1995 P Cr (PLP)

KHAN RIAZ-UD-DIN AHMAD, J.

The appellants Muhammad Riaz aged about 24 years and Abdul Waheed 28 years were tried by the learned Additional Sessions Judge, Rawalpindi, on a charge under section 302/34, P.P.C. for having caused the murder of Saudagar and on the charge under section 452/34, P.P.C. for having committed criminal trespass in the house of the complainant with intention to commit the murder of the said deceased. Vide judgment, dated 12-3-1990, the learned trial Judge found the two appellants guilty on both the charges and proceeded to convict and sentence them as under: (i) Muhammad Riaz appellant was convicted under section 302/34, P.P.C. and was sentenced to death and to pay a fine of Rs.10,000 or in default to undergo R.I. for three years. He was also convicted under section 452, P.P.C. and was sentenced to undergo R.I. for five years and to pay a fine of Rs.2,000 or in default to undergo R.I. for one year. (ii) Abdul Waheed appellant -was convicted under section 302/34, P.P.C. and was sentenced to imprisonment for life and a fine of Rs.5,000, or in default to undergo R.I. for two years. He was also convicted under section 452, P.P.C. and was sentenced to undergo R.I. for five years and a fine of Rs:2,000 or in default to undergo R.I. for one year. In the event of the recovery of amount of fine from the appellants, Rs.10,000 were ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.

2. Aggrieved by the aforesaid conviction and sentence, the appellants have preferred the instant appeal, whereas the learned trial Court has made a Reference (Murder Reference No.104 of 1990) to this Court under section 374, Cr.P.C. for confirmation of death sentence. Muhammad Safdar complainant has filed the captioned revision petition with the prayer that the sentence of Abdul Waheed appellant be enhanced from life imprisonment to death and for the enhancement of fine and for awarding sufficient compensation under section 544-A, Cr.P.C. All these matters are being disposed of together through this single judgment.

3. The unfortunate occurrence resulting in the death of Saudagar Khan had taken place on 13-1-1988 at about 3-15 p.m. in the house of deceased Saudagar Khan in the area of Dhoke Gujran four kilometres away from the Police Station Westridge. Formal F.I.R. Exh.PA./1 was recorded by S.I. Muhammad Khan P.W.13 on receipt of statement Exh. PA. of Complainant Muhammad Safdar P.W.1, which was recorded by Inspector Muhammad Siddiq at Dhoke Gujran. .

4. The prosecution case in brief as unfolded by, the complainant Muhammad Safdar in the FIR. was that on the fateful day at 3-15 p.m:, he and his mother Mst. Hashmat, Bibi and sister-in-law Mst. Razia alias Guddo were present in the kitchen of their house. Mst. Razia was preparing tea, while his father Saudagar deceased was sitting on his bed in his residential room. Meanwhile Abdul Waheed alias Waheed brother-in-law of the complainant entered their house and after having a glance into the room of .his father returned immediately. 10/15 -minutes thereafter Muhammad Riaz alias Papoo his brother-in-law and cousin came alongwith said Waheed holding pistol in his hand and shouted that he had come to avenge the murder of his father. Waheed co-accused threatened the complainant, his mother and Mst. Razia sister-in-law to keep away otherwise they would be shot dead. The complainant and others beseeched the appellants, but they did not pay any heed, to their entreaties. Muhammad Riaz accused entered the residential room where Saudagar deceased was sitting on his bed and fired 4/5 shots hitting him 'on -his left side of neck, the and belly. Thereafter both- the accused made go their escape while sitting in a Jeep parked outside the house. Saudaga .Khan succumbed to his injuries and died at the spot.-Muhammad Safdar complainant then left for police station to lodge the report but on his way to police station, he met with S:H.O. Muhammad Siddiq P.W.11 and got recorded the complaint.

5. The motive for the alleged occurrence was stated to be that 19/20 years back, Saudagar Khan, the father of the complainant, had committed the murder of Muhammad Ashraf, father of Muhammad Riaz accused/appellant, alongwith other persons and were consequently acquitted from the said charge. Saudagar Khan deceased in order to have amicable relations with them had given the hand of his daughter to Muhammad Riaz appellant, the son of the said deceased, and had associated him in his business as well. It was further alleged that Muhammad Riaz appellant had .not compromised the matter and used to quarrel with his wife Mst. Shamshad Akhtar and threatened her of taking revenge of the murder of his father by doing away with Saudagar Khan deceased.

