1994 P Cr (PLP)

MUHAMMAD NAWAZ ABBASI, J.

This judgment will dispose of Murder Reference No.141 of 1990 and Criminal Appeal No.710 of 1990.

2. Muhammad Yousaf (22 years), Muhammad Inayat (36 years), Muhammad Saeed (22 years) and Muhammad Nawaz (36 years) appellants were tried for an offence under section 302/307/34, P.P.C. read with section 379, P.P.C., by the learned Sessions Judge, Okara who vide judgment dated 10-7-1990 convicted all the four appellants under section 302/34, P.P.C. and 307/34, P.P.C. The appellants were awarded death sentence with a fine of Rs.20,000 each and in default of payment of fine to undergo R.I. for two years each under section 302/34, P.P.C. The fine, if recovered was directed to be paid to the legal heirs of the deceased. Muhammad Yousaf and Muhammad Saeed appellants were awarded sentence of ten years' R.I. each with a fine of Rs.5,000 each and in default of payment of fine to undergo for one year's R.I. each under section 307/34, P.P.C. The amount of fine, if recovered, was directed to be paid to Abdul Manan injured P.W. The appellants were acquitted of the charge under section 379, P.P.C.

3. Precisely the prosecution case as narrated in the statement Exh.P.B., of Rao Abdul Manan son of Farzand Ali recorded by Ch. Ibrahim S.L P.W.8 at 10-30 p.m. on 29-8-1987 at Civil Hospital Hujra Shah Muqeem are:-- That he and Rao Luqman Khan, his real brother were going to their village on Motor-cycle after visiting Ch. Nazir Ahmad Patwari, when they reached near land owned by Falak Sher at a distance of about 12 acres from village Lalay Wala Mor, the accused ambushed there suddenly appeared on the road who were identified by him in the light of Motor-cycle while sitting on its rare seat which was being driven by the deceased. Inayat was armed with .12 bore gun, Yousaf and Saeed with Sotas and Muhammad Nawaz with .12 bore pistol. Inayat appellant fired causing injury to Luqman deceased at his left flank with the result that the deceased and complainant fell on the ground. Muhammad Nawaz fired with his pistol which hit on the right buttock of the complainant. Saeed caused Sota blows to the left shoulder, left calf and upper side of the right eye. Similarly, Yousaf caused Sota blows on the right side of the face, cheek and lower portion of chin of the complainant. Jahangir, Muhammad Tufail and Fayyaz Ahmad P.Ws. attracted to the spot on the alarm. raised by the complainant and the deceased when they' ere travelling from Hujra Shah Muqeem to village Lalay Wala on the tractor and witnessed the occurrence. The appellants fled away from the place of occurrence raising Lalkaras while taking away .32 bore licensed pistol with 10 live cartridge of the deceased with them. The deceased and the injured were removed to the Civil Hospital Hujra Shah Muqeem. The motive for the commission of offence was that three days earlier to the occurrence, Inayat Bhatti and Saeed appellants were abused and made to run away from the village when they were found roaming by the deceased. The appellants owing grudge with the intention to kill the deceased attacked on him.

4. The case was registered against the appellants on the basis of the statement Exh.P.B. through formal F.I.R. Exh.P.G. recorded by Akhtar Ali Moharrar A.S.I. Hujra Shah Muqeem at 11 p.m. on the same day. Muhammad Ibrahim S.I. P.W.8 after recording the statement of Abdul Manan complainant and sending the same to the police station for registration of case proceeded to the spot and prepared rough sketch Exh.PA. of the place of occurrence. lie took into possession blood-stained earth from the spot vide memo. Exh.P.I. On receiving information about the expiry of Rao Luqman he went to the hospital and prepared inquest report Exh.P.K. and arranged for the despatch of dead body for post-mortem examination. He got prepared site plan of the place of occurrence Exh.PA. and Exh.PA./1. He arrested the appellants on 18-9-1987. Nawaz appellant led to the recovery of pistol P.5 from a room at his tube-well wrapped in a plastic envelope which was. taken into possession vide memo. Exh.P.N. Inayat appellant got recovered gun P.6 from a room of his residential house which was taken into possession vide memo. Exh.P.O. Yousaf led to the recovery of Sota P.7 which was taken into possession vide memo. Exh.P.E. and Saeed led to the recovery of Sota P.8, taken into possession vide memo. EXh.P.Q. After completing the investigation, he challaned the appellant to face the trial. The report of the Chemical Exmainer Exh.P.R. and that of Serologist Exh.P.S. containing positive result of blood-stained earth were made part of the record.

