MUHAMMAD ASHRAF Versus State

HASNAT AHMAD KHAN, J .---Muhammad Ashraf appellant, 31, Sikandar Ali, 46, and Yasin, 19, were tried by the learned Additional Sessions Judge, Faisalabad, in the case F.I.R. No.167 of 2000 dated 26-2-2001, registered with Police Station, Saddar, District Faisal abad, in respect of the offence under section 302/34, P.P.C. Vide his judgment dated 30-3-2002, the said learned Additional Sessions Judge found the appellant guilty for the offence of murder of Noor Muhammad (deceased) and convicted and sentenced him to death under section 302(b), P.P.C. Besides, he was directed to pay a fine of Rs.50,000 which in case of its recovery was ordered to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. In default of payment of fine, he was ordered to further undergo simple imprisonment for six months. However, both the co-accused of the appellant were acquitted of the charge.

2. Feeling dissatisfied with the judgment of the learned trial Court, Muhammad Ashraf-appellant has challenged his conviction and sentence through Criminal Appeal No.571 of 2002, the complainant has filed Criminal Revision No.385 of 2002, seeking enhancement of the compensation ordered to be paid by Muhammad Ashraf, appellant, while the trial Court has sent a reference (Murder Reference No.469 of 2002) for confirmation of the death sentence awarded to the appellant. This consolidated judgment will dispose of all the said matters.

3. Succinctly, the prosecution's story, as narrated by the complainant Nasir Ali, milk-seller, in his. statement (Exh.PF), which reduced into the formal F.I.R. (Exh.PF/1) was to the effect that on the fateful day, i.e., 26-2-2001, at about 9-30 a. m. he being a milkman went to the Dhari of his brother, Noor Muhammad, to fetch milk, and found Noor Muhammad (salain) and Sadiq Ali (P.W.), brothers of the complainant, working in their field. Javed (a nephew of the complainant), was standing alongside the road near the said Dhari. In the meantime, a roving kite fell there, which was caught by him. Yasin co-accused ran towards Javed (P.W.-10), slapped him and snatched the kite from him. Javed called bad names to Yasiri, who again advanced towards Javed (P. W.10) and tried to beat him up. Noor Muhammad (deceased) refrained Yasin from doing so. In the meantime, Sikandar (acquitted co-accused) asked Muhammad Ashraf (appellant) to bring his hatchet so that Noor Muhammad (deceased) be dealt with. Muhammad Ashraf brought the Hatchet. Sikandar, acquitted co-accused, raise a Lalkara asking Yasin, acquitted co-accused and Muhammad Ashraf, appellant, to wipe him (Noor Muhammad) out, upon which above said Yasin caught hold of Noor Muhammad-deceased and Ashraf-appellant inflicted a hatchet blow on the left side of his head. According to the complainant, on the hue and cry of Noor Muhammad deceased, P.Ws Sadiq Ali (given up P.W.) and Fateh Sher (P.W.8) ran towards the place of occurrence and also witnessed the occurrence. Noor Muhammad (deceased) who, reportedly, became unconscious, was rushed to the hospital, where he died next day.

The motivating factor behind the occurrence was stated to be that a few days, before the occurrence, the cattle of the accused party had entered into the crop of the complainant-party and had caused lot of damage to the same. On that occasion, the complainant etc., statedly, had desisted the accused party but in return they had extended threats to them (complainant party).

4. After filing of a report under section 173, Cr.P.C., the appellant and his co-accused were indicted on the charge of murder of Noor Muhammad (slain). During the trial, the prosecution, in support of its case, produced as many as 12 witnesses.

Nasir Ali-complainant entered into the witness box as P.W.6 and substantiated his statement mentioned in the F.I.R. (Exh. PF/1). Besides, he deposed about the recovery of blood-stained hatchet P.1 at the instance of the appellant.

Fateh Sher and Javed came forward as P.W. 8 and P.W. 10, respectively and tried to corroborate the statement made by the complainant.

