1988 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.--This Criminal Appeal No.356 of 1983, connected Murder Reference No.142 of 1983 and Criminal Appeal No.19-J of 1987, arise from the judgment of the learned- Additional Sessions Judge, Gujranwala, whereby he on 26-5-1983 and 25-3-1987 convicted Nasrullah appellant in Criminal Appeal No.356 of 1983 and Ismail alias Seelu appellant in Criminal Appeal No. 19-J of 1987 under section 302/34, P.P.C. for the murder of Shaukat Ali (20/21) and under section 307, P.P.C. for murderous assault on Muhammad Irshad P.W. and sentenced them as under: -- (1) Nasrullah appellant Under section 302, P.P.C. Death and a fine of Rs.3,000 in default thereof two years, R.I. ,,.s ,,., Under section 307, P.P.C. 5 `A,;':;,`;~ years' R.I. and a fine of .;_,y ,a,,:., Rs.1,000, in default thereof six months' R.I. (2) Ismail appellant Under section 302 P. P. C. Imprisonment for life and a fine of Rs.3000, in default thereof one year's R.I. Under section 307, P.P.C. 4 years' R. I. and a fine of Rs.1,000, in default thereof one year's R.I. The sentences were ordered to run concurrently. It was directed that the fine imposed under section 302, P.P. C if recovered be paid to the legal heirs of the deceased. We propose to dispose of the three matters through single judgment.

2. The occurrence took place on 9-3-1981 at 9/10 a.m. in the area of village Machhi Goraya at a distance of nine miles from the Police Station Saddar Gujranwala. The F,I.R. Ex.PA is statement of Muhammad Irshad PW.11 brother of the deceased which was recorded on the same day at 12-00 noon in Ferozewala one mile away from the place of occurrence, by Iqbal Akbar S.I. PW.15. The Formal F.I.R. Ex.PA/1 was drawn up by Muhammad Fazal PW.1 on the same day at 12-40 p.m.

3. The appellants and Ismail co-accused are stated to be friends. The background of the occurrence was that two families of Quadianis, one headed by Innyat father of the appellants and the other headed by Muhammad Khan were living in village Machhi Ke Goraya. About six years before the occurrence, Nasarullah father of the deceased and other inhabitants of the village asked Quadianis to give up their faith. Muhammad Khan obliged them but Inayat father of the appellant was not prepared to abandon his faith. On this Imam of the village mosque asked Inayat and his family, on loud speaker to give up Quadianism and become Muslim. In retaliation, Inayat and his sons gave beating to the Imam of mosque whereupon the latter lodged report with police against the former. Thereafter on the day of Eid-ul-Azhah Inayat and his sons opened fire in front of the Haveli of Nasarullah father of the deceased. This led to a fight in which Zafarullah nephew of Inayat was murdered. A case under section 302, P.P.C. was registered against Nasarullah father of the deceased and his sons. The accused in that case were convicted and sentenced to imprisonment for life. About five years after the murder of Zafarullah, Inayat and his sons lqbal and Ashraf, Irshad and their maternal uncle Ghulam, trespassed into the house of the grandfather of the complainant and killed Abdullah, his sons Zaka and Ameen. Inayat and others then entered in the house of Nasarullah father of the deceased and murdered Manzoor. So, a case under section 302/49, P.P.C. was registered against Inayat and others. That case was pending when the present occurrence took place.

4. As far the main occurrence, it has been stated that at the eventful time, Muhammad Irshad complainant PW.11 and Shaukat deceased were present in their Haveli when Nasarullah and Ismail appellants armed with guns came in front of the door of the Haveli. Ismail fired from his gun at Muhammad Irshad complainant hitting him on tile left upper arm. Nasarullah fired shot hitting Shaukat Ali deceased. Muhammad Irshad complainant and Shaukat Ali then scaled over the wall of the Haveli and started running. The appellants came out of the Haveli, followed them and fired at them which hit the deceased. Muhammad Irshad complainant succeeded in entering his house. Shaukat deceased expired on the spot. The occurrence was seen by Muhammad Irshad P.W.11, Muhammad Azhar P.W.12, Mst. Fatima Bibi and others. The appellants made good their escape.

5. On 10-3-1981 at 12-30 p. m. Dr. Harbans LalP.W.7 conducted post-mortem examination on the dead body of Shaukat Ali. He found seven in-let wounds and two exit wounds on the different parts of the body which were caused by fire-arm. On internal examination, several organs were found injured. In his opinion, the death was due to shock and bleeding as a result of the injuries found on the person of the deceased which were sufficient to cause death in the ordinary course of nature individually as well as collectively. The time between the injuries and the death was instantaneous and between the death and the post-mortem was 20-27 hours.

