2008 PLP 1012 (YLR)

ABDUL SHAKOOR PARACHA, J.

Shaukat Ali son of Naeem Khan and Abdal Dogar son of Fateh Muhammad through two separate Crl. Appeals Nos.1114 and 1044 of 1998 impugn the judgment, dated 2-11-1998 of District and Sessions Judge, Samundari, District Faisalabad, through which both were found guilty for committing Qatl-e-Amd of Muhammad Yaqoob deceased in furtherance of their common intention. They were convicted under sections 302-B and 34, P.P.C. Shaukat Ali appellant was sentenced to death, and Abdal Dogar was sentenced- to imprisonment for life. Both the appellants were ordered to pay compensation of Rs.20,000 each to legal heirs of deceased Muhammad Yaqoob as required under section 544-A Cr.P.C. In case of non-payment of fine, it was ordered that they shall further undergo six months' S.I. Murder Reference is also, before us. Criminal Appeal as well as Murder Reference are being disposed of through this consolidated judgment.

2. Muhammad Chirag, P.W.3 lodged a complaint Exh.P.B. on 2-2-1993 before Maqsood Ahmad, S-I. On the basis of which F.I.R. No.49, dated 2-2-1993 under section 302/34, P.P.C. was registered for murder of Muhammad Yaqoob, brother of (he complainant. The appellants along with one Jan Muhammad (P.O.) were made responsible for the murder of said Muhammad Yaqoob. Appellant Abdal Dogar and co-accused Jan Muhammad (P.O.) were declared innocent during the investigation by the police as well as by the Range Crime, Faisalabad Range Faisalabad. Being not satisfied with the investigation of the case, complainant filed a private complaint in the Court of Ilaqa Magistrate who sent the same to the learned Sessions Judge, Faisalabad, who after recording preliminary evidence found prima facie case against the appellant and co-accused Jan Muhammad summoned them to face the trial.

3. After registration of the case vide F.I.R. Exh.P.B. Maqsood Ahmad, P.W.9, on the same day, visited Tehsil Headquarter Hospital Samundri, where Muhammad Yaqoob injured had expired before his arrival, so he prepared injury statement and inquest report, handed over the dead body to Muhammad Mansha constable for post-mortem. The statements of the witnesses under section 161, Cr.P.C. were recorded. Rough site plan Exh.P.J. of the place of occurrence was prepared. He secured the blood-stained earth from the place of occurrence vide recovery memo. Exh.P.F. He also took into possession cycle of deceased Muhammad Yaqoob vide recovery memo. Exh.P.D. The last worn clothes of deceased and Phial were produced before him which he secured through recovery memo. Exh.P.A. He also took into possession two empties vide recovery memo. Exh.P.E. and site plan prepared by Kamal Din, Ellaqa Patwari vide Exhs.P.K. and P.K./1 Investigation was transferred from him to Mukhtar Ali Inspector/S.H.O. Samundri for some time but again the investigation was entrusted to him. He arrested Shaukat Ali, Nadeem Bari, Tariq, Nisar Ahmad and Muhammad Akram. The recovery of carbine on the pointation of Shaukat Ali was made which was secured through recovery memo. Exh.P.G. and a separate case under sections 13120/65 of the Arms Ordinance was registered against the accused Shaukat Ali. Site plan Exh.P.L. of the place of occurrence vas prepared and he also recorded the statements of P.Ws. under section 161, Cr.P.C.

4. Complainant stated that he is agriculturist of Chak No.390/G.B., Tehsil Samundri. On 2-2-1993 at about 5-30 p.m. he along with P.Ws. namely Abdul Sattar and Muhammad Siddique were going towards their home on a Tonga when Muhammad Yaqoob deceased was going ahead on a bicycle after closing his shop; from Samundri and when Muhammad Yaqoob reached near the land of. Ahmad Rajput, accused Shaukat Ali armed with carbine, accused Jan Muhammad armed with .12 bore gun and accused Abdal Dogar armed with .12 bore gun emerged from sugar-cane crop and, in the view of the complainant and P.Ws., all the three accused caught hold of Muhammad Yaqoob deceased and started dragging him. Complainant and P.Ws. Abdul Sattar and Muhammad Siddique made effort for rescue of Muhammad Yaqoob deceased but accused Shaukat Ali made a fire hitting on left ear of Muhammad Yaqoob deceased, then accused Jan Muhammad (P.O.) made a fire with his gun hitting right arm of Muhammad Yaqoob deceased and in the meanwhile, accused Abdal Dogar had been raising "Lalkara" and had been given threats that if any one will come nearby, he will not be spared and he also made a fire with his gun which hit right arm of Muhammad Yaqoob deceased. Thereafter all the three accused took Muhammad Yaqoob by dragging him to Killa No.25 of square No.9 owned by Mehndi Khan Rajput and due to hue and cry of complainant and his companions and noise of firing, many villagers reached at the spot, over which, all the accused by seriously injuring Muhammad Yaqoob fled away towards Sem drain and Muhammad Yaqoob was escorted to Civil Hospital, Samundri in injured condition, but he succumbed to the injuries.

