2002 PLP 1754 (YLR)

4. Investigation of this case was taken over by Muhammad Ajmal, A.S.I., P.W.10. He after registration of the case accompanied the complainant to hospital where the dead body of Javed Iqbal deceased was lying. He prepared the injury statement Exh.P13 and inquest report M.N. From the spot he took into possession blood‑stained earth vide memo. Exh.PI. Thereafter, the investigation of the case was taken over by Ghulam Yasin Inspector P.W.11. He on 6‑9‑1996 arrested Sarfraz, Umer brat, Muhammad Nawaz, Muhammad Mumtaz and Saee Muhammad and obtained their physical remand. On 10‑9‑1996 arrested Sarfraz accused while in custody led to the recovery of .12 bore gun P.5 which was taken into possession vide memo. Exh.PG on the same day. Umer Draz accused got recovered .12 bore gun P.4 which secured vide memo. Exh.PF On 13‑9‑1996, Muhammad Nawaz accused led to the recovery of rifle 7 MM P.3 which was taken into possession Vide memo. Exh.PE. After completion of the remaining formal investigation, all the accused were challaned to face the trial.

5. At the trial, the prosecution in order to prove its case produced eleven P. Ws. in all. Thereafter, the learned D.D.A. tendered in evidence report of Chemical Examiner Exh. PO, Report of Serologist Exh.PP and closed the prosecution case. After that statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded innocence and took the plea of grave and sudden provocation. After conclusion of the trial except Sarfraz and Umer Draz the present appellant, all the remaining accused were acquitted by the learned trial Court.

6. Learned counsel for Sarfraz appellant submits that as far as Sarfraz convict, is concerned, he had taken the plea of alibi and this was even his first version before the Investigating Officer. Further submits that, that Umar Draz, co‑appellant has admitted his guilt before the trial Court in his statement under section 342, Cr.P.C. Adds that on the same set of evidence, 5 co‑accused of the appellant have been acquitted by the trial Court. Further adds that Umar Draz P.W.9 and Iqbal not produced are‑chance witnesses while Muhammad Khan P.W. is father of the deceased. According to learned counsel there is conflict between ocular account and medical evidence, so far Sarfraz appellant is concerned and that there is no independent corroboration to the tainted testimony of the eye‑witnesses. Adds that no crime empty was recovered from the spot and that it was, in fact, an unwitnessed occurrence so the appellant is entitled to clean acquittal.

7. Learned counsel for Umar Draz appellant submits that the convict had acted under grave and sudden provocation because he was present in his fields alongwith his sister and when the deceased passed from there he coughed in disgraceful manner. Further submits that the appellant also acted under the influence of his father so it is not a case of capital punishment. Learned counsel argues that according to school leaving certificate Exh. PQ Umar Draz appellant was born on 15‑9‑1977 and hence he was eighteen years and of some months while according to Form. B., Exh. DC and Exh.DD the date of the birth of the appellant is 1980 and the appellant in his statement under section 342, Cr.P.C. gave his age, as 18 years. According to learned counsel the appellant was 16/17 years of age at he time of occurrence, so conviction under section 302, P.P.C. is not maintainable an the conviction if any can be awarded to the appellant is under section 308, P.P.C. In support of his submissions, learned counsel has relied upon 1983 SCMR 310 and 1985 SCMR 479.

8. On the other hand learned counsel for the State assisted by learned counsel for the complainant submits that it was a broad daylight occurrence, the F.I.R. was recorded promptly, the complainant being uneducated person, he could not give exact place of seat of injury at the time of getting the F.I.R. recorded an also before the trial Court and that motive also laid with the appellants. Further submits that the appellants had committed a murder of the deceased who was young in a cold‑blooded manner so they are no entitled to any leniency. Both the learned co set support the judgment of the trial Court by submitting that the prosecution has been successful in proving its case against the convict‑appellants.

9. We have heard the learned counsel for the appellants at length and have gone through the record with their able assistance. In the instant case seven accused were named in the F.I.R. Five were acquitted. Gull Muhammad and Riaz Bibi being accused of abetment were acquitted while Muhammad Mumtaz and Saee Muhammad we a acquitted on the ground that they participated in the occurrence while being armed Sots but there was no injury with Sota on the person of the deceased. The fifth accused Muhammad Nawaz being father of Umar Draz convict was also acquitted.

10. The motive in the inst case was that civil suit was pending between the complainant on one side and Saee Muhammad and Gull Muhammad, acquitted accused on the other side. The same motive was reiterated by the complainant b ore the trial Court. Copy of the plaint filed by complainant against Saee Muhammad etc. is at Page 90 of the paper book.

