1994 PLP 164 (MLD)

SARDAR MUHAMMAD DOGAR, J: --Bati (P.W.8) lodged F.I.R. Exh.PF at P.S. Mid Ranjha, District Sargodha, on 30-8-1988 at 7-00 p.m. for an occurrence said to have taken place on the same day at 5-00 p.m. in the fields falling in Square No.226 in the area of Village Jalla Makhdoom near his Dera The F.I.R. was recorded by Ijaz Hussain, Inspector/S.H.O. (P.W.11). According to F.I.R., he was present at his Dera on the day and time of occurrence alongwith his cousin Khizra (P.W.9) and Hayat servant. Nazir, Ata Muhammad and Yusuf armed with guns, Aslam armed with Ballam, Amir armed with a hatchet, Monda armed with Barchha, Umar, Riaz, Liaqat and Nawaz armed with Sotas came from the Dera of Nazir. They let loose their cattle in the crop in Killa No.10 of Square No.226 belonging to the complainant. The complainant and his companions went towards them and asked them as to why they were destroying their crops, whereupon Nazir and Ata Muhammad raised a Lalkara that whosoever intervenes should not be spared alive. Nonetheless, Hayat went ahead to remove the cattle from the field whereupon Ata Muhammad who was nearby fired a shot which struck him (Hayat) on the right flank. He fell down and started writhing in pain. Khizra went ahead to attend him, whereupon, Nazir fired a shot which struck him on the shin of right leg. Simultaneously, Yusuf fired a shot which struck Khizra on the shin of left leg. The complainant ran towards his Dera, whereupon the three accused armed with fire-arms started firing at him but he luckily escaped. The complainant brought out his licensed gun from the Dera and started firing towards the accused, in self-defence, who were chasing him. As a result of firing by the complainant, the accused receded. Hayat son of Malku and Lala son of Yara also witnessed the occurrence. When they tried to move ahead they were also fired at by the accused whereupon they ran to. save their lives. Persons from the nearby Deras ran to the spot hearing the noise raised by the complainant and the fire-shots. On seeing them, the accused ran away towards their Dera.

2. About motive for the occurrence, it is stated, that Nazir etc. had got the Girdawari of Killas Nos.7 to 10 of Square No.226, belonging to the complainants for the year 1985 entered in their names through collaboration, and that when the complainants had come to know, they had submitted application to the Revenue Officer, for correction of the same and had also got a case registered. Nazir etc. wanted to forcibly occupy the land and for that they had collected men from outside and after having armed them and themselves, had let loose the cattle in the crops in order to show their possession. As a result of the occurrence, Hayat died at the spot, and Khizra suffered injuries.

3. Ijaz Hussain, S.H.O. after registering the case proceeded to the hospital and recorded statement of P.W. Khizra who had reached there under section 161, Cr.P.C. After preparing his injury statement he instructed the Constable to get him medically examined. Thereafter he went to the spot and despatched the dead body of Hayat for post-mortem after preparing necessary papers, and recorded statements of the witnesses. During spot inspection he collected blood-stained earth from the place where Hayat was done to death vide memo. Exh.PG and from the place where Khizra was injured, vide memo. Exh.PH. On his transfer the investigation was taken over by Haq Nawaz, S.I. P.W.10 on 14-9-1988. He arrested Muhammad Yusuf, Ata Muhammad, Amir, Monda, Riaz, Umra and Muhammad Nawaz on 16-9-1988. Ballam P.4 got recovered by Monda on 24-9-1988 was taken into possession by him vide memo Exh.P.1. Sota P.5 got recovered by Umra. Sota P.6 got recovered by Riaz, hatchet P.7 got recovered by Amir on the same day were taken into possession vide memos. Exhs.PJ, PK and PL respectively. Gun P.8 got recovered by Ata Muhammad on 28-9-1988 and gun P.9 got recovered by Muhammad Yusuf on the same day were taken into possession vide memos Exhs.PM and PN respectively. Muhammad Aslam was arrested on 25-9-1988 while Muhammad Nazir was arrested on 29-9-1988. Iqbal although joined in the investigation was not arrested on having been found innocent. As a result of the final investigation, Muhammad Nawaz, Muhammad Aslam and Iqbal were declared innocent and their names were placed in column No.2. Liaquat who is named in the F.I.R. was not challaned Iqbal was not named in the F.I.R. He was joined in the investigation, as allegation of participation in the occurrence was levelled against him, during the investigation. Challan was submitted to Court after completion of necessary investigation.

