single- barrel .12 bore gun P.6, its wooden butt was missing which was got recovered from the graveyard and secured vide memo. Exh.P.I. He did not possess the licence of gun P.16, therefore, was challaned under Arms Ordinance as well. Site plans were also prepared by the Investigating Officer.
5. Apart from Nazir Ahmad, S.-I. P.W.14, the investigation was taken up by Saif Ullah, Inspector/S.H.O.
P.W.13 who examined few witnesses and after compiling the challan, accused persons were sent up to face trial in the Court of Mr. Subtain Raza Naqvi, learned Sessions Judge, Toba Tek Singh. In the report Abdul Jabbar was found as not guilty and the same was recorded in report under section 173, Cr.P.C. (Challan) in portions from "A to A".
6. The prosecution in support of its case examined fourteen witnesses. Dr. Javed Iqbal P.W.1 conducted the post-mortem examination of Muhammad Siddique deceased aged about 30 years on 19-10-1987 and found the following injuries on the dead body:-- 1-A. A lacerated wound 5 c.m. x 1 c.m., bone deep on top of the head.
2-A. A fire-arm wound of entrance 5 c.m. x 2 c.m. Scortching was present. This injury is situated at outer canthes of right eye.
3-A. A fire-arm wound of exit 2-1/2 c.m. x 2 c.m. At the junction of left ala of the nose and upper lip margin everted out. A probe was easily passing from injuries Nos.2 to 3.
4-A. A lacerated wound 5 c.m. x 1 c.m. x bone deep crescentic shape at the outer canthus of left eye more on the temporal region.
5-A. A fire-arm wound of entrance 2.5 c.m. x 2.2 c.m. On the right side of the abdomen, 7 c.m.
Laterally and 1-1/2 c.m. Below the line of the umbilicus, abdominal contents were protruding out.
There was burning and tattooing in an area of 7 c.m. In diameter.
6-A. A fire-arm wound of entrance 2.5 c.m. x 2.2 c.m. On the right side of abdomen, 8 c.m. Below the injury No,1 with burning and tattooing in an area of 7 c.m. In diameter. Abdominal contents were protruding out.
7-A. An abrasion 2 c.m. x 1 c.m. In front and below the left knee-joint.
' All the injuries were ante-mortem, injuries Nos.2, 5 and 6 had been caused by fire-arm and injury No,3 was grievous in nature and fatal. They were collectively and individually sufficient to cause death. Injuries Nos.1, 4 and 7 had been caused with blunt means and were simple in nature. The death had occurred immediately after the sustaining of injuries.
7. P.W.2 Naimat Ali is the Patwari who prepared the site plan. P.W.7 Muhammad Iqbal, S.-I., P.W.4 Abdul Jabbar Constable, P.W.5 Khalid Rasool, Head Constable, P.W.6 Munir Ahmad, Head Constable, P.W.7 Shabbir Ahmad, Constable, P.W.8 Maqsood Ahmad, Constable are the official witnesses who performed various functions during investigation and they furnished the details of the same in Court. P.W.9 Abdul Majid identified the dead body of the deceased before the postmortem examination.
8. P.W.10 Muhammad Akram attested the various recoveries effected from the place of occurrence, important amongst them are two crime-empties collected from the spot vide memo. Exh.P.F.
Bicycle P.4, pair of moccasions P.5/1-2 and clasp knife P.5 vide memo. Exh.P.G. Five pieces of wood of broken butt of gun P.7/1-5 were taken into possession vide memo. Exh.P.H. And all these recoveries were attested by this witness.
9. He also joined the investigation and on 17-11-1987 attested the recovery of .12 bore gun, whose butt had been broken, from the graveyard at the instance of Muhammad Ramzan accused which was secured vide memo. Exh.P.I. Similarly on the same day i,e, 17-11-1987 Bashir Ahmad accused got recovered .12 bore gun which was taken into possession vide memo. Exh.P.J. This accused also got recovered his blood-stained clothes comprising Chaddar P.8, shirt P.9 and Safa P.10, after digging the earth from inside the cattleshed which were taken into possession vide memo. Exh.P.K. Bashir Ahmad also produced licence P.10 regarding his .12 bore gun recovered at his instance.
