1988 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.

This Criminal Appeal No. 47 of 1986, Murder Reference No. 85 of 1986 and the connected Criminal Revisions Nos. 197, 198 of 1986 against acquittal of Akbar and for the enhancement of sentence of the appellants arise from the judgment of learned Additional Sessions Judge, Kasur whereby he on 18-1-1986 while acquitting Imanat Khan and Akbar, convicted Muhammad Ameen, Irshad alias Shadoo, Abdul Sattar Khan and Arshad alias Achhu appellants under section 302/34, P.P.C. for the double murder of Abid Masood and Sher Muhammad and murderous assault on Riaz Baig and Javaid Baig P.Ws. and sentenced them as under:-- (1) (i) Muhammad Ameen appellant (i) under section 302, P.P.C. to death and a fine of Rs.5,000 for the murder of Sher in default thereof two years' Muhammad. R.I. (ii) Under section 307/34, Five years R.I. and a fine P.P.C. for murderous assault of Rs.1,000 in default thereof on Riaz Baig and Javaid Baig. one year's R.I. (2) Arshad alias Achhu, Irshad alias Shadoo and Abdul Sattar Khan appellants under section 302/34, P.P.C. to imprisonment for life and a fine of Rs.10,000, in default thereof 5 years' R.I. (ii) Under section 307/34, to 5 years R.I. and a fine of P. P. C. Rs.1,000 each in default thereof one year's R.I. each. The sentences were to run concurrently and the fine awarded under section 302, P.P.C. if recovered be paid to the legal heirs of the deceased. We propose to dispose of these matters through single judgment.

2. The occurrence took place on 28-10-1983 at 4-00 p.m. in the area of village Boonga Gandasinghwala at a distance of 101, miles from Police Station Mustafabad. F.I.R. is statement Exh. P..4. of Mirza Sagheer Baig, P.W.10, uncle of Abid Masood deceased and sister's son of Sher Muhammad deceased which was made by him on the same day at 5-00 p.m. at Adda Rao Khanwala to Mirza Noorul Hassan, S. H. O., P.W.14. Formal F. I. R. Exh. P.A/1 was drawn up by Muhammad Ashraf, M.H.C., P.W.1 on the same day at 6-00 p.m.

3. The motive as alleged by the prosecution was that 10-12 years before, one Shafqat son of Hassan Muhammad was killed for which Muhammad Rafiq, cousin of the complainant, Wali Muhammad, uncle of the complainant, Anwar Baig, cousin of the complainant and Alam Baig, etc. were challaned. The case was heard by a Tribunal and all except Muhammad Rafiq were acquitted. From this moment onward there was perpetual enmity between the complainant party and the Rajputs residing in the village. They opposed each other on each and every possible occasion. In the recent local bodies election, the complainant party had opposed Akbar Nleo, Lcquitted accused and his party. Akbar was opposed by Khalid Mahmood son of Nazir Ahmad, nephew of the complainant. Akbar Meo won the election because Rajput Bradari supported him. A few days earlier Sagheer B;iig complainant had picked up a quarrel with one Islam, a relative of Akbar Meo and a criminal case was registered against the complainant and his brother Munawar under section 324/34, P.P.C:, hence this occurrence.

