1988 P Cr (PLP)

It was directed that out of the fine realized, Rs.30,000 be paid to the legal heirs of the deceased. We propose to dispose of the aforesaid three matters through single judgment.

2. The occurrence took place on 29-7-1981 at 9-15 p.m. just in the door of compartment of a train standing on platform of Railway Station, Khushab. The F.I.R. is statement Exh. P.E. of Abdul Rehman. P.W.11, the brother of the wife of the deceased, recorded at Police Post Railway Khushab at 9-20 p.m. by Ejaz Hussain Shah, Head Constable, P.W.13. The distance between the place of occurrence and the police post is 90 yards. Formal F . I . R . Exh. P . E/ 1 was drawn up at Police Station Sargodha on the same night at 11-00 p. m. by Muhammad Ishaq S.I., P.W.

14. The distance between place of occurrence and police station is 45 k.m.

3. The motive as alleged by the prosecution was that Abdul Rehman P.W.11 and his family had long-standing blood feud with Haq Nawaz appellant and his family. Ghulab Shah appellant is stated to be a friend of Haq Nawaz. Ghulab Shah appellant started roaming with Haq Nawaz while armed with fire-arm. This was resented by Abdul Rehman, complainant. About one month before the occurrence Ghulab Shah was passing from near the baithak of Haji Muhammad Ramzan deceased. Amir Hussain P.W.9 and Abdul Rehman P.W.11 were sitting in the baithak. Abdul Rehman called him inside the baithak and told him not to roam with Haq Nawaz. Ghulab Shah appellant took it ill. He became rude and exchanged hot words with Abdul Rehman P.W. On this Muhammad Ramzan (deceased) gave slap to Ghulab Shah. Amir Hussain P.W.9 and Abdul Rehman complainant separated them. Before leaving the Baithak, Ghulab Shah appellant declared that he would not be legitimate son of his father if he does not avenge his insult.

4. As for the main occurrence, it has been stated that on the fateful day, Muhammad Ramzan (deceased) and Abdul Rehman (complainant) were on their way to their village Rajar. They reached Railway Station Khushab at 8-30 p.m. to board a train. They went into second class compartment where Allah Bakhsh P.W. 12 and Muhammad Feroz P.W. (not produced) were present. After sometimes the deceased got down from train for ablution when he was returning to the compartment at 9-15 p.m. and was just entering the compartment, the appellants appeared there. They raised lalkara that they had come to avenge the insult. Ghulab Shah took out a carbine from the dab of his chadar and fired at Muhammad Ramzan hitting him on the back of his chest. He fell inside the compartment. The appellants then ran away. Abdul Rehman complainant P.W. 11 left for the police post to lodge report. After recording statement Exh. PE of Abdul Rehman, Ejaz Hussain Shah, Head Constable P.W.13 came to the spot. Muhammad Ramzan was then removed to the hospital.

5. Dr. Muhammad Riaz Ali, P.W.15, examined Muhammad Ramzan when he was alive and found following injury on his person: "Nine lacerated wounds in the area of 4" x 2" on the lower part of the back mostly on right side, each 1/3" x 1/3" x deep, The margins were inverted. No blackening or charring around the wound was noticed." The injury was caused by fire-arm and was dangerous to life. The deceased was admitted in the hospital. He succumbed to the injuries at 11-05 p.m. on the same night.

6. On 30-7-1981, the same doctor conducted post-mortem examination. He found the same injury on the person of the deceased which was noticed by him at the time of medical examination. On internal examination he found that peritonium and small intestine and large intestine were injured at many places. Stomach contained little food and liquid. Right kidney was also injured. The sacrum was found fractured into pieces on the right side. In his opinion, the death was due to shock and haemorrhage (internal and external) and injury to vital organ which was sufficient to cause death in the ordinary course of nature. Six pellets were recovered from the dead body. The time between death and injury was about two hours and between death and post-mortem was about 9 hours.

