1998 P Cr. L J 216 [Lahore] Before Dr. Khalid Ranjha, J LIAQAT ALI and another---Appellants Versus THE STATE---Respondent Criminal Appeal No. 102 of 1994, heard on 3rd July, 1997. (a) Criminal Procedure Code (V of 1898)--- ----Ss. 4(1)(1) & 156---Investigation---Collection of evidence---Phrase collection of evidence used in the definition of investigation cannot be confined to such evidence which favours only the prosecution. (b) Criminal Procedure Code (V of 1898)--- ----S. 156---Constitution of Pakistan (1973), Art.10----Investigation---Version of accused to be recorded---Investigating Officer is bound to record the version of the accused in every case if presented---Failure of police to record the accuseds version or the evidence sought to be adduced by him amounts to frustrating the Constitutional guarantee set out in Art. 10 of the Constitution. Moti Lals case AIR 1954 Raj. 241 and Qasims case 1995 MLD 749 ref. (c) Qanun-e-Shahadat (10 of 1984)--- ----Art. 27---Accuseds version immediately after the occurrence is relevant--Statement of accused immediately after the occurrence is a relevant fact within the meaning of Art.27 of Qanun-e-Shahadat, 1984 and can be brought on record as an admissible fact. (d) Penal Code (XLV of 1860)--- ----S. 302/34---Qanun-e-Shahadat (10 of 1984), Art.27---Criminal Procedure Code (V of 1898), S.375---First version of accused can be brought on record--First version of the accused of whatever nature can be brought on record through cross-examination by putting the same to the Investigating Officer. Ghulam Hussain v. The State PLD 1974 Kar. 91; Hasil v. Emperor AIR 1942 Lah. 37 and AIR 1935 PC 36 ref. (e) Penal Code (XLV of 1860)--- ----S. 302/34---Grave and sudden provocation---Plea of---Availability---Where a person comes on the scene after the incident of beating was over, plea of grave and sudden provocation cannot be made available to him as an act to wreak vengeance is different from an act under grave and sudden provocation. Sohavis case 1969 SCMR 375; Muhammad Idriss case 1974 SCMR 339 and Ali Zamans case 1988 SCMR 1474 ref. (f) Penal Code (XLV of 1860)--- ----S. 302/34---Appreciation of evidence---Killing of deceased had not taken place in a scenario of grave and sudden provocation---One accused had not challenged his participation in the occurrence, rather he had justified the same and no corroboration qua him was needed---Three crime empties had matched with the gun recovered from the other accused and his participation in the occurrence was vividly spelt out in the incriminating suggestions put by defence counsel as his first version---Ocular testimony in respect of the role assigned to both the accused for having fired and killed the deceased with common concert was also corroborated by medical evidence---Conviction and sentence of accused were upheld in circumstances. Hasil v. Emperor AIR 1942 Lah. 37; Muhammad Yaqoob v. The State PLD 1969 Lah. 548; Moti Lals case AIR 1954 Raj. 241; Qasims case 1995 MLD 749; Ghulam Hussain v. The State PLD 1974 Kar. 91; AIR 1935 PC 36; Sohavis case 1969 SCMR 375; Muhammad Idriss case 1974 SCMR 339; Ali Zamans case 1988 SCMR 1474 and Sher Ali Khan v. The State 1985 PCr.LJ 349 ref. (g) Penal Code (XLV of 1860)--- ----S. 302/34---Appreciation of evidence---Suggestion made by accused--Effect---Suggestion given on behalf of accused and accepted by the prosecution witness tantamounts to proof of the facts suggested. -[Evidence]. Sher Ali Khan v. The State 1985 PCr.LJ 349 ref. (h) Penal Code (XLV of 1860)--- ----S. 302/34---Sentence, enhancement of---Motive for the occurrence having been shrouded in mystery, sentence of imprisonment for life awarded to accused did not merit enhancement. ---[Motive---Sentence]. Sardar Latif Khan Khosa for Appellants. R.A. Awan for the Complainant. Ghulam Hussain Malik for the State. Dates of hearing: 1st and 3rd July, 1997. JUDGMENT Liaquat Ali and Muhammad Akram, appellants, were found guilty under section 302/34, P.P.C. by the learned Additional Sessions Judge, Sheikhupura vide judgment, dated 27-2-1994 and sentenced to imprisonment for life and to pay a fine of Rs.25,000 each or one years R.I. in default. They were also directed to pay Rs.20,000 each as compensation to the heirs of the deceased under section 544-A, Cr.P.C. Niamat Ali, co-accused, however, was acquitted by the same judgment Liaquat Ali and Niamat Ali are brothers inter se and Muhammad Akram is brother-in-law of Liaquat. . 2. While appellants seek to challenge their conviction and sentence, complainant is agitating against acquittal of Niamat Ali as well as awarding of lesser sentence to the appellants by the trial Court. Both the appeal and criminal revision are, therefore, being taken up together. 