4. As for the main occurrence, it has been stated that on 28-10-1983 Abid Masood deceased, Sher Muhammad deceased, Javaid Baig and Riaz Baig P.Ws. left the house of Mehboob Baig (not produced) at 4-00 p.m. Sagheer Baig complainant, Yaseen Baig P.W.11 and Mehbood Baig followed them to see them off at Bus Stand. When the two deceased and P.Ws. Riaz Baig and Javaid Baig reached near the house of Fattu in the street, all of a sudden the appellants and the acquitted accused all armed with fire-arms except Imanat Khan empty handed, appeared on the scene. Imanat Khan raised lalkara that they will not let them go alive. On this Abdul Sattar Khan fired shot from his gun which hit Abid Masood on his front, who fell down. Then Irshad fired shot from his gun which hit Sher Muhammad on his front and when Sher Muhammad turned back and wanted to run, Muhammad Ameen fired second shot by his pistol which hit Sher Muhammad on his back and he also fell down. Then .Akbar fired shot hitting Riaz Baig on his chest who fell down on the ground. Then Arshad alias Achhu fired shot which hit Javaid Baig on his front and when he turned back and wanted to run, Abdul Sattar Khan fired shot on his leg. He also fell down. Sagheer Baig and Yaseen Baig raised alarm. When the villagers were approaching to the scene of occurrence, the appellants and the co-accused ran away. Abid Masood and Sher Muhammad died on the spot. Javaid Baig and Riaz Baig were removed to Civil Hospital, Kasur. The complainant and others removed the dead bodies to the house of Jalal Baig. The complainant then left for police post Raja Jang for lodging report. On the way he met Mirza Noorul Hassan, S.I., P.W.15 at Adda Rao Khanwala and made his statement Exh.P.A.

5. On 29-10-1983, Dr. Saeed Ahmad P.W.7 conducted post-mortem examination on the dead body of Abid Masood and found following injuries: -- (1) "Fire-arm grazing wound on right cheek near the angle of mouth size 2 x 1 c.m. the margins were black. (2) Fire-arm entry wound size 3/4 x 3/4 c.m. right chest front 31 c.m. above right nipple margins black and inverted. (3) Fire-arm entry wound size 3/4 x 3/4 c.m. right iliac fossa margins black and inverted." In his opinion, the cause of death was haemorrhage and shock as a result of injuries Nos. 2 and 3 which were sufficient to cause death in the ordinary course of nature. All the injuries were caused by fire-arm. The time between injuries and death was within 5 minutes and between death and post-mortem was 20-22 hours. On the same day, he conducted post-mortem examination of the dead body of Sher Muhammad and found following injuries: -- (1) "Fire-arm entry wound size 3/4 x 3/4 c.m. right elbow inner side. (2) Fire-arm exit wound size 1 x 1 c.m. right elbow back and outer side. (3) Fire-arm entry wound left arm front and outer side in the middle size 3/4 x 3/4 c.m. (4) Fire-arm. exit wound left arm back and outer side in the middle size 1 x 1 c.m. (5) Fire-arm grazing wound back of right chest in the middle on posterior axillary line size 1z x 3 c.m. (6) Fire-arm entry wound back of right chest lower part in the middle size 1 x 1 c.m. (7) Fire-arm entry wound left chest lower part outer side on the back size 1 x 1 c. m . (8) Fire-arm exit wound left chest lower part outer side on the back 21 c.m. outer to injury No. 7 size 1 x 1 c.m. In his opinion, the death was due to shock and haemorrhage as a result of injury No. 6 which was sufficient to cause death in the ordinary course of nature. The injuries were caused by fire-arm. The death was immediate and the time between death and post-mortem was 22 to 24 hours. On 28-10-1983 Dr. Captain Muhammad Anwar, P.W.9 examined Mirza Riaz Baig and found following injuries on his person:-- (1) "Fire-arm entrance wound on right chest lower part size 1 x 1 c.m. burning around the area was present. Corresponding holes were present on the Bunyan and Kamiz wearing. (2) Fire-arm exit wound on right side back size 1 x 1 c.m. burning around the area present. Corresponding holes were present on Bunyan and Kamiz wearing." The patient was in a state of shock and restlessness. The injuries were caused within 5 hours of the examination. On the same day he examined Javaid Baig and found following injuries on his person: -- (1) "Fire-arm entrance wound on lateral side right arm size 1 x 1 c.m. burning around the area was present. Corresponding holes were present on Kamiz wearing. (2) Fire-arm entrance wound on lateral side of right thigh size 1 x 1 c.m. burning around the area was present, corresponding holes were present on Shalwar wearing. (2) Fire-arm exit wound on front of right thigh size 1 x 1; c.m. Corresponding holes were present on Shalwar wearing and underwear wearing." The injuries were caused within 5 hours of the examination. The injuries of the two aforesaid P.Ws. were kept under observation but no result was given subsequently and as such, the injuries will be deemed to be simple. The doctor in cross-examination stated that injuries Nos.l and 2 on the person of Riaz Baig, probably were different wounds.

