1998 P Cr (PLP)

RAJA MUHAMMAD SABIR, J.

Appellant Muhammad Iqbal (41) and his brother Muhammad Riaz (27) were tried by learned Sessions Judge, Attock in the case F.I.R. 379, dated 17-11-1992 registered under section 302/34, P.P.C. at Police Station Hasan Abdal for murder of Muhammad Aslam (40). Learned trial Judge convicted the appellant under section 302, P.P.C. and sentenced him to death while he acquitted Muhammad Riaz of the charge by giving him the benefit of doubt, vide judgment, dated 16-8-1993. Learned Sessions Judge has sent the reference for confirmation of the death sentence awarded to the appellant. The convict has filed Criminal Appeal No. 159 of 1993 against his conviction and sentence. Criminal Revision No.98 of 1993 has been preferred by the complainant against the acquittal of Muhammad Riaz. All the three matters shall be disposed of together through this single judgment.

2. The prosecution case as disclosed in the F.I.R., is that Muhammad Nasim complainant is resident of Deh Malyaran Dakhli Sondki, Tehsil Hassan Abdal, District Attock and is a mason by profession. On 17-11-1992 about 9-30 a.m. he along with his father Muhammad Aslam, mother Mst Ghulam Ayesha, uncle Muhammad Shafi and Muhammad Nazir, his cousin were present at their Dera. Meanwhile Muhammad Iqbal armed with .12 bore gun and his brother Muhammad Riaz empty-handed came there. Muhammad Riaz asked his brother Muhammad Iqbal to teach a lesson to Muhammad Aslam for abusing whereupon Muhammad Iqbal fired with his gun at the father of the complainant which landed at his left temple. On receipt of the injury he fell down. Muhammad Iqbal fired a second shot at the victim which hit him on the left side of his face. He succumbed to the injuries at the spot. Both the accused ran away from the spot. The motive alleged in the F.I.R. is that three days prior to the occurrence Muhammad Iqbal and Muhammad Riaz were cutting grass from the land of the complainant party. They were forbidden by Muhammad Aslam deceased whereupon an altercation took place between them and abuses were exchanged. On account of the grudge nourished by the accused, they in furtherance of their common intention came at the spot while armed with a gun and murdered Muhammad Aslam, father of the complainant.

3. Muhammad Nasim lodged the F.I.R. at Police Station Hassan Abdal on the same day at 10-30 which was recorded by Muhammad Yousuf S.-I. P.W.10. Thereafter, he visited the place of occurrence. He after preparing the injuries statement Exh.P.D. and inquest report Exh.P.H. sent the dead body of the deceased to mortuary under the escort of Abdul Hameed Constable for its post mortem examination lie recovered the blood-stained earth from the spot. On the same day he also recovered two empty cartridges EXh.P.I and Exh.P.2 from the place of occurrence vide memo. Exh.P.E. He prepared rough site plan Exh.P.1. He summoned the Patwari and at his instance he prepared the site plan Exh.P.B. and Exh.P.B./1. He arrested the appellant Muhammad Iqbal on 6-12-1992 and while in custody he led to the recovery of his licensed .12 bore gun Exh.P.3 along with his licence from his residential room situated in village Malyaran which was secured vide memo. Exh.P.F. On the same day he arrested Muhammad Riaz his co-accused. After completion of investigation of the case he submitted challan of the case for trial of the accused.

