2005 PLP 1495 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

Wahid Bakhsh, Ghulam Muhammad, Khuda Bakhsh along with Rab Nawaz-appellant were sent up to face trial in case F.I.R. No.221, registered at Police Station Pacca Laran, on 16-9-1998, for offences under sections 302/34, P.P.C., for causing murder of Jan Muhammad.

2. Vide judgment, dated 4-5-2001 Mr. Abid Hussain, Additional Sessions Judge, Liaquatpur, While acquitting rest of the accused convicted Rab Nawaz for offence under section 302(b), P.P.C. and sentenced him to death. He was also directed to pay compensation amounting to Rs.50,000 to the legal heirs of the deceased, in default of payment thereof the convict was to suffer six months' R.I.

3. Feeling aggrieved, Rab Nawaz has challenged his conviction and sentence through the instant appeal (Criminal Appeal No.102 of 2001). Qahar Hussain-complainant feeling dissatisfied filed Criminal Appeal No. 109 of 2001 against the judgment, whereby Khuda Bakhsh, Wahid Bakhsh and Ghulam Muhammad (respondents therein) were acquitted. During pendency Qahar Hussain did not press the appeal against Wahid Bakhsh and Ghulam Muhammad and the same was dismissed to their extent. However, the appeal was admitted against Khuda Bakhsh-respondent. We propose to decide both the above-noted criminal appeals and the Murder Reference No.23 of 2001 seeking confirmation of death sentence or otherwise, with this single judgment.

4. Qahar Hussain P.W.8, Hafiz Muhammad Akbar, P.W.9, Muhammad Siddiq, Abdul Razzaq and Jam Mukhtar Ahmad along with dead-body of Hafiz Jan Muhammad reached Police Station Pacca Laran at 7-45 p.m. on 16-9-1998. On the statement of complainant, Atta Muhammad, S.-I. (P.W.10) registered case F.I.R. No.221 for offences under sections 302/ 34, P.P.C.

5. According to F.I.R., three days prior to the occurrence complainant along with his brothers Hafiz Jan Muhammad-deceased and Hafiz Muhammad Akbar went to the Dera of Khuda Bakhsh son of Muhammad Bakhsh in order to get back Rs.800, which were given to Khuda Bakhsh as loan. Khuda Bakhsh got infuriated, when the loan was demanded, and turned the complainant party out of the Dera after abusing and threatening. On the fatelful day at Degarwela (afternoon) Hafiz Muhammad Akbar took the cattle to the Canal where Rab Nawaz was also present along with cattle belonging to him. Rab Nawaz abused Hafiz Muhammad Akbar for the reason that he had quarrelled with his uncle Khuda Bakhsh and had passed through the agricultural fields belonging to the accused. Hfaiz Muhammad Akbar after paying Rab Nawaz in the same coin went back to his house and narrated the incident to the complainant and others. At about 6-00 p.m. Khuda Bakhsh while armed with stick, Muhammad armed with .12 bore pistol, Rab Nawaz armed with .12 bore gun and Wahid Bakhsh armed with stick reached the house of the complainant party. While standing in the street the accused exhorted Lalkara that they would teach lesson for demanding back loan and for quarrelling with Rab Nawaz. The complainant along with his brothers Hafiz Jan Muhammad, Hafiz Muhammad Akbar, Muhammad Siddiq son of Pir Bakhsh went outside the house. Rab Nawaz fired with his gun, which hit Hafiz Jan Muhammad on his abdomen. Ghulam Muhammad fired with his .12 bore pistol, which did not hit any body. Hafiz Jan Muhammad fell on the ground after receipt of injury. Khuda Bakhsh and Wahid Bakhsh caused injuries on the back and chest of Hafiz Muhammad Akbar with sticks. Meanwhile, the residents of the area started assembling and on seeing them the accused left the scene of occurrence after raising Lalkara. While Hafiz Jan Muhammad was being taken to Civil Hospital in a Wagon, he lost his life. Thus, the complainant party took the dead-body of Jan Muhammad to the Police Station and reported the matter.

6. On 17-9-1998 i.e. the next date of occurrence Atta Muhammad, S.-I./P.W.10 collected two empties of .12 bore cartridges D-1 and D-2 from the scene of occurrence, which were secured through memo. Exh.PH attested by Maqbool Ahmad P.W.5 and one Abdul Razzaq, who was not produced during trial.

7. Rab Nawaz was arrested on 7-10-1998 by P.W.10. While in police custody he led to the recovery of .12 bore double barrel gun P-3 on 21-10-1998 from his residential room, which was taken into possession vide memo. Exh.PG attested by the witnesses mentioned above. Khuda Bakhsh accused was arrested on 26-10-1998. However, nothing was recovered at his instance.