3. Muhammad Siddique lodged a report with Ferozewala Police Station on 19-5-1990 that his niece Mst. Hanifan Bibi was married to Nazir Hussain son of Haji Nawab and lived at Sheikhupura. His nephew Farman being a college-going student lived with her as well. Haji Nawab had given 28 acres of land to Niamat acquitted co-accused and had also his tractor to him on instalments. The said land was being cultivated by both the brothers namely Niamat Ali and Liaquat Ali. On the asking of Haji Nawab, Farman (P.W.5) had come down to his village, Mubarikpura to collect both lease money and tractor instalment from Niamat Ali at his house. At that time Liaquat and his brother-in-law, Muhammad Akram were also present there. Niamat Ali started abusing Farman as to who was he asked for the money he owed to Haji Nawab. Farman also abused back, whereat Niamat, Liaquat and Muhammad Akram started beating him. On hearing the alarm, Muhammad Shaft (uncle) and Qurban Ali brother of Farman Ali came to the house of Niamat Ali and got him released. Muhammad Shaft told them that it was strange that on one hand they were not paying lease money and the tractor instalment and the other hand they were out to fight on the demand being made and dared them that he would see to it how they withheld the payment of lease money as well as the tractor instalment. Having said this, Muhammad Shaft came to his house alongwith his nephews Farman Ali and Qurban Ali. At about 3-30 p.m., however, when the first informant, his brother Muhammad Shaft, Muhammad Inayat and Farman Ali were present in their Haveli putting fodder to the cattle, they heard the cries of Bachao Bachao raised by his brother Murad Ali. They came out to the Haveli and saw Niamat Ali, Liaquat and Muhammad Akram armed with .12 bore guns and they were beating up Murad .Ali with butts of their guns and were saying that they will not spare Muhammad Shaft and Muhammad Inayat and will teach them a lesson for asking for payment of lease money and the tractor instalment on behalf of Haji Nawab. Muhammad Shaft moved forward to rescue Murad Ali whereupon Niamat Ali fired with his gun hitting Muhammad Shaft on his chest towards the left side. The first informant, his brother Muhammad Shaft, nephew Qurban Ali and Inayat ran in order to enter the Haveli of Muhammad Shaft and when the latter was about to close the door, Liaquat fired with his gun hitting Muhammad Shaft on the Pat (explained latter that the word in the F.I.R. was Pait or not Pat. The pellets also hit on the door of the Haveli. Muhammad Akram fired with his gun hitting Muhammad Shafi on his chin towards the left side near the collar bone. Muhammad Shaft fell down in the Deorhi of the Haveli and expired. Niamat Ali, Liaquat Ali and Muhammad Akram fled away towards their houses while firing. Muhammad Siddique leaving the dead body of Muhammad Shaft in the care of Inayat left to inform the police. It was on the basis of this statement of Muhammad Siddique that F. I. R. Exh.P.C./1 was reduced into writing. 4. In the course of investigation, the Investigating Officer recovered five crime empties (Exh.P.3/1-5) from the spot and took the same into possession vide memo. Exh.P.E. on 19-5-1990. Liaquat Ali led to the recovery of his gun P.4 which was taken into possession vide memo. Exh.P.F. and Muhammad Akram led to the recovery of his gun P.5 and took into possession vide memo. Exh.P.C. also on 12-6-1990. According to the report of technical services Exh.P.N., three of the crime empties loaded with gun P.5 of Muhammad Akram and after the completion of the investigation, all the three accused/ appellants were sent up for trial. They were charged for murderous assault on Murad Ali and also for committing the murder of Muhammad Shaft. 5. The prosecution case before the trial Court rested mainly on the ocular account furnished by Muhammad Siddique (P.W.4), Farman Ali (P.W.5) and Qurban Ali (P.W.6). They supported the version of the F.I.R. and Farman Ali also explained that in the initial fight between him and Niamat Ali he had given Danda blow on the head of Niamat Ali, accused. As the doctors were not able for deposition, Syed Sajjad Hussain (P.W.7) proved both post-mortem report of Muhammad Shafi, deceased, and the medico-legal report of Murad Ali. According to the post-mortem report Exh.P.H., Muhammad Shafi had received the following injuries on his person:-- (1) A fire-arm wound of entry 1.5 c.m. x 1.5 c.m. at left side of chin making an exit wound 2 c.m. x 2 c.m. on right scapular region 7 c.m. from mid line. (2) A fire-arm wound of entry 1.5 c.m. x 1.5 c.m. on front of left chest mid clavicular region. (3) Two fire-arm wounds of entry each 1.5 c.m. x 1.5 c.m. in area 6 c.m. x 2 c.m. on front of left chest mid part. (4) A fire-arm wound of entry 1.5 c.m. x 1.5 c.m. on front of right side of abdomen upper part. Four pellets removed from under the skin of back of chest. Visceral injuries discussed elsewhere. (5) An abrasion with blackened base 