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Criminal Appeal No. 260, Criminal Revision No. 345 and Murder Reference No. 172 of 1985, decided on 13th December, 1986.

‑‑‑S. 302/34‑‑Occurrence taking place suddenly‑‑Presence of eye witnesses at spot established‑‑First Information Report preceding commencement of investigation‑‑ Defence plea of exercising right of self‑defence and property not credible‑‑Motive sought to be proved by prosecution not established and prosecution rendering itself liable to suffer for its failure in this regard‑‑Manner of occurrence as stated in first information report and during trial at variance with each other‑ Eye‑witnesses although had seen occurrence but not coming out with whole truth about manner and venue of attack‑‑What immediately transpired or preceded occurrence shrouded in mystery‑‑Fatal shot proved to have been fired by main accused with his rifle‑‑.Conviction in respect of main accused maintained.

‑‑‑S. 302/34‑‑Neither any enmity nor any motive attributed to co- accused and no fire shot by him hitting deceased‑ ‑Co‑accused given benefit of doubt and acquitted.

‑‑‑S. 302/34‑‑Sentence‑‑Motive‑‑Prosecution failing to establish motive against accused and it was not known what transpired before occurrence which was a sudden affair‑‑Mitigating circumstances, held, existed in favour of accused‑‑Sentence of death reduced to imprisonment for life.

‑‑‑‑S. 302/34‑‑Mere carrying of 7 mm rifle by accused, held, was not extraordinary feature so as to infer that attack was pre‑planner.

Aftab Farrukh and Kh. Hafeezullah for Appellants.

Inayat Ullah Cheema for the State.

Ijaz Hussain Batalvi and M.A. Zafar for the Complainant.

Dates of hearing: 10th, 11th and 15th November, 1986.

.‑‑Muhammad Afzal son of Muhammad Akram, Awan by caste, aged 42 years and Fazal Karim son of Alam Din, Awan by caste, aged 55 years were tried by the learned Sessions Judge, Rawalpindi, on a charge under section 302 read with section 34, P.P.C., for the murder of one Sufi Muhammad Nawaz.

Vide judgment, dated 18th April, 1986, learned Sessions Judge, Rawalpindi found both Muhammad Afzal and Fazal Karim guilty on the said charge. Accordingly, Muhammad Af zal, who was alleged to have caused the fatal shot was sentenced to death and to pay a fine of Rs.5,000 or in default to suffer S.I. for a term of two years. Muhammad Afzal was further directed to pay a sum of Rs.10,000 as compensation to the legal heirs of the deceased under section 544‑A, Cr.P.C. or in default to suffer S.I. for a term of 6 months. Fazal Karim, who was found to have no direct motive to participate in the occurrence was awarded lesser penalty and was sentenced to undergo life imprisonment and to pay a fine of Rs.5,000 or in default of the payment of fine to suffer further R.I. for a term of two years.

Aggrieved by their conviction and sentence both the convicts have filed a joint appeal, while the complainant has filed a Revision Petition No. 345 of 1985 praying for the award of death sentence to Fazal Karim. The case has also been referred to us under section 374. Cr.P.C.

This judgment shall dispose of the appeal, the reference and the revision.

2. The unfortunate occurrence resulting in the death of Sufi Muhammad Nawaz took place on 30‑7‑1984 at Degarwela in a field near the tea shop of Sheikh Muhammad Bashir, P.W.10 situated in village Losur Sharfu, within the jurisdiction of Police Post Wah Cantonment, situated at distance of one mile from the place of occurrence.

The occurrence had attracted the police to reach at the spot and Arshad Iqbal, P.W. 15 Inspector Police recorded the statement of Muhammad Bashir, P.W. 9 Exh.P.B. at 6 p.m. and sent the same to the police station for the registration of the case. The formal F.1.R. Exh.P.B./i was drawn by Muhammad Sadiq, Moharrir Head Constable P.W. 2 in the police station at 6‑15 p.m.

