1990 P Cr (PLP)

MUHAMMAD SHARIF, J.

This murder reference, Criminal Appeal No. 27 of 1989 (Muhammad Iqbal and Maqbool Ahmad v. The State) and Criminal Appeal No. 134 of 1984 (The State v. Maqbool Ahmad), which are being decided by means of this consolidated judgment emerge out of the judgment, dated 4-3-1989 pronounced by Mr. Javaid Iqbal Siddiqi, the learned Additional Sessions Judge-1I, Bahawalnagar, who had convicted Muhammad Iqbal, the appellant, under section 302 ~t4 the P.P.C, and had awarded him death penalty and a fine of Rs.10,000 or to suffer two years' R.I. in default thereof. A moiety of the fine, if recovered has been directed to be paid to the hers of the deceased, as envisaged under section 544-A of the Cr.P.C. The learned Additional Sessions Judge has referred this case to us for the confirmation of the death sentence. Muhammad lqbal, the appeal is also held guilty under section 326 of the P.P.C. on each count for causing grievous injuries to Muhammad Din and Ghulam Rasool and was awarded ten years' R.I. on each count and a fine of Rs.10,000 on each count. In default of the payment of fine, he was directed to undergo two years' R.I. on each count. A moiety of the fine, it realized, was directed to be paid try Muhammad Din and Ghulam Rasool, the injured persons.

2. Maqbool Ahmad, the appellant, was exonerated of the charge under section 302 of the P.P.C. and has been convicted under section 32i of the P.P.C. for injuring Ghulam Rasool and was awarded five years' R.I. and a Fine of Rs.5,000 or to suffer six months R.I. in default thereof. One-half of the fine, if recovered, was ordered to be paid by way of compensation to Ghulam Rasool. Maqbool Ahmad was further convicted under section 323 of the P.P,C. for injuring Muhammad Din was awarded one year's R.I. and a fine of Rs.1,000 or to suffer two months' R.I. iii default thereof. One-half of the fine, if recovered was directed to be paid to Muhammad Din injured. All the sentences awarded to both the appellants were, however, ordered to run concurrently Both Muhammad lqbal and Maqbool Ahmad have lodged a joint appeal intended for their acquittal. The State has also lodged Criminal Appeal No. 134 of 1989/BWP against Maqbool Ahmad, the respondent, for the enhancement of his sentence.

3. The facts, which led to the detection of this crime, in substance, are that Ibrahim son of Noor Bakhsh, the complainant, is a cultivator and is a resident of Mauna Landi Dhab Wazirka. About a year prior to this incident, the cattle of Maqbool Ahmad had strayed in the crops of the complainant and had damaged the same. They had a fight inter se and cross-cases under sections 307 and 148/149 of the P.P.C. were initiated against both the parties. In the case lodged by Maqbool Ahmad, there w5're fourteen accuse d and the investigation of the said cases was entrusted to the P.D.S.P. Minchinabad, who declared Ibrahim complainant, Ghulam Rasool son of Muhammad Ali and Allah Bakhsh son of Anwar as innocent. Both the parties were proceeded against under the security cases under section 107/1.il of the Cr.P.C. All these cases were pending before the learned Judicial Magistrate Section 30, Bahawalnagar. Maqbool Ahmad and others felt chagrined on the declaration of the complainant, Ghulam Rasool and Allah Bakhsh as innocent as a consequence of the said inquiry arid they were on a look out to slake the instinct of revenge against the complainant party. Early in the morning, on 30-9-1987 Ibrahim complainant, Muhammad Akbar son of Muhammad Din, Muhammad Din son of Noor Bakhsh, Ismail son of Noor Bakhsh, Ghulam Rasool son of Muhammad Aii and Ibrahim son of Ghulam Rasooi were taking their cotton for sale to Bahawalnagar. The cotton had been loaded on two donkey carts belonging to Sadiq son of Khurshid and Allah Ditta son of Fail. At about 6-00 a.m., when they neared Basti Kotla Dakhli, village Attar Singh Sani, Maqbool Ahmad son of Muhammad Sharif armed with a Sota and Muhammad lqbal armed with a double-barrel gun emerged from the reed bushes near a Sem drain and a sand dune. They were lying in ambush before the arrival of the complainant party there. Muhammad lqbal fired at Muhammad Akbar, which hit him on his chest, who fell down. Muhammad Iqal fired a second shot, which hit Muhammad Din on his left leg. Maqbool Ahmad injured Muhammad Din with his Sota, who received injuries on his head and legs. Muhammad Iqqal loaded his gun and fired is third shot at Ghulam Rasool son of Muhammad Ali and Maqbool Ahmad gave Sota blows to Ghulam Rasool on his legs. Muhammad lqbal then fired the fourth shot and its pellets hit Muhammad Akbar son of Muhammad Din and Ghulam Rasool. The complainant party wanted to apprehend the appellants, but they threatened them with dire consequences and ran away with their weapons of offence. According to the F.I.R. Bagh Ali, Muhammad Farooq and Muhammad Hussain had hatched a criminal conspiracy and abetted this offence.

