1999 P Cr (PLP)

CH. IJAZ AHMAD, J.

The learned Additional Sessions Judge, Kasur vide judgment, dated 20-10-1992 has convicted and sentenced the appellants for the murder of Abbas Ali aged 30 years as follows:-- (1) Abdul Ghafoor, aged 30 years, under section 302(a)/34, P.P.C. Death with compensation of Rs.20,000 under section 544-A, Cr.P.C. or default 6 months' S. I. If recovered will go to the legal heirs of deceased. (2) Muhammad Siddique, aged 40 years, under section 302/34(b), P. P. C. Imprisonment of life; compensation of Rs.20,000; or default 6 months' R.I., if recovered will be paid to the legal heirs of deceased.

2. It is pertinent to mention here that other co-accused namely, Muhammad Nawaz, Muhammad Aslam and Allah Ditta were acquitted by giving benefit of doubt:

3. The convicts have filed Criminal Appeal No.878 of 1992 against the conviction and sentence. We have also Murder Reference No.396 of 1992 for the confirmation of death sentence of convict, Abdul Ghafoor. This judgment shall dispose of criminal appeal and a reference.

4. The occurrence took place on 3-3-1991 at 6 p.m. in the shop of the deceased, Abbas Ali in the village Sattoki, Tehsil and District Kasur at a distance of 6 miles from Police Station Mustafabad. Statement (Exh.P.G.) was made by Rehmat Ali, P.W.8 father of the deceased recorded by Liaqat Ali Shah, Inspector/S.H.O., P.W.10, at about 7 p.m. in Police Station Mustafabad on the same day and the formal F.I.R. was recorded at 7-35 p.m. by Muhammad Hussain, S.-I./P.W.7.

5. In the F.I.R. the occurrence is reported to have been taken place allegedly in the manner that the complainant is resident of village Sattoki and is running a grossery shop in the village. On the day of occurrence i.e. on 3-7-1991 at 6-00 p.m. his only son Abbasi Ali who was present in the shop; whereas, complainant alongwith Ashraf son of Barkat Ali, caste Rajput, resident of village was sitting inside the shop towards eastern wall of the shop; that Abdul Ghafoor son of Rang Ellahi armed with .12 bore double-barrel gun, Siddique alias Baba son of Shahab Din armed with .12 bore single-barrel gun, Muhammad Nawaz son of Shah Muhammad armed with .12 bore carbine, Allah Ditta alias Boota son of Mahan armed with .12 bore single-barrel gun, Muhammad Aslam alias Mudhi son of Muhammad Saeed armed with Takwa, all Rajput by caste, resident of village came there. Muhammad Aslam alias Modhi raised a Lalkara that Abbas Ali be taught a lesson for murdering Muhammad Younas; whereupon, Abdul Ghafoor fired hitting Abbas Ali on right chest which was immediately followed by second fire made by Muhammad Siddique with his gun hitting on the right knee. Then Muhammad Nawaz fired with his carbine. The pellets of which hit right shoulder. Abbas Ali after having become injured took turn towards right side and after having fallen started writing (sic) in pain. Allah Ditta fired at him in that position pellets of which hit on left rib. Complainant and Muhammad Arshad raised alarm. Accused ran away while firing.

6. The motive as alleged by the complainant was that about six and half years ago son of complainant i.e. Abbas Ali deceased murdered brother of Abdul Ghafoor accused. Complainant, his son Abbas Ali, Muhammad Ayub son of Muhammad Hussain, Muhammad Yousuf son of Nazir Ahmad, all Rajput by caste, resident of the village were challaned. Complainant was acquitted in the said case; whereas; Abbas Ali etc. three persons were sentenced to 25 years each. Son of complainant was released on bail about 2-1/2 years ago who was murdered by the aforementioned accused as a result of their premeditation.

7. Dr. Zulfiqar Ahmad, Medical Officer, D.H.Q. Hospital, Kasur conducted the post-mortem examination on the dead body of Abbas Ali aged 30 years and found the following injuries:- (1) A wound of entry 5 x 4 c.m. on chest in front just below the inner part of right clavical with black margines. (2) A wound of entry with black margines, 1 x 1 c.m. on right shoulder on front. (3) A wound of exit 2 c. m. x 1 c. m. right shoulder in front 1-1/2 c. m. apart from injury No.2. (4) An abrasion 1 c.m. x 1 c.m. just below the injury No.3. (5) A wound of entry 1 c.m. x 1 c.m. inner side of upper lip in left outer part. (6) A wound of exit 1-1/2 c.m. x 1 c.m. on left cheek outer to the left angle of mouth. (7) Multiple wounds of entry and exit seven in number ranging from 1/2 x 1/2 c.m. x 1 x l c.m. on left side of the chest below the left arm pit and on the back in area 10 x 6 c. m. (8) Fire-arm injury with black margines 10 c.m., x 6 c.m. on right knee in front with right femur bone broken. (9) A wound of entry 1 x 1 c.m. back of right thumb. On dissection right first and second ribs were broken from front and left seventh and either ribs were broken in middle. Opinion: In my opinion the cause of death in this case was excessive haemorrhage and shock due to injuries Nos.1, 7 and 8 causing damage to vital organs namely heart, left lung spleen which is sufficient to cause death in ordinary course of life. Injuries were due to fire-arm weapon. All injuries were ante-mortem. Probable time between injuries and. death was between 10 to 20 minutes approximately. Between death and post-mortem sixteen hours approximately. After the post-mortem examination I handed over to the police, police papers, a sealed phial containing pellets and post-mortem report. "

