2001 P Cr (PLP)

(4) An incised wound 3.5 c.m. x 1 c.m. x muscle deep on left side of neck lower part. (5) Fire-arm wound of entrance 1 c.m. x 1 c.m. on front of left chest upper part. 11 c.m. above left nipple. Left clavicle and first rib of left side on front side were seen fractured. Left lung and great blood vessels of heart were punctured. Right lung was also damaged. One bullet was removed from right lung. (6) Fire-arm wound of entrance 1 x 1 c.m. on left scapular area making exit wound 4.5 c.m. x 3 c.m. on outer wall of right chest upper part. Left scapular, 4th and 5th ribs on outer side of right chest were seen fractured. Both lungs were damaged. (7) Fire-arm lacerated wound 8 c.m. x 5 c.m. on inner part of right upper arm, upper part only muscles were damaged. (8) Fire-arm wound of entrance 8 c.m. x 8 c.m. on back of right fore-arm lower making an exit wound 2 x 2 c.m on front of right fore arm lower part. (9) Fire-arm wound of entrance 3 c.m. x 2 c.m. on back of right abdomen, making an exit wound 5 c.m. x 2.5 c.m. on back of right abdomen close to mid line, only muscles were damaged. (10) Abrasion 13 c.m. x-2 c.m. on outer part of left shoulder. (11) Abrasion 7 c.m. x 5 c.m. on inner part of right fore-arm lower part. (12) Abrasion 10 c.m. x 5 c.m. on right scapular area. (13) An incised wound 5 c.m. x .7 c.m. x muscle deep on back of neck lower part. (14) Contusion 6 c.m. x 2 c.m. on back of right head. (15) Contusion 4 c.m. x 4 c.m. on right side of neck lower part. Tattooing around all the entrance wound edges was present. Death was caused by account of the injuries which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. Probable time between injuries and death was immediate and that between death and post-mortem was within 5 to 10 hours. P.W.1 and P.W.2 Nausher Ali and Irshad Ahmad are formal police witnesses and they preformed necessary functions during investigation. Muhammad Rafique, Patwari P.W.3 prepared a scaled site plan in the scale of 40 Karams equal to an inch. Muhammad Ashraf, complainant P.W.4 is an eye-witness of the account. He made statement consistent with the statement made by him in F.I.R. Exh. P.B./2. He also deposed about the motive which had ready been narrated in the F.I.R. P.W.5 Muhammad Waryam is another eye-witness of the occurrence. He made statement in line with the statement made by Muhammad Ashraf, P.W.4. Both the witnesses supported in all the material points each other. P.W.6 Shahbaz Khan, Head-constable received a parcel containing incriminating articles and forwarded the same to the office of Chemical Examiner for examination. P.W.7 Ghulam Muhammad identified the dead body of Sakhi Muhammad at the time of his autopsy. P.W.9 Muhammad Arif is a witness of recovery of rifle P.6 at the instance of Allah Yar appellant and attested its recovery memo. Exh. P.J. He also attested recovery of motorcycle P.7 secured vide memo. Exh. P.K. at the instance of Allah Yar appellant. He also attested recovery of hatchet P.8 at the instance of Shahbaz Ahmad, appellant which was blood-stained and taken into possession vide memo. Exh. P.L. P.W.10 Muhammad Afzal, Inspector Police conducted the investigation in this case and various steps were taken by him during investigation and formalities completed by him as noted above. The learned D.D.A. after conclusion of the prosecution evidence tendered in evidence report of Chemical Examiner Exh. P.N., report of Serologist Exh. P.N./1, report of Chemical Examiner relating to hatchet as Exh. P.O. and report of Serologist regarding hatchet Exh. P.O./1, report Exh. P.P. of Fire-arm Expert from Forensic Science Laboratory, Lahore according to which, the empties C.1 to C.3 were found to have been fired from 7 m.m. rifle recovered from Allah Yar appellant.

5. The accused persons were examined by the learned trial Judge under section 342, Cr.P.C. They denied various allegations levelled against them and also denied the recovery of incriminating articles from them. They stated that deceased Sakhi Muhammad had enmity with large number of persons, therefore, during early hours, some unknown assailants committed his murder. Neither of the appellants opted to appear as his own witness as envisaged by section 340(2), Cr.P.C. However, they intended to produce evidence in their defence but it appears that the same was not done.

6. The learned counsel for the appellants has argued that although the eye-witnesses i.e. Waryam P.W.5 and Muhammad Ashraf P.W 4 are closely related to the deceased and the complainant who are brothers inter se, that both the witnesses are chance witnesses as they resided at a long distance from the place of occurrence; that presence of Muhammad Ashraf P.W. at the place of occurrence is not acceptable. Had he been present, he would have been the target of assault as was Sakhi Muhammad because motive against both of them was the same. It was lastly argued that there were material discrepancies in the eye-witness account and the medical evidence, therefore, the contradictions are sufficient enough to discard their testimony.

7. The learned counsel appearing for the complainant and for the petitioner in both the Criminal Revision Nos. 347 and 348 of 1993 has controverted and refuted the contentions made by the learned counsel for the appellants and submitted that the prosecution has proved the case beyond any reasonable doubt against the appellants as well as their co-accused. Specific allegations have been made against the acquitted co-accused- Nawaz and the statements of the P.Ws. are supported by the medical evidence qua Nawaz as well. Number of injuries received by the injured abundantly prove that Nawaz had been rightly named as an accused person. As such, there was no justification to order his acquittal.

