2007 PLP 2847 (YLR)

IJAZ AHMAD CHAUDHRY, J--This judgment will dispose of Criminal Appeal No.1300 of 2002 filed by Muhammad Arshad (appellant) against his conviction and sentence along with Murder Reference No.31 of 2003 sent by the learned trial Court under 'section 374, Cr.P.C. for the confirmation of death sentence awarded to the aforesaid appellant, as both the matters have arisen from the same judgment dated 29-7-2002 through which the learned Addl. Sessions Judge, Faisalabad had convicted the appellant under section 302(b), PPC and sentenced him to death for the murder of Muhammad Saeed (deceased) subject to confirmation by this Court. However, the appellant was acquitted from the charge of murder of his sister Mst. Shahida Parveen on the basis of compromise. We propose to decide both these matters together through the present consolidated judgment.

2. The occurrence in the present case had allegedly taken place on 15-9-2000 at 12-30 (mid-night) in the area of Chak No. 114/J.B situate at a distance of 11-miles from the Police Station Chak Jhurma, District, Faisalabad and the matter was reported by Muhammad Rafique, complainant (P.W.8) father of Muhammad Saeed (deceased) at 12-30 (night) on 15-9-2000 through statement (Exh. PE) recorded by Muhammad Khalid, A.S,I. (P.W.11), on the basis of which formal F.I.R No. 667 of 1997 (Exh.PE/1) was drafted by Muhammad Ansar, H.C/ Moharrar (P.W.3) on the same night at 3-10 a.m at Police Station Chak Jhumbra, District Faisalabad.

3. The brief facts got recorded by Muhammad Rafique complainant (P.W.8) in the F.I.R. (Exh.PE/1) are that' he was the resident of Chak No.114/J.B and cultivator by profession. Muhammad Saeed Khurram, son of the complainant was employed in a Hosiery, situated at Millat Road, Faisalabad, who usually returned from his duty in late hours. On the night of occurrence, he did not come' to the house till 12-00 (mid-night) and the complainant went out to see him. At about 12-30 (mid-night), the complainant was going in the, Bazar of said village, he saw his son Muhammad Saeed coming towards' his house, who when reached near the house of Muhammad Sharif Jatt, all. of a sudden Muhammad Arshad (appellant) emerged there while armed with double barrel gun, who while coming near to Muhammad Saeed, made fire hitting on right side of his neck. The latter fell on the ground and succumbed to the injuries at the spot. Then the accused-appellant went to his house. The complainant then heard the voice of 2/3 consecutive fires from his house. On hearing the' sound of firing, Ali Ahmad (P. W.9) and Shaukat Ali (P.W not produced) also attracted to the spot. Then all of them rushed to the house of Muhammad Arshad (appellant) abruptly and Mst. Shahida Parveen was found there lying dead after receiving the said 2/3 fire shots. According to the complainant at that time, the other family members of Muhammad Arshad (appellant) i.e. his two brothers Aslam and Afzal, father Muhammad Sharif and womenfolk were present in. this house, whereas Muhammad Arshad (appellant) was available on the rooftop while armed with double barrel gun. The occurrence was witnessed in the light of the bulb and the moon.

4. The motive behind the occurrence was alleged that appellant was suspecting that his sister Mst. Shahida Parveen (deceased) had illicit relations with Muhammad Saeed (deceased) and he thus committed qatl-i-amd of both the deceased.

