P L D 2000 Lahore 128 (PLP)

BASHIR A. MUJAHID, J.‑‑‑This judgment will dispose of Criminal Appeals No.99 of 1994 and 31‑J of 1994 as both are the outcome of one and the same judgment, and M. R. No. 115 of 1994. The appellants have challenged the judgment, dated 26‑2‑1992 passed by learned Additional Sessions Judges, Gujranwala, whereby he tried the appellants Sardar Muhammad (55) son of Buddha, his son Muhammad Khalid (20) and son‑in‑law Ashiq Hussain (34) son of Khuda Bakhsh for committing murder of Ansar Saeed aged 25/26 years, convicted them under section 302‑13/34, P.P.C. and sentenced them to death with fine of Rs.25,000 or in default to further undergo R.I. for two years each. They were further ordered to pay I compensation to the tune of, Rs.25,000 each to the legal heirs of deceased or in default to further undergo S. I. for six months.

2. The case was registered vide F.I.R. Exh.P.E. on the written complaint of Abid Hussain, Assistant Station Master, Railway Station Dharonkle, Tehsil Wazirabad P.W.7 which was recorded by S.I./S.H.O. Railway Police, Wazirabad. As per complaint of P.W.7 it is stated that on 3‑5‑1992, Mehdi Khan, Pointsman informed that a dead body of a person was lying near line No.3, down yard coaching yard. The complaint Exh.P.‑E. in writing was sent to the S.H.O. who got the formal F.I.R. Exh.P.E. registered. S.I. Siraj Din, Investigating Officer P.W. 15 visited the spot, prepared the inquest report Exh.P.O., injury statement Exh.P.P. He took into custody a pair of shoes P.9/1‑2 and Khais P.10 vide memo. Exhs.P.F. and P.G. respectively. He also prepared the site plan Exh.P.Q. with sketch, recorded the statements of the witnesses of recovery and despatched the dead body to the mortuary for post?mortem examination. He also took into possession last worm clothes of the deceased shirt P. 1, Shalwar P. 2 and vest P. 3 vide memo. Exh. P. C. He arrested all the three accused on 11‑5‑1992. The appellant Sardar led to the recovery of Danda P. I I from his house. Appellants Khalid and Ashiq also got recovered Dandas P. 12 and P. 13 from the house which were taken into possession vide memo. Exhs.P.J., P.L. and P.M. respectively. On the pointation of the accused he also collected the blood‑stained earth from the house of the appellant Sardar and Khalid. He made into sealed parcel vide memo. Exh.P.K. He prepared site ,plan of the place of recovery vide memo. Eihs.P.J./l, P.L./I and P.M./I. Sardar appellant also got recovered ring PA and a cover of identity card P.5 containing identity card P.6 and three notes of Rs.50 each P.7/1‑3 and one note of Rs. 10/P. 8 vide memo. Exh. P. H. ? 3.? Post‑mortem, examination was conducted on the dead body of Ansar Saeed by Dr. Shaukat Ali Cheema, M.O. P.W.14 who found the following injuries on it:‑‑ (1)? A lacerated wound 3 c.m. x 1 c.m..? x bone deep on back and left side of head. 7 c.m. above left ear and 15 c.m. behind the hair margin. (2)? Abrasion 1 x 0.5 c.m. on the left side of head just above left ear. (3)? Contused swelling on whole left upper arm from shoulder joint to hand. (4)? Abraised area 7 x 7 c.m. on top of left shoulder. (5)? Contused swelling on outer part of whole right upper arm. (6)? Contusion 10 x 3 c.m. on front and outer part of right chest. (7) Contusion 6 x 5 c.m. with swelling on right shoulder. (8) Contusion 8 x 3 c.m. on the outer and back of right chest at middle part. (9) Contusion 15 x 22 c.m. on back of right upper chest. (10) Contusion 14 x 20 c.m. on the back and upper part of left chest. (11) Contusion 10 x 3 c.m. on the back of left buttock. (12) Contusion 13 x 10 c.m. on the outer and lower part of left thigh. (13) Abrasion 3 x 2 c.m. on. front of left knee joint. (14) Abrasion 1 x 1 c.m. on front of right knee joint. The dead body was identified by Imtiaz Ahmad P.W.11 and Razia Begum mother of deceased P.W. 10.