8. During trial, the prosecution produced 10 witnesses to support its case. Qahar Hussain P.W.8 and Hafiz Muhammad Akbar P.W.9 (both brothers of the deceased) furnished the ocular account. "They also stated about the motive. Their statements are in line with the story narrated in the F.I.R. Dr. Abdul Malik appeared as P.W.1 and stated that he conducted post-mortem examination on the dead-body of Jan Muhammad. He observed 80/90 pellets' holes, which were interiorly stained with blood on the Banyan and Qameez worn by the deceased. On exposing the body he observed that many pellets' marks were seen on the whole abdomen and chest below the nipples. Majority of pellets' marks were seen in the center of the abdomen. There were burnt margins inverted in nature. Lacerated wounds of pellets on whole abdominal visceraes of chest visceraes were perforated. The Doctor recovered many pellets from the dead-body. According to his opinion, the deceased lost his life within ten minutes due to gunshot injury. On 16-9-1998 at 10-00 p.m. he examined Hafiz Muhammad Akbar and observed three injuries on his person, which were caused by blunt weapon. Injury No.2 was described as "Ghary-Jaifah-Mutalahimah", while Injuries Nos. 1 and 3 were found to be simple. During cross-examination he explained that he had observed 80/90 pellets' holes on the dead-body of the deceased and that there was no exit wound. He opined that the fire was made from a distance of 15/20 feet. Maqbool Ahmad (cousin of the complainant) appeared as P.W.5 and stated about the recoveries. Atta Muhammad, S.-I./PW-10 stated about the registration of case and investigation. The rest of the witnesses are formal in nature and need not be discussed.

9. The prosecution after placing on record the report of the Forensic Science Laboratory Exh.PR, which was in the positive, closed its case.

10. Rab Nawaz-appellant took a specific defence plea in his statement under section 342, Cr.P.C. by stating that on the day of occurrence when he entered in his house he saw his wife Mst. Naziran and Jan Muhammad deceased in an objectionable position. Thus, he lost his temper and under grave and sudden provocation killed Jan Muhammad in his house. While Mst. Naziran succeeded in running away. He further stated that he himself along with gun, on the same night, appeared before the police and was taken into custody. He added that neither the complainant nor P.Ws. were present at the spot at the relevant time. He further stated that he alone had committed the murder of Jan Muhammad, Khuda Bakhsh accused in his statement under section 342, Cr.P.C. stated that he was roped in his case as he was related to Rab Nawaz. Neither the accused appeared in their defence under section 340(2), Cr.P.C. nor they produced any defence evidence.

11. The learned counsel for the appellant has argued that the learned trial Court has correctly disbelieved the prosecution evidence but has passed the sentence, which was not warranted in the circumstances of the case. The learned counsel submitted that the P.Ws. had not seen the occurrence. He has referred to the statement of the complainant, wherein it was stated that "Hafiz Jan Muhammad was standing behind us when we were in a queue position and Ghulam Muhammad fired with his pistol. Ghulam Muhammad made fire at once after the first fire". According to the learned counsel in the light of the statement of the complainant the deceased could received injuries only after the pellets had passed through the bodies of the P.Ws. who were standing ahead of Jan Muhammad. The learned counsel has also referred to the material contradictions in the statements of P.W.8 and P.W.9. He has forcefully argued that the defence plea taken by the appellant (Rab Nawaz) was borne out from the circumstances of the case, as no blood was recovered from the place of occurrence and the prosecution failed to prove the motive.

12. The learned counsel appearing on behalf of the complainant has submitted as follows:-- (a) that neither the appellant/Rab Nawaz nor any defence witness was produced in support of the defence plea; (b) that the deceased was wearing shirt and Banyan, which belies the defence plea that Jan Muhammad and wife of Rab Nawaz appellant were seen together in an objectionable position; (c) that Hafiz Muhammad Akbar had received injuries during the occurrence and his presence could not be denied; (d) that the house of Rab Nawaz was at a distance from the place of occurrence and he along with others had gone to the house of the deceased in order to teach a lesson to the deceased and his brothers; and (e) that in any case the learned trial Court has rightly sentenced Rab Nawaz appellant to death.

13. The learned counsel for the State has submitted that the learned trial Court has correctly disbelieved the prosecution evidence. The learned counsel has added that since appellant Rab Nawaz had confessed his guilt, the learned trial Court was justified in convicting him. However, when asked about the quantum of sentence in the circumstances of the case, the learned counsel submitted that he had nothing much to say about it as that was to be determined by the Court in accordance with the circumstances of the case.

