1994 P Cr (PLP)

SH. RIAZ AHMAD, J.

The appellant Haroon alias Harooni alongwith Abdul Jabbar and Muhammad Ilyas was tried by an Additional Sessions Judge at Faisalabad on charges under section 302/34, P.P.C. for having caused the murder of Muhammad Rafique and Obaid Ullah and also on the charge under section 307/34, P.P.C. for having caused murderous assault upon Muhammad Yousuf.

2. Vide judgment, dated 10-12-1987, the learned trial Judge acquitted Muhammad Ilyas and Abdul Jabbar of the charge under section 302/34, P.P.C. but found appellant Haroon alias Harooni guilty of the aforesaid charge. Accordingly, Haroon was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000 or in default thereof to suffer rigorous imprisonment for a term of six months. It was also directed that in the event of recovery of fine, half of it, shall be paid to the heirs of the deceased. Since Muhammad Yousuf injured did not appear, therefore, no conviction under section 307 read with section 34, P.P.C. was recorded and thus all three were acquitted of the said charge.

3. Aggrieved by his conviction, appellant Haroon preferred appeal bearing No.216 of 1988 and the State has also assailed the acquittal of Muhammad Ilyas, Abdul Jabbar and appellant by way of filing Appeal No.902 of 1988 and the complainant has also filed Criminal Revision No.267 of 1988 against appellant Haroon alias Harooni praying that his sentence be enhanced to-death. It was also prayed that the compensation be also enhanced. The State also filed Criminal Revision No.484 of 1988 against appellant Haroon praying for the enhancement of sentence to death. A notice was issued in the Criminal Revision No.484 of 1988 to the appellant Haroon to show cause as to why his sentence should not be enhanced to death. This judgment shall dispose of all the above-mentioned appeals as well as revisions

4. The occurrence resulting into the deaths of Obaidullah and Muhammad Rafique took place on 2nd of August, 1984 at 7-45 a.m. within the premises of the District Court, Faisalabad, in front of the Court room of Mr. Muhammad Afzal Bajwa, Magistrate 1st Class, Faisalabad. The occurrence was promptly reported vide statement Exh.P.K. made by War Ullah, P.W.9 and recorded by Muhammad Hanif, S.I., P.W.12 at 7-55 a.m. and the same was sent to the Police Station Kotwali where formal F.I.R. Exh.P.K./1 was recorded at 8 am. by Idrees AIL P.W.7.

5. The prosecution case as disclosed in the statement Exh.P.K. made by Zafar Ullah P.W.9 was that they were four brothers in all and on the fateful day, he alongwith his deceased brother Obaid Ullah went to the District Courts, Faisalabad, to appear in the Court of Rana Bashir Ahmad, Magistrate 1st Class, Faisalabad and they appeared in the Court at 7-15 a.m. and the case was adjourned and on their way back at 7-45 a.m. when they reached, outside the Court room of Mr. Muhammad Afzal Bajwa, M.I.C., Faisalabad, then suddenly appellant Haroon armed with a carbine, Abdul Jabbar armed with a dagger and Muhammad Ilyas armed with a carbine, all real brothers, arrived there and they started firing upon the complainant side. Haroon fired a shot injuring left and right chest of Obaid Ullah and his right elbow, whereupon, he fell down. The second fire was shot by Ilyas aimed at the complainant Zafar Ullah who saved himself but pellets hit the abdomen, chest, right arm and right thigh of Muhammad Rafique who also fell down. A stray pellet also hit Muhammad Yousuf who also fell down. Aforesaid Muhammad Rafique and Muhammad Yousuf were present in Court in connection with their own cases. On the alarm raised and while hearing the fire-shot, Muhammad Naeem and Muhammad Salim and Court officials also reached and saw the occurrence. The appellant and his companions managed to escape from the scene.

6. The motive for the commission of offence as narrated in the F.I.R. was that deceased Obaid Ullah had got a case registered against Haroon under the provision of section 307, P.P.C. and thus he had a grudge and for that reason Haroon alongwith his associates in furtherance of their common intention attacked the complainant side.

7. P.W.1 Dr. Iftikhar Hussain Piracha on 2-8-1984 conducted the examination of injured 6baid Ullah and the following injuries were noticed on his person:-- (1) A fire-arm wound with inverted margin 1 c.m. x 1 c.m. into D.N.P. (depth not probed) on the right chest at antero lateral aspect 6 c.m. right to nipple. (2) A fire-arm wound 1 c.m. x 1 c.m. into D.N.P. confront of right chest 7-1/2 c.m. from right nipple at 3.4 O'clock position with inverted margin. (3) A fire-arm wound 1 c.m. x 1 c.m. into DNP with inverted margin 5 c.m. below and on line left nipple confront left chest. (4) A fire-arm wound 1 c.m. x 1 c.m. into DNP inverted margin on outer side of right elbow. . (5) A fire-arm wound 1-1/4 c.m. x 1 c.m. into DNP inverted margin on outer side of right elbow.

