2005 PLP 3023 (YLR)

SH. ABDUL RASHID, J.

Muhammad Amjad son of Hashmat Caste Gujjar resident of village Kailu along with three others namely Mst. Irshad Bibi, Arshad Mehmood and Niamat Ali was tried by the learned Sessions Judge, Mandi Bahauddin in case F.I.R. No.398 of 1995 under sections 449, 302, 148 and 149, P.P.C. Police Station Phalia and vide judgment, dated 27-7-1998 Amjad Ali appellant was convicted under section 302, P.P.C. and sentenced to death and was ordered to pay a sum of Rs. 1,00,000 as compensation to the legal heirs of Muhammad Anwar deceased under section 544-A of the Cr.P.C. and was also convicted under section 449, P.P.C. and sentenced to R.I. for 10 years and a fine of Rs.50,000 in default of payment of which to further undergo R.I. for 2 years and the amount of fine, if realized, shall be paid to the legal heirs of the deceased. The three co-accused were acquitted of the charges. Feeling aggrieved by the said conviction and sentence the appellant has filed this Appeal No.727 of 1998.

2. Murder Reference No.378 of 1998 has been received for confirmation of the death sentence. Both the appeal and the Murder Reference will be jointly disposed of by this judgment.

3. Briefly stated the facts of the prosecution case as couched in the F.I.R. are that Muhammad Hussain complainant who is brother of Muhammad Anwar deceased was permanent resident of village Kailu but was engaged in business at Mirpur Azad Kashmir. A day prior to the occurrence he along with his family members had arrived in his parental house in village Kailu. On 11-11-1995 at about 1-45 p.m he along with his brother Muhammad Anwar (deceased), their father Pir Bakhsh, Muhammad Latif P.W. were present in the residential room of the house of his deceased brother and were engaged in conversation when Muhammad Amjad appellant accused armed with .30 bore pistol, his brother Muhammad Rashad also armed with .30 bore pistol, their uncle Niamat Ali armed with hatchet, their mother Irshad Bibi empty-handed (acquitted co-accused) along with Bashir Ahmad (discharged co-accused) armed with .12 bore gun entered the courtyard of the house; Irshad Bibi raised Lalkara that Anwar deceased be taught a lesson for becoming a witness against them and that he should be killed, whereupon Muhammad Amjad appellant entered the residential room and fired with his pistol hitting Anwar deceased on his forehead who fell down on the ground. Thereafter Muhammad Arshad also fired at the complainant and P.Ws. but they escaped the fire-shots and they closed the door. All the aforesaid accused then ran away while brandishing their respective weapons. Anwar deceased died at the spot. The motive for the occurrence was that a case F.I.R. No.346, 1995, dated 5-10-1995 under sections 337-A(2), P.P.C. Police Station Phalia was registered against Amjad appellant etc. in which Muhammad Anwar deceased was a prosecution witness which fired appellant and his co-accused due to which they had attacked and killed Muhammad Anwar deceased. Leaving the dead, body in the custody of his father Pir Bakhsh and Muhammad Latif P.W. Muhammad Hussain complainant went to the police station and he narrated the occurrence to Muhammad Azam S.-I. S.H.O. Police Station Phalia who recoiled F.I.R. Exh.PD as per his dictation which was read over to him and he signed the same in token of its correctness.

4. Muhammad Azam S.-I./S.H.O. then went to the place of occurrence along with Muhammad Hussain and a police party comprising of Ghulam Abbas A.S.-I., Ghulam Muhammad Head Constable, Javed Iqbal, Muhammad Igbal, Umar Hayat and Nazir Ahmad Constables. He inspected the dead body, prepared its injury statement Exh.PD, inquest report Exh.PJ and drafted an application Exh.PH for post-mortem examination. He deputed Nazir Ahmad Constable to escort the dead body of Muhammad Anwar deceased to the mortuary. He drafted rough site-plan of the place of occurrence Exh. PK, took into possession blood-stained earth and made it into a sealed parcel vide memo. Exh.PA. An empty of bullet .30 bore P1 was lying at the spot which he took into possession and made into a sealed parcel vide memo. Exh.PB. He recorded the statement of the eye-witnesses and P.Ws.

5. Nazir Ahmad Constable (P.W.8) escorted the dead body of the deceased to the mortuary. As it had become dark at that time Dr. Zulfiqar Ali cherazi, Medical Officer conducted the post-mortem examination on the dead body. of Muhammad Anwar deceased on 12-I1-1995 at about 8-30 a.m. and he found the following injuries on his person:-- (1) Fire-arm wound 1 x 1 c.m. on middle of forehead going deep and downward burning and blackening were present around the wound. In the opinion of the Medical Officer the injury had caused haemorrhage and shock and was sufficient to cause death in the ordinary course of nature. The injury was anti-mortem in nature and had been caused by fire-arm. The time between injuries and death was immediate and between death and post-mortem was 16 to 20 hours.