5. Doctor Zakar Hussain P.W.3 examined Luqman Khan deceased at 9-50 p.m. on 29-8-1987 in Civil Hospital Hujra Shah Muqeem and found the following injuries:-- "A lacerated wound of entry on left side of chest 4 x 4 c.m. with burning and blackening of edges of wound and similar findings on the corresponding parts of the Qameez were also present. The crushed spleen and fat was coming out of the wound. Nine exit wound in front of left chest and epigastrium on an area of 16 x 13 c.m. Each exit wound 2 as 1-1/4 x 1-1/4 c.m. with similar cuts on corresponding parts of Qameez. Fire was done from left lateral side of the victim with a 3-foot range in a direction slightly upward and right of the victim."

6. The same doctor medically examined Abdul Manan complainant P.W.2 and found the following injuries on his person:-- "(1) A lacerated oval wound of entry on right buttock 1 x 1-1/2 c.m. which could be probed uptil 4 c .m. Similar cut were present on the part of Dhoti. There was no exit wound. Fire-shot was fired from back of the patient from a distance of more than 7 feet. X-Ray was advised. (2) A lacerated wound on right temple 1-1/2 x 1/2 c.m. (3) Lacerated wound on right cheek 2 x 1/4 x 1/2 c.m. (4) Lacerated wound below right chin 1 x 1/4 c.m. (5) Swelling around right eye 4 x 2-1/2 c.m. (6) Multiple bruises on back of left shoulder joint. 6 x 4-1/2 c.m. (7) A bruise 6 x 2 c.m. on outer part of left leg in middle. Injury No.l was with fire-arm and rest with blunt weapon. On the expiry of Luqman, his post-mortem examination was conducted by the same doctor on 30-8-1987 at 2-30 p.m. In the opinion of the doctor, the solitary fire-arm injury detailed above was sufficient to cause death in the ordinary course of, nature. In his cross-examination the doctor stated that the injuries Nos.2 to 7 to Abdul Manan was because of fall from motor-cycle on the metalled road and injury No.l on his person can be caused with pellets or bullet.

7. Abdul Manau P.W.2, Muhammad Jahangir P.W.6 and Muhammad Tufail P.W.7 are the eye-witnesses of the occurrence who have supported the prosecution story as contained in the complaint Exh.P.B. Doctor Muhammad Zakar who conducted the medical examination of the deceased and injured was examined as P.W.3 and Muhammad Ibrahim S.I. who conducted the investigation of the case appeared as P.W.8. The remaining witnesses are of formal nature.

8. The appellants denied the prosecution allegations. Muhammad Yousaf in his statement under section 342, Cr.P.C. took the plea that his co appellant were inimical towards him, therefore, he could not join hand with them in the commission of offence. He stated that in the murder case of father of Nawaz appellant, he alongwith Inayat his father and Hayat his brother was an accused but subsequently they all were acquitted from the charge. He, however, did not appear in the witness-box or produce any evidence in his defence. Muhammad Inayat appellant ' took the similar plea whereas Muhammad Saeed disclosed the enmity with his co-accused on account of a case under section 307/34, P.P.C. registered against him and his father on 21-3-1987 and Siddique brother of Nawaz accused was a witness against him in the said case and Sana Ullah another brother of Nawaz accused got a case registered against him under section 302, P.P.C. Muhammad Nawaz appellant pleaded his enmity with Tufail and Jahangir P.Ws. stating that Jahangir was an eye-witness against him in a case under section 324/148/149, P.P.C. He further stated that Noor Samand was murdered on 2-8-1981 in which case Inayat, his brother Hayat and their father were challaned. He has also pleaded his enmity with Saeed on account of a case under section 307/34, P.P.C. In support of his defence, he produced Ahmad Yar clerk of Excise and Taxation Office, Okara as D.W.1, who deposed that the tractor number given by the P.Ws. in evidence was allocated to a bus of 1982 Model. Yousaf appellant placed the copies of F.I.Rs. Nos.57/87, 193/89 of 1987 and 141/90 as Exh.D.D., Exh.D.E. and Exh.D.F. respectively. Copy of judgment dated 2-1-1990 passed by Ilaqa Magistrate in case F.I.R. No.248/87 under the Arms Ordinance with an attested copy of the report under section 173, Cr.P.C. in case F.I.R. No.160/81 under section 302/148/149, P.P.C. were also placed on record as Exhs.D.G. and D.H. respectively.

9. The learned counsel for the appellants contended that the enmity inter se the appellants and Muhammad Nawaz with P.W.6 and P.W.7 is not denied and is proved through documentary evidence placed on the record. He urged that the solitary fire-arm injury with .12 bore gun is attributed to Inayat which was caused at the left flank having the entry wound on the chest and the possibility of the fire-arm injury on the buttock of the complainant with the same fire cannot be ruled out especially when the doctor has categorically stated that the injury No.l on the person of complainant can be with pellets or bullet. He maintained that the nature of injury was not ascertained for want of X-Ray report, and therefore, it could not establish with certainty that the injury was caused with pistol. He further argued that the blunt weapon injury attributed to Muhammad Saeed and Yousaf appellant could be the result of fall from motor-cycle on metalled road as stated by the doctor. He submitted that admittedly it was dark 'and the appellants were identified in the light of motor-cycle as claimed by the complainant but the complainant while sitting on a motor-cycle on rear seat could not be definite as to who fired at him. He seriously challenged the presence of Jahangir and Muhammad Tufail P.Ws. at the spot. He while summing up the arguments concluded that the prosecution has miserably failed to prove case against Saeed, Yousaf and Nawaz and if prosecution case is believed qua Inayat appellant, the motive having been not proved, the capital punishment to him shall not be justified.