In his statement, Muhammad Bashir, complainant, P.W.9 stated, that on the fateful day at about Degarwela, he alongwith the deceased Sufi Muhammad Nawaz, a councillor of the Wah Cantt. was sitting on the tea shop of Sheikh Muhammad Bashir, situated near his own house adjacent to the Sabzi Mandi. At that time Sheikh Muhammad Bashir, the owner of the tea shop P.W.10 and one Safder were also present, when the appellants Muhammad Afzal and Fazal Karim reached near the tea shop on the motor cycle, which was being driven by Muhammad Afzal. The appellant Muhammad Afzal had 7 m.m. rifle, while Fazal Karim appellant had a revolver. It was alleged by the complainant that no sooner the appellants challenged the deceased and told him to save himself, at once Muhammad Afzal fired two shots one after the other hitting the deceased Sufi Muhammad Nawaz below his abdomen on his thighs. Fazal Karim appellant allegedly fired three shots from his revolver which did not hit the deceased, because he had fallen on the ground. Both the appellants, according to the complainant fled away from the scene of occurrence, while firing in the air. The news of the incident spread in the village and all the inhabitants of the village gathered and started chasing the appellants to apprehend them. In the meanwhile, the police on hearing the incident, also started chasing the appellants.

The motive for the crime as unfolded by the complainant was that Muhammad Afzal, appellant suspected that Muhammad Ashiq, the younger brother of the deceased, had illicit liaison with his wife. Eight or nine days before the occurrence, at the condolence meeting of the death of the mother of one Channan Din, the appellant Muhammad Afzal in presence of the aforesaid Channan Din and Muhammad Tai had threatened the deceased with dire consequences and had told him that he will seek revenge. According to the complainant on account of the said grouse Muhammad Afzal appellant with the assistance of Fazal Karim appellant had attacked the deceased.

3. Soon after the occurrence, the deceased was taken in a Suzuki van to the Pakistan Ordnance Factory Hospital in Wah Cantonment, where the deceased Sufi Muhammad Nawaz succumbed to his injuries. The Investigating Officer reached the hospital and sent the dead body for post mortem.

On 31‑7‑1984 at 9‑30 a.m. Dr. Nasir Mahmood, Medical Officer, Civil Hospital, Rawalpindi conducted post‑mortem examination on the dead body of the deceased and the following injuries were noticed:‑---

(1) Wound of entry.‑‑An oval wound 0.6c.m. x 0.9c.m. in right groin, 7 c.m. medial to anterior superior iliac spine and 6 c.m. lateral pubic tabernacle. Edges of wound inverted. No burning and blackening present.

Wound of exit.‑‑ There is an irregular wound of exit behind the right buttock with margins everted, containing packing of cotton and bandages.

(2) Wound of entry.‑‑An oval wound present in left groin, 0.6 c.m. The margins inverted, 5 c.m. lateral to pubic tabernacle and 8.5 c.m. medial to left anterior, superior iliac spine. No burning and blackening present. No wound of exit present.

4. In the opinion of the doctor, the deceased died of shock and haemorrhage due to the injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 and 2 were caused by fire‑arm weapon.

5. As stated above, the villagers and police had started chasing the appellants and thus near Khanabad, Muhammad Rab Nawaz, S.I. Police P.W. 14 arrested the appellants and at the time of the arrest 7 m.m. rifle, which was being carried by the appellant Muhammad Afzal was taken inte possession alongwith bandolier and 19 bullets, vide memo. P.J. attested by Mehr Khan, H.C. P.W. 13, Rab Nawaz, S.I. P.W. 14 and Ashraf Ali A.S.I. (not produced).

On 6‑8‑1984, Fazal Karim appellant led the police to an open area and from bushes got a revolver recovered, which was taken into possession vide memo. P.G. attested by Ghulam Safdar P.W.11, Arshad Iqbal, Inspector Police, P.W. 15 and one Qazi Khan (not produced).

During inspection of the spot by the police, two 7 m.m. crime empties were found and the same were taken into possession, vide memo. P.E. attested by Muhammad Taj P.W.6. Sh. Arshad Iqbal, Inspector P.W 15 and one Ghulam Murtaza (not produced).

The empties and the rifle were sent to the fire‑arm expert, who opined that the crime empties had been fired from the said 7 m.m. rifle.

