MUHAMMAD RIAZ Versus THE STATE

RAJA MUD KHURSHID, J.----‑‑ The occurrence took place at about 7‑30 a.m on 19‑11‑1990 in the area of Mohalla Rasul Nagar, Line Par, Police Station Kamoke City, District Gujranwala, in which Muhammad Khalique lost his life whereas three persons including the complainant were injured.

2. The complainant Muhammad Malik reported to the police vide his statement Eah.P.E. that he was working as a labourer. About 2/3 days prior to the occurrence, he had picked up a row with Muhammad Riaz son of Ghulam Ali caste Changar over the cutting of electric wires. The aforesaid Muhammad Riaz threatened that he will see to it. In pursuance of the aforesaid threat Muhammad Mushtaq a brother of Muhammad Riaz aforementioned visited the house of the complainant while latter's brother Muhammad Khalique deceased was also present in the house. Muhammad Mushtaq told the complainant that the latter was called out in the street by his father Ghulam Ali and brother Muhammad Riaz. The complainant went out in the street and found Ghulam Ali empty‑handed, Muhammad Riaz armed with Chhuri waiting there. Ghulam Ali raised a Lalkara that the complainant be caught and taught a lesson for restraining them to cut the electric wire. On hearing the Lalkara the complainant shouted that he may be saved. Upon his noise his brother Muhammad Khalique deceased, his sister Nusrat alias Nanhi, his niece Mst. Irshad Bibi came out in the street. Mushtaq caught hold of Muhammad Khalique deceased in Japha whereas his brother Muhammad Riaz accused/ appellant plunged Chhuri in the chest of Muhammad Khalique deceased thereby causing injury on his right rib. The deceased fell on the ground on receiving that injury. Sharifan Bibi, Shamim, Niamat Bibi and Taj Bibi started brick‑batting from the top of their house causing injury on the head and nose of Nusrat P.W. The bricks thrown by Shamim and Niamat Bibi fell on the head of the complainant thereby causing injury to him. Taj Bibi accused caused injury on the head of Irshad Bibi P.W. with a brick. The aforesaid accused continued brick pelting thereby causing injuries to the P.Ws. abovenamed on different parts of their bodies. The noise raised by P.Ws. attracted Chirag Din and Muhammad Rafique to the spot. They got the victim released from the assailants. The deceased was taken in a tonga to the Civil Hospital, Kamoke in injured condition. He succumbed to the injuries in the hospital.

3. The formal F.I.R. Exh.P.E. was recorded by Muhammad Tehsin, Muharrar, Head Constable on the same date at about 8‑45 a.m.

4. All the accused namely Ghulam Ali aged 56 years, Muhammad Riaz aged 27 years, Muhammad Mushtaq aged 17 years, Mst. Sharifan Bibi aged 55 years, Shamim aged 22 years, Niamat Bibi aged 23 years and Taj Bibi aged 13 years were challaned by the police to face the trial under section 302/148/149, P.P.C. read with Pakistan Criminal Law Amendment Ordinance, 1991. All of them were also charged under section 324/149, P.P.C. read with Pakistan Criminal Law Amendment Ordinance, 1991 for causing injuries to the P.Ws.

5. All the accused pleaded not guilty to aforesaid charge and claimed trial.

6. Ch. Faiz Talib Khan, learned Additional Sessions Judge, Gujranwala vide his judgment, dated 19‑3‑1992 held Muhammad Riaz accused guilty under section 302(b), P.P.C. read with Pakistan Criminal Law Amendment Ordinance, 1991 for commission of "Qatal‑e‑Amad" of Muhammad Khafque deceased. The accused/appellant was accordingly sentenced to death subject to confirmation by this Court. The accused/appellant was also sentenced to fine of Rs.10,000 or in default to undergo R.I. for one year. He was further directed to pay Rs.10,000 as compensation to the legal heirs of the deceased as required by section 544‑A, Cr.P.C. or in default of payment of compensation to further R.I. for six months. The remaining accused namely Ghulam Ali, Mushtaq, Mst. Sharifan Bibi, Shamim, Niamat Bibi and Taj Bibi were given benefit of doubt.

7. A reference under section 374, Cr.P.C. was made to this Court for confirmation of death sentence whereas Criminal Appeal No,274 of 1992 was filed by the convict/appellant against his conviction and sentence.

