1998 PLP 94 (MLD)

HAMID SAEED MALIK, J.

Muhammad Rafiq son of Muhammad Shafiq, appellant herein, was tried for the murder of Muhammad Sajid, aged 17/18 years, son' of Muhammad Iqbal by the learned Sessions Judge/Judge Special Court, Swabi. By his judgment dated 6-2-1996, he convicted him under section 302, P.P.C. and sentenced him to death and to pay a fine of Rs.50,000 in default to undergo 5 years S.I. Fine, if recovered, is to be paid to the legal heirs of the deceased. The appellant was also ordered to pay compensation of Rs.50,000 under section 544-A, Cr.P.C. to the legal heirs of the deceased, in default he has to further undergo 6 months S.I. The appellant has preferred this appeal to call in question the legality of the impugned decision and the Murder Reference has also been put up before us for confirmation. This judgment will dispose of both the matters. As per contents of the First Information Report, this tragic incident occurred on 3-7-1988 at 1700 hours at the bank of a canal known as 'Syphon' Kalabat, as reported by Suhail son of Muhammad Naseer, P.W.4, a cousin of deceased and recorded by Naeem Shah, A.S.I. P.W.10, in Police Station Topi. The prosecution case is that deceased Muhammad Sajid alongwith the complainant (P.W.4), Muhammad Asif (P.W.5) and P.W. Tariq Gohar (abandoned) had gone to the 'Syphon' Kalabat for taking bath and when the deceased and his companions above said were standing there at the bank of the canal, appellant came there armed with a kalashnikov and fired at them, resulting into the death of deceased who was hit with the fie shot on his chest, while his companions escaped unhurt. The deceased, then injured, was rushed to the Police Station in a Datsun pick-up to report the matter, but he succumbed to his injury in the way. Motive of the occurrence was stated to be that two days prior to the occurrence, an altercation had taken place between the accused-appellant and the deceased as well his said companions. P.W.10 Naeem Shah Khan, S.H.O., after recording the F.I.R. (Exh.PA) and preparing the injury-sheet (Exh.P.W-10/1) as well as inquest report (Exh.P.W-10/2) proceeded to the spot where he prepared the site plan, Exh.PB, at the instance of the eye-witnesses. On spot inspection, this witness recovered blood-stained earth, 4 empties of 7.62 bore (1'2) freshly discharged and took the same into his possession vide recovery memo. Exh.PC/l. He also took into possession vide recovery memo. Exh.PC, blood-stained shirt (P1) bearing corresponding cut marks of the deceased, which was brought by Ihsan Akbar, F.C. from the mortuary. He also recorded statements of some of the P.Ws. and placed on file the report of the Chemical Examiner, Exh.PK, received by him during the course of investigation. Appellant was arrested on 11-8-1991 and after his release on bail disappeared but was arrested again on 22-6-1994. After his arrest and completion of investigation, the supplementary challan against him was submitted to the Court by the then S.H.O. Police Station Topi. After registration of the case, the dead body of the deceased was removed to the mortuary for post-mortem examination under the escort of Ihsan Akbar, FC No. 158 (P.W.7), where Doctor Abdul Latif, Medical Officer, Civil Hospital, Topi (P.W.6) conducted autopsy on the dead body of deceased and found the following injuries on external examination:-- "

1. Average body in clothing. (1) A fire-arm entrance wound circular in shape 1 c.m. in diameter on right side on front of chest in 4th intercostal space, 3 c.m. medial and 2 c.m. superior to right nipple. No charring, was present. (2) A fire-arm exit wound 4 c.m. x 5 c.m. on left side of back of chest just lateral to left scapula. Corresponding holes were present on the shirt. The shirt and Shalwar were soaked with blood. Internal Examination: Thorax:- Walls, ribs, cartilages, pleaurae, both lungs pericardium and heart, blood vessels were found injured. Stomach was found healthy and it contained semi-digested food. Remarks. In my opinion the death had occurred due to injury to the heart and lungs caused by fire-arm weapon. Probable time between injuries and death within fifteen minutes while time between death and post-mortem examination was within 2 hours." At the trial, the prosecution produced 11 witnesses and relied on the ocular testimony of Suhail, complainant of the case (P.W.4), Muhammad Asif (P.W.5), the motive and recoveries of blood-stained earth and 4 empties of Kalashnikov from the spot. The learned trial Court on relying the said evidence, convicted and sentenced the appellant as described above. Criticising the judgment, Barrister Zahurul Haq, learned counsel for the appellant argued that it was an unseen occurrence