MUHAMMAD SHARIF Versus THE STATE
MUHAMMAD MUNIR KHAN, J. ‑‑This Criminal Appeal No.475/82 Lahore and the connected Murder Reference No.106/82‑Lahore arise from the judgment of learned Additional Sessions Judge, Sahiwal, whereby he on 15‑5‑1982 convicted Muhammad Sharif, appellant aged 18 years under section 302, P.P.C. for causing the death of Zafar Ullah Khan, aged 48 years and `sentenced him to death and a fine of Rs.5,000 in default thereof further R.I. for one year. It was directed that the fine when recovered half of it be given to the legal heirs of the deceased as compensation under section 544‑A, Cr.P.C.
2. The occurrence took place on 26‑7‑1981 at 3‑30 p.m. in a lane of village Wasavewala, Chak No.1/S.B. within the limits of Police Station, Haveli. The F.I.R. Exh.P.E. was lodged by Ata Ullah P.W.8, brother of the deceased at 5‑00 p.m. at the police station and was recorded by Ghulam Ali S.I./S.H.O. P.W.11. The distance between the place of occurrence and the police station is two miles.
3. The motive as alleged in the F.I.R. was that Mst. Anwar Bibi, the sister of the appellant had eloped with someone and the appellant was suspecting hand of Zafar Ullah Khan deceased in her elopement/ abduction. At trial stage, the solitary witness of the motive namely Ata Ullah P.W.8 stated that Mst. Anwar Bibi, the sister of the appellant had left her house due to cruelty of the appellant and that the appellant suspected that the deceased had a hand in the abduction of his sister. He further stated that the appellant had also grievance that as to why the deceased was supporting the children of Muhammad Saeed who had been murdered by him (accused) 4 or 5 years before this occurrence, in which the appellant was convicted and sentenced to 5 years' R.I.
4. As for the main occurrence, it has been stated that at the eventful time, Ata Ullah complainant was going to Bazar to fetch vegetables. When he reached near the house of the appellant he saw the deceased followed by Muhammad Rafiq P.W.6 and Rehmat Ali P.W.7 coming from the opposite side. At that time Muhammad Sharif appellant was going ahead of the complainant and when he reached near the deceased at a distance of 4/5 Karams, he fired at him (deceased) with a country‑made pistol of .303 bore which hit on the chest of the deceased who fell down and died on the spot. The occurrence was seen by Muhammad Rafiq P.W.6, Rehmat Ali P.W.7 and Khan (not produced).
5. On 27‑7‑1981 at 10‑00 a.m. Dr. Muhammad Afzal Malik, P.W.10 conducted post‑mortem examination on the dead body of Zafar Ullah Khan and found following injury on his person:‑‑
"A lacerated wound with inverted margins on the front of left chest lower part 10 c. m. away from left nipple at 7 O'clock position. The Kurta had a hole corresponding to the seat of injury. (Wound of entry)."
The doctor recovered a bullet from under the skin, on the back of left chest wall, almost lying at the same level as the would of entry mid‑line. In his opinion, the death was due to haemorrhage and shock as a result of injury on the person of the deceased which was quite sufficient to cause death in the ordinary course of nature. The injury was caused by fire‑arm. The time between injury and death was immediate. The duration between death and the post‑mortem was within 24 hours.
6. The appellant was arrested on 27‑7‑1981 from Bus Stand Haveli by Ghulam Ali S.I., P.W.11. On the same day, the appellant got recovered pistol Exh.P.5 with 3 pellets Exh.P.6/1 to 3 from his residential Kotha which were taken into possession vide memo. Exh.P.C. attested by Abdul P.W.5 and Ahmad Khan (not produced). The memorandum was prepared by Ghulam Ali, S.I., P.W.11. It may be noted here that since no empty was recovered from the spot and the pistol was not sent to Forensic Science Laboratory, therefore, the recovery of pistol Exh. P.5 from the appellant is of no significance.