14. We have heard the learned counsel for the parties at length and scanned the entire record of the case. As, in this case. Rab Nawaz-appellant took a specific defence plea, all the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence. The prosecution case rests on the testimony of P.Ws 8 and 9 who are real brothers of the deceased. Mere fact that P.W.9 received injuries would not be enough to accept his statement as a gospel truth. The evidence furnished by him is to be scrutinized in the given circumstances of the case like that of evidence furnished by any other witness. It is also noteworthy that Hafiz Muhammad Akbar alleged that the injuries were caused to him by Khuda Bakhsh and Wahid Bakhsh. Both of them were acquitted by the learned trial Court. The acquittal of Khuda Bakhsh has been challenged, while acquittal of Wahid Bakhsh had not been challenged. In other words, the conclusions drawn by the learned trial Court that Hafiz Muhammad Akbar was not telling whole truth, stands accepted by the complainant himself. The learned counsel for the appellant has rightly pointed out that during cross-examination P.W-8 stated that Hafiz Jan Muhammad was standing behind the P.Ws. when fires were made. In that case it would be impossible for the P.Ws. to escape injuries. According to the medial evidence, there were 80/90 pellets holes on the body of the deceased. While according to P.Ws. the deceased received only one shot. It is common knowledge that one cartridge cannot contain so many pellets. According to Doctor, the pellets marks were seen on whole abdomen and chest and blood-stained marks were present on the Banyan and Qameez worn by the deceased, which means that the blood oozed out from the body of the deceased after receipt of the injuries. Surprisingly no blood was collected from the scene of occurrence suggested by the prosecution. In one breath P.W.8 stated that the clothes of the victim were smeared with blood but in second breath he stated that in spite of the fact that he took the deceased in his lap his clothes were not stained with blood. Neither the clothes of Hafiz Muhammad Akbar P.W. were smeared with blood when he took the deceased in his lap. Admittedly, the matter was investigated by Rao Farman Ali, S.S.P. It has been brought on the record of the case that according to his findings Muhammad Akbar had sustained injuries earlier in an incident, which occurred at Canal Bank.

15. Both these P.Ws. have also stated about the motive. According to them, Rab Nawaz appellant owed Rs.800 to them. During trial both these P.Ws. admitted that they used to work as labourers in the lands of the accused. It is most unlikely that a landlord would borrow money from this labourers. According to P.W.9, the loan was advanced to Khuda Bakhsh 2/3 years before the occurrence, while according to P.W8 the same was advanced one year prior to the occurrence.

16. The evidence furnished by the P.Ws. is to be judged as a whole and not in isolation. In the above-noted circumstances, we are of the opinion that the statements of P.Ws. 8 and 9 suffered from serious infirmities and were not reliable. The learned counsel for the complainant remained unable to point out any misreading or non-reading of evidence on the part of the learned trial Court.

17. As far as the medical evidence is concerned, it supports the prosecution to the extent that the deceased lost his life due to fire-arm injury and not beyond.

18. Having come to his conclusion, we are left with the confessional statement of Rab Nawaz-appellant. According to him, he committed the murder of Jan Muhammad under grave and sudden provocation after seeing him and his wife in an objectionable position in his house. P.W.10 Atta Muhammad, S.-I. admitted that Rab Nawaz took the defence plea on the very first day after his arrest. His plea is also borne out from the above-mentioned circumstances of the case. The learned trial Court has convicted Rab Nawaz-appellant on the basis of his statement. The learned trial Court failed to take into account that according to Rab Nawaz he had committed the murder under grave and sudden provocation. It does not spell out from his statement that it was a premeditated murder. In these circumstances, the statement of the accused/appellant was to be accepted as a whole and the learned trial Court could not select out of the statement the passage, which went against the accused. It was observed by the Federal Court in the case of Rahim Bakhsh v. Crown (PLD 1952 FC 1) that "if the conviction of the petitioner is to be based solely on his statement in Court it is obvious that this statement should be taken into consideration in its entirety". The apex Court in the case of Khalid Javed and another v. The State (2003 SCMR 1419) observed that "if the Court disbelieves/rejects/excludes from considera-tion the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny". The above-noted view was re-affirmation of the view expressed by the Hon'ble Supreme Appellate Court of Pakistan in the case of The State v. Muhammad Hanif and 5 others (1992 SCMR 2047), wherein it was held that "where the prosecution evidence stands rejected in its totality, the statement of the accused has to be accepted in totality and without scrutiny".

19. The upshot of the whole discussion is that we alter the conviction of Rab Nawaz-appellant from offence under sections 302(b) P.P.C. to 302(c), P.P.C. His sentence is reduced to ten years R.I. Benefit of section 382-B, Cr.P.C. is extended to the appellant. The order of the learned trial Court under section 544-A, Cr.P.C. is maintained with modification that in default of payment thereof the appellant would suffer further S.I. for six months. This appeal is partly allowed.

20. Murder reference is answered in the negative. Death sentence is not confirmed.

21. For the same reasons Criminal Appeal No.109 of 2001 filed by Qahar Hussain against acquittal of Khuda Bakhsh stands dismissed. H.B.T./R-122/L Order accordingly.