of a single shot and presence of the two eye-witnesses Suhail (P.W.4) and Muhammad Asif (P.W-5) at the spot has not been proved by the prosecution and absence of certain pieces of circumstantial evidence throws doubt on the prosecution case. The learned counsel further submitted that there is no evidence that the deceased and the said two witnesses had gone for taking bath to the syphone Kalabat. He clarified that it is the case of the prosecution that deceased and his three companions had gone to the said syphon and had wrapped 'chaddar' sheets for bath. But after the occurrence when they straightaway took the deceased to Police Station, no 'chaddar' was either produced by the witnesses or taken into possession by the Investigating Officer. It was stressed that if the alleged eye-witnesses were taking bath alongwith the deceased, then certainly wet bathing 'chaddars' should have been there on the spot. The learned counsel then referred to the site plan and submitted that even bare perusal of the site plan would show that it was not possible that the eye-witnesses, who were in direct firing range, from the point where the appellant has been shown, would have escaped unhurt, if they had been physically present on the places shown in the site-plan. The learned counsel further submitted that the two eye-witnesses are related to the deceased and, therefore, to rely on their statements in absence of any corroborative circumstantial evidence would not be just and safe and the very presence of the witnesses, above said, on the spot is highly doubtful, the conviction and sentences awarded to the appellant are neither fair nor in accordance with law. Lastly, the learned counsel for the appellant strongly contended that the prosecution has urged about the motive in the F.I.R. as well as in the evidence before the trial Court but motive has not been proved by the prosecution. It was also contended by the learned counsel that once a motive is urged then it is incumbent upon the prosecution to prove it. In the instant case, there is no detail about the alteration as on what date, time and place and before whom it had taken place and, therefore, the prosecution has failed to establish and prove the motive against the appellant. The learned counsel submitted that keeping in view the above facts, it is a case of no evidence and a false charge has been brought against the appellant. On the other hand, Khawaja Muhammad Khan, learned counsel for the complainant: submitted that appellant is directly charged in the F.I.R. by the complainant with whom he had no previous enmity. He further submitted that no doubt the eye-witnesses were related to the deceased but they have no enmity whatsoever with the appellant. Therefore, their statements could not be ignored or taken out of consideration. It was argued that it is a common practice that people do go with their friends to river or canal sides in summer season for taking bath and mere non-prosecution of wet bathing sheets should not be taken adverse to the prosecution case. He further submitted that statements of the eye witnesses are fully supported by the medical evidence and also contended that mere escape from the fire shot of the appellant of the eye-witnesses could not be termed that the witnesses who were allegedly in the firing range were not present there. Learned counsel was of the view that as the witnesses were examined by the trial Court after about 7 years of the occurrence, therefore, minor discrepancies could occur in their statements, which could not be made a base to brush aside the prosecution case. Muhammad Riaz Khan, learned Assistant Advocate-General adopted the arguments of the learned counsel of the complainant. We have considered the arguments of the learned counsel for the defence and prosecution and have also gone through the evidence with the valuable assistance of the learned counsel from both the sides. The argument of the learned counsel for the appellant that it was an un seen occurrence is not getting any support from the evidence on record. Both the eye-witnesses have fully corroborated the version of the prosecution on all the material aspects of the case and we see no material contradictions in their statements. It is a common practice that people in the villages do visit the river or canal sides in the summer season for the purpose of swimming. The prosecution has fully established on record that soon after the occurrence both the eye-witnesses took the injured to the Police Station but he died in the way and on reaching the Police Station one of the P.W., namely. Muhammad Suhail lodged the F.I.R., Exh.PA, wherein he directly charged the accused-appellant for the commission of the offence. After