1.5 c.m. x c.m. on front of right shoulder joint. According to the post-mortem examination/report injuries Nos.1 to 4 individually were sufficient to cause death in the ordinary course of nature. Whereas according to medico-legal report Exh.P.1 Murad Ali P.W. had suffered following injuries an his person:-- (1) Contusion 7 c.m. x 4 c.m. at left lumber region back and outer aspect. (2) Contusion at back of left fore-arm lower part 2 c.m. x 2 c.m. (3) Contusion at back of left wrist 2 c.m. x 1 c.m. (4) Contusion at right top of shoulder 4 c.m. x 3 c.m. (5) Contusion at right buttock 7 c.m. x 4 c.m. (6) Contusion at back of left thigh upper part 6 c.m. x 4 c.m. Injury No.3 was kept under observation for X-Ray while rest of the injuries were declared as simple. All the same were caused by blunt means. 6. The steps taken in the course of investigation were deposed by Ghulam Asghar (P.W.10) S.-I. and Ghulam Rasool, Inspector, C.I.A. (P.W.11). The first version of Liaquat Ali and Muhammad Akram, accused as put to P.W.11 and admitted by him was to the effect that the story about the recovery of lease money and tractor instalment was incorrect. In fact, the fight had initiated over a quarrel with the children and in that process Qurban, Farman, Muhammad Shafi etc. had caused injuries to Niamat Ali. As a result of which he had become unconscious. Thereafter, his son Zubair Mehmood ran to the house of his maternal-uncle Akram and paternal-uncle Liaquat Ali and informed them that Muhammad Shafi had killed his father. Hearing this, Muhammad Akram etc. came- there armed with guns and started firing and that Muhammad Shafi etc. also fired and that Muhammad Shafi expired after having been injured as a result of fire-shot. 7. At the close of the prosecution case, Niamat Ali P.W. denied participation in the occurrence in the following terms:-- As a matter of fact there was no dispute about the payment of lease money or about the payment of instalments of the tractor. The complainant or the deceased had no concern with that amount. The occurrence was the result of quarrel between the children of our party and the complainant. I was attacked by the deceased, Qurban and others when I was present inside the Haveli situated in the village and was given beating .by Sotas. I started bleeding and fell unconscious. I was empty-handed. I did not cause any injury to any one. I was medically examined. I also produced my medico-legal report before the police. The P. Ws. have falsely deposed against me on account of their enmity with us and on account of their relationship with the deceased. Liaquat Ali, on the other hand, taken the plea of self-defence to the exclusion of both Muhammad Akram and Niamat Ali. In his statement under section 342, Cr.P.C. the stance taken by him is reproduced as follows:-- As a matter of fact there was no dispute about the payment of the instalments of tractor. The complainant or the deceased had no concern with that amount. The occurrence was the result of quarrel between the children of our party and those of the complainant. My brother Niamat Ali was attacked by the deceased, Qurban and others when he was present inside the Haveli situated in the village and was given beating by Sotas Niamat Ali started bleeding and hue and cry was raised. We received an information that my brother Niamat Ali had died as a result of attack by the opposite-party. On receiving this information I armed with a gun came to rescue my brother. The complainant party also attacked me. Muhammad Shafi, deceased, resorted to firing. His other companions who were also armed with fire-arms started firing. I in exercise of right of my self-defence and in defence of my brother also fired. During the course of firing Muhammad Shafi, deceased, also received injuries, most probably at the hands of his own party-men. Had I not acted in exercise of my right of self-defence and in defence of my brother Niamat Ali, he and I might have bin killed at the hands of the complainant party. Actually the complainant was the aggressor and it is they who had initiated the aggression. We had also taken this plea before the Investigating Officer during the investigation which was found correct. The P.Ws. have falsely deposed against us on account of their enmity with us and relationship with the deceased. The statement was also adopted by Muhammad Akram, appellant. 8. Dr. Fayyaz Ahmed Butt, Medical Officer, appeared as D.W.1. He deposed about the injuries on the person of Niamat Ali and described them as ows:-- (1) A lacerated wound 2 c.m. x 3 c.m. skin deep on frontal region of head towards left side. (2) An abrasion 1 c.m. x 1 c.m. in the mid line on lower part of back of chest. (3) Swelling 6 c.m. x 4 c.m. on lower part of right side of back of chest. (4) Swelling 6 c.m. x 6 c.m. on right ankle joint (front side) extending up to dorsal part of right foot. According to him when he examined the patient he was not unconscious and had come walking on his own legs without any support. In ultimate analysis all the injuries were simple. 