4. Excepting Liaquat named in the F.I.R. all others including Iqbal not named in the F.I.R. (although placed in column No.2) were tried by the Additional Sessions Judge, Bhalwal, District Sargodha. Learned trial Judge vide judgment dated 12-9-1990 convicted Ata Muhammad and Muhammad Yusuf, under sections 302/34 and 307/34, P.P.C. and awarded sentences as follows:

Under section 302/34. P.P.C.: Ata Muhammad

Death; Muhammad Yousaf

Imprisonment for life; "Both sentenced to pay a fine of Rs.40,000 each, in default whereof to undergo R.I. for 5 years each. Whole of the fine on recovery, was directed to be paid as compensation to the legal heirs of the deceased. Under section 3034. P.P.C.: Both Ata Muhammad and Muhammad Yusuf sentenced to imprisonment for life, plus to pay a fine of Rs.10,000 in default whereof to undergo R.I. for one year each. Whole of the fine on recovery was directed to be paid as compensation to Khizra P.W. All the remaining accused were acquitted vide same judgment.

5. The appeal filed by the convicts and the reference made by learned trial Judge for confirmation of death sentence are being disposed of together, having arisen out of the same judgment.

6. Statements of eleven P.Ws. were recorded at the trial. Dr. Riaz Ahmad Awan, who had performed autopsy on 31-8-1988 at 9-30 a.m. appeared at P.W.3. He had noted a fire-arm wound of entry with blackening and inverted edges 3 c.m. x 3 c.m. back of right chest about 5 c.m. below right scapula behind mid-axillary line. On dissection, the shot was found to have entered the chest cavity, on right side as a single mass by fracturing the 11th rib on right side of back. Pleura was found ruptured. Both lungs were found ruptured. A wad and pellet were removed from the right lung while 2 pellets were removed from the left lung. Death was opined to have occurred due to the haemorrhage and shock resulting from the fire-arm injury. Time between the injury and death was opined to be immediate while the time between death and post-mortem was opined to be with 16-18 hours. During cross-examination he expressed the opinion that the shot was fired from a close range from the back side. 7.Dr. Ijazul Haq who had medically examined Khizra P.W. on 3-8-1988 at 8-30 p.m. appeared as P.W.4. He had noted following injuries on his person:

(1) An abrasion 1.5 c.m. x 1 c.m. on the inner side of right forearm middle part. (2) Eight (8) fire-arm wounds, each 3/4 c.m. x 3/4 c.m. x going deep, margins were inverted on the outer side of left lower leg in area of 11 c.m. x 6 c.m. (wounds of entry). (Middle part with compound fracture of underneath bones). (3) Four (4) fire-arm wounds each 1 c.m. x 1 c.m. margins everted on the inner side of left leg middle part in an area of 8 c.m. x 7 c.m. (wounds of exit). (4) Fire-arm wound 1/2 c.m. x 1/2 c.m. going deep, margins inverted on the front of lower end of left leg 6 c.m. above the outer left ankle (wound of entry). (5) Fire-arm wound 3/4 c.m. x 3/4 c.m. x going deep, margins inverted on front and inner side of right lower leg (lower part) (wound of entry) with fracture of underneath bone. (6) Fire-arm- wound 1 c.m. x 1/2 c.m. margins everted on the front of right lower leg, lower part 1.5 c.m. away from Injury No.5 (wound of exit). Injury No.1 was opined to have been caused by blunt weapon while the rest were opined to have resulted from fire-arm. Injuries Nos.2 and 5 were declared grievous, while the rest were opined to be simple. Duration of injuries was opined to be within 6 hours.