7. Haq Nawaz and Ghulab Shah appellants were arrested by Muhammad Ishaq, S.I. P.W. 14 on 3-8-1981 and 5-8-1981 respectively. On 10-8-1981 Ghulab Shah appellant led to the recovery of carbine Exh. P.6 lying in bushes near a room of Railway Station which was taken into possession vide memo Exh. P.D. attested by Muhammad Shafi P.W. 7 and Saee Muhammad P.W.

8. Forensic Science Laboratory Report Exh. P . U . reveals that the crime empty Exh. P.8 was fired from carbine Exh. P.6. Ejaz Hussain Head Constable P.W. 13 recovered crime empty Exh. P.8 lying underneath a bench of tea stall at railway station which was taken into possession vide memo. Exh. P . H . attested by Abdul Rehman P.W.11 and Allah Bakhsh P.W. 12.

8. To prove its case, prosecution examined 17 witnesses. Abdul Rehman P.W. 11 and Allah Bakhsh P.W. 12 have given the ocular account of the occurrence. They claim to have seen the appellants on the platform when they raised lalkara. They also claim to have seen Ghulab Shah taking out carbine from his dab and firing fatal shot on Muhammad Ramzan. Amir Hussain P.W. 9 and Abdul Rehman P.W. 11 have deposed about the incident of motive and have supported the same. Muhammad Shafi P.W. 7, Saee Muhammad P.W. 8, Muhammad Ishaq, S.I., P.W. 14, Allah Bakhsh P.W. 12, Abdul Rehman P.W. 11 and Ejaz Hussain P.W. 13 have supported the recoveries of crime empty Exh. P.8 from the spot and of carbine Exh. P.6 on the pointation of Ghulab Shah appellant. Dr. Muhammad Riaz Ali P.W. 15 has proved the medico-legal report and the post-mortem examination report of Muhammad Ramzan deceased. The rest of the evidence is more or less of formal nature.

9. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstance. They raised the plea of false implication on account of enmity. They did not produce any evidence in defence. The trial Court examined Allah Ditta, A.S.M. Railway Station Khushab, as C.W.1. He stated that at the time of occurrence, he was offering Taravih in a mosque near Railway Station, Khushab. He heard the report of fire-arm. Sadar Din, the then shunting master came there and told him that one of the passengers had. suffered fire-arm injuries. He then went to the spot and saw a person lying on the second lower berth of the compartment, who told him that Ghulab Shah and Haq Nawaz had caused him injuries. He then sent a message (Photostat copy Exh. DB) to Section Controller on duty. The witness was confronted with his statement recorded by the police under section 161, Cr.P.C., wherein he had not deposed about the dying declaration made by Muhammad Ramzan before him. In cross-examination he stated that he had recorded portion marked 'DB/1' on memo. Exh. DB after having completed the remaining message of Exh. DB and that portion Exh. DB/1 is on the top of remaining message Exh. D.B.

10. The learned trial Court while believing the motive, ocular evidence, recovery of carbine Exh. P.6 from Ghulab Shah appellant, the recovery of crime empty Exh. P.8 from the spot and the Forensic Science Laboratory Report has convicted and sentenced the appellants as stated above.