4. Ibrahim, the complainant, went to the Police Station Saddar Bahawalnagar and lodged the F.I.R. Exh P.J. at 8-15 a.m. on the same day, which was recorded by Muhammad Ramzan, S.H.O. The police went to the spot and picked up four empty cartridges Exh.P.14/1-4, which were taken into possession vide memo. Exh. P.Q. They also collected the blood-stained earth from the spot. The dead body of Muhammad Akbar was sent to the mortuary for autopsy and the injured witnesses were go medically examined.

5. Dr. Shamshad Hussain P.W.6 performed the autopsy on the dead body of Muhammad Akbar on the same day at 12-00 noon and found the following injuries on his corpse: (1) A lacerated wound 6 c.m. x 5 c.m. x 6 c.m. deep under the angle of right mandible with clotted blood. No exit wound. (2) An abrasion 5 c.m. x 1/2 c.m. with burning of skin around the wound in front of heck placed obliquely. (3) An abrasion 3 c.m. x 1/2 c.m. with burning of skin around immediately above injury No.2. (4) A lacerated wound 3 c.m. x 2 c.m. with burning of the tissues around in front of chest on left side in the second intercostals space immediately close to the left sternal boarders with fracture of second rib. No exit wound. (5) A lacerated round wound 1 c.m. x 1 c.m. immediately right to injury No.4 with blackening of its edges. No exit wound. (6) A lacerated round wound 1 c.m. x 1 c.m. immediately under injury No.4 on its left side blackening with fracture of third rib. No exit wound. (7) A lacerated wound 1 c.m. x 1 c.m. immediately under injury No.4 on its right side with fracture of the 4th rib. No exit wound. This Medical Expert has opined that injuries Nos.4, 5, 6 and 7 were collectively sufficient to cause death of Muhammad Akbar in the ordinary course of nature and injuries Nos. 1 to 3 were fired from a distance of one yard whereas injuries Nos. 4 to 7 were fired from a distance of two yards.

6. He had examined Muhammad Din and Ghulam Rasool, the injured persons, on the same day and had found the following injuries on their persons respectively: (1) A lacerated entrance wound of fire-arm 4 c.m. x 3 c.m. x muscle deep" with inverted margins and slight blackening of edges in front of left thigh at the upper part. (2) An exit wound of injury No.1, lacerated 1 c.m. x 1 c.m. x muscle deep with averted margins on the back of left upper thigh. (3) A lacerated entrance wound of fire-arm 3 c.m. x 2 c.m. x muscle deep with margins inverted and blackening on the front of left thigh above injury No.l. (4) An exit wound of injury No.3 lacerated 2 c.m. x 2 c.m. with averted margins on the back of left upper thigh. (5) A lacerated wound 2.5 c.m. x I c.m. in front of left middle leg with swelling and tenderness. (6) A lacerated wound 3.5 c.m. x 1 c.m. on the inner side of right lower leg with swelling and tenderness. (7) A lacerated wound 4 c.m. x 1/2 can. x skin deep at the occipital area of head. Injuries Nos. 1 to 6 were caused by a fire-arm whereas injury No.7 was accused by a blunt weapon. Injuries Nos. 5 and 6 were declared grievous. Injuries on Ghulam Rasool: (1) A destructive wound with lacerated margins at the middle of right leg. Bones were fractured- into pieces. All the tissues were destroyed and blackened. (2) Multiple oval lacerated superficial wound on the back of left arm and elbow joint. (3) Swelling, tenderness and pains at the lower end of right fore-arm. (4) Swelling, tenderness and pains at the left wrist joint. Injury No.2 was declared simple whereas injuries Nos. 3 and 4 were kept under observation, which were subsequently declared as grievous in nature and were caused by a blunt weapon. Injuries Nos. 1 and 2 were sustained by a fire arm.

