1988 PLP 1493 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑These two appeals, bearing Nos.151 and 152 of 1986, by leave, arise from the judgment of a learned Division Bench of the Lahore High Court, dated 7th July, 1985.

2. Five persons, namely, Muhammad Ali, Abdul Haq, Azhar‑ul- Hassan, Muhammad Ramzan and Muhammad Hussain, residents of Chak No.75/R.B., Police Station Khurrianwala, District Faisalabad, were charged under sections 302/149 and 148 P.P.C. for committing the murders of Muhammad Yaqub and Ghulam Nabi on the morning of 2‑9‑1979 at 8'0 clock. The occurrence took place in Killa No. 4, Square No.48 of Chak No.75/R.B., District Faisalabad. The report of the occurrence was lodged by Inayat Ali (PW 12), father of Muhammad Yaqub deceased, the same day at 9.30 a. m. in Police Station Khurrianwala on the information conveyed to him by Muhammad Aslam Saleem (PW 13). It was alleged in the F.I.R. by Inayat Ali that his son Muhammad Yaqub was Line Superintendent WAPDA at Faisalabad and was also the Vice‑President of Pakistan Labour Union WAPDA. Muhammad Ali was involved in a number of theft of bullocks, was charged under section 379 P.P.C. and was an absconder. Subsequently Muhammad Ali was arrested at the instance of his son Muha‑mad Yaqub. Last evening at 7.00 Muhammad Ramzan, his co‑villager, came to Muhammad Yaqub and asked about his programme on the following day who was informed by his son that he would leave for duty to Faisalabad at 7/8 in the morning. That day at about 8 a.m. his son Muhammad Yaqub alongwith Ghulam Nabi, his co‑villager, left for Faisalabad on his motor‑cycle bearing No.FBA‑3815. When the two had arrived near Square No.48 situate at a distance of one mile, Muhammad Ali armed with a .12 bore shotgun, Muhammad Ramzan armed with a .12 bore shotgun, Azhar‑ul‑Hassan armed with toka, Abdul Haq and Muhammad Hussain empty‑handed emerged from the sugarcane crop in Killa No.4 and all of a sudden Muhammad Ali fired at Muhammad Yaqub, as a result of which he received injuries in his left flank and fell down from his motor‑cycle. The second shot was fired by Muhammad Ramzan hitting Ghulam Nabi on his chest and felled him down. Thereafter Abdul Haq and Muhammad Hussain caught Muhammad Yaqub by his arms and legs, Muhammad Ali handed over his gun to Azhar‑ul‑Hassan, took the toka from him and inflicted injuries on the neck, face and hands of Muhammad Yaqub. Both the inured died at the spot. The occurrence was witnessed by Zulfiqar and Muhammad Aslam Saleem, the co‑villagers of Inayat Ali, who were present in the vicinity of the spot. The motive given in the F.I.R. was that 7/8 days prior to the occurrence Muhammad Ramzan, Azhar‑ul‑Hassan and Abdul Haq had come to the complainant and told him that he should ask his son Muhammad Yaqub and Ghulam Nabi to desist from interfering in their affairs, otherwise they would pay heavily for it.

