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Petitioner: MUHAMMAD ASHRAF VS Respondent: StateHonorable Justice Hasnat Ahmad KhanSardar Khurram Latif Khan Khosa and Malik Allah Wasaya
2009 M L D 1131
2009 M L D 1131
[Lahore]
Before Hasnat Ahmad Khan and Zubda-Tul-Hussain, JJ
MUHAMMAD ASHRAF---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No. 1316 and Murder Reference No. 498 of 2003, heard on 9th February, 2009.
(a) Penal Code (XLV of 1860)---
----S.302(b)---Appreciation of evidence---Sentence, reduction in---Case was of two versions, one put forth by the complainant and the other advanced by the accused---Accused had admitted the occurrence though in a different manner---Occurrence had been reported to police within 75 minutes and F.I.R. was not lodged after spot inspection and consultations---Independent witnesses of the locality usually avoided to give evidence in Court and on that score ocular evidence could not be disbelieved---In the absence of any enmity between the parties, ocular account furnished by eye-witnesses could not be discarded, especially when some of the salient features of the occurrence stood admitted by the accused---Defence version was neither plausible nor probable---After raising plea of self defence, burden of its proof had shifted to accused under Article, 121 of Qanun-e-Shahadat, 1984, but he had failed to discharge the same---Attending circumstances of the case also did not synchronize with the defence plea---Acquittal of co-accused was of no help to accused, as Courts were supposed to winnow truth from falsehood---Ocular evidence was duly supported by the motive as well as medical evidence---Conviction of accused was, therefore maintained--However, misdoings of the deceased had contributed a lot in his murder by the accused, who had killed the deceased to save his family honour---Death sentence awarded to accused was converted into imprisonment for life in circumstances.
Muhammad Siddique v. The .Crown PLD 1954 F.C. 112; Safdar Ali v. The Crown PLD 1953 F.C. 93; Muhammad Dilbar alias Muhammad Boota v. The State 2002 SCMR 1425; Baggu v. The State PLD 1972 SC 77 and Sikandar Shah v. The State PLD 1965 Pesh. 134 ref.
Muhammad Ramzan and another v. The State 1993 PCr.LJ 1589 and Muhammad Ashraf v. State 1990 ALD 749 rel.
(b) Penal Code (XLV of 1860)---
----S.302(b)---Qanun-e-Shahadat (10 of 1984), Art.121---Defence plea---Burden of proof---Prosecution is bound to prove its case beyond any shadow of doubt, but the burden on accused to' prove his defence plea is not so heavy as cast upon prosecution---After raising plea of self defence the burden of proving the same shifts on the accused under Article 121 of the Qanun-e-Shahadat, 1984.
Messrs Sardar Khurram Latif Khan Khosa and Malik Allah Wasaya for Appellants.
Ch. Abdul Razzaq Kamboh, D.P.G. for the State.
Ch. Muhammad Inayatullah Cheema for the Complainant.
Date of hearing: 9th February, 2009.
JUDGMENT
HASNAT AHMAD KHAN, J.---Muhammad Ashraf-appellant, along with five others, was tried by a learned Additional Sessions Judge, Jhang, in a criminal complaint case No.44 of 2002, for the offences under sections 302, 324, 148, 149 and 109, P.P.C., allegedly committed within the jurisdiction of Police Station 18-Hazari, Tehsil and District Jhang. After the conclusion of the trial, the said learned Addl. Sessions Judge found the appellant 'guilty of murdering Sultan (slain). Consequently the appellant was convicted-and sentenced to the rope under section 302(b), P.P.C., vide judgment, dated 28-6-2003. Under section 544-A, Cr.P.C., the appellant was ordered to pay Rs.1,00,000 as compensation, to be paid to the legal heirs of the deceased, or in default of payment thereof, he was directed to undergo three months' S.I. The learned trial Court, however, acquitted Hakim, Mulazim, Mumtaz, Bahadar and Muhammad Bukhsh, co-accused of the appellant, by giving them the benefit of doubt.
2. Aggrieved by the judgment of the learned trial Court, the appellant challenged his conviction and sentence through Criminal Appeal No.1316 of 2003, while the trial Court sent a Reference (Murder Reference No.498 of 2003) for the confirmation or otherwise of the death sentence, awarded to the appellant. Muzaffar Ali-complainant also filed Cr.R. No. 818 of 2003 for enhancement of compensation awarded to the legal heirs of the deceased as well as PSLA No.78 of 2003 against acquittal of above-mentioned co-accused. This consolidated judgment will dispose of all the aforesaid matters.
