P L D 1977 Supreme Court 508 (PLP)

MUHAMMAD AFZAL CHEEMA. J --Noor Muhammad petitioner herein and Riaz his cousin (Khalazad) were tried by the learned Sessions Judge. Campbellpur, for the murder of one Lai Zamurad allegedly committed lay them in village Kot Fatah Khan in front of the hotel of one Mohr Khan, on 10-9-1974 at peshiwela, 12 miles from Fatah Jang Police Station of Campbellpur District. The conviction was recorded under section 304, Put I read with section 34, P. P. C. and both were sentence to ton years' R.1. and a fine of Rs 3,000 each or in default of payment thereof two years' R. I. each. In appeal a learned Judge of the Lahore High Court acquitted Riaz but maintained the conviction and sentence of the petitioner, ride judgment dated 21 21977 from which leave to appeal is sought herein. The parties had a background of blood-feud and about three years prior to the occurrence, Sher Gul father of the petitioner was murdered by Lal Zamurad deceased in the instant case and five others. On conviction, the deceased was sentenced to seven years' R. I. and at tile time of the present murder, was released on parole. According to the initial report lodged by Ghulam Khan (P. W. 9) a cousin of the mother of Lal Zamurad deceased, on 10-9-1974 the deceased visited his Dhok in the forenoon. He then proceeded to Kot Patch Khan accompanied by Ghulam Khan (P. W. 9) aforesaid and Mir Aslam (P. W. 11) son of his paternal aunt. As the three arrived in front of the hotel of Mohr Khan. Lai Zamurad sat on the ground, Mir Aslam was standing close by while Ghulam Khan started tethering his she-ass which he had brought for carrying home ell cake and other articles. Suddenly the petitioner armed with a revolver and his co-accused Riaz with a chhuri appeared at the scene. The petitioner challenged the deceased that he would not be spared and effectively fired two shots in succession at him who fell down, got up and again dropped. Riaz rushed forward and gave him two chhuri blows in the abdomen and the left flank. Besides Ghulam Khan and Muhammad Aslam, the occurrence was witnessed by Ahmad Din (P. W. 10) who was held to be an independent witness. Lal Zamurad died at the spot and leaving his dead body in the custody of Mir Aslam and others Ghulam Khan repaired to the Police Station and lodged the F. I. R. at 5 p.m. with Muhammad Arshad, Sub-Inspector (P. W. 12). The two accused were not arrested till 19-9-1974. Ten days later, on 29-9-1974 the petitioner led to the recovery of revolver P. 1 as the weapon of offence while acquitted accused Riaz produced a blood-stained chhuri at the time of his arrest of which the blood was traced to human origin. Post-mortem examination revealed four injuries on the person of the deceased of which Injuries Nos. 1 and 2 were stab wounds on the left side of the chest and the right side of abdomen respectively, while Injury No. 3 was a circular wound on the xiphoid process with burns around it and injury No. 4, a crusted wound with burns on the front of the chest. A bullet was found under injury No.

3. Death had occurred on account of sharp weapon injuries 1 and 2 due to shock and hemorrhage, which were sufficient to cause death in the ordinary course of nature. At the trial, the prosecution case rested on the ocular testimony of Ghulam Khan (P. W. 9), Ahmad Din (P. W. 10) and Mir Aslam (P. W. 11), the medical evidence indicating the use of fire-arm and a sharp-edged weapon, the evidence of recoveries and that of motive. The case of Riaz was one of denial simpliciter, absence from the spot and ignorance of the occurrence. Noor Muhammad petitioner, however, admitted the previous background of blood-feud, denied the presence of Riaz and took up a definite position. His plea was that shortly before noon, he accompanied by 5/7 other persons was going to see the annual fair of Sain Hazir in Kot katch Khan, when the deceased suddenly emerging from the hotel of Mehr Khan fired at them. On account of the fair, there were many people in the street and the shot fired by the deceased accidentally hit a youngster Mohr Khan son of Sultan Muhammad of their village. There was a commotion and taking shelter behind a wall, he ran away from the spot. The youngster Mohr Khan who sustained a fire arm injury whose duration according to the medical evidence synchronised with that of the injuries of the deceased was examined in defence. He stated that he was hit by a shot fired by Lal Zamurad deceased after which a general class ensued leading to a turmoil. Shortly thereafter, he found Lal Zamurad deceased lying dead. He himself was removed by his relatives to Civil Hospital, Fateh Lang and then brought to District Head quarters Hospital, Campbellpur for examination and treatment. He also denied the presence of the two accused and the P. Ws. at the spot and denied the suggestion that he was hit by the shot fired by Noor Muhammad petitioner or that he was giving false evidence at the instance of the accused. The learned trial Judge rejected the evidence of the recoveries. The view taken by him was that the accused could not have possibly learnt about the sudden and undisclosed visit of the deceased to Kot Fateh Khan on the fateful day so as to come prepared to wreak vengeance, that there was an unexplained delay in the lodging of the report, that the non-recovery of blood from the spot by the Police militated against the credibility of Ghulam