1994 P Cr (PLP)

CH. GHULAM SARWAR, J.

Sahib Ali, Allah Ditta and Gul Zaman appellants had been tried under section 302/34, P.P.C. by the learned Additional Sessions Judge, Lodhran for the murder of Sultan Ahmad, deceased committed by them on 14-12-1989 at about 9-00 a.m. at Haqran Road in the area of Village Sumra, Police Station City Lodhran. Having been found guilty of the charge under section 302/34, P.P.C. Sahib Ali appellant has. been sentenced to death with a fine of Rs.5,000 and in default he is to undergo R.I. for one year whereas Allah Ditta and Gul Zaman were sentenced to imprisonment for life each with a fine of Rs.5,000 each and h in default thereof they were to suffer further R.I. for one year each. All the three appellants were directed to pay Rs.5,000 each as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. and in default thereof each of the appellant was to suffer further R.I. for six months.

2. Murder. Reference No.419 of 1991 seeks confirmation of the said sentence of death to Sahib Ali appellant while all the three appellants filed Criminal Appeal No.270 of 1991 to impugn the above-noticed conviction and sentences recorded against them. Ranjha complainant has filed Criminal Revision No.136 of 1991 praying for the enhancement of the sentences passed on Gul Zaman and Allah Ditta, appellants. All these matters are being disposed of together through this single judgment.

3. The occurrence in this case took place at about 9 a.m. on 14-12-1989 in the area of village Sumra on Haqran Road LS kilometres away from Police Station City Lodhran. The same had been reported to Muhammad Nawaz, Inspector P.W.9 by Ranjha complainant P.W.7, brother of Sultan Ahmad deceased at 10-00 a.m. on the same day.

4. The said complainant had informed the said Police Officer as per F.I.R. Exh.P.K. that on 14-12-1989 at about 9 a.m. he was proceeding to Permit More from his village in the company of his real brother Sultan Ahmad deceased in order to purchase fertilizer. Both the brothers were moving on metalled road known as Haqran Road and on the way Muhammad Nawaz (given up P.W.) and Abdur Rehman P.W.8 residents of his village met them and the complainant started talking with them while Sultan Ahmad deceased remained moving at Haqran Road towards Permit More. When he reached at a distance of one acre opposite to the Barseen Crop of Allah Wasaya Matam, Ghulam Zaman appellant armed with .12 bore gun, Sahib Ali appellant armed with dagger and Allah Ditta armed with .12 bore pistol who were hiding themselves in a nearby cotton crop field, appeared and raised Lalkara towards Sultan Ahmad deceased that he would not be spared that day. The complainant alongwith Muhammad Nawaz, and Abdur Rehman P.Ws. rushed towards that place in order to rescue Sultan Ahmad and they had covered a few paces when Gul Zaman appellant fired with his gun which hit Sultan Ahmad at his chest on right side and he fell down on the ground after being injured. When Sultan Ahmad was lying on the ground he was injured by Sahib Ali appellant with dagger and the injuries were inflicted on different parts of his body. Allah Ditta and Gul Zaman fired with their respective weapons and threatened the P.Ws. with the same consequences in case they tried to interfere. After being sure of the death of Sultan Ahmad deceased all the three appellants disappeared from the spot to their houses with their respective weapons while firing in the air. The complainant alongwith the P.Ws. reached near the deceased and found him dead with the injuries inflicted by the appellants. The motive of the occurrence alleged by the complainant in the F.I.R. was that the landed property of the deceased and the appellants was adjoining. A few days prior to the occurrence all the three appellants had constructed a wall on the boundary of the complainant and Sultan Ahmad deceased had demolished that wall and asked the appellants for the construction of the wall after demarcation of the boundaries. Hot words were exchanged between the appellants and Sultan Ahmad deceased on that occasion and all the appellants had threatened the deceased to take the revenge of their disgrace and due to that grudge all the three appellants had intentionally committed the murder of the deceased in furtherance of their common intention. Ranjha complainant left Nawaz and Abdur Rehman P.Ws. at the spot and he himself went to the police station to lodge the report.

5. Muhammad Nawaz Shah, Inspector/S.H.O. P.W.9 recorded the statement Exh.P.K. of Ranjha P.W.7 on 14-12-1989 at the police station and proceeded to the spot. He prepared the inquest report of the dead body of Sultan Ahmad deceased as Exh.P.B. and his injury statement as Exh.P.C. He took into possession the blood-stained earth from the spot vide memo. Exh.P.D. and secured one empty cartridge P.1 from the place of occurrence vide memo. Exh.P.E. on the day of occurrence. On 15-12-1989 he handed over the parcels to. the Moharrir and took into possession the last-worn clothes of the deceased and a phial vide memo. Exh.P.L. On 20-12-1989 he arrested all the three appellants. On 26-12-1989 Sahib Ali appellant while in custody led to the recovery of blood-stained dagger P.2 from his house which was secured vide memo. Exh.P.F. On the same day Allah Ditta led to the recovery of .12 bore pistol P.4 from the gunny bag of his house which was secured vide memo. Exh.P.H. Gul Zaman appellant while in custody on 29-12-1989. led to the recovery of his licensed gun P.3 which was secured vide memo. Exh.P.G. The site plans of the place of occurrence Exh.P.J./2 and Exh.P.J./3 were got prepared by the Inspector from Riaz Ahmad, Patwari and he gave red notes on those. When the investigation was completed all the three appellants were challaned and the challan was submitted before the learned Sessions Judge for trial, which was subsequently entrusted to the learned trial Court.