6. Muhammad Siddique, S.H.O. P.W.11 sent the complaint P-Exh. PA. to the police station for the formal registration of the case, and himself resumed the investigation at the spot. He prepared the injury statement Exh. P.B. and inquest report Exh. P.C. in respect of the dead body and despatched the same to the mortuary for post-mortem examination under the escort of F.C. Bashir Ahmad P.W.5. 7. ` On 14-1-1988 Dr. Muhammad Hanif had conducted the post-mortem examination on the dead body of Saudagar Khan deceased and found the following injuries on his person: (1) Fire-.arm wound; of entry 0.75 c.m, x..0,75 c.m.'on left cheek 5 c.m? below left ear. ' (2) Fire-arm., wound of entry 0.75 c.m. x.0.75 c.m. on left side of neck 6 c.m: below and behind left ear, (3) Fire-arm. wound of exit 1.25 c.m. x 1.75 c.m: right side of neck 7 c.m. below to right ear. (4) Fire-arm wound of exit 1.25 c.m. x 1.25 c.m. right side of neck 8 c.m. below and behind right ear. (5) Fire-arm wound of entry 1 c.m. x 1 c.m. on right hymochordriumat mid circular line 1.20 c.m. below right nipple, (6) Fire-arm wound entry 1 cm. x 1 c.m. on right side of chest at mid? axillary line thin lateral to right nipple. In the opinion of the doctor, the deceased died due, to shock and haemorrhage, which resulted in cardinal respiratory failure as a result of injuries Nos. l to

4. Injuries A.S.1 and 2 were independently sufficient to cause death in the ordinary course of nature. All the-injuries were-ante-mortem and caused by fire-arm. The, probable duration between the injuries and the death was 1%2 hour and between the death and post-mortem was within 15 to 24 hours.

8. After post-mortem examination, Dr. Muham 'mad Hanif-handed over the last-worn. clothes of the deceased i.e. shirt P.1, Saluka P.2 and Shalwar P.3 as well as a sealed phial P.4 containing "bullet leads" recovered from the dead body, who produced the said articles before, the Investigating Officer, who seized the same vide memos. Exh. P.D. and Exh. P.E: respectively. On spot inspection, the Investigating Officer took the blood of the deceased through cotton and made it into a sealed parcel vide memo. Exh. P.F. The Investigating Officer took into possession four crime empties Exhs.P.G./1 to 4 and two lead bullets Exh.P.9/1-2 and after making the same into sealed parcel, prepared recovery memo. Exh. P.H. attested by Inayat Elahi P.W.8 and Ch. Muhammad Yousaf (given up P.W.). He also took into possession blood-stained Chaddar P.5, bed-sheet P.6 and one cot P.7 vide recovery memo. Exh P.G. Muhammad Riaz and Abdul Waheed appellants were arrested by Muhammad Siddiq S.H.O.(P.W.11) on 18-1-1988. Pistol P.10 and eight live cartridges Exh.P.10/1-8 were recovered from the personal search of Muhammad Riaz appellant, which were taken into mission vide memo. Exh. P.L. On personal search of Abdul Waheed appellant, the S.I. recovered .32 bore revolver P. 11 alongwith five live cartridges P.11/1-5, which were also taken into possession vide memo. Exh. P.M. Both the recovery memos were got attested by Malik Abdul Hameed P.W.16 and Amir Zaman (given up P.W.). After due investigation the accused were challaned to Court to face their trial.

9. To prove its version at the trial, the prosecution examined as many as eighteen witnesses. Ocular account was furnished by Muhammad Safdar P.W.1, the complainant and son of the deceased, and Mst. Razia Sultana daughter-in-law of the deceased while Mst. Hashmat Bibi P.W. was given up. Mst. Shamshad Akhtar, wife of Muhammad Riaz appellant appeared as P.W.3 and has supported the motive against Muhammad Riaz appellant, who used to reprimand her and threaten her to take revenge from her father. Dr. Muhammad Hanif P.W. was not available in the country so secondary evidence was led to prove post-mortem report by producing Muhammad Altaf Dispenser P.W.18. Malik Abdul Hameed P.W.16 was examined to prove the recoveries of the weapons of offence whereas Ch. Inayat Elahi P.W.8 attested the recoveries of the crime empties found at the spot. The prosecution also tendered in evidence the positive reports of the Chemical Examiner Exh P.O. and that of the Serologist Exh P.Q. and report of the Forensic Science Laboratory Exh. P.R. The rest of the evidence was formal in nature.