At the trial, the prosecution sought to establish its case against the appellants by furnishing the ocular testimony in the form of the statements of the complainant Muhammad Bashir, P.W.9 and Sheikh Muhammad Bashir P.W.10, the owner of the tea shop. It may be stated here, that the sister of the complainant Muhammad Bashir is married to the deceased, while the sister of the deceased is married to the complainant. One Safdar cited in the F.I.R. as an eye‑witness was given up by the prosecution. In addition to the ocular testimony, the prosecution also furnished the evidence as to motive and the recoveries and the report of the fire‑arm expert as corroborative evidence. When examined under section 342, Cr.P.C. the appellant Muhammad Afzal made the following statement:‑---

Actually I belong to village Maria. Aku District Islamabad, from where I shifted to village Losar Sharfu few years back because of the fear of my enemies. I married from village Losar Sharfu. My in‑laws have got a very large family consisting of thousands of individuals, started taking interest in local politics and damaged the cause and reputation of Muhammad Nawaz deceased by exerting my influence. Muhammad Nawaz deceased was also a political figure. The deceased and his family apprehended enough fear from my side to their political status. On the day of occurrence, actually Muhammad Aslam my brother came to my house on a motorcycle and unintentionally collided with the daughter‑in‑law of Muhammad Nawaz deceased. The said lady informed the deceased about the incident, who got provoked and while armed with fire arms proceeded to my house in front of which the motorcycle of Muhammad Aslam my brother was parked. The deceased and his companions took out petrol from the tank and sprinkled the same on the motorcycle and set it on fire. Then the deceased and his companions fired the shots at my house and were about to set the same on fire while sprinkling the petrol on the house. To save the life and the property my brother Muhammad Aslam fired a shot with .12 bore weapon and unfortunately Muhammad Nawaz was hit, who died as a result later on. I was not present in my house at that time. Rather, I was in the house of my in‑laws. The complainant party suspected, perhaps, my motorcycle had collided with the lady at my hands and further to get rid of my entity got me falsely involved in the case. The time and the manner of the incident giver by the prosecution is also absolutely incorrect.

6. The appellant also entered the witness‑box and was examined. Fazal Karim, appellant in his statement under section 342, Cr.P.C. denied the charge and stated that he had been falsely implicated due to enmity with Kashmiri Baradari. He also appeared in the witness‑box and was examined. In examination, he stated that he trod no enmity with the deceased and the prosecution witnesses and he had never contested any election and also denied the recovery and the arrest.

7. We have carefully gone through the entire record of the case with the assistance of the learned counsel of the parties. The counsel for the appellant in the first instance, attacked the F.I.R. lodged in the case. It was contended that the F.I.R. in this case was lodged after preliminary investigation and, therefore, no sanctity can be attached to the same. Our attention was drawn to the statement of the Investigating Officer who after having reached the scene of occurrence had recorded the F.I.R. at the spot. It was thus argued that the investigation was carried out before the statement was recorded. It was submitted that Arshad Iqbal P.W. 15 Inspector Police was at that time near Wall Garden, when he received the information about the occurrence, while the Police Post Wah Cantt. had come to know of the occurrence and that is why, the officials were deputed, who chased and arrested the appellants. The conduct of the witnesses in this behalf was also brought under scathing criticism by the learned counsel for the appellants, inasmuch as, it was argued that none of the witnesses had gone to the police post to lodge the F.1.R. Stress was laid on the fact, that after inspection of the spot, and the recovery of the crime empties, the statement of the complainant was recorded and hence it was obvious that the F.I.R. in this case was recorded after preliminary investigation. We have carefully considered this aspect of the case and we have noticed that the deceased was a councillor of the area, and no sooner he was killed the entire inhabitants of the village had gathered. The occurrence created sensation that is why, the police officials from the Police Post Wah Cantt. immediately proceeded to apprehend the appellants. In fact on account of the fury over the incident, the motorcycle of the appellants, which was still parked near tea shop was burnt. We cannot ignore the fact, that the deceased being an influential person and also being an elected councillor had considerable following in the area and that is why Arshad Iqbal, Investigating Officer, who was near Wah Garden at that time at once reached the scene of occurrence. In our view, the F.I.R cannot be attacked on the ground that the same was recorded after preliminary investigation. It was pointed out that the F.I.R. was silent with regard to the empties. We are of the considered view, that the recording of the statement of the complainant preceded the recovery of the crimes empties from the spot. That is why it is silent about these empties.