5. Motive of the occurrence as narrated by the complainant was that his brother Muhammad Yaqoob had entered into bargain with accused Abdal Dogar who had refused to give the land and a quarrel had taken place in between Muhammad Yaqoob deceased and Abdal Dogar one day prior to the occurrence for which, accused Abdal Dogar carried grudge so due to this grievance, all the three accused had committed Qatl-e-Amd of Muhammad Yaqoob deceased in furtherance of their common intention.

6. Dr. Hafeez Ullah, P,W.B conducted the post-mortem of the dead body of Muhammad Yaqoob deceased on 3-2-1993 and found following injuries on his person:-- Injury No. 1 A lacerated wound of fire-arm 9 c.m. x 4 c.m. deep into brain cavity at left ear. Burning marks were present. Wound of oulet. Injury No.2 A lacerated wound of fire-arm 3 c.m, x 2 c.m. with the brain cavity deep at face on right side. Injury No.3 Multiple fire-arm wounds about 22 c.m, x 10 c.m. at right elbow. Each wound was 1-1/2 c.m. x 1/2 depth was variable. Burning marks were present. Injury No. 4 A lacerated wound 2 c.m. x 2 c.m. on right shoulder. He opined that injuries Nos.1, 2 and 3 were grievous and sufficient to cause death in the ordinary course of nature, while injury No.4 was simple and all the injuries were ante-mortem and were inflicted with fire-arm weapon. He further stated that injury No.4 was caused with blunt weapon and cause of death in this case was intracranial haemorrhage and shock. Further that probable time between injury and death was about 2-3 hours, while between death and post-mortem was about 14-16 hours. Lastly, he confirmed that Exh.P.H. was the correct Photostat copy of post-mortem examination report while Exh.P.H./1 was the photo copy of cut lines of the body showing the seat of injuries under his signatures and seal.

7. Prosecution relied on the ocular account furnished by Muhammad Chirag PW.3 and Abdul Sattar P.W.4. Muhammad Siddique P.W.5 was examined but subsequently he refused to appear before the court. Medical evidence was furnished by Dr. Hafeez Ullah P.W.B. Recovery of carbine from Shaukat Ali appellant was secured through recovery memo. Exh.P.H. After completion of the prosecution evidence, statement of the appellant under section 342, Cr.P.C. was recorded. In answer to question No.9 he stated that, "P.Ws. had deposed against me due to party faction because distance between my residence and place of occurrence is about 30 miles", He further stated that, "he did not know anything about the occurrence and I had falsely been implicated in the case due to friendship with co-accused Abdal Dogar''. He neither opted to lead defence evidence nor appeared as his own witness under section 340(2), Cr.P.C. Abdal Dogar appellant in his statement under section 342, Cr.P.C. stated that, "P.Ws. had deposed against me due to party faction and previous enmity". He also did not opt to appear as his own witness under section 340(2), Cr.P.C. but opted to produce defence evidence. Ch. Mukhtar D.S.P., C.I.A. appeared as D.W.I and stated that, "during the investigation he found Abdal Dogar and . Muhammad Ramzan alias Jan Muhammad as innocent and also recommended for discharge of both the accused who were ultimately discharged from the Court of Assistant Commissioner, Samundri, on 31-3-1993". Even after the investigation of Range Crime, Faisalabad Range Faisalabad they were declared as innocent. After hearing the parties, learned Sessions Judge, Faisalabad convicted the appellants, as aforesaid.

8. Learned counsel for appellants contends that although two fires were attributed to accused Abdal Dogar and Jan Muhammad (P.O.) but same were not shown in the post-mortem report of the deceased wherein the deceased had sustained injury on the right elbow and there was no injury over the right arm. Abdal Dogar appellant was declared innocent during the investigation and the complainant filed private complaint after expiry of 3-1/2 months. He further contends that the motive attributed to Abdal Dogar regarding the sale of land has not been proved on record. Similarly no evidence of quarrel which allegedly had taken place in between Muhammad Yaqoob deceased and accused Abdal Dogar one day prior to the occurrence was proved.