6. On 28-10-1983 Noorul Hassan S.I., P.W. 14. had picked up 5 crime empties Exh. P.22/i-5 from the place of occurrence and took them into possession vide memo. Exh.P.O. attested by Muhammad Yaseen P.W.11, Mahboob Baig (not produced) and Noor-ul-Hassan, S.I. P.W.14. The appellants were arrested on 11-11-1983. At the time of arrest, Muhammad Ameen, Arshad, Irshad and Abdul Sattar were carrying .12 bore pistols Exh.P.14, live cartridges Exh. P.14/1, .12 bore pistol Exh.P.15 and live cartridge Exh. P.15/1, .12 bore gun No. 86624 Exh. P.16 and two live cartridges Exh. P.17/1-2 and .12 bore gun No. 169480 and two live cartridges Exh. P.19/1-2 respectively which were taken into possession vide Memoranda Exhs. P.D, P.E., P.H and P.J. respectively. The memoranda Exhs. P.D. and P.E were attested by Sharif Baig P.W.6, Anwar Baig (not produced) and Noorul Hassan, S.I., P.W.14. The memoranda Exhs. P.H. and P.J. were attested by Farmaish Baig P.W.8 and Muhammad Saleem Khan (not produced). All the memoranda were prepared by Noorul Hassan S.I., P.W.14. On 11-11-1983 Imanat Khan, acquitted accused produced his licence Exh. P.21 for .12 bore gun No. 86624 allegedly recovered from Irshad alias Shadoo appellant which was taken into possession vide memo Exh. P.K. attested by Farmaish Baig P.W.8, Muhammad Saleem (not produced) and Noorul Hassan S.I. P.W.14. Forensic Science Laboratory report Exh. P.Z/1 reveals that crime empty C.4 was fired from the gun recovered from Irshad alias Shadoo and crime empty C.3 was fired from gun produced by Abdul Sattar appellant.

7. To prove its case, prosecution produced 14 witnesses. Sagheer Baig P.W.10, Muhammad Yaseen P.W.11, Riaz Baig P.W.12 and Javaid Baig P.W.13 have given the ocular account of the occurrence. They supported the prosecution version of the main occurrence in all material particulars. They claim to have seen the appellants and Akbar Khan acquitted accused firing shots from their weapons resulting in the double murder of Abid Masood and Sher Muhammad and injuries to two injured P.Ws. Sharif Baig P.W.6 and Farmaish Baig P.W.8 have supported the recoveries of weapons of offence and licence Exh.P.21 from the appellants and Imanat Khan co-accused. Muhammad Yaseen P.W.11 has stated that crime empties Exh. P.22/1-5 were removed from the place of occurrence. Dr. Saeed Ahmad P.W.7 has proved the post-mortem examination reports of the two deceased. Dr. Captain lluahmmad Anwar P.W.9 has proved the medico-legal reports of the two injured P.Ws. Sagheer Baig P.W.10 has also deposed about the background of the occurrence. The rest of the evidence is more or less of formal nature.

8. When examined under section 342, Cr.P.C. Muhammad Arshad alias Achhu and Abdul Sattar Khan appellants denied all the incriminating circumstances. Muhammad Ameen and Irshad alias Shadoo raised the plea of self-defence. In reply to question No. 5, Muhammad Ameen stated: -- "I have been falsely implicated in this case. In fact, on the morning, the day of occurrence Sadiq Christian the servant of Irshad co-accused had altercation with Yaseen Baig P.W. whereupon a quarrel took place between them and Yaseen Baig was insulted by the servant of Irshad accused, At the time of occurrence, the deceased persons and Riaz Baig and Javaid Baig armed with guns came in front of the Baithak of Sattar my co-accused and on seeing myself and Irshad accused sitting in the Baithak fired at us and we also fired at them in retaliation. The remaining my co-accused were not present at the time of occurrence." Muhammad Irshad alias Shadoo made almost similar statement. In defence Syed Kafayat Hussain Shah appeared as D.W.1. He stated that during his investigation, participation of Akbar Khan, Imanat Khan and Abdul Sattar Khan appellant was found doubtful. He stated that on 13-12-1983, he had visited the spot. Fateh Muhammad, Shafat and Muhammad Umar were produced before him by the accused party and he recorded their statements as eye-witnesses of the occurrence. In cross-examination he stated that there was sufficient evidence against Akbar Khan, Imanat Khan and Abdul Sattar, therefore, they were challaned.