Ghulam Farid, S.-I./investigating officer entered the witness box as P. W.11. According to him, after recording the statement of the complainant (Exh.PF), he sent it to the police station for registration of case through Liaquat Ali, Constable No.1310, whereafter, he (Investigating Officer) went to the hospital. After visiting the hospital, he went to the place of occurrence, where he collected the bloodstained earth vide memo. (Exh.PH), prepared the site plan with respect to the place of occurrence (Exh.PK) and recorded the statements of P.Ws. at the place of occurrence. After the death of Noor Muhammad, the Investigating Officer went again to the hospital, where he prepared injury statement (Exh.P.C.), inquest report (Exh.P.D.) in respect of the deceased and sent the dead body under the escort of Muhammad Akram, a constable, (P.W.1) for its post-mortem. After the autopsy, Muhammad Akram, constable, produced before the Investigating Officer the last worn clothes of the deceased, i.e. P.2 to P.5, which were taken into possession by him (Investigating Officer) vide memo (Exh. PJ). According to P.W 1 he recorded the statements of P.Ws. also. He also got prepared the site plan with scale from the Patwari (P.W.3) vide memo (Ex. PA) and (Ex.PA/1).

The Investigating Officer arrested the accused and on the pointing out of Muhammad Ashraf-appellant, he recovered the blood-stained Hatchet (P.1) from beneath the cot, lying in the room of his Dhari, which was taken into possession vide memo. (Exh.P.F.). After completing the investigation, he challaned the accused under section 173, Cr.P.C. and sent them up to face the trial.

Dr. Javed Iqbal, who had conducted post-mortem examination on the corpse of Noor Muhammad-deceased came forward as P.W.4 and gave the following detail of the injury on his person:

(1) An incised wound measuring 12 c.m. x 1 c.m. margins everted, 3 c.m. from left ear, 12 c.m. above from left shoulder upto the mid line. Bone was exposed and fractured.

In his opinion, injury No.1 on head, being of fatal nature, had extensively damaged the brain tissue, and caused the death. So, according to him, the said injury was sufficient to cause death in the ordinary course of nature.

Dr. Saeed Akbar Tariq, Medical Officer, who had conducted medico legal examination on the person of Noor Muhammad (deceased), before his death, showed up as P.W. 7 and proved his report as Exh.P.G.

Rest of the P.Ws, being formal in nature, need not be discussed here.

5. The prosecution gave up Muhammad Ashraf, P.W., being unnecessary.

6. After rendering the reports of Chemical Examiner (Exh. P.I.) and (Exh. P.M.), and reports of Serologist (Exh.P.L.1) and (Exh.P.M.1), the learned D.D.A., opted to close the prosecution's evidence, whereafter, the appellant and his co-accused were called upon to make their statements under section 342 Cr.P.C. While making the said statements, they denied the prosecution version and gave their own versions. In answer to the question, as to why the case was registered against him, Muhammad Ashraf-appellant replied as under:-

"This is a false case. The P.Ws. are inter se related each other. They were not present at the scene of occurrence and they have not witnessed the same. The instant case was got registered at the instance of Jafar Ali A.S.-I., the brother of Noor Muhammad deceased, and Razaq S.-I., the Bahnoee of Noor Muhammad deceased, after due deliberation and with consultation have lodged a false motive in this case. My co-accused Sikandar Ali and Yasin were not present at the scene of incident. They have been implicated in this case as they are closely related with me. I am Zamindar and I myself cultivated my land. I own a "Dhari" in my landed property, whereas my residence is in the village. My parents and sister are residing in the village. On the fateful day, my sister Mst. Khursheed Bibi, who was unmarried, brought my meal at my "Dhari" usually, but I was not present at the "Dhari". The "Dhari" of Noor Muhammad deceased is opposite of my "Dhari". He while seeing me not present at my "Dhari" availed the opportunity, caught hold my sister Mst. Khursheed Bibi and by falling her on the ground attempted to commit "Zina-bil-Jabr" with her at my "Dhari". She raised hue and cry, upon which, I attracted at the spot and on seeing Noor Muhammad attempting to commit "Zina-bil-Jabr" with her, at the spur of the moment in a grave and sudden provocation and on account of "Ghairat", I inflicted a single hatchet blow upon the head of the deceased in order to rescue my sister and to save her chastity from the deceased. My co-accused were not present at that time. I myself appeared before the police and disclosed the incident. The police under the influence of Jafar A.S.-I. and Razaq S.-I., brother and Bahnoee of the deceased, had falsely manoeuvred and fabricated a false story and had ignored all my pleas. The investigation in this case is biased one. I have inflicted a single hatchet blow upon the person of the deceased while seeing him attempting to commit "Zina -bil-Jabr" with my sister in order to save her chastity at the spur of moment and under grave and sudden provocation and on account of "Ghairat", therefore, I have committed no offence. My sister Mst. Khursheed Bibi also appeared before the police, but the police had not intentionally joined her in the investigation under the influence of brother and Bahnoee of the deceased, who are police officers."