10. The eye-witness account was furnished by P.W.11 Muhammad Akram and P.W.12 Muhammad Din. According to Muhammad Akram, Muhammad Ramzan and Abdul Jabbar accused were real brothers and Abdul Khaliq their third brother is brother-in-law (sister's husband) of Bashir Ahmad accused. His statement was recorded on 5-4-1988 and according to him about five and a half months prior at about 6-00 p.m. He alongwith Muhammad Din P.W.12 and Muhammad Siddique deceased were going on foot and proceeding to Chak No,292/J.B. Muhammad Siddique deceased was holding bicycle and was ahead of them. They were near the cotton fields, wherefrom Bashir Ahmad, Muhammad Ramzan and Abdul Jabbar accused emerged, they were all armed with guns, Bashir raised a Lalkara that they have come to take revenge for the abduction of his sister.
Simultaneously, Bashir fired a shot hitting deceased on his head who fell down then Muhammad Ramzan and Abdul Jabbar fired one gun shot each from their respective guns and caused injuries in the abdomen of the deceased after lifting his Kurta. Ramzan also hit the deceased with wooden butt of his gun and caused injuries on his head, left side of face and temporal region, the wooden butt got broken. Muhammad Saddique succumbed to the injuries there and then.
11. Motive was stated to be that two and a half years before the occurrence, Mst. Bashiran sister of Bashir Ahmad accused had been abducted by Muhammad Saddique deceased and a criminal case was registered. The deceased, however, got married the abductee, therefore, Saddique was acquitted by the Court. Subsequently, however, Mst. Bashiran filed a suit for dissolution of marriage during which Talaq was pronounced in Panchayat. Mst. Bashiran contracted marriage with Abdul Khaliq, brother of Ramzan and Abdul Jabbar accused, as result of this grudge, Saddique was done to death.
12. Muhammad Din P.W.12 also furnished the eye-witness account of the occurrence and made exactly similar and identical statement as already made by Muhammad Akram P.W.11. He corroborated the complainant on all material points and described the injuries as inflicted by accused persons who are respondents in the present appeal. He also narrated about the motive which is to the same effect as had already been given by the complainant Muhammad Akram P.
W.11. Both the witnesses thus made statements in line with each other and corroborated each other on all material points. Both the witnesses were subjected to lengthy cross-examination but nothing significant could be elicited from them which would have rendered the prosecution case as doubtful or their testimony could have become doubtful. They made consistent and coherent statements and a perusal of their statement inspires confidence.
13. Amongst the remaining witnesses Nazir Ahmad, S.-I. P.W.14 is important being the Investigating Officer. As detailed above, he narrated the details of the investigation and the functions performed by him during the investigation.
14. After the close of the prosecution case, the learned Prosecutor tendered in evidence the report of the 'Forensic Science Laboratory Exh.P.P., report of the Chemical Examiner, Exh.P.Q. And Exh.P.R.
And the report of Serologist Exh.P.S. And Exh.P.T. He also tendered in evidence copy of the F.I.R.
No,335, dated 22-9-1984 registered with Police Station Toba Tek Singh, pertaining to the abduction of Mst. Bashiran sister of Bashir Ahmad accused which was described as motive.
15. Bashir Ahmad accused-appellant when examined under section 342, Cr.P.C. Denied the various allegations levelled against him and on a question as to why this case against him, he made the following reply:-- "Siddique deceased was a bad character. Because of the influence of the brotherhood my sister Mst. Bashiran Bibi was married to the deceased. I got registered a case under Hudood Laws against the deceased and thereby made my sister to remain at my house: The deceased filed a suit for restitution of conjugal rights in the Family Court and in such suit Wali Muhammad father of Muhammad Alum complainant appeared as a witness for the deceased and I tender certified copy of list of witnesses of Siddiq plaintiff, the deceased of this case submitted by him in Family Court. The Family Court passed a decree as to dismissal of restitution suit through an order copy Exh.D.D. This judgment was based on the statement of the deceased made by him in the Family Court and copy of such statement is Exh.D.E. Whereby the deceased had pronounced Talaq on my sister Mst. Bashiran. The deceased had illicit liaison with a lady named Surriya of Jhang. The deceased was killed at night time at the spot of occurrence while he was talking with his beloved Mst. Surriya. The relations of the deceased were annoyed with me because I had opposed the marriage of my sister with the deceased. They falsely implicated me in this case which was a blind murder case."
16. Muhammad Ramzan accused-respondent when examined under section 342, Cr.P.C. Also denied the allegations and pleaded that he had' been implicated because of relationship with Bashir accused.
17. Abdul Jabbar accused-respondent brother of Muhammad Ramzan co-accused, when examined under section 342, Cr.P.C. Similarly denied the allegations levelled against him and pleaded not guilty.
18. The learned Sessions Judge, Toba Tek Singh vide his impugned judgment, dated 6-6-1988 acquitted all the accused-respondents. The reasons in support of acquittal have been detailed in para. No,20 of the judgment, and he concluded the prosecution case as highly doubtful.