7. To prove its case, prosecution examined 11 witnesses. Muhammad Rafiq P,W,6, Rehmat Ali P.W.7 and Ata Ullah P.W.8 have given the ocular account of the occurrence. They supported the main occurrence as detailed above, on all material particulars. They stated that at the eventful time Muhammad Sharif appellant had caused the death of Zafar Ullah Khan by firing at him from pistol. Ata Ullah also deposed about the double motive for the murder of the deceased by the appellant. Abdul P.W.5 and Ghulam Ali S.I. P.W.11 stated that the appellant had led to the recovery of pistol Exh. P. 5 with 3 live pellets Exh. P. 6/ 1 to 3 from his house. Dr. Muhammad Afzal Malik P.W.10 had conducted post‑mortem examination on the dead body of Zafar Ullah Khan. The rest of the evidence is of formal nature.
8. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. While admitting the causing of death of Zafar Ullah Khan deceased, he raised the plea of grave and sudden provocation and self‑defence of person as well. In reply to question, "As to why the case against him?", he stated:‑
"A scuffle took place between me and the deceased and Zafar Ullah deceased passed insulting remarks to me that I was 'Bai‑Ghairat' and what I have done about the abduction of my sister. Upon this I got flared up and grappled with the deceased, in which the loin cloth of the deceased was removed. Immediately after this, he brought a pistol from his house and fired at me when I was standing on the door of my house, but luckily it missed. I upon this in the family honour lost my self‑control and in self‑defence I also fired at him. I am the only bread‑winner of my family. My father is lame from his both legs and I have younger brother aged about seven/eight years. I am innocent."
He did not produce any witness in defence but tendered Exh. D.C. copy of crop inspection register.
9. The learned trial Court while disbelieving the plea of self‑defence and of grave and sudden provocation raised by the appellant has based conviction on the ocular, medical, recovery evidence and motive for the murder of the deceased.
10. Learned counsel for the appellant contended that the prosecution has failed to prove motive; that the eye‑witness being very much connected with the deceased are not reliable; that the presence of the eye‑witnesses on the spot appears to be doubtful, inasmuch as, had they been there, then they would have apprehended the culprit and that, in the circumstances of the case, reasonable possibility of the plea of self‑defence and of grave and sudden provocation raised by the appellant being true, cannot be excluded. In the alternative, the learned counsel requested for leniency in the sentence. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant supported the judgment of the trial Court.
11. We have considered the arguments advanced by the learned counsel for the parties with care. From the state of affairs detailed above, it is very much obvious that it is a case of two versions. Keeping in mind, the guiding principles laid down by the superior Courts for the appreciation of evidence in such like cases, we propose to discuss the prosecution case first in order to arrive at independent finding as to the truth or falsity of its case and the credibility of the eye‑witnesses because if we disbelieve the prosecution case, more particularly the ocular testimony, then the statement of the accused/ appellant will have to be accepted in its entirety. If the prosecution case is not discarded, we will then examine the two rival cases placing in juxtaposition and will review the entire evidence and the circumstances to arrive at a conclusion regarding the truth or falsity of the defence plea and will estimate its total effect in relation to two questions. (i) Has the plea of the appellant satisfactorily been established by the evidence and the circumstances appearing in the case? (ii) If the answer be in the negative is there yet reasonable possibility with the plea of self‑defence raised by the appellant might be true so as to cast reasonable doubt upon the prosecution case?
12. As far the prosecution case, we find that it is a case of prompt F.I.R. There is nothing on record to show that the F.I.R. was not a genuine document or that it was prepared after preliminary investigation. The occurrence took place at 3.30 p.m. and the F. I. R. was recorded at 5‑00 p.m. i.e. after 1 hours. The name of the appellant, the name of the witnesses, the weapon used by him and the manner in which the occurrence took place, all are given therein. This prompt and genuine report can be used to corroborate its maker I.e. the complainant.
