1985 P Cr (PLP)

This Criminal Appeal No. 148 of 1982 and the connected Criminal Revision No. 353 of 1982 filed by the complainant for the enhancement of sentence of Muhammad Afzal, Muhammad Sher and Muhammad Amir respondents and against the acquittal of Nasrullah Khan and Abdur Rehman respondents 4 and 5 arise from the judgment of the learned Additional Sessions Judge, Sargodha whereby he on 16th February, 1982 while acquitting Nesrullah Khan and Abdur Rehman respondents 4 and 5 convicted Muhammad Amir, Muhammad Afzal and Muhammad Sher appellants under section 302/34, P.P.C. for causing death of Gul Muhammad and sentenced them to imprisonment for life and fine of Rs.2,000 each or in default thereof 3 months' S.I. I propose to dispose of them through single judgment.

2. The occurrence took place on 28‑5‑1980 at 7 a.m. in open field in Chak No. 14/M‑B P.S. Gajial. The distance between the place of occurrence and the police station is 16 miles. F.I.R. Exh.P.K. was lodged by Mathela Khan P.W.7 the brother of the deceased at police station and it was recorded by Tariq Ijaz, S.I. P.W.9 at 11 a.m. the same day.

3. The motive as set up by the prosecution was that 4 years before the present occurrence Falik Sher brother of Muhammad Sher appellant was murdered by Ali Muhammad brother of the deceased alongwith his cousin Sultan and the deceased had pursued that case, resulting in the acquittal of Ali Muhammad and Sultan.

4. As far the main occurrence, it has been stated that at the eventful time Gut Muhammad deceased, Mathela Khan P.W.7 and Wassan Khan P.W.8 were working in their field when Mst. Sahib Khatoon wife of Gut Muhammad deceased came there with breakfast. Mathela Khan P.W.7 and Wassan Khan P.W.8 started taking breakfast and the deceased was about to take breakfast when Muhammad Afzal armed with gun, Muhammad Sher armed with hatchet, Muhammad Amir armed with gun and the acquitted accused Nasrullah Khan and Abdur Rehman armed with rifle and gun respectively came there. Muhammad Afzal fired first shot hitting the deceased on the back of his shoulder. Muhammad Sher gave blows on the head of the deceased with wrong side of his hatchet. The deceased fell down. Thereafter Muhammad Amir appellant fired shot at him hitting on his cheek. Then Nasrullah Khan fired second shot which hit him on the right upper arm. The third shot fired by him hit the deceased on his right ribs. Abdur Rehman acquitted accused gave blows with the Butt of his gun on the nose of the deceased. The accused then made good their escape. They took the weapons with them. The deceased Gut Muhammad succumbed to the injuries on the spot.

5. On 29‑8‑1980 at 7 a.m. Dr. Pirzada Syed Muhammad Alam Shah conducted post‑mortem examination on the dead body of Gul Muhammad. He found 14 injuries on different parts of his body. In his opinion the cause of death was shock and haemorrhage, as a result of injuries Nos. 9, 10, 11 and 12 causing damage to the lungs, heart the vital organ. These injuries were grievous and dangerous for life. Injuries Nos. 6, 7 and 8 were also grievous. The rest of the injuries were simple. Injuries Nos. 7, 8, 9, 10, 11, 12, 13 and 14 ere caused by fire‑arm. The rest were the result of blunt weapon. These injuries were sufficient to cause death in the ordinary course of nature. The time between the injuries and death was 5 to 10 minutes and between the death and post‑mortem was between 10 and 24 hours. The appellants as well as the acquitted accused were arrested on 31‑8‑1980 by Tariq Ijaz S.I. Nasrullah Khan acquitted accused produced rifle P.4 which was taken into possession vide memo. P.E. attested by Mathela Khan P.W.7 and Muhammad Sharif A.S.I., P.W.6 Muhammad Afzal produced gun Exh.P.5 which was taken into possession vide memo. Exh.P.F. attested by the same witnesses. Abdul Rehman produced gun Exh.P.6 which was taken into possession vide memo. Exh.P.E. attested by the same witnesses. Muhammad Amir produced gun Exh.P.7 which was taken into possession vide memo. Exh.P.H. attested by the same witnesses. Muhammad Sher produced hatchet Exh.P.8 which was taken into possession vide memo. Exh.P.J. which was attested by the same witnesses. It may be noted that 4 crime empties of .12‑bore gun Exh.P.9/1 to 4 and one crime empty Exh.P.10 of gun .303 bore were removed from the place of occurrence and taken into possession vide memo. Exh.P.M. by Tariq Ijaz, S.I. The memo. was attested by Methela P.W.7 and Wassan Khan P.W.8. The report of the Forensic Science Laboratory Exh.P.T. shows that two crime empties were fired from the each gun recovered from Muhammad Afzal and Muhammad Ameer appellants.

