ALI NAWAZ CHOWHAN, J.----This judgment shall dispose of Criminal Appeal No.632 of 1998, Criminal Revision No.386 of 1998 as well as Murder Reference No.275 of 1998.
2. The matter arises on account of F.I.R. No.63, dated 10-9-1997 registered under sections 302 and 34, P.P.C. At Police Station Dullanwala, District Bhakkar.
3. It pertains to the judgment, dated 8-8-1998 handed down by Mr. Faiz Rabbani Khan Sial, learned Sessions Judge, Bhakkar. Whereby, he convicted the appellants namely Zafar Iqbal, Fateh Sher, Muhammad Ramzan and Ghulam Muhammad under section 302(b), P.P.C. For committing the murder of Muhammad Aslam (deceased) and sentenced them to death.
4. Mst. Razia Bibi is the complainant in this case, at whose instance the F.I.R. (Exh.PE) was registered.
The deceased Muhammad Aslam was her son. Whereas, Zafar Iqbal appellant is her step-son.
While Fateh Sher appellant is the maternal uncle of Zafar Iqbal and Muhammad Ramzan, and Ghulam Muhammad, appellants are nephew of Fateh Sher. She was married to Ghulam Hussain, the father of Zafar Iqbal as a second were. Mst. Bhag Bhari, the mother of appellant Zafar Iqbal, was his first were. The allegation is that Mst. Bhag Bhari was deserted by her husband and she started living with Fateh Sher and Zafar Iqbal.
5. In her testimony before the trial Court as P.W.7, she supported her case as given in the F.I.R. By stating:--- "About 9-1/2 months back at about 9 a.m. Muhammad Aslam deceased was grazing his sheep in the land of Aurangzeb Rawn. In the meanwhile accused Fateh Sher, Ghulam Muhammad, Ramzan and Zafar Iqbal all armed with hatchets, came there and challenged to Muhammad Aslam deceased that he would not be spared. Then Zafar Iqbal accused gave a hatchet blow to Muhammad Aslam deceased on the back side of his head, Muhammad Aslam deceased fell down.
Fateh Sher accused gave a hatchet blow to Muhammad Aslam deceased on left side of his head and in result of that injury the left ear of Muhammad Aslam deceased was amputated. Ghulam Muhammad accused gave hatchet blow on the right side of the head resulting the amputation of his right ear. Ramzan accused gave a hatchet blow to Muhammad Aslam deceased on his left eye.
All the accused then simultaneously gave hatchet blows on left and right arms of the deceased resulting amputation of left hand of the deceased while the index finger of the right hand of the deceased was also amputated."
6. According to her, she had witnessed the occurrence because she was cutting grass in the nearby field and it was on her alarm that the eye-witnesses were attracted.
7. Talking about the motive part of the story, she had said that Muhammad Aslam had a dispute regarding land and had also a grudge against the desertion of his mother by Ghulam Hussain.
8. Ghulam Hussain had married his real sister Mst. Noor Bhari in a Watta Satta marriage, to Fateh Sher appellant. Both the parties live in their houses which were built on sand dunes, while a low lying area intervened which had irrigation facility. The place of occurrence is at a distance of 150 Karams from both these houses towards south-east, and it has come on record through the statement of the complainant that between the houses and the place of occurrence, a sand dune and sugarcane crop were located. That she had left her house for cutting fodder a few minutes prior to the occurrence and which place is close to the place of occurrence. She did cut some fodder when the occurrence ensued. According to her, she pointed out the place where she was sitting at that time, to the police, but this fact is not reflected in her statement (Exh.PE).
9. The deceased at that time was grazing his sheep. However, prior to the occurrence, the deceased and the appellant Zafar Iqbal studied in the same school. The following excerpts from her cross --examination are relevant and are reproduced below:-- "I do not know whether my husband Ghulam Hussain and his brother Ghulam Hassan P. Ws. Joined the investigation conducted by S.P., Bhakkar and that the accused party had also joined the said investigation. I do not know whether in that investigation many people appeared in favour of Fateh Sher accused, Ghulam Muhammad and Muhammad Ramzan accused with the version that they are innocent in this case."
"I do not know whether 4/5 hundred persons from the adjoining vicinity of Dullawala Town appeared and stated that Fateh Sher, Muhammad Ramzan and Ghulam Muhammad accused are innocent in this case and had been involved falsely by the complainant party. I do not know that in that open Katchery S.P., Bhakkar directed the local police to discharge all the 3 accused in this case."