8. Ocular account was deposed to be Bati P.W.8 and Khizra P.W.9. Bati after repeating the facts given by him in the F.I.R. also claimed to have witnessed the collection of blood-stained earth from the spot and recovery of Ballam P.4, Lathi P.5, Sota P.6, hatchet P.7, gun P.8 and gun P.9 from Monda, Umra, Riaz, Amir Muhammad Yusuf and Ata Ullah accused respectively. During cross-examination he admitted that the deceased was his servant while Khizra P.W. was his first cousin. He stated that the deceased was fired at from a distance of one karam. According to him his Dera was 32 karams away from the spot, while the Dera of Nazir accused was at a distance of 1-1/2 Killas. The suggestion that the occurrence had resulted over a dispute between the womenfolk of both the parties and that the deceased had not been injured by a shot fired by Ata appellant, was denied by him. He denied the suggestion that they had refused to give or accept Nian on both those issues, during the investigation. He also denied the suggestion that a conclusion was arrived at, during the investigation that the deceased had not suffered the injury as a result of the short fired by Ata appellant. He gave out that his father had purchased Killas Nos. 7 to 10 of Square No.226 from Makhdoom Hamid Masud about 8 years prior to the occurrence, and that the land had been mutated in his father's name on the basis of registered deed. He stated that they had sown Bajra crop in the fields, 20-25 days before the occurrence. He did not deny that the party of Nazir accused and his party had been summoned to appear before the D.S.P. at Bhagatanwala in connection with the inquiry of a case registered at the instance of Nazir. The suggestion that he had not witnessed the occurrence and that actually the deceased had suffered injury at their own hands, was also denied by him.

9. Khizra P.W. while corroborating the statement made by Bati about the actual occurrence, also stated that Amir had given him a hatchet blow on his wrist from wrong side of hatchet. He expressed inability to state about the registration of some cases at the instance of the opposite party in which either he or his relatives or party-men were named as accused. In answer to another question he stated that had the deceased not tried to scare away the cattle of the accused from Killa No.10, they would not have fired at him. He admitted that Bad had erroneously named Muhammad Nawaz son of Shera as accused in the F.I.R., instead of Liaquat son of Shera, and that likewise Iqbal was erroneously named instead of Nawaz. Like P.W.8 he also denied the suggestion that the occurrence had resulted over a dispute between womenfolk of the parties and that the deceased had not suffered injury at the hands of Ata Muhammad nor had he suffered the injuries as a result of two shots, and that actually he had suffered both the injuries as a result of one shot.

10. Ijaz Hussain, Inspector who had registered the case, inspected the spot and conducted initial investigation, appeared as P.W.11 and gave the details of the investigation done by him. During cross-examination he admitted that he was native of District Sargodha and had been posted as S.H.O. Police Station Midh Ranjha in 1987. He admitted that criminal cases were registered at the said Police Station between the parties. during his posting but the investigation of those cases was transferred to Muhammad Nawaz, D.S.P. Shahpur Sadar. He denied the suggestion that in those cases he had played the role of a party against the party of Nazir (accused in this case). The suggestion that he had helped the complainant party in the registration of this case due to his prejudice against the accused party, was denied by him.

11. Haq Nawaz, S.I. P.W.10 who had also investigated the case, arrested all the accused, effected recoveries of weapons of offence from Monda, Umra, Riaz, Amir, Muhammad Yusuf and Ata Muhammad and had submitted the challan to Court after completion of investigation, appeared as P.W.10 and deposed those facts. He stated that he had not arrested Iqbal on having been found innocent and had shown the names of Nawaz, Aslam and Iqbal in column No.2 of the challan. During cross-examination he stated that Muhammad Yusuf (appellant) belonged to village Nasir-Kee, P.S. Chiniot, District Jhang, which was at a distance of 40 miles from the Dera of Nazir (acquitted accused). According to him the place of occurrence was Killa No.10 of Square No.226. He stated that the complainant had claimed :hat the said Killa belonged to him and was in his possession but he had not obtained any document from the Revenue Record in that connection. While admitting that this case was also investigated by Muhammad Nawaz, D.S.P. he did not deny the suggestion that the accused had raised a plea during investigation that the shot which had hit the deceased was not fired by Ata Muhammad. He denied the suggestion that none of the accused had got recovered any weapon of offence and that he had planted the same on some of them to strengthen the prosecution case. Statements of the remaining P.Ws. are more or less of a formal nature.