The appellant, however, did not opt to make his statement under section 340 (2), Cr.P.C. as his own witness.

7. After the conclusion of the trial, the appellant was convicted and sentenced as mentioned above while both of his co-accused were acquitted of the charge by extending the benefit of doubt in "their favour.

8. Learned counsel for the appellant has contended that the prosecution story is nothing but a cooked book; that the occurrence, which had not been witnessed by the alleged eyewitnesses, was reported to the police with the delay of four hours; that admittedly the F.I.R. was not recorded at the police station rather the same was recorded at "Jalvi" Market which is at a distance of 5 kilometers from the place of occurrence; that at the place where the complaint (Exh. P. F.) was purportedly recorded, is a place of business of Fateh Sher (P.W.8), who runs a dairy farm at the said place; that. the F.I.R. was recorded after due consultation and deliberations; that the concerned police officials rendered undue help to the complainant party due to the fact that two close relatives of the complainant had been serving in the police department in the days of the occurrence; that with the connivance of said police employees, the Daily Diary register was stopped and the F.I.R. was registered with a considerable delay with a view to tailor false and fabricated story; that it is a case of two versions and the defence version, according to which Noor Muhammad (deceased) was caused a hatchet blow by the appellant ,under sudden and grave provocation, is more probable and plausible than the one put forward by the prosecution; that the attending circumstances did support the plea advanced by the appellant; that none of the alleged eyewitnesses was present at the spot when the unfortunate occurrence took place; that Nasir Ali (P.W.6) and Fateh Sher (P.W.8) were not expected to be present at the time of occurrence inasmuch as during the days of occurrence Nasir Ali (P.W.6) used to run the business of collecting and selling the milk while Fateh Sher (P.W.8) used to run the business of dairy near "Darbar Jalvi" which admittedly, is situated at a distance of 5 kilometers from the place of occurrence; that Muhammad Javed, the third alleged eye-witness of the occurrence admittedly had appeared before the police for making his statement under section 161, Cr.P.C. after three months of the occurrence that the motive as set up by the prosecution was disbelieved by the learned trial Court and that on the basis of the same evidence two co-accused had already been acquitted by the learned trial Court, therefore, in the .absence of strong corroboration the conviction awarded to the petitioner is not sustainable. In the alternative the learned counsel for the appellant has prayed to commute the death sentence into one of imprisonment for life on the ground that in any case the prosecution miserably failed to prove the immediate cause of the occurrence. To augment his arguments, the learned counsel has placed reliance on the case of Abdul Khaliq v. The State (1996 SCMR 1553) where it was held as under:--

"It is a settled proposition of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay."

Learned counsel further relied upon the cases of Basharat and another v. State 1995 SCMR 1735 and Ghulam Shabbir v. The State (2008 MLD 488).

9. Conversely, the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has contended that a young man of 32-years was wiped out by the appellant in a broad-daylight occurrence which was duly witnessed by the eyewitnesses who while appearing in the witness box fully corroborated the prosecution's version; that the eyewitnesses had no animosity whatsoever to falsely implicate the appellant; that the defence version advanced by the appellant is an afterthought and tailored story which was coined due to the fact that according to the medical evidence at the time of post-mortem semen was found present on the inguinal region of the deceased but the defence version does not marry up with the true version inasmuch as it was not the case of the accused that at 'the time of occurrence the deceased . had been committing rape with the appellant's sister rather according to the appellant the deceased was grappling with appellant's sister to commit rape with her; that the prosecution has successfully proved its version beyond any shadow of doubt and that in the circumstances of the case the appellant, who chillingly axed Noor Muhammad (deceased), a young man, to death on a petty matter is not entitled to any relief in the matter of sentence.

10. After giving an ardent hearing to the respective learned counsel for the parties and going through the record carefully, we have straightaway noticed that in this case Noor Muhammad (deceased) was wiped out in an occurrence which admittedly took place in broad-daylight. We have further noticed that it is a case of two versions inasmuch as according to the prosecution Noor Muhammad (deceased was axed to death on the dispute of looting/grabbing a roving kite while according to the defence the appellant lynched Noor Muhammad (deceased) under sudden and grave provocation. So we have to decide the fate of this case keeping both the versions in juxta-position to determine as to which of the versions is more probable and nearer to the truth. As initially it is the duty of the prosecution, to prove its case against the accused, therefore, we intend to examine the prosecution's evidence first.

