2008 P Cr (PLP)

MUHAMMAD FARRUKH MAHMUD, J.

The appellant Muhammad Akram along with Shamshad and Falak Sher was tried by Malik Nazir Ahmad, learned Additional Sessions Judge-II, Chunian, in a private complaint filed by Muhammad Hussain/complainant against Muhammad Akram, Shamshad, Falak Sher, Shah Muhammad and Ashiq for offences under sections 302/148/149/109, P.P.C. for causing the murder of Muhammad Rafiq. Vide judgment dated 14-2-2004 the learned trial Court, while acquitting the aforesaid co-accused, convicted the appellant for offence under section 302(b), P.P.C. and sentenced him to death plus payment of rupees one lac as compensation to the legal heirs of the deceased or in default in payment thereof the convict was to further undergo S.I. for six months.

2. Muhammad Akram, convict/appellant, has questioned the legality of his above-noted conviction and' sentence by filing the instant appeal, while the learned trial Court has also made a reference bearing Murder Reference No.336 of 2004, seeking confirmation or otherwise of death sentence imposed upon the appellant, whereas Muhammad Hussain complainant has challenged the acquittal of Shamshad and Falak Sher through P.S.L.A. No.19 of 2004. All these matters are being decided through this consolidated judgment.

3. The brief facts of the case per complaint Exh.P.B. filed by Muhammad Hussain, complainant/P. W.1, against Muhammad Akram appellant, Shamshad, Falak Sher alias Pappu, both acquitted accused, Shah Muhammad and Muhammad Ashiq (not tried) are that on 8-2-2002 at about 10-30 a.m., the complainant along with his son Muhammad Rafiq was going to Chunian in connection with some business. When they reached at Meer Kot Canal near the Dera of Rahmat Ali, all of a sudden, Muhammad Akram armed with .12 bore gun, Shamshad and Falak Sher alias Pappu, armed with rifle, surprised them and asked Muhammad Rafiq that he had been told many a time that they would not pay Rs-36,000 to him, why he had been sending Panchayat for that purpose to them and was not refrained from doing so despite warning. Shamshad raised Lalkara to catch hold of Rafiq and teach a lesson to him for demanding the aforesaid amount, whereupon Muhammad Akram, Shamshad and Falak Sher alias Pappu put Chaddar on his neck and dragged hire to their Barseem crop and gave fist blows to him. While the complainant was beseeched the accused for Muhammad Rafiq, Falak Sher alias Pappu fired from his rifle hitting Muhammad Rafiq on his right palm. Then Muhammad Akram fired, hitting Muhammad Rafiq on the right upper side of his abdomen. On hearing the noise of fire shots, Khalil Ahmad/P. W.3, Nazir Ahmad (dot produced) and Niamat Ali/P.W.2 also reached the spot and saw the occurrence. The accused while firing decamped from the scene of occurrence. Muhammad Rafiq succumbed to injuries on the spot. The motive behind the occurrence was that 10/12 days prior to the occurrence, Shah Muhammad son of Wali and Muhammad Ashiq son of Allah Ditta said in the presence of Muhammad Sarwar and Nazir Ahrnad that they would not return the amount to Muhammad Rafiq and had also told their brothers and relatives that if Muhammad Rafiq demanded back the amount, he would be done to death. Muhammad Akram, Falak Sher alias Pappu and Shamshad committed the murder of Muhammad Rafiq on the abetment and instigation of Shah Muhammad and Muhammad Rafiq. The complainant lodged F.I.R. against the accused but as the accused were influential persons and had the assistance of local political figures, the police was bent upon to cancel the case. Hence, the instant complaint. The contents of the complaint as well as that of F.I.R. are the same.

