1984 P Cr (PLP)

Ghulam Mujaddid Mirza, .J-- Muhammad Akram alongwith five others was tried by the Additional Sessions Judge, Gujrat, for the murder of Muhammad Raiz and attempt to murder Muhammad Ashraf. The trial Judge, by judgment dated 29th March,1980 acquitted Muhammad lqbal, Muhammad Sharif, and Ghulam Mohyud Din. Muhammad Akram and Muhammad Yaqub were convicted under section 302 read with section 34, P.P.C. The former was sentenced to death while the latter to imprisonment for life. They were fined Rs.3,000 each, or, in default to undergo one year R.I. Both were directed to pay Rs.3,000 each to the heirs of the deceased as compensation. Ghulam Sarwar absconded during trial. The convicts have applied to this Court. The complainant has filed a revision (Crl. Revision 625/80) against the acquittal of Muhammad Sharif, Muhammad lqbal and Ghulam Mohyud Din and for enhancement of Muhammad Yaqub's sentence. Reference for confirmation of death sentence of Muhammad Akram is also before us. All these matters shall be decided by this judgment. According to the report (Exh. P.H) lodged by Muhammad Nawaz on 28th June, 1975 at Police Station Kharian, his real brother Muhammad Riaz was shot dead by the two appellants and their companions who have been acquitted. The occurrence had taken place at Peshiwela the same day in the Baithak of Nur Dad father of Riaz deceased, in village Bhago. The motive for the murder was that six/seven months prior to the occurrence, Muhammad Shafi, maternal-uncle of Muhammad Nawaz, gave Rs.18,000 to Muhammad Akram who had promised to send four persons abroad. The destination was Greece. He did not fulfil his promise. A week before the occurrence, Nawa.z and Riaz demanded the money back. He was refused. As a result of this, Muhammad Riaz was killed. Muhammad Nawaz, Muhammad Ashraf and Mst. Fazal Begum who were alleged to have seen the occurrence deposed on behalf of the prose cution. The other evidence consists of the recovery of crime weapons, and the post-mortem report of the deceased. The appellants denied the allegation of murder. They pleaded not guilty. They did not produce any evidence in defence. Ghulam Mohyud Din (acquitted accused) produced Syed Altaf Hussain Shah, Sub-Inspector (Retd.) in his defence but as he has been acquitted, it is not necessary to refer to his statement. Muhammad Nawaz, Muhammad Ashraf son of Rehmat Khan and Mst. Fazal Begum present in the Duri in village Bhago. Time was Peshiwela. Riaz was asleep in his Baithak. The Baithak was opposite to the Duri of Muhammad Nawaz. The accused party came there. Akram had a rifle, Muhammad Sharif a gun, Muhammad Yaqub pistol, Muhammad Sarwar was armed with carbine whereas Muhammad lqbal, and Ghulam Mohyud Din had Sotas. Akram shouted at Nawaz saying that they would be taught a lesson. Instantaneously, Akram fired at Riaz. He was hit in the left side of his face. The bullet passed through the right side of his face. Iqbal, Ghulam Mohyud Din, Sarwar and Muhammad Yaqub then entered the Baithak. They gave Sota blows to Riaz. Muhammad Ashraf went ahead. He was fired at by Muhammad Sharif but he was not hit. Muhammad Yaqub and Sarwar had been firing towards Muhammad Nawaz and others. They were saying that if they stepped forward they would be killed. Riaz fell down and the accused ran away. Nawaz and others entered the Baithak. They found Riaz dead. After describing the aforesaid incident, Muhammad Nawaz deposed about the motive, referred to above. Muhammad Ashraf corroborated Muhammad Nawaz. His evidence about the occurrence is verbatim same as that of Muhammad Nawaz. He too was attacked by Muhammad Sharif. He hid himself behind the shutter of the Duri aria thus escaped unhurt. The accused then fled away. Ashraf and others entered the Baithak where Riaz was laying injured. Within their sight he expired. Mst. Fazal Begum widow aged 60, was the 3rd eye-witness. She said that she was present in the Duri of Nawaz when Akram carrying a rifle, Sharif a gun, Yaqub pistol, Iqbal and Ghulam Mohyud Din Sotas and Muhammad Sarwar having a weapon called Tarbine the which bullets are used, came in the street. Akram said to Nawaz that he had come, then fired from the window at Muhammad Riaz who was in his Baithak. Riaz was hit in, the left side of his face and bullet passed through the other side. Accused Ghulam Mohyud Din and lqbal gave Sota blows to Riaz. Yaqub had also entered the Baithak whereas Ghulam Sarwar and Sharif stood in the door of the Baithak. Mst. Fazal Begum and Muhammad Nawaz were behind Ashraf. Sharif fired at Ashraf but it missed. Sarwar and Yaqub then started firing and fled away. Mst. Fazal Begum and others entered the Baithak. They found Riaz dying. The evidence of recovery pertains to crime empty P 1 of 12 bore gun and 4 empties P2/1-4 of revolver from outside the Baithak. These were taken into possession vide memo. PE. Akram, Sharif, Yaqub and lqbal were arrested on 6th July,1975. Ghulam Sarwar and Ghulam Mohyud Din were arrested on 17th July,1975, on 18th July,1975 Akram led to the recovery of 7 mm rifle P.3. Three live bullets were also taken into possession vide memo. PF. This part of the investigation was conducted by Raja Munawar Hussain. Thereafter, investigation was taken over by S.I. Manzoorul Haq. He got recovered revolver P.5 at the instance of Muhammad Yaqub from his residential house. It was taken into possession vide memo.P.G. On 29th June, 1975 Dr. Ghayur Alam, Medical Officer, Tehsil Head quarter, Kharian, conducted post-mortem examination of Muhammad Riaz son of Noor Dad, aged 25 years. In all he noticed eight injuries on the person of the deceased. First was a firearm inlet wound edges inverted 3/4" x 