IMRAN Versus State
ASSADULLAH KHAN CHAMKANI, J.--- Impugned herein is the judgment dated 28.11.2011, passed by learned Additional Sessions Judge/Izafi Zilla Qazi, Bahrain, whereby Imran son of Akhonzada was convicted and sentenced under section 302(b), P.P.C. to death whereas Javaid son of Gul Zada was convicted and sentenced under section 302(b), P.P.C. to life imprisonment. Both the appellants were also fined to Rs. One lac (1,00,000/-) as compensation under section 544-A, Cr.P.C. or in default of payment of fine to suffer six months S.I.
2. Imran and Javaid have filed Criminal Appeal No. 125 of 2011 against their conviction and the learned trial Court has sent Murder Reference No. 02 of 2011 for confirmation of the death sentence awarded to the accused-appellant Imran.
3. We intend to dispose of the criminal appeal No. 125 of 2011 and Murder Reference No. 02 of 2011, through this judgment.
4. Shams ur Rehman (PW-4) lodged a report in a Civil Hospital, Madyan, that on 11.3.2011, there was scuffle between his children and the children of Akhonzada and on hearing the clamor, he along with his brother Habib ur Rehman went for their separation and on reaching the place of occurrence at 16.30 hours, Imran son of Akhonzada and Javaid son of Gul Zada also arrived there. Javaid caught hold of his brother Habib ur Rehman while Imran gave stab "chhuri" blow to him as a result of which he received severe injury beneath his right armpit. On the way to hospital, the injured succumbed to his injury. Motive for the offence was stated to be altercation over the scuffle of children while the occurrence was stated to be witnessed by his brother Muhammad Rasool and his wife Laiq Begum besides him. Report was recorded by SHO Police Station, Madyan, in shape of Murasilla Ex.PA and on the basis of which case vide FIR No. 39 under section 302/34, P.P.C. was registered at Police Station, Madyan, on 11.3.2011.
5. Investigation was entrusted to Muhammad Akram Khan ASI (PW-8), who proceeded to spot and prepared the site plan Ex.PB at the instance of complainant. During spot inspection he picked up blood stained earth from the place of deceased and took the same vide memo. Ex.PW-1/1 and recorded the statements of the PWs under section 161, Cr.P.C. He conducted the house search of the accused. During house search Sadar, the grandfather of accused Imran, produced one "Churri" duly blood stained as weapon of offence to him, who took the same, vide memo. Ex.PW-3/1. On 12.3.2011 he took into possession blood stained garments of the deceased, produced by the complainant, vide memo Ex.PW-2/1. He arrested accused Imran and issued his card of arrest and also produced him before Magistrate for recording his statement under sections 164/364, Cr.P.C. but he refused. Since accused Javaid was avoiding his lawful arrest, therefore, he applied for issuance of warrant under section 204, Cr.P.C. and notices under section 87, Cr.P.C. against him, vide his applications marked as Ex.PW 8/4 and Ex.PW 8/6 respectively, which were, accordingly, issued. Later on, accused Javaid was arrested and issued his card of arrest. He sent the blood stained earth, "churi" and garments of the deceased to FSL and report thereof is Ex.PW 8/12. After completion of the investigation complete challan against the accused was submitted.
6. Learned trial Court after compliance of the legal formalities, framed the formal charge to which both the accused did not plead guilty and claimed trial.
7. Prosecution examined nine witnesses in order to prove its case, thereafter, the statements of the accused under section 342, Cr.P.C. were recorded by the trial Court. Accused pleaded their innocence, however, did not produce defence evidence nor appeared as their own witnesses in terms of section 340(2), Cr.P.C. Learned trial Court, after hearing the arguments of the parties, convicted and sentenced accused Imran and Javaid, as stated above.
8. Learned counsel for the appellants argued that the appellants were charged in a delayed FIR after due consultations and deliberations. He further contended that the eye-witnesses being closely related to the deceased and also inimical towards the appellants, the conviction of the appellants could not be maintained on their evidence. He further submitted that post-mortem examination of the deceased was not conducted, as such, his cause of death could not be proved with further submission that independent corroboration of the eye- witnesses account is not forthcoming. Moreover, the medical evidence is also in conflict with the ocular evidence and that the prosecution also did not prove the motive. Learned counsel further argued that the role of Javiad accused is only of catching hold of the deceased and at the time of occurrence he was empty handed learned counsel argued that there is no evidence of pre planning, therefore, they deserve acquittal.
9. On the other hand learned AAG appearing on behalf of the State and counsel for complainant, argued that the appellants are charged directly, in the FIR and that the ocular account is corroborated by the medical evidence, recoveries from the spot, weapon of offence, motive and positive FSL result. They further argued that the appellants are charged by name in the FIR, being related to the complainant party, were known to the eye-witnesses and there is no question of mis-identification or a false charge. They contended that the appellant Javaid is vicariously liable for the commission of offence and both the appellants were rightly convicted and sentenced.