12. Both the appellants during their statements under section 342, Cr.P.C. denied the prosecution case and pleaded innocence. They denied that they had led to the recovery of weapons of offence. Ata Muhammad appellant stated as follows in answer to the question, "Why this case against you and why the P.Ws. have deposed against you?":

"I was not present at the time of occurrence. The dispute started over the scuffle of women which led to a melee and persons from both the sides collected there and in that melee the deceased received the injury. It is rumoured that the deceased received injury at the hands of his own companions." Muhammad Yusuf appellant stated as follows in answer to the same question:

"I am resident of Teh. Chiniot and was not present on the spot at the time of alleged occurrence. I have been involved in this case on account of mere suspicion." Both of them made statements on oath also and reiterated the position that they had taken while making statement under section 342, Cr.P.C.

13. Learned counsel for the appellants after having taken us through the evidence, criticised the impugned judgment and contended that the prosecution had failed to prove motive for the occurrence; that the prosecution did not produce any documentary evidence in support of the plea that they were owners or were in cultivating possession of Killas Nos. 7 to 10 of Square No.226; that the eye-witnesses in this case were closely related, and inimical to accused; that their statements have not been believed against a large number of accused and so it would be unsafe to maintain the conviction of the appellants on their testimony, without independent corroboration, which was not coming forth from any other source; that the evidence of recovery of guns at the instance of the appellants was of no consequence as no empty had been recovered from the spot to prove that the weapon had been used in the commission of the occurrence. Learned counsel appearing for Muhammad Yusuf appellant strenuously contended that he had neither any interest in the land over which the dispute had arisen between the parties nor was he connected in any Way with the co-appellant or other accused, so as to join them in the occurrence. Learned counsel submitted that even if his participation in the occurrence is believed, he cannot be burdened with the liability of having common intention for committing the murder, as he had not played an active role in the commission of murder.

14. Learned counsel representing Ata Muhammad appellant prayed that in case his conviction is maintained the sentence of death awarded to him be not confirmed as the occurrence does not appear to have taken place in the manner stated by the complainant and it appears that the occurrence resulted due to the cattle having trespassed in the fields. of the complainants or having gone astray.

15. Learned counsel for the State defended the judgment of the trial Court.

16. There is no denying the fact that the parties in this case were pitched against each other in quite a large number of cases. In some cases the accused were the complainants while in other cases the complainant party were the accused.

17. The argument of learned counsel for the appellants that failure of the complainant to produce any documentary evidence in support of the plea that he was the owner of Killa No.10 of Square No.226 and was is cultivating possession of the same, goes a long way to prove that the prosecution had failed to prove the motive, is not based on correct appreciation of the evidence. The complainant had specifically alleged in the F.I.R, and stated so on oath at the trial that Nazir etc. (Ata Muhammad appellant is brother of Nazir), had mischievously and through collaboration got entered the Khasra Girdawari of Killa Nos.7 to 10 of Square No.226 in their names and that on having come to know he had moved the Revenue Authorities and had got a case also registered against them. Neither Ata Muhammad appellant nor his brother Nazir (acquitted accused) nor the other accused denied at any stage of the trial, or while making statements under section 342, Cr.P.C. or 340(2), Cr.P.C. that neither the complainant had approached the Revenue Authorities nor had he got the cases registered against them. That being so, there was no necessity for the complainant or the Investigating Officer even to place on record any document in support of that plea. Had the claim/assertion made by the complainant been denied or challenged, the prosecution, of course, would have been obliged to prove that through documentary evidence. In the circumstances, the contention that the prosecution had failed to prove the fact which according to the complainant was motive for the occurrence, in our view, was without any substances.

18. It was daylight occurrence. Both the eye-witnesses categorically and distinctly stated that it was Ata Muhammad appellant who had fired the fatal shot. During the investigation he had, led to the recovery of gun also. The presence of the complainant at the spot cannot be doubted for the reason that he was residing at his Dera which was at a distance of 32 karams only from place of occurrence. The presence of Khizra P.W., apart from the fact that he was also residing at the same Dera, stands proved from the fact also of having suffered injuries during the occurrence. Prompt lodging of the F.I.R., by the complainant also proves that he was present during the occurrence.