5. After recording the statement (Exh.P.E) of complainant (P.W.8), Muhammad Khalid, A.S.I./Investigating Officer (P.W.11) sent the same to the Police Station Chak Jhumra, Faisalabad for registration of case through Rashid Khan C-1742. There-after the Investigating Officer (P.W.11) went to the place of occurrence, where the dead bodies of Mst. Shahida Parveen and Muhammad Saeed were lying, he inspected the dead body of the deceased, prepared inquest reports and injury statements of both the deceased, namely Muhammad Saeed and Mst. Shahida Parveen. Then the Investigating Officer submitted an application (Exh. PK) to the doctor (C.M.O) Civil Hospital, Chak Jhumra for conducting the post-mortem examination of the deceased and after receiving the copy of F.I.R (Exh. PE/1), he sent the dead bodies of deceased to the mortuary for the post-mortem examination. Then, he inspected the spot, prepared rough site plan Exh.PM, collected blood-stained earth from both places, which was taken into possession vide recovery memo. Exh.PF & Exh. PN/1 attested by the P.Ws. The Investigating Officer also recorded the statement of P.Ws. under section 161, Cr.P.C. After the post-mortem examination of both the dead bodies, Mukhtar Ahmad Constable No.4278 presented before the Investigating Officer the post-mortem reports Exh.PJ and Exh.PB, last worn clothes of the deceased Qameez P-1, Bunyan' P-2, Chadar P-3 and Phial regarding Muhammad Saeed, deceased and also shirt P-4, Shalwar P-5 all blood stained, an envelop containing pallet and parcel of swabs regarding the deceased Mst. Shahida Parveen which were taken into possession vide recovery memo. Exh.PA attested by Mukhtar Ahmad Constable (P.W.1). He handed over the same to the Moharrir on the same day. On 17-9-2000, Aurangzeb, Draftsman (P.W.7) was summoned, who inspected the spot on the pointation of prosecution witness and scaled site plan (Exh.PG) was handed over to the Investigating Officer on 30-9-2000. The Investigating Officer arrested Muhammad Arshad (appellant) on 15-9-2000 and got his physical remand, who during the investigation on 22-9-2000 led to the recovery of Gun P-6 along with its licence P-7 from his residential house, which was taken into possession vide recovery memo Exh.P.O. attested by Ali Ahmad and Shaukat P.Ws, who also got their statement recorded under section 161, Cr.P.C.

6. After completion of investigation, report under section 173 Cr.P.C. was submitted in the Court. The copies of the documents required under section 265-C Cr.P.C. were supplied to the appellant, the charge was framed which was denied by him and he claimed to be tried.

7. The prosecution in order to prove its case produced as many as 11-witnesses. The account was furnished by Muhammad Rafique, complainant (P.W.8) father of Muhammad Saeed deceased and Ali Ahmad, whereas medical evidence was furnished by Dr. Abdul Shakoor (P.W.2), who conducted the post-mortem examination of Muhammad Saeed (deceased) and Dr. Nuzat Afzaal Cheema (P.W.10), who conducted the post mortem examination of Mst. Shahida Parveen and investigation had been conducted by ASI/I.O.(P.W.11). The remaining witnesses are of formal nature. After tending the reports of Chemical Examiner Exh.PM & Exh.PN and report of Serologist Exh.PO, the prosecution closed its evidence.

8. After the close of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. who denied the allegations and professed his innocence. However, to a question that "why this case against you and why the P.Ws. deposed against you?" Muhammad Arshad (appellant) made the following reply: "It is a false case, P.Ws. are related inter se with each other and blackmailers. They have deposed falsely at the instance of the complainant. They had not witnessed. Since, it was a blind murder. On the fateful day, I saw both the deceased while committing Zina with each other. I was on the top of roof of my house. I was having a licensed gun with me. On seeing them in compromising position. I did not control my feelings and on account of "Ghairat" and sudden provocation, I killed both the deceased. I myself informed the police. I was student of 4th year at that time. I produced photocopy of licence Exh.DA, attested copy of the certificate from the Government College for Elementary Teachers, Faisalabad two pages as Exh. DB, original copy of certificate of Taleem-ul-Quran Exh. DC, original copy of certificate of Imtiaz as Exh.DD and copy of Board of Intermediate and secondary Education Faisalabad as Exh.DE." The appellant-accused did not opt to make the statement under section 340(2) Cr.P.C. and had also not produced any witness in his defence.

9. The learned trial Court after hearing the arguments of both the parties had passed the impugned judgment of conviction and sentence against appellant. Hence, both these matters before this Court.

10. The learned counsel for the appellant has contended that both the eye-witnesses Muhammad Rafique (P.W.8) and Ali Ahmad tP.W.9) were related inter se and with Muhammad Saeed (deceased), who had no occasion to be present at the spot during the odd hours of night and were chance witnesses; that they could not see the incident during the odd hours of night which had been taken place in the house of the appellant; that the post-mortem examination had been conducted with the delay, which shows that the F.I.R. was not got recorded at the time .given by the prosecution; that the prosecution itself admitted that the appellant had suspicion of illicit relations between both the deceased, who were murdered during the mid-night and after the investigation, the Investigating Officer and other police officers also had come to the definite conclusion that they were in compromising position when the murder was committed by the appellant (real brothers of Mst. Shahida Parveen, deceased);that at the most the offence falls under section 302(c), P.P.C. and the appellant may be sentenced to the period already undergone by him as he is behind the bars since 15-9-2000.