6. After the post-mortem examination its report, dead body along with police papers and last-worn clothes of the deceased and a sealed bottle containing led recovered from the dead body were handed over to Nazir. Ahmad constable who produced them before Muhammad Azam S.-I./S.H.O. The last-worn. clothes of the deceased viz. Kurta P.2, Tehband Exh.P.3 and a Phial containing bullet led was taken into possession vide memo. Exh.P.C. The sealed parcels and the blood stained last worn clothes of the deceased were delivered to Moharrir of the Police Station fur safe custody in the Malkhana.

7. On 13-11-1995 Muhammad Azam S.-I./S.H.O. arrested Amjad appellant on the same day, he accompanied Mian Muhammad Siddiqui draftsman to the place of occurrence where he took rough notes on the basis of which the said draftsman P.W.7 prepared site-plan Exh.PF and its copy Exh.PF/1 and the S.-I./S.H.O. gave his notes in red ink on the same. He recorded the statement of the P.Ws.

8. On 25-11-1995 Amjad accused while in police custody led to the recovery of .30 bore pistol PA from his house which was made into a sealed parcel and taken into possession vide recovery memo. Exh.PE which was attested by Akbar Ali and Muhammad Ashraf P.Ws. He also drafted rough site-plan of the place of recovery Exh.PE/1. All the sealed parcels were delivered to Moharrir Head Constable for their safe custody in Malkhana.

9. On 27-11-1995 Muhammad, Azam S.-I./S.H.O. arrested Niamat, Arshad" and Bashir accused in this case. Upon completion of the investigations he got discharged Bashir accused having been found innocent and submitted the challan against Muhammad Amjad, Mst. Irshad Bibi, Muhammad Arshad and Niamat Ali accused who were sent up to face trial before the learned Sessions Judge, Mandi Bahauddin.

10. The appellant along with his acquitted co-accused were charged under sections 449, 302, 148 and 149, P..P.C., which was read over and explained to them to which they pleaded not guilty and claimed to be tried.

11. The prosecution had produced Bashir Ahmad P.W.1 who witnessed the recovery of blood-stained earth from the place of occurrence vie memo. Exh.PA and bullet Exh.P1 of .30 bore pistol from the place of occurrence vide recovery memo. Exh.PB; Pir Muhammad P.W.2 who identified the dead body of the deceased at the time of post-mortem examination and attested the recovery memo. Exh.PC about the last-worn clothes of the deceased and a sealed phial containing bullet led recovered at the time of post-mortem examination. Muhammad Hussain complainant P.W.3 who narrated the ocular and motive accounts; Muhammad Latif P.W.4 the second eye-witness;" Sikandar Hayat Moharrir Head Constable P.W.S who received a sealed parcel of blood-stained earth and bullet empty from S.-I./S.H.O. and then kept them in safe custody in the Malkhana and thereafter handed them mover to Muhammad Aslam Constable for their onward transmission to the office of the Chemical Examiner and Forensic Science Laboratory. Moharrir Head Constable also received sealed parcel of pistol from S.-I./ S.H.O. and thereafter delivered it to Ghulam Shabbir P.W.7 for its transmission to Forensic Science Laboratory. Muhammad Aslam Constable P.W.6 and Ghulam Shabbir Constable P.W.7 corroborated the statement of Sikandar Hayat Moharrir Head Constable P.W.S. Nazir Ahmad Constable P.W.8 escorted the dead body of Muhammad Anwar deceased from the spot to the mortuary at Phalia and produced it before the, Medical Officer for postmortem examination and thereafter delivered last-worn clothes of the deceased and sealed phial containing bullet led to the S.-I./ S.H.O. 'which were taken, into possession vide memo. Exh.P.C., Muhammad Ashraf P.W.9 attested the recovery o pistol Exh.P.4 at the instance of Muhammad Amjad accused while in police custody vide memo. Exh.P.E. Muhammad Siddique draftsman appeared as P.W.10, Dr. Zulifqar Ali Sherazi who conducted post-mortem examination appeared as P.W.11, Ghulam Abbas A.S.-I. P.W.12 deposed about the arrest of Mst. Irshad Bibi on 20-11-1995 whereas Muhammad Azam S.-I. P.W.13 gave account of the entire investigations from registration of' F.I.R. till submission of the challan.

12. The learned Prosecutor gave up the remaining P.Ws as unnecessary and tendered in, evidence report of Chemical Examiner Exh.PL, and that of Serologist Exh.PM showing that swabs of the blood taken from the spot were of human blood and also report of the Forensic Science Laboratory Exh.PN showing that bullet empty Exh.P1 recovered from the place of occurrence matched with pistol .30 bore P4 recovered at the instance of Muhammad Amjad accused. He vide statement, dated 3-7-1998 closed he prosecution evidence.