11. After going through the record the picking prosecution's evidence to pieces, we have noticed that the prosecution's case is hinging upon the ocular evidence, motive, medical evidence and recovery of the weapon of offence.

12. Insofar as the apple of discord behind the occurrence is concerned, the prosecution while putting the legal machinery into motion set up two stories regarding the motive. The immediate motive was stated to be a dispute between Javed (P.W.10) and Yasin (acquitted co-accused) to grab/loot a roving kite. It was further asserted that Javed (P.W.10) succeeded to catch hold of the said kite due to which he was slapped by Yasin acquitted co-accused on which Javed, P.W.-10, abused Yasin acquitted co-accused who was forbidden by Noor Muhammad (deceased), as a reaction thereof Ashraf appellant caused him (Noor Muhammad) a hatchet blow. The complainant further alleged that some days prior to the occurrence cattle belonging to the accused party had damaged the crops of the complainant party and on their protest the accused party had threatened them (complainant party). We have gathered that after the conclusion of the trial the learned trial Court disbelieved the motive as set up by the prosecution. We have further concluded that the reasons for disbelieving the said motive are quite weighty inasmuch as during his cross-examination the investigating officer, who appeared as P.W.11, candidly conceded that he had not recorded statement of any witness with respect to the motive. He further admitted that till 17-3-2001 Javed (P.W.10), the prime witness of the immediate motive, had not been joined in the investigation. Said Javed (P.W.10) during his cross-examination also admitted that his statement was recorded by the police after three months of the occurrence. It is further pertinent to point out here that during the investigation the kite which became the apple of discord between the parties was not recovered. Moreover, Nasir P.W.-6 tried to improve the version regarding motive by blaming the appellant on the allegation of exchanging hot words with Noor Muhammad (deceased) on the earlier incident. In these circumstances we are also of the view that the prosecution miserably failed to prove its case regarding the motive.

13. Insofar as the medical evidence is concerned the appellant did not deny causing of injury to the deceased. In view of his statement recorded under section 342, Cr.P.C. we are inclined to hold that the medical evidence did corroborate the prosecution's version.

14. Similarly, though the recovery of blood-stained hatchet, weapon of offence, as alleged by the prosecution, has been denied by the appellant but considering his statement under section 342, Cr.P.C. wherein he admitted the causing of a hatchet injury to the deceased the said denial is not much helpful to him especially when the reports of Chemical Examiner and Serologist are positive.

15. Now coming up to the ocular version, the same comprises statements of Nasir Ali (P.W.6), Fateh Sher (P.W.8) and Javed (P.W.10). Insofar as Javed (P.W.10) is concerned, admittedly, his statement under section 161, Cr.P.C. was recorded by the police after three months of the occurrence, therefore, while pinning our faith on the case Abdul Khaliq v. the State (supra) we are in agreement with the learned counsel for the appellant and resultantly tend to discard the ocular version provided by the said witness. Beside, during his cross-examination Nasir P.W.6 candidly admitted that Javed (P.W.10) was not mentally fit. As far as Fateh Sher (P.W,8) is concerned, during his cross-examination he candidly admitted that during the days of occurrence he used to run a dairy near "Darbar Jalvi", Faisalabad (see page 33 of the paper book). At page 34 of the paper book he admitted "that "Darbar" of Imam Jalvi is situated at a distance of 5 kilometers from their village. He further admitted that the work of the dairy used to start at 8-00 a.m. He maintained that he had been residing at a distance of 8-10 acres from the place of occurrence. In the normal course of the circumstances his presence at the time and place of occurrence would be taken with a pinch of salt and his explanation regarding his presence at the place of occurrence appears to be economical with truth.

16. Admittedly the F.I.R. was not recorded at the police station rather the same was registered on the basis of the complaint which was recorded near the afore-mentioned "Jalvi Market" where the dairy farm of P.W.8 was situated. The F.I.R. was registered with the delay of 4-1/2 hours after the occurrence. Admittedly one Jafar, who had been serving as A.S.-I. in the days of occurrence, is real brother of the complainant while one Razaq, brother-in-law (Behnowee) of Noor Muhammad (deceased) had been serving as Sub-Inspector police, during the said days. In these circumstances the possibility of recording of the F.I.R. after due deliberation and consultations cannot be ruled out. In the above noted circumstances showing the presence of P.W.8 and P.W.10 at the time of occurrence falsely cannot be ruled out rather it appears to be doubtful. However, presence of Nasir Ali (P.W.6), complainant, who has furnished good reasons for his presence at the place of occurrence cannot be doubted.