10. Ghulam Hassan (P. W.8) also a close relation of both sides being the first cousin of Fateh Sher appellant and an uncle of Muhammad Aslam and Zafar Iqbal appellant and brother of Ghulam Hussain, the husband of Mst. Razia Bibi (P.W.7), came to support the prosecution story claiming himself to be an eye-witness. He also identified the dead body of Muhammad Aslam at the D.H.Q.
Hospital. The following excerpts from his statement are relevant to be reproduced below:-- "I had cordial relations with my maternal uncles till today. One Muhammad son of Ghulam Hassan, caste Majlasi resident of Jhammat Shumali is also my Khalazad. I do not know if Mst. Fateh Khatoon aged about 16/17 years is daughter of Said Muhammad son of Ghulam Hassan. It is incorrect to suggest that I am suppressing this fact intentionally that Zafar Iqbal accused was engaged with said Mst. Fateh Khatoon. "
"I do not know that accused Fateh Sher, Ghulam Muhammad and Muhammad Ramzan were declared innocent by Ata Muhammad, S.-I. D.S.P., Kallur Kot, S.P., Bhakkar and Ghulam Jeelani, Inspector Range Crime, Sargodha. I had never talked about the innocence of the accused with my brother Ghulam Hussain or his were Mst. Razia Bibi P.W. I do not know whether my maternal uncles Haji Alain Sher and Haji Muhammad Amir appeared before the various police officers conducting investigation of this case and made oath on Holy Qur'an regarding the innocence of the accused Fateh Sher, Muhammad Ramzan and Ghulam Muhammad."
11. Dr. Khalid Javed (P.W.5) had conducted the post-mortem examination on the dead body of Muhammad Aslam who was aged about 17/18 years at that time, and he found the following injuries on his person:--- (1)A gaping incised wound 35 x 8 c.m. On back of ,kutt left, ear was cut of. Right ear was divided into two parts brain matter was coming out.
(2)An incised wound 10 x 1 c.m. On top of skull, underlying skull bone was cut of.
(3)An incised wound 8 x 1 c.m. On back of skull, 3 c.m. Posterior not injury No.2 underlying bone was fractured.
(4)An incised wound 5 x 1 c.m. On middle of skull, 1 c.m. Apart from injury, No.3.
(5)An incised wound 12 x 1 c.m. On right side of skull 11 c.m. Above right ear underlying bone was divided.
(6)An incised wound on back of right shoulder 3 x 1 c.m. Bone was exposed.
(7)An incised wound 3 x 1 c.m. On right clavicle muscle deep.
(8)An incised wound 5 x 21 /2 c. m. On top of right shoulder-joint.
(9)An incised wound 5 x 2 c.m. On back of right forearm.
(10)An incised wound 4 x 2 c.m. On palm of the right hand.
(11)Index finger of the right hand was amputated at distal end.
(12)An incised wound 6 c.m. x 10 c.m. On middle of left arm bone was divided.
(13)An incised wound 7 x 3 c.m., 1 c.m. Below injury No.12 underlying bone was exposed and was divided.
(14)An amputated wound 17 x 3 c. m. On left wrist-joint, left wrist-joint was divided.
(15)An incised wound 6 x 2 c.m. On back of the left hand underlying bone was cut.
(16)An incised wound 7 x 2 c.m. On back of the left hand 1/2 c.m. Below injury No. 15.
(17)An incised wound 2 x 1 /2 c. m. On back of the left hand's thumb.
The following was his opinion: "In my opinion the death was caused due to injuries Nos. 1 to 6, which were head injuries and fractured bones of skull, brain matter came out and caused haemorrhage and shock and were sufficient in ordinary course of nature to cause death of a person. All the injuries were ante-- mortem and were caused by sharp-- edged weapon."
Exh.PC is his post-mortem report, while Exh. PC/1 is the sketch of injuries.
12. Amongst the formal witnesses are Hafeez Ullah (P.W.1) who carried a sealed parcel containing blood-stained earth to the office of the Chemical Examiner. Muhammad Hassan, A.S.-I. (P.W.2) had kept the same parcel in the Malkhana. Muhammad Ibrahim (P. W.3) had escorted the dead body of the deceased to the mortuary for post-mortem examination and received the last-worn clothes of the deceased which he handed over to the Investigating Officer. Abdul Khalid, Patwari (P.W.4) had prepared the site plans (Exh.PB and Exh.PB/1).
13. Gul Amir (P. W.6) is a witness of the recovery of hatchet from Zafar Iqbal which was taken into possession vide memo Exh. PD and he attested the same alongwith Abdul Majeed, Constable.
