1990 PLP 678 (MLD)

MUHAMMAD ZUBAIR, J.‑‑Zulqarnain, his father Abdul Hamid and their co‑villager Muhammad Saleem, were tried by the learned Additional Sessions Judge, Sheikhupura, under section 302/34, P.P.C., for causing the murder of Asif Ali with firearms on 30th June, 1985 at 10‑30 p.m. in village Kot Ranjeet Singh, within the jurisdiction of Police Station Sadar Sheikhupura. The learned trial Court vide his judgment dated 22nd March, 1986, acquitted Abdul Hamid and Muhammad Saleem of the charge, but convicted Zulqarnain under section 302, P.P.C. and sentenced him to death and a fine of Rs.10,000. or in default four years R.I. with the further direction that the fine, if recovered, half of it, be paid to the legal heirs of the' deceased as compensation under section 544‑A, Cr.P.C. The convict filed the present appeal, viz. Criminal Appeal No.241 of 1986. The learned trial Court has referred the matter to us under section 374 Cr.P.C. for confirmation of the death sentence, vide Murder Reference No.82 of 1986. Ashiq Ali complainant, father of the deceased has filed Criminal Revision No.517 of 1988, for enhancement of the amount of compensation. As the three matters arise out of the same case, these are proposed to be disposed of by this judgment.

2. The motive for the occurrence is that Muhammad Hafeez, a tenant of Asif Ali deceased, (and his father Ashiq Ali) got a case under section 307 PPC registered against the appellant and his father Abdul Hamid and others in the year 1984, which was still pending. The appellant and his father approached the deceased to ask his tenant to desist from pursuing that case and also giving evidence against them, but the deceased declined to do so. Thereafter, the appellant and his father approached Ashiq Ali P.W., he too refused to oblige them. This, it is alleged, culminated in the present occurrence.

3. As for the occurrence, it is alleged that on the fateful night, the deceased and his father Ashiq Ali went to the shop of Muhammad Hafeez P.W.2 to settle accounts about tobacco which they had supplied to him. At that time Ishaque was also present in the shop of Muhammad Hafcez P.W. After discussing the matter for about half an hour, they left for their houses. On the way Ashiq Ali, Hafeez and Ishaque continued their discussion while Asif Ali deceased was ahead of them by 4/5 steps. When the deceased reached the corner of the street and was about to turn to another street leading to his house, Abdul Hamid, empty handed, the appellant and Muhammad Saleem armed with guns appeared on the scene. Ashiq, Hafeez and Ishaque identified the accused in the light of electric bulb fixed at the shop of Bashir adjacent to the spot. Abdul Hamid is alleged to have raised a lalkara exhorting his companions to kill Asif Ali, whereupon first shot was fired by the appellant which hit the deceased in the right chest near the collar bone, followed by another shot by Muhammad Saleem which too hit the deceased near the first injury. Asif Ali fell on the ground and died there. Ashiq, Hafeez and Ishaque reached the spot hurriedly, but in the meantime the accused decamped while tiring in the air. Ashiq Ali immediately went to the police station and lodged the report, Ex.P.A. which was recorded by Nazir Hussain ASI P.W.11 at 1‑15 a.m. the same night.

4. After recording the F.I.R., Nazir Hussain AST reached the spot at 1.30 a.m. He prepared injury statement Ex.PH and inquest report Ex.PJ of the deceased and despatched the dead body to the mortuary for post‑‑mortem examination. He also collected blood‑stained earth from the spot vide memo. Ex.PK. He then recorded the statements of the witnesses under section 161 Cr.P.C. At 6.30 a.m. Muhammad Naseem in to over the investigation from Nazir Hussain AST. He arrested the appellant and his co‑accused on 12th July, 1985. The appellant while in police custody got recovered 12 bore S.B. gun from behind the show‑case lying in a room of his house which was taken into possession vide memo. Ex.PE. "He prepared rough plan of the place of recovery. On completion of legal formalities he submitted the challan in the Court of law.

5. Dr. Khalid Yazdani, Medical Officer, DHO Hospital Sheikhupura (PWA) conducted post‑mortem examination on the dead body of Asif Ali deceased on 1st July, 1985 at 8 .30 a.m. and found the following injuries thereon:‑‑ (1) An entrance wound of firearm, 1 cm x 1 cm chest cavity deep, on front of right chest just below the right clavicle, 12 cm above the right nipple. (2) An entrance wound of firearm, 1 cm x 1 cm chest deep, on front of right chest, 9 cm above the right nipple and 2 cm below and outer side of injury No.1. One pellet was removed from the lower border of left clavicle and upper border of the left scapula. Both the injuries were ante-mortem and had been caused by firearm. Death in the opinion of the doctor had occurred due to severe shock and haemorrhage from thoracic cavity, internal and external. Both the injuries were individually and collectively sufficient to cause death in the ordinary course of nature. 1n cross‑examination, the doctor admitted that both the injuries could be from one fire.