3. This report was recorded by Munir Hussain (PW 15) which is Ex.P.K. He visited the spot and started with the investigation of the case. The dead bodies were sent for post‑mortem examination. He also took into possession blood‑stained earth from two places where Muhammad Yaqub and Ghulam Nabi deceased were lying. Two empties EX.P.15/1‑2 were also recovered vide recovery memo Ex.P.N. He also collected three pellets Ex.16/1‑3 from the place of occurrence, sealed them into parcel and took into possession vide memo Ex.P.O. He also took into possession motor‑cycle Ex.P.22 vide memo Ex.P.T. and certain other articles vide memo. Ex.P.S. He also took into possession the last worn clothes of the two deceased vide memos EXS.P.B. and P.C. On 5‑9‑1979 he arrested Muhammad Ali appellant and took into possession from him a pair of shoes which was identified by Zulfiqar and Muhammad Aslam P.Ws. as belonging to Muhammad Yaqub deceased vide memo Ex.P.U. Azhar‑ul‑Hassan, Abdul Haq and Muhammad Ramzan accused were also arrested. On 17‑9‑1979 Muhammad Ali appellant while in police custody led the investigating officer to the recovery of .12 bore S.B.shotgun EX.P.11, a blood‑stained toka Ex.P.12, a blood‑stained kurta Ex.P.13 and a blood‑stained chaddar Ex.P.14 from his residential house lying in a steal box, vide memo Ex.P.J. The bloods‑tained clothes belonged to Muhammad Ali appellant. The site plan of the place of occurrence was also got prepared by this P.W. through Muhammad Ibrahim Patwari. All the articles recovered were kept in malkhana for safe custody. The statements of the P.Ws. were recorded by the witness in hand and after the completion of the investigation, the accused were sent for trial to the Court, whereas proceedings under section 512 Cr.P.C. were initiated against the absconding accused, namely, Muhammad Hussain.

4. At the trial, the prosecution in support of its case produced as many as fifteen witnesses including Dr.Bashir Hussain Kahlon (P.W. 8). The post‑mortem examination on the dead body of Muhammad Yaqub was performed by Dr. Bashir Hussain Kahlon on 3‑9‑1979 at 8.45 a.m. who found as many as 12 incised wounds of various dimensions on various parts of the body of the deceased. Eight firearm wounds of the dimension of 2 c.m. x 1 c.m. and 1 c.m. x 1 c. m. were also found on the abdomen, lower chest and right side of the abdomen at the back of the right lumber region. Margins of some of the wounds were black. Two abrasions c.m. x c.m. each on the front of right upper chest were also found on the person of Muhammad Yaqub deceased. The stomach and liver were found torn badly against injuries Nos.6 and 7, large intestines contained faecal matter and the bladder contained two ounces of urine. Death, according to the doctor, was due to shock and haemorrhage as a result of injuries 1,6 and 7 collectively, which were sufficient to cause death in the ordinary course of nature. The incised wounds were caused by sharp weapon and the two abrasions with blunt means. Two pellets removed from the right lumber region were handed over to the police alongwith the clothes of the deceased. On the same day at 8 a.m., the said doctor also conducted post‑mortem examination on the corpse of Ghulam Nabi deceased and found six firearm wounds 1 c.m. x 3/4 c.m. going deep into the chest on the front of right upper chest. The margins were black and scorched. There were four exit wounds 3/4 c.m. x 3/4 c.m. on the back of right chest. An abrasion 5 c.m. x 2 c.m. was also found on the right elbow. The firearm injury had fractured the right second and third ribs on the front side and on the back the third right rib was also found fractured. The right lung was torn badly against injury No. l and so was right auricle of the heart through and through. On opening the abdomen, the stomach was found full of blood‑stained fluid. Large intestine contained faecal matter and the bladder contained two ounces of urine.

5. Muhammad Ali appellant in his statement under section 342 Cr. P. C . has denied all the charges levelled against him by the prosecution. He also denied the recovery of the pair of shoes Ex.P.23/1‑2 belonging to Muhammad Yaqub deceased from his possession. He further denied the recovery of gun Ex.P.11 and blood‑stained toka Ex.P.12 from his house at his pointation. He stated that the gun and the toka belonged to Inayat Ali P.W. and these weapons were produced by him. He also disowned the blood‑stained Kurta Ex.P.13 and Chaddar Ex.P.14 and denied their recovery from his house at his pointation. As to the recovery of the .12 bore empty cartridges Ex.P.15/1‑2 he stated that the same were fabricated by the police. He pleaded innocence and alleged that he was charged due to enmity and produced certain documents at the trial in his defence. Muhammad Ramzan appellant and the acquitted co‑accused Azhar‑ul‑Hassan and Abdul Haq in their statements under section 342, Cr.P.C. denied all the charges levelled against them by the prosecution. They pleaded alibi at the trial and in support produced some evidence. All the three pleaded innocence and stated that they were charged because of enmity.