8. The said doctor also examined Muhammad Rafique and following injuries were noticed on his person:-- (1) A fire-arm wound 1 c.m. x 1 e.m. into DNP 4 c.m. from right nipple at 4 o'clock position with inverted margin. (2) A fire-arm wound 1 c.m. x 1 c.m. into DNP on right costal margin 2 c.m. from mid line. (3) A fire-arm wound 1 c.m. x 1 c.m. into DNP on left costal margin at level of injury No.2. (4) A fire-arm wound 1 c.m. x 1 c.m. into DNP on left side of abdomen upper 2-1/2 c.m. from mid line below costal margin. (5) A fire-arm wound 1 c.m. x 1 c.m. into DNP with inverted margin on front right arm a little above the elbow. (6) A fire-arm wound 1 c.m. x 1 c.m. into DNP with inverted margin on inner right thigh about middle. (7) A fire-arm wound 1-1/4 c.m. x l-1/4 c.m. on back right arm in middle. (8) A lacerated wound with inverted margin 3/4 c.m. x 3/4 c.m. on top right shoulder. (9) A lacerated wound on right shoulder close to injury No.8, 1 c.m. x 1 c.m. with inverted margin exist to No.8. (10) A lacerated wound 1 c.m. x 1 c.m. on the outer side of right chest with inverted margin. (11) Two lacerated wounds each 1 c.m. x 3/4 c.m. on back and outer side of base of right little finger.

9. Muhammad Yusuf was also examined by the said doctor and the following injuries were noticed on his person:-- (1) A fire-arm wound 1 c.m. x 1/2 c.m. into DNP on left lumber 12 c.m. from spinal line and 8.c.m. from iliac crest with hard swelling 1 c.m. x 1 c.m. on its line and back to the wound. The margins were inverted on outer side. (2) An abrasion 2 c.m. x 1/2 c.m. on back, left elbow. On the same day, Dr. Imtiaz Ahmad Gil, P.W.2 conducted the post-mortem examination on the dead body of Muhammad Rafique and the same injuries referred to above were noticed. All the injuries were caused by fire arm except injury No.1 which was caused with blunt weapon. Two pellets were recovered from the right side of the chest. Right lung was lacerated through and through. The stomach and right kidney were also lacerated and in the opinion of the doctor, the death occurred due to shock and haemorrhage and these injuries were sufficient to cause death in the ordinary course of nature.

10. On the same day, said doctor also conducted the post-mortem examination on the dead body of Obaid Ullah and the same injuries referred to above were noticed. The liver had been lacerated and in the opinion of doctor, the death occurred due to shock and haemorrhage and injury No.3 was declared sufficient to cause death in the ordinary course of nature.

11. On 10th of March, 1985, appellant Haroon and Ilyas acquitted accused were arrested by Muhammad Saleem, S.H.O. P.W.13. On 17-8-1984, Abdul Jabbar acquitted co-accused was arrested and on 21-8-1984 Abdul Jabbar led the police and got recovered dagger P.10 which was taken into possession vide memo. Exh.P.P. attested by Zafar Ullah, P.W.9 and Khalid Farooq (given up) besides the Investigating Officer. On 14-3-1985 appellant Haroon led the police and got recovered carbine P.7 which was taken into possession vide memo. Exh.P.I. On the same day, Ilyas acquitted accused led the police and got recovered carbine P.8 which was taken into possession vide memo. Exh.P.J. Both the recovery memos. were attested by Muhammad Suleman P.W.6 and Dilbar Hussain besides the S.I./I.O. 12: The dagger was blood-stained and was sent to the Chemical Examiner and Serologist but no report was brought on the record by the prosecution.

13. To prove its case at the trial, the 'prosecution placed reliance upon the ocular testimony furnished by the complainant real brother of Obaid Ullah deceased namely Zafar Ullah, P.W.9 while Muhammad Naeem and Muhammad Saleem eye-witnesses named in the F.I.R. were given up and Muhammad Yousuf, the injured witness was also given up. Muhammad Naeem and Muhammad Saleem were reported to have been won over by the accused. The prosecution also produced one Muhammad Hussain Javed, P.S.I., P.W.8 deputed to work in the Court of Mr. Muhammad Afzal Bajwa, M.I.C., although, he was not named in the F.I.R. In addition to the ocular testimony, the prosecution also placed reliance upon the evidence as to the motive.

14. When examined under section 342, Cr.P.C. the appellant and the acquitted co-accused denied the charge and stated that they were involved on account of enmity and suspicion.

15. It may be stated here that one Mst. Shamim sister of Rafique (deceased) had filed a private complaint in respect of this occurrence but the complaint could not succeed and the accused named therein were acquitted by Mr. Fakhar Hayat, Additional Sessions Judge. All the accused also entered the witness-box to make statement under section 340(2), Cr.P.C. and they adopted the same statement made by them under section 342, Cr.P.C. However, they were cross-examined by the Deputy District Attorney and the suggestion to the effect that Mst. Shamim had lodged a complaint against appellant and acquitted accused but the same was denied.