6. On 9-3-1981 Iqbal Akbar Inspector P.W.15 lifted four crime empties from the place of occurrence and took them into possession vide memo. P.H. attested by Muhammad Azhar P.W.12 and Muhammad Asif (not produced). He took one crime empty P.I. from the Haveli of Nasarullah father of the deceased vide memo. Ex.P.J. attested by the same witnesses. He recovered five empties from the Haveli of one Sharif which were taken into possession vide memo. Ex.P.K. attested by the same witnesses.

7. Nasarullah appellant was arrested on 16-9-1$81 by Muhammad Ashraf A.S.I. P.W.14. At the time of his arrest, he was carrying gun Ex.P.2 which was taken into possession vide Memo. Exh.P.F. attested by Nasarullah P.W.9 and Mukhtar (not produced) and Muhammad Ashraf A.S.I. P.W.14. It may be noted that the crime empties and guns were not sent to the Forensic Science Laboratory and as such the aforesaid recoveries are of no consequence.

8. Nasarullah and Ismail alias Sallu appellants were tried separately. In the trial of Nasarullah, the prosecution produced as many as 15 witnesses. Muhammad Irshad P.W.11 and Muhammad Azhar P.W.12 gave the ocular account of the occurrence. They claimed to have seen the appellants firing shots hitting Shaukat Ali and Muhammad Irshad complainant P.W.11 resulting in the death of Shaukat Ali and injuries to the complainant. They also told the background of the occurrence. Muhammad Azhar P.W.12 and lqbal Akbar Inspector P.W.15 supported the recoveries of the crime empties. Nasarullah Khan P.W.9 and Muhammad Ashraf A.S.I. P.W.14 have stated that gun Ex. P.2 was recovered from Nasarullah appellant. Dr. Harbans Lal has proved the post-mortem report of Shaukat Ali deceased. Dr. Nazir Ahmad P.W.13 stated that he had medically examined Muhammad Irshad complainant run 3-9-1981 and had found one fire-arm wound on the back of left upper arm with exit wound on the front of the wound of entry and that the injury was simple in nature, caused within ten hours of the examination. He has proved the medico-legal report of Muhammad Irshad complainant. Munawar Hussain F.C. P.W.10 has proved the absconsion of Nasarullah and the proceedings initiated against him under sections 87 and 88, Cr.P.C.

9. In the trial of Ismail appellant, the prosecution examined 14 witnesses. Muhammad Irshad appeared as P.W.7 and Muhammad Azhar was examined as P.W.8. They stated that the two appellants armed with guns had launched attack on the complainant and Shaukat Ali had fired shots resulting in the death of Shaukat Ali and injuries to Muhammad Irshad complainant. Munawar Hussain F.C. appeared as P.W.5. He proved the absconsion of Ismail appellant and proceedings initiated against him under sections 87 and 88, Cr.P.C. Dr. Nazir Ahmad P.W.1 proved the medico-legal report of Muhammad Irshad complainant. Dr. Harbans Lal proved the post-mortem examination report of Shaukat Ali. Iqbal Akbar Inspector P.W.9 appeared as P.W.14. The rest of the evidence is more or less of formal nature.

10. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. They raised plea of false implication on account of enmity. They did not produce any witness in defence.

11. The trial Court while believing the ocular evidence, motive and medical evidence has convicted and sentenced the appellant as stated above.

12. Learned counsel for Nasarullah appellant contended that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as the two eye-witnesses namely Muhammad Irshad and Muhammad Azhar are the real brothers of the decease; that their relations were strained with the appellants because in the murder case of ZafaruUah, a cousin of Nasarullah appellant, Muhammad Azhar P.W.12, his father Nasarullah and his brother Ajmal were accused and in the murder case of Abdullah brother of the grandfather of Shaukat Ali deceased and others, Inayat Ullah father of the appellant and Muhammad Ashraf brother of the appellant were the accused; that the statements made by the eye-witnesses are in conflict with the medical evidence and the site plan, in that, the medical evidence shows that the deceased was fired at from close whereas the site plan indicates that the shots were fired by the appellants from a distance of 40 to 60 feet; that the injuries of Muhammad Irshad P.W. are self suffered; that there is a delay in the medical examination of the complainant; that there is delay of 24 hours in the post-mortem examination; that the statements made by the two eye-witnesses are inconsistent because Muhammad Azhar stated that the appellants had come to the spot again after the occurrence and had fired in the air whereas Muhammad Irshad has not stated so. In the alternative, the learned counsel requested for reduction in sentence. Since Muhammad Ismail has filed appeal through jail and was not represented by his counsel, so we have examined his case with the assistance of the learned counsel for the State who supported the judgment of the learned trial Court.