6. The trial, however, culminated in the conviction of the two appellants and their co‑accused under sections 302/149 and 148 P.P.C. vide judgment dated 6‑1‑1983. Muhammad Ali and Muhammad Ramzan appellants were thus sentenced to death and to a fine of Rs.5,000 or in default to two years' R.I. On realization of the fine, the same was ordered to be paid to the legal heirs of the deceased as compensation. They were also sentenced to two years' R.I. under section 148 P.P.C. As for Abdul Haq and Azhar‑ul‑Hassan, since they did not inflict any injury to the deceased, they were sentenced to imprisonment for life and to a fine of Rs.5,000 each or in default to two years' R.I. each. They were also sentenced to two years' R.I. under section 148 P.P.C. The sentences were, however, ordered to run concurrently. The fine on realization was ordered to be paid to the legal heirs of the deceased as compensation.

7. The above judgment was subject‑matter of two separate appeals by the two appellants and their acquitted co‑accused. A revision was also filed by the complainant for enhancement of the sentence of Abdul Haq and Azhar‑ul‑Hassan. All the three matters came up before a learned Division Bench of the Lahore High Court who vide judgment dated 7th July 1985 while acquitting Abdul Haq and Azhar‑ul‑Hassan of the delict maintained the conviction and sentence of Muhammad Ali and Muhammad Ramzan appellants.

8. Against the judgment of the High Court, Muhammad Ramzan and Muhammad Ali filed two separate petitions for leave to appeal against their conviction and sentence, and Inayat Ali complainant had submitted two petitions against the acquittal of Abdul Haq and Azhar ul‑Hassan. Leave was refused against the acquittal of Abdul Haq and on the ground that the High Court had given cogent reasons for their acquittal. Leave was, however, granted to Muhammad Ramzan and Muhammad Ali appellants for the re‑appraisal of the evidence in the interest of safe dispensation of justice.

9. The prosecution in this case has relied upon the ocular evidence of the incident furnished by Muhammad Aslam Saleem (PW 13) and Zulfiqar Ali (PW 14); the medical evidence; the recoveries of the weapons of offence and other incriminating articles from the place of occurrence and, of course, .the opinions of the Arms Expert and the Serologist. The motive for the offence has been furnished by Inayat Ali (PW 12) who has lodged the F.I.R. on the information about the occurrence given to him by Muhammad Aslam Saleem. At the trial the version of the occurrence given by the two eye‑witnesses is almost identical to the one given in the F. I. R. They have consistently accused the two appellants' for committing the murder of Muhammad Yaqub and Ghulam Nabi. They have assigned the, role of firing a shot by Muhammad Ali appellant at Muhammad Yaqub and by Muhammad Ramzan appellant at Ghulam Nabi with their respective shotguns. They further alleged that after firing affectively at Muhammad Yaqub, Abdul Haq dragged Muhammad Yaqub from his motor‑cycle and felled him down on the ground and then Muhammad Hussain, the absconding accused, caught hold of the hands of Muhammad Yaqub and Muhammad Ali appellant who was handed over the toka by Azhar‑ul‑Hassan gave him (Muhammad Yaqub) a number of blows on his neck and other parts of his body and then left the spot. Thereafter leaving Zulfiqar Ali P.W. at the spot, Muhammad Aslam Saleem P.W. rushed to the house of Inayat Ali P.W. and narrated the occurrence to him, whereupon Inayat Ali came to the spot and finding the two deceased lying there, left for the police station to make a report.

