1998 P Cr (PLP)

(2) An incised wound 9 c.m. x 1-1/2 c.m. x DNP on middle of head extending from midline to right parietal region. Brain matter was coming out of the wound and it was bleeding. According to him both the injuries were grievous having been caused by sharp-edged weapon within a duration of 2 to 2-1/2 hours. Exh.P.E is the carbon copy of his medico-legal report. On the same day, he medically examined Rashid P. W. and found the following injuries on his person: (1) Lacerated wound which was V shape, 4 c.m. x 1 c.m. x DNP on occipital region of head. (2) An incised wound 2 c.m. x 1 c.m. x muscle cutting left upper lip. (3) An incised wound 1 c.m. x 1-1/2 c.m. x muscle cutting inner side of left upper lip. (4) An incised wound 1 c.m. x 1/4 c.m. x DNP on gums of left side of upper jaw between second incisors and canine. The patient was admitted and X-rays of skull from A.P. and lateral view were advised. According to him injury No.l was kept under observation while rest were simple. Injuries Nos.2, 3 and 4 were caused by a sharp-edged weapon while injury No.l by blunt weapon. The duration of the injuries was within five hours. On the same day, he medically examined Muhammad Arif injured P.W. and found the following injuries on his person:-- (1) An incised wound 5 c.m. x 1 c.m. x DNP on temporal region of right side of head. (2) Swelling on top of head measuring 3 c.m. x 3 cm. (3) An abrasion 4 c. in. x 3 c. m. on left shoulder. X-rays of skull and left shoulder from A.P. and lateral views were advised. All the injuries were kept under observation. Injury No.l was caused by sharp-edged weapon and rest by blunt weapon within a duration of 6 hours. On the same day, he medically examined Muhammad Waris injured P.W. and found the following injury on his person:-- (1) A swelling on whole of right hand. X-rays of right hand from AP and lateral view was advised The injury was kept under observation, having been caused by blunt weapon within a duration of 6 hours and on the basis of the report of Radiologist on X-rays, the same was declared grievous. Exh. P.H. was the carbon copy of his medico-legal report.

11. P.W.8 Akhtar Naqash, Draftsman on 7-1-1991 inspected the spot and prepared the site plan Exh. P.J. and Exh.P.J./1 in the scale of 20 feet to an inch on the directions of the police and pointing out of the P.Ws. and handed over the same to the police on 13-1-1991.

12. P.W.9 Muhammad Waris

complainant had reiterated the contents of his statement Exh. P.D. whereas P.W.10 Muhammad Rashid and P.W.11 Muhammad Arif had corroborated his statement in all material details.

13. P.W.14 Muhammad Sharif had witnessed the recoveries of blood stained Chhuri P.7, Dang P.8, two hatchets P.9 and P.10, on the pointing out of Zulfiqar, Muhammad Khalid, Rafaqat and Liaqat accused/appellants, vide memos. Exh. P.Q., Exh.P.R., Exh. P.S. and Exh. P.T. respectively.

14. P.W.17 Amjad Hussain, Constable on 11-3-1991 was handed over two sealed parcels by the Moharrir for their onward transmission to the Office of Chemical Examiner, which he delivered there on the same day, but on 12-3-1991 the said parcels were returned to him under some objection and he delivered them back to the Moharrir. On 26-3-1991, the sealed parcels were again handed over to him for their delivery in the Office of the Chemical Examiner and he delivered the same intact on the same day.

15. The prosecution had given up Muhammad Akbar P.W, as being won over, whereas Muhammad Arshad, and Mst. Allah Rakhi P.Ws. as being unnecessary and while tendering in evidence reports of the Chemical Examiner Exhs. P.V, and P. X, and report of the Serologist Exh P.Y, closed its case. 16, In their statements, recorded under the provisions of section 342, Cr.P.C. the appellants had denied the allegations levelled against them in the F.I.R. and also denied the recovery of weapons of offence at their instance, by deposing that Mst. Farida Kausar and Muhammad Khalid were living with Muhammad Hanif and as a matter of fact, the complainant party launched attack to forcibly take back Farida Kausar as a result of which Liaqat Ali-appellant, his mother namely Mst. Sardaran Bibi and Zubaida Bibi had sustained large number of injuries in front of the house of Muhammad Hanif at the hands of Rashid Ahmad, Muhammad Arif and Muhammad Waris and that Liaqat Ali accused had acted in the exercise of his right of self-defence. They had deposed that the injured persons from their side were medically examined at Daska, as the complainant party was bent upon committing' violence in the District Headquarters Hospital, Sialkot. The appellants had examined Dr. Saadat Ullah Cheema as D.W.1, who had medically examined Mst. Zubaida Bibi, Mst. Sardaran Bibi and Liaqat Ali and found 14, 8 and 8 injuries on their persons respectively. He has also testified the medico-legal reports Exh. D.D., Exh. D.E. and Exh. D.F. in respect of the said injured persons, to be in his hand. Liaqat Ali appellant had tendered In evidence copies of F,I.R, No,45 of 1992, dated 28-1-1992, Criminal Miscellaneous No,4002=B of 1991, and an application addressed to the Inspector-General of Police Punjab, Lahore, alongwith its postal receipt, as Exh. D.G., Exh. D.H. and Exh. D.J. respectively and closed his defence. All the appellants however, did not get recorded their statements under the provisions of section 340(2), Cr.P.C,