6. To prove its case, the prosecution examined 9 witnesses. Methela P.W.7 and Wassan Khan P.W.8 have given the ocular account of the occurrence. They claim to have seen the appellants duly armed with guns, hatchet and rifle launching attack on Gul Muhammad deceased causing injuries resulting in his death. Mathela P.W.7 and Wassan Khan P.W.8 have supported the recoveries of empties on the spot and weapons from the appellants and the acquitted accused. Rest of the evidence is of formal nature.

7. When examined under section 342, Cr.P.C., the appellants and the acquitted accused denied all the incriminating circumstances. They did not raise any special plea. They stated that they were involved falsely on account of enmity. They did not lead any evidence in defence.

8. The trial Court while giving benefit of doubt to Nasrullah Khan and Abdul Rehman co‑accused has convicted the appellants relying on motive, ocular testimony and the recovery of weapons from them.

9. The learned counsel for the appellants contends that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as the eye‑witnesses are related and inimical; that they have been disbelieved to the extent of acquitted co‑accused; that there is no independent corroboration of ocular testimony qua appellants and that the recoveries of weapons of offence from the appellants are fake. Conversely, the learned counsel for the State while supporting the judgment of the trial Court maintained that the eye‑witnesses are quite reliable; that the recoveries are genuine and that there is sufficient reliable evidence on record to connect the appellants with the commission of crime.

10. I have considered the arguments advanced by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the appellants. I find that it is a case of prompt F.I.R. The occurrence took place at 7‑00 a.m. on 28‑5‑1980 and the First Information Report was recorded at 11‑00 a.m. on the same day. There is nothing on record to show that the F.I.R. was not recorded at the place and the time as it indicates. It is a valuable genuine document. It contains the names of the appellants, the names of the witnesses, the, weapons used by the appellants and the manner in which the occurrence took place. The two eye‑witnesses namely Mathela P.W.7 and Wassan Khan P.W.8 had probable cause of their presence on the spot at the time of occurrence. No doubt, Mathelal is the brother and Wassan is the uncle of the deceased but this relationship alone is not sufficient for the rejection of their statements. I do not see any inherent infirmity in their statements. The learned counsel has failed to point out material contradictions, major discrepancies and dishonest improvements in their statements. Their statements are in consonance with probabilities and materially fit in with the other evidence and surrounding circumstances of the case and are confidence inspiring: The number of the injuries found on the person of the deceased do commensurate. The appellants have not been able to lay down any foundation for their substitution in place of real culprits it was a day time occurrence. The appellants were previously known to the eye‑witnesses and as such there was no difficulty in their identification. I find that their evidence has not been disbelieved to the extent of Nasrullah Khan and Abdul Rehman acquitted co‑accused. They have been given the benefit of doubt because their cases were quite distinguishable. They had requested the Court for their identification by the eye‑witnesses and despite directions given by the Court, the eye‑witnesses were not made available for identification test. The Investigating Officer has given reasons for not depositing the crime empties immediately after the recovery. The crime empties recovered from the spot have matched with the two guns recovered from Muhammad Ameer and Muhammad Afzal appellants. Since, admittedly, Falak Sher, brother of Muhammad Sher appellant was murdered by Ali Muhammad, brother of the deceased and the deceased had been pursuing the case, therefore, Muhammad Sher and others had a motive to do away with him. For all these reasons, I am convinced that the trial Court has rightly convicted and sentenced the appellants. The trial Court has given good reasons for not awarding the sentence of death to the appellants.

11. The upshot of the discussion is that there being satisfactory basis to uphold the conviction and sentence of the appellants, the appeal and the connected revision are dismissed. M.Y.H Appeal dismissed