2002 PLP 3963 (YLR)

"I was on visiting terms with Fayaz accused and for that matter I have been fixed up in this case by the complainant party. I took no part in this offence. I am totally innocent. The witnesses have deposed against me falsely as they are related inter se and the complainant Farzand Ali. " He did not opt to produce defence evidence nor recorded his statement under section 340(2), Cr. P.C.

8. After evaluating the evidence on the record, the learned trial Court acquitted Fayyaz, Ghafar, Mukhtar and Bashir giving them the benefit of doubt while Muhammad Akram was convicted and sentenced to death as hereinbefore indicated.

9. We have heard the learned counsel for the appellant in Criminal Appeal No.518 of 1995 (against conviction) and Criminal Appeal No.661 of 1995 (against acquittal) and the learned State Counsel and have examined the record with the assistance of the learned counsel.

10. The occurrence took place at about 4‑30 p.m. on 1‑4‑11‑1994. The F.I.R. was lodged at 12‑05 between night on 14‑11‑1994 and 15‑11‑1994 at Police Station Changa Manga which is at a distance of 9 miles from the place of occurrence.

11. The ocular account of the occurrence comprises of the statements of Farzand Ali complainant P.W.4 and Asghar Ali son of Muhammad Din P.W.6. According to P.W.4 Muhammad Zakir deceased who was the real paternal uncle of this P.W. was returning with Asghar, Afzal and Farzand Ali after attending the case against Pervaiz etc. who were involved in the case in which Ramzan, brother of Fayyaz accused was murdered. According to him when they reached between Kot Virsingh and Muhammadipur at about 4‑30 p.m Akram and Fayyaz accused armed with Carbines and Ghaffar, Mukhtar and Bashir accused armed with 7 M.M Riffle emerged from behind a Tibba, Fayyaz accused fired at Zakir deceased which hit him on the back of his buttock. Akram accused tired at Zakir deceased which hit him on his abdomen. The motive ascribed by P.W.4 was that Pervaiz aforementioned the real nephew of Zakir deceased and Tufail real brother of Zakir deceased were involved in the murder of Ramzan who was the brother of Fayyaz accused and that it was to take revenge that Zakir deceased was done to death in the aforesaid manner. This P.W. has further elaborated the occurrence. Asghar P.W.6 the other eye‑witness has substantially corroborated the eye‑witness account given by P.W.4. It is correct that these witnesses are related to each other as well as to the deceased. But this fact alone shall not be sufficient to discredit the ocular account if it is otherwise substantiated by medical and other evidence on the record. It has been explained by these two witnesses on the fateful day two cases were fixed for hearing, wherein, Muhammad Zakir deceased and his relatives i.e. P.W.4, P.W.6 and others including Muhammad Afzal were keenly interested. The reliance is placed by the learned counsel for the appellant on Muhammad Jehangir. v. The State (1997 SCMR 1531) to contend that where an eye witness was an interested witness having motive to involve the accused in the case who was also capable of implicating innocent person in the case calling for a capital punishment, the evidence of such a witness should be approached with caution and should not be readily believed. We have gone through the cited judgment and find that the facts and circumstances of the instant case are distinguishable. Although the witnesses were related inter se and also with the deceased, this fact alone would not be sufficient to discredit their evidence: It is also observed that the eye‑witness account is in consonance with the allegations made by complainant Farzand Ali in his F.I.R. as to the manner in which the occurrence had taken place.

12. The medical evidence comprises of statement of Dr. Syed Fawad Ali Shah P.W.9. His testimony as well as his report has been herein before mentioned. The nature and receipt of injuries found on the body of the deceased matched with the ocular account given by P.W.4 and P.W.6. The injuries mentioned at serial Nos. 1, 2, 3 and 4 correspond with the injury stated to be inflicted on the buttock and abdomen of the deceased. In his opinion the deceased had died on account of shock and haemorrhage caused by injuries Nos. 1, 2, 3 and 4 which were ante‑mortem caused by fire‑arm and which were collectively sufficient to cause death in the ordinary course of nature. The time between injuries and death was 2 to 6 hours and between the death to post‑mortem was 8 to 16 hours. This duration also corroborated the eye‑witness account as regards the time of occurrence. Muhammad Akram appellant was arrested on 10-121994 while in police custody he made disclosure about the Carbine and subsequently got it recovered and led the police to its recovery. The statement of P.W.8 Muhammad Sharif, S.I is relevant for the decision of this case. In his own words:‑‑ "On 10‑12‑1994 Akram accused while in police custody made a disclosure about the recovery of Carbine P-5 and subsequently he led to the recovery of .12 bore Carbine P.5 from the room of his Dera after digging out it from the earth. It was made into a sealed parcel and taken into possession by me vide recovery memo. Exh.P.E. I prepared the site plan of the place of recovery Exh.P.E/1." It is pertinent to note that no recovery was effected from or at the pointation of the other four accused. No empties of