10. When examined under section 342, Cr.P.C., the accused/appellants pleaded their innocence and denied the allegations levelled against them. In reply to question No. l, Muhammad Riaz accused/appellant stated as under: "I am innocent. When the murder of Muhammad Ashraf my father took place, I was about two years of age and later on I was brought up by Saudagar(deceased) as his own son with great love and affection and later on, he gave his daughter Mst. Shamshad P.W. in marriage and out of the wedlock two daughters were born out. Saudagar (deceased) provided me a separate house to live and a truck to earn my livelihood. I used to live independently and earned my livelihood. Saudagar (deceased) used to visit our house regularly and if needed he used to give us money as well. He also used to take me to marriages ceremonies as well as if there is death of any relatives or any of the friends outside the village. I used to go alongwith him. Saudagar (deceased) always kept a revolver with him because he had much litigations for and against him. Saudagar (deceased) also had the business of a property dealing and regularly visited brick-kiln and there he also kept himself armed with a pistol. It was a joint family and compromised of about 15 persons including his sons, their wives and children. He was the only head of the family. None of his sons had any other business except Muhammad Afsar who used to work with him in the brick-kiln run by the deceased. Sons of the deceased were not happy with him as he had too much affection and love with me and many times there had been altercation between the sons and the father. I had no reason to have killed Saudagar (deceased)." Abdul Waheed appellant also pleaded innocence and denied having committed the offence and has stated that he has been falsely implicated in this case and that the P.W s. are inter-related and in order to save Muhammad Ashraf P.W., who was actually responsible for the murder of his father, falsely implicated him and his co-accused in this case.

11. However, the appellants neither made their statements under section 340(2), Cr.P.C. in disproof of the allegations levelled against them nor produced any witness in their defence.

12. On the basis of the above-said evidence, the learned trial Court convicted and sentenced the appellants as stated above.

13. Learned counsel for the appellants contends that the statements of Muhammad Safdar P.W.1 and Mst. Razia Sultana P.W.2, who are son and daughter-in-law of the deceased respectively, are not to be relied upon, as both of them being closely related to the deceased, are interested witnesses. It is further contended that the testimony of the two P.W s. is in conflict with the medical evidence; hence the same is not worth reliance. According to the learned counsel, Muhammad Safdar P.W. has specifically stated that Muhammad Riaz appellant was armed with .30 bore pistol and had fired 4/5 shots hitting his father, the deceased, on various parts of his body, who fell on the cot and expired. This fact amongst others stands belied by the fact that two lead bullets B-2 and B-4 were found to be of .32 bore by the Fire-arms Expert, which shows that weapon of .32 bore was also used during the occurrence. To substantiate this contention, learned counsel relied on the report of the Expert of Fire-arms Exh. P.R. which revealed that "two crime lead bullets of .32 bore marked as B-2 and B-4 were being sent unexamined because the weapon of the respective bore was not received in the laboratory", while the crime empties C-i to C-iv were reported to have matched with the pistol of .30 bore allegedly recvered from Muhammad Riaz appellant. By making these submissions, leaded counsel for the appellants wanted us to believe that as there is every probability that either two persons were accused of the alleged murder or two weapons were used by a single accused. Learned counsel for the appellants has also urged that the witnesses are inimical towards the appellant Muhammad JZI& who was being given preferential treatment by the deceased as "Ghar Dainad" and was sharing the benefits of the business and the property more than that of the sons of the deceased, who are P.W s. in this case. So far the case of Abdul Waheed appellant is concerned, learned counsel submits that he was not armed with any weapon of offence at the time of occurrence and his mere presence at the spot would not bring his case in the purview of section 34, P.P.C., as no overt act whatsoever has been attributed to him. As such, the prosecution has failed to prove its case beyond reasonable doubt against the appellants and they are entitled to acquittal.