6. Dr. Muhammad Ismail P.W.1 did the autopsy on the dead body of Sultan Ahmad deceased on 15-12-1989 at 8-30 a.m. and found the following injuries on his person:-- (1) An oval lacerated wound size 4 c.m. x 3 c.m. into depth, directive invert and medially on right side of front of chest, edges of the wound inverted, burns and tatooed corresponding hole in Qamees, Salooka and Bunyan of which irregular and burns. On dissection: (1) Skin S/C. tissues, muscles thoracic and abdominal visceras namely lungs, heart, stomach and liver, injured, right third rib broken and enters chest cavity. Right lung injured. Wad and four pallets recovered. (2) Fourteen incised wounds about equal in size on front of chest and abdomen, deep to chest and abdominal cavity corresponding cuts seen in Qamees, Salooka and Bunyan. (3) Two incised wounds size 3 c.m. x 1 c.m. into muscle deep, on outer side of left upper arm corresponding cuts seen in Qamees. (4) Two incised wounds size 3 c.m. x 1 c.m. depth directive on back of lower part of chest. In the opinion of the doctor after careful external and internal examination, cause of death was haemorrhage and shock due to injuries Nos.1 and 2 (specially wounds Nos, 10 and 11 of injury No.2) which were sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem. Injury No.1 was by fire-arm while the rest were with sharp-edged weapon Exh.PA. is the post-mortem report whereas Exh.PA./1 is the diagram showing the locale of injuries.

7. To substantiate the charge against the appellants the prosecution examined as many as 9 P.Ws. including Ghulam Muhammad P.W.2 as the recovery witness of blood-stained earth and empty cartridge from the place of occurrence, Muhammad Yar P.W.3 as the recovery witness of the weapons of offence at the hands of the appellants; Riaz Ahmad P.W.4 as the draftsman; Rab Nawaz, Constable P.W.5,. Manzoor, A.S.I. P.W.6 as the formal witnesses. Ranjha complainant P.W.7 and Abdur Rehman P.W.8 have rendered the eye?witness account of the occurrence whereas Muhammad Nawaz Shah, Inspector P.W.9 is the Investigating Officer of this case. The learned Public Prosecutor tendered in evidence the reports of the Chemical Examiner Exh.P.O: and Exh.P.P., reports of Serologist Exhs.P.Q. and P.R. and also the reports of Forensic Science Laboratory Exh.P.S. to prove the origin of the blood and also to prove that the empty recovered from the plate of occurrence matched with the pistol recovered from Allah Ditta appellant.

8. When confronted with the prosecution evidence during their examination under section 342, Cr.P.C. and also statements recorded under section 340(2), Cr.P.C. all the three appellants traversed the allegations of the prosecution in. their entirety and while professing their innocence Sahib Ali and Allah Ditta appellants took up the plea that they were falsely involved in the case on account of the reasons stated by Gul Zaman appellant Gul Zaman, however, took up the following plea:-- "I registered a case against Sultan Ahmad deceased under section 326, P.P.C. He was arrested and-remained in jail for about 5/6 months. He felt humiliated and nourished grudge against me. Ghulam Farid was my cousin. Khuda Bakhsh, the grandfather of Abdul Rehman sold the land to Ghulam Farid upon which Abdur Rehman and Ranjha were annoyed and got a pre-emption suit instituted by Wahid Bakhsh who is the son-in-law of the uncle of the deceased. The suit of Wahid Bakhsh was dismissed. I used to prosecute the pre-emption case on behalf of Ghulam Farid, my cousin and I. also appeared as P.W. in that suit on behalf of Ghulam Farid. A theft had taken place against a tenant of Rana Jammat Ali in which Sultan Ahmad deceased was suspected. A Panchayat was held and it decided that you should give defence for Sultan Ahmad deceased but Gul Zaman on finding him guilty did not give any, defence in favour of the deceased and on account of that he had to pay compensation to the tenant of Rana Jamaat Ali and on account of these reasons, both the P.Ws. Abdul Rehman and Ranjha, close relations inter se and inimical towards me, falsely involved me in the present case. My gun is a licensed gun. I never used it." Besides that the appellants themselves appeared as their own witnesses under section 340(2), Cr.P.C. They did not produce any defence evidence.

9. Canvassing acquittal for the appellants it was argued that the occurrence in question was an un-witnessed occurrence, as according, to the learned counsel both the eye-witnesses were not present at the alleged time and place of occurrence and if they were present they were just the chance witnesses. Both the eye-witnesses being related to the deceased were interested witnesses having an old enmity with the appellants so their testimony is not worth to tie relied upon. It was also contended that the story of the prosecution is itself absurd as the P.Ws. have betrayed normal conduct so there is no physical guarantee of their presence when no injury was sustained by them. It was further argued that if the presence of the ocular evidence withstands the test of judicial scrutiny then the medical evidence cannot be considered as corroborative piece of evidence as large number of injuries on the person of the deceased prove that the eye-witnesses were not present at that time. The recovery evidence was also challenged as being doubtful having been effected on 26-12-1989 much after the occurrence.