4. The Investigating Officer after receipt of reports from Serologist and Chemical Examiner, collected the evidence, completed the investigation and challaned the three accused persons to face the trial.

5. Accused Sardar and Ashiq pleaded their innocence and false implication due to relationship with co.‑accused Muhammad Khalid' Muhammad Khalid accused in his statement recorded under section 342, Cr,P.C. pleaded as under:‑‑ On 2‑5‑1992 while I was sleeping in my house at night while my father Sardar Muhammad was away to Gujrat and my sister Robina was sleeping in another room. At about midnight I heard the shriek of my sister Robina and rushed towards the room. I found Ansar Saeed in the room of my sister. I lost the self‑control and I picked up a Danda lying in the room and started giving blows to Ansar Saeed. My mother switched on the light and my sister told me that trespasser was cousin of Shazia Imtiaz her class‑fellow. On this I stopped giving further beating to Ansar Saeed who apologized for his conduct. After that I told Ansar Saeed to leave our house and he left.

6. The prosecution produced as many as 15 witnesses in support of its case, consisting on the following evidence:‑‑ (a)??????? Last seen evidence furnished by:‑‑ (i)???????? Muhammad Ilyas (P.W.8); (ii)???????? Imtiaz Ahmad (P. W. 11); (iii)??????? Nabi Ahmad (given up); (b)??????? Evidence of extra‑judicial confession which consists of:‑‑ (i) Muzaffar lqbal (P. W. 12); (ii) Nasir Mehmood (given up); Razia Begum P.W.10 and Ghulam Sarwar P.W.13 are the ‑ witnesses of recoveries and Siraj Din, Sub‑Inspector P.W.15 had carried out the investigation, whereas the others are of formal nature.

7. Learned counsel for the appellants has contended that the prosecution case has been built on extra‑judicial confession, last seen evidence which is admittedly a weak type of evidence. Prosecution witnesses who have supported the last seen evidence and extra‑judicial confession are closely related inter se? and to the deceased. Reliance has been placed on Muhammad Ashraf alias Kalia v. The State (1997 MLD 1210) and Munawar Hussain alias Asghar Ali v. The State (1991 SCMR 1601). There are contradictions regarding the business of the deceased and about the alleged motive, as has also been pointed out by the learned counsel for the appellants. It is further argued that it is an unwitnessed occurrence and recoveries have been fabricated and planted on the appellants after 7 days of the occurrence and they have been falsely implicated in this case.

8. Learned counsel for the mother of the deceased and the State Counsel have supported the impugned judgment and conviction of the accused by pointing out Exh. PK, the recovery memo of blood‑stained earth from the house of the appellants and recovery of blood‑stained Dandas on pointing out of the appellants. Moreover, recovery of ring belonging to the deceased and that copy of identity card from the house of the appellants supports the prosecution case. 9.? We have considered the arguments of the learned counsel for the parties and have gone through the record.

10. The appellants have been convicted and sentenced with punishments of death on the basis of evidence of last seen and extra‑judicial confession, which is the weakest type of evidence, so in order to assess its true value, we have re?appraised the evidence with the assistance of learned counsel. MOTIVE:

11. Motive as alleged is that the appellants in order to deprive the deceased of an amount of Rs.40,000 have committed his murder, which besides contradicted, by the prosecution witnesses, is unreasonable and unbelievable. P.W.10 Razia Begum, the mother of the deceased did not depose that the deceased was having any business deal with the appellants and took the amount to pay the same to them rather she has stated that the deceased was agriculturist by profession, while Imtiaz Ahmad P.W. 11, who is the witness of last seen, in his 'examination‑in‑chief stated that the deceased gave the amount to the appellants on their arrival at the Dera in his presence, but in cross‑examination admitted that the deceased had told him prior to the arrival of the appellant that he had paid the amount to them for purchasing sheeps. It is not believable that the deceased at night time took the huge amount without informing his mother, when he was going to sleep at his Dera, all alone, but instead he went to the Dera of his maternal uncle and the appellants, who are admittedly the residents of different places, went straight to that Dera and in case they had already 'received the money then there was no occasion or need for them to visit the deceased, if they wanted to do away with the deceased they could have done at some other suitable time and place easily or flatly refused to return the same~ The prosecution has miserably failed to prove the motive. LAST SEEN: ?????