7. Muhammad lqbal and Maqbool Ahmad, the appellants were arrested on 2-10-1987 by Muhammad Ramzan P.W.15. On the same day, he got removed blood-stained Chaddar P.5 and blood-stained shirt P.6 from the body of Muhammad Iqbal, which was taken info possession vide memo. Exh. P.F. On 5-10-1987, Muhammad lqbal produced his licensed gun P.7, which was secured into a sealed parcel vide memo. Exh. P.G. On the same day, Maqbool Ahmad appellant produced his blood-stained Sota P.8, which was taken into possession side memo. Exh. P.H. After the completion of the investigation, the Challan of the appellants and their accomplices under sections 302, 307 and 109/34 of the P.P.C. was submitted. As a sequel to the impugned trial, the appellants were awarded the afore-mentioned punishment whereas Muhammad Hussain, Muhammad Farooq at 11agh Ali were acquitted,

8. In this case, the learned trial Court has cased on the following pieces of evidence:-- (1) Motive; (2) Ocular evidence; (3) Recoveries and (4) Medical evidence. As regards the motive for the commission of this offence, it has been stated by the complainant that they had a fight against each other when his crop '`ere damaged and cross-cases under sections 307 and 148/149 of the P.P.C. were show that the interested witnesses should not be relied on unless there is sufficient and cogent corroboration to carry conviction on the capital charge. In P L D 1963 SC 17, the principle of benefit of doubt was extended and made applicable when there was a choice between doubting the statement of an eye witness or that of Sub-Inspector of Police. The principle enunciated in all these precedents cannot safely be extended to the facts of the instant case because, in this case, apart from the statement of Ibrahim complainant, two injured witnesses namely, Muhammad Din and Ghulam Rasool have appeared the presence of whom on the spot cannot be doubted. They have consistently stated that both the appellants had injured them and Muhammad Akbar was murdered by Muhammad lqbal with his gun. They had enmity against the appellants, as criminal litigation was going on between them, but their statements have been corroborated by an independent witnesses like Sadiq P.W.13, who is a `Saipy' of the village and renders services to both the factions. He has specifically stated that Muhammad lqbal had killed Akbar and the appellants had injured Muhammad Din and Ghulam Rasool.

17. With reference to the original F.I.R. it has been contended that the scribe of the F.I.R. had written therein that Iqbal appellant was having a Sota whereas Maqbool appellant had a double-barrel gun. This interpolation is obvious from the F.I.R. But towards the conclusion of the F.I.R. the right weapons of offence have been given. In the inquest report too, the right weapons, wielded by each appellant have been mentioned. It could be the slip of pen of Muhammad Ramzan S.H.O. Police Station Saddar, Bahawalnagar, but he has tried to avoid the questions put to him in this regard. The learned counsel for the appellants was posed a question as to what was the advantage of changing the weapons of offence in respect of each appellant in the F.I.R. He could not give a satisfactory answer to this question. It appears that it was a slip of pen, which was corrected by the Police Officer ... and the later part of the F.I.R. has been written as correct. It does not appear that this overwriting was made subsequent to the writing of the entire F.I.R.

18. The recoveries of the blood-stained clothes of Muhammad lqbal appellant have been rightly disbelieved by the learned trial Court, as the incident took place on 30-9-1987 and it was not expected of Muhammad lqbal appellant to have roamed about with the blood-stained clothes till 2-10-1987 so as to incriminate him in this offence. The licensed gun of Muhammad Iqbal was recovered and four empty cartridges had been recovered from the spot and a positive report was received from the Forensic Science Laboratory that these empties had been fired through the gun P.7. It may be noted that the parcel containing the empties was sent on 4-10-1987 and the parcel containing the gun was sent on 5-10-1987. Muhammad Ramzan, the Police Officer, has conceded the fact that the date of sending the parcels has been changed from `5' to `4', which suggests that both the parcels were sent on one and the same date and there was a possibility that the police had fired the cartridges through gun P.7 and the same were sent to the Forensic Science Laboratory. In this manner, the recovery of the gun and the empties is doubtful. Furthermore, even if four fires were shot at the spot, it was not accepted of Muhammad lqbal appellant to have thrown all the empties there and he could have carried at least two empties from the spot in his gun.