4. Dr. Shahid Hafeez, Medical Officer, Civil Hospital (P.W.1) conducted the autopsy on the dead body of Muhammad Aslam on 17-11-1992 at 4-20 p.m. and found the following injuries thereon:-- (1) A circular wound 1 x 1 c. m. (inlet) on left temporal and frontal region skull, going deep into the brain cavity. The edges were inverted. There was blackening around the wound. (2) An inlet wound 1.5 c.m. x 1.00 c.m. on the left cheek, about 7 c.m. left to nose. The edges of the wound were inverted. There was blackening around the wound. (3) An outlet wound 2 x 2 c.m. on right side of neck just below right jaw about 8 c.m. below right ear. The edges of the wound were averted. (4) An inlet wound on base of neck on left side, 2 x 1.5 c.m. going deep inwards. The blackening were present around the wound. There were corresponding holes on the Qamiz and the Sluka. According to the doctor, skull bone under injury No.1 was fractured and left jaw under injury No.2 was fractured. The injuries were caused by a fire arm and were ante-mortem. In his opinion the death was caused due to shock and haemorrhage from vital organs caused by injuries Nos. l, 2 and 4 which were sufficient to cause death in ordinary course of nature. Probable time between the injuries and death was immediate and between death and post mortem examination was 5 to 6 hours approximately.

5. P.W.2 Muhammad Mumtaz. Constable stated that on 14-12-1992 when he was posted at Police Station Hassan Abdal Saddar Sikandar Hayat, M.H.C. gave him a sealed parcel containing .12 bore gun which he delivered in tact in the office of Forensic Science Laboratory on 15-12-1992.

6. P.W.3 Naeem Ullah, Constable Police Station Saddar Hassan Abdal stated that on 27-11-1992 Sikandar Hayat M.H.C. entrusted `him two sealed parcels containing blood-stained earth and empty cartridges for onward transmission to the office of Chemical Examiner and Forensic Science Laboratory respectively and he delivered the same in tact in the respective Laboratory on 28-11-1992.

7. P.W.4 Malik Anwarul Haq, Halqa Patwari Kot Sondki stated that on 17-11-1992, at the instance of the police he visited the spot and prepared site plan and its duplicate Exh.P.B. and Exh.P.B./1 in the scale of 30 Karams to an inch. All the drawings, notes in black ink, number Khasra and the points in red ink are in his handwriting and signed by him.

8. Muhammad Nasim and Muhammad Shaft P.Ws.5 and 6 furnished the ocular account. They supported the prosecution case as disclosed in the F. I. R.

9. P.W.7 Ghulam Mustafa stated that he was associated with the investigation of the case on 17-11-1992. He supported the recovery of blood stained earth and empty cartridges ExhsP.I and P.2 vide Exhs.P.D. and P.E. respectively from the spot.

10. P.W.8 Afzal son of Karam Dad stated that Iqbal accused while in police custody made a disclosure and led to the recovery of a .12 bore gun Exh.P.3 from his residential house which was secured in a sealed parcel vide memo. Exh.P.F. He further stated that the accused also got recovered his license No.3045/91, District Peshawar. He and Muhammad Riaz given up P.W. attested the said memo.

11. P.W.9 Sikandar Hayat H.C. stated that while posted as Moharrar at Police Station Saddar Hassan Abdal Muhammad Yousuf S.-I. (P.W.10) handed over two sealed parcels containing blood-stained earth and empty cartridges on 17-11-1992 which he delivered to Naeem Ullah, Constable on 27-11-1992 for delivery to the office of Chemical Examiner and Fire-arm Expert, Lahore. He further stated that on 6-12-1992 said Police Officer gave him a sealed parcel containing .12 bore gun for safe custody which he handed over to Mumtaz Khan, Constable for onward transmission to the office of Forensic Science Laboratory, Lahore in tact on 14-12-1992.

12. According to the reports of the Chemical Examiner and Serologist, Exh.P.K. and Exh.P.L., the blood-stained earth sent to them for analysis was stained with human blood. Similarly report of Director Forensic Science Laboratory, Crime Branch, Punjab, Lahore on the crime empties recovered from the spot and the gun recovered at the instance of Muhammad Iqbal, was positive inasmuch as the crime empties marked as C.1 and C.2 were found to have been fired from the shotgun of .12 bore in question.

13. Both the accused while making their statements under section 342, Cr.P.C. denied the allegations and pleaded their innocence. They stated that they had been falsely roped in this case on account of previous enmity between the parties. However, neither they made a statement on oath under section 340(2), Cr.P.C. nor they produced any witness in defence.