10. We have considered the arguments raised by learned counsel for the parties and have gone through the entire record with their valuable assistance.
11. First we would like to take the case of Javaid appellant, who is the first cousin of main accused-appellant Imran. Admittedly, at the time of occurrence he was shown empty handed and given only the role of catching hold of the deceased. The role attributed to him is not believable because there was single injury on the person of deceased and for inflicting only one injury there was no need of catching hold of the deceased. So, the possibility of false implication of the appellant Javaid could not be ruled out. Besides the above, there is no evidence of pre-planning, pre-meditation, consultation and instigation against him. Inference of common intention would only be reached if it is deducible from the facts and circumstances of the case. It is necessary to have a direct proof of pre-planning, pre-meditation, consultation and instigation, which must lead to the inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of any other explanation. Common intention implies acting in pre-concert in pursuance of pre-arranged plan, which is to be proved either from conduct or from circumstances or from incriminating facts. In the present case single injury was found on the body of the deceased, which has been attributed to the main accused-appellant Imran, therefore, in the circumstances, we extend the benefit of doubt in his favour and he is deserved for acquittal.
12. As far as case of accused-appellant Imran is concerned, the perusal of record would show that the report of the occurrence was lodged by Shams ur Rehman complainant (P.W.4) within about two hours of the occurrence. House of the complainant is situated in a far-flung area at a distance of 12/13 kilometers from the police station. Delay in the FIR, in such circumstances, was of no significance and that too, when the witnesses were not cross-examined on the point of such delay nor any suggestion was put to them regarding deliberation and consultations. Statements of Shams ur Rehman complainant (P.W.4), Muhammad Rasool Khan (PW-5) are consistent on material points. The presence of PW-4 and PW-5 is established on the scene of occurrence. They deposed the ocular testimony and supported the prosecution version. Despite that they were subjected to lengthy cross-examinations, nothing material could be brought out nor any dent could be created in their evidence. They stood firm and their veracity could not be shaken. The name of the eye-witness and role of accused-appellant Imran for causing injury with "chhuri" on the person of the deceased has been mentioned therein, which get support from the medical evidence furnished by Dr. Rehmat Ilahi PW-6.
13. We have perused the medical report, which shows that there was 5 c.m incised deep muscle cut wound (R) Axillary region. No rigor mortis in upper and lower limbs and neck. No sign of strangulation. No skin lividity and no putrefaction. The kind of weapon was recorded as sharpe. Cause of death, according to opinion of Medical Officer, was occurred due to shock and haemorrage caused by incised wound. This single injury was attributed to accused-appellant Imran, which fully support the prosecution case. The medical evidence is also in corroboration with the ocular account.
14. The appellants as well as the P.Ws and the deceased belonged to one family and were known to each other. The occurrence took place in day light. There was an altercation between the parties over the quarrel of children, therefore, there is no question of mis-identification.
15. Shams ur Rehman complainant (PW-4) and Muhammad Rasool Khan (PW-5) along with the deceased came to the spot after hearing hue and cries of the children, so, their presence on the spot is natural. The contention of learned counsel for the appellants that the eye-witnesses are closely related to the deceased, therefore, there is possibility of false implication of the accused with consultation and deliberation, is not borne out from the record because, no doubt, both the eye-witnesses are related, but mere relationship is no basis to discard their evidence because the apex Court in number of cases has held that statement of a witness cannot be disbelieved solely on the plea that he is related to the deceased. An interested witness is a person who has a motive to falsely implicate a person. Considering the testimony of these two eye-witnesses on the touchstone of the aforesaid criteria, we do not find their testimony is tainted or they had any motive to falsely implicate the appellant Imran nor any enmity worth the name has been brought on record to show that they were implicating the appellant Imran in this case falsely. In this context reference may be made to Sharafat Ali v. The State , 1999 SCMR 329.
In the present case, there was no previous enmity between the parties and due to relationship between them false implication of the accused was beyond consideration. There is no possibility to believe that the close relatives of the deceased would let the actual culprit scot-free and substitute an innocent person for the commission of an offence involving capital punishment. Both the eye-witnesses charged the appellant Imran in their statements recorded before the trial Court. Their statements went unchallenged. Both the eye-witnesses remained consistent in their depositions.
16. Injury sheet and inquest report of the deceased was prepared by Javaid Afsar Khan, ASI, PW-9. According to injury sheet Ex.PW 9/1, one wound on right armpit was found on the person of deceased, which proved that deceased was done to death by giving stab blow to him, which has been attributed to accused-appellant Imran. The Investigating Officer PW-8 also secured blood stained earth from the crime spot. Though, internal examination of the dead body was not conducted but when the cause of death is apparent then non-conduct of post mortem is not fatal to the prosecution case. In Malakand and Kohistan Area, post mortem is not conducted on the request of the legal heirs of the deceased. In such a situation, non-conduct of post mortem is of no consequence.