17. Now the question remains as to which of the two versions is more probable. We have noticed that according to the site plan and the evidence provided by Muhammad Tahir, Patwari (P.W.3) as well as the other witnesses the occurrence took place near a passage/road which fact is not even denied by the appellant whose claim is only to the extent that his Dhari was situated quite near to the place of occurrence. Though, according to the prosecution's evidence, Dhari of the accused/appellant was situated quite near to the place of occurrence, yet one would take the defence plea with a pinch of salt, for, it does not touch our judicial perception that. one would attempt to rape a girl on the side of the road and that too right in daylight.; Even otherwise after having set up al definite plea of acting under sudden and grave provocation, the appellant miserably failed to discharge the burden of proof cast upon 'him under the provisions of Arts.119 and 121 of the Qanun-e-Shahadat Order, 1984, inasmuch as neither he opted to make a statement under section, 340(2), Cr.P.0 nor did he produce his sister, with whom at the time of occurrence the deceased had attempted to commit rape, in his defence. Besides, the attending circumstances do not support the defence version. Insofar as the presence of semen on the inguinal region of the deceased at the time of occurrence is concerned that might be result of damage to the brain which is sufficient for excretion of semen, At the cost of repetition it is observed that according to the defence, Noor Muhammad (deceased), at the time of occurrence was not committing rape with the appellant's sister rather according to the appellant, he (deceased) was just grappling with her in an attempt to defile her so the presence of the semen does not advance the defence story. For what has been stated above, we are not inclined to accept the defence plea raised by the appellant. Consequently, we have to fall back on the statement of Nasir (P. W.6) whose presence at the time and place of occurrence has been believed by us. Though P.W.6 is brother of deceased but in the absence of previous enmity between the parties he cannot be dubbed as interested witness. His evidence has been found to be straightforward. During his cross-examination he remained consistent Conviction can be passed on the basis of testimony of a sole witness if he is found trustworthy. It is the intrinsic value of the ocular evidence, which matters and not the member of the eye-witnesses.

18. It is true that on the basis of same evidence, Yasin and Sikandar co-accused have been acquitted and in view of the settled principle of law a strong corroboration is needed to maintain the conviction of the appellant on the basis of same evidence but considering the fact that he did not deny the inflicting of an injury by him to the deceased the reliance can be placed on the ocular testimony furnished by P. W. 6 which has been supported by the medical evidence, recovery of blood-stained hatchet, positive reports of Chemical Examiner and Serologist. Consequently, we are inclined to maintain the con viction awarded to the appellant under section 302(b), P.P.C.

19. Now taking up the question of confirmation of the death sentence awarded to Muhammad Ashraf appellant, we have concluded that there are some mitigating and extenuating circumstances justifying the commutation of his death sentence into one of imprisonment for life. The said mitigating circumstances are firstly, there was no deep-rooted enmity between the parties; secondly, the prosecution miserably failed to prove the motivating factor behind the occurrence and the origin of the fight remained shrouded in mystery; inasmuch both the parties failed to take the Court into confidence regarding the actual and real cause of the occurrence which took place right in front of Dhari of the appellant, thirdly, the possibility that the occurrence took place suddenly cannot be ruled out altogether and fourthly, though, there was nothing to stop the appellant from repeating the shot, but he caused only a single injury to the Noor Muhammad (deceased) who unfortunately died on the next day.

20. For the said reasons and after placing reliance on the case of Sher Ali v. State (1980 SCMR 291), Mumtaz Hussain v. State (2006 PCr.LJ 762), Muhammad Arshar v. State PLD 1996 SC 122, and Sikandar Baig and others v. State 1990 ALD 595(2), the conviction under section 302(b) P.P.C. awarded to Muhammad Ashraf appellant is maintained and the appeal is dismissed but with the modification of sentence. Consequently, the death sentence awarded to the appellant, is commuted into one of imprisonment of life. Further, he would get the benefit of provisions of section 382-B, Cr.P.C. The sentence of fine, being illegal, is set aside. However, he is directed to pay compensation of Rs.1,00,000 to the legal heirs of the deceased in default thereof, he will further undergo six months' S.I. Death sentence is not confirmed and Murder Reference' is answered in negative .

21. In view of our finding returned on the appeal whereby instead of payment of fine of Rs.50,000 the appellant has been ordered to pay compensation of Rs.1,00,000 to the legal heirs of the deceased the Criminal Revision No.385 of 2002 filed by the complainant stands accepted to that extent.

M.H./M-194/L Order accordingly.