2001 P Cr (PLP)

M. JAVED BUTTUR, J.

The appellant, Muhammad Younas (28) was tried, alongwith the acquitted co-accused Muhammad Yousaf (52) and Sajjad Ahsan son of Muhammad Yousaf (18) for the offences under sections 302/34, P.P:C. in case F.I.R. No.360, dated 21-8-1992 registered at Police Station Chak Jhumra in respect of murder of Najeebullah (50/51) on 21-8-1992, at 6-15 a.m. in the fields belonging to the deceased and his brother Karamat Ali, within the area of Chak No.163/RB, 8 miles from Police Station Chak Jhumra District Faisalabad, by the Additional Sessions Judge, Faisalabad. The learned trial Court vide its judgment, dated 12-5-1994 while acquitting the above-said two co-accused; extending them the benefit of doubt, convicted the appellant under section 302, P.P.C. and sentenced him to death and also to pay a fine of Rs.25,000 or to undergo R.I. for a period of six months, in case the death sentence is not confirmed. The trial Court also directed the appellant to pay compensation of Rs.70,000 to the legal heirs of the deceased under section 544-A, Cr.P.C.

2. The appellant, Muhammad Yousaf has challenged his conviction and sentence through Criminal Appeal No.297 of 1994. The complainant, Saleem Akhtar, has challenged the acquittal of the abovesaid co-accused through Criminal Revision No.165 of 1995 and the trial Court has sought confirmation of death sentence through Murder Reference No.133 of 1994. All these matters are being disposed of together through this judgment.

3. F.I.R. No.360 (Exh.P.F.) was registered on the statement of the complainant, Saleem Akhtar, the son of the deceased Najeebullah (P. W.7), according to which, on the fateful day at 6-15 a.m., he alongwith his brother Naeem Akhtar, his paternal-uncle and brother of the deceased, Karamat Ali (P. W.8) and Najeebullah, his father, reached their fields for cutting fodder when all the accused armed with .12 bore guns suddenly appeared from the nearby bushes, Muhammad Younas raised Lalkara to teach a lesson to his father Najeebullah for getting registered and pursuing the cases against him, his father turned towards the dirt/Katcha road and, in the meanwhile, Muhammad Younas fired at his father which hit him on the back of his chest and simultaneously Muhammad Younas accused fired at the left shoulder of his father upon which his father fell down and then Sajjad Ahsan accused fired hitting on the right leg of the deceased. He and other P. Ws. raised alarm upon which all the three accused took one shot each at the deceased and ran away towards north. The deceased died on the spot.

4. The motive part given in the F.I.R. is that about 7-1/2 months ago accused Muhammad Younas (the present appellant) abducted Robina Kausar, the complainant's sister, for which Muhammad Younas was arrested and was sent to jail and. after his release on bail, he again tried to abduct her forcibly but did not succeed and for this occurrence a second case was gotten registered against him and after one day of his second occurrence, during the intervening night of 3rd and 4th of August, 1992 accused Muhammad Younas caused a fire-arm injury to complainant's mother and about this occurrence also a case was registered against Muhammad Younas at the instance of complainant's father, the deceased. The complainant has further narrate that all the cases are being pursued by his father, the deceased. In the end, it narrated that Ejaz, real brother of the accused Muhammad Younas tried to compel the deceased for a compromise but the deceased did not agree and therefore, all the three accused with the conspiracy and help of Ejaz, in furtherance of their common intention had committed murder of his father.

5. The abovesaid three accused were duly charged, to which they pleaded not guilty and thereafter the prosecution while giving up Naeem Akhtar, Mst. Zubaida Bibi, Muhammad Ashraf and Akbar Ali, P. Ws. as unnecessary examined 12 prosecution witnesses to prove its case.

