ASHFAQ AHMED Versus State

MUHAMMAD ASHRAF BHATTI, J .---This common judgment is intended to dispose of Criminal Appeal No.1820 of 2002 filed by Ashfaq Ahmad appellant/convict as also the Murder Reference No.808 of 2002, cited above, made by the learned Additional Sessions Judge, Depalpur under section 374, Cr.P.C. and in pursuance of the impugned judgment passed on 4-10-2002, whereby the said appellant was convicted and sentenced to death besides payment of Rs.50,000 as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased namely, Muhammad Arif and in default thereof to undergo six months' S.I. whereas his co-accused namely, Muhammad Rafiq, Khair Din, Muhammad Tufail and Muhammad Sharif were acquitted, giving them benefit of doubt on conclusion of the trial initiated after registration of formal F.I.R. No.357 of 2001, dated 18-5-2001 (Exh. P. D./1) under sections 302/148/149, P.P.C. at Police Station Hujra Shah Muqeem, 12 km away from the place of occurrence that took place on 18-5-2001 at 3-00 a. m.

2. Briefly stated, the prosecution case against Ashfaq Ahmed appellant and his acquitted co-accused is that on the night of 17-5-2001 Muhammad Arif deceased, the complainant of the case also, along with eye-witnesses Allah Ditta P.W. and Liaquat Ali P.W.2 went to the house of Ashfaq Ahmed appellant to demand Rs.80,000, his hard earned money that was given to him from time to time and Muhammad Ashraf assured them all the night to pay it back, but about 3-00 a.m. having suddenly provoked, Ashfaq Ahmed armed with pistol, Khair armed with carbine and Tufail armed with .12 bore gun started firing at him and so, two fires hit at his back, he was injured and fell down. Rafique with a Danda (stick) and Sharif empty handed were also statedly there with them.

3. Motive, as stated by him, was that Ashfaq Ahmad appellant, who is also his first cousin (son of his deceased Mamoon Bashir) had promised to give hand of his sister Mst. Sajida Bibi to him and that is why 'he had been giving his all wages of his labour to him for the last considerable period of time and that when the same demanded back, not only he was not ready to pay it, the appellant with his co-accused injured him.

4. Muhammad Arif was removed to R.H.C. Hujra Shah Muqeem, where his statement (Exh.P.D.) was recorded by Nawab Ali, S.-I. P.W.12, after the doctor declared him fit to do so. However, he died on 21-5-2001 and offence under section 302, P.P.C. was added by the Investigating Officer. The usual police investigation was initiated by Nawab Ali A.S.-I. (P.W.12), Investigating Officer of the case after recording statement of injured Muhammad Arif at the hospital. On learning of his death, he reached Jinnah Hospital, Lahore on 21-5-2001, got conducted the post-mortem examination on his body, collected blood-stained earth, blood-stained clothes and last worn clothes of Muhammad Arif deceased, prepared inquest report, injuries statement as also the scaled site-plan whereafter, the investigation was transferred to Muhammad Akmal S.-I. (P.W.13) for a short period and then finally entrusted to Dr. Manzar Jamil A.S.P. Saddar Okara (C.W.1). In his, investigation Khair Din, Muhammad Tufail, Muhammad Rafique and Sharif co-accused of the appellant was found innocent except Ashfaq Ahmed appellant, the solely found responsible for the commission of murder of Muhammad Arif. He was arrested by Muhammad Ashraf S.-I. (P.W.15) and got effected recovery of .32 bore pistol (P.5) with the live bullets (P.6/1-2) from him. He prepared the recovery memo. Exh.P.L. and its site-plan Exh.P.L./1, attested by Ejaz Ahmed A.S.-I. (P.W.16) and Ata Muhammad Constable (not produced).

5. At the trial the prosecution banked upon the ocular account furnished by the aforesaid eye-witnesses who reiterated the contents of the F.I.R.

6. As to medical evidence Dr. Muhammad Yahya appeared as P.W.9. He examined Muhammad Arif in injured condition. As per his Medico Legal Report (Exh.P.G./1), following injuries were observed: --

(i) A fire-arm entry wound 0.6 c.m. x 0.6 c.m. on back on right lumber region;

(ii) A fire-arm entry wound 0.6 c.m. x 0.6 c.m. on back of right lumber region 6 c.m. below and medial side of Injury No.1 and

(iii) A fire-arm exit wound 1 c.m. x 1 c.m. on in front and right side of abdomen 4 c.m. above and right side of umbilicus.

