1997 P Cr (PLP)

Ghulam Haider was tried for offence under sections 302, 307, 364, 148/149, P.P.C. for the murder of Sarwar. Learned Additional Sessions Judge, Sahiwal, vide judgment, dated 21-7-1994 convicted him under section 302/149, P.P.C. and sentenced to imprisonment for life. He was also given the benefit of section 382-B, Cr.P.C. His co-accused had already been tried and convicted by a separate judgment. Ghulam Haider could not be tried with them because he remained an absconder. Ghulam Haider convict has appealed. This judgment shall dispose of the same.

2. Prosecution story, in brief, as disclosed in statement Exh. P.U. made by Muhammad Saee, P.W., recorded by Khadim Hussain, S.H.O., P.W.18, was to the effect that a few years earlier, Mst. Shahnaz, daughter of Bahadur was abducted by Mansab regrading which a case was registered Mst. Shahnaz as well as Mansab were sentenced to five years' imprisonment. Thereafter, said Mansab was sentenced to ten years' imprisonment in a murder case. About 2-1/2 years before registration of the present case, Mst. Shahnaz after serving her sentence came out of jail and went to Muhammad Anwar, brother of Mansab, and started living there. Bahadur demanded the return of his daughter from Anwar, in which Sarwar, brother of the first informant helped Anwar and Mst. Shahnaz was not returned, therefore, said Bahadur got a case registered for abduction of Mst. Shahnaz against first informant's brother Sarwar, Muhammad Amin, Mst. Saido, Sarfraz and Mst. Khatoon, in which the accused persons were challaned. On 10-9-1988 it was the date of hearing before the Sessions Judge, Toba Tek Singh, therefore, the first informant with his brother Sarwar Hakim Ali, Mst. Saido, sister of the first informant, Mst. Khatoon, Muhammad Amin, Muhammad Anwar, Gulsher with Mst. Shahnaz and Bahadur, after attending to the date of hearing were coming back in bus, which was being driven by Muhammad Rafique, driver. When the bus reached within the area of Chak No.323/JB, a person sitting behind the driver seat, asked the driver to stop the bus. In the meanwhile, a wagon bearing NO. I$-9285, white coloured, which was already standing there, the driver of that wagon parked it in the middle of the road. Bahadur armed with .32 bore revolver, Ghulam Haider with .12 bore gun, Sarfraz (since dead) with .12 bore gun, Khizar with knife, alongwith Shakir (since dead), Atta and four other unknown persons emerged from the wagon. Said four unknown persons stood in front of the bus, whereas Ghulam Haider and Sarfraz started firing with their guns. Bahadur fired his revolver and Khizar, Shakir and Atta entered the bus. Shakir gave a Sota blow landing on the left hand of Mst. Khatoon (not produced). Thereafter, Atta gave Sota blows to Mst. Saido (not produced). Shakir (since dead) gave a Sota blow, which landed on the back and left arm of Gulsher, P.W. Atta gave Sota blow on the left shoulder of Mt4hammad Amin. Shakir (since dead) and Atta gave Sota blows to Hakim Ali, P.W. Thereafter, Khizar gave a knife blow on the left cheek of Hakim Ali. The passengers of the bus got down in panic. Bahadur with his .32 bore revolver, and Sarfraz (since dead) with gun entered the bus. Bahadur fired hitting on the left elbow of Anwar. It was followed by Sarfraz who fired hitting Sarwar on his left flank, whereupon he died at the spot. Thereafter, the accused persons forcibly took away Mst. Shahnaz in the same wagon in order to murder her. Therefore the present case. Occurrence in this case took place on 10-9-1988 at 11-30 a.m. on Toba Tek Singh Road, within the area of Chak No.323/JB, 1/2 Km. from Police Station City, Toba Tek Singh. Complaint Exh. P.U. was made the same day at 12-30 p.m. by Muhammad Saee (not produced), which was recorded by Khadim Hussain, S.