4. On receipt of the inquiry report from the learned Judicial Magistrate, the learned Additional Sessions Judge-I, Chunian, vide order dated 14-2-2003 summoned Muhammad Akram, Shamshad and Falak Sher alias Pappu as accused to face trial, while Shah Muhammad and Ashiq were not summoned. Meanwhile, vide order dated 8-2-2003 of the learned Sessions Judge, Kasur, the challan case was entrusted to the Court of learned Additional Sessions Judge-II, Chunian, wherein Muhammad Akram, Shamshad and Falak Sher put in their appearance. The complaint case was also subsequently entrusted to the Court of learned Additional Sessions Judge-II, Chunian, who started proceedings in the complaint case. As the accused denied the charge and claimed to be tried, the trial commenced.

5. To substantiate its version at the trial, prosecution produced twelve witnesses. Ocular account was furnished by Muhammad Hussain, complainant/P.W.1, Niamat Ali/P.W.2 and Khalil Ahmad/P.W.3. In addition to that, Muhammad Hussain also stated about the motive as given in the F.I.R. as well as the private complaint. He also stated about the recording of his statement Exh.P.A. with Azmat Hayat, Inspector, on the basis of which F.I.R. Exh.P.A./1 was registered. He added that feeling dissatisfied with the investigation conducted by the local police, he filed the instant complaint. Dr. Muhammad Mushtaq/P. W.4 conducted post-mortem examination on the dead body of Muhammad Rafiq on 8-2-2002 and found ten injuries (1 to 10) on the person of the deceased. In the opinion of the doctor, the deceased died of acute cardio pulmonary arrest as a result of haemorrhage shock caused by injuries Nos.1 and 2, caused by fire-arm weapon, as a result of single shot. Injury No.3 was most probably caused by impact of the muzzle and of the barrel of the gun. Injuries Nos.7 and 8 were caused by teeth bites, while the rest of the injuries were caused by blunt weapon and by falling against hard subject. According to the doctor, Injuries Nos.1 and 2 were collectively sufficient to cause death in ordinary course of nature. Probable time between injuries and death was within half an hour, while between death and post-mortem examination it was four to eight hours. Muhammad Iqbal/P.W.8 stated about the collection of blood-stained earth, two empties of cartridges of .12 bore gun and one empty of .7 mm rifle by the Investigating Officer through recovery memos Exhs.P.F. and P.G. Master Muhammad Sadiq, Draftsman/P.W.9 stated about the preparation of scaled site plan Exh.P.11. Khushi Muhammad, A.S.-I./P.W.10, stated about the recovery of .7 mm rifle 13.7 with a stuck up bullet and that of .12 bore gun and P.8 effected at the instance of Muhammad Akram-appellant and Shamshad (acquitted accused) respectively. Muhammad Arif, S.I./P.W.11, stated about the registration of formal F.I.R. Exh.P.A./1 on the basis of complaint Exh.P.A. Azmat Hayat, Inspector/P.W.12, stated about the drafting of complaint/statement Exh.P.A. at the instance of the complainant, its despatch to the police station for registration of formal F.I.R. and the" investigation thereafter. During investigation, he found Shah Muhammad, Muhammad Ashiq and Falak Sher as innocent. However, as the Judicial Magistrate did not agree with his report to the extent of Falak Sher, he submitted challan against Muhammad Akram, Shamshad and Falak Sher. The rest of the witnesses, being formal in nature, need not be discussed. After placing on record the report of Chemical Examiner Exh.PP, the prosecution closed its side.