6. P.W.1 Dr. Abdul Shakoor Gill, M.O. Incharge Rural Health Center, Chak Jhumra, conducted post-mortem examination on the dead body of the deceased Najeebullah at 1-00 p.m. and found following injuries on it. (1) An oval fire-arms wound of entry with inverted margin which were blackened 5 c.m. x 3.5 c.m. probe past through and through on outer side of left upper arm 8 c.m. left shoulder top and 18 c.m. above left elbow joint. It injured skin subcutaneous tissue muscles and brachealatry vein and nerve, fractured the left humerous bone on upper part and exited through on inner side of left upper arm. (2) A fire-arm wound of exit 8 c.m. x 4-1/2 c.m. with a everted margin on inner side of left upper arm 9 c.m. below left shoulder top. (3) A fire-arm wound of exit with averted margins 4 c.m. x 2-1/2 c.m. on inner side of left upper arm 2 c.m. below on injury No.2. (4) A fire-arm wound of entry 1-1/2 c.m. x 1/2 c.m. x inverted margin x probe past. x chest cavity on outer left lateral chest 3 c.m. below left arm pit 6 c.m. above left nipple. It injured skin and muscles of left side of chest and centered left plural cavity and recovered from left plural cavity. (5) A grazing fire-arm wound 4 c.m. x 1/2 c.m. x skin deep at front of left chest just above left nipple damaging areola. (6) Four fire-arm wounds of exit in area 5 c.m. x 3 c.m. at front of right chest 4 c.m. above right nipple with 3/4 c.m. x 1/2 c.m. x averted margin each. (7) Four fire-arm wounds of exit 1/2 c.m. x 1/2 c.m. each in a area 7 c.m. x 1/2 c.m. on front and lateral side of right side of chest 2 c.m. below and lateral to right nipple. (8) A circular fire-arms wound of entry with inverted margin 2-1/2 c.m. x 2c.m. x probe passed chest cavity margins were blackened on back of left side of chest 4 c.m. from midline 23 c.m. below left shoulder top. On exploration projectile injured skin muscles fractured second and third left ribs posteriorly, left plura, left lung was shattered ascending aorta and upper part of heart was shattered, right plura and lung also shattered. After fracture of third and fourth ribs anteriorly on right side chest the pellets exited through exit wound already described. A wad and one pellet, and broken pallet recovered from right side plural cavity and handed over to police in a sealed container. Plural cavity contained blood on both sides. The pojectile also fractured fourth thoracic vertebra and spinal cords in this area. (9) A grazing fire-arm wound 3/4 c.m. x 1/3 c.m. x skin deep on inner side of right thigh 14 c.m. above right knee joint. (10) A grazing fire-arm wound 1 c.m. x 1/2 c.m. x skin deep on back of lowest part of right thigh 3 c.m. above popleteal fossa. (11) A grazing fire-arm wound 1 c.m. x 1/3 c.m. x skin deep on back of right calf 15 c. m. below right knee joint. On opening abdomen, the doctor found that all the organs in the abdomen were healthy, stomach contained secretion small intestine contained chyme and large intestine contained faecal matter. In the opinion of the doctor, the cause of death was haemorrhage and shock due to injuries Nos. 1, 4 and 8 and these were sufficient to cause death in ordinary course of nature individually as well as collectively. All the injuries were ante-mortem caused by fire-arms and injuries Nos.5 and 9 to 11 were declared simple in nature. In his opinion, the time between injuries and death was immediate and the time between death and post-mortem was about 7 hours. After post-mortem examination carbon copy of the Post-mortem Report No. 12 of 1992, police papers, last worn clothes of deceased and sealed parcel containing two pellets and a wad were handed over to police. Exh.P.A. is the carbon copy of his post-mortem examination report and P.A./1 is the diagram of injuries.

7. P.W.2, Khalid Akhtar, H.C./Moharrir, Police Station; Chak Jhumra, stated that in August, 1992, Investigating Officer handed him over one sealed parcel containing blood-stained earth which was handed over by him later on to Mushtaq Ahmed, F.C. for onward transmission to the office of the Chemical Examiner.

8. P.W.3, Muhammad Yar, Patwari, prepared the site plan under the direction of the police, on the pointation of the P.Ws., which was placed by him on record as Exhs.P.B. and P.B./1. he has also stated that he saw no sign of any struggle on the spot.

9. P.W.4, Khalid Mehmood is the witness of recovery of blood-stained earth from the spot Exh.P.C. and a pair of shoes of the deceased recovered from the spot (Exh. P.D.).

10. P.W.5, Abdul Hameed identified the dead body of Najeebullah deceased at the time of post-mortem in the Rural Health Centre, Chak Jhumra.

11. P.W.6, Tanveer Akram, is the witness of recovery of .12 bore gun (P.1) which was gotten recovered by the appellant Muhammad Younas from a box lying in his house and it was taken into possession by the police vide recovery memo. (Exh.P.E.), duly attested by this witness who is son-in-law of the deceased. The deceased was also husband of his mother's sister.