11. Learned counsel for the appellants contended that the prosecution has failed to prove its case against the appellants beyond reasonable doubt, inasmuch as, Abdul Rehman P.W. 11 and Allah Bakhsh P.W. 12 are interested witnesses; that they had not seen the occurrence; that Exh. DB, the message written by Allah Ditta, A.S.M. shows that Muhammad Ramzan was killed by unknown persons; that Abdul Rehman had long-standing enmity with Haq Nawaz and his family; that there was previous criminal litigation between Ghulab Shah appellant and Abdul Rehman complainant; that Allah Bakhsh and Abdul Rehman P.Ws. are related inter se; that there is no independent corroboration of the statements of the eye-witnesses qua Haq Nawaz appellant; that the recovery of carbine Exh. P.6 from Ghulab Shah appellant is fake; that there is inordinate delay in delivering crime empty and carbine Exh. P.6 to the Office of Forensic Science Labbratory and as such, the possibility that the crime empty Exh. P.8 was fired by police itself from carbine Exh. P.6,. cannot be excluded; that there are discrepancies in the statements of Abdul Rehman P.W.11 and Ejaz Hussain Shah, Head Constable P.W.13 with regard to the place where Muhammad Ramzan was lying in injured condition as according to Abdul Rehman, Muhammad Ramzan was lying on the floor of the compartment whereas Eiaz Hussain stated that he was lying in injured condition on the lower berth and that there is no evidence that Haq Nawaz appellant knew that his co-accused Ghulab Shah was carrying carbine in the dab of his Chadar. In the alternative, the learned counsel argued that there are mitigating circumstances in favour of Ghulab Shah for lesser penalty, in that Muhammad Ramzan deceased had not only slapped him but had also hurled filthy abuses at him. Conversely, the learned counsel for the State has supported the judgment of the trial Court. Learned counsel, for the complainant/ petitioner prayed that the sentence of Haq Nawaz appellant be enhanced from imprisonment for life to death and that the amount of fine and compensation awarded under section 544-A, Cr.P.C. may also be raised.

12. We have anxiously attended to the arguments advanced by the learned counsel for the parties and have revised the entire evidence that has been produced by the prosecution, the statements made by the appellants under section 342, Cr.P.C. and the surrounding circumstances with care. We find that it is a case of promptly lodged F. I. R., which contains the names of the accused /appellants, the weapon carried and used by Ghulab Shah appellant and the names of the eye-witnesses. The F.I.R. was lodged within 5 minutes of the occurrence. The making of the F.I.R. with great promptitude gives rise to the conclusion that its maker must have been present on the spot and witnessed the affair. The house of Abdul Rehman complainant is at a distance of 7 miles (as stated by the learned counsel for defence) from the place of occurrence. Had he been not present on the spot, his statement could not have been recorded within 5 minutes of the occurrence. There is nothing in evidence to show that the F.I.R. was not recorded at the time and place as it purports. So much so, no suggestion was given to Abdul Rehman complainant that his statement Exh. PE was written after preliminary investigation.

13. Taking up the ocular testimony, we find that, no doubt, Abdul Rehman is an interested witness as on his own showing there was old enmity between his family and the family of Haq Nawaz appellant. He was the first cousin as well as brother of the wife of the deceased, but Allah Bakhsh P.W.12 is neither directly related to the deceased nor had any enmity with the appellants. He is remotely related to the complainant, in that his wife is first cousin of the wife of the complainant. No enmity with the appellants was even suggested to him. His name is mentioned in the promptly lodged F.I.R. His house was at a distance of about 7 miles from the place of occurrence and as such it was not possible to procure him and induce him to become a false eye-witness, within 5 minutes of the occurrence. The occurrence took place in a compartment of train standing on the railway station. Both the eye-witnesses have given plausible cause of their presence on the spot. They being passengers were the natural witnesses of the occurrence. The mere fact that the Investigating Officer did not take their tickets into possession will not detract their statements from correctness. It seems that Abdul Rehman complainant while naming Ghulab Shah as a principal accused has stated nothing but truth. We are very much impressed by his statement. He had old enmity with Haq Nawaz appellant and taking the benefit of occasion he could easily assign to him the act of killing but he did not do so. He has not even attributed any overt act to his admitted enemy. This shows that he stated at the trial only- what he actually saw. The witnesses have successfully faced the test of cross-examination and nothing damaging to their veracity and integrity could be elicited in cross-examination The statements made by them are in consonance with probabilities and materially fit in with the rest of the evidence. Except for minor and immaterial contradictions and discrepancies here and there, the learned counsel has not been able to point out any major discrepancy, material contradiction or dishonest improvement in their statements. The motive has also successfully been proved through reliable evidence furnished by Amir Hussain P.W.9. He seems to be a confidence inspiring witness. The criticism made by the learned counsel on the credibility of the eye-witnesses is devoid of force. The mere fact that railway tickets of the eye-witnesses were not taken into possession by the Investigating Officer will not show that the appellants were not present on the spot. The Investigating Officer has explained that he did not deem it necessary to do so. The ocular account of the occurrence furnished by Abdul Rehman, an interested witness, finds corroboration from the evidence given by Allah Bakhsh P.W.12, an independent witness. The statement made by Allah Bakhsh P.W. cannot be discarded on the ground that his wife was first cousin of Abdul Rehman P.W. We are satisfied that both the eye-witnesses are absolutely dependable and the statements made by them, are of such standard that the same can be safely accepted and acted upon without corroboration. Allah Ditta, A . S . M . has been examined as C.W.1. He has proved message Exh. DB sent by him to Section Controller on duty. This document also bears the names of the appellants at portion marked 'DB/1'. He explained that; "I had recorded portion mark 'DB/1' on the memo. Exh. DB after having completed the remaining message on the top of the remaining message Exh. DB." He denied the suggestion that the names of the accused /appellants were inserted in Exh. DB/1 later on at the instance of the police. The argument of the learned counsel that the details of the occurrence were not given in message Exh. DB is not weighty because such like messages do not generally contain details like first information report or evidence of witness in the Court.