8. The blood-stained earth was taken into possession from the spot on 3-3-1991 vide memo. Exh.P.F. which was attested by Liaqat Ali Shah, Inspector/P.W.10, Shaukat Ali P.W.6 and Muhammad Arshad were given up as won-over. Liaqat Ali Shah, Inspector/P.W.10 arrested all the accused/appellants on 15-3-1991. On the pointation of Muhammad Siddique convict gun P.5 was recovered from his residential house vide memo. Exh.P.C., dated 25-3-1991 and attested witnesses are Manzoor Ahmad, P.W.9, Muhammad Ashraf, Constable, P.W.3 and Muhammad Arshad were given up. On the pointation of Abdul Ghafoor, appellant/convict on the same day gun P.6 was taken into possession vide recovery memo. Exh.P.D. and attested witnesses are the same. It is pertinent to mention here that learned Additional Sessions Judge ignored the recovery of gun on the ground that the recovery of weapons does not advance the prosecution case nor it carries any corroboration/value, no empty was found on the spot which could match the gun. The recovery, therefore, does not link the appellants with the crime.

9. The prosecution produced P.W.8, father of the deceased Rehmat Ali and Muhammad Ayub, P.W.5 and Shaukat Ali P.W.6. Evidsnce of Wajtakkar last-seen. It is pertinent to mention here that learned Additional Sessions Judge did not believe the evidence of Wajtakkar while the appellants under section 342, Cr.P.C. controverted the allegation and pleaded themselves absolutely innocent in the manner as follows:-- "My co-accused Allah Ditta and Muhammad Nawaz alongwith Muhammad Akram are witnesses against the accused in F. I. R. No. 134 of 1990 of Police Station Mustafabad relating to murder of Muhammad Saleem in which Muhammad Ashraf alias Bhagiar, alongwith Ghulam Mullan alongwith his sons and two others are accused. These accused are cousins of Arshid P.W. and his brother Shaukat who is son-in-law of Rehmat complainant. I have been involved alongwith my co-accused to pressurise us to refrain from giving evidence in the said case. Witnesses are deposing against me because of their relationship with Rehmat complainant and latter's enmity with us. The abovesaid case is still pending trial. I am innocent. The occurrence took place when it was still dark on account of load-shedding. As such it was an unwitnessed occurrence and I and my co-accused have been involved on account of enmity. I am innocent. In the course of investigation I led evidence before the police in aid of my innocence on the Holy Qur'an. I am innocent in this case. The real accused was Abdullah who being close relative of Rehmat (brother of his sister's husband) he with his accomplice Akram alias Mirch was, therefore, not prosecuted by the complainant. "

9. The relationship of the convicts and other co-accused utter se are as follows:- " Saraj arid Chiragh are brothers; Saraj has two sons namely, Shah Muhammad and Afsar Ali. Afsar Ali's daughter is married with Allah Ditta, acquitted co-accused who is son of Muhammad Din and Muhammad Din is son of Chiragh. Shah Muhammad has a son Muhammad Nawaz acquitted co-accused. Muhammad Aslam co-accused is (Cousins) of Muhammad Nawaz and Muhammad Ghafoor is (Cousins) of Muhammad Nawaz and Ghafoor accused/appellant is husband of accused Muhammad Siddique's sister." The relationship of witnesses is as follows:-- "Rehmat Ali's father had three brothers: (1) Hussain Muhammad, (2) Sultan, (3) Muhammad Hussain. Ghulam Nabi and Ayub P. Ws. are the sons of his uncle Muhammad Hussain. Wife of Rehmat is the daughter of Muhammad Hussain. Rehmat Ali has two daughters, one is married to Shaukat P.W.2 and the second is married to Arshad P. W.