8. We propose to dispose both the matter by this judgment.

9. The prosecution examined 16 witnesses during the trial, to prove its cue against the accused. It consisted of eye‑witnesses namely Muhammad Malik P.W.i1, Mst. Nusrat Bibi alias Nanhi P.W.12 and Irshad Bibi PV.13. All of these witnesses were injured during the occurrence. The remaining two witnesses namely Chirag Din having died and Muhammad Rafique being unnecessary were given up. The complainant had also supported the motive alleged in the F.I.R.

10. The medical evidence consisted of Dr. Muhammad Mushtaq (P.W.4) who had examined one of the injured P.W. namely Irshad Bibi (P.W.13). He had found blunt weapon simple injury on her person. The post‑mortem on the dead body of Muhammad Khalique was conducted by Captain Dr. Ghulam Rasul (P.W.5). He had found the following injury on the person of deceased:‑‑

"A stab wound 6 c.m. x 1 c.m. going deep on the other and front side of chest at its lower part of right chest."

According to him injury No.1 was ante‑mortem and caused by sharp‑edged weapon. It was held to be grievous and dangerous to life. It was sufficient to cause death in the ordinary course of nature. The probable time between the injury and death was reported to be half hour to one hour.

The time between death and post‑mortem was given as 5 to 6 hours.

11. Dr. Ghulam Rasul P.W.15 had examined Muhammad Malik, complainant and had found 4 injuries on his person having been caused with blunt weapon, and were of simple nature.

12. According to him two injuries were found on the person of Mst. Nusrat Bibi. Both were caused with blunt weapon. Injury No.1 was grievous while injury No.2 was held to be simple.

13. The recoveries in this case consisted of blood‑stained clots of the deceased vide memo. Exh.PA. and blood‑stained earth from the spot vide memo. Exh.P.B. The memo. Exh.P.B. was attested by Muhammad Nazir and Muhammad Bashir P.Ws. The recovery of weapon i.e. Chhuri vide Exh.P.D. was attested by Muhammad Boota. The Chhuri recovered from the accused/appellant was reported to be stained with human blood, according to the report of Chemical Examiner Exh.P.N. and that of the Serologist Exh.P.P. respectively.

14. The learned counsel for the appellant contended that motive alleged in the F.I.R. by the prosecution was disbelieved by the learned trial Court as the same was not proved. This allegedly made the prosecution case doubtful from its very inception.

15. The learned counsel for the appellant further contended that the F.I.R. had become dubious and doubtful as it was recorded at a place other than the police station. The possibility of its recording after the deliberations and consultation could not be ruled out.

15‑A. That the prosecution side was not fair to involve almost all male and female family members of the accused side. The youngest accused was Muhammad Mushtaq aged 17 years. The police was also stated to be unfair with the investigation as it had delayed the action on the F.I.R. to cook up a story to involve all the members of accused family. In this context it was urged that the S.H.O. reached the spot at 2‑30 p.m. although the occurrence had taken place at 7‑30 a.m. and the distance between the police station and the place of murder was about 3 furlongs. Although 3 eye‑witnesses were injured, but it could not allegedly be proved that they sustained injuries at the hands of the accused by throwing bricks upon them. This part of the prosecution story was disbelieved by the learned trial Court and the accused who were attributed those injuries were acquitted. Even the police did .not make any injury statement in respect of injured P.Ws. nor the bricks used during the occurrence were taken into possession. It was therefore, urged that the prosecution case was highly doubtful and the conviction of the appellant/convict was not liable to be sustained particularly when his co‑accused were acquitted by the learned trial Court giving them the benefit of doubt.

15‑B. It was further contended by the learned counsel for the appellant that the eye‑witnesses being related to the deceased were also interested and as such could not be relied upon to convict the appellant.

16. The learned counsel for the State rebutted the learned counsel for the appellant by arguing that there was no time for deliberation or consultation for cooking up a false story. The F.I.R. was lodged promptly on the same date at 8‑45 a.m. though the occurrence had taken place at 7‑30 a.m. There was allegedly no cause for involving the appellant/convict falsely in this case as there was no previous enmity between the parties. The mere fact that the eye?witnesses were related to the deceased would not make them interested witnesses particularly when they were not inimical to him. On the contrary, they will be considered as natural witnesses. Their presence at the spot could not be doubted as they resided close to the' place of murder. It is for that reason that there was allegedly no suggestion at any stage by the accused party to challenge their presence at the spot. The mere fact that the co‑accused of the appellant/convict were acquitted would not take away instrinsic value of witnesses who had actually seen the occurrence and were also supported by the recovery of blood‑stained Chhuri at the instance of the appellant/convict. The medical evidence being in accord with the ocular account of the occurrence linked the appellant/convict with the murder of the deceased, beyond any shadow of doubt. It was, therefore, submitted that the appellant had no valid ground to challenge his conviction.

