1993 P Cr (PLP)

(9) One incised wound 10 c.m. x 4 c.m. x joint deep on front and outer aspect of right ankle joint. Joint was opened up and lower end of fabula bone was cut through and through. (10) One incised wound 4-1/2 c.m. x 1 c.m. on inner aspect of right leg 1 c.m. above ankle joint. Right tibia bone was cut through and through blood vessels of the leg were cut. (11) One redish blue contusion mark 18 c.m. x 5 c.m. on back of both sides of chest and right shoulder blade. (12) Reddish blue contusion mark 7 c.m. x 4 c.m. on outer aspect and top of right shoulder-joint. (13) One abrasion mark 8 c.m. x 1/3 c.m. x superficial skin deep on outer aspect of right shoulder-joint 1 c.m. below of tip of shoulder. (14) One abrasion mark 3 c.m. x 1/4 c.m. x superficial skin deep on outer aspect of right upper arm 1 c.m. below injury No.13. (15) One abrasion mark 7 c.m: x 1/2 c.m. x superficial skin deep on outer aspect of front of right upper arm 3 c.m. below injury No.14. (16) One abrasion mark 10 c.m. x 1 c.m. x superficial skin deep on front and outer aspect of right upper arm crossing injury No.15. (17) One reddish blue contusion mark 6 c.m. x 2 c.m. on outer aspect of right upper arm adjoining injury No.16. (18) One abrasion mark 6 c.m. x 1/2 c.m. x superficial skin deep on outer aspect or right upper arm 3 c.m. below injury No.17. (19) One abrasion mark 5 c.m. x 1 c.m. left leg 5 c.m. below knee-joint c.m. x superficial skin deep on inner aspect of pulse was fabula. In the opinion of the doctor injuries Nos.l, 4, 5, 9 and 10 were grievous and dangerous to life whereas injuries Nos.2, 3, 6, 7, 8, 11 to 19 were simple. Injuries Nos.l to 10 were caused by sharp-edged weapon and injuries Nos.11 to 19 were inflicted by sharp-edged weapon within six hours. Exh.P.A. was the true carbon copy of the report. On 31-10-1980 at 8-00 a.m. the same doctor conducted autopsy on the dead body of the deceased who had expired on 30-10-1980 at 5-20 p.m. and had observed the injuries mentioned supra and had opined that the cause of death was severe haemorrhage and shock due to injuries Nos.l, 4, 5, 9 and 10 which were sufficient to cause death in the ordinary course of nature. The time that elapsed between injuries and death was within six hours and between death and post-mortem was within 24 hours.

8. The appellants were arrested by C.W.2, Nazir Ahmad, S.H.O. on 8-11-1980. Mahmood appellant on 9-11-1980 had led to the recovery of blood stained hatchet P.5 which was secured by C.W.2 vide memo. Exh.P.G. attested by P.W.11, Ghazanfar and Muhammad Siddiq P.W. (given up). On the same day, appellant Muhammad Amjad led to the recovery of Bugta, P.6 blood stained, which was secured by C.W.2 vide memo. Exh.P.E. attested by P.W.11 and Muhammad Siddiq P:W. (given up). The S.H.O. had prepared sealed parcels of P.5 and P.6.

9. The appellants when examined under section 342, Cr.P.C. denied the prosecution evidence and recovery of incriminating articles against them and also stated that the case property has been planted on them. They neither produced evidence in defence nor made statements on oath as envisaged under section 340(2), Cr.P.C.

10. I have heard learned counsel for the parties and perused the record.

11. The complainant P.W.6, Mansoor Ahmad, son of the deceased had moved written complaint on the basis of which F.I.R. Exh.P.H. was recorded by C.W.2, Nazir Ahmad, S.H.O. Surprisingly, the written complaint submitted by P.W.6 is not available on the record. P.W.6 in F.I.R. Exh.P.H. had given the names of the accused, the weapons carried by them, the witnesses and the role played by each of the accused as well as the manner in which the occurrence took place. The occurrence was alleged to have taken place at 3-15 p.m. on 30-10-1980 at a distance of four kilometres from Police Station Faqirwali whereas F.I.R. Exh.P.H. was recorded at the police station at 3-45 p.m. on the same day i.e. on 30-10-1980. F.I.R. Exh.P.H. was lodged with promptitude. P.W.6 complainant in his statement before the trial Court as well as in F.I.R and in complaint Exh.P.C. had stated about enmity between the deceased and the accused party.