17. The learned trial Court taking into consideration the facts and circumstances of the case convicted and sentenced the appellants as stated above.

18. The leaned counsel for the appellants, the State and the complainant were heard and the record of the case perused with their assistance,

19. The learned counsel for the appellants argued that the motive asset up has not been proved, whereas the explanation provided by the defence through the statement of Liaqat appellant under section 342, Cr.P.C. to the effect that immediate cause of the occurrence in question was Mst. Farida Kausar and pursuant to the murderous assault by the complainant party against him and his womenfolk, he was forced to retaliate in self-defence that had resulted in injuries to the prosecution witnesses in question. Further argued, as the entire facts and circumstances of the case fully support the version of the said appellant Liaqat, therefore, his case should be decided within the ambit of self-defence, as provided by law, whereas rest of the appellants deserve to be acquitted, Further submitted that the recoveries are of no consequence, as Dang P.8 recovered from Muhammad Khalid appellant, vide memo, Exh.P.R. was not blood-stained, whereas Chhuri P.7 hatchet P.9 and hatchet P.10 recovered from Zulfiqar, Rafaqat and Liaqat appellants, vide memo. Exh. P.Q Exh. P.S. and Exh. P.T., respectively, were allegedly blood-stained, but there is no report of the Serologist exhibited to the effect that the said three recoveries were stained with human blood: and further impugned the said recoveries by pointing out that as the recoveries had been effected on 28-2-1991 i.e. one month and 24 days after the occurrence in question that had taken place on 4-1-1991 and thereafter had been received by the Chemical Examiner on 26-3-1991, as recorded in Exh. P.X. i.e. report of Chemical Examiner, therefore the same could not be relied upon as persistently held by the superior Courts. In this respect, reliance was placed on The State v. Mst. Mukhtaran and others 1980 PCr.LJ 827 and Khandoo etc. v. The State 1977 PCr.LJ

560. Further contended that as the prosecution had falsely implicated Muhammad Hanif in the instant case by naming him in the F.I.R. as the instigator of the occurrence in question, therefore, further false involvement of the three appellants i.e. other than Liaqat appellant, cannot be ruled out. Argued that the two sharp-edged injuries suffered by the deceased i.e. injuries Nos. l and 2, are so close to each other as is evident from the post-mortem report Exh. P.C, and being on the same side of the head, the said injuries having been caused by the same person, cannot be ruled out and the benefit thereof should go to Rafaqat appellant, who had denied the charge, whereas Liaqat appellant had admitted to have acted in self-defence.

20. On the other hand, the learned counsel for the State supported the `impugned judgment and argued for sustaining the conviction and sentences awarded to the appellants by emphasising that the occurrence stands admitted whereas the plea of self-defence taken up by Liaqat appellant has not been proved, as the defence had failed to discharge the onus of proof thus placed on it, Further submitted that according to the site plan Exh. P.J. and the recovery of load-stained earth it is duly proved that the occurrence had taken place in open space and not in the house of the appellant Liaqat, as implied by him in his statement under section 342, Cr.P.C. Further argued that as the alleged injured family members of the accused party, namely, Mst. Zubaida Bibi and Mst. Sardaran Bibi had not appeared before the learned trial Court to support the version of Liaqat appellant, therefore, his statement to that effect needs to be totally ignored.

21. The learned counsel for the complainant has adopted the arguments advanced by the learned counsel for the State and further submitted that the motive was not essential to prove the charge in the presence of direct evidence by the injured prosecution witnesses, as was the case in the instant occurrence which had taken place during the day time between the parties known to each other and that had resulted in brutal murder of the deceased Muhammad Malik.

