1991 P Cr (PLP)

(8)??????? An abrasion 2 x 0.5 c.m. transverse 4 c.m. above injury No.7 on lateral side of right arm. (9)??????? A lacerated wound 5 x 5 c.m. x muscle deep on the left side of head 10 c.m. from left ear. (10) ???? A fire-arm wound 2 x 1/2 c.m. x muscle deep oval in shape, oblique with burnt inverted margins on top of right side of head in middle 10 c.m. above right ear which was wound of entry. (11) ???? Contusion 3 x 2 c.m. transverse on upper eye lid of left eye. On internal examination, all muscles of medial and anterior side of left thigh with femoral vessels were ruptured. Multiple small pellets were found lodged there about 27 of them were removed. Injuries Nos. 1 and 10 were opined to have been caused by fire-arm. Injury No.4 was opined to have been caused by sharp-edged weapon while rest were opined to have been caused by blunt weapon. Death was opined to have occurred due to haemorrhage and shock resulting from injury No.l. All other injuries were opined to be simple. Probable time between injuries and death was opined to be within three hours while the time between death and post-mortem was opined to be between 24 to 28 hours. During cross-examination, he stated that no pellet or bullet was found beneath injury No.10 nor the hair around this injury were found singed.

5. Ocular account was deposed to by Muhammad Nawaz (P.W.7) and Muhammad Riaz (P.W.8). Muhammad Nawaz while narrating the facts given by him in the F.I.R. particularly stated that Ashiq was armed with a gun and he had fired from the same on the thigh of the deceased and struck a blow on his head with the butt of the gun. On confrontation, he denied that he had stated in Exh.P.E./1 that Ashiq Hussain was armed with a rifle and he fired a shot from the same. He stated that injury on the buttock of the deceased had resulted due to tossing on the ground after having fallen. He denied that in the F.1.R. he had stated that the injury had resulted due to firing. During cross-examination, he stated that none of the accused was armed with a sharp-edged weapon nor anybody had given injury to the deceased after he had fallen on the ground. He declared that he had not seen any of the accused firing a rifle. However, he conceded that he knew that a rifle magazine containing live cartridges was found on the spot. He denied the suggestion that they had not taken the deceased to Civil Hospital, Daska on coming to know that Ashiq Hussain was admitted there. He claimed that they had taken the deceased to the Civil Hospital, Daska, and had removed him to Sialkot on the advice of the doctor. He expressed inability to state that Ashiq had no concern with the Committee - amount but stated that he had concern with the matter as his father-in-law Ghulam Hussain (accused) was the member of the Committee. He denied the suggestion that his father and brothers had attacked Ashiq (appellant) on the day of occurrence when he was passing through their street and had caused him injuries with fire-arm as well as blunt weapons, and that Sarwar co-accused (died during trial), brother of Ashiq, on having come to know of the attack had reached there and when he was attacked by the deceased and others, he had fired in self-defence which resulted in the death of the deceased. He also denied the suggestion that by that time, Ashiq had left the spot. Muhammad Riaz (P.W.8), real brother of the deceased, corroborated the statement of P.W.7 in so far as it pertains to the actual occurrence. During cross-examination, he stated that none of the surrounding residents had come to the spot during the firing. However, he claimed that some of them had appeared before the police during investigation. He declared that neither any accused was carrying a rifle nor any of them was armed with a sharp-edged weapon. He denied that they had caused any injury to the appellant. Both the witnesses declared that none of them had gone to the police station to report the occurrence before taking the deceased to the hospital at Sialkot. Both denied the suggestion that they had made incorrect statements.

6. Evidence of recovery of three empties of .12 bore, two empties of revolver, three missed cartridges of pistol, a magazine of 7 mm rifle containing five live cartridges, blood-stained earth and two pieces of broken Butt of a gun was deposed to by Muhammad Sadiq (P.W.4). During cross-examination, he stated that there were pellets and bullets marks on the nearby wall and door of house of Muhammad Riaz P.W. and P.W. Muhammad Shafi. He was not related to the complainant nor was he inimically disposed towards the appellant in any manner. His statement in this regard stands corroborated from the testimony of Ahmad Shujah S.I./S.H.O. who appeared as P.W.18. The S.H.O. after testifying that he had recorded the statement of the complainant in Civil Hospital at Sialkot enumerated the investigation done by him. In that, he gave the details of the articles collected by him from the spot and also the dates of arrest of the appellant and the co-accused and recoveries of weapons effected at the instance of the appellant, Sarwar, who had died during trial, and Hamayun. According to him, the appellant had got recovered SBBL.12 bore gun P.11 (taken into possession vide memo. Exh. P.J.). During cross-?examination, he stated that he had not extracted any bullet or pellets from the wall of the house of Muhammad Shari P.W. He stated that Ghulam Hussain acquitted accused was a candidate in the Local Bodies Election held on 30-10-1987 and had succeeded. He denied the suggestion that his investigation was partial. The statements of the remaining witnesses are more or less of formal nature.