9. Learned counsel for the appellants argued that the prosecution had failed to prove the motive set up by it. Haji Nawab was the best person to depose in this behalf. He neither appeared before the police nor before the Court. Haji Nawab had son also. None of them has appeared either to explain the circumstances related to, land holding leasing out of the same to Niamat Ali etc. and sale of the tractor and collection of the lease and sale proceeds. He submitted that there being no medical report qua Farman Ali, the story that he was beaten up in the house of Niamat is also open to doubt. He relied heavily on the fact that the trial Court has also not relied on the motive part of the story of the prosecution and in this behalf referred to para. 33 of the judgment of the trial Court. He insisted that the prosecution having failed to prove the motive set up by it, would react on the entire prosecution case and render the Court to treat the testimony of witnesses with caution. According to the learned defence counsel, the trial Court has disbelieved the witnesses in respect of the murderous assault on Murad Ali as all the accused have been acquitted of the charge under section 307/34, P.P.C. Similarly, the prosecution evidence has not carried conviction with the trial Court either in the matter of participation of Niamat Ali, accused in the main occurrence. The trial Court while expressing doubts about participation of Niamat Ali has observed in para. 34 of the judgment as i~ follows:-- Since Niamat Ali accused had been injured prior to the main occurrence and since no recovery seems to have been effected from him and since injuries on the person of the deceased from their very nature do not appear to be of three shots and could be easily the result of two fire shots, therefore, it can be said that the prosecution has been unable to prove beyond reasonable doubt that Niamat Ali accused had actually tired at Shafi deceased or that he had the common intention with the co accused. He maintains that there is nothing exceptionable about the above finding of acquittal in respect of Niamat Ali and this renders the whole prosecution case doubtful and the defence version of acting in self-defence presented through Liaquats statement under section 342, Cr.P.C. merits to be accepted. Moreso, as the accused had raised their plea that the very outset of the investigation and their stance was consistent throughout. This fact would also lend credence to their plea before the trial Court. According to him, P.W.4 Muhammad Siddique was a person of criminal propensities. The story regarding the motive set up by him had been rightly disbelieved. He had made improvement: to render his testimony consistent with the medical evidence. He has duly conceded that the accused/appellants had set up their plea at the very outset before the police and the same had been reduced into writing by P.W.11 as their first version. First informant P. W.4 had not explained the injuries on the person of Niamat Ali and that the explanation for injuries of Niamat Ali furnished by P. Ws.5 and 6 was belated. He canvassed that the testimony of P.Ws. should not be accepted and there was no corroboration on the file worth the name to warrant acceptance of the testimony of the eye-witnesses. According to him, the defence version was more plausible and consistent with the injuries of Niamat Ali which had been suppressed by the prosecution and that it was Liaquat Ali alone who had acted in self-defence and caused injuries to Muhammad Shafi, deceased. In the alternative, he submitted that Liaquat Ali, accused, when informed that his brother Niamat Ali had been killed and on seeing his bleeding and unconscious, he was bound to have lost control of himself and his action of shooting Muhammad Shafi amounted to act under grave and sudden provocation punishable at the maximum by sentence up to seven years. 10. The learned counsel for the complainant argued that the finding of the learned trial Court regarding giving benefit of doubt to Niamat Ali was a laboured exercise. He was named in the F.I.R. He had a cause, and fired at the deceased in his chest and the part assigned to him was duly corroborated by the post-mortem report. The finding of his acquittal was not sustainable. The accused had launched murderous assault on the deceased to wreak vengeance. As per their own showing they are at least Liaquat had come after hearing about the injuries caused to Niamat and it was thereafter, that incident of firing had taken place resulting in death of Muhammad Shafi. In the circumstances the accused had committed wilful murder and were thus liable to be awarded normal