11. The learned Addl. Prosecutor General on behalf of the State has opposed this criminal appeal on the ground that both the eye-witnesses had no enmity or grudge to falsely implicate the appellant in the present case, whose statements are trust-worthy being supported by the medical evidence and the F.I.R was got registered with promptitude, which eliminated the possibility of concocting false story; that the eye-witnesses had fully proved their presence at the spot and proving the case against the appellant beyond any shadow of doubt and that recovery of weapon had been effected from the appellant, whose conviction and sentence may be maintained.

12. We have heard the arguments advanced by the learned counsel for the parties and perused the record with due care and caution.

13. The incident in the present case had taken place, according to the prosecution own case on 15-9-2000 at 12-30 (mid-night) in front of house of the appellant, whereas the statement (Exh.PE) of the complainant (P.W.8) was recorded by Muhammad Khalid, A.S.I. (P.W.11) at Sheikh Chowk on the same night at 2-45 a.m, on the basis of which formal F.I.R (Exh.PE/1) was recorded at 3-10 a.m, but on the other hand complainant while appearing as P.W.8 stated that the police came at the spot and recorded his statement and other P.Ws. Habib Ahmad (P.W.5) also explained during the cross-examination that the police had recorded the statement of complainant (P.8) and Ali Ahmad (P.W.9) at the spot. If it is presumed that the statement of the complainant had been recorded at 2-45 a.m. on the same night and then the Investigating Officer after reaching the place of occurrence inspected the dead bodies of both the deceased, prepared the necessary documents and sent the dead bodies of the deceased to the mortuary, but it is very strange that the post mortem examination on both the dead bodies had been conducted at 3-00 p.m. without any explanation which leads to draw an inference that the police papers could not be prepared with such promptitude as claimed by the prosecution and it was a case of delayed F.I.R. So the F.I.R cannot be used as a corroborative piece of evidence and the prosecution version has to be seen with utmost care and caution.

14. To prove the ocular account, the prosecution produced Muhammad Rafique (P.W.8), real father of Muhammad Saeed (deceased) and Ali Ahmad (P.W.9), "Tayazad" of the complainant. So both the eye-witnesses were related inter se and with the deceased closely. However, mere close relationship was not sufficient to discard their evidence as there was no previous enmity between the parties and they cannot be declared as interested witnesses. However, the P.Ws were bound to first prove that they were present at the spot and they had given true account of the occurrence. The complainant during the cross-examination admitted that he was the resident of about 2-1/2 or three acres from the place of occurrence and Ali Ahmad (P.W.9) and Shaukat Ali (given-up) were further residing at a distance of 2/3 acres ahead of the house of the complainant. The incident had taken place during the mid-night and the eye-witnesses were bound to explain reasonable cause for their presence at the spot. In the F.I.R., the complainant only stated that when the deceased did not return from his job on the night of occurrence, he, as per chance, went to the house of the appellant in search of the deceased Muhammad Saeed. However during the cross-examination, he .showed inability to produce any documentary evidence in support of his narration that Muhammad Saeed (deceased) had been working in Khurram Hosiery during the days of incident. The complainant even failed to give exact duty hours of Muhammad Saeed (deceased) in the Hosiery. It was complainant's, own version that the deceased Muhammad Saeed used to come home in the late hours of night, but he failed to give any special circumstances to make a search for him on the night of occurrence and also did not give the places where 'he, had gone for such-purposes or whether he had inquired about him from the factory. It is also not believable that after half an hour of starting his search at 12-00 (night) the complainant had hardly covered 3-acres distance to reach near the house of the appellant, where the occurrence was alleged to have taken place at about 12-30 (mid-night). Thus the sole statement of the 'complainant is not sufficient to believe that he was present at the spot during the odd hours of night coupled with the fact that we have already held that the F.I.R had not been got recovered with such promptitude as claimed by the prosecution. The statement of other alleged eye-witness namely Ali Ahmad (P.W.9) is out of consideration, who as per his own narration in the Court had not witnessed the occurrence, and he was got declared hostile by the prosecution, but during the cross-examination by the learned Prosecutor nothing incriminating material could be brought on the record to connect the appellant with the commission of the alleged crime. The sole statement of the complainant (P.W.8) without any just reason for being present at the spot cannot be accepted to prove the ocular account. It is also an unplausible story that the real son of the complainant had been lying at the spot after having been fired at by the appellant, but the complainant without attending him first to know his condition followed the appellant and entered the house of the appellant after hearing voice of 2/3 more fire shots where they found Mst. Shahida Parveen sister of the appellant lying dead/in injured condition. This was an unnatural conduct on the part of the complainant and if the occurrence had taken place in such a manner, there was every possibility that the complainant would also have been fired at by the appellant to vanish the evidence against him, who had chosen the dark hours of night to commit this occurrence to conceal his identity. The occurrence was allisged to have taken place in a thickly-populated area, but no body from the neighbourhood of the place of occurrence had been joined during the police investigation to substantiate the prosecution version or produced in the Court. As such, we have no hesitation in holding that the ocular account furnished by the prosecution is not trustworthy, which cannot be relied upon for maintaining the conviction in a case of capital sentence.