3. Succinctly, the prosecution's story, as narrated by the complainant-Muzaffar Ali (P.W.8), through his statement (Exh.C.W.1/A), which later on culminated into F.I.R. (Exh.C.W.1/B), was/is to the effect, that on the fateful day at about 2-15 p.m., he along with Ghaus Muhammad, Ramzan was sitting in the shop of one Sarwar; Messrs Muhammad Ashraf, Hakim, Mulazim, Bahadur, Mumtaz were also sitting in Ashraf's hotel in front of the shop; complainant's brother Sultan (deceased) after getting off from a bus sat with them; as soon as the complainant's brother Sultan Ahmed sat with them, Messrs Muhammad Ashraf, armed with a .30 bore pistol, Mulazim, armed with a .32 bore pistol, emerged there and simultaneously Mulazim (acquitted co-accused) raised a lalkara that Sultan Ahmed should be killed; raising Lalkara, Muhammad Ashraf fired four shots from his pistol one after another which hit on different parts of Sultan's body as well as injured Muhammad Anwar (given up P.W.), who was sitting with them; Sultan Ahmed succumbed to his injuries at the spot and Ghaus Muhammad, Ramzan, above-mentioned, witnessed the occurrence; the other accused Hakim, Bahadur, Mumtaz while sitting in the hotel, kept on raising Lalkara that Sultan Ahmed should not be left alive.
The motivating factor behind the occurrence is stated to be that there was a dispute over a piece of land between the parties, due to which the accused, in consultation with each other, allegedly killed Sultan.
4. After three months of lodging the F.I.R., the complainant filed the criminal complaint against the afore-mentioned accused including the appellant.
5. During the trial, the complainant, in support of his case, produced as many as 10-witnesses.
Shabbir Ali, Constable No.1033, appeared as P.W.4 and deposed that he had escorted the dead-body of Sultan Ahmed to the mortuary for its post-mortem examination. Mst. Waziran Mai entered the witness box as P.W.5 and deposed that she along with others had overheard Muhammad Ashraf-appellant and other acquitted co-accused hatching a conspiracy to murder the complainant's brother Sultan. Ghulam Qasim appeared as P.W.6 and deposed about the conspiracy statedly brooded by the accused to eliminate Sultan (deceased). Muzaffar-complainant entered into the witness box as P.W.8 and furnished the ocular account of the occurrence. Muhammad Ramzan appeared as P.W.9 and corroborated the statement of the complainant.
Pehlwan appeared as P.W.10 and deposed that Hakim/co-accused had made an extra-judicial confession before him. Muhammad Anwar, S.-I./I.O., who besides recording the statement of the complainant, had investigated the case, appeared in the witness box as C.W.1 and provided the detail of the investigation conducted by him.
Dr. Abdul Aziz Khalid, who had conducted autopsy on the dead-body of Sultan Ahmed (deceased), came forward as P.W.1 and furnished the detail of injuries, observed by him on the corpse of deceased, as under:--
A firearm entrance wound 1 c.m. x 1 c.m. on the right side of abdomen upper quardrant 13 c.m. above right anterior, superior, iliac spine blackening at the margins present.
A firearm exit wound 1.5 c.m. x 1.5. c.m: on the left side of abdomen 11 c.m. away from umbilicus.
(2-A) A firearm entrance wound with blackening at the margin 1 c.m. x 1 c.m. on the outer side of right thigh upper part. 12 c.m. below right anterior, superior iliac spine.
(2-B) A firearm exit wound 1.5 c.m. 1.5 c.m. on the outer side of left thigh 10 c.m. below left anterior, superior iliac spine.
According to his opinion, the cause of death in this case was due to haemorrhage and shock resulting from injuries Nos. 1 and 2. He opined that injury N6.1 alone was sufficient to cause death in the ordinary course of nature.
The complainant gave up P.Ws. Makhan and Mst. Naziran, being unnecessary. Learned D.A. after tendering into evidence Report of Chemical Examiner (Exh.PH), and that of Serologist (Exh.PJ) closed the prosecution's evidence. Rest of the witnesses being formal in nature need not be discussed here.
6. The appellant made his statement under section 342, Cr.P.C. While responding to question No.12, appellant stated as under:--
"All the P.Ws. are related inter se and to the deceased. They have falsely deposed against me because of their relationship. They, therefore, have motive to falsely depose against me."
