1988 P Cr (PLP)

4. Ijaz Hussain Shah S.I. was posted as S.H.O. Police Station Lilla during the time of the occurrence. He stated that on 11-1-1984, the complainant Muhammad Khan (P.W.11) visited Police Station Lilla at about 1.30 p.m. and on his statement F.I.R. (Ex.P.K) was record by him. The place of occurrence was visited by the witness on the same day at 2.30 p.m. Injury statements of Mehdi Khan P.W.12, Allah Bakhsh son of Ghulam Muhammad deceased and Allah Bakhsh son of Dost Muhammad deceased (Exs.P.Q., P.R. and P.S.) were prepared by him. He prepared the inquest report (Ex.P.T.) of Allah Bakhsh, son of Dost Muhammad deceased. Blood-stained earth from the place where the dead body of Allah Bakhsh son of Dost Muhammad deceased was lying, was also taken? into possession vide Memo. Ex.P.M. The witness took blood-stained earth into possession from the place where Allah Bakhsh son of Ghulam Muhammad deceased was injured vide Memo. Ex.P.N. The witness stated that he got Mehdi Khan P W. medically examined on 11-1-1984. Similarly; Allah Bakhsh son of Ghulam Muhammad was also got medically examined by him. Manzoor Hussain Constable (P.W.5) handed over to him Chadar P.10 which was taken into possession vide Memo Ex.P.G. On the same day, Qamar Abbas Constable (P.W.3) entrusted to the witness the last worn clothes of deceased Allah Bakhsh, son of Dost Muhammad and the said clothes Kurta P.1, vest P.2, Chadar P.3 and Parna P.4 besides a pair of Chappal P.5/1-2 were taken into possession vide Memo Ex.P.E. These clothes were blood-stained. The last worn clothes of Allah Bakhsh, son of Ghulam Muhammad deceased were produced by Muhammad Aslam Constable ;P.W.4) which clothes were Kurta P.7, vest P.8, Chadar P.9 and Shawl P.6 which were taken into possession vide Memo. Ex.P.F. Site plan was also got prepared by Mubarak Ahmad Patwari (P.W.9) which is Ex.P.I. The witness arrested the appellants Muhammad Afzal, Chaudhary, Khan Beg, Muhammad Iqbal and Ahmad Khan on 15-1-1984. On 27-1-1983, gun P.13 was recovered at the instance of Khan Beg appellant and it was taken into possession vide Memo Ex.P.W. Gun P.14 was recovered from Ahmad Khan appellant and the same was taken into possession vide Memo Ex.P.L. On the same day, appellant Muhammad Afzal led to the recovery of gun P.15 which was taken into possession vide Memo Ex.P.X. Appellant Muhammad Afsar and Muhammad Bashir appellant led to the recovery of 7 MM rifles P.10/1 and P.11 which were taken into possession vide Memos. Ex.P.O. and P.P. respectively. On 23-2-1984, .12 bore gun P.16 was recovered at the instance of Gulab appellant which was taken into possession vide Memo Ex.P.H. Bashir Uallah appellant was arrested by the witness on 21-3-1984. He led to the recovery of gun P.17 which was taken into possession vide Memo Ex.P.J. The witness further stated that Ahmad Khan Dhudi could not be arrested and he is still absconding. The witness in cross-examination, admitted that there are two group and one of the groups is led by Bashir Ullah etc. and the other groups is being led by the Rustam etc. and these groups were organized on account of enmity arising out of murders having taken place in village Lilla. The articles sent to the Chemical Examiner were found to be stained with blood vide report Ex.P.Y. and according to the report of the Serologist Ex.P.Z., these articles were found to be stained with human blood.