11. Occurrence had taken place at 9‑30 a.m. on 30‑7‑1996 and the matter was reported to the police in the police station at 11‑30 a.m. the same day. The complainant was Muhammad Khan who apart from being eye‑witness was father of Javed Iqbal deceased. Besides him there were two other eye‑witnesses out of whom Iqbal was given up while Umar Draz was examined as P.W.9. He is husband of cousin. o the deceased. Doctor Zia Masood Shehbaz examined as P.W.1 had conducted post‑mortem examination at 6 a. m. on 30‑7-1996 on the dead body of Javed Iqbal. The time given by the doctor between causing of the injuries and death was one hour while a probable time between the death and the post‑mortem was six hours. According to F I.R., the first fire was shot by Sarfraz h ting Javed Iqbal deceased on the front part of his left flank and abdomen but if one go through the post mortem report and specially the diagram there is no injury either of the left flank or abdomen of the deceased so learned counsel for Sarfraz appellant was right in submitting that there is conflict between ocular account and the medical evidence. The contention of learned counsel for the defence that the complainant being uneducated person could not give the exact place of seat of injuries is without substance for the reasons that the complainant has specifically mentioned the seat of injuries attributed to Sarfraz appellant in the F.I.R. The second fire was shot by Umar Draz, appellant which according to F.I.R. hit the deceased on his left wrist. Then another shot was fired by Sarfraz convict appellant which hit on the left wrist of the deceased. Both injuries appearing on left wrist of the deceased are of one C.M. dimension and the doctor P.W.1 while being cross‑examined had stated that possibility of injuries Nos.2, 3 and 5 may result of one shot if the left arm is raised up to the level of the chest. The doctor also admitted that no injury was found on the left flank of the deceased and even on the abdomen of the deceased. The contention of learned counsel for Sarfraz appellant is further supported froth the reply given by Umar Draz his co‑accused in his statement under section 342, Cr.P.C. when he stated that at the time of occurrence he was cutting the fodder at his Dera and his sister was present there and that Javed Iqbal deceased passed nearby and coughed disgracefully (Khangoora Mara) and also cut filthy joke with her and on that he fired at the deceased under grave and sudden provocation.

12. As far as relationship of the accused is concerned, it may be noted that Gul Muhammad and Saee Muhammad acquitted accused were real brothers, Mumtaz and Nawaz acquitted accused were also real brothers, Umar Draz convict‑appellant was son of Muhammad Nawaz acquitted accused, Mst. Riaz Bibi is daughter Gull Muhammad acquitted accused while Sarfraz convict‑appellant is son of Mst. Riaz Bibi.

13. Ghulam Yasin, Inspector P.W.11 took over the investigation of this case on 31‑7‑1996. He admitted in his cross examination that the first version of Sarfraz appellant was that he was not present at the place of occurrence rather was at Lukmor. No crime empty was recovered from the spot so the gun recovered on the pointation of Sarfraz appellant does not advance the prosecution case. On the same set of evidence, five co accused of the appellant had been acquitted by the trial Court. No overt act having been attributed to them, the trial Court was right in acquitting the said accused and appeal against their acquittal was also dismissed by this Court. It is correct that one young man has been murdered but all the same the Court has to see that no innocent person is sent to gallows, if the prosecution failed to prove its case. Sarfraz convict is also a young man of 25 years. He had also taken the plea of alibi at the time of occurrence though did not produce any evidence in support of the said plea but onus always lies on the prosecution to prove its case. Moreover, Umar Draz co appellant had admitted his guilt before the trial Court.

14. In view of discussion made above, we are having a lot of doubt in our mind so far as participation of Sarfraz appellant is concerned, so by extending the benefit of doubt which is not a matter of grace but as a right, we accept the appeal to the extent of Sarfraz appellant, set aside the conviction and sentence recorded against him by the learned trial Court and do not confirm his death sentence. Murder reference to his extent is replied in negative. Sarfraz appellant is in Jail and he shall be released forthwith, if .not required to be detained in any other case.

15. Now, we take up the case of Umar Draz appellant. He was not only named in the F.I.R. but he had also admitted his guilt before the trial Court while giving reply to Question No. 10 in his statement under section 342, Cr.P.C. wherein he stated that since Javed Iqbal deceased coughed disgracefully and also cut a filthy joke, he fired, at a deceased under sudden provocation, but unfortunately this was not his first version. He was arrested on 6‑9‑1996 by Ghulam Yasin Inspector. The first version of the accuse during the investigation which we have to taken from the record reads as under:‑‑ In his first versa n he never stated his sister was also present alongwith at his Dera and the deceased coughed disgracefully and cut filthy joke with leer sister. This is all after thought. He even did not produce his sister in his defence, so a version of Umar Draz appellant is discarded.

16. Now we come to the second submission made by learned counsel for the appellant that according to Farm‑B which is Ext1.DC and Exh.D issued by Directorate General of Registration Ministry of Interior, Government of Pakistan the appellant was born in 1980. We have gone through the original Form‑B which is available on judicial file. Though the form was attested by the Headmaster of Government S.S.T. High School Sakesar but no date has been given. No date of submission of the form before the Registration Authority finds mentioned in the said form. No reliance, therefore, can be placed on such a document. According to Saza Slip which is available on judicial file the age of the appellant is given as 24/25 years. Taking into consideration, all these facts we are of the considered view that Umar Draz appellant was not minor at the time of occurrence.

17. The other contention of learned counsel for the appellant that the appellant Umar Draz acted under the influence of his father is not born out from the record. His father though was named in the F.I.R. but was not present at the spot. The father was declared innocent by the Police. Moreso the complainant while appearing before the trial Court admitted the innocence of Muhammad Nawaz alongwith four accused (since acquitted). Appeal against the acquittal of father of convict appellant was dismissed by this Court. It thus proves that the appellant was alone when he committed the murder of the deceased. We have respectfully gone through the precedents cited by learned counsel for the defence but those are not applicable to the facts and circumstances of the case in hand.

18. The motive having been proved, the defence version being afterthought, the appellant being not minor at the time of occurrence and his admission to have committed the murder of the deceased under grave and sudden provocation which plea he could not prove, we are fully satisfied in our minds that it was Umar Draz appellant who had committed the murder of the deceased. There is no mitigating circumstance in his favour. Resultantly appeal to the extent of Umar Draz appellant is dismissed, conviction and sentence recorded against him by the learned trial Court is maintained, his death sentence is confirmed and murder reference is replied in affirmative. H.B.T/S‑476/L Order accordingly.