7. Reports Exhs. P.T., P.U. and P.V. from the offices of the Chemical Examiner, Serologist and Forensic Science Laboratory were also tendered in evidence. Crime empties C.1 and C.3 were found to have been fired from SBBL Shotgun No.390 (recovered from the appellant). Crime empty C.2 was found to have been fired from DBBL No. MAC 13077 alleged to have been recovered from Hamayun. Crime empty C5 was found to have been fired from .32 bore revolver (No. 7585) alleged to have been recovered from Muhammad Sarwar (deceased accused), Missed .32 bore cartridges M.1 to M.3 were found to have missed from .32 bore revolver. Wooden piece Mark W.2 was found to be a broken part of SBBL Shotgun No.390 recovered from the appellant while wooden piece mark W.1 was not found to be the part of the said gun.

8. Statements of Dr. Sajjad Nabi, who had medically examined Ashiq appellant on 21-11-1987 at 9-15 p.m. and Ghulam Muhammad D.S.P. Saddar, who had partly investigated the case, were recorded as C.W.1 and C.W.2. C.W.1 found appellant to have suffered an abrasion 1-1/2 x 1 c.m. on the lower part of abdomen on right side; a contusion with abrasion 7 x 7 c.m. on the front part of the chest; a contusion with swelling 7 x 6 c.m. on the back of right hand (underlying metacarpal bones of right hand were fractured); and a contusion with swelling 6 x 4 c.m. on the left check. Except injury No.3, Which was declared grievous, the others were declared simple. All the injuries were opined to have been caused by a blunt weapon. The doctor explained that he had opined about the grievous nature of injury on the hand without X-Ray examination. During cross-examination, he denied that he had been making alterations in the timing of the medical examination by scoring out the writings. He admitted that he had not noted general condition of the appellant in medico-legal report warranting his admission as indoor patient. He stated that on queries made by the Investigating Officer during investigation, he had opined vide report C.W.1/4 that possibility cannot be ruled out of the injuries having been caused by a fire-arm. He admitted that his father was running a clinic at Daska without being a qualified doctor. He denied that he had connections with the accused party. Ghulam Muhammad D.S.P. C.W.2 stated that during investigation he had formed an opinion that Ashiq Hussain was innocent and had not participated in the occurrence. He admitted that he had not recorded statements of the persons appearing in support of Ashiq Hussain in the presence of the complainant party.

9. The appellant during statement under section 342, Cr.P.C. denied the prosecution case and pleaded innocence. He denied to have led to the recovery of gun P.11. In answer to the question, `why this case against you?', he stated as follows:-- "Ghulam Hussain co-accused was contesting election against one Karamat Ali. The complainant party had previous grudge against Ghulam Hussain and were opposing him. Sometime after evening prayer, when I was present near the culvert on Sambrial Road, Daska, Ramzan and Sultan two sons of Muhammad Sadiq deceased were also present there. I requested them not to oppose Ghulam Hussain on which they flared up. Ramzan gave me beating with a Sota while Sultan fired a pistol shot at me. I was removed to the hospital in the injured condition. I was not present at the time when Muhammad Sadiq deceased was injured. I subsequently learnt that my deceased brother Sarwar was coming t6jrescue me but meanwhile I had been removed to hospital, Sarwar was also subjected to murderous assault and he in self-defence caused injuries to Muhammad Sadiq with a carbine."

10. We have considered the contentions of the learned counsel for the parties after having gone through the record with the assistance of the learned counsel. Since the appellant had set up the plea of alibi, we considered that, in the first instance, and came to the conclusion that the same was false. Following reasons weighed with us for coming to that conclusion:-- (a)??????? According to the appellant, Ramzan and Sultan had quarrelled with him after evening prayer near the culvert on Sambrial Road, Daska, and caused him injuries. Ramzan had beaten him with a Sota while Sultan had fired at him with a pistol. Dr. Sajjad Nabi (C.W.1), who had medically examined him, recorded his opinion in the medico-legal examination that the injury had been caused by blunt weapon. Although subsequently on a query by an Investigating Officer, he stated that possibility of injury No.l having resulted from fire?arm could not be excluded yet the later opinion obviously appeared to be a part of the scheme of helping the appellant out of situation. (b)??????? Injury No.l was on the abdomen. It was described as an abrasion. Had the bullet fired from the pistol struck him on the abdomen that would not have left an abraised injury. It would have definitely done more harm. The doctor neither observed nor noted that there was any hole on the shirt. The bullet could only have erased the abdomen after having crossed the shirt and if the bullet had crossed the shirt it would definitely have left behind a hole. The same doctor on another inquiry by Ahmad Shuja S.H.O. had stated that the possibility of the injuries on Ashiq Hussain having been self-suffered or at friendly hand could not be ruled out. The trot and cold blowing by the doctor as and when required by different Police Officers does not leave an iota of credence in him. (c)??????? Dr. Sajjad Nabi was a resident of Daska and his father, who was not a qualified doctor, was running a clinic there. Dr. Sajjad Nabi, therefore, might be involved in local politics as well. His conduct of having admitted Ashiq as an indoor patient for such minor injuries shows that he was out to favour the appellant. (d)??????? Had the appellant been fired at by Sultan, son of the deceased, and caused injuries by Ramzan, another son, with Sota, the appellant would not have failed to confront Sultan when he appeared as P.W.2. It is apparent from the cross-examination of Sultan that what to say of confronting with the situation he was not even suggested such a thing. (e)??????? If the appellant had really been attacked and inflicted injuries with the blunt as well as fire-arm, he would have definitely reported the matter to the police. His belated stance at the trial that in spite of efforts case was not registered, at his instance, has not impressed us at all. If he could get favours of a D.S.P. why could he not have got the case registered if there was any truth in his stance of having been attacked and caused injures. (f)???????? The time 'of his medical examination and admission in the hospital coincides more with the time of occurrence than the time of the incident he claims to have occurred. While coming to the conclusion that the appellant had failed to prove the plea of alibi set up by him we also took notice of the fact that Ghulam Muhammad Kalyar. D.S.P., who had given favourable opinion to the appellant, also did not state that the stance put forth by the appellant was correct. All he proclaimed was, that according to his investigation, the accused had not participated in the occurrence. He did not verify that what the appellant stated was correct.