-I., P.W.18, whereupon formal F.I.R. Exh.P.U./1 was drawn the same day at 12-50 p.m. on the basis of statement Exh. P.U., drawn by Naematullah, N.H.C., P.W.7. Khadim Hussain, S.H.O., P.W.18, on receiving information went to the spot and recorded complaint Exh. P.U. of Muhammad Saee, and sent the same to police station for registration of a case. He prepared injury statement Exh. P.B. and inquest report Exh. P.C. of the deceased. He also prepared injury statements of injured/P.Ws., namely, Hakim Ali, Muhammad Amin, Mst. Khatoon, Mst. Saido and Gulsher vide Exhs. P.J., P.M., P.E., P.H. and P.O. respectively. He took into possession broken window-pans of the bus. He secured three crime empties from the spot. He then proceeded to the hospital escorting the dead body of Sarwar and injured. Muhammad Yasin, F.C. produced before him the last-worn clothes of the deceased, which he took into possession vide memo. Exh. P.T. He got prepared photographs of the bus vide Exh.P.S./1-12. He recorded the statements of the witnesses in the hospital. On 25-9-1988 he secured Wagon No.9285/FDJ from Sabir accused vide recovery memo. Exh.P.W.18/P. He obtained proclamation from the Ilaqa Magistrate against the appellant, who was absconder. On 18-11-1988 he got prepared site plan Exhs. P.X. and P.X./1 from Patwari and gave his notes in red ink thereunder. After completion of the investigation he submitted challan against the co-accused. Ghulam Haider was arrested by Tariq Mahmood Inspector on 27-3-1991 and challan against him was submitted by Sadullah Khan, Inspector. P.W.1 Dr. Farooq Raza, the then Casualty Medical Officer, D.H.Q. Hospital, Toba Tek Singh, on 10-9-1988 at 3 p.m. conducted the post-mortem examination on the dead body of Sarwar, and found the following injuries:-- (1) A fire-arm wound of entrance with inverted edges 3 x 1-1/2 c.m. x D.N.P. burnt area around the wound on the back of left laternal chest on its lower part. , (2) A lacerated wound 1 /2 x diameter with everted margin in front of the upper part of right chest. (3) A lacerated wound 1 x 1/2 c.m. with everted margins on anterior axillary line 4 c.m. away from the right nipple of chest. (4) A lacerated wound .8 c.m. x 1/2 c.m. with everted margins on the right axilla 10 c.m. from the right nipple of chest. (5) A lacerated wound 1/2 x 5 c.m. everted margins 4 c.m. below the right nipple. On the same day he also examined Mst. Khatoon and found two simple injuries caused with blunt weapon. On the same day he also examined Mst. Saido (not produced) and found two simple injuries with blunt weapon. On the same day at 3-15 p.m. he medically examined Hakim, P.W., -and found the following injuries:-- (1) Cut wound 2 x 1/2 c.m. x muscle deep on left cheek 1 c.m. below left lower eye lid and left conjunctive was congested. (2) Abrasion mark 2-1/2 x I c.m. on the back right leg. (3) Abrasion mark 1/2 x 1/2 c.m. on back of right hand. The same doctor also examined Muhammad Amin (not produced) and found a simple injury. The same day he had examined Gulsher, P.W., and found two injuries on his person, which were caused with blunt weapon. P.W.2 Dr. Abdul Rahim Bhatti, Senior Medical Office; D.H.Q. Hospital, Toba Tek Singh on 10-9-1988 at 1-30 p.m. medically examined Anwar. P.W. and found the following injuries:-- (1) A fire-arm entrance wound 1 c.m. in diameter x unprobed on the back of upper part of left forearm, 3 c.m. below the elbow joint. Edges were inverted. (2) A contusion 3 c.m. x 2 c.m. on the back of middle part of left chest. (3) A swelling 9 c.m. x 7 c.m. on the back of right upper arm lower part.