10. Conversely by the learned AA.-G. assisted by the learned counsel for the complainant supported the judgment of the learned trial Court and contented that the eye-witness account rendered by both the eye-witnesses is quite natural and is corroborated by the medical evidence and the evidence of recoveries. The relationship of the P.Ws. with the deceased, it was maintained, per se is no ground to discard their testimony.

11. We have given our earnest thoughts to the arguments advanced by both sides and have also gone through the record very minutely. We find that Ranjha complainant who is author of the F.I.R. appeared as P.W.7 and has fully involved Gul Zaman and Sahib Ali appellants as, the former being armed with .12 bore gun and the latter armed with dagger having appeared from an ambush challenged the deceased, Gul Zaman appellant fired at Sultan Ahmad deceased which hit him on the right side of his chest and Sahib Ali appellant gave him large number of dagger blows out of which wounds Nos.10 and 11 were specially found sufficient to cause death by the .doctor. He has also deposed that Gul Zaman and Allah Ditta had fired at the complainant and other P.Ws. and threatened them not to come near otherwise they were to meet the same fate. We also find that the deposition of P.W.7 stands fully corroborated by the statement of P.W.8 namely Abdur Rehman. Both the eye?witnesses have withstood the test of cross-examination. We also find that it is a case where a report of the occurrence was lodged with great promptitude as the same having taken place at 9 a.m. on 14-12-1989 and the F.I.R. was lodged at 10 a.m. on the same day when the distance of the police station was 15 kilometres from the place of occurrence. It was a broad daylight murder wherein the F.I.R. was lodged with great promptitude so in our view it eliminated the chance of substitution or false involvement of the appellants.

12. We are conscious of the fact that the two eye-witnesses, as has been noticed above were closely related to the deceased and the parties were even inimical towards each other but the above-noticed facts and circumstances demonstrated the type of intrinsic worth of the said testimony which makes these witnesses reliable.

13. It is evident that the eye-witness account of the occurrence is being fully corroborated by the medical evidence. Injury No.1 on the person of the deceased is attributed to Gul Zaman which is certainly caused by fire-arm and the remaining about 18 injuries in total were caused with sharp-edged weapon on front of chest, abdomen, deep to chest and abdominal cavity and these injuries were attributed to Sahib Ali appellant who is said to be armed with dagger. The locale and the number of injuries on the person of the deceased further indicate the intention of the assailant who caused these injuries. In our view the medical evidence fully supports the involvement of Sahib Ali and Gul Zaman appellants if not of Allah Ditta appellant.

14. The next important aspect of this case is that the eye-witness account in this case is also fully supported by the evidence of motive which perpetrated the appellants to commit this crime and also by the evidence of the recoveries of the weapons of offence at their hands. P.W.3 Muhammad Yar and P.W.9 the Inspector have supported the recovery evidence. There is nothing on record to show that Muhammad Yar P.W. was interested in any way with the complainant or inimical towards the appellants.

15. Consequently, we find, nothing on record which could persuad us to hold that the prosecution had failed to prove the guilt of Sahib Ali and Gul Zaman appellants. No exceptions can, thus, be taken to the finding of guilt recorded against them by the learned trial Court. However, we have not been persuaded to uphold the conviction of Allah Ditta appellant. Admittedly no overt act has been attributed to Allah Ditta appellant in the F.I.R. or in the statement of eye-witnesses except that he was also present with pistol and he fired ineffectively and also in the air alongwith the appellants. We find that one empty was allegedly recovered from the place of occurrence and according to the report of the Technical Services Exh.P.S. that empty was found matched with the pistol allegedly recovered from Allah Ditta. We agree with the learned defence counsel that the recovery of the empty was not proved beyond reasonable doubt, firstly, that is was not mentioned in the inquest report and secondly it was deposited at the Malkhana of the police station on 15-12-1989 on the next day of the occurrence. The Moharrir handed over this empty to Rab Nawaz, Constable P.W.5 on 20-12-1989 and he deposited the same in the office of Forensic Science Laboratory on 24-12-1989. In view of these facts we are of the view that the involvement of Allah Ditta in the case appears to be doubtful so by giving him the benefit of doubt we accept his appeal and acquit him of the charge.

16. In this view of the matter we dismiss the appeal of Sahib Ali and Gul Zaman appellants and accept the appeal of Allah Ditta appellant. We maintain the conviction, and sentences recorded against both the appellants by the learned trial Court and accordingly we confirm the death sentence of Sahib Ali appellant. The complainant has filed a revision which was directed to be heard alongwith Criminal Appeal No.270 of 1991 for the enhancement of the sentence of Gul Zaman and Allah Ditta appellants. We do not find any good ground in it so the same is dismissed. Allah Ditta appellant if not required in any other case be released forthwith from the jail. N.H.Q./S-440/L?? Order accordingly.