In reply to question No.13, the appellant further stated as under:--
"I am innocent. My Nikah with Mst. Nazran was performed some years before the occurrence. Sultan deceased who was my real maternal uncle wanted to marry her and he asked me to divorce her so that he could marry her. I protested and told this fact to my mother and asked her to prevent Sultan deceased for making such demands, but she did not do anything. When Rukhsati of Mst. Nazran took place, Sultan deceased confined himself in a room for many days as a protest and he was prevailed upon by his relatives with great difficulty to end the confinement. Thereafter Sultan deceased had been visiting my house to see Mst. Nazran and he did not leave his habits even after my marriage with Mst. Nazran for keeping bad eyes upon her. I again asked my mother to prevent him from doing so but she had been putting my off by giving so many buts and Sultan had been visiting my house. I asked the other elderly members of my brotherhood to prevent Sultan from doing so but he did not mend his ways. Sultan deceased constructed a Chowbara in front of my house where he had been sitting the whole day with a rifle to continue his lust of having amorous eyes on Mst. Nazran and to kill me if he found an opportunity to do so. He had also been saying to many persons that he would kill me because I was becoming a hurdle in the continuance of his illicit intimacy with Mst. Nazran. Sultan deceased had also been threatening me to divorce Mst. Nazran otherwise he would kill me. On 5-3-2002 Sultan deceased filed a suit for restitution of conjugal rights against Mst. Amiran who is my Phoopi. Although Mst. Amiran had already been married to Hafeez Ullah. Sultan did so just to put pressure to divorce. my wife Nazran and when written statement was submitted disclosing that Mst. Amiran had already been married, he opted to withdraw that suit. He again on 4-4-2002 filed another family suit of restitution of conjugal rights against another daughter of Hakim accused namely Mst. Balqees Bibi who is the real sister of Amiran Bibi above mentioned, in which suit the date of hearing was fixed as 3-6-2002. On that date Mst. Kalsoom appeared before the Court, she gave her written statement repudiating the version of the deceased and she also produced the alleged witnesses of the Nikah with affidavits who repudiated of any Nikah between her and Sultan deceased. She also submitted an application to the Court on that day for taking legal and penal proceedings against Sultan deceased. On the day of occurrence I was present at the shop of Haji Pehalwan which is just close to the shop of Sarwar, Sultan deceased came there and he told Sarwar and his brother Sultan who had also the nearby shop that unless Ashraf divorces Mst. Nazran, he would continue filing false suits against his family to put pressure upon him for divorcing Mst. Nazran. He further declared that even if Ashraf does not divorce Mst. Nazran he would abduct her and take her away to such a place 'where he could not find us. I protested to Sultan not to defame me publically. Sultan declared that you cannot do anything against me and you could not do anything when I filed suits against your Phoopies. I again protested upon which he fired at me but Anwar who was in between got injured. Sultan attempted to make a second fire upon me but in my right of self-defence and under grave and sudden provocation fired two shots at him. All this happened in a flashining of a moment without any intention. I did so. under grave and sudden provocation and right of self-defence. None of the other accused was present there nor any of them had abetted me in this behalf. In fact it all happened all of a sudden. The eye-witnesses were not present there, the shop keeper Sarwar and Sultan and others took Sultan in an injured condition to the Police Station but he died on the way. I myself went to the police Station to report the matter, but the Investigating Officer summoned Muzafar and got a false case registered against me and my co-accused while sitting at the Police Station after fabricating the false story. Adda Bharrari is a busy place where about 100 shops at that place no body from, Adda Bharrari appeared as a witness and the witnesses of the far away places. When the complainant did fail to vividly prove his case with regard to the alleged involvement of me and my co-accused during the whole investigation then he opted to file a false complaint after inventing a false story and setting up interested and false witnesses."
The appellant, however, did not opt to appear as his own witness under section 340(2), Cr.P.C.,
7. After the conclusion of the trial the appellant was convicted and sentenced to death as mentioned above. However, Hakim, Mulazim Hussain, Bahadur, Mumtaz and Muhammad Bakhsh, the co-accused were acquitted of the charge by giving them benefit of doubt.