8. In this behalf our attention was drawn to the statement of P.W.10 Sheikh Muhammad Bashir, who stated that the police proceeded to the place of occurrence and firstly, inspected the spot and after 5 or 7 minutes of the inspection, the statement of the complainant was recorded. The statement of the complainant Muhammad Bashir, P.W.9 was also referred to and it was argued, that per statement of Bashir P.W.9 the complainant had seen the empties before his statement (F.I.R.) was recorded and the complainant admitted that he mentioned the empties in the F.I.R. After careful consideration of these pieces of evidence, we are of the view that, the occurrence was so sudden and the reaction in the area was so spontaneous, alongwith the arrival of the police at the spot, that no importance can be attached to such discrepancies, because these are bound to occur. When a witness is examined in the witness‑box, the basic question is, that what is the inherent worth of the testimony of such witness, and whether he had seen the occurrence. Such discrepancies can be attributed to the lapse of memory. After anxious consideration, we hold that the witnesses were present and the recording of the F.I.R. proceeded the commencement of the investigation.

9. Much stress was laid by the learned counsel for the appellant on the defence plea. In our view, the defence has tried to make capital out of the burning of the motorcycle at the spot. Such burning of the motorcycle, is being attributed by the defence to the complainant side, as consequence of fury on account of hitting the daughter‑in‑law of Sufi Muhammad Nawaz with the said motorcycle, which according to the defence had also led the complainant side to attack the appellants. The plea is baseless and devoid of truth. No evidence had been led to establish the same, it was also pleaded, that the complainant side under provocation had also tried to set the house of Muhammad Afzal appellant on fire, and, therefore, in exercise of right of self‑defence and property the deceased was fired at. Had it been so, the result of the investigation would have all together been different, than the one alleged by the prosecution. There is nothing on the record for us to infer, that any such attempt was made to set the house of Muhammad Afzal appellant on fire. Besides that such plea was not raised during investigation and the incident of the motorcycle colliding with daughter‑in‑law of Muhammad Nawaz deceased could not have escaped the notice of the inhabitants of the area. In fact after the occurrence, the appellant could not manage to run away on the motorcycle and hence the complainant side in rage burnt it. That is why on account of the burning of the motorcycle, the defence plea has been concocted. Muhammad Afzal appellant also in his statement tried to highlight his political rivalry with the deceased, in the election, to the office of the councillor, but there is no evidence to substantiate it. After careful consideration of the statement of the appellant in juxtaposition with the prosecution case and other circumstances, we reject the defence plea.

10. We find substance in the contention of the learned counsel with regard to the motive in this case, sought to be established and proved by the prosecution. The prosecution case in this behalf is, that Muhammad Afzal appellant suspected illicit connection of Muhammad Ashiq, real brother of the deceased with his wife, about which Muhammad Afzal appellant had threatened Sufi Muhammad Nawaz, deceased with dire consequence in presence of Muhammad Taj P.W. 6 and Channan Din P.W.7. After careful consideration of the evidence of these witnesses and the statement of the complainant, we are of the view, that these witnesses are not truthful witnesses, firstly, because there was hardly any occasion to threaten the deceased instead of his brother Muhammad Ashiq, who was the actual culprit. According to the record Muhammad Ashiq was resident of village and was running a hotel at a distance of one furlong away from the village. Had this motive been true the target would have been Muhammad Ashiq, who was available at all time in the village. Furthermore, a person who suspects his wife of having illicit liaison with someone, would not mention, or threaten the brother of the paramour, because in normal course of human conduct, a person would not highlight such affairs and make it public so as to bring infamy and stigma to his family. Channan Din P.W. 7 states, that Muhammad Afzal appellant had threatened the deceased at his house, when both were there in connection with the condolence of the death of his mother. We are of the view, that this piece of evidence is also fabrication. A condolence meeting is hardly an occasion to mention such intricate and sensitive private affairs. Muhammad Afzal, appellant would not have mentioned such facts in presence of others. We cannot hold the statement to be true, on another score as well, because the witness did not mention this incident to the police, nor to any body else. We are, therefore, of the view that the motive as sought to be established, by the prosecution cannot be believed and, therefore, the prosecution must suffer, on account of its failure to prove the motive as set up by it. We have further noticed, that Muhammad Ashiq, the alleged paramour had never been attacked in the past and Muhammad Zareef P.W.5 who is a close relative of the deceased and who had identified the dead body of the deceased before the doctor at the time of the autopsy stated, that Muhammad Ashiq, the brother of the deceased was a gentleman and was a married person. It is thus evident that the motive is an afterthought.