9. The trial Court while giving benefit of doubt acquitted Imanat Khan and Akbar Khan co-accused and believing ocular evidence, incriminating recoveries, medical evidence and disbelieving the defence version of the occurrence given by Muhammad Ameen and Irshad alias Shadoo appellants, has convicted and sentenced the appellants as stated above.

10. Learned counsel for the appellants contended that the eye-witnesses produced by the prosecution are not reliable; that they are not only related to the deceased but are also inimical and partisan witnesses; that Sagheer Baig and Muhammad Yaseen had not seen the occurrence; that Sagheer Baig P.W.10 has partly been disbelieved to the extent of motive; that Javaid Baig P.W.13 has also been partly disbelieved to the extent of Akbar Khan, acquitted accused; that Sagheer Baig P.W. 10 and Muhammad Yaseen P.W.11 have not given cogent reasons for their presence on the spot; that there were discrepancies in the statements of Sagheer Baig and Muhammad Yaseen P.Ws. in that Sagheer Baig P.W. stated that he was in the gate at the time of occurrence whereas Muhammad Yaseen stated that they (the eye-witnesses) were behind the pillar at the time of occurrence and had seen the occurrence from there; that the site plan does not support them; that Sagheer Baig stated that he could not tell the location of the injuries suffered by the deceased and the P.Ws. which shows that he was not present at the time of occurrence; that the medical evidence does not support the ocular evidence; the doctor stated that there were two shots on the person of Riaz Baig P.W.12 whereas the prosecution case is that only one shot was fired on him; that according to the eye-witnesses, all the accused were standing in line when they fired shot out blackening was found on the person of Abid Masood and the P.Ws. whereas na burn or blackening was found on the body of Sher Muhammad deceased; that the eye-witnesses stated that the distance between the deceased and the assailants was 3-4 karams whereas the site plan shows that the distance was 171' feet and in that event there will be no blackening or burning on the dead body of A bid Masood and on the person of the injured P . Ws; that before the statements of the injured P.Ws were recorded under section 161, Cr.P. of their bradari had met them and talked about the occurrence and as such they were bound to support the version given in the F .I . R.; that no independent person was associated with the recoveries of weapons of offence; that Sharif Baig P.W.6 and Farmaish Baig P.W.8 belong to the Bradari of the complainant and that, in the circumstances of the case, there is a reasonable possibility of the defence version disclosed by Muhammad Ameen and Irshad appellants, being true. Conversely, the learned counsel for the complainant not only supported the judgment of the trial Court but also requested for retrial of Akbar Khan and enhancement of the sentence of the appellants other than Muhammad Ameen. He maintained that the eye-witnesses have given a true account of the occurrence; that they could exaggerate number of the assailants but they did not do so and that acquittal of Akbar Khan, in the circumstances of the case, does not adversely affect the testimony of the eye-witnesses and the defence version is totally false. The learned counsel for the State has supported the judgment of the trial Court.

