2008 PLP 973 (SCMR)

MUHAMMAD FARRUKH MAHMUD, J.

Muzammil Iqbal appellant has directed this appeal No.222 of 2003, by leave Court, against the judgment, dated 6-5-2002 handed down by the learned Division Bench of Lahore High Court in case F.I.R. No.67 registered at Police Station Nikdar, District Sargodha on 16-8-1999 at 3-15 a.m. for offences under sections 302, 452, 148 and 149, P.P.C. whereby the appeal was dismissed and the conviction and sentences recorded by the learned trial Court were confirmed. Muzammil Iqbal appellant along with Ehsanullah co-convict, Ramzan son of Allah Bakhsh, Aman Ullah and Irshadullah sons bf Noor Muhammad faced trial for causing death of Muhammad Riaz at his Dera and deaths of Kabir, Ghulam Shabbir and Ghulam Fatima in their house. Vide judgment, dated 27-3-2002 the learned 'trial Court while acquitting Ramzan, Amaaullah and Irshadullah, convicted Muzammil Iqbal appellant and Ehsanullah co-convict in the following terms:

"(1) Muzammil Iqbal. Death under section 302(b), P.P.C., Rs.1,00,000 (one lac) compensation on each count for murder of Muhammad Riaz, Muhammad Kabir, Ghulam Shabbir and Mst. Ghulam Fatima in default 6 months' S.I. on each count. The amount of compensation shall be recoverable as arrears of land revenue. (2) Ehsanullah. Under section 302(b), P.P.C. read with, section 34, P.P.C. life imprisonment on each count (4). To pay compensation of Rs.20,000 on each count in default 6 months' S.I. on each count. The amount of compensation shall be recoverable as arrears of land revenue. (3) The accused Muzammil Iqbal and Ehsanullah were also held guilty under section 449, P.P.C. read with section 34, P.P.C. and sentenced to life imprisonment and fine of Rs.20,000 and in default 2 years' R.I. The sentences of imprisonment shall run concurrently except the sentences for payment of fine and compensation. The benefit of section 382-B, Cr.P.C. was also granted to both the convicts". Muzammil Iqbal appellant and Ehsanullah challenged their convictions and sentences through separate appeals. Complainant Muhammad Nawaz P.W.11 also challenged the acquittal of three co-accused through Appeal No.666 of 2002. Vide judgment, dated 6-5-2002 the learned High Court dismissed the appeals filed by Muzammil Iqbal appellant and Ehsanullah co-convict. The death sentence inflicted upon Muzammil Iqbal was confirmed. Similarly, the acquittal of co-accused recorded by the trial Court was upheld and the appeal filed by the complainant was dismissed. Ehsanullah co-convict did not file any appeal before this Court against the judgment passed by the learned High Court.

2. The relevant facts unfolded in the F.I.R. Exh. P. U. are that complainant Muhammad Nawaz P.W. 11 who was resident of Monza Rajhana District Jhang had gone to visit his cousins Muhammad Kabir, Ghulam Shabbir to their house in Chak No.154-North. During night of 15/16-8-1999 Ghulam Shabbir. P.W.14, Mst. Kaneez Fatima widow of Muhammad Riaz deceased P. W.13 and Muhammad Riaz deceased were present at their Dera in lieu of turn of water. The lantern was burning. At about 1 a.m. Muhammad Ramzan-acquitted, Amanullah-acquitted, Irshadullah-acquitted, Asghar Ali-absconder, Muzammil appellant and Ehsanullah co-convict all armed with .12 bore guns reached at the Dera of Muhammad Riaz. After issuing Lalkara, Muzammil fired at Muhammad Riaz which hit in between left eye and nose. Thereafter Muhammad Ramzan caused fire which hit on his chest. The rest of the accused continued raising Lalkara. Muhammad Riaz died on the spot. Thereafter all the accused trespassed into the Haveli of Muhammad Kabir deceased. At that time complainant, Rabnawaz P.W.12, Muhammad Kabbir deceased, Ghulam Shabbir deceased, their mother Ghulam Fatima deceased and Zahoor Fatima wife of Ghulam Shabbir, while sitting in the compound of the house, were gossiping in the light of lantern. Muhammad Ramzan caused fire which hit Muhammad Kabbir deceased on the right side of chest. Thereafter Muzammil fired which hit on the left side of the deceased. Amanullah caused fire which hit on the right side of neck of Ghulam Shabbir. Irshadullah fired which also hit on the right side of neck of Ghulam Shabbir. Asghar Ali fired which hit on the left elbow of Ghulam Shabbir. The fire caused by Ehsanullah hit on the right armpit of Ghulam Fatima deceased. Muzammil also fired which hit on the left flank of Ghulam Fatima. Muhammad Ramzan also fired at Ghulam Fatima causing injury on the right thigh. All the injured died at the spot. Thereafter the accused left the scene of occurrence. P.Ws. due to fear of life did not intervene and saw the occurrence while standing close to the walls. It was mentioned in the F.I.R. that the incident of murder of Muhammad' Riaz was reported to the complainant by Ghulam Shabbir and Kaneez Fatima.