sentence of death. It was further argued that the accused/appellants had not taken the plea of grave and sudden provocation nor the same was spelt out from the attending circumstances of the case. The plea taken was essentially of right of self-defence and that too to the extent of Liaquat Ali, appellant. Neither of the pleas taken up by the defence, although, mutually exclusive was relatable to the admitted circumstances of the case. 11. According to him, whereas Liaqat, accused, admits his presence, the participation of Akram is established beyond doubt from the matching of the three empties with the gun recovered from him and also from the suggestions put by the defence and admitted by P.W.11. The learned counsel further submitted that the accused cannot be allowed to make much capital out their first version as the same was belated and possibility of its being a counselled plea could not be ruled out and it was not totally consistent with their statements under section 342, Cr.P.C. He submitted that the version of an accused scald not be brought on the file through suggestions made in this behalf to the Investigating Officer. Particularly where the version of the accused is in a nature of plea of self-defence or of grave and sudden provocation if but the Investigating Officer would be rendered inadmissible ac it would amount to eliciting confessional statement of an accused recorded by an Investigating Officer. Such an assertion could only be proved by the accused like any other fact through the process of primary evidence, be it statement on oath of the accused himself under section 340(2), Cr.P.C. or through his defence witnesses. Statement of the Police Officer narrating as to what was said to him by an accused was inadmissible and the Court could not take the same into account. 12. As far as the admissibility of first version of the accused is concerned it is difficult to ascribe to the views of the learned counsel of the complainant. It has been a consistent view of this Court that the prosecution should itself bring out the same, rather than concealing it. In Hasil v. Emperor AIR 1942 Lah. 37, the defence wished to bring a copy of statement made by Hasil to the police on record during the Sessions trial to highlight that the occurrence was sudden and unpremeditated in order to earn him lesser penalty. The learned Sessions Judge refused this request, on the ground that this statement amounted to confession made to the Police Officer and was, therefore, inadmissible in evidence. The learned Sessions Judge while holding so relied on section 25 of the Evidence Act (Article 38 of Qanun-e-Shahadat) which lays down that no confession made to the Police Officer shall be proved as against a person accused of any offence. It was ruled in appeal that the above prohibition applied to confession sought to be proved as against the accused but could not apply to such statement on which the accused himself wished to rely in connection either with his conviction or his sentence. It was also held that in cases where two versions of the same incident were being put forward it was of a greatest importance for an accused to be able to show that his own explanation was put forward at the earliest possible opportunity. In this case at the appeal stage, Court permitted the counsel for the defence to go through the statement made by Hasil to the police. Hasil-appellant in this case, had stated before the police that he killed the deceased because he had seen him and his wife sitting and talking together. The Court held that it was the duty of the prosecution to bring out any evidence which may assist in arriving at a correct decision and such a statement of the accused should have been brought out in the Sessions trial as a relevant fact. On the basis of this statement, the Court converted death sentence into life treating the occurrence as sudden and unpremeditated. This view was reiterated in Muhammad Yaqoob v. The State PLD 1969 Lah. 548. This Court at the appellate stage summoned the Investigating Officer to verify the counter-version which the appellant had taken during the investigation. 13. The word investigation has been defined in section 4(1), Cr.P.C., to include all the proceedings under the Code for collection of evidence conducted by a Police Officer. Obviously, the phrase collection of evidence cannot be confined to such evidence which favours only the prosecution. Section 160, Cr.P.C. while spelling out the powers of Police Officer to require attendance of witnesses in the course of investigation does not make any distinction either between the witnesses in favour of the prosecution and the defence. Under section 161, Cr.P.C. a Police Officer conducting investigation can examine any person supposed to be acquainted with facts and circumstances of the case, orally or reduce the same into writing. Hereto no distinction is drawn between the statement in favour or against the accused. Similarly, sections 161 and 163, Cr.P.C. also refer to statements made to Police Officer in the course of investigation, in general terms, both for and against an accused. In short the law does not make any distinction in the matter of recording of statements made in favour of the accused or the prosecution in the course of investigation. A Police Officer as a public functionary is expected to act fairly, honestly and without bias to either party. The law disfavours his arbitrary exclusion of evidence produced before him in favour of the accused. 