1/3" going inward on left cheek 1 " medial to left ear. The second was outlet firearm wound edges everted 2" x 1-3/4" going outward on right cheek just medial to Pinna of right ear. Three were contusions; one on the left side of the head 3 " above left ear, other on the left shoulder and the third on the back of left lumbar region. The remaining were three abrasions, on the left eye brow, right cheek and right shoulder. The first two injuries were sufficient to cause death in the ordinary course of nature. Learned counsel for the appellants after having taken us through the entire evidence contended that this was an unwitnessed occurrence. His next contention was that Muhammad Nawaz 'and Mst. Fazal Begum were closely related to the deceased as well as inter se. Muhammad Ashraf too was their relative. He was inimical towards the appellant. He was disbelieved by the trial Court. Therefore, the ocular evidence was tainted. It required independent corroboration from any other source. That was not forthcoming. According to the learned counsel, even the place of occurrence was not the one which the first informant mentioned in his report. It was next contended that no bullet marks were noticed by the Investigating Officer and there was no proof of the bullet. Learned counsel further contended that according to the police officer, blood-stained earth was taken from the Baithak of Riaz whereas one of the prosecution witnesses deposed that the floor was of mosaic type. As such, the story of blood stained earth was not correct. Learned counsel laid great stress on the fact that the accused party came to the Duri of Muhammad Nawaz. They shouted at him but how could that Riaz was hit and killed when he was sleeping in his Baithak which, according to the site plan, was opposite to that of Muhammad Nawaz. Learned counsel submitted that not only this was unnatural that they having seen Muhammad Nawaz spared him, but also it falsifies the entire prosecution case. We have also heard learned counsel for the State and the complainant. Before giving our findings on the points raised by the learned counsel for the appellant, we would like to observe that all the eye witnesses were unnecessarily subjected to lengthy cross-examination which was done at random. It yielded no results in favour of the defence. On the other hand, we find that what was left out by the prosecution was filled in by cross-examination. As a matter of fact, most of the cross- examination was irrelevant. Such type of cross-examination must be dis couraged. It is the duty of the trial Judge to direct the counsel to confine himself to the relevant questions. Although it was urged by the learned counsel that the venue was not the same as alleged by the prosecution but he failed to prove so. According to the site plan, the Baithak of Riaz was just opposite to the Duri of his brother Muhammad Nawaz. There is nothing unnatural that though they came to the Baithak of Muhammad Nawaz and shouted at him but then ultimately killed his brother. The reason for that is that earlier it was Riaz who grappled with Akram. So the real victim was Riaz. But as the two Baithaks were opposite to each other, when the accused party noticed Riaz sleeping on a cot, their attention was diverted to him. He was easy target because he was asleep. Muhammad Nawaz and Mst. Fazal Begum are related to the decease but on the ground of the relationship their testimony is not to be throw out. We have to make sure what explanation did they give for their presence and whether they were telling the truth or not and whether their evidence inspires confidence. Mst. Fazal Begum was aged sixty. The deceased was like her own son. She deposed as best as could be expected from such an elderly person. Although she was confronted with her statement under section 161, Cr.P.C. and to some extent the defence did succeed in bringing some omissions and contradictions on record but those were not so to discredit her testimony. Her evidence was natural when she said that when Riaz was hit she went towards him; kissed him; even tried to stop the blood and her hands were stained with blood. This type of evidence cannot be manufactured nor was she telling a tale. She was on oath and said what she saw and what happened to her. Similarly, there is no reason why Muhammad Nawaz should be dis believed. He too blamed Akram for firing the fatal shot. No doubt in the evidence of Muhammad Ashraf Toor. Draftsman, it has come that the floor was made of chips but this would not make much difference. The facts of the matter is that the blood was taken. It could be scratched and in routine it was mentioned that blood-stained earth was taken. The Investigating Officer was not questioned about any bullet mark or what had happened to the bullet. Therefore, this omission is also of no significance. After considering the entire evidence, we have come to the conclusion that so far as Muhammad Akram is concerned, the case against him has been proved beyond doubt. He was rightly convicted and sentenced. We accordingly confirm the death sentence. It is prosecution's own case that no one was hurt by the shot fired by Muhammad Yaqub. There were others two who were armed with Jethal weapons. They too were accused of firing. There is a good deal of force in the submission of the learned counsel that the case of this= appellant is at par with those who have been acquitted and as such he is entitled to the same treatment. We accept the submission. Muhammad Yaqub is' acquitted. He shall be released forthwith, if not required in any other case. The revision filed by the complainant has no merit. It is dismissed. M. Y. H. Appeal partly accepted.