11. We have anxiously attended to the elaborate arguments of the learned counsel for the parties and have considered the entire evidence that has been produced by the prosecution, the statements made by the accused under section 342, Cr.P.C., the statement of defence witness and the circumstances appearing in the case, carefully. We propose to discuss prosecution case first in order to come to conclusion as to the truth or falsity of case and credibility of the prosecution witnesses. We find that the occurrence took place in the light of the day. The appellants were previously known to the eye-witnesses namely Sagheer Baig P.W.10, Muhammad Yaseen P.W.11, Riaz Baig P.W.lt and Javaid Baig P.W.13, therefore, there was no difficulty in the identification of the assailants. Out of the four witnesses Sagheer Baig, Muhammad Yaseen and Javaid Baig are closely related to Abid Masood deceased. Riaz Baig although not related to the complainant but belongs to their brotherhood. The four eye-witnesses are Mughals. The appellants are Rajputs. It has been stated in the F.I.R. as welt as in statement of Sagheer Baig that there was perpetual enmity, between the complainant party and the Rajputs residing in the village., So, the eye-witnesses can be termed as interested witnesses. They claim to have seen the appellants and Akbar Khan, acquitted accuse firing shots resulting in the death of the two deceased and injuries to the two P.Ws. They stated that Abdul Sattar caused fire-arm wounds on front of Abid Masood. Irshad alias Shadoo fired shot which hit Sher Muhammad deceased on his front. Muhammad Ameen, fired shot hitting back of Sher Muhammad. Akbar Khan caused fire-arm injury to Riaz Baig and Arshad appellant fired shot hitting Javaid Baig on his front. Abdul Sattar Khan had also caused fire-arm wound on the leg of Javaid Baig. By the fact of injuries on the person of Riaz Baig and Javaid Baig, their presence on the place of occurrence is very much established. Sagheer Baig and Muhammad Yaseen have given plausible cause of their presence on the spot at the time of occurrence. Sagheer Baig had lodged the F.I.R. after one hour of the occurrence. The name of Muhammad Yaseen is mentioned in the F.I.R. There is nothing in evidence to show that the F.I.R. was no recorded at the time and place as it purports. So, there is no reason to doubt that the four eye-witnesses were present on the place .of occurrence and were in a position to identify .the assailants. The further question which now arises is as to whether their statements should be believed in convicting the appellants without corroboration. We find that Sagheer Baig has virtually been disbelieved to the extent of motive told by him at the trial. The statements of the four witnesses have not been wholly depended upon to the extent of Akbar Khan co-accused and that he has been acquitted for want of corroboration qua him and that admittedly, the relations between the parties were strained and the parties used to oppose each other on each anti every occasion, so the rule of prudence requires that their evidence should not be acted upon qua the appellants without corroboration. Now we proceed to examine as to whether there is any reliable corroboration of the statements of the eye-witnesses qua each appellant. Five empties were recovered from the place of occurrence on 28-10-1983. This recovery is supported by Muhammad Yaseen P.W.12 and Noorul Hassan, S.I. P.W.14. Pistol Exh. P.14, Pistol Exh. P.15. Gun Exh. P.16 and Gun Exh. P.18 were recovered from Muhammad Ameen, Muhammad Arshad alias Achhu, Irshad alias Shadoo and Abdui Sattar Khan appellants respectively. Farmaish Baig P.W.8 and Noorui Hassan, S.I. P.W.14 have deposed about the recovery of the weapons of offence. Muhammad Yaseen P.W.11 and Farmaish Baig P.W.8 havo no direct enmity with the appellants. They are not closely related to the deceased. They do not belong to the complainant party. They have successfully faced the test of cross-examination. Their statements find support from the statement of Noorul-Hassan, S.I. P.W.14 who had no motive to plant recoveries upon the appellants. He could plant recovery of weapon of offence on Akbar co-accused but he did not do so. His statement cannot be rejected because of the office he holds. Forensic Science Laboratory Report shows that the two crimp empties recovered from the spot were fired from gun Exh.P.16 and gun Exh. P.18 recovered from Irshad alias Shadoo and Abdul Sattar appellants. The crime empties were sent to Forensic Science Laboratory on 6-11-1983 whereas the guns were recovered from Irshad and Abdul Sattar appellants on 11-11-1983 and as such there was no occasion for tampering with the guns or the empties. This strong circumstance undoubtedly connects Abdul Sattar and Irshad alias Shadoo with the commission of the crime. We also find corroboration in the shape of admission against Muhammad Ameen appellant. In his statement recorded under section 342, Cr.P.C., he has admitted his participation and firing on the deceased and P.Ws. So we are fully satisfied that while naming Irshad alias Shadoo, Muhammad Ameen and Abdul Sattar Khan appellants as assailants of the two deceased and the injured P.Ws. the eye-witnesses have stated the truth. The statements of the eye-witnesses are in consonance with probabilities and fit in with the circumstances of the case, so far as Muhammad Ameen, Abdul Sattar Khan, Irshad alias Shadoo appellants are concerned. As for Arshad alias Achhu, neither he admitted his participation nor any empty recovered from the place of occurrence matched with pistol recovered from him. His case seems to be at par with the case of Akbar Khan, acquitted accused.