14. The interest of an accused is also adequately safeguarded by .the Constitution of Islamic Republic of Pakistan, 1973. Article 10 of the Constitution renders it fundamental right of an accused person to be informed as soon as may be after his arrest, the grounds for such arrest and to consult and be defended by a legal practitioner of his choice. The Courts have always jealously protected this right of the accused. In Moti Lals case AIR 1954 Raj. 241 it was observed that a person arrested has a right to consult legal practitioner of his choice from the moment of his arrest and also to have purposeful interview with him out of the hearing of the police or jail staff, though it may be within their presence. If the police were not to record the version of the accused or evidence sought to be adduced by him, it would amount to frustrating the Constitution guarantee set out in Article 10 of the Constitution. Duty is cast upon an Investigating Officer to record the version of the accused in every case if presented. He is not supposed to just become a tool in the hands of the complainant. As a public servant he is called upon to investigate the case strictly on merits with utmost neutrality. In a case where there is a counter-version of an incident and if the same is put before him at the earliest stage, it should be duly recorded as the Courts have always given it due weight in the light of the attending circumstances. A note of caution on the same vein was duly given in Qasims case 1995 MLD 749. 15. It may also be added that the statement of an accused person immediately after the occurrence is in away relevant fact within the meaning of Article 27 of Qanun-e-Shahadat and as such there can be no legal bar in bringing it on record as an admissible fact. In a Karachi case, Ghulam Hussain v. The State PED 1974 Kar. 91 the appellant while retracting from his judicial confession wanted to show that the same was word for word reproduction of the statement made before the police and he wanted to highlight this fact by cross-examining the Police Officer in order to discredit his judicial confession. The learned trial Court did not permit this, holding that the statements by the accused before the police was not admissible. Mr. Justice Dorab Patel following Hasils case observed that the appellants statement in the police diary was not in any way hit by section 162 of Cr.P.C. It was further observed that section 375, Cr.P.C. conferred extraordinary power on the Court to enable it to do justice and while exercising this power Court would not in any manner be tramelled by section 162, Cr.P.C. Similarly it was held that section 145 6f Evidence Act (Article 160 of Qanun-e- Shahadat), casts a duty of the Courts to lo justice and in discharging this obligation, the Courts power is not to be effected by restraints of section 162, Cr.P.C. Dorab Patcl, J., maintained -clying on Privy Council AIR 1935 P.C. 36 that version of the accused could tot be shut out from being received in evidence, could spell out the fact that his udicial confession was verbatim reproduction of the earlier confessional statement recorded by the police to establish that the latter confession was inconsequential. I, therefore, hold that the first version of the accused of whatever nature can be brought on record through cross-examination by putting the same to the Investigating Officer. It would certainly be, a safer course in dispensation of complete justice in an adversary system. 17. The learned trial Court has given cogent reasons for not accepting the motive set up by the prosecution and has rightly extended the benefit of doubt to Niamat Ali, accused. The reasons given are as follows:-- It is nobodys case that Niamat Ali accused was injured during the main occurrence. However, the motive incident as described by the prosecution does not inspire confidence. If Farman Ali P.W. had been given beating in the house of Niamat Ali, accused, he should have been injured but admittedly he did not get himself medically examined. Furthermore, if Farman Ali had been abused and had given beating by the accused, it was the complainant party which also could have the motive because it were they who had been actually