1994 P Cr (PLP)

The Investigating Officer arrested Riaz, Saeed, Ameen and Ayub on 4-8-1992, whereas Irshad was arrested on 10-8-1992 from Bus-stand Rasoolpur. At the time of apprehension, he was holding gun P.4, which was taken into possession vide memo. Exh.P.D. On 10-8-1992, Riaz appellant got recovered .12 bore gun P.5 from his residential house, which was taken into possession vide memo. Exh.P.E. Ayub appellant got recovered .12 bore gun P.6 from an iron chest, which was taken into possession vide memo. Exh.P.F. Ameen appellant got recovered rifle P.7 from an iron chest of his residential house vide memo. Exh.P.G. Saeed appellant got recovered .12 bore gun P.8 which was taken into possession vide memo. Exh.P.H. The recovery of gun from Irshad appellant was witnessed by Muhammad Ismail P.W.7, whereas the recoveries of crime weapons from Riaz, Ayub, Saeed and Ameen appellants were witnessed by Falak Sher P.W.8. Sealed parcels of four empties of .12 bore gun and a .7 mm rifle were deposited in the office of the Forensic Science Laboratory, Lahore, on 26-7-1992, by Munir Ahmad F.C. (P.W.3). Similarly, four sealed parcels containing .12 bore guns and one sealed parcel containing .7 mm rifle, were deposited in the office of the Forensic Science Laboratory, Lahore, on 15-8-1992. The report Exh.P.GG of Forensic Science Laboratory, is positive. The Investigating Officer also got prepared site plans Exh.P.C. and Exh.P.C./1 by Mazhar Hussain, Draftsman (P.WS). After completing legal formalities, Khizar Hayat, S.I. submitted the challan in the Court.

5. Dr. Muhammad Ramzan Khan (P.W.10) conducted the post-mortem examination on the dead body of Mumtaz Hussain on 15-7-1992 at 2-00 n.m. and found the following injuries thereon:-- (1) A lacerated wound on top of head, 1 c.m. x 1/2 c.m. skin deep, 12 c.m. above the left ear. (2) A lacerated wound at the junction of left ear and head at the upper portion of ear, 3 c.m. x 1/2 c.m. skin deep. (3) A lacerated wound on the right axillary region, 5 c.m. below and behind the armpit, 1 c.m. x 1/2 c.m., margins were everted. It was an entry wound of fire-arm. (4) A lacerated wound, 10 c.m. below and behind injury No.3, 1 c.m. x c.m., margins were everted. Injuries Nos.l and I2 were caused by blunt weapon. Injuries Nos.3 and 4 damaged the muscles of right side of chest, right lung and perforated the heart. Both these injuries were by a single fire. On dissection, the doctor found an abrasion, 4 c.m. x 4 c.m. on left shoulder top, a contusion with swelling on right foot on dorsal surface, 5 c.m. x 4 cm., 6 c.m. distal to ankle joint and a contusion with swelling on left foot on dorsal surface, 4 c.m. x 4 c.m., 7 c.m. distal to ankle joint. These injuries were with a blunt t weapon. The doctor opined that all the injuries were ante-mortem and death in his opinion occurred due to shock and haemorrhage as a result of injuries Nos.3 and 4, which were sufficient to cause death in the ordinary course of nature.

6. The same doctor also medically examined Sarwar P.W. the same day at 7-00 p.m. He noticed on his person a lacerated wound on left knee joint on inner side in the mid area, 1 c.m. x 1/2 c.m. joint deep. Margins were everted and a lacerated wound on left index finger, 4 c.m. x 1/2 c.m. skin deep, margins everted. Both the injuries were caused by fire-arm. The same doctor also medically examined Bashu P.W. and found on his person, a lacerated wound on right upper thigh, 1 c.m. x 1/2 c.m. muscle, on outer surface, a lacerated wound on left knee joint on inner surface in the middle of joint, 1 c.m. x 1/2 c.m. Both these injuries were entry wounds of fire arm. He also noticed a lacerated wound on the backside of left knee joint, 1 c.m. x 1/2 c.m. It was an exit wound of injury No.2. All the injuries were found simple and were caused by fire-arm within 24 hours.

7. The appellants when examined under section 342, Cr.P.C. denied the prosecution allegations, they professed innocence and Riaz made the following statement in answer to question `Why this case against you? :-- "I was helping Jinda in the civil litigation against Master Mahmood who was helped by the deceased. After the decision of the Civil Court, I and Jinda took the possession of the land. Mahmood brought a number of persons in the High School to take possession of the suit land. Before sun rise they tried to take possession of the land of Jinda and in the cross-firing Mumtaz Hussain was killed and Bashir and Sarwar were injured. I had not fired at all. I had gone to the police station to inform the police about the assembly of the helpers of Master Mahmood in the High School. Riaz appellant tendered in evidence F.I.R. No.26, Exh.D.E., copy of F.I.R. No.117, Exh.D.F., copy of F.I.R. No.148, Exh.D.G. The remaining appellants adhered to the statement of Riaz appellant and the documents produced by him. However, Ayub additionally produced his school leaving certificate Ex D.H. showing his date of birth as 4-4-1977.

8. The learned trial Judge believing the prosecution evidence convicted the appellants and gave them the sentences as indicated above.