14. Ata Muhammad, S.-I., is the Investigating Officer. He recorded the complaint on the statement of Mst. Razia Bibi, P.W. And on the basis of which the F.I.R. Was lodged. He lodged the F.I.R. In the police station. He then went to the spot and prepared the injury statement and inquest report pertaining to the deceased and sent the dead body to the mortuary for post-mortem examination. He secured the blood-stained earth from the spot and sealed it into a parcel. He also secured from the spot a pair of Chappal of a convict through memo. Exh.PH. He prepared the rough site plan and recorded the supplementary statement of Mst. Razia Bibi. He received the last-worn clothes of the deceased and got the proper site plans prepared.
15. He arrested Zafar Iqbal appellant on 28-9-1997 and effected recovery of the hatchet. On the same day, he also arrested other appellants. The following excerpts from his cross-examination are relevant and are re--produced below:--- "I have prepared the report under section 173, Cr.P.C. In this case which is Exh.D.B. It is correct that at the time of arrest of accused Zafar lqbal, his first version before me was that he has murdered Muhammad Aslam deceased due to his indecent character. It is correct that during my investigation, Fateh Sher, Ghulam Muhammad and Muhammad Ramzan accused were found innocent in this case. It is also correct that my investigation regarding the above--said accused was endorsed by SDPO, Kallur Kot. It is correct that in all the successive investigations conducted by the various police officers accused Fateh Sher, Ghulam Muhammad and Muhammad Ramzan accused were found innocent. It is also correct that S.P., Bhakkar had directed me to get discharge accused Fateh Sher, Ghulam Muhammad and Muhammad Ramzan in this case. It is also correct that I had prepared an application for discharging the accused in this case. It is correct that this case was sent up in the Court of Special Judge, Anti-Terrorism Court Act, 1997, Sargodha. "
"It is correct that no recovery of weapon from the accused Ghulam Muhammad, Fateh Sher and Muhammad Ramzan was effected. It is correct that at the time of arrest of accused Ghulam Muhammad and Muhamamd Ramzan their first version before me was that at the time of occurrence they were busy in irrigating their lands. It is also correct that the first version of Fateh Sher accused at the time of his arrest was that he was taking bath at the time of occurrence at his house. It is correct that the investigation conducted by me openly, secretly and in presence of both the parties and thereafter I concluded that all the three accused namely Fateh Sher, Ghulam Muhammad and Muhammad Ramzan were innocent in this case."
16. War Iqbal appellant put up a cross-version by making the following statement during his examination under section 342, Cr. P. C. :-- "As my mother was suffering from T.B., so my maternal uncle persuaded my father to contract second marriage with Mst. Razia Bibi and my father agreeing with their proposal married with Mst.
Razia Bibi. However, my mother remained in the house of my father and gave birth to me thereafter. As the health of my mother deteriorated and needed attendance, so my maternal uncles took her to their house to look after her. I remained in the house of my father. Muhammad Adam deceased and I studied together in the same school and same class and resided with my maternal uncle Muhammad father of Muhammad Ramzan and Ghulam Muhammad my co- accused at Dullawala Town."
"The witnesses did not see the occurrence. The occurrence did not take place as stated by the P.Ws. I was returning to my house when I reached in the land of Aurangzeb Alamgir Rawn where wild bushes are in abundance. I saw the deceased Muhammad Aslam in objectionable condition with Mst. Fateh Khatoon who was engaged to me. I admonished the deceased. Instead of feeling ashamed he became naked and said that he would also fuck my mother. A hatchet belonging to the deceased was lying nearby. I took the hatchet and inflicted injuries to the deceased under grave and sudden provocation. My other 3 co-accused had nothing to do with this occurrence.
They have been involved in order to make the occurrence premeditated one. "
17. The rest of the appellants professed their innocence and claimed that they were falsely involved.
18. The defence produced Exh.DB, a School Leaving Certificate pertaining to Zafar Iqbal appellant.
But the prosecution side in order to contradict this fact about the date of birth, produced Exh.P.C.
Zafar Iqbal appellant was re-examined under section 342, Cr.P.C. And was confronted with the Birth Certificate (Exh.PL) mentioning his date of birth as 24-2-1977. And his reply was that he was informed about his date of birth by his parents.
19. The learned counsel for the appellants has argued that Zafar Iqbal alone had a motive and the recovery too was effected from him. Who has accepted his participation in the occurrence and has explained how it, took place and the reasons for it. That the other three appellants have been involved in this case falsely and this fact came to light during successive investigations, about which a mention has been made by the Investigating Officer in detail. That Ghulam Hassan (P.W,8) did not deny the fact that they were declared innocent by the police. That it has also come on record that the investigation had been done by the S.P. In presence of both the parties who also were confronted inter se.