17. We have considered the arguments addressed from both sides. It is true that the eye‑witnesses are related inter se and also to the deceased, but that will not make them interested or inimical towards the accused because they were also natural witnesses as they were residing in a house adjacent to the place of occurrence. Their presence at the spot will therefore, be natural, and their evidence will carry due and convincing weight.

18. It is also true that the co‑accused of the appellant/convict were acquitted on the same evidence, but that did not mean that the ocular evidence had turned to be false and as such it could not be relied upon for sustaining the conviction of the appellant. If the benefit of doubt was extended to some of the accused persons in a case, it was only with a view to enforce the principle of safe administration of justice in criminal matters and it was not correct to say that in such a case the Court by implication held the ocular evidence as false. In fact grain is to be sifted from the chaff in order to protect the innocent and to punish the guilty one. The old maxim of falsus in uno falsus in omnibus is not attracted to the facts of the present case because sufficient, straightforward, and convincing ocular evidence corroborated by the medical evidence and other circumstantial evidence such as recovery of blood‑stained Chhuri was available against the appellant/convict, as compared to the co‑accused who were given the benefit of doubt. There is no scope nor there is any convincing probability that the F.I.R. was the result of due deliberations and consultation as alleged by the learned counsel for the appellant.

19. On the contrary the case was registered promptly within the range of 75 minutes. In such a short time, it is not possible to twist the actual facts or to invent a new story other than the real happening. Mere fact that the police had reached a little late after the registration of the case will not adversely affect the intrinsic value of the F.I.R. which had been registered earlier in time. The delay may be attributed to the proverbial slackness of the police to reach the spot after learning about the commission of the offence. It is by no means a satisfactory situation, but it has unluckily come into existence. However, it should not be allowed to affect merits of the case till some miscarriage of justice has been noticed. In the instant case the delay of the police in reaching the spot seems to be a leisurely routine without telling adversely on the merits of the prosecution case.

20. As pointed out above there is no enmity between the parties except solitary incident which resulted in the murder of deceased. There seems to be no reason as to why the complainant side should have falsely implicated the appellant/convict if he was not the actual offender. It is true that his family members were also involved alongwith him by the complainant side, but this is only an act of exaggeration. Unfortunately a tendency has developed in our society that all near and dears of the offender are usually named to bring the maximum harm to the family. It is only for that reason that the Courts have recognized the principle of sifting the grain out of the chaff as referred to above.

21. The case of the appellant/convict is distinguishable from the acquitted accused because the eye‑witnesses though related to the deceased will not tolerate that the actual killer of the deceased should go scot‑free and some substitute should be involved in his place. It will be natural on their part to see that the actual culprit should be brought to book though "Pointed out above some innocent persons may also be added with him in a fit of passions and fury, but that would not absolve the actual offender who in this appellant/convict.

22. In view of the above discussion, we have come to an irresistible conclusion that the prosecution had proved its case against the appellant/convict for the murder of the deceased and he was rightly convicted by the learned trial Court. The question of sentence however, needs serious consideration. The motive alleged by the prosecution was not proved. The actual motive for the murder therefore, remained shrouded in mystery. There was no previous enmity between the parties. The appellant/convict did not act in a cruel or desperate manner as he caused solitary blow with a conventional weapon i.e. an ordinary Chhuri to cause fatal injury to the deceased. These factors constitute mitigating circumstances to avoid the extreme penalty of death. The alternative penalty for the murder under section 302, P.P.C. would therefore, be attracted in this case. The death sentence is accordingly not confirmed. The appeal is dismissed but the appellant is sentenced to imprisonment for life. The sentence of fine and the amount of compensation awarded by the learned Court are upheld. The benefit of section 382‑B, Cr.P.C. shall be extended to the appellant/convict. The Murder Reference under section 374, Cr.P.C. stands disposed of accordingly.

N.H.Q./M‑2624/L ?????????????????????????????????????????????????????????????????????????????? Sentence reduced.