10. The learned counsel appearing on behalf of the State supported the judgment 'of the learned trial Court with the argument that all the four appellants armed with deadly weapons appeared at the scene of the occurrence and in furtherance of common intention caused injuries to the deceased and were rightly convicted.

11. We have given thoughtful consideration to the arguments advanced by both sides and perused the record carefully with the able assistance of the learned counsel for both the parties.

12. The occurrence took place at about 8-30 p.m. slightly later than Maghrab time. The deceased and the injured while going on motor-cycle were suddenly taken up by the accused appearing on the road, therefore, the complainant with no difficulty and mistake could easily identify the appellants in the light of motor-cycle who were earlier known to him. It has been argued that at the time of the earlier incident providing motive to the occurrence non except the deceased and the two appellants was present, therefore, the case is not proved beyond doubt for want of proving motive. The motive in the present case is not of much importance even for the purpose of quantum of sentence. Admittedly, deceased had no enmity with the appellants and similarly complainant was not inimical to him. There .is nothing on record to indicate any other reason with appellants to attack on the deceased or with complainant to falsely implicate the appellants except the incident of reprimanding the appellant by the deceased. If complainant was not present at the time of this earlier incident and had no direct knowledge, he at least must be knowing about it. However, the appellants having no excuse and justification to take life of the deceased, hence motive even if not proved shall not be a ground either for acquittal or for lesser penalty.

13. Coming to the ocular account, the evidence of Muhammad Jahangir and Muhammad Tufail even if excluded from consideration because of their enmity with Muhammad Nawaz, the evidence of Abdul Manan complainant real brother of the deceased who was travelling with the deceased at the relevant time and received injuries in the occurrence being sound enough is sufficient to establish the prosecution case. He being a natural witness having no enmity with the appellants is not supposed to depose falsely against them, therefore, the solitary statement of this witness is of the nature and standard to be relied upon even in absence of any other corroboratory evidence. The recovery of the weapons of offence is of no use and value to be helpful to the prosecution for want of recovery of crime empties and the Sota being not blood-stained.

14. Keeping in view the special feature of the case it is to be ascertained and determined carefully as to whether all the four appellants participated in the occurrence and are guilty or their case is distinguishable to one and other. Admittedly, there was enmity between the appellants inter se, therefore, there is remote possibility of their joining each other to commit the murder of deceased. The solitary fire-arm injury to the deceased is attributed to Inayat JA whereas the remaining three appellants are attributed the injuries to the complainant against whom neither there is any motive nor grudge or enmity. The non-causing of any injury to the deceased and their attack .on the complainant who was admittedly empty-handed and had shown no resistance is not understandable. The enmity of Jahangir and Muhammad Tufail with Muhammad Nawaz appellant is not denied, therefore, it is not safe to rely upon their testimony even qua the other appellants for want of any other confirmatory evidence. The complainant while sitting on motor-cycle could not with certainty say that in the circumstances of the case he was caused fire-arm injury by Nawaz. ' It is not clear in the medical evidence that the injury was result of bullet. The doctor has not ruled out the possibility of injury to have been caused with pellet, therefore, this possibility that the injury was the result of the fire made by Inayat at the deceased with a stray pellet cannot be excluded. The doubt arising in the case is to be extended in favour of defence. Similarly, the opinion of the doctor with regard to the injuries Nos.2 to 7 on the person of complainant as a result of fall on the metalled road creates reasonable doubt about the participation and causing of injuries by Muhammad Saeed and Yousaf appellants who were armed with Sotas. Mere presence of the appellants even if is believed shall not fix their vicarious liability and responsibility to share the common intention with Inayat appellant who had motive and attributed fatal injury to the deceased. The case against Muhammad Nawaz, Saeed and Yousaf appellants is not free from doubt and resultantly, they are acquitted of the charge giving them benefit of doubt. The case of Inayat appellant stands on different footing. He is attributed fire-arm injury which role assigned to him by P.W.2 complainant, an injured witness of the occurrence is corroborated by the medical evidence and motive. The case against Inayat appellant is, therefore, proved beyond any doubt. Consequently, his appeal fails. The conviction and sentence of death awarded to him by the trial Court is maintainable. The appeal of Muhammad Nawaz, Saeed and Yousaf appellants is accepted and the appeal of Inayat is dismissed. The murder reference is answered with the confirmation of death sentence of Inayat appellant, N.H.Q./M-1171/L Order accordingly.