17. It is evident from the record that initial occurrence of scuffle between the children took place followed by the present occurrence. Any variation in the site plan and minor discrepancies in the statements of eye-witnesses is of no consequence because in a dramatic situation and State of panic no one can remember the minute details nor photographic view can be given. Even otherwise, site plan is not a substantive piece of evidence and the same cannot be used to contradict the witnesses nor they can be confronted with the same in order to discredit the testimony.
18. Learned counsel for the appellant vehemently contended that the occurrence had taken place on the upper portion of the house of accused-appellant near the thoroughfare in which the accused-appellant Imran and his father Akhonzada received injury and in this respect report has also been lodged by one Imran Khan against deceased Habib ur Rehman, recorded in Naqal Mad No. 40 dated 11.3.201, therefore, the accused are fully entitled to the benefit of provisions of self defence entitling him to acquittal. In a case of two versions of the occurrence both the versions have to be kept in juxtaposition and the one favourable to the defence is to be preferred if the same gets some support from the admitted facts and circumstances of the case and appeals to common sense. In the present case admittedly, the occurrence had taken place near the house of accused but as it is established from the record that the complainant party had come to the place of occurrence, where there was a fight between the children of the parties and the complainant party intended to separate them. The accused Imran in his statement under section 342, Cr.P.C. had stated that on the day of occurrence Habib ur Rehman deceased duly armed with " Chhuri " came on the pretext of scuffle of children attacked at him and his father and during the scuffle the deceased sustained injury at his own hands which proved fatal. It does not appeal to common sense that by his own hands a person would sustain chhuri blow of the gravity which may prove fatal and cause death. The plea of accused is not of self-defence. Neither the accused has produced any evidence in this regard nor recorded his statement on oath within the meaning of section 340(2), Cr.P.C., therefore, it is, thus, clear that the plea of defence is hardly available to the appellant.
19. The prosecution fully established the guilt of convict-appellant Imran, who is singly charged for giving a stab blow to deceased. There is no possible reason to believe that the complainant party would let-free the real culprits and involve the present appellant Imran because substitution in place of the real culprits, in any case, is very rare, which is also not borne out form the record. In the facts and circumstances of the case, learned trial Court has rightly convicted the appellant Imran.
20. As far the quantum of sentence to the accused-appellant is concerned, we have noted that Imran, the accused-appellant, has been attributed the only blow to the deceased and the same proved fatal. He did not repeat the blow to the deceased nor did he give any blow to the P.Ws. If he had intended to cause greater harm to the deceased there was nothing to prevent him and he could have repeated the blows. It is evident that there was a quarrel between the children of parties and, as such, the occurrence took place on the spur of moment. The appellant caused "chhuri" blow to the deceased which unfortunately proved fatal. The appellant has also received injuries in the incident. The circumstances shows that there was no premeditation on the part of the appellant, therefore, it was not a case of capital punishment. Death sentence on the charge of murder which undoubtedly is a normal penalty for the offence of murder but in appropriate cases where some extenuating circumstances are available, the Courts have the discretion to award lesser punishment of imprisonment for life provided under section 302, P.P.C. In the present case, there were circumstances forthcoming from the record which could be taken as extenuating/mitigating circumstances for the purpose of awarding lesser sentence but the learned Court below has not duly attended to them when considering the quantum of sentence to be imposed on the appellant.
By now it is well recognized principle of law that the accused is entitled for the benefit of any doubt as an extenuating circumstance, while deciding question of sentence. The Hon'ble Supreme Court in the case title Mir Muhammad alias Miro v. The State (2009 SCMR 1188) observed as under:-
"It will not be out of place to emphasize that in Criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."
In this backdrop of the situation, we hold that it is not a case of capital punishment. We, therefore, while maintaining the conviction under section 302(b), P.P.C. converted the sentence of Imran appellant from punishment of death to imprisonment for life with compensation under section 544-A, Cr.P.C., amounting to Rs. Two lac (2,00,000/-) payable to the legal heirs of the deceased. Amount of compensation is directed to be recovered as arrears of land revenue or in default of payment to suffer six months SI. However, benefit of Section 382-B Cr.P.C. is extended to the accused-appellant Imran. The conviction and sentence awarded to appellant Javaid through impugned judgment is set aside and acquit him of the charge levelled against him. He shall be released forthwith if not required in any other case.
With the above modification, this appeal bearing No. 125/2011 is partly allowed and the murder reference bearing No. 02 of 2011 is answered in NEGATIVE.
Similarly, criminal revision filed by Shamsur Rehman complainant for enhancement of sentence is also dismissed.
These are the reasons of our short order announced on 24.10.2012.
HBT/126/P Order accordingly.