6. The appellant in his statement under section 342 Cr.P.C. denied the prosecution allegations and also the motive part of the occurrence. He disowned the recovery of gun at his instance. When questioned `why this case against you'? he replied:‑‑ "I have been involved due to enmity. The deceased had many enemies in the village because of his involvement in party faction. He was killed during night and no one witnessed the occurrence. His father Ashiq Ali complainant involved me and my father falsely in this case". No evidence was produced in defence.

7. The learned trial Court while convicting and sentencing the appellant as indicated above, has relied on the ocular testimony of Ashiq Ali P,W.1 and Muhammad Hafeez P.W.2, fortified by the medical evidence as well as the evidence of motive.

8. We have heard the learned counsel for the appellant as well as the learned counsel for the State and the complainant and have perused the record minutely with their able assistance. The learned counsel for the appellant has contended that in the present case, the F.I.R. was lodged after preliminary investigation and the F.I.R. is ante?dated, hence no sanctity could be attached to this dubious document. He has placed reliance on the following portion in the statement of Muhammad Sanvai, Head Constable P.W.10:‑ "I remained present in Police Station Sadar from 9.00 p.m. on 1‑7‑1985 to 2‑30 a.m. the following night. The case was registered at 1-15 a.m and I was present in the police station at that time. No entry about the registration of this case was made in the daily diary of the police station by me." He has also referred to the evidence given by Muhammad Asghar P.W.3, wherein he deposed:‑ "On reaching the spot, Nazeer AST recorded the statements of Ashiq AIL Muhammad Hafeez, Ishaque P.Ws. and also examined me. Muhammad Hafeez and Ashiq Ali signed their statements while Ishaque and I thumb‑marked ours." On the basis of abovementioned pieces of evidence in the statements of Muhammad Sarwar and Muhammad Asghar P.Ws the learned counsel has tried to develop the argument that as deposed to by the aforesaid witnesses, it appears that the F.I.R. was recorded after preliminary investigation, but he has lost sight of the evidence of Nazir Hussain AST P.W.11, who deposed:‑ "On 1‑7‑1985, when I was posted at Police Station Sadar Sheikhupura, Ashiq Ali complainant came there and lodged the report Ex.PA which is in my hand and signed by me." This clinches the controversy that the F.I.R. was lodged promptly at 1‑15 a.m. and obliging concessions made by Muhammad Sarwar P.W.10, Head Constable, who had not recorded the F.I.R., are of no avail to the defence. 1t has been time and again observed by this Court that a formal police witness should not make obliging concessions in favour of the defence, because he is not required to do so. Even this fact was brought to the notice of superior police officers. This is generally done by police officials to discredit the otherwise legal and confidence 1 inspiring evidence of independent witnesses. Even the learned counsel for the appellant has failed to point out that any question was put to Nazir Hussain AST who recorded the F.I.R. that it was recorded after preliminary investigation. It would be interesting to note that the statement of Asghar Ali P.W.3 relied upon by the learned counsel for the appellant was not believed by the trial Court. The learned counsel wants us to believe that portion of his evidence which suits the defence and discredits the other portion of the evidence which is against the appellant. This position is not acceptable, because, he, at the same time, cannot be permitted to approbate and reprobate.

9. The learned counsel for the appellant next contended that Nazir Hussain AST has deposed that he did not record the statements of Sardar Muhammad, Muhammad Saleem, Abdul Rashid, Nazir Hussain, Khushi Muhammad and Siddique who lived around the place of occurrence and has also not arrested the accused persons which shows that the crime was un-witnessed and the police in order to support its case has fabricated the evidence, which is belied by the statement of Nazir Hussain P.W.11, referred above. If this statement is read, as a whole, it is clear that this witness stated that he could not arrest the accused persons, because by that time the investigation was taken over by Muhammad Naseem Inspector/SHO, who after completing the legal formalities submitted the challan in the Court of law. The learned counsel has also placed reliance on the following portion of the evidence of Nazir Hussain ASI:‑ "Similarly, the names of the accused and the points of their presence are not indicated therein. (i.e. in the inquest report Ex.PJ)." It would be very dangerous and hazardous to discredit the truthful and straightforward evidence of the eye‑witnesses merely on account of certain omissions on the part of the police officer who had filled in the inquest report. C Furthermore, the learned counsel has failed to point out any law on the basis of which, straightforward evidence of an eye‑witness could be summarily rejected on the ground that certain entries or certain columns of the inquest report were not bona fide filled in by the investigating officer.