insulted. The fact remains that the actual incident which had taken place before the main occurrence is shrouded in mystery and the prosecution has been unable to prove the motive in this case ..... Witnesses have stated that in order to save Murad Ali, P.W., Shafi deceased moved forward whereupon Niamat Ali, accused, fired with the gun .12 bore which hit Shaft deceased in his chest towards the left side and that Shafi, deceased, Muhammad Siddique, Qurban and Muhammad Inayat P.Ws. who were empty-handed ran towards the Haveli to save themselves. The question arises as to why Shaft deceased had not fallen down after being hit in the chest at the hands of Niamat Ali, accused and as to how did he manage to run to the door of the Haveli in order to save himself. The prosecution has not shown any trail of blood as well between the two points i.e: where Shafi deceased was hit in the chest and the door of the Haveli. Admittedly no weapon of offence was recovered from Niamat Ali, accused. Admittedly Niamat Ali accused had been injured prior to the main occurrence and it is nobodys case that he was injured during the main occurrence. According to D.W.1 Dr. Fayyaz Ahmed Butt who had medically examined Niamat Ali accused on 21-5-1990 at 4-30 p.m. and there were four injuries on the person of Niamat Ali accused. The learned defence counsel has pointed out that during the investigation the presence of Niamat Ali accused at the time of occurrence was not proved. However, as the opinion of police arrived at during the investigation is not relevant, therefore, I am not prepared to look to that aspect of the matter, although the investigation is a circumstance which can be considered by the Court. Since Niamat Ali accused had been injured prior to the main occurrence and since no recovery appears to have been effected from him and since the injuries on the person of the deceased from their very nature do not appear to be of three shots and could be easily the result of two fire shots, therefore, it can be said that the prosecution has been unable to prove beyond reasonable doubt that Niamat Ali accused had actually fired at Shaft deceased or that he had the common intention with the co-accused. The reasoning being well-founded, the revision petition filed by the complainant to the extent of seeking his retrial would not be warranted. 18. As far as the case of the appellants is concerned, the testimony of the eye-witnesses certainly merit careful scrutiny. Although there is no pre-existing rancour or animus between the parties, yet the prosecution witnesses do not seem very candid while narrating the back-drop of the incident relatable to and leading to the fight between Farman Ali (P.W.5) and Niamat Ali, acquitted accused. Likewise their testimony being doubtful in respect of the involvement of Niamat Ali accused would put the Curt on caution qua the other accused. On a synthesis of the evidence of the prosecution and the accepted suggestions of the defence, the following is the sequence of the events ---Niamat Ali, accused, got injured at the hands of the complainant party---thereafter, Murad Ali P.W. got injured allegedly by the accused party---and in sequel thereto the incident entailing death of Muhammad Shafi occurred, leaving fire marks on the plank of the door of his Deori. 19. The prosecution case in brief is that after Farman P.W. had beaten Niaz Ali. All the accused caught hold of Murad Ali son of the accused in front of the house of the deceased and started beating him and when the deceased came forward to rescue him they gunned him down while the witnesses took protection behind door of the Deori which bore the fire shot marks. 20. The defence version on the other hand is that after Niamat Ali had been injured by the complainant party, his son took message to the accused and Liaquat Ali alone armed with a gun came there and resorted to firing to save himself and also Niamat Ali as, according to him, at that time Muhammad Shafi deceased armed with fire-arms had also started firing. Niamat Ali having been injured in his own house and Liaquat have come after getting information of the same and resorting to firing at Shafi in front of his own house does not give him the right of self-defence or that of his brother Niamat who had been left in an injured condition by the complainant party. Resorting to firing resulting in death of Muhammad Shaft was, thus, an act of retaliatory aggression on the part of the accused. 