8. In support of this appeal learned counsel for the appellant contends that the F.I.R. was registered after holding a preliminary investigation, a fact which is borne out from the statement of Shabbir Ali (P.W.4), who during his cross-examination candidly admitted that the statement of the complainant had been recorded by the Investigating Officer after inspecting the spot; that in view of the said fact the claim of the prosecution of lodging the F.I.R. promptly becomes doubtful; that the ocular testimony is outrightly contradicted by the medical evidence; inasmuch as, according to the contents of the F.I.R., Sultan (deceased) was gunned down by the appellant by producing four pistol shots, whereas according to the statement of Dr. Abdul Aziz Khalid (P.W.1), Sultan (deceased) had received only two firearm entry wounds; that the medical evidence further reveals that direction of injury No.1 was from upward to downward, whereas it is not the prosecution's case that Sultan (deceased) was shot at by the appellant from a higher level; that considering the fact that there was a blackening around the injuries sustained by Sultan (deceased), the doctor admitted during his cross-examination that the shot was made from a distance of one foot, whereas according to the prosecution, the deceased was gunned down from a distance of 8 feet; that the said glaring contradictions would show that the occurrence was never witnessed by the eye-witnesses relied upon by the prosecution; that according to the contents of the F.I.R., one Muhammad Anwar, P.W. had also received firearm injuries during the occurrence but the said witness was dishonestly withheld by the prosecution, a fact which adversely affects the credibility of the prosecution's version, rather demolishes the prosecutions' case; that it is a case of two versions, one put forth by the prosecution and the other by the appellant and while putting the two versions in a juxtaposition, the defence version appears to be more plausible and believable than that of the prosecution; that the story of the motive as given in the F.I.R remained unproved during the trial; that during the trial, the prosecution improved its version regarding the motive; that it is established on, the record that the eye-witnesses relied upon by the prosecution are chance witnesses; that the independent and natural witnesses who were supposed to be present at the time and place of occurrence, were not produced by the prosecution in the witness box; that the ocular version comprises related and interested witnesses, therefore, they are not worth of any reliance, whatsoever; that during the trial both the eye witnesses produced by the prosecution made deliberate and dishonest improvements in order to ensure the conviction of the appellant, therefore, no reliance can be placed on the evidence of such like witnesses; that it is true that the appellant's mother while appearing as P.W.S., deposed against the appellant but her statement cannot be believed for the reason that her statement under section 161, Cr.P.C. was recorded one month after the occurrence; that even otherwise the story of conspiracy put forth by P.W.5 was disbelieved by the learned trial Court; that the love for her brother, i.e. Sultan (slain) somehow dominated against her love with the appellant; that be that as it may after disbelieving her statement by the learned trial Court, no credence or value can be given to her statement; that in absence of recovery of any empty from the spot, the alleged recovery of pistol at the instance of the appellant cannot help the prosecution; that since the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt, therefore, the statement of the appellant made under section 342, Cr.P.C. merits acceptance as a whole and consequently the appellant deserves clean acquittal of the charge; that the burden cast on the accused under Article 121 of Qanun-e-Shahadat Order cannot be as heavy as the burden that rests on the prosecution. In order to shore up his last contention learned counsel has placed reliance on the cases of Muhammad Siddique v. The Crown (PLD 1954 F.C. 112) and Safdar Ali v. The Crown (PLD 1953 F.C. 93). In the alternative, learned counsel for the appellant has contended that in the attending circumstances of the case, Sultan (deceased) cannot be termed as "masoomuddam", therefore, the appellant, who had acted under sudden and grave provocation, at the most can be convicted under section 302(c), .P.P.C.