6. In their statements recorded under section 342, Cr. P. C., the accused pleaded their innocence and false implication to the case. Muhammad Akram appellant stated as under:- "The deceased Rafiq was a notorious gangster and was also known as hired assassin, along with his companion, had come to my fields (Paily) for squeezing `Jagga tax' duly armed. First of all Rafiq deceased not only pointed his .7-mm rifle towards me but also fired in my feet and exhorted me to run towards my Dhari, I refused this command upon which he made a second shot which fortunately missed and stuck up. I thereby finding an Opportunity rushed and grappled with Rafiq deceased. In this scuffle gave two/three teeth bites on his face and also squeezed his testicles which gave him a great deal of pain. Consequently, in great anguish Rafiq deceased asked his companion (unknown assailant) as to why he was not firing with his gun. Will he fire only when I am killed by Akram? Upon which the unknown assailant fired at me. I was since grappling Rafiq deceased; therefore, the consecutive gun shots made by the said assailant not only hit the deceased at his belly but also at my left knee. The deceased had died on account of the firing of his companion (unknown assailant). Neither the other accused namely Falak Sher and Shamshad were present nor the P.Ws. at the spot at the time of occurrence, what to talk of the co-accused Falak Sher and Shamshad being armed and the presence of the P.Ws. P.Ws. have only deposed being related to the deceased but even then P.W. Niamat Ali in his examination-in-chief before this Honourable Court categorically admitted that neither he had seen the occurrence nor any P.W. was there witnessing the occurrence. The P.Ws. not even subsequent to the occurrence had reached at the spot. It was the police who called them subsequently that is why no body except the P.Ws. was present at the spot when the police first visited the spot. P.W. Khalil Ahmad while joining the investigation admitted this fact that he along with his father P.W. Muhammad Hussain reached at the spot after hearing the reports of firing and when they reached at the spot, the occurrence had already been taken place." The acquitted accused Shamshad and Falak Sher denied their presence at the spot and added that they, being closely related to the Muhammad Akram, were implicated falsely in this case. None of the accused appeared as witness under section 340(2), Cr.P.C. However, they produced Sarfraz Mahmood Khan Lodhi, D.S.P., as D.W.1, who stated that after his investigation, he recorded 1he conclusion- that the accused nominated in the F.I.R. were not guilty of the occurrence, whereas the companion of the deceased trade fire shot due to which the deceased was murdered at the spot.

7. Learned counsel for the appellant submits that both the witnesses were related to the deceased and were chance witnesses who could not explain their presence at the time of occurrence; that both the eye-witnesses dishonestly improved their statements before the learned trial Court; that the ocular account is totally belied by the medical evidence; that the recovery evidence also shows that Muhammad Rafiq deceased was the aggressor; that the defence plea is borne out from the circumstances of the case and the investigation; that though the motive as alleged in the F.I.R. yet the same could not be proved; that the motive was attributed to Shah Muhammad and Ashiq whose acquittal has not been challenged.

8. Conversely, learned counsel for the complainant submits that it was a daylight occurrence; that Khalil Ahmad though was brother of the deceased yet he had no previous enmity or ill-will against Muhammad Akram so as to involve him in a false case; that similarly, the complainant had no ill-will or grudge against Muhammad Akram to depose against him; that the ocular account is fully supported by the Medical evidence, as the deceased lost his life due to fire-arm injuries; that the injures caused by blunt weapon were explained by the complainant in the F.I.R. itself, wherein it was stated that the deceased while being dragged was given beating by the accused; that the prosecution case was proved by trustworthy direct evidence and that the statement of Niamat Ali would be of no help to the accused, as he has simply stated that he came after the occurrence; that as the occurrence stood admitted by Muhammad Akram appellant, the' burden of proving his defence plea shifted upon him in accordance with the provisions of Article 121 of the Qanun-e-Shahadat Order, 1984; that Muhammad Akram miserably failed to prove his defence plea; that the defence plea was an afterthought, as the appellant remained absconder and was arrested after twenty days of the occurrence and had sufficient time to manoeuvre his defence; that though it was suggested to the complainant that the deceased was involved in many cases but no F.I.R. was brought on the record of the case; and that no such question was asked from the Investigating Officer, whether, the deceased was involved in many cases or not.

9. Learned Additional Prosecutor-General for the State, while adopting the line of arguments of the learned counsel for the complainant, has supported the judgment passed by the learned trial Court.