21. Even when the defence version does not appeal to reason would not mean that prosecution story be accepted outright. The prosecution is not supposed to take advantage of snags in the plea of the accused. Similarly if a specific plea taken up by the accused fails, he does not become disentitled to the benefit of any other exception or doubt emerging out the circumstances of the case. However, in the attending circumstances of this case, it would be difficult to hold that the accused might have acted in under grave and sudden provocation on the pretext that on seeing a brother injured and bleeding, one was bound to loose self-control and react as sharply as the accused did in the case in hand. 22. A similar situation arose in Sohavis case reported in 1969 SCMR 15 at page 375. The Honourable Federal Court of Pakistan held that where a person came on the scene after incident of beating was over, the plea of grave and sudden provocation could not be made available to him as an act to wreak vengeance was different from an act under grave and sudden provocation. In the case of Muhammad Idris 1974 SCMR 339, it was held that as an accused himself had not seen the beating given to his uncle, he could not plead grave and sudden provocation. Similarly in Ali Zamans case 1988 SCMR 1474, beating had been caused to mother of the accused. This naturally infuriated and provoked him and he resorted to firing resulting in the death of deceased. Here also the Court had denied the benefit of grave and sudden provocation. Applying the dictum settled in the above-referred case, I hold that killing of Muhammad Shafi did not take place in a scenario of grave and sudden provocation. 23. Now I will take up the question whether both the appellants or one of them is liable for the murder of Muhammad Shafi. Liaquat Ali, appellant, maintains that he alone was responsible for the occurrence and Muhammad Akram had not participated in the firing: The prosecution, however, insists to the contrary. The P.Ws. not having been relied qua the participation of Niamat Ali, one would have look for corroboration of a nature which would satisfy a judicial mind beyond reasonable doubt about the participation of each of the accused: Regarding Liaquat Ali, of course, he does not challenge his participation, rather-he justifies it. Therefore, no corroboration is needed as fat as is concerned. However, as far as Muhammad Akram is concerned, there is strong evidence of recovery of three crime empties matching with the gun recovered from him. This evidence has not been seriously challenged by the I defence except for contending that since five empties were recovered and only three matched with the gun of Akram, the other two must be presumed to be those fired by the deceased. The fact that two empties did not match With the gun recovered from Liaquat be-speak for the fact that the recovery of empties and the guns were not foisted and there was no over-reaching by the prosecution in this behalf. 24. Another fact which can be treated as a corroborative circumstance is that the incriminating suggestions put forth by the defence and accepted by P.W.11. The same read as follows The occurrence had taken place on account of quarrel relating to the children and that at that time Niamat Ali was present in his Haveli and when the quarrel between Qurban, Farman, Muhammad Maalak and Muhammad Shafi etc. had taken place and when Niamat Ali was injured at the hands of Muhammad Shaft etc, and became unconscious, his son Zubair Mehmood ran to the house of his maternal-uncle Akram and paternal-uncle Liaquat Ali and informed them that Muhammad Shaf etc. had killed his father whereupon Muhammad Akram etc. came there armed with guns .12 bore and started firing and that Muhammad Shaft etc. also fired and that Muhammad Shaft expired after having been injured as a result of a fire-shot. 25. The participation of Muhammad Akram is vividly spelt out in the above suggestions put by the learned counsel of Muhammad Akram as first version of the accused. Where the suggestion given on behalf of the accused is accepted by the witnesses the same tantamounts to proof of the facts suggested. It was so laid down by this Court in Sher Ali Khan v. The State 1985 PCr.LJ 349 Liaquat Ali does not deny his participation and the aforesaid two factors are adequate circumstances to corroborate the testimony of the eye-witnesses in respect of the part assigned to both the appellants for having fired and killed Muhammad Shaft with common concert. Needless to add that medical evidence indicating more than one shot on the body of the deceased also lends support to the participation of both the accused/appellants. However, as the motive of the occurrence has been held to be shrouded in mystery, their sentence does not merit enhancement. Under these circumstances, it is held that the conviction and sentence of the appellants is ordered to be maintained. Both the criminal appeal as well as I the criminal revision fail and are accordingly dismissed. The appellants are on bail. They be taken into custody to serve out the remaining portion of sentence. N.H.Q./L-21/L Appeal dismissed.
Posted on: Sun, 14 Dec 2014 14:47:07 +0000
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