12. The acquitted co-accused were found innocent by the police and were placed in column No.2 of the challan whereas the persons who were alleged to have hatched conspiracy were not challaned. P.W.6, complainant was dissatisfied with the report of the investigating officer submitted under section 173, Cr.P.C., filed a private complaint Exh.P.C. The appellants alongwith the acquitted co-accused were summoned to face trial in the private complaint. Ghulam Rasul, Muhammad Yaqoob and Riaz who were alleged to have hatched conspiracy were not summoned by the trial Court. It is pertinent to mention here that complainant P.W.6 had made applications to the police and successive investigations were made by the police i.e. by C.W.1, C.W.2 and also by a panel of police officers under the supervision of C.W.1 and they were of the unanimous view that only appellants were the real culprits whereas the acquitted co-accused and the persons who were alleged to have hatched the conspiracy were not the accused and moreover they had also found two persons namely Muhammad Afzal and Tabrez as an accused who had committed the murder of the deceased alongwith the appellants.

13. The complainant P.W.6 had not levelled any allegation against Muhammad Afzal and Tabrez and moreover they were not summoned by the trial Court to face trial. It has been vehemently argued by learned counsel for the appellants that the appellants have been involved falsely due to enmity, prosecution had failed to establish its case beyond doubt against the appellants and the P.Ws. had been partly believed i.e. P.Ws.4, 5 and 6 and the occurrence could not take place in the said manner. No doubt, it has been established on record that both the parties i.e. the complainant and the appellants had enmity, the motive behind the occurrence as stated by P.W.6, complainant Mansoor Ahmad son of the deceased and P.W.4, Abdur Razzaq was that the deceased had moved applications against the accused as the accused party had obtained allotment of land through fraud. The deceased had moved Deputy Martial Law Administrator and concerned departments. Moreover some criminal cases had been registered against the accused party and the relations of the complainant party were P.Ws. in the said cases. No doubt, the motive is a double-edged weapon. P.Ws.4 and 6 have stated about the motive which had been proved on record by the statements of the P.Ws. and the appellants also admitted in their statements under section 342, Cr.P.C. i.e. the appellants Muhammad Amjad and Mahmood son of Nawab had stated in their replies that P.Ws. have deposed against them due to enmity. It was urged before me on behalf of the defence that it was not natural that the son i.e. P.W.6 complainant Mansoor Ahmad would not interfere during the occurrence when his real father, the deceased was at the mercy of the appellants and was being given injuries. P.W.6 was a F.A. student on the day of occurrence and while going to his Chak alongwith his deceased father and P.W.4 on a motor-cycle, they were surprised by the accused party who had animus against the deceased, got the deceased alighted from the motor-cycle forcibly and caused the injuries and one of the acquitted co-accused was stated to be armed with gun and was pointing the barrel of the gun towards P.Ws.4 and 6 and had directed them not to interfere. P.W.6 must have been frightened by the sudden assault of the accused party and was also a student of F.A. and poor fellow stood aside and witnessed the occurrence and how he could interfere to save his deceased father when they have been ambushed and waylaid by the appellants armed with deadly weapons? The deceased was brutally murdered and was given as many as 19 injuries. P.W.4 had stated that he was coming alongwith the deceased and P.W.6 on a motor-cycle and had witnessed the occurrence. During cross-examination he had stated that his cousin Saeed was murdered and a case F.I.R. No.126 was registered at Police Station Haroonabad on 20-5-1972 and Riaz, acquitted co accused was one of the accused in the said case and a cross-case vide FIR, No.129 was registered on 22-5-1972 at the same police station in which father of P.W.4 alongwith others was named as accused. P.W.4 had given probable explanation of his presence at the spot i.e. he was going alongwith the deceased and P.W.6 on the motor-cycle to their Chak as all of them belong to the same Chak and P.W.4 was employed in WAPDA and the occurrence took place or Thursday at about 3-15 p.m. and naturally the next day was a closed day P.W.5, Ejaz had witnessed the appellants causing injuries on the person of the deceased. He was present on the fateful day at the relevant time in his field and was working when he heard noise and reached the place of occurrence.