3. Prosecution in support of its case produced 18 witnesses in all. P.Ws.1 and 2 are the doctors, who conducted the post-mortem examination on the dead body of Sarwar as well as medically examined the injured, and have already been discussed. Anwar Raza, Press Photographer, P.W.3 took photographs of the bus. P.W.4 Tariq Mehmood, Inspector/S.H.O., on 27-3-1991 arrested Ghulam Haider appellant. At that time the appellant was in possession of .12 bore unlicensed gun, therefore, he got another case under Arms Ordinance registered against him. P.W.7 Nematullah, M.H.C., had recorded formal F.I.R. Exh.P.U./1. Muhammad Irshad, the then M.H.C., P.W.8, had kept the sealed parcel in safe custody in Malkhana. P.W.14 Abid Hussain, Patwari had prepared site plan Exhs. P.X. and P.X./1 on the directions of the police. Ashiq Ali, A.S.-I., P.W.15 was entrusted with non-bailable warrants of Mst. Khatoon and Mst. Saidan, but they could not be executed as they were not available. The eye-witness account was furnished by Hakim Ali and Gulsher, P.Ws.16 and 17, respectively. The case was investigated by Khadim Hussain, S.H.O., P.W.18. The rest of the witnesses were formal, therefore, need not be discussed. At the conclusion of prosecution evidence, the appellant was examined without oath, wherein he refuted the prosecution allegations and pleaded innocence. He, however, did not appear in his defence on oath nor produced any defence evidence.

4. Learned counsel for the appellant contended that the case against the appellant was not proved at all. Argued that there was long-standing enmity between the parties, which has also been accepted in the F.I.R. Submitted that the appellant side was aggrieved party as far as Mst. Shahnaz, his niece was concerned, and on the fateful day the appellant with others wanted to have his niece restored which led to the unfortunate incident. Asserted that previously they did not take the law into their hands, but got two cases registered for abduction of Mst. Shahnaz, therefore, in the present incident something serious must have happened which led to the incident. Learned counsel for the State opposed the contentions.

5. I have heard the learned counsel at length and gone through the evidence with his assistance. As far as the recoveries from the spot are concerned, they may not be of much help because .12 bore empties recovered from the spot were allegedly fired by an accused who has since died. Ocular account was furnished by Hakim Ali and Gulsher, P.Ws.16 and 17, respectively. They corroborated the prosecution version and ascribed overt act to the appellant. After going through their statements, I am of the view that a strong enmity existed between the parties. P.W.17 Gulsher admitted in cross- examination that Ghulam Haider appellant did not enter the bus, but he kept on firing in the air. Admittedly Mst. Shahnaz, daughter of Bahadur, was abducted by the prosecution side, for which Mansab real brother of Muhammad Anwar, and Mst. Shahnaz were convicted. After serving the period of sentence, Mst. Shahnaz, instead of going to the house of her parents, chose to live with Muhammad Anwar, real brother of Mansib. Efforts for return of Mst. Shahnaz made by the appellant side failed therefore, another case was got registered. On the fateful day it was the date of hearing of the said case. Since some of the witnesses were injured, therefore, their presence at the spot cannot be doubted. However, it is held that they are not coming out with the whole truth. Some of the co-accused of the appellant, who were given the benefit of doubt and acquitted. Most of the witnesses who were injured, were withheld and not produced. In these circumstances, I am of the considered view that the occurrence did take place, but not in the manner as alleged by the prosecution. ` Both the parties were confronted in, the bus where appellant side wanted the restoration of Mst. Shahnaz, which led to an ugly situation and resulted in death of Sarwar and injuries to number of persons. When the appellant side confronted with the prosecution witnesses with whom Mst. Shahnaz was also present, it certainly would have been a situation, which gave rise to grave and sudden provocation as well. The upshot of the discussion is that the appeal is partly accepted, conviction and sentence of the appellant recorded under section 302/149, P.P.C. is converted to section 304, Part 1, P.P.C. and is reduced from imprisonment for life to seven years' R.I. He shall also be given the benefit of section 382-B, Cr.P.C. N.H.Q./G-313/L Order accordingly.