19. There is no doubt that there was criminal litigation between the complainant and Khizra P.W. on one side and Nazir (acquitted accused) his brothers Ata Muhammad appellant and .their relatives on the. other side, and they were pitched against each other, since quite some time and it is also a fact that eight out of the ten accused, named in the F.I.R., or tried at the trial, were acquitted and so the testimony of the eye-witnesses should not be acted upon without care and caution, but the fact remains that there are circumstances which lend corroboration to the ocular account furnished by these two witnesses. In that, the first thing is that the occurrence had taken place in the field which belonged to and was in the occupation of the complainant, and possession of which, Nazir (acquitted accused) and his brother Ata Muhammad appellant and their relatives wanted to take by hook or crook, and in that connection they had through mischievous means and collaboration, got the mutation entered in their names, for which they were proceeded against before the Revenue Authorities and criminally as well. The said fields was .32 karams away from the Dera of the complainant and 1-1/2 killas away from the Dera of appellant Ata Muhammad. There is no evidence on record to show that the field adjacent to Killa No.10 belonged to the accused party. Actually, there is evidence that Killas Nos. ?, 8 and 9 also belonged to the complainant, meaning thereby that the adjacent fields also belonged to the complainant. The stance of learned counsel for the appellants, therefore, that the cattle might have strayed there, cannot be given any weight. Instead, the fact deposed to by both the eye-witnesses that the accused had let loose their cattle in the said field in order to forcibly occupy the said land, inspires confidence.

20. Muhammad Yusuf appellant was resident of a village situated in District Jhang. It was at a distance of 40 miles from the place of occurrence. He had neither any relatives in the village where the occurrence took place, nor owned any property there. He was neither related to the accused nor was in any manner inimical to the complainant. There is nothing on record to consider that the complainant had any extraneous reason to name him falsely and make him a party to the dispute between him and his co-villagers, i.e. Nazir and Ata Muhammad etc. He must have named him on having seen him participating in the occurrence, otherwise he could not have thought of naming a person who was residing at such a long distance, without knowing even as to whether he was alive on that day and was not under-arrest or was at a place, which could be an evidence of his strong alibi. His participation in the occurrence lends support to the stance of the complainant party that Nazir (acquitted accused) and Ata Muhammad appellant etc. had made arrangements on the day of occurrence to forcibly occupy that land, and for that they had collected, persons from outside as well. This fact, apart from also is repulsive to the contention of learned counsel representing Muhammad Yusuf that he had no interest or reason to take part in the occurrence and so he should be acquitted. There are enough circumstances to assume that he was a hired assassin and had come to participate in the occurrence at the instance of Nazir etc.

21. The argument of learned counsel that as the deceased was found to have suffered injury on the back, the same should be deemed to be contradictory to the ocular account, has not impressed us. In that, the ocular stance, is that the shot fired by Ata Muhammad had struck the deceased an the flank. The injury was found 5 c.m. below right scapula, on back side of the flank. A person while facing enemies and that too in a situation in which the deceased was, where a large number of armed persons were standing ahead of him, would naturally be very alert. His movements would be swift even while standing where he suffered the injury, and turning of the body without taking a step would expose 5 c.m. back of his !lank to the assailant. The person giving the eye-witness account would not be able to note that thing so minutely so as to state that he was fired at when he was taking a turn or-swing to his body. After having carefully examined the seat of injury and the ocular account in that regard, we do not feel convinced that there was any contradiction between the ocular account and the medical evidence.

22. The ocular account in this case finds sufficient support from the evidence of motive, the circumstantial evidence and the medical evidence as well. There is no merit in the appeal. The same is dismissed.

23. The prayer made by learned counsel representing Ata Muhammad appellant that the sentence of death be not confirmed, and instead the same be altered to imprisonment for life, has not impressed us for the reason that Ata Muhammad appellant had participated in the occurrence deliberately and calculatively. He had all the intentions to commit the offence of murder. The mere fact that the deceased was a servant of the complainant and was not owner of the field, is no justification for altering the sentence to lesser penalty, in our view. The sentence of death is, therefore, confirmed. N.H.Q./A-505/L Appeal dismissed.