ANIS AHMED Versus HABIB BANK LIMITED

MUHAMMAD ASIF JAN, J .--- Shafique Ahmad appellant, aged about 40 years, Mahboob Ali appellant aged about 58 years and Muhammad Ahmad appellant aged about 35 years were convicted under section 452, P.P.C. read with section 34, P.P.C. and sentenced to undergo 5 years' R.I. alongwith a fine of Rs.5,000 each and in case of default in payment of fine, simple imprisonment for 4 months each.

All the three appellants were also convicted under section 302, P.P.C read with section 34, P.P.C.

Shafique Ahmad appellant was sentenced to death and a fine of Rs.20,000 and in case of default in payment of fine, further R.I. for 2 years.

Mahboob Ali and Muhammad Ahmad appellants were also- convicted under section 302, P.P.C. read with section 34, P.P.C. and sentenced to imprisonment for life alongwith a fine of Rs.20,000 each and in case of default in payment of fine, further R.I. of 2 years each.

Out of the amount of fine, if recovered, half the amount was ordered to be paid to the legal heirs of Nazir Ahmad deceased, vide judgment/order of Mehr Ghulam Fareed Khan, Additional Sessions Judge, Sahiwal dated the 25th of November, 1992.

2. Co-accused Khalid Mahmood, Muhammad Fazil alias Jagga, Muhammad Hayat and Usman Ahmad were given the benefit of doubt and acquitted.

3. The trial Court has referred this matter to this Court by way of M.R. No.457 of 1992, seeking confirmation of the sentence of death awarded to Shafique Ahmad appellant.

Shafique Ahmad appellant, Mahboob Ali appellant and Muhammad Ahmad appellant have appealed against their conviction and sentence by way of Criminal Appeal No.313 of 1992.

Mahboob Ali appellant and Muhammad Ahmad appellant have brought a separate appeal also by way of Criminal Appeal No.317 of 1992.

By this judgment/order, we propose to decide all these connected matters together.

4. The occurrence took place on the 9th of February, 1991 in the residential area (Ihata) of complainant Riaz Ahmad (P.W.4) brother of Nazir Ahmad deceased, in the area of Chak No. 16/11-L, which is at a distance of 13 kilometres from the Police Station Chichawatni of District Sahiwal, where the matter was reported on the same day at 10-15 a.m. by complainant Riaz Ahmad (P.W.4), brother of Nazir Ahmad deceased, whose statement (Exh.P.J.) was reduced into writing by Inspector Allah Ditta, S.H.O. of Police Station Chichawatni (P.W.9). He drew the formal F.I.R. under section 324/337/ 452/364 read with section 34, P.P.C. Section 302, P.P.C. was added subsequently on the 31st of March, 1991, upon the death of Nazir Ahmad.

5. The occurrence was witnessed by complainant Riaz Ahmad, (P.W.4) who is a brother of Nazir Ahmad deceased, Shamas Din (P.W.5) a neighbour of the complainant party, and Mst. Yasmeen (D.W.1) a sister of complainant Riaz Ahmad (P.W.4) and wife of Shafique Ahmad appellant. Mst. Kalsoom Bibi, a sister of Shafique Ahmad appellant was married to Nazar Ahmad, brother of complainant Riaz Ahmad (P.W.4). The said Mst. Kalsoom Bibi died a natural death.

Two days prior to the occurrence, Mst. Yasmeen (D.W.1) quarrelled with her husband Shafique Ahmad appellant and came to the house of her brother complainant Riaz Ahmad (P.W.4). On the day of occurrence at about 9 a.m. Shafique Ahmad appellant, Mahboob Ali appellant and Muhammad Ahmad appellant alongwith the acquitted co-accused came to the house of complainant Riaz Ahmad (P.W.4) and upon entering the courtyard of the house, Shafique Ahmad appellant fired at Nazir Ahmad deceased hitting him in the abdomen who fell down and died subsequently on the 31st of March, 1991. Thereafter, Shafique Ahmad appellant alongwith the other accused persons dragged his wife Mst. Yasmeen (D.W.1), threw her into a tonga and drove away.

6. Dr. Sardar Nadeem, Medical Officer, Tehsil Headquarter Hospital, Chichawatni (P.W.3) examined Nazir Ahmad while he was still alive on the 9th of February, 1991 and found the following injury on his person:--

(1) Fire-arm punctured wound 5-1/2 c.m. x 5 c.m. x going deep on right side of abdomen, 10-1/2 c.m. to the right of umbilicus. The edges of the wound were inverted. The underlying intestine was coming out corresponding laceration present on vest, sweeter and shirt. This was wound of entrance.