19. As the judgment of acquittal and its supporting reasons were not found to be valid or genuine, the State filed the instant appeal against the same under the orders of the Government of the Punjab. On 2-10-1989 the appeal was admitted to regular hearing by this Court and bailable warrants were issued to procure the attendance of respondents i,e, Bashir Ahmad, Muhammad Ramzan and Abdul Jabbar.
20. The learned counsel appearing for the State-appellant took us through the relevant evidence and argued that overwhelming, credible and trustworthy evidence has been adduced by the prosecution which conclusively proved the guilt of the accused persons but the learned trial Judge erroneously disbelieved and discarded the testimony of the witnesses by drawing inferences which are neither probable nor acceptable. The prosecution has proved the case beyond doubt against the accused-respondents.
21. The learned counsel appearing on behalf of the respondents (Mr. Aftab Farrukh, Advocate) has resisted the appeal, supported the judgment of acquittal and reiterated the various reasons assigned by the learned trial Judge in support of acquittal. It has also been pointed out by the learned counsel for the accused-respondents that the occurrence took place in 1987 i,e, on 18-10- 1987, as such more than fourteen years have passed, it would be unjust to convert the acquittal into conviction.
22. Before assessing and appraising the prosecution evidence, we are of the view that crime does not die or diminish with the passage of time If the guilt of an accused person has been established through reliable evidence and the order of acquittal is based on the inferences derived fancifully, then the interest of justice demands that fairhanded treatment should be meted out to the prosecution. We are not oblivious of the principle that benefit of doubt has to be extended to accused but benefit of doubt can be extended where it really spells out of the evidence and the same is not just imaginary or artificial. If some doubt does emerge from the facts and circumstances of the case and two views can possibly be taken' then view beneficial to the accused person has to be adopted. The testimony of credible and trustworthy witnesses cannot, however, be discarded merely on the basis of impragmatic or improbable or extraneous considerations.
23. To start with the prosecution case, the occurrence took place at 6-00 p.m. In the mid of October and it would be just the sunset time, when mostly the villagers return towards their homes after finishing their routine work. According to the complainant he alongwith deceased and a witness Muhammad Din were coming towards their village, when the occurrence took place on the path leading towards the village. The presence of the witnesses alongwith the deceased as such is quite natural. It is common in our society that after working in the fields when the villagers return to their homes they are usually together. When three persons emerged from the adjoining cotton field, all the three were armed with guns. Bashir Ahmad was carrying his licensed gun whereas the remaining two i,e, Ramzan and Jabbar armed with unlicensed weapons. Bashir Ahmad was the first to open the attack after raising Lalkara and he fired the first shot hitting the deceased Muhammad Saddique on his eyes. Thereafter, Muhammad Ramzan and Abdul Jabbar accused fired shots on the abdomen of the deceased after lifting the front of his shirt. Both these fire-arm injuries, are supported by the medical evidence. According to which fire-arm wound of entry 5 c.m, x 2 c.m. Was situated at the outer canthus of left eye, the injury had scorching as well. The injury No,4 is a lacerated wound on outer canthus of the eye, which is supportive of the eye-witness account. Thereafter, injuries on abdomen have been described by the doctor as wounds of entrance on the right side of abdomen. Burning and tattooing was also noted. Statements made by the eye-witnesses are, therefore, fully supported by the medical evidence.
24. There is another peculiar attribution made by both the eyewitnesses i,e, Muhammad Akram P.W.11 and Muhammad Din P.W.12 that Ramzan hit the deceased with the wooden butt of the gun which caused a lacerated wound 5 c.m. x 1 c.m. Bone deep on top of the head, the wooden butt was thus broken. This part of the statement is supported by the 'fact that five wooden pieces of butt were recovered from the place of occurrence Exh.P.7/1-5 which were secured into possession vide memo. Exh.P.H. And attested by Muhammad Akram son of Muhammad Yusuf P.W.10. This piece of statement is further supported by the fact that Ramzan accused got recovered .12 bore gun vide Exh.P.I. From the graveyard and its wooden butt was missing. The statements of the witnesses on this point are doubly supported by the recovery of the wooden pieces from place of occurrence on 19-10-1987 and subsequently the recovery of gun without butt end on 17-11-1987. The learned trial Judge appears to have taken pains to remark that injuries on the head of the deceased Muhammad Saddique are 'only abrasions thus could not be caused by the butt end. According to him as butt end got broken the injuries should have been more grave, therefore, this circumstance has been treated as negative. The reasoning cannot be treated as sound or cogent. The very fact that butt of the gun got broken into five pieces indicated that the same was not strong enough and it appears the wood contained cracks or grains which went apart on a strike on the head. Had it not so happened the same would not have been described as such by the witnesses or for that matter by any one.