13. The appellant and his acquitted co-accused were examined under section 342, Cr.P.C. and all the incriminating evidence was put to them which they refuted and pleaded that they were innocent and had been falsely implicated due to a dispute of agricultural land. Muhammad Amjad appellant further took up the plea that Muhammad Anwar deceased had committed suicide and the complainant party on account of enmity had made out a false case. None of the accused wished to produce any defence evidence or opted to appear as a witness in disproof of the prosecution allegations.

14. Upon close of the trial the appellant was convicted under sections 449 and 302(b), P.P.C. and sentenced as mentioned above whereas the other co-accused were acquitted of the charges. Feeling aggrieved whereby the appellant has filed this appeal.

15. It has been mainly argued by the learned counsel for the appellant that Muhammad Anwar deceased was an addict and a sick person and being fed up with his life had committed suicide and on learning about the incident Muhammad Hussain complainant came from Mirpur Azad Kashmir and in connivance with the police fabricated a false case against the appellant and other acquitted co-accused on account of a land dispute which existed between the complainant and the accused party. It has been further argued that both the eye-witnesses are related to the deceased and are chance witnesses; that they are inimical to the accused party and that no bullet empty was recovered from the place of occurrence and that all these recoveries had been planted. It is further argued that the medical evidence is also suggestive of the fact that the deceased had committed suicide and that the learned trial Court has believed the testimony of eye-witnesses against the appellant alone and had disbelieved it against the three other co-accused and it will be unsafe to base conviction on the testimony P.Ws, who are not wholly reliable and do not speak the whole truth.

16. From the evidence of Muhammad Hussain complainant P.W.3 it is borne out that he had purchased some land from one Ghulam Rasool which was mutated in his favour but its possession was with the accused party who resisted the delivery of possession to him and then with the intervention of some respectables of the village it was agreed that the land be transferred in favour of the accused party. The complainant with the consent of Ghulam Rasool then transferred the land in favour of the accused party. Thus the land dispute between the complainant and the accused party was resolved amicably. It did not lead to any scrimmage or untoward incident between the parties either before or afterwards, therefore, it would be wrong to say and argue that the complainant bore grudge in his mind regarding the land dispute and that it had redounded to the false implication of the appellant and his co-accused. The prosecution version about the motive is that Muhammad Anwar deceased was a P.W. in a case registered against the accused. This fact has not been challenged by the defence; that no case had been registered against the accused and that Muhammad Anwar deceased was not a witness against them, therefore, the prosecution version as deposed by Muhammad Hussain P.W.3 about the motive stands proved on the file.

17. Regarding contention of the, defence counsel that Anwar deceased had committed suicide it is to be noted that the bullet injury had hit the deceased on the forehead. In suicidal cases the seat of the injury would normally be the temporal region and not the forehead and in suicide the fire-shot is made from point blank which will make the bullet pass through and through. In this case had the pistol shot been made by placing the nozzle on the forehead then the bullet led would not have remained inside the body as it had been recovered at the time of post-mortem examination but would have passed through and through. The direction of injuries and its route in the present case also is not indicative of the suicide factor. The direction of the injury as traced out was from upward to somewhat downward whereas in case of suicidal fire-shot the direction of' the injury would have been either straight or somewhat upward. The medical Officer in his testimony has categorically stated that this was not a case of suicide, therefore, the defence contention that the death of Anwar deceased was result of suicide is bereft of force. With the suicide factor having been ruled out the contention of the defence counsel that the appellant had been falsely implicated in this case on account of land dispute is rendered devoid of substance.