10. The learned counsel then urged that in the present case, the motive as alleged was against Muhammad Hafeez P.W.2 and if he had been present at the time of occurrence, then he would have been the victim of violence. This fact alone belies the ocular account given by this witness. We have considered this submission but find no force in it, because as observed by the trial Court, Muhammad Hafeez got a case registered against the appellant, his father and others under section 307, P.P.C prior to the present incident and he being the tenant of Ashiq Ali, father of Asif Ali deceased, refused to oblige the appellant and his father only at the instance of his masters i.e. the deceased and his father, then the appellant and his father had the motive against them. It is also in evidence that the deceased sternly refused to accept the wishes of the appellant and his father that they (the deceased and his father) should direct their tenant not to give evidence against the appellant and others in the case under section 307, P.P.C.

11. The learned counsel for the appellant further contended that the occular evidence in the present case is furnished by Ashiq Ali P.W.1 and Muhammad Hafeez P.W.2 and as the latter had admitted previous enmity with the appellant, therefore, it would not be safe to place explicit reliance on his testimony without any independent corroboration which is lacking in the present case. According to the learned counsel, the medical evidence belies the ocular evidence and he has referred to the statement of Muhammad Hafeez P.W.2, occurring at page 17 of the paper book, wherein he stated:‑ "When I saw the accused first, they were about 10/12 feet from me. Asif Ali deceased was hardly two steps from me at that time. When Abdul Hameed accused gave out Lalkara I did not ask Asif Ali deceased to be alert or run for his life." The learned counsel submitted that in view of the medical evidence, the shot, it fired, from this distance could not have caused the injuries in the manner as shown in the post mortem report, because it shows that the fire was hit from quit a distance which belies the ocular account and in view of the admitted background of animosity, it would not be safe to rely upon the ocular evidence. We are afraid, we cannot ascribe to the reasons advanced by the learned I defence counsel, because we find that the presence of Muhammad Hafeez P.W.2, though he is inimical, cannot be doubted in view of the circumstances coming in F the evidence, and on the basis of mere hypothesis, the statement of truthful and straightforward witness cannot be discarded. The doctor is not a firearm expert and nothing has been brought out on the record as to what type of cartridges were used and what was their nature, whether LG, SG or Ball cartridges. In the absence of this evidence, it would be dangerous to discard the evidence of these witnesses, merely on the ground that there can be possibility of a different view, when the eye‑witnesses have categorically stated, that the appellant was the person, who fired the shot at the deceased. The learned counsel has failed to point out that Ashiq Ali P.W.1 had any animosity to falsely implicate the appellant in this case, when there was sufficient light in which he could easily identify the assailant of his son. The presence of Ashiq Ali P.W.1 is not doubted at the spot, because he was examined immediately and even in the site plan his presence is shown at the point from where he witnessed the occurrence.

12. Lastly, the learned counsel has placed reliance on the site plan and has urged that from point No.3, it was not possible for the eye witnesses to witness the occurrence. This argument is without any basis, because no question was putt either to the eye‑witnesses; the investigator or to the person who prepared the site plan, in this case. In the absence of any evidence on this point, it would be difficult to discard the evidence of natural and truthful witnesses on mere conjectures and surmises.

13. In the end, the learned counsel has strenuously argued that in the present case, the sentence imposed upon the appellant needs consideration, because the appellant being a young lad of 29 years, might have acted under the influence of his father, hence he deserves leniency so far as the sentence is concerned. We have considered this argument of the learned counsel and find some force in it, although it has been vehemently opposed by the learned counsel for the complainant. Placing reliance on Mukhtar Hussain and another v. The State (1985 S C M R 479), we decline to confirm the sentence of death imposed upon the appellant but reduce it to imprisonment for life, as in our view this would meet the ends of justice, but maintain the sentence of fine imposed upon the appellant by the trial Court.

14. The upshot of the above discussion is that with the modification in the sentence, the appeal is dismissed and so is the murder reference. The sentence of death is not confirmed. Half of the fine, if recovered, shall be paid to the legal heirs of the deceased, as directed by the trial Court. The benefit of section 382‑B Cr.P.C. is however, granted to the appellant.

15. We have heard the learned counsel for the complainant in the revision petition for enhancement of compensation, but find no substance in it which is dismissed. N.H.Q./Z‑130/L????????????????????????????????????????????????????????????????????????????????? Petition dismissed.