13. We have anxiously attended to the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statements of the appellants recorded under section 342, Cr.P.C. and the circumstances appearing in the case carefully. We find that it is case of promptly lodged F.I.R. which contains the names of the appellants, weapons carried by them at the time of occurrence, the names of the eye-witnesses and the manner in which the occurrence took place. The F. I. R. was recorded after two hours of the occurrence. There is nothing in evidence to show that statement Ex.P.A of Muhammad Irshad was not recorded at the time and place as it purports or that it was recorded after preliminary investigation. The promptitude with which the F.I.-R was recorded excludes the chances of deliberations/ consultations and procurement of false witnesses. So, statement of Ex. P. A. can be used in aid of the statement of its maker , name) Muhammad Irshad complainant.

14. Taking up the ocular testimony furnished by Muhammad Irshad and Muhammad Azhar P.Ws. we find that they are absolutely dependable) witnesses. No doubt they are real brothers of the deceased but their statements cannot be discarded on the ground of this relationship. By the fact of injuries on the person of Muhammad Irshad P.W., his presence at the time of occurrence is very much established. The nature of the injury and the kind of the weapon, which caused the same, excludes the possibility of the injuries being self-suffered. The name of Muhammad Azhar P.W. is mentioned in the promptly lodged F. I. R. The witnesses have successfully faced the test of cross-examination. The greatest engine invented for the discovery of truth could not elicit any falsehood in their statements. The integrity and the veracity of the two eye-witnesses remains unimpeached. The occurrence took place in the light of the day. The appellants were previously known to the eye-witnesses. There is no reason to doubt that the witnesses were in fact present at the time of occurrence and were in position to identify the offenders. The statements of the eye-witnesses are in consonance with the probabilities and fit in with the rest of the evidence. In view of the back ground of the occurrence. Nasarullah appellant was the person who was expected to launch attack on the deceased and the complainant. Muhammad Ismail was his friend. The statements of the eye-witnesses do not suffer from infirmities such as material contradictions, major discrepancies or dishonest improvements. We do not see any noticeable conflict in the ocular and medical evidence. Muhammad Irshad P.W.11 has stated that Muhammad Ismail had fired from 3/4 feet and the distance between Nasarullah appellant and Shaukat Ali deceased at the time of firing was four feet. No doubt the parties were involved in criminal cases litigation and in the murder case of Zafarullah cousin of the appellant, Muhammad Azhar P.W.12 and his father Nasarullh were accused in the murder case of Abdullah brother of grandfather of Shaukat Alit deceased, Inayat Ullah father of the appellant and Muhammad Ashraf. brother of Nasarullah appellant were accused yet there cannot be an; inflexible rule that statement of an interested witness can never be accepted without corroboration. Each case has to be decided on it own facts. In the present case, we have found the two eye-witnesses to be wholly dependable. We have very much been impressed by the straightforward manner in which the two eye-witnesses have named! Ismail, a friend of Nasarullah although they could easily involve and implicate close relatives of Nasarullah appellant,, yet they did not do so. We feel that the evidence of the two eye-witnesses can safely be acted upon in convicting the appellants without corroboration. In case the rule of prudence insists upon some corroboration, the same is amply available in the shape of un-impeachable circumstance on abscondence of the appellants. The occurrence took place on 9-3-1981 Nasarullah appellant was arrested on 16-9-1981 i.e. after more than six months. Similarly, Ismail alias Sallu remained absconder for long time. Munawar Hussain F.C. P.W. has proved proceedings under sections 87/88, Cr.P.C. initiated against them. The appellants have not given any plausible explanation of their disappearance after the occurrence. So, we are fully satisfied that while naming the two appellants as assailants of the deceased and complainant, the two eye-witnesses have spoken nothing but truth. There is no inordinate delay in the medical examination of the complainant. There is no evidence to show that the time between the death and the post-mortem examination was spent in consultation and deliberation. The arguments of the learned counsel for the appellant are devoid of force and, substances. The learned trial Court has appreciated the evidence properly and carefully. For all these reasons, we are convinced that the appellants have rightly been convicted for the murder of Shaukat Ali and murderous assault on Muhammad Irshad P.W.11.

15. This brings us to the question of sentence of Nasarullah appellant. Since there is a wide difference between life and death so we have considered this question with utmost care on our part. We find that Muhammad Ismail co-accused who had also fired one of the fatal shots on the deceased has been awarded imprisonment for life. Neither the State nor the complainant has filed any revision for the enhancement of his sentence and as such it would be in accordance with the rule of consistency that the two appellants should be treated at par in the matter of sentence. As a consequence of the above discussion, the conviction of the appellants recorded by the trial Court under section 302/34, P.P.C. for the murder of Shaukat Ali and under section 307, P.P.C. for murderous assault on Muhammad Irshad P.W. are upheld. The sentence of death of Nasarullah is however altered to imprisonment for life. The fine awarded by the trial Court, the sentence in lieu thereof and direction for payment of fine to the legal heirs of the deceased are maintained. M. Y. H./ N-114/ L Appeal partly allowed.