14. Learned trial Judge relying upon the prosecution evidence, convicted and sentenced Muhammad Iqbal appellant and by giving the benefit of doubt acquitted his co-accused Muhammad Riaz, as mentioned above.

15. Sardar Muhammad Ishaq Khan, learned counsel for the appellant contends that there is conflict between the ocular account and the medical evidence, inasmuch as according to the evidence of P.W.1 Dr. Shahid Hafeez, there was blackening around the wounds and that was only possible if the fire was shot within the range of three feet while according to the prosecution evidence the accused were standing at a distance of seven Karams from the deceased. He further submits that the deceased was hit by one shot while according to the prosecution two fires were made at him. According to him the complainant was a mason and was not expected to be at home at the time of occurrence and was supposed to be at the job site at that time. He maintains that the eye-witnesses (P.W.5 and P.W.6)-have not seen the occurrence and their evidence is not at all worth reliance. He further contends that the motive as set up in the F.I.R. was not proved. Muhammad Nasim P.W.5 is not witness of earlier occurrence which had been made basis of the instant incident. His evidence does not prove the motive. Once the motive is set up and it is not established, benefit must go to the accused and the motive having not been established by the prosecution, death sentence awarded to the appellant is not sustainable.

16. S.M. Ayub Bukhari, learned counsel for the complainant, on the other hand submits that the prosecution has proved its case against the accused beyond reasonable doubt. Appellant was rightly convicted and sentenced to death by the learned trial Judge. However, he submits that he has erroneously acquitted Muhammad Riaz, respondent in Criminal Revision No.98 of 1993, which has resulted in grave miscarriage of justice.

17. Learned State Counsel has submitted that the word blackening has erroneously been mentioned in the medical evidence. The fire was shot at from a distance of 7 Karams at the deceased therefore, blackening is not possible from such a distance. The occurrence has taken place at 9-30 a.m. The matter was promptly reported to the police at 10-30 a.m. There was no premeditation or consultation before lodging the F.I.R. He has supported the impugned judgment.

18. We have heard the learned counsel for the parties and gone through the evidence and other record with their assistance. The occurrence took place at 9-30 a.m. on 17-11-1992 which was witnessed by Muhammad Nasim P.W.5, Muhammad Shaft P.W.6, Mst. Ghulam Ayesha and Muhammad Nazeer (both given up P.Ws.). Muhammad Nasim is the son of the deceased whereas Muhammad Shafi is the first cousin of the deceased. P.W.5 promptly lodged the F.I.R. at 10-30 a.m. on the same day at the police station situated at a distance of 10-1/2 miles from the place of occurrence without any premeditation or consultation. P.W.5 and P.W.6 have supported the prosecution case as given in the F.I.R. Although these witnesses are closely related to the deceased but they are not hostile towards the appellant. No serious enmity is proved between them and the accused. They were subjected to lengthy cross-examination by the defence counsel but their deposition remained un-shaky and consistent regarding the role played by the appellant during the occurrence. They have given true account of the occurrence. P.W.5 is the son of the deceased and was living in the same house while P.W.6 is the resident of the Deh and was present at the time of occurrence. They are natural witnesses of the occurrence. Their evidence does not suffer from any legal infirmity or inherent disqualification. Their evidence inspires confidence and is trustworthy.

19. Ocular account furnished by P.W.5 and P.W.6 is supported by medical evidence and the recoveries. According to the F.I.R. the fire hit the deceased on his left temporal and frontal region. As far as number of fires is concerned, after going through the medical evidence and the nature of injuries on the person of deceased, it appears that only one shot hit the deceased which was fired at from a distance of about 7 Karams as alleged by the prosecution. One pellet was found in the body another was exit wound and third was not traceable. If the assailant had fired at the deceased from a distance of four feet, as claimed by the defence, there would have been more pellet injuries on the location where the fire hit the temporal region of the deceased. Hitting of only three pellets on the person of deceased indicates that the deceased was hit slightly from a distinct place of seven Karams (approximately). The medical evidence shows that the deceased was hit by one fire with .12 bore gun. The other fire alleged by the prosecution is not established to hit the deceased. It might have missed the target as two empties were found at the spot at the time of inspection by the Investigating Officer. The injuries on the person of the deceased were caused by one fire. As far as blackening around the wounds is concerned, that is only circumstantial evidence which cannot brush aside the other cogent and reliable evidence of the prosecution. The site plan prepared by the draftsman coupled with the evidence of P.W.5 and P.W.6 clearly indicates that the appellant fired at the deceased from a distance of seven Karams. The nature of injuries, their locations are consistent with the ocular account. We do not see any conflict between the medical evidence and the ocular account.