12. P.W.7, Saleem Akhtar, supported the F.I.R. version and in cross- examination he denied the suggestion that he had not seen the occurrence and that he had deposed falsely due to enmity. He further stated that Robina Kausar was daughter of his father's brother and denied the suggestion that appellant was allowed bail in view of the statement of Robina Kausar under section 164, Cr.P.C. He further stated that it is not correct that in the year 1965 a murder case was registered against the deceased and his brother Hidayatullah for the murder of one Muhammad Ishaq and denied any knowledge about the involvement of his paternal-aunt Rashida Bibi as an accused in the said case and also denied the suggestion that his father had built a wall of his house covering part of the street over which one Rana Tanveer, a proclaimed offender, was aggrieved. He admitted that at the time of occurrence he and the P.W. Naeem were having Chaddars and sickles and these were got produced before the police. In answer to a question, he stated that the deceased had taken the last meal, last night before going to bed. He denied the suggestion that the deceased was shot at in the dark hours of the morning.

13. P.W.8, Karamat Ali, has given the eye-witness account and has supported the prosecution version and in the cross-examination he has admitted that Robina Kausar was his real daughter and he got registered a case against Muhammad Younas appellant about her abduction and denied the suggestion that he gave an affidavit on 6-2-1992 to the effect that the accused of abduction case, namely, Muhammad Shafi, Mst. Hanifan, Tasneem Akhtar, Naziran Bibi and Asia Parveen were falsely implicated by him due to anger. He admitted that in the investigation only Younas appellant was found guilty by the police in the abduction case and further admitted that at the time of occurrence he was carrying one Chaddar and one sickle and these items were not shown by him to the police. He has denies the suggestion that it was a blind murder and the accused have been implicated due to previous enmity.

14. P.W.9 stated that 4/5 days prior to the occurrence while he was present at his Dera alongwith Tanveer P.W., the appellant, Muhammad Younas and his brother Ejaz came to him and Ejaz requested for a compromise between Muhammad Younas and the deceased which was turned down and Ejaz then said that compromise can only be effected if Najeebullah is murdered. In the cross-examination he has admitted that he is son-in-law 'ofthe deceased Najeebullah.

15. P.W.10, Ghulam Abbas, stated that on 11-6-1993 while he was posted as S.H.O., Police Station Chak Jhumra, he arrested the proclaimed offender Muhammad Younas, the present appellant, and during interrogation and on his pointation, in the presence of Tanveer Akram and Tariq Mehmood, P.W., he led to the recovery of a gun .12 bore (P.1) alongwith one licence from his possession which was taken into possession vide recovery memo. Exh.P.E. and the plan of recovery site prepared by him is Exh.P.G. He also recorded the statements of P.Ws. under section

161. Cr.P.C. and the supplementary challan was submitted against the appellant by him.

16. P.W.11, Mehr Khan, stated that on 21-8-1992 he was posted as S.H.O., Police Station Chak Jhumra and on the same day on the basis of a statement of Saleem Akhtar, complainant, he entered the F.I.R. (Exh.P.F.) which was recorded at police station and was read over to Saleem Akhtar and Saleem Akhtar signed it in token of its correctness and the F.I.R. in his hand and bears his signatures. He has further stated that thereafter, he reached the spot, saw the dead body, prepared the inquest report (Exh.P.H.), injuries statement (Exh.P.1.) and handed over the dead body to Mushtaq Ahmed, F.C. for post-mortem examination. He thereafter, inspected the spot, took into possession blood-stained earth vide recovery memo. Exh.P.C., a pair of shoes (P.2/1-2) of the deceased vide recovery memo. Exh.P.D. He then prepared site plan Exh.P.J. and recorded the statements of the P.Ws. The accused Muhammad Yuusaf and Sajjad Ahsan were arrested by him. He also got prepared site plan from Muhammad Yar, Patwari. He carried out the proceedings under sections 87 and 88 of the Cr.P.C. against Muhammad Younas, appellant. In the investigation, he found the accused Sajjad Ahsan and Muhammad Younas as innocent as according to his findings they were not present at the place of occurrence at the time of occurrence. He also found Ejaz Ahmad accused as innocent of the offence of abetment. After the post-mortem examination last-worn clothes of the deceased, shirt (P.3) Chaddar (P.4), Safa (P.5) and an amulet (P.6) and a sealed filed containing pellets (P.7) were produced before him by Mushtaq, F.C. and the same were taken into possession by him vide recovery memo. Exh.P.L. The parcel containing blood-stained earth was delivered by him to the Moharrir of the police station. On 14-2-1993, he completed the investigation and prepared the challan papers.

