ALI NAWAZ CHOWHAN, J.----This judgment shall dispose of Criminal Appeal No. 149 of 1998, Criminal Revision No. 60 of 1998 and Murder Reference No.265 of 1998. These matters arise because of the judgment, dated 4-6-1998 handed down by Mr. Khadim Hussain, the learned Additional Sessions Judge, Chakwal. Whereby, he while acquitting five accused convicted Abid Hussain appellant under section 302(b) of the Pakistan Penal Code for commission of Qatl-e-Amd of Muhammad Akhtar deceased and sentenced him to death as Taazir while also directing him to pay compensation under section 544-A, Cr.P.C. Amounting to Rs. 50,000 to the legal heirs of the deceased, or to suffer further imprisonment in lieu thereof.
2. The matter relates to case F.I.R. No.181, dated 10-11-1996 registered at Police Station Choa Saidan Shah, District Chakwal, under sections 302, 148 and 149, P.P.C.
3. The occurrence took place on 10-11-1996 at about 9 a.m. In the area of Dhoke Gujjar Dakhli falling within the territorial limits of Police Station Choa Saidan Shah, District Chakwal. The F.I.R. (Exh. P.Q.) is also dated 10-11-1996. Initially, the offences reflected were under sections 324, 148 and 149, P.P.C. But later these were altered to section 302, P.P.C. Upon the death of Muhammad Akhtar deceased.
Muhammad Bashir is the complainant and also an eye-witness. According to his story, he had married to Mst. Mehfooz Begum, the daughter of Muhammad Sharif, who had left behind property.
Prior to this marriage, she was married to Qamar Javed, a brother of the appellant Abid Hussain.
According to the complainant, she had been divorced after several years of marriage by Qamar Javed who happened to be her Chachazad. That he and Mst. Mehfooz Begum were in possession of the houses and property of Muhammad Sharif, her father. It was alleged that Abid Hussain had raised a dispute with respect to those houses and wanted to take possession of the same, as he claimed himself to be a legal heir of Muhammad Sharif. The deceased Muhammad Akhtar used to help Muhammad Sharif in these matters having old relationship; On 9-11-1996 it was evening time.
That Muhammad Akhtar had come to his house and stayed there for the night. That on 10-11-1996 at about 9-15 a.m. He alongwith his brother Bostan Khan and said Muhammad Akhtar deceased (aged about 26/27 years) proceeded to the Bus Stop. According to the complainant, said Muhammad Akhtar had visiting terms with the whole of the village Dhoke Gujjar.
5. While they were still proceeding and as the house of Muhammad Sharif fell on the way, Muhammad Bashir entered the said house by unlocking the same alongwith Bostan and the deceased Muhammad Akhtar. It was said that at this stage, six accused came at the roof of that house. Abid Hussain stood on the roof having a .12 bore gun in his hand while the others armed took different positions. Abid Hussain fired a shot which landed on the left chest, shoulder and hand of Muhammad Akhtar, who fell down. In an injured state he was taken firstly to the Police Post Basharat but as F.I.R. Was not registered there, they were forwarded to Police Station Choa Saidan Shah and while they were proceeding towards the said Police Station, they met Muhammad Nawaz, Sub-Inspector (P.W.11) and Muhammad Akhtar recorded his statement which was sent to the Police Station Choa Saidan Shah. He prepared the injury statement. This was thumb-marked by the injured. Muhammad Nawaz, Sub---Inspector (P.W.11) affirmed this fact and went on to say that at that stage, he found Muhammad Akhtar injured in full consciousness and he could not say whether he was in danger of life or not. This P.W. Further stated that Bashir P. W. Was also with him.
6. The injured was taken to Kitas and as no doctor was available there, he was taken to Chakwal Hospital, where he was given medical aid. Subsequently, he was removed to Rawalpindi but en- route he expired near Jatli.
7. According to Muhammad Bashir, the assailants have a grievance that the deceased helped him in the possession and construction of the houses left by Muhammad Sharif and, therefore, Muhammad Akhtar was murdered.
8. Muhammad Bashir represented the prosecution as the deceased had expired and in his testimony, he supported the prosecution case. Some relevant excerpts from his testimony are being reproduced below:-- "It is incorrect to suggest that Abid accused was in possession of the house of Muhammad Sharif and it was my desire to disposes Abid Hussain for taking the possession of the same. Volunteers in fact I was in possession of the house of Muhammad Sharif. "
"Qamar Javed the brother of Abid Hussain accused was married to Mehfooz Begum 16 or 17 years ago."