12. The deceased was alleged to have been seen lastly in the company of the appellants by Muhammad Ilyas, his brother Nabi Ahmad and Imtiaz Ahmad. Muhammad Ilyas P.W.8 is the paternal uncle of the deceased, whereas Imtiaz P.W.11 is maternal uncle whereas Nabi Ahmad has not been examined by the prosecution. An adverse inference can be drawn. that if produced would have not supported the prosecution case. The evidence of closely related persons with the deceased was not corroborated by an independent source. The appellants could have not been convicted for the charge of murder in the absence of direct and independent source, which is lacking in the present case and the one brought by the, prosecution is not worth credence. EXTRA‑JUDICIAL CONFESSION:

13. Retracted extra‑judicial confession allegedly made by the appellants has come from the mouth of Muzaffar lqbal P.W. 1.2, who is admittedly brother‑in ?law of the deceased and his brother Nasir Mehmood has been dropped by the C prosecution which also adversely affects its case. It does not inspire confidence as no statement under section 164, Cr. P.C. was recorded to this effect before a Magistrate. RECOVERIES:

14. The manner and kind of recovery of weapons of offence, effected after about 5/6 days of the arrest of 'the appellants also seems to be planted and fabricated and highly doubtful.

15. Prosecution is itself not certain about the place, time and manner of occurrence. The blood‑stained earth was taken from the place of dead body and from the house of the appellant also. The positive report has also no bearings as no D. N. A. test was made.

16. It was an unwitnessed occurrence. The names of the culprits were not known and find no mention in the F.I.R. Lodging of the F.I.R. with the Railway police reflects that the occurrence was thought to be an accidental one. According to the P.Ws. they reached the Place before arrival of the police, but none of them chose to be complainant of the case and got the case registered with local police. When the last seen evidence and evidence of extra‑judicial confession was available on the same day, then why the police did not arrest the accused appellants on the same day, when they all were employees and there is no mention on the record that the police had ever contacted their employer for their arrest. The police seems to have involved the appellants with connivance of the complainant party and all the statements/documents were prepared ante‑dated for false implication of the appellants.

17. The stand of the learned counsel for the complainant that the P.Ws. though related inter se were not inimical toward the appellants to implicate them falsely, has no force, as if complainant and witnesses have no enmity with the accused it does not necessarily mean that what they have said is nothing but truth, even otherwise after the death of the deceased, they naturally have turned inimical towards the appellants accused.

18. From the above discussion it is clear that the prosecution evidence is ?replete with glaring contradictions, material discrepancies, inconsistent on all points and could not be believed/relied upon and is hereby discarded.

19. Now the only evidence remains in the field is the admission of Khalid appellant made in his statement under section 342, Cr.P.C. that the deceased after sustaining some Danda blows at his hands left the house of the appellants and that his father Sardar appellant and his brother‑in‑law Ashiq Hussain appellants were not pre . sent there at that time which appeals to reasons as:‑‑ There was no need for the appellants to cause the death with blunt weapons to attract the ncighbour on shrieks and alarm of the deceased, they could have easily overpowering the deceased, done him to death by strangulation thrown the dead body on main railway line‑ to show the death as an accidental one, instead of throwing the same on coaching yard. And in case offence was committed in the house of the appellants, situated in the centre of village, nobody heard the shrieks of the deceased or saw the appellants while shifting the dead body to the railway station and the official Chowkidar pointman on duty did not notice when the dead body was thrown there. There is also no evidence that who put off the shoes of the deceased and placed the same near dead body. Medical evidence also supports the stand of the appellant.

20. Khalid also could have den6id the commission of offence, as it was a case of no evidence, but to be fair enough, he admitted the act done by him, which also seems plausible, as it is admitted by the P.Ws. that Shazia, the daughter of P.W.11 Imtiaz is class‑fellow of Mst. Robina D.W.1 sister of appellant and the deceased often used to pick and drop Shazia to school and may have developed some intimacy with Mst. ' Robina Bibi and having come to know that Sardar (the father of Robina and Khalid appellant) is away from home sneaked the room of Robina the alarm shrieks of whom attracted the appellant Khalid to the spot and on seeing the deceased, he must have lost self‑control and gave some Danda blows, which type of weapon is normally available in the houses of rural areas. He stopped on beseaching of Robina. who later on had recognised the deceased and he was let to leave the house, being a cousin of Shazia.