11. After having ruled out the possibility of alibi being correct, we examined the prosecution evidence in order to see whether the prosecution has proved the participation of the appellant in the occurrence or not?

12. The eye-witnesses who furnished the ocular account were not biased against the appellant, even though they had differences with Ghulam Hussain, his relative, on account of the non-payment of Committee amount by him to the deceased. Learned counsel for the appellant could not make out a good ground during arguments warranting outright rejection of the ocular account vis-a-vis the appellant nor do we feel convinced that the ocular account warrants outright rejection. However, there is no weight in the contention that the ocular account furnished in this case should not be relied upon without corroboration from some other source of evidence. Such evidence is available from Exh. P.V., report from the Forensic Science Laboratory, according to which the part of the gun recovered from the spot fitted with the gun No.390 (recovered from the appellant). The evidence of recovery of the gun as well as the broken part of the gun, the empties and the magazine does not admit any doubt and, in our view, is not only confidence inspiring but worth acting upon also.

13. Learned trial Judge while coming to the conclusion of the participation of appellant in the commission of crime noted that the failure of the plea of alibi set up by the accused (appellant) was a confirmatory aspect of his guilt. In that regard, he placed reliance on Khalid Javaid v. The State 1984 P Cr. L J 100, which view, we are prone to subscribe.

14. As a result of the above enunciation and analysis of the evidence, we are convinced that the prosecution had succeeded in proving active participation of the appellant in the crime. His conviction under section 302, P.P.C. is, therefore, maintained. The appeal to that extent is, therefore, dismissed.

15. Notwithstanding that we have upheld the conviction of the appellant under section 302, P.P.C. and dismissed the appeal to that extent, we are not inclined to confirm the sentence of death awarded to the appellant. The reason is that, in our view, the prosecution has not been able to prove beyond reasonable shadows of doubt that the injury, which proved fatal had actually been caused by the appellant. In that regard, the contention of the learned counsel for the appellant weighed with us that the prosecution case per F.I.R. was that the appellant was armed with a rifle and he had fired the fatal shot from rifle. In fact, in the F.I.R. the appellant is thrice mentioned to be armed with a rifle. It is also worth noticing that a magazine of the rifle was recovered from the spot, which means that rifle was also one of the weapons used in the occurrence. Although the eye-witnesses at the trial claimed that the appellant had fired the fatal shot from a gun but that obviously was contradictory to the version given in the F.I.R. No doubt, the prosecution failed to bring home charge against the other accused named in the F.I.R. but one thing is obvious from the evidence that more than one persons had participated in the occurrence and more than one kinds of weapons were used in the commission of crime. In that regard, it is worth noticing that the fire-arm recovered from Muhammad Sarwar accused, who had died during trial, was found wedded with the empties recovered from the spot. Since we have believed the participation of the appellant, so we have ruled that he must be having common intention with his companions to commit murder. The sentence of death awarded to the appellant is, therefore, altered to imprisonment for life. He shall be given the benefit of section 382-B, Cr.P.C. The sentence of fine of Rs.30,000 and the amount of Rs.25,000 directed to be paid as compensation is reduced to Rs.5,000 and Rs.15,000 respectively as, in our view, both the amounts were excessive. In default of payment of fine of Rs.5,000 he shall undergo R.I. for six months. On failure to pay Rs.15,000 as compensation also, he will undergo R.I. for six months.

16. Learned counsel for the petitioner in the revision petition has not been able to advance substantial arguments warranting unreasonableness/defeat of the reasons noted by the trial Judge for acquitting the respondents. No case warranting interference in the judgment of acquittal of the respondents and directing their fresh trial is made out. The revision petition is, therefore, dismissed. N.H.Q./A-1277/L??????????????????????????????????????????????????????????????????????????????? Order accordingly.