15. In view of the above discussion, we are of the view that the prosecution had not been able to prove the case of Qatl-i-Amd against the appellant through any cogent evidence and the witnesses produced by the prosecution could not establish their presence at the spot. On the other hand the appellant had taken a specific plea, which has been reproduced in Para. No.8 ante that he had acted in the state of grave and C sudden provocation as during the odd hours of night he had seen his sister Mst. Shahida Parveen deceased in compromising position with Muhammad Saeed (deceased). We have noticed that the motive set-up by the prosecution itself was that the appellant had a suspicion about illicit relations of Muhammad Saeed (deceased) with his sister Mst. Shahida Parveen (deceased) and they both had been done to death during the odd hours of night. The version of the complainant that at the time of occurrence, Muhammad Saeed (deceased) was returning from his job, has been found false by us in the preceding paragraphs. There was every possibility of him being present in or near the house of the appellant due to the reason narrated by the appellant in his statement under section 342, Cr.P.C. Mst. Shahida Parveen (deceased), real sister of the appellant admittedly was unmarried girl, but the medical evidence proved that she had been used to sexual intercourse, her hymen was found absent and the vagina admitted two fingers easily. The three vaginal swabs taken by the Doctor (P.W.10) during the post mortem examination were found to be stained with semen as per report of the Chemical Examiner (Exh.PM). As such the medical evidence and the circumstances of the case give full support to the defence plea. The I.0.(P.W.11) during the cross-examination also proved that the defence plea taken by the appellant during the trial was his first version during the investigation ' after his arrest and it was concluded that both the deceased had been done to death due to said reason. Even otherwise, it is settled principle of law that if the prosecution version is disbelieved and the conviction has to be based on the sole defence plea of the accused taken in his statement under f section 342, Cr.P.C, the same has to be believed or rejected in toto and not in piecemeal to suit the prosecution version. The judgment reported as Sultan Khan v. Sher Khan and others (PLD 1991 SC 520) is referred.

16. The recovery of weapon from the appellant was legally inconsequential as no empty had been recovered from the spot and it cannot be said that the same weapon had been used by the appellant during the occurrence. '

17. The motive set-up by the prosecution was although admitted one by the appellant, but the prosecution has failed to prove that the appellant had committed this occurrence in the pre-planned manner. Such is the position with regard to the medical evidence, which though shows that both the deceased had been done to death through firearm injuries, yet it cannot support the ocular account, which has already been disbelieved by us.

18. The point before us is as to what offence would attract for causing death of both the deceased. The circumstances discussed above in which the occurrence had taken place and the defence plea putt forth by the appellant fury lead us to drawn an irresistible conclusion that it was not a case of Qatl-i-amd (culpable homicide amounting to murder) and the Honorable Supreme Court of Pakistan in a case reported as "Ali Muhammad v. Ali Muhammad and another" (PLD 1996 SC 274) has held that there should be no doubt that the cases covered by the exceptions to the old section 300, P.P.C. read with old c section, 304 thereof, are cases which were intended to be dealt with under clause (c) of the new section 302 of the P.P.C.

19. In view of above discussion we have no hesitation in holding that con viction and sentence under section 302(b), P.P.C. recorded by the learned trial Court against the appellant cannot be maintained, which is set aside and in the alternative he is convicted under section 302(c), P.P.C. H and sentenced to seven years' R.I. How-ever, the direction, for payment of com pensation is not maintained as the deceased was not Masoom-ud-dam, who had provoked the appellant while indulging in indecent act. The benefit of section 382B, Cr.P.C. will also be given to the appellant.

20. With the above alteration in the conviction and sentence of the appellant, the impugned judgment stands modified and Criminal Appeal No.1300 of 2002 filed by the appellant is disposed of accordingly.

21. Murder Reference No.31 of 2003 seeking confirmation of death sentence awarded to the appellant by the learned trial court is replied in the negative and the death sentence awarded to the appellant by the learned trial Court is NOT confirmed. N.H.Q./M-189/L Order accordingly.