19. The recovery of the blood-stained Sota is also doubtful because the recovery was made on 2-10-1987 and Maqbool Ahmad appellant could have destroyed the said Sota or throw it away in the canal. All the recoveries are, therefore, doubtful and do not serve as a good substitute for corroboration of the ocular account of this incident. Suffice to say that Muhammad lqbal had a licensed gun, which he could use on the hour of need.

20. The medical evidence is indicative of the fact that two weapons, a fire arm and a blunt weapon, were used in this crime. The learned counsel for the appellants has stated that blackening has been found on the wounds and the complainant and the injured witnesses have described the distance between Muhammad lqbal appellant and his victims as two to five Karams. It may be noted that the incident took place before sunrise and the rustic villagers like Ibrahim, Muhammad Din and Ghulam Rasool did not possess the minute sense of distance between the appellants and the victims. This fact is not enough to brush aside their evidence. The medical evidence corroborates the fact that Muhammad Akbar was killed by a gunshot and Ghulam Rasool and Muhammad Din were injured by the pellets as well as by a blunt weapon.

21. Much prominence has been attached to the investigation of this case which, according to the learned counsel for the appellants, was dishonest. The recoveries in this case have, therefore, been doubted and this is why, the recoveries effected by the Police Officer have been disbelieved. The partial tainted investigation of this case does not prove fatal to the prosecution case because the ocular evidence of the complainant and the injured witnesses has been supported by an independent witness like Sadiq P.W.13, the medical evidence and the motive for the commission of this crime. 22. 1t has been argued that the F.I.R. had been written at the spot. The statement of Ghulam Rasool P.W.9 has been referred to, who has stated that his statement was recorded by the Police Officer at the spot and the statement of Muhammad Din P.W.10 was also recorded at the same time in his presence. He could not tell if the police had recorded the statement of anybody else at that time when he was not in his proper senses. This fact does not suggest that the F.I.R. was recordcd at the spot because Ibrahim P.W.8, the complainant, and Muhammad Ramzan P.W.15, the scribe of the F.I.R., have pointedly stated that the F.I.R. was recorded at the police station.

23. The prosecution case has been established against Muhammad Iqbal and Maqbool Ahmad appellants. There is no mitigating or extenuating circumstance in favour of Muhammad Iqbal for the reduction of his sentence. The learned counsel for the appellants did not moot this point at all in his arguments. We, therefore, confirm the death sentence awarded to Muhammad Iqbal appellant f and dismiss his appeal. Maqbool Ahmad appellant has also been found guilty and his appeal also merits dismissal.

24. The State has lodged an appeal for the enhancement of sentence awarded to Maqbool Ahmad appellant. On the background of enmity, both Muhammad Iqbal and Maqbool Ahmad appellants were hiding in the reed C bushes in order to murder the complainant party and in their bid to do so, Maqbool Ahmad appellant shared the common intention to kill Muhammad Akbar and injured the others. Mr. Abdul Rehman Tayyib, Advocate, learned counsel for the appellants has cited Bashir Ahmad and others v. The State P L D 1988 SC See and has defended Maqbool Ahmad on the plea that the common incretion can develop at the spur of the moment and the negative of it can also he presumed in the circumstances of the case. We are in respectful agreement with the principle enunciated in this precedent, but the circumstances do not warrant that Maqbool Ahmad had changed his mind to share the common intention at the: spur of the moment. Had he not injured any person in this crime, then it could be presumed that he had changed his mind to share the common intention of his accomplices. The principle embodied in this precedent is not applicable to tile case of Maqbool Ahmad.

25. Even if Maqbool Ahmad did not touch the deceased, his common intention is evident that he had gone with Muhammad lqbal appellant and was lying in ambush in the reed bushes to attack and kill the persons of tile (1 complainant party. He is, therefore, found guilty under section 302 of the P.P.C. and is awarded imprisonment for life and a fine of Rs.10,000 In default of the payment of fine, he shall suffer R.I. for two years. A moiety of the: fin,:, if recovered, shall be given to the heirs of Muhammad Akhar deceased. The remaining sentences awarded to Muhammad lqbal and Maqbool Ahmad appellants have been kept intact. The reference is answered accordingly.

26. The appeal riled by the State (Criminal Appeal No.134 of 1989/B\VP.) succeeds and the sentence of Maqbool Ahmad has been accordingly enhanced N.H.Q./M-1916/L Order accordingly.