12. Two empties recovered from the spot by the Investigating Officer Exhs.P.1 and P.2 on 17-11-1992 were sent to the Forensic Science Laboratory, Lahore on 28-11-1992. Appellant Muhammad Iqbal was arrested by the Investigator, on 6-12-1992 and while in Police custody he led to the recovery of gun P.3, which was sent to the said Laboratory on 15-12-1992. According to the report of the Director Forensic Science Laboratory Exh.P.M. the empties wedded with the weapon. The recovery of gun is not disputed. This further corroborates the prosecution case that the appellant used his licensed gun during the commission of the crime. The evidence of recovery and report of the Forensic Science Laboratory further strengthen the prosecution case in addition to ocular account and the medical evidence.

20. The contention of the learned counsel for the appellant that the complainant being a mason was not supposed to be at home at the time of occurrence is without any merit. A mason is not a regular paid employee. He gets job on daily wages and after completion of the project assigned to him, some times he remains idle at home for a number of days. It is a matter of common knowledge that a mason stays at home when he does not get the job. P.W.5 is a mason by profession. He was residing with his father and was present at the time of occurrence at home. He as well as P.W.6 who is resident of the same village are the natural witnesses of the occurrence. Their evidence inspires confidence and is trustworthy. The ocular account, medical evidence and the recoveries support each other. The prosecution has established its case against appellant Muhammad Iqbal beyond reasonable doubt. He was rightly convicted under section 302, P.P.C. for the murder of Muhammad Aslam deceased.

21. Regarding quantum of sentence, the motive. part alleged by the complainant in the F.I.R. is too weak to be believed. According to the complainant, there was exchange of abuses between the deceased and the accused three days prior to occurrence over cutting of grass from their land. The complainant was not present when the said incident took place. The prosecution has not produced any witness who saw the said occurrence. The complainant was informed by the deceased about the hot words exchanged between him and the accused. There is no direct evidence to prove the motive part of the prosecution. The same is shrouded in mystery and in this view of the matter we are not persuaded to confirm the death sentence awarded to the appellant and instead sentence him to, imprisonment for life.

22. So far as the acquittal of Muhammad Riaz respondent (respondent in Criminal Revision No.98 of 1993) is concerned, his case is clearly distinguishable from that of Muhammad Iqbal appellant. He allegedly came at the spot empty handed and asked his brother to teach a lesson to the deceased for hurling abuses. No overt act is attributed to him. He is younger brother of the appellant and there is no evidence on the record to prove that appellant, who is elder brother, acted under command of his younger brother. He did not cause any injury to the deceased. Nothing incriminating has been recovered from him. I He being younger brother of appellant Muhammad Iqbal, his false implication in the case cannot be ruled out and prosecution evidence does not connect him with the commission of the crime. He was rightly given the benefit of doubt, and acquitted of the charge. His acquittal does not suffer from any legal infirmity calling for interference by us.

23. The upshot of the above discussion is that we while maintaining the conviction of appellant Muhammad Iqbal under section 302, P.P.C. alter his sentence from death to imprisonment for life. He shall also be given benefit of section 382-B, Cr.P.C. With this modification in the sentence. Criminal Appeal No. 159 of 1993 is dismissed. The death sentence awarded to the appellant is not confirmed. Murder Reference No.227 of 1993 is answered in the negative. Criminal Revision No.98 of 1993 is dismissed. N.H.Q./M-675/L Sentence reduced.