21. Incident seems rather proved to be an act of one person. Inherent doubts .do exist regarding the participation of all the accused in commission of crime. A close scrutiny of the evidence on record reveals that co‑accused of Khalid appellant (appellants Sardar and Ashiq) have been involved in the offence due to their relationship with the appellant Khalid. Presence and involvement of Sardar and Ashiq appellants appears to be doubtful, in the above‑narrated reasons and circumstances.

22. It is a trite law that when the prosecution evidence stands rejected in its totality, statement of accused has to be accepted believed in its entirety. Khalid appellant has admitted that his other co‑accused were not involved in the crime. From the facts and circumstances there seems no conspiracy or premeditation and provision's of section 34, P.P.C. do not attract.

23. We, therefore, by giving the benefit of doubt 'accept the appeal to the June of Sardar and Ashiq appellants, set aside their conviction and sentence and acquit them of the charge. They shall be released from the jail forthwith, if not required to be detained in any other case.

24. Now we advert to the case of Khalid appellant to see that offence committed by him falls under what section, in which he could have been convicted and sentenced to meet the ends of justice. One thing is established that he could not be charged/convicted under section 302(b), Cr. P.C. As ' a rule while convicting him on his admission, the inculpatory as well as exculpatory parts of his statement have to be believed. Reliance can safely be placed in this behalf on Rahim Bakhsh v. Crown (PLD 1952 FC 1) and The State v. Muhammad Hanif and others (1992 Supreme Court Monthly Review 2047). Firstly, the deceased was not 'Masoom‑ud‑Dam'. He had himself invited the trouble, by entering the house of the appellant at night time for some ulterior purposes and the appellant on seeing the deceased in the room of his sister, under 'Ghairat' loosing self‑control, inflicted injuries to the deceased, and there are chain of authorities and galaxy of rulings on the point that "Qatl" committed on account of "Ghairat' is not equivalent to "Qatl‑e‑Amd" and the person guilty of such Qatl is entitled to concession and can be dealt with under section 302(c), P.P.C. read with section 338‑F, P.P.C. under "Tazir".,, Secondly the appellant does not appear to have intended to cause the death of the deceased, but wanted to teach him a lesson for his nefarious indecent act and‑let him go and did not chase him, and as per rule "no inference could be drawn either from the weapon of offence seat or nature of injuries that the accused had any idea of committing culpable homicide amounting. to rnurder".

25. Even after the promulgation of Criminal Law (Second Amendment) Ordinance, 1990, the Courts can seek guidance from Injunctions of Islam as laid down in 'Holy Qur'an' and 'Sunnah'. Section 338‑F provides permission to this effect for awarding punishment in case of Qatl‑e‑Khata and Qatl on account of 'Ghairat', In Surah 'Nisa' the. right to defend the honour to the extent of even killing. the. aggressor, if need be, there has not only been provided/made available, to aggressed My. but also to her husband, Mahram or the person in whose lawful custody she is residing. There is a Hadith of Holy Prophet (p.b.u.h) from Abu Haraira, who told that he heard God's messenger say if any one were to look into your house without receiving your permission and you were to throw a pebble at him and put out his eye, you would be guilty of no offence (Bukhari and Muslim). Obviously the amplitude of right of self‑defence property and honour is‑ more wider in Islam than the Code of Criminal Procedure.

26. We conclude that the appellant acted in the exercise of right of defence of honour on account of 'Ghairat' and could not be convicted under section 302(b), P.P.C. We by accepting the appeal partly alter the conviction from section 302(b), P.P.C. to under section 302(c), P.P.C. and reduce his L sentence to 14 years' R.I. with benefit of section 382‑13, Cr.P.C. Compensation awarded by the trial Court is maintained or in default to further undergo S. I. for six months. The Murder Reference is answered in the Negative. N.H.Q./S‑392/L?????????????????????????????????????????????????????????????? Order accordingly.