9. Conversely, learned D.P.G., assisted by the learned counsel for the complainant, has contended that the date, time and place of occurrence is not denied, rather admitted by the defence; that the occurrence was reported to the police quite promptly, therefore, there is no room to hold that the F.I.R. was registered after due consultations and deliberations; that no undue weight can be given to the statement of P.W.3, a Constable, who made a dishonest concession in favour of the defence by stating that the statement of the complainant was recorded after site inspection; that Muzaffar Ali, one of the eye-witnesses is real maternal uncle of the appellant, therefore, he had no reason to falsely implicate the appellant in a case which entails death penalty; that the prosecution's version is supported by the real mother of the appellant, who contradicted the appellant's' plea that the appellant had married Sultan's beloved, and due to the said grudge the latter was determined to eliminate the appellant; that the F.I.R. is never treated as an exhaustive document and for this reason it was not necessary for the complainant to give the detail of each and every injury sustained by Sultan (slain) in the F.I.R.; that the medical evidence is not contradictory to the ocular evidence, rather the same is in line with the ,prosecution's version and that the motive of the occurrence was duly proved through documentary evidence. Learned counsel for the complainant adds that the defence version, for the first time, was put to Mst. Waziran, mother of the appellant (P.W.5.); that in this regard all the suggestions made by the defence were denied emphatically by the said P.W.5; that in view of the denial of the said suggestions by the real mother of the appellant, the defence plea is liable to rejection straightaway; that similarly P.W.8, the maternal uncle of the appellant has also denied such like suggestions made by the defence; that the defence version is not believable because the appellant's Nikah with Mst. Nazran was performed 14 years before the occurrence and during this period no untoward incident took place; that the attending circumstances available on the record reflect that the defence version was an afterthought and cooked up story; that the appellant bumped off the deceased in a calculated and well thought out manner; that since the appellant was arrested after 47 days of the occurrence, therefore, the version put forward by him at the time of his arrest was a result of due considerations and consultations; that the story of self-defence as put forward by the appellant during his statement under section 342, Cr.P.C. is clear cut an attempt of improving his first version made before the police; that after raising the plea of self-defence, the burden of proof shifted towards the appellant under Article 121 of Qanun-e-Shahadat Order but he failed miserably to substantiate the same during the trial, so much so, neither he produced his wife in support of his version nor did he opt to appear as his own witness under section 340(2), Cr.P.C.; that in the peculiar circumstances of the case, the plea of grave and sudden provocation is not available to the appellant and that the, deceased was eliminated by the appellant in a cold-blooded and pre-planned manner, therefore, he does not deserve any leniency even in the matter of sentence. To shore up his contentions, learned counsel has relied upon Muhammad Dilbar alias Muhammad Boota v. The State (2002 SCMR 1425), Baggu v. The State (PLD 1972 SC 77) and Sikandar Shah v. The State (PLD 1%5 Peshawar 134).
10. In order to plumb the depths of the case, we have gone through the entire evidence, oral as well as documentary, with the able assistance of the respective learned counsel for the parties. After doing the said exercise, we have noticed that it is a case of two versions, one put forth by the complainant/prosecution and the other advanced by the appellant. So, in order to come to a just conclusion of the case we have to examine the case after putting the two versions in juxtaposition. Since primarily it is the duty of the prosecution to prove its case beyond reasonable doubt, therefore, first of all we would like to examine the complainant's case, which comprises the medical evidence, the motivating factor behind the occurrence, the recovery of the weapon of crime at the instance of the appellant, the ocular account and the evidence of conspiracy.
11. Insofar as the recovery of pistol (Exh.PG) at the instance of the appellant is concerned, we have noticed that no crime empty was recovered from the spot, therefore, no question arises regarding the existence of positive report of Forensic Science Laboratory. Nevertheless, the absence of report of the Forensic Science Laboratory cannot demolish the prosecution's case, because it is not a case of total denial of the occurrence, rather, according to the appellant, the crime was committed by him in his self-defence. So, in the peculiar circumstances of the case, the recovery of crime weapon is immaterial.
12. Now taking up the medical evidence, we find that according to the contents of the F.I.R. Muhammad Yousaf produced four shots causing critical firearm wounds to Sultan-deceased besides Muhammad Anwar, injured P.W. A perusal of the contents of the F.I.R. further reveals that while lodging the F.I.R., the complainant did not specify seats of the injuries sustained by the deceased. However, after three months of the occurrence, the complainant filed a complaint with the grievance that the police had failed to record his statement, which culminated into the F.I.R., correctly. During the trial initiated on the basis of the said complaint, Muzaffar, the complainant, gave the detail of each and every shot statedly made by the appellant. According to him, out of four shots produced by the appellant, one proved to be ineffective,' whereas one of the shots was received by Anwar, injured P.W., whereas according to him, rest of the two fire shots critically injured Sultan-deceased. Muhammad Ramzan, another eye-witness while appearing in the witness box as P.W.9 toed the line of the complainant and made a similar statement. According to learned counsel for the appellant, the eye-witnesses made improvements during the trial to bring their evidence in line with the medical evidence, according to which Sultan-deceased had received only two entry wounds and rest of the two wounds, according to the doctor, were exit wounds. On the basis of said seeming inconsistency in the ocular evidence and the medical evidence, learned counsel has contended that the occurrence was not seen by the eye-witnesses relied upon by the prosecution. Another ground of attack on the veracity of the eye witnesses is that…
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