1988 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑This Criminal Appeal No. 723 of 1984 and connected Murder Reference No. 217 of 1984 arise from the judgment of learned Additional Sessions Judge, Gujrat, whereby he on 27‑11‑1984, convicted Muhammad Fazil (50) under section 302, P. P. C. for the double murder of Suleman and Muhammad Riaz and under section 307, 'P.P.C. for murderous assault on Muhammad Yousaf and sentenced him as under:‑ Under section 302, P.P.C. Death and a fine of Rs.6,000 on two counts. Under section 307, P.P.C. Five years' R.I. and a fine of Rs.2,000 in default thereof six months' R.I. ' with the direction that half of the fine when recovered be paid to the legal heirs of the deceased in equal shares.

2. The occurrence took place on 25‑5‑1983 at 6‑30 a.m, in the area of Mohalla Chakkar of Lalamusa at a distance of 4 miles from Police Station Lalamusa. The F.I.R. was lodged by Muhammad Zaman P.W.5, brother of Muhammad Riaz deceased on the same day at 7‑00 a.m. and was recorded by Farrukh Hussain, Inspector, P.W.9.

3. The background of the occurrence was that a plot of land measuring 12 marlas owned by Rehmat Ali, father of Niamat Ali P.W. was situated just opposite to the house of Muhammad Fazil appellant, who wanted to purchase the same. In the year 1977, one Khushi Muhammad purchased this plot with the help of Fazal Elahi, father of Muhammad Riaz deceased. The possession was delivered to the vendee. Before the sale‑deed could be executed, Rehmat Ali died. Khushi Muhammad also left for abroad. When Khushi Muhammad returned Pakistan, he asked Fazal Elahi to help him in the execution of the sale‑deed and attestation of mutation. Fazal Elahi approached Niamat Ali P.W.6 son of Rehmat Ali, vendor and succeeded in getting the sale completed in favour of Khushi Muhammad. On this Muhammad Fazil became annoyed. Muhammad Fazil then got a suit for possession by pre‑emption filed against the sale of the plot in favour of Khushi Muhammad, by Mst. Nazir Begum. The suit was pending adjudication at the time of occurrence. The appellant used to threaten Fazal Elahi and the members of his family with dire consequences, hence this occurrence.

4. As for the main occurrence it has been stated that at the eventful time Mian Khan, brother of Muhammad Zaman was present in the house of his in‑laws situate in Mohallah Chakkar. Muhammad Zaman was going to see his brother in the house of his in‑laws. The house of Muhammad Fazil appellant is also situated in the same street. When Muhammad Zaman was in the street where the house of his brother is situate, he saw the appellant coming from opposite direction. The appellant abused him and told him that they had been helping Khushi Muhammad in the purchase of plot and had also been defending the pre‑emption suit filed against him, to his annoyance, so he would kill each and every member of his family including his father. Muhammad Zaman returned the abuses. The noise attracted Muhammad Riaz deceased, Suleman deceased, Muhammad Yousaf P.W.4, Riasat Ali P.W.8, Muhammad Khan and Sarwar. On seeing them, the appellant went inside the house, took gun and came on the roof of his house and from there fired shot which hit Suleman deceased on his face, left shoulder and right knee. The appellant then fired second shot which hit Muhammad Riaz deceased in his abdomen and chest and also injured Muhammad Yousaf on his right leg. Suleman and Muhammad Riaz on receiving fire‑arm wounds fell on the ground and died. The appellant then came out of the house carrying gun in his hand and ran away.

5. Dr. Muhammad Rashid Javed P.W.7 on 25‑5‑1983 conducted post‑mortem examination on the dead body of Suleman and found following injuries: ‑ "(1) A fire‑arm entry wound on right eye 1.5 c. m. x 1.2 c. m. going deep at medial angle of eye. (2) A fire‑arm entry wound 1 x 0.8 c.m. x going deep on interior aspect of right thigh with an exit wound on back of thigh. (3) A tapered fire‑arm wound on left shoulder." In his opinion, the death had occurred as a result of shook and haemorrhage caused by injury No.1, which was sufficient to cause death in the ordinary course of nature. The death was immediate. On the same day he conducted post‑mortem examination on the dead body of Muhammad Riaz and found following injuries: ‑ "(1) A fire‑arm entry wound 0.8 x 0.8 c.m. x going deep on left half of chest 11 c.m. below left nipple. (2) A fire‑arm entry wound 0.8 x 0.8 x going deep on left side upper part of abdomen." In his opinion, the death had occurred as a result of shock and haemorrhage caused by injuries Nos. 1 and 2, which were sufficient to cause death in the ordinary course of nature. On the same day he examined Muhammad Yousaf P.W.4 and found following simple injury on his person:‑ "A fire‑arm entry wound on right shin, front. The edges of the wound were inverted with a color of abrasion. It was simple in nature and with a duration of within 7 to 8 hours."