25. Apart from the support of medical evidence, the report of Forensic Science Expert Exh.P.P. Lends a credible support to the prosecution case. According to the report of the crime-empties secured from the place of occurrence C-1 matched with the gun recovered from Bashir accused. Another important aspect in order to assess the authenticity of the report, is time of receipt of the crime- empties and the weapons of the offence. The occurrence took place on 18-10-1987, F.I.R. Was lodged on 19-10-1987, the crime-empties were recovered on the same day and in the Laboratory on 1-11-1987. It is noted in the report itself and apart from that P.W.8 Maqsood Ahmad, S.,-I. Testified in Court that he was delivered the empties on 31-10-1987 and they were delivered to the Laboratory on the next date i,e, 1-11-1987. The crime weapon i,e, gun was received in the Laboratory on 23-11- 1987 as noted in the report and further testified by P.W.7 Bashir Ahmad that he was delivered the parcels of guns and other parcels on 23-11-1987 which were delivered by him in the laboratory. As is evident from these dates, the empties were received in the Laboratory much before the parcels containing guns were received, therefore, empties and guns did not remain together with the police, as such any possibility of padding or fabricating the evidence is not there. Accused persons were arrested on 3-11-1987 and recovery of guns was effected thereafter on 17-11-1987. The empties had been received in the Laboratory prior to their arrest and recovery of the guns. This data does not leave any doubt that the crime-empties recovered from the place of occurrence matched with the guns subsequently recovered from the accused persons. The gun recovered from Bashir is his licensed weapon. This circumstance further strengthens the recovery from him.
26. The eye-witness account is further supported by the factum of motive as well. The motive is almost admitted as sister of Bashir had been abducted by the deceased and this grievance or trauma last very long and people do carry this grudge or grouse for a long time, especially in our rural society the insult and disgrace done to the family is taken as extremely intense and grave.
The observations made by the learned SessiOns Judge that subsequently Tallaq was pronounced etc. Had alleviated the grievance of the accused persons, does not contain much weight or substance.
27. The learned counsel for the accused has argued that both the witnesses are related to the deceased and they appear to be chance witnesses. The contention loses force when we find that the occurrence took place at 6-00 p.m. And the matter was reported to the police station at 1-00 a.m. (mid-night). All the necessary details of the accused and their attributions have been given in the F.I.R. The promptness with which the F.I.R. Was lodged leaves no doubt that witnesses were present at the place of occurrence. As noted above the presence of the witnesses cannot be treated as unnatural or just per chance. The deceased and the witnesses were coming back which is a normal feature in villages and the occurrence took place in front of them. As noted above their statements are supported by the medical evidence, by recovery of weapons, their matching with crime-empties and lastly by the motive. All these pieces of evidence taken together, we find has successfully proved its case against Bashir and Muhammad Ramzan accused-respondents Nos.1 and 2. However, with regard to Abdul Jabbar no recovery was effected from him and as such the corroborative evidence by way of opinion of the Fire-arm Expert or matching of any crime-empty with his gun, is not available. Following the principle that grain has to be sifted from chaff, which is in fact a practical and pragmatic view has to be taken. We, therefore, extend the benefit of doubt to Abdul Jabbar son of Muhammad Ali, as such order of acquittal to the extent of Abdul Jabbar is upheld and maintained.
28. Bashir and Ramzan respondents are found guilty as the prosecution has proved their guilt beyond doubt. As regards the quantum of sentence, by taking into account the motive as set up by the prosecution itself that the murder was committed in order to vindicate the family honour, we are of the view that relevant mitigating and extenuating circumstances exist in favour of accused respondents Bashir and Ramzan. Both the said respondents are, therefore, convicted under section 302, P.P.C. And each of them Bashir Ahmad and Muhammad Ramzan is sentenced to imprisonment for life. Each of them will also pay Rs,10,000 each as compensation to the legal heirs of the deceased, failing which to further undergo six months' S.I. Each. They will also pay Rs,5,000 each in default whereof to undergo one year's R.I. Each.
29. Both the respondents i,e, Bashir Ahmad and Muhammad Ramzan will surrender themselves to custody to serve out the sentence. Copy of this judgment shall be conveyed to learned Sessions Judge as well as S.S.P., Toba Tek Singh. In case the convicts do not surrender they shall be taken into custody and lodged in jail so as to serve out their sentence. Benefit under section 382-B, Cr.P.C.
Is given to both the convicts.
30. Criminal appeal is disposed of in the above terms.