5. Dr. Sharif Khan Bhatti (P.W.1) medically examined Allah Bakhsh son of Ghulam Muhammad (when he was still alive) on 11-1-1984 and found the following injuries on his person:- (1) Punctured firearm wound oval in shape 1/2" x 1/3" invested and inflamed margins, on the right mastoid region (at middle) going in the skull and brain anteriorly and medically and upward with a wound of exit with everted margin 1?" x 1" on the mid front of right side of forehead about one ounce of brain matter was coming out of the wound of exit. The blood was oozing from the wound. (2) A punctured firearm wound oval in shape 3/4" x 1/2" with invested and inflamed margins on the right side of head 1/4" above the ear. It was going into the skull and brain anteriorly, horizontally and towards the medical side within the wound of exit of injury No.1 (that is on the right side of forehead). Echymosis was on the both eyes upper and lower lids. Blood was oozing from the wound. Both the injuries were dangerous to life and were caused by a firearm within 6 to 12 hours.

6. On the same day the same doctor medically examined Mehdi Khan (P.W.12), aged 50 years, and found the following injuries on his person:

(1) A punctured firearm wound oval in shape 1/2" x 1/3" with inverted and inflamed margins on the postro-inner side of right thigh, 5" above the right knee joint. It was going downward, forward without wound of exit. Advised X-ray. (2) An incised wound 2" x 1?" x 1" on the back and upper part of right thigh. Marks on the Chaddar correspond to the injury. Blood was oozing from the wounds. Injury No.1 was caused by a firearm while injury No.2 was caused by a sharp-edged weapon. Both the injuries were declared simple in nature. The duration of these injuries was within 6 to 12 hours.

7. On 12-1-1984, at 9-00 a.m., the same doctor conducted the post-mortem examination on the dead body of Allah Bakhsh son of Dost Muhammad, aged 25/26 years, and found the following injuries on his person:- (1) A firearm wound 1/3" in circumference, muscle deep on the mid left of occipital area. It was with inflamed margins and punctured margins. (2) A punctured firearm wound 1/3" circumstances with invested and inflamed margins on the mid of left cheek. It was going forward and backward slightly upward to the brain cavity with a wound of exit 1/2" circumference on the left side of skull half inch anterior to injury No.1. In the opinion of the doctor, death occurred due to injury of brain caused by injury No.2. Both the injuries were caused by afire-arm. Injury No.1 was simple, whereas injury No.2 was dangerous to life and was sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was immediate and between death and post-mortem examination 18 to 24 hours.

8. On the same day, the same doctor conducted the post-mortem examination on the dead body of Allah Bakhsh, son of Ghulam Muhammad, aged 45 years and he found the same two injuries on his person which he observed earlier during his medical examination when the deceased was still alive. In the opinion of the doctor, death occurred due to intracranial haemorrhage and brain damage caused by both the injuries which were caused by a firearm. Both the injuries were dangerous to life and were sufficient to cause death in the ordinary course of nature, and were ante-mortem. Probable time between injuries and death was 8 to 12 hours and between death and post-mortem examination was between 11 hours.

9. The eye-witness account was provided by complainant Muhammad Khan (P.W.11), Mehdi Khan (P.W.12) and Muhammad Ashraf (P.W.13). Muhammad Khan (P.W.11) is the complainant in the case. He has fully supported the case of the prosecution. He has stated that Sikandar Khan appellant is the nephew of appellant Khan Beg. Nazar Muhammad appellant is son of Khan Beg. The wife of Sikandar Khan appellant and the wife of one Haq Dad are sisters inter se and the above-said Haq Dad is first cousin of Bashir Ullah appellant. He stated that the appellants while armed with deadly weapons opened an aggression upon the complainant party when they were going on 11-1-1984 at about 11.00 a.m. to the brick-kiln in order to purchase bricks. He stated that Bashir Ullah appellant shouted and thereupon he himself fired at Allah Bakhsh, son of Dost Muhammad one after the other. Allah Bakhsh son of Dost Muhammad received firearm injuries at the hands of Bashir Ullah appellant on his head and he died at the spot. Ahmad Khan Dhudi fired at Allah Bakhsh son of Ghulam Muhammad hitting on his head. Muhammad Afsar appellant fired which hit Allah Bakhsh son of Ghulam Muhammad on his head. Muhammad Bashir appellant fired at Mehdi Khan P.W. which injured his right thigh. This statement of the complainant was materially supported by the injured witness Mehdi Khan (P.W.12) and Muhammad Ashraf (P.W. 13).