14. Learned counsel for the appellants had tried to exploit the words uttered by P.W.5 during cross-examination i.e. he reached the spot after crossing the canal and as stated by P.W.5, his clothes had not become wet. P.W.5 had stated that the depth of the canal was about three feet during the days of occurrence. P.W.8 Patwari had stated during the cross-examination that down the service road, there were ditches and Thatans of about seven feet height and there were trees in between ditches and the service road. P.W.8 had not shown the places in the site plan where the accused were standing at the time of occurrence as well as the place where the motor-cycle was present. P.W.8 had admitted as correct that a person standing on ground level of the other side of the canal could not see the person standing on the corner of the service road on the other side. P.W.5 had stated that he reached-the place of occurrence after hearing noise and had witnessed the occurrence while being present in his fields. It was urged on behalf of the defence that the evidence of P.Ws. could not be relied upon i.e. one part of it was believed and the other part was not believed by the trial Court. No doubt, the parties had previous enmity and the complainant had tried to involve as many number of persons as he could but it is the duty of the Court to sift the grain from the chaff. The successive investigations of the case were made on the application of the complainant and C.Ws.1 and 2 alongwith other police officers had come to the conclusion that the appellants alongwith the above said Afzal and Tabrez were the real culprits. In the peculiar conditions of our society, the people usually involve as many number of persons as they think, falsely alongwith the real culprits.

15. It was lastly and vehemently urged on behalf of the defence that in a case where enmity is admitted, and proved on record between the parties, the Court has to be at guard to convict the accused and without independent corroboration, no accused should be convicted and sentenced. My attention was drawn to the fact that no report of Chemical Examiner and Serologist was placed on record. In the instant case, the appellants Muhammad Amjad and Mahmood son of Nawab had led to the recovery of blood-stained Bugta P.6 and blood stained hatchet P.5 which were secured by C.W.2 vide memos. Exhs.P.F. and P.E., respectively attested by P.W.17 Ghazanfar Ali. C.W.2, Nazir Ahmad, S.H.O. had prepared the sealed parcels P.5 and P.6. C.W.2 who had secured the same at the instance of the appellants, prepared the sealed parcels and deposited with P.W.9, Manzoor Ahmad H.C. on 30-10-1988 who kept the same in Malkhana till 16-1-1981 when he delivered the same to P.W.1, Abdus Sattar H.C. who was posted on 16-1-1981 as Moharrir H.C. Faqirwali who kept three sealed parcels till 24-1-1981 and handed over the same to Nazir Ahmad P.W.2. It is pertinent to mention here that P.W.6 complainant feeling aggrieved had filed private complaint Exh.P.C. and the report of Chemical Examiner and that of Serologist were retained with the challan case and were not exhibited in the present case. Appellant, Mahmood in police custody had led to the recovery of blood-stained hatchet which he had concealed underneath the bushes, took out the same with his own hands and produced before C.W.2 who secured the same vide memo. Exh.P.G. Appellant Muhammad Amjad had led to the recovery of blood-stained Bugta P.6 which he had concealed in the hole of Sheesham tree and had produced the same before C.W.2 who secured it vide memo. Exh.P.E. No doubt, the reports of the Chemical Examiner and Serologist were not produced and exhibited but in the peculiar circumstances of the case, I hold that the factum of recovery of weapons of offence at the instance of the appellants has been proved on record.

16. Mr. A.R. Tayyub, Advocate for the appellants assisted by Mr. Muhammad Zaffarullah, Advocate had argued the case on behalf of the appellants yesterday but as the appeal was adjourned for today and Mr. A.R. Tayyub, Advocate had prayed for permission for dispensing with his presence as he was busy in a murder trial today before the learned Sessions Judge, Rahimyar Khan. Mr. Muhammad Zaffarullah, Advocate is present with appellants Mahmood and Muhammad Amlad. It is surprising that the learned Additional Sessions Judge had convicted and sentenced the appellants for transportation for life under section 302/148/149. P.P.C. whereas the sentence provided under section 302, P.P.C. was death or imprisonment for life and was also liable to fine but instead of imprisonment for life, the appellants were sentenced to transportation for life and also not burdened with any fine. The appellants are present with their learned counsel who have been given verbal notice of the imposition of fine which has been, accepted by them.

17. Pursuant to the above discussion, I am of the considered view that the I appellants were rightly convicted and sentenced by the trial Court and no exception can be taken to their sentence and conviction but the same is altered from transportation for life to imprisonment for life each and a fine of I Rs.25,000 (Rupees twenty-five thousand) each, and in default of payment of fine further one year's R.I. each. The fine, if realized, fifty per cent of it shall be paid to the legal heirs of the deceased. The appellants are present on bail who shall be taken into custody and sent to jail to undergo the sentence awarded to them. The appellants shall also be given the benefit of section 382-B, Cr.P.C.

18. The connected Criminal Appeal No.21 of 1987/BWP and Criminal Revision No.16 of 1987/BWP are dismissed. N.H.Q./M-975/L Appeal dismissed.