9. The learned counsel for the appellants contended that the occurrence took place at dawn time, when none of the eye-witnesses was present. In fact, it was an un-witnessed crime and the eye-witnesses were later on imported from the village and thereafter the case was registered. He further contended that the F.I.R. was recorded by the police after preliminary investigation hence no sanctity can be attached to this dubious document. He also urged that the eye witnesses are either the close relations or partisan of the complainant party. Mian Mahboob Ali complainant (P.W.11) is the father of the deceased, whereas Sarwar P.W.13 is the servant of the deceased. Bashir injured P.W.12 is the nephew of Master Mahmood, whose interest the deceased used to look after in the civil litigation pending between Master Mahmood and Riaz appellant, which is the motive in this case. The ocular version given by the eye witnesses is against the medical evidence. Mian Mahboob Ali complainant P.W.11, Bashir P.W.12 and Muhammad Hanif P.W.14 are the chance witnesses of the occurrence, because they have failed to furnish any reasonable explanation for their presence at the spot. The recoveries of crime weapons, though effected from the appellants, were not witnessed by independent witnesses, hence no reliance can be placed on these recoveries. In the end, learned counsel submitted that it is a case of two versions, one version has been put forth by the defence and the other by the prosecution, but unfortunately, the learned Judge has not given proper consideration to the defence version, so the impugned judgment has resulted in miscarriage of justice and it should be set aside.

10. The learned counsel for the State has supported the impugned judgment.

11. Admittedly, in the present case, the F.I.R. was lodged with great promptitude, the occurrence took place at 6-15 a.m. whereas the F.I.R. was lodged at 7-00 a.m. at Police Station Gaggo, which is at a distance of nine miles from the place of occurrence. The names of all the eye-witnesses are mentioned in the F.I.R. and all the appellants are nominated therein. Neither any suggestion was put to the Investigating Officer, nor there is an iota of evidence available on the record to justify this submission of the learned counsel for the appellants that the F.I.R. was recorded after preliminary investigation or it is a fabricated document, in which the time has not been properly given. The presence of Bashir and Sarwar P.Ws. at the scene cannot be disputed, because they bore the stamp of injuries on their persons. Even the defence has not seriously objected to their presence, though they have taken up a different plea that they received the injuries during the cross-firing which was coming from the nearby house, when the complainant party wanted to take forcible possession of the disputed land. The medical evidence supports the prosecution version, because he injury received by the deceased is on the same part of the body of the deceased which has been mentioned by the complainant, i.e. armpit. Even pellets were recovered from that injury, which further proves that the complainant witnessed the crime. The other eye witnesses have also given very plausible and reasonable explanation for their presence at the scene, and in the absence of any enmity, we do not find any legal justification to discard their straightforward and confidence inspiring S evidence, which could not be even shattered in spite of lengthy cross examination by the defence. The ocular version is being corroborated by the recoveries of four crime empties of .12 bore guns and two bullets of 7 mm rifle from the spot by the Investigating Officer when he visited the spot and all these crime empties found wedded with the crime weapons recovered from the possession of the appellants. The learned defence counsel has feebly contended that the recovery witnesses, namely, Muhammad Ismail P.W.7 and Falak Sher P.W.8 are chance witnesses as well as partisan of the complainant party. We are afraid, this contention of the learned counsel is untenable, because, both these recovery witnesses have given very straightforward version of the recoveries, which were effected in their presence. Over and above this, the crime empties were recovered from the spot on 15-7-1992, when the Investigating Officer, Muhammad Hussain S.I. (P.W.17) inspected the spot after recording the F.I.R. and were deposited in the F.S. Laboratory on 26-7-1992 whereas the crime weapons were recovered from the appellants on 10-8-1992 and were delivered in the office of the Forensic Science Laboratory on 15-8-1992. This fact, by itself, is sufficient to eliminate the possibility of fabrication of evidence against the appellants and is a strong circumstance in favour of the prosecution and as such, establishes the prosecution case beyond reasonable doubt.

12. The motive has been admitted by Riaz appellant himself, which has been deposed to by Mian Mahboob Ali P.W.11 and Bashir Ahmad P.W.12. According to the F.I.R. there was dispute, between Jinda and Master Mahmood regarding sale of eight acres of land, which was purchased by Master Mahmood from Jinda. The deceased used to help Master Mahmood, whereas Riaz appellant used to help Jinda from whom he had purchased the land after the completion of sale, between Jinda and Master Mahmood and with respect to this land civil litigation was pending. Due to this litigation, Riaz it appellant had grudge against the deceased.

13. The salutary principle for the just decision of the case of two versions is that both the versions are put in juxtaposition and then the Court has to see which version is more probable and nearer to truth, keeping in view the circumstantial and direct evidence in the case, of course, with this exception i hat onus of proof always remains on the prosecution. Applying the above cardinal principle of law to the facts of the present case, we find that the defence is a mere concoction, preposterous and false, because no crime-empty was found from the School, from where the shots were allegedly fired. Even no question was put to the doctor regarding the direction of the fire-shots received by the deceased or the injured P.Ws. The recovery of crime-empties from the place of murder of the deceased and that from the places where the two eye witnesses received injuries further negates the defence version. The occurrence took place on the metalled road, which is far-off from the land, which is the subject-matter of dispute between Jinda and Master Mahmood. In the circumstances, the learned trial Judge rightly discarded this belated and IE false defence plea.

14. The upshot of the above discussion is that we find no force in this appeal and the same is accordingly dismissed.

15. We have given our anxious consideration to this aspect of the case whether the sentence of death imposed upon Riaz appellant needs any consideration or not. We find, there is no mitigating circumstance in favour Riaz appellant, because he committed the gruesome murder of an educated young boy of 24/25 years of age, without any legal justification; hence he does not deserve any leniency in the quantum of sentence as well. N.H.Q./118/SAC Appeal dismissed.