14. On the other hand, learned State counsel has controverted the above said contentions of the learned counsel for the appellants by submitting that the case, of the prosecution is supported by the inmates of the house who are equally related to the appellant as well. Both the appellants are sons-in-law of the deceased. Learned counsel further submits that Mst. Shamshad Akhtar, wife of Muhammad Riaz appellant, has also appeared as P.W.3 and has stated that the appellant used to threaten her of and on by saying that he would avenge himself by committing the murder of her father, the deceased, who had committed the murder of the appellant's father about 18/20 years back. It has also been asserted on behalf of the prosecution that mere observation regarding the two lead bullets being of .32 bore without assigning any reason thereby would not adversely affect the case of the prosecution.

15. We have heard the learned counsel for the parties and have gone through the record with their assistance. Muhammad Safdar while appearing as P.W.1 has reiterated the contents of the F.I.R. and has further stated that Riaz appellant use to work with the deceased both at the brick-kiln and at the property dealer shop. He admitted it as correct that his father after the death of Muhammad Ashraf, the father of Muhammad Riaz appellant, treated the appellant like a son and had married his daughter Mst. Shamshad Akhtar to him. He, however, denied the suggestion that due to the aforesaid treatment with Riaz accused, all the sons did not like the said act of the deceased and hence had grievances against him. He also dispelled the suggestion that on the fateful day, there was an altercation between Saudagar deceased and Afsar P.W. and both of them suffered injuries from each other, in consequence of which Saudagar had died and the appellant was falsely involved in this case, so as to deprive him of the benefits which were derived from the deceased. Mst. Razia Sultana P.W.2, wife of Muhammad Afsar P.W., the son of the deceased, corroborated the statement of Muhammad Safdar P.W.1 on all material aspects and stated that 3/4 years back, she was married to Muhammad Afsar P.W. During this period, she has been living in the same house where the alleged occurrence took place. She stated that she was preparing tea at the time of the alleged occurrence, while her father-in-law Saudagar deceased was sitting in his residential room when Waheed appellant entered their house and on seeing that Saudagar deceased was present in the room, he went back and after 10/15 minutes, Muhammad Riaz appellant armed with pistol alongwith Waheed appellant entered their house and fired 4/5 shots, hitting Saudagar deceased on various parts of his body, in consequence of which he succumbed to the injuries at the spot.

16. The aforesaid two statements were further strengthened by the testimony of Muhammad Afsar P.W.4 who stated that Riaz and Waheed appellants armed with revolver and pistol respectively turned up at his brick-kiln and raised Lalkara that they had murdered his father and they would not spare him alive. He also stated that both the appellants fired shots at him with their respective weapons and thus caused him injuries. The testimony of the above-said P.W s. was further supported by the recovery of pistol P-10 from Riaz appellant which after having been sealed into parcel was despatched to the Director Forensic Science Laboratory, so as to be compared with the cringe empties and lead bullets recovered from the spot. These articles were subject to test by the Fire Arms Expert and it was opined that the crime empties C-1 to C-4 were fired from the pistol P.10 recovered from Muhammad Riaz appellant vide report Exh. P.R. As such, pistol P.10, the weapon of offence, stands connected with the crime and could be considered to be a strong corroboratory piece of evidence, so as to prove the guilt of the appellant.

17. So far the medical evidence is concerned, it also goes to prove that the injuries on the person of Saudagar deceased coincided with the number of fire ?shots by the accused and no conflict whatsoever is found therein.

18. The contentions of the learned counsel for the appellants that the report of Fire Arms Expert belies the version of the prosecution inasmuch a two .32 bore lead bullets were sent back unexamined by the Fire Arms Expel as no .32 bore weapon was despatched to the laboratory, is not tenable. Then: is no material difference between the lead bullets of .32 bore and that of .30 bore. We have ourselves examined the said bullets in the Court with the assistance of both the learned counsel for the parties. We are of the view that the two lead bullets B-2 and B-4 purported to be of .32 bore are muffled with blood and rust and if the same is removed, it would come to .30 bore. We feel persuaded to agree with the learned Assistant Advocate-General who after having the assistance of the Fire Arms Expert submits that one inch being equal to 1,000, .32 bore would be of the measurement of 320, while .30 bore would come to about 300, so the difference would be of only 20 degrees, which can possibly be due to the rust and blood which has increased the thickness of the lead bullets, therefore, we hold that the two lead bullets are not that of .32 bore and the same would be treated as bullets of .30 bore. We are, therefore, of the view that the report of Expert is also not in conflict with the version of the prosecution, rather it supports the same; hence, neither the version of the prosecution stands belied nor the testimony of the P.W s. would be discarded on this point.