10. We have heard the learned counsel for the parties at a great length and have also gone through the record.

11. The occurrence took place at about 10-30 a.m. on 8-2-2002. Azmat Hayat/P.W.12, Inspector, Police Station Chunian went to the field belonging to Muhammad Akram in village Sattoki and recorded the statement of Muhammad Hussain complainant Exh.P.A. at 11-30 a.m. The relevant facts per F.I.R. are that on the fateful day, complainant and his son Muhammad Rafiq were going to Chunian in lieu of some business. When they reached near the Dera of Rahmat Ali situated near Canal Meer Kot, they were surprised by Muhammad Akram, appellant, who was armed with .12 bore gun, his brother Shamshad empty-handed and Falak Sher alias Pappu, who was armed with rifle. The accused asked that despite forbidding, the complainant and his son did not stop from demanding Rs.36,000 and kept on sending Panchayat to the accused. Thereafter, Shamshad raised Lalkara to catch hold Muhammad Rafiq and teach him a lesson for demanding the money. Akram, Shamshad and Falak Sher put a Chadar around the neck of Rafiq and dragged him to their Barseem field where the accused gave beating to Rafiq with fist blows while the complainant was begging the accused to spare his son, Falak Sher fired with his rifle which hit on the right palm of Muhammad Rafiq. Thereafter Muhammad Akram fired from his .12 bore gun which hit on the right upper side of his abdomen. The report of firing attracted Khalil Ahmad/P.W.3, Nazir Ahmad and Niamat Ali/P.W.2 to the spot, who saw the occurrence. The accused left the spot while firing. Rafiq died on the spot. It was further stated that 10/12 days prior to the occurrence, Shah Muhammad and Muhammad Ashiq (not tried) stated in the presence of Muhammad Sarwar and Tanvir Ahmad that they would not return the amount due to Rafiq and had instructed their relatives to murder Rafiq in case the money was demanded. The complainant concluded by stating that Akram, Falak Sher and Shamshad committed the offence on the instigation of Shah Muhammad and Muhammad Ashiq. Feeling dissatisfied with the investigation, complainant on 11-9-2002 i.e. after seven months of the occurrence, filed complaint Exh.P.B. against Akram, Shamshad, Falak Sher, Shah Muhammad and Ashiq. The contents of the complaint and the F.I.R. are the same. It was mentioned in the complaint that as the police was bent upon cancelling the case, the complaint was filed. Shah Muhammad and Muhammad Ashiq/respondents Nos.4 and 5 of the complaint case were neither summoned nor tried by' the learned trial Court. Out of the accused, Muhammad Akram gave his own version of the occurrence which has been reproduced in Para 6 ante. It is a case of two versions. Both are to be put together in order to ascertain as to which of two was true or closer to the truth.