"I got the proof of divorce of Mehfooz Begum from Qamar Javed, from Union Council Basharat I did not produce any proof of this fact at the police station during investigation. I produced my Nikah Nama about my marriage with Mehfooz Begum to the police, after 10 to 12 days of the occurrence.
"Volunteers it took place at Rawalpindi. "
"It is correct that Muhammad Sharif was the real uncle (Chacha) of Abid Hussain accused. It is incorrect that they had joint property. I produced the documentary proof of ownership of Mehfooz Begum regarding the house of Muhammad Sharif, the place of occurrence to the police. I produced the key of lock of outer gate of the above said house to the police alongwith the lock after opening the same when the police inspected that place. I also produced the keys of the locks of rooms existed inside the above -said house and the police in my presence unlocked the rooms and checked the household of that house. The police inspected the place of occurrence on the next day of the occurrence. The keys were returned to me by the police after locking the house. "
"The accused Abid Hussain after some days of the occurrence possessed that house and my were Mehfooz Begum registered a case against the close relation of the accused i.e. His mother and brothers. I or Mehfooz Begum has not tiled any civil suit for the possession of that house."
"The deceased came to my house on 9-11-1996 and did not tell me that he met any person from the accused party. It will take 15 minutes to reach to the place of occurrence from my house on foot."
"I walked SS or 6 paces in the haveli when I saw the accused standing on the roof of the houses.
The accused did not make any fire upon me before firing on Muhammad Akhtar deceased. The roof of the house of Liaquat has 11 to 13 feet height, upon which Abid Hussain accused was present."
"The inhabitants of the houses surrounding the place of occurrence also watched the same. We did not produce any of them as eye-witness before the police during the investigation. "
"It is, however, a metalled road. 2 police officials were present at Police Post Basharat and they wrote some thing on the papers and left the same for Choa Saidan Shah. I did not record my statement at Police Post Basharat, however, Muhammad Akhtar deceased recorded his statement concerning to the occurrence. "
"I did not make my statement before Muhammad Akbar, S.-I. About the occurrence in the hospital.
Likewise my brother Bostan Khan did not make his statement before Muhammad Akbar, S.-I. The draftsman visited the spot 2 or 3 days after the occurrence. I and Muhammad Bostan my brother accompanied him. We both pointed out the points to Muhammad Sharif draftsman. The police was also with him. "
"5/6 investigations were conducted by the different police officers of the different ranks in this case.
I joined all the investigations. It is incorrect to suggest that all the accused except Abid Hussain were declared innocent in all the investigations. I do not know whether other accused except Abid Hussain have been declared innocent uptill now."
"It is incorrect that except Abid Hussain accused was present at the place of occurrence at the time of occurrence. It is also incorrect that we wanted to take forcible possession of the house of Muhammad Sharif which was in the possession of Abid Hussain and his brother Qamar Javed as in their common ownership. It is also incorrect that we hired the services of Muhammad Akhtar accused who was a notorious man for this purpose. It is also incorrect that when we entered into the house of Muhammad Sharif possessed by Abid Hussain and Qamar Javed as common owner with Muhammad Sharif raising Lalkara and firing that we had come to take forcible possession when Abid accused came there from the lane side when a fire at him hit Muhammad Akhtar deceased."
9. Dr. Munir Ahmad (P.W.10) on 10-11-1996 at District Headquarter Hospital, Chakwal had medically examined Muhammad Akhtar. He found four injuries of his person, two of which are inlet wounds and the others are outlet wounds. Subsequently, he conducted the post-mortem examination on the dead body of Muhammad Akhtar and he found the same injuries at that time and these were:- -
(1) Multiple fire-arm wound with inverted margins largest 1 x 1 c.m. Smallest .6 x .6 c.m. On upper left chest and shoulder. On dissection some pierced up to muscles and some destroyed skin, muscles, fractured third rib and left upper lungs zone. The left chest cavity containing blood about 7 ounces.
The projectile exited out from posterior wall.
(2) Multiple fire-arm wound with everted margins on back of left upper chest and shoulder 1 x 1 c.m.
Largest and smallest .6 x .6 c.m.
(3) Multiple tire-arm wound with everted margins largest 2.1 c.m. Smallest .6 x .6 c.m. On left forearm (wrist) ventral aspect.
(4) A fire-arm wound with everted margins .8 x .8 c.m. On dorsal aspect of left forearm.
His opinion about these injuries was as follows:-- "Death in my opinion was due to haemorrhage shock caused by injury No.1. Injury No.2 was exit of injury No.1. Injury No.3 again entry and 4 exit of injury No.3. All caused by fire--arm weapon and were ante-mortem in nature. Injury No. 1 was individually responsible for death and fatal in ordinary course of nature. Time between injuries and death was 6 to 8 hours and between death and post-- -mortem was 18 to 24 hours."