The injury was caused by a fire-arm.

7. The same doctor conducted the post-mortem examination on the dead body of Nazir Ahmad deceased, a young man of about 40 years, on the 31st of March, 1991 at 4 p.m. and found the following injuries on his person:--

(1) A dressed intensively septic wound 11-1/2 c.m. x 7 c.m. with severe foul smell on right side of lower abdomen, 10 stitched holes and one drainage hole present around the margins of the wound.

(2) An incisional pararnedial scar 20 c.m. x c.m. x 3 c.m. froth mid line

In the opinion- of the doctor; the cause of death was due to peritonitis and septic shock under injury No.1. which was grievous and. fatal and was sufficient to cause death in an ordinary course of nature. The probable duration between injuries and death was within fifty-one days and between death and post-mortem was two hours.

8. Allah Ditta, Inspector/S.H.O. of Police Station, Burewala, District Sahiwal (P.W.9), after recording the F.I.R. (Exh. P.J.) proceeded to the place of occurrence and recovered one- empty cartridge of a .12 bore gun (P.8) and one live cartridge of a 12 bore gun (P.9), one empty shell (P.10) of a 7 mm rifle, another empty '(P.11), of a 7 mm rifle and, yet another empty (P:12) bf a :12 bore gun and took the same into possession vide recovery memo. Exh. P.K. on the 9th of February, 1991.

9. Shafique Ahmad appellant was arrested on the 11th of February, 1991, while the other appellants were arrested on the 21st of April, 1991, by Inspector Allah Ditta (P.W.9) and S.I. Muhammad Ramzan (P.W.8).

10. Shafique Ahmad appellant while in police custody, led to the recovery of a .12 bore gun (R.13) on the 27th of February, 1991, which was taken into possession vide recovery memo. (Exh. P.R:).

Khalid-Mehmood appellant led to the recovery of .12 bore gun (P.1) alongwith its licence (P.1/A) which were taken into, possession vide recovery memo. Exh. P.L. on 4-5-1991. On the same day, Mahboob Ali appellant led to the recovery of 7 mm rifle (P.2) which was taken into possession vide recovery memo. (Exh. P.M.). Muhammad Fazil (acquitted) led to the recovery of .12 bore gun (P.3) which was taken into, possession vide recovery memo. (Exh. P.N.) and Muhammad Ahmad appellant led ,to the recovery of .32 bore revolver (P.4) which was taken into possession vide recovery memo. (Exh. P.O.).

All the recoveries were made by Inspector Allah Ditta (P.W.9) and S.-I. Muhammad Ramzan (P.W.8) and witnessed by Riaz Ahmad (P.W.4) and Ejaz Ahmad (given up).

11. The date, time and place of the death of Nazir Ahmad deceased is not denied by .the appellant: However, a different version of the death of Nazir Ahmad deceased is given by Shafique Ahmad appellant in his statement under section 342; Cr.R.C. which is to the following effect:-

"It is a false case. The P.Ws. have made false statement on account of their relationship with the deceased and enmity with me. My wife Mst. Yasmeen had never quarrelled with me nor she had gone to the house of her parents, after having a quarrel with me, as alleged by the prosecution. She actually went to see her mother and she sent a message for me to bring her back. I went to the house of my in-laws and Nazir Ahmad deceased, who after abducting Mst. Naziran had left Chak No. 16/11-L-about 6/7 years back and was putting up in District Vehari was found present in the house of my in-laws and on seeing me, he got infuriated because after the death of my sister and his second marriage he did not see eye to eye, with me. I told him that I have come to the house of my in-laws as I was sent for by my wife. At this he stated that he would not allow Mst. Yasmeen to accompany me. My wife had two minor 'children with her and she said 'to her brother Nazir Ahmad deceased that she does not want to desert the house of her husband and she has got minor children and she wants to accompany me to my house. The deceased snatched my minor children from my wife and on my, 'intervention he attacked with a loaded gun. I held the gun and snatched the same from the deceased. The deceased in an attempt to get back his gun pulled the gun from its barrel side and in this process and struggle the gun being loaded one went off accidentally, and as a result of which the deceased was injured. None of the eye-witnesses were present on the spot at the time of occurrence and none of my co-accused were with me at that time. Riaz Ahmad complainant used to work at Ghaziabad in an Oil Mills and he was sent for from there and after preliminary inquiry and investigation the present case was registered against me and my co-accused after the deliberations and consultations, in connivance with the local police. The dying declaration and other incriminating evidence is concocted and fabricated one. "

In answer to the question whether he had anything else to say The appellant Shafique Ahmad said:--

"I am innocent. Mst. Yasmeen had not supported the prosecution case, because it was a fabricated and concocted story and, therefore, the case of the prosecution due to non-production of Mst. Yasmeen falls to the ground."