8. As regards the quantum of sentence, it has been argued that all the three accused persons committed murder in a bloodless and cruel manner. Number of fire-arm as well as sharp-edged injuries were caused on the person of the deceased, therefore, obviously there was no mitigation in their favour and the learned trial Judge has erred in awarding lesser penalty.

9. The learned counsel for the State has supported the judgment passed by the learned trial Judge and has prayed that the same may be maintained and upheld.

10. It is true that both the eye-witnesses i.e. Waryam P.W.5 and Muhammad Ashrat P.W.4 are related to the deceased being his cousin and brother respectively but being. brother or the close relation of the deceased A does not in any manner render their evidence as untrustworthy. From the plea of the complainant that the witnesses are not only related but are also inimical towards the accused persons because according to the prosecution, their uncle had been murdered about 10/12 years prior to the occurrence, it is obvious that enmity or grudge in between the parties was prevailing. The prosecution does not deny that Umer Hayat was murdered who was close relation of the accused but that murder has been set forth as a motive for commission of the instant murder. Previous murder, of course, furnishes strong ground in favour of the prosecution but at the same time, it cannot be ignored that enmity in between the parties did persist. In case the witnesses are relations of the deceased and they have enmity against the accused persons and also they do not ordinary reside at the place of occurrence, then extra care and caution has to be taken while considering and appraising the evidence of such witnesses. The presence of the witnesses at the place of occurrence has not to be doubted for the reason that the occurrence took place at 10-45 a.m. whereas the matter was reported on the same day at 11-30 a.m. Had the witnesses not been present at the place of occurrence, the matter could not have been reported to the police so promptly. The entries made in the relevant column of the F.I.R. have to be accepted as correct unless the same are rebutted by adducing reliable evidence or by pointing out 8 strong circumstances suggesting that the matter in fact had not been reported promptly as the Roznamcha was stopped and the entries were ante-timed. Not such circumstance or evidence has been pointed out by the learned counsel for the defence to rebut or to doubt the time of reporting the incident to the police. The promptness is further supported by the fact that the post-mortem examination was conducted on the same day i.e. 26-3-1991 which is invariably conducted during day time. Considering that the matter was reported promptly, the presence of the eye-witnesses at the place of occurrence can hardly be doubted. As noted above, the statements of eye-witnesses who have enmity or grievance against the accused persons are to be probed and thrashed carefully. It is an accepted principle of law that strong corroboration must be sought for to rely upon the testimony of witness who is inimical to the accused. In the instant case, the corroboration is not lacking qua Allah Yar D appellant as the recovery of rifle from which the empties, recovered at the place of occurrence, had been fired, abundantly supports and corroborates the eye-witness account. According to the report of Fire-arm Expert the empties were received on 2-4-1991 whereas rifle was received on 15-4-1991 and it was found that all the three empties C.1 to C.3 had been fired from that rifle. Positive report of the Chemical Examiner is invariably treated and accepted as reliable piece of evidence and is sufficient to lend corroboration to an eye-witness, account. Similarly, Shahbaz appellant led to the recovery of hatchet which was found to be blood-stained by the Chemical Examiner and also by the Serologist. According to the medical evidence, number of injuries received by the deceased had been inflicted with sharp-edged weapon and the fire-arm. The medical evidence further supports the allegation that a bullet was recovered during post-mortem examination from the body of the deceased, which of course could be fired only from a rifle. The eye witness account supported by medical evidence corroborated by the evidence of recovery and the medical expert and fire-arm expert inspires confidence and leaves no room to doubt the credibility of prosecution witnesses. Therefore, the learned trial Judge has rightly convicted the appellants under section 302/34, P.P.C.

11. The learned trial Judge to determine the quantum of punishment, in para. 28 of the judgment, has elaborated reasons weighed with him for imposition of lesser penalty of imprisonment for life. He found the appellants to be young men and also that their close relation was already murdered and Allah Yar appellant was only the male issue of his parents and murder was 6 committed as Sakhi Muhammad accused in the murder of Umer Hayat had been acquitted. The murder as such was committed to vindicate the family honour.

12. In view of the observations made by the learned trial Judge and also considering the facts and circumstances as emerged from the record, award of imprisonment of life is a proper sentence. The appellants have also been imposed fine of Rs. 50,000 each in default to undergo R.I. two years each. The tine if realized has to be paid to the legal heirs of the deceased. The sentence of fine is quite just and proper.

13. The learned counsel for the complainant has argued half heartedly that the acquitted co-accused Nawaz Ali should not have been acquitted because specific allegations have been made against him in the F.I.R. and by the witnesses during their statements in Court. Further the statements were supported by the medical evidence. The plea has not much force because his case is distinguishable from that of other co-accused firstly that no recovery was effected from him, as such, necessary corroborative evidence was lacking qua him and also during course of investigation, he was found innocent. The learned trial Judge, therefore, was justified to extend benefit of doubt to him which in the circumstances of the case appears to be just and proper.

14. In view of aforementioned reasons and discussion, the appeal of Shahbaz Ahmad and Allah Yar fails and the same is, therefore, dismissed. Their conviction and sentence already recorded is maintained and upheld.

15. Both Criminal Revisions Nos. 347 and 348 of 1993 moved by Muhammad Ashraf complainant praying for enhancement of sentence of Shahbaz and Allahyar and retrial of Nawaz Ali acquitted co-accused being without any substance are also dismissed. N.H.Q./S-79/L Order accordingly.