Khan (P. W.) who asserted the presence of blood, and that the failure of the prosecution to explain the fire-arm injury sustained by Mehr Khan (D. W.) gave a lie to the prosecution case. In the ultimate analysis, he came to the conclusion that the occurrence had not taken place in the manner alleged, that it was a case of sudden confrontation between the parties in the street on the day of the fair of Sain Hazir leading to a clash which resulted in the death of Lal Zamurad and an accident injury to Mehr Khan (D. W.). In this view of the matter, he convicted both the accused under section 304, part I read with section 34, P. P. C. In appeal, on re-appraisal of the evidence, it was held by the learned Judge in the High Court that the three eye-witnesses were present at the spot of whom Ahmad Din was disinterested and mete relationship of the other two with the deceased a a9 not good enough to justify the rejection of their testimony and to that extent the trial Judge was found to be in error. However, as a matter of abundant caution, the learned Judge looked for independent corroboration of ocular testimony which was furnished in the case of Noor Muhammad by the existence of a strong motive and the evidence of recovery of revolver at his instance which was also found to be established by the statement of Abdullah Khan (P. W. 8) an independent witness and Muhammad Irshad, Sub-Inspector (P. W. 12). The recovery of the chhuri from the possession of Riaz accused at the time of his arrest was, however, found to be doubtful as he could not be expected to have carried it all along for ten days before he was arrested. Furthermore, no witness from the public was examined in support of that recovery which was denied by him. He was accordingly found entitled to benefit of doubt. In support of the petition for leave to appeal, learned counsel contended before us ;firstly, that the trial Judge who had the advantage of seeing the demeanour of the eye-witnesses had disbelieved all the three of them and that his assessment which was normally entitled to considerable weight should not have been completely ignored by the trial Judge in the High Court and secondly, that the two fatal injuries sustained by the deceased were sharp weapon injuries attributed to Riaz the acquitted accused and for that reason also the petitioner could not be treated differently and was equally entitled to benefit of doubt particularly when the prosecution failed to give a satisfactory explanation of the fire-arm injury suffered by Mehr Khan (D. W.) in the course of the occurrence. Having considered these contentions, we have not been able to fired much substance in them. In the first instance we are not impressed by the grounds of discrimination spelt out by the learned Judge in the High Court in favour of Riaz accused finding him entitled to benefit of doubt He was! admittedly a first cousin (Khalazad) of Noor Muhammad petitioner and therefore, shared the motive for avenging the murder of the latter's father. A Again the use of two types of weapons as clearly established by medical evidence left one in no manner of doubt that there were two assailants as alleged by the prosecution. It was a case of broad daylight occurrence and there could be hardly any question of mistaken identity nor for the matter of that of false substitution which is a very rare phenomena indeed. In the circumstances, therefore, the use of chhuri as attributed to Riaz stood established by medical evidence. His sharing of motive else lent support to the ocular testimony of the three eye-witnesses including Ahmad Din who bad no enmity with the accused. Even on the view taken by the Courts below that it was a case under section 304, Part I, P. P. C. the acquittal of accused Riaz was wholly unwarranted. Since, however, there is no petition before us challenging his acquittal, that seems to be the end of the g matter in so far as his case is concerned. But his acquittal on untenable ground would hardly furnish any justification to re-examine the case of the petitioner who on the basis of the concurrent assessment of the Courts below was found guilty under section 304, Part 1, P. P. C. though tried on charge of murder. There being no State appeal against the acquittal of the petitioner from charge of murder or a revision for enhancement of sentence. Although the learned counsel did not place on record the statement of the witnesses, yet from the perusal of the judgments, the impression gathered by us is that Mehr Khan was accidentally bit and having been successfully tackled by the accused had gone out of the way to demolish the case of the prosecution. Having come to the conclusion that the acquittal of Riaz was unjustified, we find no substance in the contention raised by the learned counsel that as the fire-arm injuries attributed to the petitioner did not prove fatal, his case stood on a better footing or he was equally entitled to benefit of doubt. Once the community of intention to murder stands established, the question of the fatality of p injuries would be wholly irrelevant. Where the interest of justice is at variance with consideration of consistency, the former must prevail and merely on that pretext we would not repeat the mistake committed by the a High Court, as two wrongs would not make one right. In short, there is no force in this petition which is hereby dismissed. S. A. H. Petition dismissed.