12. Homicide is almost always a crime with multiple victims. There is the dead person himself, and those who loved him. One such unfortunate victim is Mst. Yasmeen, a real sister of Shafique Ahmad appellant and wife of Nazir Ahmad deceased, a young woman with minor children. Mst. Yasmeen was initially cited as a prosecution witness. Her statement under section 164, Cr.P.C. was recorded by Mr. Muhammad Afzal Bajwa (P.W.10) on the 17th of February, 1991, when he was posted as Resident Magistrate of Chichawatni, and she supported the case of the prosecution.

However, at the trial, Mst. Yasmeen did not support the case of the prosecution and appeared as D.W.1 and supported the case of the defence. During her cross-examination, she stated voluntarily that she 'did not seek any remedy because in such a situation she would be involving her own brother in the cases'.

13, Malik Masood Aslam (P.W.6) recorded the dying declaration of Nazir Ahmad deceased, who was injured at that time. The dying declaration of Nazir Ahmad (Exh. P.F./3) was recorded on the 9th of February, 1991 at noon time and is in consonance with the F.I.R.

14. Learned counsel for the appellants argued that Shafique Ahmad appellant had gone to bring back his wife Mst. Yasmeen and not to commit murder, that a sudden fight took place and, therefore, the case of Shafique Ahmad appellant falls within the purview of the old section 304, Part II, P.P.C. and the new section 300, clause (c), P.P.C., for which the maximum sentence is 10 years' R.I. Learned counsel relies upon the case of Ali Muhammad son of Noor Muhammad v. Ali Muhammad son of Wali Muhammad PLD 1996 SC 274 and Mazhar Masud v. The State PLD 1993 Lah. 293.

15. The killing itself is not denied. However, there are two different versions, one given by the prosecution and the other given by the defence. It is: now settled law that when there are two different versions regarding the same occurrence, they have to be seen in juxtaposition and the version which emerges to be nearer the truth has to be accepted, while the case of the prosecution has to stand squarely on its own two feet and has to be proved beyond all reasonable' doubts the case of the defence has to be accepted even if it is only probable and not proved beyond all reasonable doubts. This is the litmus test and it is based upon the basic principle that the benefit of all doubts must go to the accused who is the most favoured child of the law.

The defence version, in this case, is not only inherently improbable but is also physically impossible. According to the defence version, Shafique Ahmad appellant was empty-handed and while being empty-handed, he succeeded in overpowering Nazir Ahmad deceased, a healthy young man, and he further succeeded in snatching a loaded gun from him. According to Shafique Ahmad appellant, Nazir Ahmad deceased then tried to retrieve the gun by pulling it from the barrel. This is also impossible because now on Shafique's own showing, he was holding the gun from the side of the "butt" where the trigger is placed. We cannot, therefore, accept the version of the defence even as being probable and have no option but to reject it.

Thus, we are left behind with only, the prosecution version, wherein, I there is no room for the ingredients of a sudden fight.

16. Yet, in the peculiar circumstances of this particular case, where the scenario is of two young men closely related to each other through marriage, one being the real brother, of Mst. Yasmeen while the other being her husband, both deeply angry, we are not definite as to what really happened before that fatal moment when the trigger is pulled. Every murder is senseless, because, there is no anger so deep that it must be assuaged by killing.

Considering all the attendant circumstances of this case, we are not inclined to confirm the sentence of death and we feel that it will- meet the ends of justice if the sentence of death awarded to Shafique Ahmad appellant is reduced to imprisonment for life.

17. Resultantly, the sentence of death awarded to Shafique Ahmad appellant is not confirmed, but it is reduced. to the sentence of imprisonment, for lifer The sentence awarded to Shafique Ahmad appellant under section 452/34, P.P.C. is also maintained and both sentences shall run concurrently. The sentence of fine is also maintained.

The conviction and sentence of Mahboob Ali and Muhammad Ahmad appellants is also maintained. The benefit of section 382-B, Cr.P.C. shall be given to the appellants. Murder Reference is answered accordingly and the Criminal Appeals are dismissed.

N.H.Q./S-59/L Sentence reduced.