12. Taking up the defence version, we find that the same has not been established through any direct or indirect evidence. Kafayatl Hussain Shah, D.S.P. stated that during investigation he had found participation of Akbar Khan, Imanat Khan (acquitted accused) and Abdul Sattar Khan appellant as doubtful. The finding of D.S.P. is not relevant and binding on the Court. He stated that the accused had, produced Fateh Muhammad, Shafqat and Muhammad Umar before him as eye-witnesses of the occurrence. His finding was probably based on evidence of these witnesses. Strangely enough, the aforesaid three persons have not been produced in defence in the trial Court. Sadiq, servant of Irshad appellant was also not produced. The appellants did not give evidence in disproof of the charges against them, although in the light of the version of occurrence given by them they were the best witnesses of their plea. There is no reasonable possibility of defence version being true. According to the defence version, the two deceased and the two injured witnesses were present in front of the house of Abdul Sattar at the time of occurrence when they were fired at by Muhammad Ameen and Irshad alias Shadoo appellant but no blood was recovered from in front of the house of Abdul Sattar Khan. The blood was recovered from near the house of Fattu as stated by the Investigating Officer. The absence of injuries on the person of Muhammad Ameen and Irshad alias Shadoo, negates the existence of right of self-defence of person and also falsifies the story told by them. Had the four persons namely the two deceased and the two eye-witnesses come armed and opened attack then the two appellants namely Irshad and Muhammad Ameen could not escape unhurt. The defence version is not spelt out from prosecution case or surrounding circumstances. For all these reasons, we are convinced that the occurrence took place in the manner as stated by the prosecution and not in the manner as told by the two appellants namely Muhammad Ameen and Irshad alias Shadoo and that there is also no reasonable possibility of the defence version being true. We feel that the prosecution has proved its case against Irshad alias Shadoo, Muhammad Ameen and Abdul Sattar Khan appellant beyond reasonable doubt. Since there is no corroboration of the statement of the eye-witnesses qua Arshad alias Achhu appellant, therefore, his case is bit different and he is entitled to benefit of doubt.

13. This brings us to the question of sentence of Muhammad Ameen appellant. Vile have considered this question with utmost care on our part. He has been sentenced to death for the murder of Sher Muhammad. We find that there are mitigating/ extenuating circumstances in his favour for lesser penalty. The motive for crime alleged by the prosecution has been disbelieved by the trial Court; that Abdul Satta Khan co-accused who has caused the death of Abid Masood deceased, has not been sentenced to death; that Irshad alias Shadoo who fired shot hitting on the front of the chest of Sher Muhammad has also been awarded lesser penalty and that, in the circumstances of the case, we do not desire to enhance the sentence of imprisonment for life given to Abdul Sattar and Irshad alias Shadoo.

14. As a consequence of the above discussion Muhammad Arshad alias Achhu appellant is acquitted of the charges. He is on bail and stands discharged of the bail bonds. The convictions and sentences of Irshad alias Shadoo and Abdul Sattar Khan appellants under section 302/307/34, P.P.C. are maintained and the appeal to their extent is dismissed in toto. The conviction of Muhammad Ameen appellant under section 302, P.P.C. is maintained but the sentence is altered to imprisonment for life. The fine imposed by the trial Court under, section 302/34 and 307/34, P.P.C. and direction for the payment to fine to the legal heirs of the deceased are maintained. The sentences will run concurrently. The appellants will get benefit of the provisions of section 382-B, Cr.P.C. The connected revision automatically fails. Death sentence is not confirmed. M.Y.H./A-318/L Appeal partly allowed.