Exh. P.I. Is the post-mortem report
10. Muhammad Akbar, Sub-Inspector (P.W.12) was then posted at Police Post Basharat of Police Station Choa Saidan Shah. He after taking the relevant papers and the blood-stained Kameez of the deceased had learnt about his death and: he reached the Civil Hospital, Chakwal, where he prepared the inquest report (Exh. P.M.) and he applied for the post-mortem examination of the deceased. He handed over the dead body to Muhammad Imtiaz, Constable for this purpose. On 11- 11-1996, the Sub-Inspector Muhammad Akbar inspected the place of occurrence, prepared the site plan (Exh.P.O.), collected the blood-stained earth and took into possession a wrist-watch of the deceased. After the post-mortem, the Shalwar of the deceased alongwith a phial consisting of cartridges was taken into possession by him vide memo. Exh. P.A. He recorded the statements of the witnesses. On 16-11-1996 he arrested Abid Hussain appellant, who on 20-11-1996 got recovered licensed .12 bore gun (p.5), which he took into possession vide memo. Exh.P.G. The other co- accused were also arrested by him. Some relevant excerpts from his testimony are reproduced below:-- "It has come to my information during the investigation that Bashir, Bostan P.Ws. Alongwith Eid Muhammad son of Khan Bahadur, Muhammad Afsar resident of Dhullah, District Jhelum alongwith Muhammad Akhtar deceased came at the place of occurrence armed with weapons to get the possession of the house of Muhammad Sharif from Abid accused, however, this fact was not produced by any one. I declared Abid accused as culprit of this case but I did not reach to any conclusion about the other accused when the investigation was transferred to me. This fact was discarded by me that P. Ws. Alongwith Eid Muhammad son of Khan Bahadur, Muhammad Afsar and Muhammad Akhtar deceased came to get the possession of the disputed house the place of occurrence from Abid accused."
"All the accused except Abid joined the investigation and took the plea that they were not present at the time of occurrence."
11. Amongst the formal witnesses were Muhammad Imtiaz (P.W.3). Who escorted the dead body of Muhammad Akhtar for post---mortem examination and he collected the last--worn clothes from the Doctor which he handed over to the Investigating Officer who took the same into possession vide memo. Exh. P.A. Alongwith phial containing pellets. Muhammad Ijaz, Constable (P.W.4) handed over to the Investigating Officer shirt (P.W.3) of injured Muhammad Akhtar, which he took into possession vide memo. Exh.P.B. The shirt had the marks of entry of pellets. Muhammad Sharif, Draftsman (P.W.5) had prepared the site plans of the place of occurrence in triplicate (Exh.P.C., Exh.P.C/1 and Exh.P.C./2). According to him, the point No.2 where Bashir was present, was not visible from point No.4. Likewise, from point No.3, point No.4 was also not visible. Qaim Din (P.W.6) had identified the dead body of the deceased. Muhammad Khan (P.W.7) was present when the blood- stained earth was picked from the place of occurrence and sealed into a parcel through memo.
Exh.P.E. He also witnessed taking of the wrist-watch (P.4) of the deceased by the Sub-Inspector Muhammad Akbar through memo. Exh.P.F. Ameer Afzal (P.W.8) witnessed the recovery of the gun from the appellant which was licensed and which was recovered from his house. Altaf Hussain, A.S.-I. (P.W.13) had registered the F.I.R. (Exh.P.Q) verbatim on the basis of the statement forwarded to him by the Sub---Inspector.
12. It appears that this case was subjected to several investigations. Javed Akhtar, A.S.P. (P.W.14) had also investigated this case. Two relevant excerpts from his statement throwing light on the factum of the possession of the house where the occurrence had taken place, are reproduced below:-- "I inspected the place of occurrence and visited the same. As per my investigation, only Abid Hussain accused is culprit of this case and all the other accused namely Fida Hussain, Abdul Qayyum, Mumtaz and Asif Hussain were found innocent and the plea of some of the accused about alibi is also proved. They were put in Column No.2 of the challan/report under section 173, Cr.P.C. During the investigation, there was a dispute between the parties about the possession of the house the place of occurrence and after inspection of the same I found the household luggage of Mehfooz Begum were of Muhammad Bashir P.W. Lying therein. So, I observed that the disputed house is in possession of Mehfooz Begum."