When Muhammad Arif breathed his last at the Jinnah Hospital, Lahore post-mortem examination upon is dead body was conducted by Dr. Saghir Ahmed (P.W.10). Injuries (including surgical wounds) as observed by him on his body were of the following nature:

(i) A surgical wound 26 c.m. long, 20 stitches were applied on mid line of abdomen;

(ii) A surgical wound 1 c.m. x 1/2 c.m. on left side of abdomen;

(iii) A surgical wound 1 c.m. x 1/2 c.m. on the right side of abdomen.

(iv) A fire-arm exit wound 8 c.m. x 6 c.m. on the right side of abdomen 3 c.m. away from umbilicus. Colostomy bag was applied at the wound and 11 stitches are applied around the wound;

(v) A fire-arm entry wound 1-1/2 c.m. x 1-1/2 c.m. on back and right side of chest 7 c.m. away from midline;

(vi) A fire-arm entry wound 1-1/2 c.m. x 1-1/2 c.m. on back and right side of chest 31 c.m. away from midline 4 c.m. intermedial from Injury No.5.

In his opinion, cause of death was cardiopulmonary arrest and extensive injury to abdominal viscera. The prosecution also relied upon the reports received from the offices of Chemical Examiner, Serologist and Forensic Science Laboratory Exhs.P.M., P.N. and P.O. respectively.

7. In defence the appellant, during his statement recorded under section 342, Cr.P.C. when asked why this case is against him and why the P.Ws. had deposed against him, he replied as under:---

"Arif deceased is my relative. He had visiting terms with my parents. My father Manzoor Ahmed had died one year prior to this occurrence. Arif deceased had developed illicit relations with my mother Razia Bibi after the death of my father. It came to my knowledge and my Mohallandars that Arif deceased had developed illicit relations with my mother Mst. Razia Bibi. I stopped Arif deceased one month prior to the occurrence that next time he should not come in my house. On the night of occurrence Arif deceased was present near the Dhari/Tube-well of Ch. Anwar at 3-00 a.m. and people from the nearby of that Dhari thought that he is thief and some one made firing towards him in which he was injured and later on expired. It was the blind occurrence. I was involved in this case due to suspicion. The P.Ws. are related to the deceased. They deposed falsely against me. I am innocent."

8. The defence also referred to confrontations highlighted during cross-examinations of Allah Ditta (P.W.1) and Liaqat Ali (P.W.2) vide Exh.D.A. and Exh.D.B.

9. After perusal of record and hearing the parties we have observed that Muhammad Arif deceased, (who lodged complaint Exh.P.D. before his death), the eye-witnesses Allah Ditta (P.W.1) and Liaquat Ali (P.W.2) as also the appellant Ashfaq Ahmed are closely/blood related inter se. There is also no dispute as to nature/number of injuries, their seats, kind of weapons, the time and date of occurrence. However, the defence tried to make a case that the occurrence took place near the tube well of one Ch. Muhammad Anwar and so it was an unseen occurrence; but fact of the matter is that there is no credible evidence on record to prove this version of the defence. Even the said Ch. Muhammad Anwar was not produced as a witness at the trial to prove it. On the other hand, the first Investigating Officer of the case (Nawab Ali A.S.-I.) categorically rejected defence's suggestion put to him in this regard. Further, the very presence of blood just in front of the door of the house of appellant, as highlighted in scaled site-plan (Exh.P.H.) and collection thereof by the Investigating Officer, duly supported by the P.Ws. has not been shattered by the prosecution. Dr. Manzar Jamil ASP (C.W.1), had too found that the occurrence had taken place in the house of the appellant. In his findings both the injuries were caused by the appellant at the back of the deceased. The statements of the doctors as also (P. W.1 and P.W.2), Medico Legal Certificate (Exh.P.G.) and post-mortem report (Exh.P.F.) fully corroborate it. Recovery of pistol taken into possession vide (P.5) from the appellant is fully testified by the first Investigating Officer (P.W.15) and Ejaz Ahmad, A.S.-I. (P.W.16) who had no malice or mala fide against him. However, it appears that the said Investigating Officer had not properly investigated the case. On the same day he had inspected the spot but neither recorded statements of some persons interrogated by him regarding motive or had taken into possession the empties. But due to his conduct or negligence prosecution case should not suffer.

10. Interestingly, at the trial the defence made another effort to dislodge the prosecution case by putting the blame of injuries on some thief. Nothing is on record to prove it and so this plea is liable to be simply brushed aside because the appellant failed to explain about the presence of human blood at the door of living room of his house. The presence of blood in the house totally nullifies appellant's story of a "thief" which otherwise seems to be concocted.