9. On the other hand, learned State Counsel contends that in the promptly lodged F.I.R. on behalf of the complainant, the accused/appellants were nominated with specific role of causing fire-arm injuries to deceased Muhammad Yaqoob. The police did not investigate the case fairly and honestly, therefore, complainant was compelled to file a private complaint. Ocular evidence is corroborated with the medical evidence and the recovery of carbine from Shaukat Ali appellant.

10. We have heard the arguments of the learned counsel for parties and perused the record with their assistance. Muhammad Chirag, complainant, P.W.3' is real brother of Muhammad Yaqoob where son of Muhammad Yaqoob namely Sajid was married with the sister of Abdul Sattar P.W.4. In this view of the matter, the statement of the complainant, Muhammad Chirag, P.W.3 and Abdul Sattar P.W.4 could have not been accepted being interested witnesses without corroboration. The appellant Shaukat Ali has been attributed fire-arm injuries with carbine which hit Muhammad Yaqoob on the left ear. In the post-mortem and the statement of P. W.8 Dr. Hafeez Ullah injury. No. 1 is "one of inlet. Lacerated wound of 9 c.m. x 4 c.m. deep into brain cavity at left ear. Burning marks were present". The statements of the above said witnesses also corroborated with the recovery of carbine p from Shaukat Ali appellant, through recovery memo. Exh.P.G. signed by Nasim Akhtar, P. W.7. He was found guilty by the investigation agency in the case. Therefore, prosecution was able to prove the case against Shaukat Ali, appellant. But since the motive in this case was that Muhammad Yaqoob deceased had entered into agreement to sell of land with Abdal Dogar co-accused who thereafter resiled from the agreement and two days prior to the occurrence a quarrel took pace between Muhammad Yaqoob deceased and Abdal Dogar co-accused in the Bazaar which has also not been proved. We are constrained to observe that though the prosecution was able to prove the case against Shaukat Ali appellant but capital sentence awarded to him is not called for. Maintaining the conviction, we alter the sentence of Shaukat Ali, appellant, from death to life imprisonment.

11. So far as the case of appellant, Abdal Dogar is concerned, there is no corroboration of the ocular account consisting of Chirag complainant, Abdul Sattar, P.W.4 who were brothers and relatives of the deceased Muhammad Yaqoob and are, therefore, interested witnesses. It is well settled principle of law that statements of interested witnesses cannot be accepted without any corroboration. See case Piran Ditta and 3 others v. The State PLD 1976 SC

300. We may observe that there is no agreement to sell between Muhammad Yaqoob and the appellant Abdal Dogar regarding sale of any land on the file. The alleged sale with appellant was not struck in presence of any witnesses. No report about the alleged quarrel with the appellant and Muhammad Yaqoob in the Bazar was lodged with the police. In `this view of the matter, prosecution was not able to. prove the motive in this case.

12. The case of the prosecution was that Jan Muhammad accused fired two shots which, hit deceased Muhammad Yaqoob on his right arm. Thereafter, the appellant Abdal Dogar also fired which hit Muhammad Yaqoob on his right arm. The post-mortem report does not show any injury on the right arm of the deceased Muhammad Yaqoob. Injury No.3 is attributed to two persons namely Abdal Dogar and Jan Muhammad. Even for the arguments sake, if it is accepted that injury on the elbow was sustained by deceased in the alleged occurrence, then it is not clear that out of two nominated accused Abdal Dogar and Jan Muhammad co-accused who hit the deceased on elbow. Therefore, medical evidence did not corroborate with the ocular account. No recovery was effected from the appellant. Ch. Mukhtar D.S.P., C.I.A. appeared as D.W.1. He found appellant Abdal Dogar and Ramzan alias Jan Muhammad innocent and recommended for discharge of both of the accused who ultimately were discharged by the Court of Assistant Commissioner, Samundri, on 31-3-1997. They were also declared innocent by Range Crime, Faisalabad Range Faisalabad. The police during the investigation had also arrested other accused namely Nadeem Bari, Tariq, Nisar Ahmad and Muhammad Akram in the complaint case. Law is that grain has to be sifted from chaff as held in case reported as Sardar Khan and 3 others v. The State 1998 SCMR 1823. In this view of the matter, we grant benefit of doubt to Abdal Dogar, appellant by accepting his appeal. The judgment, conviction and sentence recorded by the Sessions Judge; Faisalabad, against the appellant, Abdal Dogar is set aside. He is acquitted from the charge. He shall be released forthwith if not required in any other case.

13. With the above modification in the sentence awarded to Shaukat Ali appellant from death sentence to life imprisonment his appeal is dismissed. Whereas, appeal filed by Abdal Dogar appellant is accepted and he is acquitted from the charge. Murder reference is answered in negative. H.B.T./S-109/L Order accordingly.