recording of the First Information Report, both the eye-witnesses then accompanied the Investigating Officer to the spot and on their pointation the Investigating Officer prepared the site-plan. It is also an admitted fact that the eye-witnesses of the occurrence were examined at the trial after about 7 years of the occurrence and. thus, the minor discrepancies coming out from the evidence of the said witnesses would not lead us to the conclusion that, in fact, they were not present on the spot and they have not seen the occurrence with their own eyes. Similarly, the argument of the learned counsel for the appellant that no 'Chaddar' was produced to the Investigating Officer so as to show their actual act of bathing at the syphone at the relevant time is also not an appealable one. It cannot be presumed that the eye-witnesses would have accompanied the deceased in a semi-naked condition having only 'Chaddars' on their bodies. Naturally, after the unfortunate incident they would have changed their 'Chaddars' which might have been removed from the spot after their departure from the scene of occurrence to the Police Station. It is also in the evidence that the Investigating Officer never asked about the production of the wet 'Chaddars' during the course of his investigation. In presence of the recovery of 4 empties of 7.62 bore from the spot coupled with recovery of blood-stained earth, being a strong circumstantial evidence with regard to the occurrence in question, the non-recovery of wet 'Chaddars', to our minds, is not so fatal to the prosecution case so as to shatter the whole prosecution evidence and we, therefore, decline to draw an adverse inference against the prosecution on this score. Perusal of the site plan Exh.PB, shows that at the relevant time the deceased was present at Point No. 1 whereas the two eye-witnesses were present at Points Nos.2 and 4 behind him. The presence of accused-appellant at Point No.5 clearly suggest that a person present at Point No.l (in this case the deceased) would have been first targetted in case of firing from Point No.5 and same is the case of the prosecution. Hence, the possibility of luckily escaping unhurt of the eye-witnesses at Points Nos.2 and 3 would also not lead us to the conclusion of their physical disappearance at the spot. No doubt, the eye-witnesses in this case are related to the deceased, but mere relationship of the witnesses with a victim-party is, not ground for disbelieving their true assertions with regard to the occurrence, unless it is proved otherwise that they were inimical towards the accused also. This aspect of the case goes against the appellant so far as the available evidence on record is concerned. Rather, it fully establishes that the occurrence has taken place in a broad day light; that the appellant and the deceased party are co-villagers and there is no chance of mistaken identity; that the amused-appellant has been directly charged in the F.I.R.; and that the direct evidence of the eye-witnesses is fully supported by the medical as well as other circumstantial evidence. Coming to the side of motive, we are, however, in agreement with the learned counsel for the appellant that the prosecution in the present case has alleged a motive but failed to properly substantiate it. The alleged motive was of general nature as it is in the evidence that an altercation had taken place two days prior to the occurrence in between deceased, his companions and the appellant. Details of the altercation and its base is missing in the prosecution. So, the real motive for the crime remains shrouded in mystery and the prosecution has not come forward with the true story lead in to the murder of Muhammad Sajid, deceased. We also agree with the learned counsel for the complainant that minor discrepancies do occur in the evidence of the witnesses, particularly, when examined after a sufficient long time as in the present case and, thus, the overall conclusion from the prosecution evidence is that the case against the appellant is proved to the hilt. Since the move set up by the prosecution is obscure and the real cause of the murder is shrouded in mystery, we think that the end of justice would be properly served if the appellant is awarded the lesser penalty provided for the offence of murder. We, therefore, order accordingly and while maintaining the conviction of the appellant under section 302 P.P.C., alter his sentence from death to that of imprisonment for life. The sentence of fine and compensation would, however, remain intact. With the above modification in the sentence, the appeal in hand is otherwise dismissed. The Murder Reference, as such is not confirmed. N.H.Q./2221/P Sentence reduced.