11. From the evidence, overwhelmingly present on record, it comes to light that the deceased, a 20 years youth, was residing with the appellants' family since long. The appellant's mother was too in her prime age at the time of the occurrence who had lost her husband just a year ago and had to look after the family i.e., the appellant, a dependent and still in his teens, and the minor kids. So, it is understandable that whatever the deceased was earning, a considerable portion thereof must have been supplementing family's monthly income and that perhaps played a pivotal role coupled with the peculiar circumstances of the ease and the ages of the deceased and the widow mother of the appellant, to create mutual likeness culminating in indecent relationship between the two. This indeed was also admitted during the cross-examination of the first Investigating Officer Muhammad Ashraf in a suggestion put to him by the defence. This relationship was also found existing prior to the occurrence by the aforesaid ASP (C.W.1). In this regard, it would be beneficial to have a look at the statement of the appellant, hereinbefore mentioned, wherein he too talked about his suspicion regarding his mother's illicit relationship with the deceased. So, therefore, we have reason to believe that the P.Ws. as also the appellant deliberately suppressed the immediate cause of the murder of Muhammad Arif committed due to this relationship. It appears that being close relatives the eye-witnesses kept mum just to protect the family honour. However, keeping in view these given circumstances, possibility of false implication of the appellant in the case in hand on their part was rightly ruled out by the learned trial Court, as they could not afford to spare the real culprit and involve their own kith and kin in the murder under reference.

12. There is another supporting piece of evidence. The seats of injuries caused on the back of the deceased, if viewed in the surrounding circumstances of the case, provide another justiable ground to corroborate the findings of A.S.P. (C.W.1). We understand that when the appellant might have found the deceased in an objectionable position with his mother, he must have reacted angrily prompting the deceased to make a bid to escape good from there and so before the deceased could take to his heels, he was shot twice from behind by the appellant. And this can only be the reason that blood was found present just in front of the door of the living room of the appellant's house. This all leads us to draw a convincing inference against the appellant and to believing the ocular account. Therefore, the motive as alleged by the prosecution, if believed to be not proved, as contended by the defence, would not play any leading role in the given circumstances of this case nor it is always necessary that the prosecution must prove the motive alleged and particularly in this case we find that the prosecution was not bound to prove it.

13. Resultantly, in our view the extreme penalty of death awarded by the learned trial Court was not warranted at all. The circumstances of the case indeed do not bring the case of the appellant within the ambit of section 302(a) or 302 (b), P.P.C. Rather, it squarely falls within the ambit of section 302 (c), P.P.C., as in our assessment the appellant, who specifically alleged in his statement under section 342, Cr.P.C. that he had reprimanded the deceased and refrained him from visiting his house due to suspicion of his mother's illicit relationships with him, must have been provoked when he saw him in the living room again and so being, immature and a youth of just 20 years, attacked the deceased under provocation. The record available lacks any evidence that there was any previous enmity between the parties. There is also nothing on record to suggest that some hot altercation between the deceased and the appellant at some point of time prior to the occurrence had taken place to gather any grudge of the appellant against the deceased. So, there remains no possibility other than to infer that the appellant must have been enraged upon the deceased/complainant's indecent and immoral conduct at the time of occurrence and so must have lost control and in that heat of moment caused injuries at his person. We are constrained to find so on the basis of another feature of the case that the defence did not at all challenge the findings of the ASP (C.W.1) in this regard during his cross-examination. Therefore, the learned trial Court wrongly ignored his findings which are also supported from record and goes to the very root cause of the case, unfolding the real story. It may be mentioned here that the Courts cannot be made hostage to a singular inference against an accused if on record there is otherwise convincing evidence available to giving him benefit of providing a valid and logical basis to do substantial justice to the parties by awarding lesser punishment which really commensurate with the offence committed. In view of this, the extreme penalty of death awarded in this case in terms of section 302(b), P.P.C. was hardly called for the case being one of grave provocation. On the other, as mentioned earlier, it is a case falling under section 302(c), P.P.C.

14. In the light of the above, we are unable to uphold the sentence passed by the learned trial Court. As a result we set aside the death sentence awarded to the appellant and convert the same into 14 years R.I. The compensation granted by the leaned trial Court shall, however, remain intact. The appellant shall also be entitled to the benefit of section 382-B, Cr.P.C. Resultantly, death sentence is not confirmed and the murder reference is answered in the Negative and the criminal appeal accordingly stands disposed of.

H.B.T./A-86/L Order accordingl