19. So far as the contention of the learned counsel for the appellant regarding the interestedness of the P.W s. is concerned, suffice it to say that the parties are closely related to each other. The deceased was the real paternal uncle of Muhammad Riaz appellant and father-in-law of both the appellants The mother of Muhammad Riaz appellant is also stated to be the sister of the wife of the deceased and it would be difficult to assume that these witnesses would falsely implicate the appellants by substituting them for the real culprit, as the same is a rare phenomenon. Moreover, the two eye-witnesses, namely, Muhammad Safdar P.W.1 and Mst. Razia Sultana P.W.", being inmates o1 the house, are the natural witnesses of the occurrence and there is no evidence to suggest that these two witnesses were not present at the spot at the time of occurrence. We, therefore, place reliance on their testimony, which inspires confidence.

20. The contention of the learned counsel for the appellants that the case of Abdul Whaeed appellant is distinguishable from Muhammad Riaz, his co?-appellant, as he was not armed with any weapon of offence and had not y actively participated in the occurrence, is also of no significance. Abdul Waheed appellant is the person who firstly located the deceased while sitting in the room and then brought his co-accused Muhammad Riaz at the spot, who fired a shot and committed the murder of the deceased. Subsequent thereto both the appellants escaped from the scene of occurrence and in furtherance of their common intention, went to the brick-kiln and inflicted injuries on the person of Muhammad Afsar P.W. with their respective weapons, as such, Abdul Wheed appellant can conveniently be held vicariously liable for the murder of the deceased.

21. Summing up the above discussion, it can very well be said that the prosecution has proved its case against the appellants by producing inmates of the house who are natural witnesses of the occurrence. Their statements stand further corroborated by the recovery of pistol from Muhammad Riaz appellant which was duly wedded with the crime empties found at the spot with positive A report from the Fire Arms Expert that the said crime empties were fired from the pistol which was recovered from the accused. The medical evidence is also in conformity with the version of the prosecution and thus has strengthened the prosecution case. The simple assertion of the appellants that there was a dispute between the son and the father at the brick-kiln and both had received injuries from each other is without any basis, as neither the appellants have appeared under section 340(2), Cr.P.C. in disproof of the charges levelled against them, nor they have led any evidence in their defence, as such, the case against the appellants stands proved beyond any reasonable doubt and they have been rightly convicted by the learned trial Court.

22. So far as the quantum of sentence is concerned, learned counsel for the appellants contends that the death sentence of Muhammad Riaz appellant, being harsh and severe, may be commuted to life imprisonment, as there is no explanation with the prosecution as to what was the immediate cause of occurrence. According to the learned counsel, if the version of the prosecution is believed, that Muhammad Riaz appellant was sharing the business and was very much loved by the deceased, who had given the hand of his daughter to him and had been financing him for the last 18/20 years, then how suddenly it could occur to the appellant to commit the murder of the deceased. The learned counsel has further argued that there may be some other factor, which might have aggravated the situation and resulted in the ultimate murder of the deceased. Lastly, it is submitted that the appellant Muhammad Riaz would also be entitled to lesser sentence, as, according to the prosecution, he has avenged the murder of his father, by committing the murder of the deceased. We have dispassionately considered this aspect of the matter and are of the view that the contentions thus raised carry weight and can be treated to be mitigating circumstances for converting the death sentence to lesser sentence of life imprisonment. Accordingly, we commute the death penalty to life imprisonment. Death sentence is not confirmed. However, the sentence of fine arid compensation would remain the same.

23. As regards Abdul Waheed, appellant, the sentence awarded to him requires no interference and the same is maintained accordingly.

24. Both the appellants shall be entitled to the benefit of section 382-B, Cr.P.C.

25. With the above modification in the sentence of Muhammad Riaz appellant, this appeal stands dismissed. For the same reasons, Criminal Revision No.58 of 1990 filed by the complainant for the enhancement of sentence also stands dismissed.

26. Murder reference is answered in the negative as the death sentence is not confirmed. N.H.Q./M-1857/L ????? ????????????????????????????????????????????????????????????????????????Order accordingly.