10. The appellants when examined under section 342, Cr.P. C. denied the prosecution allegations. All the accused pleaded their false implication in the case and they stated that they are innocent. Appellant Muhammad Afsar while answering to question No.6 stated that he was related to Ahmad Khan who was murdered in 1979 for which murder Bashir Ullah appellant made the F.I.R. before the police. He stated that his maternal-uncle was involved in a murder case of son of Lala. He stated that he was in jail during the days of the present occurrence and he has been involved falsely in the case and the witnesses have deposed against him on that account. Muhammad Bashir appellant while answering to question No.7, stated that the witnesses have deposed against him due to party faction and enmity.

11. Raja Muhammad Anwar and Syed Ehsan Qadir Shah, learned counsel for the appellants have addressed arguments. It is argued that the lodging of the F. I. R. in the case is delayed and no explanation whatsoever has been given for the said delay. It is stated that because of the delay in lodging the F. I. R., the appellants have been implicated falsely on account of enmity and party faction. Learned counsel urged that the number of injuries found on the persons of the deceased as well as the injured P.W. is not commensurate with the number of appellants involved in the case. He stated that this fact alone would show that the appellants have been falsely implicated in the case. It is stressed that the learned trial Court after thoroughly discussing the evidence on the question of motive and recoveries of weapons of offence, came to the conclusion that the motive as set up by the prosecution and the recoveries of weapons have been discarded. It is stated that on these premises the entire evidence of the prosecution witnesses should be disbelieved and consequently all the appellants should be acquitted. It is stressed that the medical evidence runs counter to the eye-witness account provided by Muhammad Khan (P.W.11), Mehdi Khan (P.W.12) and Muhammad Ashraf (P.W.13). It is maintained that injury No.2 on the person of Mehdi Khan P.W. is an incised wound and as such, the eye-witness account is that even that injury was caused by a firearm. Lastly it is argued that the eye-witnesses are interested and that have made considerable improvements before the trial Court. Learned State counsel as well as the learned counsel for the complainant have supported the convictions and sentences awarded to the appellants by the trial Court.

12. We have heard learned counsel for the parties at considerable length and have perused the record very minutely. We have given our anxious thought to the evidence brought on record as well as the arguments addressed by the learned counsel for the parties and we have come to the conclusion that so far as Muhammad Nazar son of Khan Beg, Muhammad Sarwar son of Raja Khan, Muhammad Afzal son of Fateh Sher, Khan Beg son of Shamas Din, Ahmad Khan son of Sher Khan, Muhammad Iqbal son of Gul Muhammad, Sikandar Khan, son of Nadir Khan, Gulab Khan son of Allah Ditta, and Chaudhary son of Qaim Din are concerned, the prosecution has failed to prove its case against them beyond any reasonable doubt. To begin with, the only evidence produced by the prosecution against these nine appellants is that they were armed with the weapons as referred to above, but they fired ineffectively at the spot. They did not cause any injuries to the two deceased, nor the injured Mehdi Khan (P. W.12) . We have scrutinized the evidence of Muhammad Khan (P.W.11), Mehdi Khan (P.W.12) and Muhammad Ashraf (P.W.13) and we are satisfied that there is no evidence whatsoever to connect these nine appellants with commission of murder. According to the prosecution version, these appellants were armed with deadly weapons and if they had come at the spot to commit the murder and they had brought with them the deadly weapons like .12 bore guns and 7 MM rifles, they could very well commit the murder by firing with their weapons upon the complainant party. However, they did not cause any injuries to the deceased or the injured PW. It may be noted here that the charge against Muhammad Nazar was that he fired at Mehdi Khan (P.W.12) which hit him on his leg. However, the medical evidence has wholly belied this ocular account of the prosecution case. The second injury on the person of Mehdi Khan P.W. is an incised wound which has been caused by a sharp-edged weapon and decidedly not by a firearm. Thus, even against this appellant there is no evidence. This shows that the participation of these nine appellants in the commission of crime is highly doubtful. We are of the view that they have been implicated in the case by the complainant party falsely. By giving them the benefit of doubt, we set aside their convictions and sentences and proceed to acquit them. They shall be released from the prison forthwith if not required in any other criminal case.