7. MM Rifle were found by the I.O. when he visited the place of occurrence. No recovery of Carbine was effected from Fayyaz accused. One sealed parcel containing Carbine was handed over by I.O. to P W. 1 Asghar Ali, H.C who handed over the same to Nazir P.W.2 who deposited the parcel with the Office of F.S.L. The report of F.S.L is on the record as Exh.P.L, according to which the crime empty matched with the said Carbine which was found to be in working order.

12. The motive has been mentioned in the F.I.R. Exh.P.C and is carried through the evidence of the complainant P.W.4 and Asghar Ali P.W.6. According to the prosecution version the accused party committed, the murder of the deceased Muhammad Zakir for taking the revenge of the murder of brother of Fayyaz accused in which Tufail a real brother and Pervaiz nephew of Zakir deceased were involved.

13. From the re‑evaluation of the ocular,' medical and recovery evidence the prosecution has been able to prove its case beyond any shadow of doubt as far as Muhammad Akram appellant is concerned. As observed earlier the ocular account is fully corroborated by the medical evidence which confirm the seat and nature of the injuries which caused the death of the deceased. The weapon of offence was specifically described as a shot pistol Carbine which was duly recovered upon the pointation of the convicted appellant. The report of the F S.L. also corroborated the prosecution version

14. It has been urged on behalf of the learned counsel for the appellant that upon the basis of the same nature and quality of evidence, the four accused were acquitted and following the rule of consistency the convicted appellant was also entitled to a similar treatment and ought to have thus been acquitted. Reliance in this regard is placed upon the case of Muhammad Sharif and another v. The State (1997 SCMR 866). We are not impressed by this contention of the learned counsel for the convicted appellant. As discussed supra the case of Muhammad Akram is distinguishable for more than one reason from the case or acquitted accused and has been correctly decided on its own merits.

15. The submissions of the learned counsel for the appellant that there was unexplained delay in the filing of the F.I.R. is also not of much consequence as the occurrence took place at 4‑30 p.m. on 14‑11‑1994 and the report was lodged at 12‑05 on the night between 14‑11‑1994 and 15‑11‑1994 at Police Station, Changa Manga which was at a distance of 9 miles from the place of occurrence. On account of the other facts mentioned on the record such delay does not affect the merits of the case. It is explained that after sustaining fire‑arm injuries Muhammad Zakir was carried to the hospital in injured condition. The Doctor referred him to Mayo Hospital, Lahore. However, when they reached near Lahore, he succumbed to the injuries. This sufficiently explains the delay.

16. As a result of the above discussion, we are not persuaded to form a different view from the one expressed by the learned trial Court and uphold the conviction of the appellant Muhammad Akram.

17. The question, of sentence, however, has engaged our serious consideration. It is established on the record that there is long standing enmity between the family of the complainant and the family of the‑ accused persons. Fayyaz accused is the complainant of the murder case of one Riaz deceased. Tufail his son Afzal (a given up P.W. of this case) and his two brothers Akhtar and Aslam were accused in the murder of Riaz. Muhammad Ramzan was also murdered and in that case the above-mentioned Tufail, his son Pervaiz and one Arshad were involved. Nisar Ahmad is the complainant in the murder case of Ramzan. Mukhtar and Ghafar the acquitted accused of the instant case are the real brothers of Nisar.

18. The statement of P.W.6 in cross- examination is relevant. To a question put to him by the defence counsel, he stated as under:-- "Tufail is my brother. It is correct that the present accused persons got registered two murder cases against said Tufail etc. Volunteered that those cases were got registered due to some suspicion, and those cases are pending in the Court. It is correct that I and the accused party are inimical to each other. It is incorrect that four days prior to this occurrence Akram accused was going on the Canal Bank towards Chunian City. When he reached near the Baithak of Tufail Afzal son of Tufail, Sadiq and Ashiq sons of Zakir deceased, Muhammad Sarwar son of Farzand P.W. and Zakir deceased were sitting on the cot. All these persons grappled with Akram accused and gave beating to him. Zakir deceased said that Akram should not be beaten here rather he should be taken to the Dera and there his eyes should be removed. When the abovementioned persons were dragging Akram accused, Akram raised noise upon which he was rescued by the other people. It is further incorrect that as Akram was saved on that day and for this reason he has been falsely involved in this case."