22. The Court had given its anxious consideration to the arguments advanced for and against the present criminal appeal. The motive as alleged by the prosecution shall be dealt with at first. In that respect, it has been taken notice of that whereas the prosecution version itself refers to Mst. Farida Kausar and her step-brother Muhammad Khalid had been given shelter by the accused party that had caused an altercation to take place between the accused party and Abdul Rashid P.W.10, yet the immediate cause is stated to be an attempt by appellant Khalid to lift some rice from the house of his mother Mst. Maqsooda Begum, but without producing the said lady to support the said version and such a failure on the part of the prosecution raises serious doubts in respect thereof. Furthermore, the complainant P.W.9 Muhammad Waris had admitted during his cross-examination that immediately a day after the present occurrence the said Mst. Farida Kausar had been forcibly abducted by the complainant party and that pursuant to the filing of a habeas corpus petition, she was recovered and F.I.R. Exh. D.G. had been lodged against some members of the complainant party named therein. Therefore, it is hereby held that the prosecution had failed to prove the motive as alleged, but the explanation of the accused in that respect is more plausible and needs to be relied upon for the reasons recorded above. The Court is further constrained to observe that immediate cause of the occurrence in question is shrouded in mystery and the possibility of the instant occurrence having taken place on the spur of moment, pursuant to an altercation resulting from the exchange of hot words between the parties, cannot be ruled out, and that, therefore, every accused shall be liable for his own act only.

23. To deal with the alleged recoveries of weapons of offence stated above, it shall suffice to record that in the absence of the report of the Serologist it cannot be accepted that the hatchets in question were stained with human blood and furthermore that the extremely late recoveries thereof rules out any possibility of said recoveries being helpful in supporting the case of the prosecution, as charged. Here it may be observed, as help time and again by the superior Courts and specially in the authorities relied upon by the learned counsel for the appellants i.e. The State v. Mst. Mukhtaran and others 1980 PCr.LJ 827 and Khandoo etc. v. The State 1977 PCr.LJ 560 that weapon of offence could not retain blood stains on it for nearly two months.

24. Court is only left with the ocular evidence, as provided by the three eye-witnesses, all injured and the corroboration thereof provided by the medical evidence. But specially taking into consideration the answer to question No. 10 by appellant Liaqat in his statement recorded under the provisions of section 342, Cr.P.C., it is hereby observed that except for claiming that he had acted in his own self-defence and in the defence of his womenfolk, he had not provided any specific details regarding as to how he alone had caused injuries to the deceased and to the three injured P W

5. Therefore, his statement can only be accepted to the extent of his admission to have participated in the occurrence in question that had led to tile death of the deceased and injuries to the prosecution witnesses. However, it further stands proved on the record through the testimony of D.W.1 Dr. Saadat Ullah Cheema and medico-legal report Exh. D.F. that Liaqat appellant had also suffered injuries, which had been suppressed by the prosecution. It is further observed, taking into consideration the nature of injuries i.e. blunt and sharp, suffered by the three prosecution witnesses named above, that the same could not have been caused by Liaqat appellant alone, who is said to have been armed with a hatchet and that, therefore, participation of the two appellants namely Zulfiqar and Khalid, cannot he ruled out; specially, as the parties were known to each other and the injured P Ws. had specifically named the said two appellants to have caused specific injuries it their respective persons. In that respect, the testimony of the injured P.Ws. is consistent and confidence inspiring except in the case of Rafaqat appellant.

25. To deal with the case of Rafaqat appellant, it is noted that all the three eye-witnesses had made improvements in their testimony before the learned trial Court by stating that he had caused injury to the deceased on the top of the head, whereas at first they had stated that the same was caused on the right side and with regard thereto they were duly confronted, which raises serious doubt about their testimony against the said appellant Rafaqat. In addition thereto, it has been taken notice of that both the injuries suffered by the deceased are in very close proximation to each other and on the right side, which gives rise to possibility that they may have been caused by same person and that the benefit of the doubt thus arising should go to the, appellant Rafaqat. In this respect, it is further observed that the tendency to involve innocent person/persons in the instant case had been duly borne out by the involvement of Muhammad Hanif, who was neither challaned nor summoned by the learned trial Court. Therefore, as the motive stands disbelieved, recoveries of weapons discarded, serious doubts arisen because of improvements made by the eye-witnesses in respect of Rafaqat appellant, as stated above, causing doubt about the seat of injury attributed to him, and as it has been held, as recorded above, that every accused is liable for his own act only in the instant matter, it is hereby held that the prosecution had failed to prove its case against him beyond reasonable doubt. Consequently, he is 'acquitted of the offences charged. He shall be released forthwith, if not required to be detained in any other case.