3. The motive behind the occurrence was that Muhammad Kabbir deceased was married with Mst. Zarina sister of Muzammil appellant. Mst. Zarina was living with her parents for quite some time after quarrelling with her husband. The appellant sought divorce of Mst. Zarina from Muhammad Kabbir who refused.

4. During trial, in order to prove its case, the prosecution produced 20 witnesses. The ocular account was given by Muhammad Nawaz P.W.11, Rabnawaz P.W.12, Kaneez Fatima P.W.13 and Ghulam Shabbir P.W.14. Their statements are in-line with the story given in the F.I.R. and need not be reproduced. Dr. Munawar Ali P.W.1 stated that he conducted post-mortem examination on the dead body of Muhammad Riaz at 11-30 a.m. on 16-8-1999. He observed three injuries on the person of the deceased. Injuries Nos.1 and 2 which were caused on cheek and chest, were entry wounds, while injury No.3 was exit wound. During post-mortem examination he recovered two pellets with cartridges from the chest cavity of the deceased which were handed over to the police in a sealed carton. According to his opinion, deceased lost his life immediately after the receipt of injuries and the time elapsed between death and post-mortem was between 6 to 24 hours. Dr. Khalid Javed Mahmood P. W.20 stated about the post-mortem examination of Ghulam Shabbir, Mst. Ghulam Fatima and Muhammad Kabbir deceased on 16-8-1999. According to his observation, all the deceased had received fire-arm injuries and lost their lives immediately. The post-mortem examination was conducted on the dead bodies of the deceased within 10 to 15 hours. Shaukat Hayat A.S-I. P. W 16 stated about the registration of F.I.R., necessary investigation conducted at the spot and thereafter. He also stated about the factum of recovery of .12 bore gun P.14 along with two cartridges P.15/1-2 on 12-11-1999 at the instance of Muzammil appellant while he was in custody. Muhammad Nazir S.-I. P. W.17 stated that he arrested Muzammil appellant and Ehsanullah co-convict on 4-11-1999. He also stated about the recovery of weapon at the instance of appellant from his house. He further stated that on 12-11-1999 he submitted challan against Muzammil and Ehsanullah whereas the other accused were found to be innocent by him. The rest of the witnesses are formal in nature and need not be reproduced. In his statement recorded under section 342, Cr.P.C., the appellant claimed to be innocent and stated that P.Ws. had deposed against him due to party-fiction in the village. Neither he appeared in his defence nor produced any defence witness during trial.

5. The learned counsel for the appellant after taking us through the entire evidence on record submitted that the occurrence took place in the dead of night when there was no source of light; that the story of burning of lanterns was false as the lanterns were not taken into possession; that the complainant was a chance witness who is living 40 miles away and had no business to be present at the time of occurrence; that the learned trial Court has rightly disbelieved Mst. Kaneez Fatima widow of Riaz deceased; that the rest of the eye-witnesses were related to the deceased and were also inimical towards appellant; that Ghulam Shabbir and Rabnawaz P.Ws. were brothers who lived in a different house and the story brought forward about their presence was not trustworthy. After entry into deep analysis of medical evidence, the learned counsel submitted that the medical evidence was not in consonance with the statements of P.Ws. and for that reason alone; it should be rejected; that the learned trial Court on the same evidence acquitted Ramzan, Amanullah and Irshadullah so the conviction could not be recorded against appellant in the absence of any independent, reliable and corroborative evidence against the appellant; that no independent witness was produced in support of motive and that in case the witnesses would have been present, the assailants would not have spared them.

6. Conversely, learned Deputy Prosecutor-General Punjab has submitted that it was a case of sifting of grain from the chaff and the acquittal of three co-accused would not benefit the appellant and that P.Ws. Ghulam Shabbir and Rubnawaz were related to the deceased and residents of same village so their presence was plausible; that the P.Ws. had no personal enmity with the appellant; that the ocular account was supported by the medical evidence and corroborated by the evidence of motive and recovery.