18. When Muhammad Azam S.-I./ S.H.O.. reached the place of occurrence he found an empty bullet of .30 bore pistol Exh.P1 was lying at the spot which he took into possession and made into a sealed parcel vide memo. Exh.PB which was attested by Bashir Ahmad P.W.1. The said sealed parcel was delivered to Sikandar Hayat Moharrir Head Constable (P.W.5) who kept it in safe custody and thereafter handed it over to Muhammad Aslam Constable on 19-11-1995 for its onward transmission to the office of the Chemical Examiner, who delivered the same intact there. Bashir Ahmad while appearing as P.W.1 fully supported the factum of recovery of bullet empty of .30 bore pistol P.1 and its having been made into a sealed parcel vide memo. Exh.PB. This P.W. is an independent witness and is not related to the complainant party. He is also resident of Kailu and on learning about the murder incident he came to the house of the deceased as is customary in the villages and was present at the scene of occurrence when police reached there. The defence in its cross examination has not been able to create any doubt in his testimony regarding recovery of crime empty Exh.P.1 from the place of occurrence. Muhammad Azam S.-I/ S.H.O. arrested Muhammad Amjad appellant on 13-11-1995 and on 25-11-1995, while in police custody he led to the recovery of pistol .30 bore Exh.P.4 from his own house which was made into a sealed parcel and taken into possession vide recovery memo. Exh.PE wbich was attested by Muhammad Ashral P.W.9 who fully supported tilt, said factum of recovery in his evidence. This P.W. no doubt is brother of the deceased but he has no enmity or motive to make false deposition against the accused. This P.W. is also a resident of the same village and locality where house of the appellant is situated. The mere fact that he happens to be brother of the deceased and the complainant is no ground to discard his testimony regarding recovery of pistol Exh.P.4. The sealed parcel of pistol Exh.P.4 was sent to the office of Forensic Science Laboratory on 6-12-1995 i.e. about 17 days after the sealed parcel containing bullet empty P.1 had been sent to the office of Forensic Science Laboratory. Report of the Forensic Science Laboratory Exh.P.1 indicates that the bullet empty P.1 recovered from the place of occurrence matched with .30 bore pistol Exh.P4 recovered at the instance of Muhammad Amjad appellant and it constitutes very important and strong evidence which links the appellant with the commission of murder of the deceased.

19. Muhammad Hussain complainant according to his evidence had come to his parental house a day prior to the occurrence and the present incident had taken place on 11-11-1995 at about 1-45 p.m. He was carrying on his business at Mirpur Azad Kashmir which is situated at a distance of 100 miles from the place of occurrence. The F.I.R. was lodged with the police giving all the details about the incident at 3-30 p.m. i.e. about 1 hour and 45 minutes after the occurrence. In case the appellant was not present at his house and had been called from Mirpur Azad Kashmir, as. argued by the learned counsel for the appellant, then he could not have reached the place of occurrence within 1 hour and 45 minutes covering a distance of 100 KMs to be able to lodge the F.I.R. at 3-30 p.m. The fact that F.I.R, had been lodged' within such a short time is indicative of the presence of Muhammad Hussain complainant at the scene of occurrence which took place inside the residential room of Muhammad Anwar deceased where the family members would be the natural witnesses of the occurrence. Muhammad Hussain complainant is brother of the deceased; his presence in the house would be a natural phenomenon and he cannot be termed as a chance witness. During lengthy cross-examination the defence could not bring on the file any material casting doubt on his presence at the scene of occurrence. This P.Ws'. ocular account had been fully supported by Muhammad Latif P.W.4 who is also resident of the same village and is a member of brotherhood of the complainant and, therefore, his presence at the house of the deceased would not be improbable. Both Muhammad Hussain, complainant. (P.W.3) and Muhammad Latif (P.W.4) have no previous enmity with the appellant which could motivate them to impute false role to him. According to their testimony Muhammad Anwar deceased was sitting on the cot when Amjad appellant in standing position fired at him on his forehead and the direction of the fire-shot injury sustained by Muhammad Anwar deceased is from upward to downward and thus it falls in line with their deposition. The testimony of both the eye-witnesses is thus supported by the medical evidence. These two witnesses are natural witnesses of the occurrence. Though they are related to the deceased but they have no enmity whatsoever against the accused which could motivate them to make false deposition. Their evidence is not only in line with the medical evidence but is also corroborated by the matching of bullet empty P.1 with the pistol P.4 recovered from the appellant.

20. It is true that both the eye-witnesses had deposed against the acquitted co-accused, besides the appellant, that they had also joined the appellant at the time of assault on the deceased. However, none of them caused any blow to the deceased and their testimony against the acquitted co-accused had not been believed by the learned trial Court. The principle of falsus in uno and falsus in onmi bus is no longer applicable in its strict sense. It has become customary in our society to implicate as many family members of the accused party as possible and to sift the grain from the chuf the testimony of P.Ws. has become divisible and a new concept for appreciation of evidence i.e. the part of evidence of a P. W. which stands corroborated by independent evidence can be believed and the part which is uncorroborated can be disbelieved; has substituted the principle of falsus in uno and falsus in omni bus. Both, complainant/P.W.3 and P.W.4, no doubt had tried to join the acquitted co-accused with the appellant by adhering to the common trend now a days but their testimony had been properly sifted against the appellant by the learned trial Court. Their testimony against the appellant stands corroborated in material particulars by the matching of crime empty PA recovered from the place of occurrence with the weapon of offence pistol Exh.P.4 recovered from the appellant subsequently. Therefore, we are of the opinion that there is sufficient material on the file to justify the appellant's conviction in this case. Resultantly, there is no force in this appeal and the same is hereby dismissed. Murder Reference No.378 of 1998 is answered in the affirmative. N.H.Q./M-2448/L Appeal dismissed.