11. We have also noticed, that the manner of occurrence as stated in the F.I.R, and during the trial is at variance with each other. In the F.I.R. it was stated, that no sooner the appellants arrived at the scene of occurrence, they challenged the deceased to be on his guard and, thereafter, at once the fires were shot. In course of trial, it was stated that the deceased after having noticed, the assailant ran from his Khokha in the field situated behind it and was chased by the appellants and during the said chase, when the appellant looked back towards the assailant, he was fired at by the appellants. It is thus clear that the witnesses have changed venue of the occurrence. It was strenuously argued, that the medical evidence and the ocular testimony is in conflict with each other. It was argued, that according to the prosecution version, the deceased while running had looked back towards assailants, when he was fired at and, therefore, in such posture, the seat of the injuries would not have been groins. We are not convinced by this argument inasmuch as, it is not known that in which posture the deceased during the chase had looked back, if he had turned his body, which we believe he did, the injuries would have been received on the groins. However, we are of the view, that no doubt the eye witnesses had seen the occurrence, but they are not coming out with the whole truth about the manner of the attack and venue of the attack.

12. After anxious consideration, we are of the view that what immediately transpired, or preceded the occurrence is shrouded in mystery. No doubt an attempt was made to prove, that in fact on tea shop of Muhammad Bashir P.W.9 existed at the spot, but in our view, the defence to establish the absence of the shop. We are, therefore, of the view, that at this Khokha (tea shop) something had happened, about which the prosecution has not taken us into confidence. We are, therefore constrained to hold that it was a sudden affair, in which the deceased was suddenly attacked without premeditation. Mere carrying of the 7 m.m. rifle, is not extraordinary feature so as to infer that the attack was pre-planned. Thus, we are of the view that it was only Muhammad Afzal appellant, who had fired the fatal shot with his rifle. As far as Fazal Karim is concerned, he has no enmity nor any motive has been attributed to him. Besides no crime empties of any revolver were found at the place of occurrence, nor the fire shot by him had hit the deceased. We are, therefore, of the view that he is entitled to the benefit of doubt, because his participation in the crime has not been established beyond any shadow of doubt. Accordingly, allowing him the benefit of doubt, we hereby set aside the conviction and sentence awarded to him. He is acquitted of the charge and shall be released forthwith if not required in any other case.

14. Adverting to the case of Muhammad Afzal, appellant we hold him guilty of the charge, on which he faced his trial. However, there are mitigating circumstances justifying not to extract extreme penalty of death. Since the prosecution has failed to establish motive against him, and it is not known as to what transpired before the occurrence as discussed above and since in our view, it was a sudden affair, therefore, we are of the considered view, that the sentence of death awarded to him needs modification. Accordingly, the death sentence awarded to Muhammadi Afzal is hereby set aside and the same is altered to life imprisonment. The sentence of fine awarded to Muhammad Afzal and the award of compensation as ordered by tile learned trial Judge is hereby maintained.

With these modifications, the appeal and the reference are disposed of accordingly. The death sentence awarded to Muhammad Afzal appellant is not confirmed.

As far as revision petition seeking the imposition of death sentence to Fazal Karim is concerned, for the reasons heretofore stated, the same is dismissed.

M.Y.H./M‑81/L Appeal partly accepted.

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