14. Adverting to the evidence of recovery of carbine Exh. P.6 and crime empty Exh. P.8, we feel that it would be unsafe to rely on this piece of evidence, inasmuch as, crime empty was not delivered in the Office of Forensic Science Laboratory before the recovery of carbine and it remained with Muhammad Aslam, Constable P.W.3. Ghulam Muhammad, Constable P.W.10 has also stated that the sealed parcel containing carbine received by him on 14-8-1981 was deposited in Forensic Science Laboratory, Lahore on 26-8-1981. He did not give any explanation for keeping the carbine with him for 12 days. So there is a reasonable apprehension that parcels containing crime empty and carbine might have been tampered with.

15. Despite believing the ocular account of the occurrence furnished by the eye-witnesses, we feel inclined to give benefit of doubt to Haq Nawaz appellant on the question of constructive liability, as a matter of abundant caution. He did not cause any injury to the deceased. He was empty handed, and only a proverbial lalkara has been attributed to him. There is no evidence that he had knowledge that Ghulab Shah appellant /co-accused was carrying carbine in dab of his Chadar or that he would use it with tragic consequences. So the act of killing Muhammad Ramzan by Ghulab Shah seems to be an individual act and it would be too much to saddle him with the common intention and to hold him constructively liable for the act of his co-accused. It is well-settled that the conclusion of constructive intention should not be readily arrived at or pushed too far. For all these reasons we are convinced that the prosecution has not been able to prove the charge against Haq Nawaz beyond reasonable doubt although it has successfully brought it home to Ghulab Shah appellant.

16. This brings us to the question of sentence of Ghulab Shah appellant. Learned counsel submits that since the deceased had hurled filthy abuses at appellant, therefore, capital punishment was not called for. While bearing in mind all the circumstances surrounding his guilt, we have considered this question with utmost care but have not been able to find out any valid/ recognized ground in his favour for awarding lesser penalty to him. The filthy abuses were hurled by the deceased one month before the occurrence. At the time of occurrence, the deceased did not utter a word, so it cannot be said that the act of killing was provoked by him. For what has been said above, we find satisfactory basis existing to uphold the conviction and sentence of Ghulab Shah. Consequently, the appeal to his extent is dismissed in toto and the sentence of death awarded to him by the trial Court is confirmed whereas Haq Nawaz is given benefit of doubt and acquitted of the charge. He is on bail. He stands discharged of bail bonds. In the circumstances, the revision filed by complainant fails. Sentence of death is confirmed. M.Y.H./G-95/L Appeal dismissed.