17. P.W.12, Mushtaq Ahmad, F.C., went to the place of occurrence, on the day of occurrence with the S.H.O. and he escorted the dead body of the deceased to Civil Hospital, Chak Jhumra and after post-mortem examination, the Medical Officer handed him over the last-worn clothes of the deceased and these articles were produced by him before the Investigating Officer. He has further stated that on 24-8-1992, Khalid Akhtar, P.W.2 handed him over a sealed parcel containing blood-stained earth which was deposited by him in the office of the Chemical Examiner, Punjab, Lahore on 25-8-1992.

18. The Public Prosecutor closed the case of prosecution after tendering in evidence the report of the Chemical Examiner as Exh.P.M. and that of Serologist Exh.P.N.

19. We have heard the learned counsel for the appellant, the State, the complainant and have also seen the record.

20. It is contended by the learned counsel for the appellant that both the eye-witnesses produced by the prosecution are related to the deceased, they made material and dishonest improvements at the trial, they had not witnessed the occurrence which was a blind murder, the occurrence did not take place at the given time and the ocular account is belied by the medical evidence qua the time of occurrence because in the rural areas when the farmers leave their house for going in crops they take their breakfast but no food either digested or semi-digested was found in the stomach of the deceased by the doctor who conducted the post-mortem examination, the medical evidence does not support the ocular account even qua the number of shots fired at the deceased, both the witnesses at the time of trial, to bring their evidence in the line of medical evidence purposely omitted 3 shots allegedly fired by the accused, mentioned by the complainant in the F.I.R., the eye-witnesses were allegedly carrying Chadars and sickles at the time of occurrence and none of these items were produced by them before the police which shows that they were not present at that time at the place of occurrence, on the same evidence two accused, who are alleged to have caused fire-arm injuries on the shoulder and leg of the deceased, have been acquitted, therefore, it is highly unsafe to place the reliance on the testimony of these witnesses, mere abscondence of the appellant cannot be used as a corroborative piece of evidence as the same is equally sustained with the innocence of the accused, the Patwari, P.W.3, did not see any sign of struggle in the fields, the place of occurrence, where admittedly the crops were standing and this fact coupled with the fact that no crime-empty was recovered from the spot supports the defence version that it was an un-witnessed occurrence having taken place during the dark hours of the morning, the recovery of double-barrel gun (P.1) is immaterial and inconsequential as no crime-empty was recovered to match with the gun, the witnesses are belied from the defence documents as they have denied certain happenings. Learned counsel for the appellants has thus, concluded that these facts and circumstances shows that chances of .the appellants' false implication cannot be ruled out and the benefit of doubt must be extended to the appellant and he is entitled to be acquitted:

21. Learned counsel for the complainant while asking for the conviction of co-accused and while opposing the appeal has submitted that Muhammad Yousaf caused injury on the left shoulder of the deceased and Sajjad Ahsan caused injury on the right leg of the deceased and, therefore, the trial Court acted illegally in acquitting them.

22. There is no motive qua the acquitted accused and there is no material on the record to suggest that Yousaf and Sajjad Ahsan had any grudge against the deceased. Similarly no recovery has been effected from them. The possibility cannot be ruled out that they might have been roped in just to widen the net. In our opinion, the trial Court correctly gave them benefit of doubt and acquitted them of the charge. The revision petition seeking conviction of the acquitted co-accused, therefore, in our opinion, has no merit. 22-A. On the other hand, the prosecution has fully proved its case beyond the shadow of doubt against the appellant, Muhammad Younas. The F.I.R. was promptly lodged, it was a broad daylight 'occurrence, no possibility of missidentity, the appellant had the motive to remove the deceased from his way, he was abducting the same lady again and again and the P.Ws. have no motive to falsely implicate or to substitute him with the' real culprit, the medical evidence supports the prosecution case against the appellant, the appellants' absconsion for a period of about 10 months also points towards hid guilt, his explanation given by him in his statement under section 342, Cr.P.C. is neither reasonable or satisfactory and the documents Exh.D.A. to Exh.D.D. produced by the defence in no way have weakened the case of prosecution and, therefore, in our opinion, he has been rightly and correctly convicted and sentenced by the trial Court. We have given our anxious consideration to the quantum of the sentence but we have not been able to find any mitigating circumstance in favour of the appellant to award him lesser punishment.

23. In view of the above discussion, Criminal Appeal No.297 of 1994 of the appellant, Muhammad Younas as well as Criminal Revision No. 165 of 1995 of the complainant, Saleem Akhtar, have no force and are dismissed. The murder reference is accordingly answered in affirmative and the death sentence awarded to the appellant, Muhammad Younas is confirmed. N.H.Q./M-427/L Appeal/revision dismissed.