12. In order to prove his case, Muhammad Hussain complainant, father of the deceased appeared as P.W.1; Khalil Ahmad, brother of the deceased, appeared as P. W.3; Niamat Ali whose name was mentioned in the F.I.R. as well as in the complaint appeared as P.W.2. But he stated that when he reached the spot, Muhammad Rafiq had already been murdered and he did not see any assailant near the dead body. He was declared hostile and cross-examined by the complainant as well as the defence. The complainant claimed that he and the deceased were going to Chunian in lieu of some business, on the fateful day. However, the complainant could not explain the nature of the business which he and his son had at Chunian. The complainant also made dishonest improvement by stating before the learned trial Court that the accusedfired shot in the presence of the P.Ws., while according to the F.I.R. and the complaint, the P. Ws. were attracted towards the spot after hearing the report of the firing. According to the complainant, the accused put a Chadar around the neck of Muhammad Rafiq deceased and they dragged him from near the Dera of Rahmat Ali to the Barseem field owned by the accused. Perusal of the site plan Exh.P.H. reveals that in between Barseem field and the Dera, there were solling, the canal running, canal bank, pavement around the canal bank, then wheat field belonging to Akram and then the field where the deceased was done to death. No marks of dragging were observed by the doctor. No independent witness was produced to prove that he had seen the accused dragging Muhammad Rafiq from the Dera towards the field. The Investigating Officer conceded that he had not mentioned the marks of dragging in 'the rough site plan as prepared by him soon after the occurrence. It is not likely that in daylight the accused would keep on dragging the deceased to invite attention of all the passers-by. In the above noted circumstances, it appears that the story of dragging was carved out to justify the story of complainant and the deceased going together to Chunian and there being surprised by the accused. Khalil Ahmad also made dishonest improvements before the learned trial Court by stating that he heard the noise and saw the accused dragging his brother towards the field of Akram and that within his view Falak Sher caused first fire; Akram caused the second fire. He was duly confronted with his earlier statements. Needless to say that in his first statement, the complainant, who claimed to be throughout with the deceased, himself stated that the witnesses were attracted after the noise of causing of the first fire. As far as Niamat Ali is concerned, it has already been noticed above that he stated before the learned trial Court that when he reached the spot, Muhammad Rafiq had already been murdered and no assailant was around him. He was cross-examined by both the parties. During cross-examination by the defence counsel, he stated that when he rushed towards Rafiq, at that time Muhammad Hussain complainant and Nazir were with him. However, it would be better not to rely on any portion of the statement of this witness, as he was capable of changing colours at any time and at the same time had been favouring the complainant party as well as the accused. His statement is not worth considering. The claim of Muhammad Hussain/P.W.1 and Khalil Ahmad/P.W.3 that they had C witnessed the occurrence is belied by the unchallenged medical evidence. According to P.W.4 Dr. Muhammad Mushtaq, who conducted post-mortem examination on the dead body of the deceased, injury No.7 consists of six teeth marks with bruising of intervening area on left cheek, while injury No.8 consists of six teeth marks on left cheek without bruising of the intervening area. In case the P. Ws. had been present, they could not miss these two injuries and must have described as to which of accused had bit the deceased. It is also noteworthy that both these witnesses claimed that Falak Sher caused fire-arm injury on the right palm of the deceased, while according to the doctor injuries Nos.1 and 2 were caused by a fire-arm and were the result of a single shot. Injury No.3 which was on front of the abdomen and was a bruise was caused by impact of the muzzle and of the barrel of the gun. Injuries Nos.7 and 8 were caused by teeth bites, while the rest of the injuries were caused either by blunt weapon or by falling against hard subject.

13. It was stated in the F.I.R. that the S.H.O. reached the spot when the complainant was about to leave for the police station to report the matter. Sensing that there was no fun to keep on sitting with the dead body instead of reporting the matter to the police and leaving the dead body in the, care of the P. Ws., the complainant made dishonest improvement by stating before the learned trial Court that Nazir Ahmad P.W. went to the police station and then the police came at the spot. Of course, Azmat Hayat, Inspector/P.W.12, did not own the story of receiving information through Nazir Ahmad. During cross-examination, he, explained that he had received the information at Lorry Adda, Chunian, which was adjacent to the police station, through public at large and that he was not aware of the informer.

14. According to the complainant, the motive behind the occurrence twos that 10/12 days prior to the occurrence, he asked Samar and Nazir to ask Shah Muhammad and Muhammad Ashiq to return their money. 'When Nazir Ahmad etc. asked Shah Muhammad and Ashiq to return money to Rafiq, then Ashiq and Shah Muhammad threatened that they would not return any money to Rafiq and they had asked their men that as and when Muhammad Rafiq came in front of them, he should not be spared. No direct motive was alleged against Muhammad Akram appellant. Shah Muhammad and Muhammad Ashiq were never tried. In support of the motive, neither Sarwar nor Nazir was produced before the learned trial Court. More importantly, Khalil Ahmad, brother of the deceased, did not say a word about the motive. If any amount was due to Rafiq, then at least Khalil should have known. The prosecution miserably failed to prove the 'motive.

15. As far as recovery evidence is concerned, according to memo. Exh.P.J., on 20-3-2002 Muhammad Akram appellant led the Investigating Officer to his house and got .7 mm rifle recovered, which according to the memo. belonged to Muhammad Rafiq deceased and was taken to house by Muhammad Akram after the occurrence. The memo. further reveals that a bullet had stuck in the chamber of the rifle and when unloaded a missed bullet was recovered. The empties and the rifle recovered were never sent to the Forensic Science Laboratory. This evidence cannot be used against Muhammad Akram appellant.