13. Coming to the ocular testimony, we find that the names of Muhammad Rafiq P.W.6, Rehmat Ali P.W. 7 are mentioned in the F.I.R. They had no previous enmity, whatsoever, with the appellant. Muhammad Rafiq P.W. 6, Rehmat Ali P.W. 7 and Ata Ullah P.W. 8 are the tenant, servant and brother of the deceased respectively but it is, by now, well‑recognized that mere relationship /connection of a witness with the deceased does not bring him within the category of "interested witness". All the eye‑witnesses are residents of the same vicinity and they have given plausible causes of their presence on the spot at the time of occurrence. The eye‑witnesses have successfully stood the test of cross‑examination. The learned counsel has failed to point out material contradictions, major discrepancies or dishonest improvements in their statements. Despite searching cross‑examination, powerful engine could not illicit anything advantageous to the defence. We do not see any inherent infirmity in their evidence. The evidence is in consonance with probabilities, materially fits in with other evidence and has virtually inspired confidence in our mind. Furthermore, it is a case of solitary accused who has also admitted the death of the deceased at his hands. For all these reasons, we do not feel inclined to discard prosecution case or disbelieve the ocular evidence produced by it. This brings us to the two questions formulated by us in para. No. 11 of the judgment. Dealing with the first question we find that the appellant did not care to prove his plea of grave and sudden provocation/self‑defence through direct evidence. Except the statement of the appellant there is nothing on record to indicate the existence of grave and sudden provocation or right of private defence of the appellant to fire at the deceased. The pleas raised by the appellant are also not spelt out from the prosecution' case, evidence or the surrounding circumstances. In this view of the matter, our answer to the first question is in the negative. Adverting to the question at (ii), we find that the learned counsel has failed to point out any evidence or circumstance which may make the existence of grave and sudden provocation or right of self‑defence reasonably possible. There was even no scratch on the person of the appellant. The death of the deceased was instantaneous. Had he been armed with a pistol at the time of receiving injury, the same would have fallen on the ground and subsequently recovered in the investigation; that no empty was recovered from the place from where the deceased had allegedly fired shot on the appellant; that the eye‑witnesses were close to the place of occurrence. Had any provocative remarks been made by the deceased, the same would have been heard by the eye‑witnesses anal that in the circumstances of the case, the making of any taunt or insultive remarks by the deceased to the appellant runs counter to the natural probabilities. We do not see traces of grave and sudden provocation or of the right of private defence of person which may make the pleas raised by the appellant reasonably possible. For all these reasons, we are convinced that prosecution has proved its case against the appellant beyond reasonable doubt.
14. There is a wide difference between the two alternative sentences provided in section 302, P.P.C. In all criminal cases when proved, the question of sentence demands the utmost care on the part of the Courts dealing with the life of the accused. So, we have carefully attended to the question of sentence of the appellant. From the statement of Ata Ullah P.W. 8, it appears that the appellant was suspecting that his sister was abducted by Zafar Ullah deceased. In cross‑examination, the complainant stated:
"Sharif accused sent for me in his house and complained about the abduction of his sister Mat. Ameer Bibi by Safar Ullah deceased."
From the prosecution case it is thus very much obvious that the appellant had committed the murder of the deceased to vindicate his family honour. At trial stage, Ata Ullah complainant also having attributed double motive to the appellant for attack on the deceased, the cause of immediate attack on the deceased is at least not very much certain. Benefit of doubt on the question of sentence has to be given to the appellant. Treating the aforesaid circumstances as extenuating/ mitigating, we feel that the alternative sentence of imprisonment for life, would meet the case.
15. For what has been stated above, while maintaining the conviction of the appellant under section 302, P. P. C. the sentence of death is altered to imprisonment for life. The fine awarded by the trial Court, the imprisonment in default thereof and the directions for payment to the legal heirs of the deceased are, however, maintained.
The sentence of death is not confirmed.
M.Y.H.
Appeal partly accepted.