7. We have heard the learned counsel for the parties at length and have perused the record. The time and place of occurrence had not been challenged. Undeniably Muhammad Nawaz and Ghulam Shabbir P. Ws. lived at a distance of five acres from the house of deceased. They were related inter se and their being together in the month of August along with deceased was not exceptional. Ghulam Shabbir was brother of Riaz deceased and he stated before the learned trial Court that "we had a turn of water on the said night". During cross-examination nothing was brought on record to show that Riaz deceased had no turn of water on the fateful night. It would not be odd for Ghulam Shabbir to remain with his brother when the land was to be irrigated at late hours. Firstly, the accused murdered Riaz while he was present at the Dera and then they proceeded to the house of Kabir where they killed Kabbir, his brother Ghulam Shabbir and their mother Ghulam Fatima. Kaneez Fatima and Ghulam Shabbir were witnesses of the occurrence at the Dera of Riaz. The learned trial court has held that Mst. Ghulam Fatima was not present at the time of occurrence. However, both the learned counsel, for cogent reasons, have believed presence of Ghulam Shabbir vis-a-vis the death of Riaz. No personal previous enmity or grudge existed between Ghulam Shabbir and the accused so as to depose falsely against them under oath. The name of Ghulam Shabbir is mentioned in the F.I.R. which was lodged within two hours of the occurrence and his statement is supported by the medical evidence and circumstances of the case. Kabbir, his brother Ghulam Shabbir and Ghulam Fatima lost their lives inside their house while they were gossiping with Muhammad Nawaz P.W.11 and Rabnawaz P.W.12. Both the eye-witnesses have given consistent and trustworthy account of the occurrence. They had no personal grudge against the appellant. The presence of Muhammad Nawaz complainant has been challenged for the reason that he lived at a distance of 40 miles and could not be present at the time of occurrence. This argument is devoid of force as the occurrence took place at about 1 a.m. during night while the matter was reported at the police station at 3-15 a.m. within two hours and fifteen minutes while the police station was at a distance of four kilometer. Four persons had lost their lives. All the accused were armed with deadly weapons. In that case the complainant would have left the spot to report the matter to the police after some time, as mentioned above, the F.I.R. was registered within two hours and fifteen minutes. In case Muhammad Nawaz P.W. would not have been present then the matter could not be reported by him within two hours as it would have taken much longer time firstly to report the matter to Muhammad Nawaz who lived at a distance of 40 miles and then for Muhammad Nawaz to reach the police station within two hours. The F.I.R. was lodged promptly which rules out the theory that Muhammad Nawaz was not present at the time of occurrence. The P.Ws., deceased and the accused knew one another very well, being relatives. The occurrence lasted for quite some time, assailants had been raising Lalkara so it was not difficult for the P.Ws. to identify the accused. It has been mentioned in the F.I.R. by the P. Ws. that the lanterns were burning at the time of occurrence. If the same were not taken into possession, it reflected upon the efficiency of the Investigating Officer and lapse on his part would not harm the prosecution case. Similarly, the acquittal of three co-accused would not benefit the appellant as the learned Courts below found their case distinguishable from those who were convicted.

8. The ocular account is supported by the medical evidence as all the deceased had lost their lives due to fire-arm injuries. It was natural for the P.Ws. to take some precautionary measures in order to save their lives. It was not expected out of them to give minute details relating to locale of injuries. We are not inclined to enter into microscopical re-appraisal of the ocular evidence of the P.Ws. vis-a-vis the seat of injuries, especially after the scrutiny by the learned two Courts below. The prosecution has successfully proved the motive which was not seriously challenged. The accused murdered Kabbir who had refused to divorce Mst. Zarina sister of Muzammil appellant the factum that Mst. Zarina left the house of her husband Kabbir and living with her parents had not been challenged. Ghulam Shabbir deceased is brother of Muhammad Kabbir while Ghulam Fatima is mother of Muhammad Kabbir deceased. Similarly, Muhammad Riaz deceased was married with the sister of Muhammad Kabbir deceased. So the close relative have been murdered. It was not necessary for the assailants to take lives of all those who were present.

9. As far as recovery of gun at the instance of appellant is concerned, in our opinion, that is of no consequence in the absence of empties taken from the spot. The nutshell of the whole discussion is that in our opinion, the prosecution has successfully proved its case against the appellant. Having come to this conclusion, we have given our anxious and considered thought to the quantum of sentence. It has been noticed by us that Ehsanullah co-convict (co-accused) who was assigned similar role was sentenced to imprisonment for life, he has not challenged his conviction and sentence. Similarly, neither the State nor the complainant has filed any petition seeking enhancement of his sentence. It is a settled law that when guilt of several accused proved to be equal and indistinguishable then no distinction could be drawn while awarding sentence to each of them. It was observed by this Court in the case of Shaheb Ali v. The State PLD 1970 SC 447 as follows:

"When the guilt of several accused persons concerned in a murder crime is proved to be equal and indistinguishable, it would be wholly illogical to pick on just one person out of the lot to pay by his life for the murder of the deceased and to spare the others."

10. It was further observed that "I have thought it better to err in favour of the condemned-appellant rather than against him, and for the additional reason that he has now been under the agony of the death sentence for a little less than two years". In addition to that it may be added that fires on the deceased were also attributed to the acquitted accused as well as on Asghar Ali who absconded. So it could not be said with certainty as to whose fire proved fatal. In somewhat similar circumstances in the case of Shehruddin v. Allah Rakhio and 5 others 1989 SCMR 1461 the sentence of accused was converted into life imprisonment in view of the fact that it could not be ascertained as to whose gunshot had hit the deceased in the darkness.

11. In these circumstances, while maintaining the conviction of the appellant recorded under section 302(b), P.P.C., we reduce the sentences of appellant to imprisonment for life. Other sentences are maintained. All the sentences shall run concurrently with benefit of section 382-B, Cr.P.C. With the above modification, appeal is partly allowed. H.B.T./M-14/SC Sentence reduced.