10. The senior learned counsel appearing on behalf of the appellants argued as follows:-- (i) The prosecution only produced one eye-witness P.W.8, Rehmat Ali who is interested and inimical witness and his statement need independent corroboration and there is no independent corroboration in the present case, therefore, sentence awarded to the appellants is not sustainable in the eyes of law. (ii) On the same evidence three co-accused were acquitted by the learned Additional Sessions Judge, therefore, the conviction of the appellants on the same evidence could not be sustained unless and until the prosecution put forward independent corroboration which is not available in the present case. (iii) The eye-witness admitted in his statement that four tires were shot from the respective weapon by all the accused and it is also admitted fact that no crime empty was recovered from the spot and contended that it was unseen murder at the dark hours of the night, therefore, the statement of eye-witness cannot be believed. (iv) That occurrence took place at dark hours of the night and contended that it was an unseen murder, therefore, conviction and sentence is not sustainable in the eyes of law. (v) The occurrence was not seen by any witness as the presence of the only eye-witness P.W.8 at the spot is doubtful at the dark hours of the Shabe-Barat Night, therefore, conviction and sentence awarded to the appellants are not sustainable. (vi) The eye-witness and the motive witness being the same i.e. P.W.8, father of the deceased, therefore, the question of corroboration from motive would be a mere farce. Similarly, medical evidence alone cannot be considered as corroborative evidence. (vii) Non-production of Arshad P.W. for examination is a circumstance which favours the defence; presumption cannot be ruled out that Arshad witness if examined would not support the prosecution case.

11. The learned State Counsel argued at some length and supported the judgment of the Additional Sessions Judge; that the F.I.R. was lodged promptly. The presence of eye-witness Rehmat Ali was proved on the record and mere relationship with the deceased is not sufficient to discard his statement. The incident took place at 6-00 p.m. the eye-witness as well as appellants belonged to the same village, therefore, they knew each other. The motive was proved on the record and the medical evidence corroborated eye-witness on all material points. The manner of the murder of the deceased is brutal and callous, therefore, sentence awarded to the appellants be maintained.

12. We have heard the learned counsel for the appellants as well as learned State Counsel and perused the record.

13. As a result of the above discussion, keeping in view the irrefutable realities established by the statement of the eye-witness, medical evidence and the motive, prosecution has established its case against the appellants. Eye witness who saw the occurrence satisfactorily accounted for as he was there in the shop of his son therefore, he is natural witness because he is living in the same village. It is pertinent to mention here that there relationship of witness with the deceased does not provide reason for disbelieving him. The enmity in the present case is that Muhammad Yousuf brother of convict, Muhammad Ghafoor was murdered. It is admitted fact that on the same evidence other co accused were acquitted and the enmity between the eye-witness P .W.8 is also existed, therefore, independent corroboration is needed in the present case to connect the appellants with the guilt. The occurrence took place at 6-00 p.m. in the shop of the deceased at a distance of 6 miles from the Police Station Mustafabad. P. W.8 father of the deceased reported to Liaqat Ali Shah, S. H. 0., at 7-00 p.m. at police station with specific role attributed to convicts appellants alongwith acquitted co-accused promptly without seeing the medical report whereas the post-mortem of the deceased was conducted by Dr. Zulfiqar Ahmad on 4-3-1991 at,11 a.m., therefore, the statement of P.W.8 was recorded before the result of medical report. Injuries Nos. 1 and 8 attributed to the convicts as per post-mortem report, therefore, keeping in view time of incident and statement recorded before the Inspector putting these circumstances in juxtaposition, it becomes clear that medical evidence in the present case corroborates the statement of P.W.8. Therefore, the statement of P.W.8 is fully corroborated by medical evidence qua the injuries of the deceased. In this case the statement of P.W.8 is trustworthy. The injuries in the medical evidence is provided independent corroboration in the present case.

14. Motive in this case is also admitted by the convicts in their statements, therefore, in the present case motive is independent piece of evidence to connect the guilt of the accused and provide corroboration qua the statement of P. W.8 which is admitted by the convicts themselves. As the prosecution has given up Arshad as having won-over, no adverse influence can be drawn. We do not find any contradiction in the statement of eye-witness qua the medical evidence. In fact, we find that medical evidence, motive and recovery of weapons corroborated the statement of witness regarding each and every injury, thus, we are convinced that the appellants' conviction on all the accounts is well-founded. Having perused the entire record, we are not persuaded by the submissions made by the learned counsel for the appellants, because the prosecution case stands proved by the ocular account furnished by father of the deceased Rehmat Ali, P.W.8. whose presence at the vanue and time of occurrence having remained unimpeachable, promptly reporting the incidence at the police station 6 miles away which straightforward confidence inspiring testimony remained tainted despite exhaustively searching cross-examination. Therefore, their appeals are dismissed.

15. Adverting to the sentence, it is admitted fact on the record that deceased was released on bail 2-1/2 years before the incident. It is also admitted fact that during this period no unpleasant conflict has taken place between the parties. The possibility cannot be ruled out that on the day of incident it was Shabe Barat and the immediate motive was shrouded in mystery and incident took place on account of sudden flare up between the deceased and the convicts. The age of convict Abdul Ghafoor is 30 years. Keeping in view of these circumstances his sentence is reduced from death to life imprisonment with benefit of section 382-B, Cr.P.C. The other sentence of compensation etc. are maintained. The benefit of doubt is also given to both the accused/appellants of section 382-B, Cr.P.C.

16. Murder Reference is answered in the above term. Q.M.H./M.A.K./A-256/L Appeal partly accepted.