16. With the assistance of the learned counsel for the appellant, State and the complainant, we have carefully perused the entire evidence on the record and we have also heard their contentions at length.

17. The learned counsel for the appellant argued that star witnesses in this case namely Muhammad Naeem and Muhammad Saleem and the injured Yousuf were not produced by the prosecution, therefore, advance inference should be drawn against prosecution and the benefit of doubt should also be given to the appellant Haroon. it was further argued that the only witness Zafar Ullah, complainant was related and further more on account of the previous case which was got registered by deceased Obaid Ullah against Haroon, he was not a natural witness and, therefore, corroboration was necessary to sustain conviction of the appellant. The learned counsel further criticised the statement of Muhammad Hussain Javed, P.W.8. Prosecuting Sub- Inspector in the Court of Mr. Muhammad Afzal Bajwa, M.I.C., Faisalabad. The learned counsel drew our attention to the circumstance that the said witness had failed to identify the appellant and he was tutored and made up witness and had not seen the occurrence or if at all he was present, he must have reached after the occurrence and, therefore, was not in a position to correctly identify the appellant. It was next argued that complainant Zafar Ullah was a chance witness and had he been present, he would have also been injured and, therefore, it was not safe to rely upon his statement. It was also urged that had the complainant been present, he would have taken his injured brother to the hospital but in fact, it was the Naib-Court who was deputed by the Investigating Officer to take the injured to the hospital. The learned counsel also argued that the deceased Obaid Ullah was a desperate criminal and was involved in a number of cases and, therefore, possibility of his death having been caused by some other person cannot be ruled out.

18. On behalf of the State, it was argued that the acquittal of Abdul Jabbar and Ilyas respondents had caused miscarriage of justice as their presence at the spot stood fully established. It was also urged that the award of lesser penalty to the appellant Haroon was against all the canons of justice because there was no mitigating circumstance justifying lesser penalty.

19. After anxious consideration, we are of the view that the presence of Zafar Ullah, complainant, P.W.9, cannot be doubted because the F.I.R. in this case was lodged with promptitude and all the accused had been named therein. The non-production of Muhammad Naeem and Muhammad Saleem and injured Yousuf does not at all affect the prosecution case because reportedly Muhammad Naeem and Muhammad Saleem had been won over. It was open to the defence to have summoned them, therefore, nothing turns upon their non-production.

20. In our view Muhammad Hussain Javed, P.W.8 Prosecuting Sub -Inspector is a natural witness. He was deputed to work in the Court of Mr. Muhammad Afzal Bajwa, Magistrate 1st Class and the occurrence had taken place in the Verandah near the door of the Court room of the Magistrate, therefore, he would have definitely been attracted to the scene of occurrence after hearing the fire-shot. Furthermore, he being a responsible Government Officer would not dare to tell a lie or to involve a person falsely on a capital charge. He has no axe of his own to grind. He is not inimical towards the appellant in any manner. The omission to mention his name in the F.I.R. in the peculiar circumstances of this case does not affect the prosecution case. The F.I.R. was lodged with promptitude and obviously the complainant would not be knowing all the officials. It was during the investigation of the case that Muhammad Hussain Javed, Prosecuting Sub-Inspector made statement. Hence we find no reason to disbelieve him. His statement rings true and he also thus corroborates the statement of the complainant.

21. The next crucial question falling for determination is whether acquittal of Ilyas and Abdul Jabbar is justified on the record and are they entitled to the benefit of doubt as given by the learned trial Judge? After considering all the circumstances of the case, we are of the view that benefit of doubt was rightly extended to them. In our view, they being the real brothers of the appellant Haroon were involved so that a wide net could be thrown to rope in all the members of the accused family. Furthermore we are of the view that non- production of Yousaf injured eye-witness in this case goes a long way to show that the responsibility for the murder of Rafique deceased cannot be placed on Ilyas. In this view of the matter, we are not inclined to interfere with the acquittal of Ilyas and Abdul Jabbar. Adverting to the case of appellant Haroon, we are of the view that the prosecution has brought home the guilt to the appellant Haroon. However, the next question falling for determination is whether imposition of lesser penalty was justified on the record of this case or not. We are of the view that the learned trial Judge erred in awarding him the lesser penalty, because it was a cold blood murder and dastardly act on the part of the appellant and that too in the premises of the Court. In fact the learned trial Judge under the labour pretext awarded the lesser penalty, which is to be deprecated. We are in this view fortified by the judgment of the Supreme Court reported as Muhammad Iqbal alias Javed Iqbal v. The State P L D 1976 SC

291. In our view, there are no mitigating circumstances in this case. Accordingly, while allowing the revision petitions, we enhance the sentence of appellant Haroon alias Harooni from imprisonment for life to death. The sentence of fine is maintained...

22. The upshot of the above discussion is that Criminal Revision No.484 of 1988 filed by the State and Criminal Revision No.267 of 1988, filed by Muhammad Zafarullah, are accepted, as indicated above. The State appeal and the appeal filed by the appellant are dismissed. N.H.Q./H-124/L Order accordingly.