26. This brings the Court to the case of appellants Zulfiqar and Khalid. Suffice it to state that the injured P.Ws. had specifically named them to have caused specific injuries and as their testimony has stood the test of lengthy cross- examination, therefore, convictions of the said appellants, as recorded by the learned trial Court i.e. Zulfiqar-appellant under section 337-A(i), P.P.C. and Khalid-Appellant on one count under section 337-A(iii), P.P.C. and on two counts under section 337-A(i), P.P.C., are hereby maintained, However, as they have already suffered substantive imprisonments for almost one year and are on bail at present, therefore, while reducing their respective sentences to the periods already undergone by them the said two appellants are directed to pay the fine and compensation as follows:-- Zulfiqar-appellant: Fine of Rs.5,000 or in default thereof to suffer 6 months' R.I. and compensation of Rs.10,000, payable to injured P.W.10, Muhammad Rashid, or to undergo S.-I. for 6 months in default thereof; Khalid-appellant; Fine of Rs.5,000 or in default thereof to suffer 6 months' R.I., compensation of Rs.10,000, payable to injured P.W.9, Waris, or to undergo S.-I. for 6 months in default thereof; fine of Rs.5,000 or in default thereof to undergo R.I. for 6 months, compensation of Rs.10,000 payable to injured-Arif P. W .11, or in default thereof to suffer S.-I. for 6 months; and fine of Rs.5,000 or to suffer R.I. for 6 months in default thereof and compensation of Rs.10,000 payable to injured-Muhammad Rashid P.W.10, or in default thereof to undergo S.-I, for six months.

27. To deal with the case of Liaqat appellant, it is hereby emphasised that the prosecution had not come out with the whole truth regarding the mode and manner in which the present occurrence had taken place, as is evident from mystery shrouding Immediate motive for the occurrence and the suppression of injuries suffered by this appellant. The injuries suffered by Liaqat-appellant leads to the reasonable inference that the complainant party was not entirely innocent of blame in the instant occurrence although the appellant-Liaqat has not been able to discharge the onus placed on him to prove his plea of self-defence, as stated above. Consequently, it is hereby held that he is guilty of having caused the death of Muhammad Malik-deceased. The ocular evidence of the three injured prosecution witnesses, medical evidence and his own statement fully support the conclusion thus arrived at. However, this brings us to the question as to under what provisions of law he shall be held guilty of the said offence under the facts and circumstances highlighted. The punishment for Qatl- i-Amd, and is the case herein, has been provided under the provisions of section 302, P.P.C., which is as follows:-- "302 Whoever, commits Qatl-i-Amd shall, subject to the provisions of this Chapter be

(a) punished with death as Qisas; (b) punished with death or imprisonment for life as Tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or (c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable." A perusal of the above section makes it clear that three different types of punishment for Qatl-i-Amd has been provided thereunder The punishment of death as Qisas has not been applied in the instant case by the learned Trial Court and the sentence of imprisonment for life as Tazir has been awarded to the l appellant-Liaqat by the impugned judgment without specifically referring to subsection (b) of section 302, P,P,C. But subsection (e) of the said section further provides for imprisonment of either description for a term which may extent to twenty-five years, whereas according' to the Injunctions of Islam the punishment of Qisas is not applicable. The difference between the two provisions i.e. subsection (b) and subsection (c), applicable instead of Qisas is that whereas under subsection (b) the punishment is to be imprisonment for life and under the provisions of subsection (c), imprisonment thereof may extent to 25 years. Therefore, the Court hereby holds that under the facts and circumstances highlighted in respect of appellant Liaqat, as recorded above, it shall meet the ends of justice, if the punishment of imprisonment for life awarded to him is converted into punishment under the provisions of subsection (c) of section 302, P.P.C. Pursuant thereto, the Court hereby modifies the sentence of imprisonment for life awarded to Liaqat appellant to 14 years' R.I. under subsection (c) of section 302, P.P.C. He is further directed to pay Rs.20,000, to be paid as compensation to the legal heirs of the deceased Muhammad Malik, or to suffer S.-I. for 6 months in default thereof. His conviction under the provisions of section 337-A(i), P,P.C. to R.I. for one year with a fine of Rs.5,000 or in default thereof R.I. for 6 months, for having caused injuries to Arif P.W., is hereby maintained, with the further direction that he shall also pay Rs.10,000 to be paid as compensation to the injured P.W. Arif, or shall suffer S,-I. for six months in default thereof. The sentences awarded to Liaqat-appellant shall run concurrently and he shall be entitled to the benefit of the provisions of section 382-B.Cr.P.C.

28. In accordance with the modifications stated above, the present criminal appeal is partly allowed and disposed of accordingly.

29. For the reasons recorded above, Criminal Revision No.257 of 1993, directed to be heard alongwith the present criminal appeal, stands dismissed. N.H.Q./Z-50/L Order accordingly.