10. Though the presence of the two eye‑witnesses at the spot at the crucial time has been severely criticized by the learned counsel for the appellants but we are not impressed at all, firstly, because the occurrence was alleged to have taken place at 8 in the morning when the two deceased were on their way to Faisalabad on motor‑cycle, the report of which was made in about an hour's time in the police station situate at a distance of four miles from the place of occurrence, this report could not have been made so promptly by Inayat Ali P.W. unless the two witnesses were present, one of whom, namely, Muhammad Aslam Saleem, rushing to his house and informing him about the occurrence; and, secondly, there existed a very strong circumstance which. has established the presence of Muhammad Aslam Saleem and Zulfiqar Ali P.Ws at the spot at the relevant time. According to Munir Hussain, the Investigating Officer, who. appeared as P.W.15, he reached the spot within 15 to 20 minutes of recording the F. I. R., made a number of recoveries of incriminating and other articles through recovery memos. All these recoveries were made in the presence of Muhammad Aslam Saleem and Zulfiqar Ali P.Ws and all the memos. bore the signatures of these two P.Ws. Had these P.Ws not been present at the spot, these memos could not, have been signed by C them.. We, therefore, agree with the Courts below that, the two eye‑witnesses namely, Muhammad Aslam Saleem and Zulfiqar Ali, were present at the spot and have witnessed the occurrence.

11. So far as the contention that Muhammad Aslam Saleem and ZuIfiqar Ali P.Ws are highly interested witnesses and should not be relied upon is concerned, it too has no merits. True that of the two eye‑witnesses, Zulfiqar Ali (PW 14) is related to the complainant party, but there is nothing on the record that there existed any acute enmity between him and the appellants and, therefore, he has implicated them falsely to grind his own axe. Similarly, Muhammad Aslam Saleem (P.W. 13) is a neighbour of Inayat Ali P.W. and is not at all on inimical terms with the appellants, therefore, under no circumstance, it can be said that the witnesses were interested. True again that there are contradictions in the statements of these two witnesses but it is also true that in this case there were as many as three investigations, so the contradictions, if any, were but natural. In any case we find that the eye‑version account furnished by Muhammad Aslam Saleem and Zulfiqar Ali P.Ws does find strong corroboration from the medical evidence, the motive and other circumstantial evidence so far as the case of Muhammad Ali appellant is concerned. The case of the prosecution qua him is that when the two deceased were going on the motor‑cycle, Muhammad Ali appellant had fired at Muhammad Yaqub effectively and when he was dragged and felled down on the ground, it was Muhammad Ali appellant who gave him blows with toka injuring him on various parts of his body. The fact that Muhammad Yaqub was fired at and given toka blows has been fully corroborated by the medical evidence in that he had on his person a number of firearm and incised wounds. According to the eye‑witnesses, these injuries were received by Muhammad Yaqub at the hands of Muhammad Ali appellant. The shotgun bearing N0.285(EX.P.11) blood‑stained toka (Ex.P.12), blood‑stained kurta (Ex.P.13) and blood‑stained chaddar (Ex.P.14) were recovered from the house of Muhammad Ali appellant at his pointation. According to the report of the Arms Expert, the two empties (Ex.P.15/1‑2) found at the place of occurrence had been fired from shotgun bearing No.285. Similarly. the Serologist has opined that the toka, the kurta and the chaddar were stained with human blood. The motive to commit the offence had been attributed to Muhammad Ali appellant and the same is established through cogent evidence.

12. As for the last contention of the learned counsel for the appellants, the same too would not prevail because besides the ocular evidence which is consistent, there is other overwhelming circumstantial evidence from independent sources which goes a long way to establish the case of the prosecution against Muhammad Ali appellant. The view, therefore, that we take in the case of Muhammad Ali is that his appeal has no merits and the same is dismissed.

13. So far as Muhammad Ramzan appellant is concerned, though he has been accused by the two eye‑witnesses of firing at Ghulam Nabi but this has been belied roots and branches by the report of the Arms Expert who vide his report Ex.P.GG has opined that the two empties recovered from the place of occurrence had been fired from the shot‑gun EX.P.11 which has been recovered from the house of Muhammad Ali appellant at his pointation. Therefore, the involvement of Muhammad Ramzar, appellant in the commission of the crime is not free from doubt. His appeal is, therefore, accepted. He shall be released forthwith' if not required in any other case. M. I. /M‑47015 Order accordingly.