19. The accused were examined under section 342, Cr.P.C. and in answer to Question No.4 as to why the case was lodged against him, Fayyaz Ahmad stated as under:‑ The complainant party had murdered my brothers Riaz and Ramzan. For pressurising me for the withdrawal of the murder cases of my brothers the complainant party has got registered this case against me falsely. The P.Ws. are related inter se as well as to the complainant so for strengthening the false case they have deposed against me.

20. Muhammad Akram in answer to Question No.5 stated as under:‑‑ I was on visiting terms with Fayyaz accused and for that matter I have been fixed up in this by the complainant party. I took no part in this offence. I am totally innocent. The witnesses have deposed against me falsely as they are related inter se and the complainant Farzand Ali.

21. As against this the motive imputed in the F.I.R. is as under:‑‑

22. Quite contrary to the above, the defence has put to P.W.6 and entirely different version of the motive for the occurrence when it was suggested to this P.W. that Muhammad Akram was beaten by Tufail and other relative of Zakir deceased and was also threatened that his eyes should be gouged. It was suggested that Akram was rescued by other persons and that it was for this reason that he has been falsely implicated in the case. This suggestion was denied by the prosecution.

23. Although it is established on the record that Muhammad Akram did cause the death of Muhammad Zakir deceased, the different version appearing on the record for the motive is shrouded in mystery. Although it is correct that there is long‑standing enmity between the family of the complainant and the family of the accused. The non‑ascertainment of the exact motive attributed to the appellant I would entitle him to the award of a lesser sentence. Even if long‑standing enmity is proved in the absence of any other circumstances, it does not automatically lead to the conclusion that the accused was motivated by such enmity Muhammad Zakir deceased himself was not involved in any murder case and according to the prosecution, he had merely gone to pursue the case of Pervaiz etc. On the other hand, Fayyaz accused had stated in his statement recorded under section 342, Cr.P.C. that the complainant party had murdered his brothers Riaz and Ramzan and for pressurising Fayyaz to withdraw the said murder case, the complainant party had got registered this case against' him falsely. The defence introduced yet another motive when suggestion was made to P.W.6 which is given in para. 18 above.

24. From a close examination of the material on the record it transpires that Zakir deceased was not himself involved in the murder of the brothers of Fayyaz accused. None of his relative had been murdered for which any relative of the deceased was involved.

25. According to the eye‑witness account one fire‑arm shot was attributed to Akram which hit the deceased in the abdomen‑. The other fire‑arm shot which hit the deceased on the buttock was ascribed to Fayyaz accused. Recovery of the carbine has been made from Muhammad Akram appellant. The recovery of the other weapon of offence with which the other fire‑arm shot was fired which hit the deceased on his buttock was not recovered either from Muhammad Akram or from the acquitted accused Fayyaz. Both the fire‑arm shots cannot thus be attributed to Muhammad Akram.

26. After giving our anxious thought to the question of sentence, we find it a fit case where the conviction is upheld but the sentence of death is commuted to life imprisonment in accordance with the principles of safe administration of criminal justice. The appellant shall be entitled to the benefit of section 382‑B. Cr.P.C. He shall. however, be liable to pay compensation of Rs.1,00,000 to the legal heirs of the deceased under section 544‑A, Cr.P.C. and in default thereof to undergo further imprisonment (S.I.) for a period of six months. Resultantly. Criminal Appeal No.518 of 1995 is dismissed subject to the abovementioned modification in sentence.

27. So far as Criminal Appeal No.661 of 1995 is concerned, the learned counsel for the appellant has not been able to point out any illegality in the impugned judgment regarding the four acquitted accused, as regards evaluation of evidence or application of law by the learned trial Court. The ocular account is corroborated by the medical and recovery evidence to the extent of Muhammad Akram only appellant in Criminal Appeal No.518 of 1995) no recovery has been effected from any of the four acquitted accused. No crime empties were recovered which related to 7 M.M rifle with which the accused Mukhtar Ahmad, Ghaffar and Bashir Ahmad were allegedly armed. No recovery was effected from Fayyaz accused. No injury was attributed to respondents Nos.3 to

5. For all these reasons there is no merit in this appeal which is hereby dismissed.

28. As a sequel to the afore‑mentioned findings the murder reference is answered in the negative. Appeal dismissed. H.B.T./M‑1482/L