20. On behalf of the complainant side, it was said that the statement of the Investigating Officer was the opinion of a police officer which was not acceptable in law.
21. The Investigating Officer against his statement which was favourable to the three appellants other than Zafar Iqbal was not cross-examined or re-examined nor was he asked to elucidate any fact. As a matter of fact, the Investigating Officer had tried to bring on record during cross- examination these facts which find reflection in the report under section 173, Cr.P.C. And this is a report which makes mention of those facts whether those were incriminating or otherwise and which he discovered during his investigation. So, it was not merely a concessional statement or opinion in favour of the aforementioned appellants which may have surprised the prosecution.
22. The learned counsel for the appellant was right when he said that if the Investigating Officer were cross-examined, he would have thrown more light on what had transpired during the open investigation carried on by the Circle Incharge and the Superintendent of Police, Bhakar in connection with this case, and about all such persons who came to support the appellants version and about the innocence of the three appellants other than Zafar Iqbal.
23. Obviously, the prosecution is duty bound to establish its case against any accused beyond any reasonable doubt. The defence, however, through the process of cross-- examination, tries to stultify the case of the prosecution. When the defence is able to bring out facts favourable to itself and the prosecution ,even having the opportunity of cross-examinating the witnesses, from whose statements the defence derives a benefit, in fact accepts those facts which come on record and are to be read favourable to the case of an accused.
24. As to why the Investigating Officer was not cross-examined, we find no plausible explanation coming from the complainant side.
25. It was argued on behalf of the learned counsel for the complainant side that the appellants except Zafar Iqbal had in fact raised their plea of alibi and the onus of proving it was on them and which onus they have not discharged because no defence witness came forward in support of their plea.
26. In this connection, reference may be made to the case of Ashiq Hussain v. The State (1993 SCM R 417) which once again lays down emphasis on the principle that the prosecution is duty bound to prove its case and if a defence plea is raised and is not'' established, no benefit accrues to the prosecution nor does it diminish the essential duty of the prosecution of establishing its case.
27. Learned counsel of the appellants also argued that Mst. Razia Bibi could not witness the occurrence because of the intervening sand dune and the sugarcane crop, even if her statement that she was present near the place of occurrence, is to be accepted. Besides, she did not point out the place of her presence to the police.
28. It was stated by the learned counsel for the appellant that Zafar Iqbal at the time of occurrence was, anyhow, a minor. We, however, find that the certificate about his birth which he produced was belied by Exh. PL, submitted by the prosecution, and in his statement under section 342, Cr.P.C.
What he said, is already mentioned above. At this stage, we are not inclined to accept any more evidence in this connection.
29. After hearing the learned counsel from both sides, we are of the view that the prosecution has been able to establish its case beyond any reasonable doubt only against Zafar Iqbal appellant, and the defence was successful in creating a dent as far as the case of the other three appellants is concerned. Consequently, Fateh Sher, Muhammad Ramzan and Ghulam Muhammad appellants are acquitted of the charge while receiving the benefit of doubt.
30. The prosecution has been able to establish its case against Zafar Iqbal appellant who accepts his participation but raised his plea. He produced no evidence to establish that he was engaged to one Mst. Fateh Khatoon. In his first defence before the Investigating Officer, he only made mention about the indecent habits of his step-brother, the deceased, and did not talk about what he had seen, which led to the provocation. It, will even otherwise be too much to stretch the plea of provocation in a case like in hand, where the accused has furnished no proof of his formal engagement with the girl whom he found with the deceased in a compromising position. Anyway, for a girl of such a character and while keeping in view the background aforementioned, his plea cannot be accepted as a ground for mitigation. Which if at all is available is available to honourable people whose honour is disturbed. Even they are not supposed to kill but they do get benefit in the area of punishment because of their frailty destitute of wickedness.
31. We do not accept the plea of Zafar Iqbal appellant who has caused so many injuries to the deceased and is responsible for this brutal murder which may be on account of some other reasons like jealousy and hate etc. We, therefore, uphold his conviction and sentence and confirm his death sentence while dismissing the Appeal bearing No.632 of 1998 to his extent, while this appeal to the extent of other three appellants is accepted.
32. In view of our above observations, the Criminal Revision No.386 of 1998 is dismissed and the Murder Reference No.275 of 1998 is answered in the negative to the extent of appellants/convict Fateh Sher, Muhammad Ramzan and Ghulam Muhammad, while the Murder Reference to the extent of Zafar Iqbal appellant is answered in the positive.