"I investigated this case almost for full week. "
13. Abdul Khaliq, D.S.P., who too had investigated this case, was produced by the defence as D.W.1.
According to him:-- "During my investigation, it came on the record that the complainant party got the forcible possession of the disputed house from the brother of Qamar Javed, namely, Abid accused. It was also mentioned in my investigation that some of the persons from the complainant party were armed. It had also come in the investigation that the complainant party tried to break the door of the house and then fired. According to my investigation and observation the fire of Abid accused could not hit the deceased Muhammad Akhtar. However, this is not my final conclusion. I called the opinion of the doctor about my investigation as narrated above."
14. Another excerpt from his testimony during cross-examination is also relevant and is reproduced below:-- "It is correct that Mumtaz Hussain accused is a retired Sub-Inspector. It is also correct that most of his service was at Rawalpindi. It is also correct that most of my service was at Rawalpindi. It is also correct that even before investigation Mumtaz Hussain accused was known to me."
15. Abid Hussain appellant and the other five accused with him, who have now been acquitted, during their statements under section 342, Cr.P.C. Professed their innocence. The version of Abid Hussain appellant was as follows:-- "Mst. Mehfooz Begum is my first cousin (Chachazad) and also sister-in---law (were of my brother Qamar Javed). My brother Qamar Javed contracted second marriage and resided at Karachi.
Feeling aggrieved she deserted herself from my brother's house and started living with her maternal uncle (Mamu) Abdul Aziz. Afterwards for disgracement of the family and my brother Qamar Javed she started living in the house of the father Muhammad Bashir P.W. As house-maid servant. The disputed house basically belonged to my grandfather and it was just in Hissadari possession of Muhammad Sharif my uncle. As my uncle Muhammad Sharif was male issueless. He died leaving behind Mst. Mehfooz her daughter and we i.e. (myself and my brother Qamar Javed) as his legal heirs. I and my brother Qamar Javed have the ownership and possession over the disputed house. Muhammad Bashir P.W.9 wanted to take forcible possession from me and my brother Qamar Javed who is absent from the village. He hired the services of Muhammad Akhtar deceased who was resident of village Qautar Kund and a vagabond. Muhammad Bashir P.W.
Alongwith his brother Bostan, Eid Muhammad son of Khan Bahadur and one Muhammad Afsar resident of village Dhulla, District Jhelum armed with fire-arm weapons came there, resorted to firing and raised Lalkara to me that they had come to take the forcible possession of the house. I came put of my house armed with licensed .12 bore gun to defend myself and property of my absent brother Qamar Javed, when I reached at the outer gate of my house Muhammad Bashir P.W. Fired on me with his .12 bore gun. Muhammad Akhtar deceased at that time was in between me and Muhammad Bashir P. W. And the fire hit Muhammad Akhtar deceased. They afterwards managed to get register the case against me and my co-accused who are my close relatives. I took up this plea before the police as soon as I appeared before the police. The police investigated the matter and also came to the conclusion accordingly.
All the P.Ws. Are close relatives of Muhammad Bashir P.W. And his party-men and they had also enmity with me. Aftab Iqbal my co-villager who is our strong enemy. Muhammad Bashir P.W. Is his partyman. Due to his interference they got managed the case registered with due consultation. All the story of the prosecution is incorrect and baseless. I am innocent. "
He did not offer himself as a witness under section 340(2) of the Cr.P.C.
16. It has been argued before this Court that the possession of the house was in fact with the appellant's side and the complainant's side had come there to forcibly dispossess the appellant's side and that the occurrence took place under the circumstances explained by the defence version. We also find that a D.S.P. Had investigated this case and he had given his finding with respect to the possession of the house in favour of the appellant's side. But we have also read his statement in cross---examination with respect to his acquaintanceship with Mumtaz Hussain, a retired Sub-Inspector and accused in this case who has now been acquitted.
17. It was also argued that Mehfooz Begum whose father Muhammad Sharif was the original owner of the property, was the were of Qamar Javed, the brother of the appellant and not of Muhammad Bashir, the complainant in this case.
18. The aforementioned two points are most critical for arriving at a conclusion that as to who was the aggressor and who wanted to take the possession.
19. Admittedly, the property belongs to the father of Mehfooz Begum. Bashir complainant claims that he had married her after she was divorced by Qamar Javed. On the record, we have two documents from where help can be taken for answering this question. Exh. P.Q. Is an F.I.R. Bearing No.41 of 1997 in a case under sections 10/16 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979. Where Qamar Javed alleged that his were Mehfooz Begum had developed relations with Muhammad Bashir and others of that village. As to what happened ultimately to this case, was not highlighted by any of the sides. Besides, we have Exh. P.R. Which is F.I.R. No. 36, dated 25-3-1997 registered subsequently after the occurrence on the statement of Mehfooz Begum alleging trespass into her house by the appellant's side and where she claimed that she was the were of Muhammad Bashir complainant and was occupying that property.