13. So far as the 10th accused Ahmad Khan, son of Samundar Khan, is concerned, it will be suffice to say that the said accused is absconding and when he is arrested, he shall be proceeded against strictly in accordance with law.

14. We find from the overwhelming prosecution evidence that the remaining appellants, namely, Bashir Ullah, Muhammad Afsar and Muhammad Bashir have rightly been convicted under section 302/34, P.P.C. We have considered very anxiously the arguments addressed by learned counsel for the appellants and we do not find any substance in their arguments. The presence of the eye-witnesses cannot be doubted for the simple reasons that at least the presence of Mehdi Khan (P.W.12) has adequately been admitted by the defence while conducting the cross-examination of the witnesses. Additionally, Mehdi Khan P.W. is an injured witness is in the case. He saw the whole occurrence with his own eyes and has supported the prosecution version in its minor details. The defence has wholly failed to bring out anything on record to disbelieve or to discredit his evidence. He is the star witness in the case. His evidence has further been supported by the statements of Muhammad Khan and Muhammad Ashraf P.Ws Learned counsel for the appellants submitted that since the motive part of the prosecution story has been disbelieved, as such, the entire evidence of the prosecution should be discarded. We do not agree with the learned counsel for the appellants for the reason that motive is not always needed to prove a case of murder against the accused persons. Motive is a corroborative piece of evidence, but the whole structure of the prosecution case is not always raised upon the motive alone. In this case we find that motive was rightly discarded because there was no direct evidence to prove the motive as set up by the prosecution. Even without motive, the prosecution has successfully proved its case of murder against Bashir Ullah and Muhammad Afsar appellants. It is established that these appellants were armed with deadly weapons and they used those deadly weapons and as a result thereof they killed Allah Bakhsh son of Dost Muhammad and Allah Bakhsh son of Ghulam Muhammad. There is corroboration to the eye-witness account of the prosecution case. Learned counsel stated that recoveries of the weapons of offence have also been disbelieved by the trial Court and, therefore, there is no corroboration to the eye-witnesses account, and as such, they should be disbelieved. We do not agree with the learned counsel for the appellants. Again the recoveries are not necessary in all the cases to prove the commission of offences against the accused persons.

15. The upshot of the above discussion is that as already stated, the nine appellants, namely, Muhammad Nazar, Muhammad Sarwar, Muhammad Afzal, Khan Beg, Ahmad Khan son of Sher Khan, Muhammad Iqbal, Sikandar Khan, Gulab and Chaudhary are acquitted. The conviction of appellants Bashir Ullah, Muhammad Afsar and Muhammad Bashir appellants under section 302/34, P.P.C. on two counts and under section 307/34 P.P.C. are maintained. However, the death sentence awarded to Bashir Ullah and Muhammad Afsar appellants is altered to life imprisonment for the reason that there was no immediate motive established by the prosecution to commit the murders and whatever motive was set up by the prosecution, has been discarded by the learned trial Court. Therefore, in our view, life imprisonment shall meet the ends of justice in the case of Bashirullah and Muhammad Afsar appellants. Their death sentences are not confirmed. These appellants are further sentenced to pay a fine of Rs.10,000 each or in default thereof to suffer two years' R.I. each on two counts under section 302/34 P.P.C. Half of the entire amount of fine, if recovered, will be paid as compensation to the heirs of the two deceased in equal shares. These three appellants are sentenced to ten years' R.I. plus fine of Rs.1,000 each or in default to three years' R.I. each under section 307/34, P.P.C. The entire amount of fine, if recovered, shall be paid as compensation to Mehdi Khan (P.W.12). These appellants are acquitted from the charge under section 148, P.P.C. However, the sentences of imprisonment of the three appellants shall run concurrently. They shall also be entitled to the benefit of section 382-B Cr.P. C.

16. With the above modification, Cr.A. No. 9 of 1986 on behalf of the above named three appellants is dismissed. S. G. D. /B-38/L????????????????????????????????????????????????????????????????????????????????? Order accordingly.