16. The upshot of the whole discussion is that in our considered opinion, it was an un-witnessed occurrence. That brings us to the defence plea, according to which the deceased was Goonda and had gone to-"the fields of Muhammad Akram in order to get 'Jagga tax'. The deceased was armed with a .7-mm rifle and despite the fact that the deceased fined in the feet of Muhammad Akram and directed him to run towards the Dhari, he refused to obey, which led to the second shot which missed and the appellant got" a chance to grapple with the deceased. During grappling, he bit on the face of the deceased and also squeezed his testicles. While in great pain, the deceased asked his companion to fire at the appellant with his gun. The companion obliged by firing consecutive shots. However, instead of hitting Muhammad Akram, the fire hit the deceased on his belly and also caused injuries on the left knee of Muhammad Akram. This part of the story is very hard to believe in case the occurrence had taken place as narrated by Muhammad Akram, then he would not leave the scene of occurrence and would himself report the matter to the police. On the contrary, he remained in hiding till 14-3-2002 i.e. five weeks of the occurrence. He kept the story in his heart and the gun in his house for full five weeks which casts doubt on the latter portion of the story. It may be mentioned here that it was suggested to complainant in cross-examination that at the time of occurrence, Rafiq was accompanied by his friend Khadim Hussain and both of them had gone to the field of Akram to obtain 'Jagga Tax' but in. his defence plea, Akram did not name Khadim Hussain and changed-his version by stating that the deceased was accompanied by an unknown assailant. The appellant has not come out with the whole truth." But that would not deter this Court from drawing proper inference from titer evidence and the circumstances of the case. Reliance is placed on the, case of Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC

502. According to Investigating Officer/P. W.12, when he reached the place of occurrence, he took into possession seven live bullets of .7-mm from the pocket of the deceased during spot inspection. It was suggested to the complainant that the deceased was involved in a number of criminal eases, including murder and dacoity and specific F.I.R. numbers were put to the complaint, who, instead of denying that his son was not involved in the cases, stated that it was not in his knowledge that his son was involved in such and such F.I.Rs. The story that the second shot stuck up the rifle, which belonged to the deceased, finds support from the recovery of seven live bullets from the pocket of the deceased, soon after the occurrence and at that time only the complainant party was present and there was no chance for the Investigating Officer to plant bullets in the pocket of the deceased. The story finds further support, from the recovery memo. Exh.P.J., according to which two empties of .12 bore and one empty of .7-mm were recovered from the spot. As noted above, the injury of rifle was attributed to Falak Sher; however, after post-mortem examination, it revealed that the injury was not caused by any fire-arm. Anyhow, we are not persuaded to rely on the medical evidence relating to the injuries on the person of Muhammad Akram, as it was belated and inconsequential. After scanning the entire evidence and considering the circumstances of the case, it appears that the occurrence was result of sudden flare up and the deceased received injuries at the hands of the appellant after sticking of bullet in the rifle. In these circumstances, we alter the conviction of the appellant from offence under section 302(b), P.P.C. to offence under section 302(c), P.P.C. The sentence is reduced to fourteen years' R.I. Benefit of section 382-B, Cr.P.C. is given to the appellant. As regards the compensation under section 544-A, Cr.P.C., in view of the dictum laid down by the Honourable Supreme Court in the case of, Mairaj Begum v. Ejaz Anwar and Others PLJ 1982 SC 435 the order passed by the learned trial Court under section 544-A, Cr.P.C. is not sustainable in the circumstances of the case and the same is set aside.

17. With the above modification in the conviction and reduction in sentence of the appellant, this appeal stands partly allowed. The death sentence is not confirmed. The murder reference is answered in the negative.

18. For the same reasons, we find no merit in P.S.L.A. No.19 of 2004, questioning the acquittal of Shamshad and Falak Sher, respondents, and the same is dismissed. N.H.Q./M-420/L Order accordingly.