20. Besides the aforementioned facts, we have the statement of A.S.P. Javed Akhtar, P. W. Who had categorically stated that the possession was not with the appellant's side rather he found the luggage of Mehfooz Begum were of Muhammad Bashir lying there. He had investigated the case for a whole week and unlike in the case of Abdul Khaliq Khan, D.S.P. (D.W.1), there is no accusation of any partisanship or bias against this A.S.P. (P.W.).
21. Mehfooz Begum is reported to be living in that house alongwith her mother. Both are descendants of Muhammad Sharif. The presumption is that after the death of Muhammad Sharif they were in occupation of the suit property as already living there in the aforementioned capacity.
This presumption could not be rebutted by the defence through any cogent proof for having taken over the possession while excluding toe widow of Muhammad Sharif and the daughter. The story of the appellant. Therefore, with respect to the possession of the premises is to be out-rightly disbelieved.
22. On the question of marriage of Mehfooz Begum with complainant Bashir, the preponderance of the evidence favours the marriage in view of the F.I.R. Filed by Mehfooz Begum and what was discovered by the A.S.P. This assertion of the complainant side could not be demolished by the appellant's side.
23. There is another dimension to the case and this is the statement of the deceased himself, on the basis of which the F.I.R. Was lodged. The learned trial Court had not given any credence to this document, although the Inspector who took it down had said that the deceased was in his full senses at the time when it was recorded. According to the learned counsel for the appellant, merely because it bears the thumb-impression of the deceased, was not enough. Even if we do not accept the statement of Muhammad Akhtar which ultimately turned to be a dying declaration upon his death, we cannot discard the testimony of Bashir P.W. Under the circumstances who happens to be a natural witness being a resident of the area.
24. The odd thing in this case is that instead of killing Muhammad Bashir, Muhammad Akhtar was made the target. Muhammad Bashir complainant has explained the reason for it.
25. Learned counsel for the appellant's side has stated that Muhammad Akhtar was a vagabond having been called from another district for taking over of possession forcibly. There is nothing on record to suggest that Muhammad Akhtar was a vagabond. In the cross-examination of Muhammad Bashir, it has come on record that Muhammad Akhtar had friendly terms with the whole village Gujjar, which means that he used to visit there. There is no evidence about his bad character and the possibility that he was there as was stated by Muhammad Bashir P.W. Is possible. Especially when we are not accepting the version of the appellant with respect to his possession and also with respect to the re-marriage of Mehfooz Begum. We find that the appellant has not denied his participation but has given a version about Muhammad Bashir P.W. Firing at him which hit Muhammad Akhtar, the deceased. Which story does not appear plausible in the perspective of the occurrence. If Muhammad Bashir had a gun, he would not have spared the appellant Abid Hussain. No gun, anyhow was recovered.
26. We do find that five other co---accused were let of and we have the explanation coming from the A.S.P. And other Investigating Officers in respect of them. The probabilities on which they were released are possible and we need not enter into that controversy now. But merely because a part of the prosecution story was disbelieved, does not mean that the entire story has to be disbelieved.
27. In criminal trials many a time the defence is successful in casting doubts on some roles while proving the others. The culture that we have, the weakness which are rampant in our investigating system, the implication of people on account of animosity and failure in not taking action for malicious prosecution, have led to widening of the net at the end of the prosecution with immunity.
Otherwise people would be careful and would only involve those against whom case was possible.
We are, therefore, required to sift the grain from the chaff and we here do not follow the rule of falsus in uno falsus in omnibus.
28. The appraisement of evidence reflects that the version of the appellant is unbelievable and we discard it. We are therefore, left with the prosecution version which is more plausible and sensible and persuades us in upholding not only the order of conviction but also of the sentence. After the failure of the appellant's side in establishing that the appellant's side were justified in protecting their possession and was guilty of manslaughter not amounting to murder to be covered by section 302(b) of the Pakistan Penal Code. We, therefore, find no merits in the Appeal bearing No. 149 of 1998 filed by Abid Hussain convict, and dismiss the same. The Murder Reference No. 265 of 1998 is consequently answered in the positive.
29. We also find that the quantum of compensation already awarded did not call for any further augmentation under the circumstances of this case. We, therefore, dismiss the Revision Petition bearing No. 60 of 1998 as well.