6. On 25‑5‑1983 two crime empties Exhs.P.9 and P.10 were removed from the place of occurrence by Farrukh Hussain, Inspector, P.W.9 and were taken into possession vide memo. Exh.P.G. attested by Muhammad Zaman P.W.5 and Muhammad Khan (not produced). On 31‑5‑1983 the appellant was produced by Muhammad Zaman P.W.5 before Farrukh Hussain, Inspector, P.W.9 who arrested him. At the time of his arrest, the appellant produced gun Exh.P. B. which was taken into possession vide memo. Exh.P.H. attested by P.W.5 Muhammad Zaman and Muhammad Khan (not produced). The Forensic Science Laboratory Report Exh. P. V. shows that the two crime empties were fired from gun Exh. P. B. recovered from the appellant.

7. To prove its case, prosecution produced as many as 9 witnesses. Muhammad Yousaf P.W.4, Muhammad Zaman P.W.5 and Riasat Ali P.W.8 have given the ocular account of the occurrence. They claim to have seen the appellant going on the roof duly armed and firing shots with his gun, hitting the two deceased and the injured P.Ws. They supported the version of the main occurrence in all material particulars. Muhammad Yousaf also deposed about the background of the occurrence. Muhammad Zaman P.W.5 has supported the recoveries of crime empties from the spot and gun Exh.P.8 from the appellant. Niamat Ali P.W.6 has supported the alleged motive. He is son of Rehmat Ali who had sold the plot of land situate in front of the house of the appellant to Khushi Muhammad. Dr. ‑Muhammad Rashid Javed P.W.7 has proved the medico‑legal report of the injuries of Muhammad Yousaf P.W.4 and post‑mortem examination reports of the two deceased. Farrukh Hussain Inspector P.W.9 had recorded the F.I.R., affected recoveries, investigated the case and submitted challan. The rest of the evidence is of formal nature.

8. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances, while admitted to have caused the death of the two deceased and injury to Muhammad Yousaf P.W. he pleaded right of self‑defence as well as grave and sudden provocation. In reply to question, 'why this case against you?' he stated: ‑ "My daughter Gulzar Mufeez is studying in college and while on her way to and back from the college Riaz, Suleman deceased and Yousaf P.W. used to tease her. I had requested them not to do so and not to play with my honour, but they were adamant and persisted with their nefarious act. On the day of occurrence Riaz deceased, Suleman deceased and Yousaf P.W. while Suleman and Riaz deceased were armed with hatchets and Yousaf P.W. with a Sota made a criminal trespass into my house and made an attempt to lift away bodily Mst. Gulzar Mufeez from my house. My wife interfered but they pushed her away and gave her kick and fist blows. I made repeated requests to them not to commit high handedness but they threatened to murder me and my wife, if we intervened. Gulzar Mufeez was forcibly dragged in the street by her arms and taken away forcibly with them, then I in order to save my daughter from being abducted and kidnapped fired at them which hit both the deceased and Yousaf P.W. None of the other P.Ws. was present at the spot at that time. After the occurrence, I left over the gun at the place of occurrence and went to the P.S. where I was locked up in the lock up. Subsequently, my arrest was entered later on by the S.H.O. and he falsely planted the gun on me. In defence he produced his daughter Mst. Gulzar Mufeez. She supported the defence version. She stated that the two deceased and Muhammad Yousaf P.W. used to tease her on her way to college and she had told this thing to his father, the appellant. She further stated that at the time of occurrence, she was present in the house when the two deceased armed with hatchets and Muhammad Yousaf P.W.4 armed with sota entered the house and pushed her mother aside and after catching hold of her, dragged her out of the house and took her forcibly to the entrance of the house of Fateh Muhammad. By that time, she had been resisting and raising alarm. Her mother and her father entreated the two deceased and Muhammad Yousaf to release her but they did not agree and instead tried to attack the appellant. On this, her father brought a gun from inside the house and while standing in the street fired shot which hit not only the two deceased but also Muhammad Yousaf P.W. She got herself released and rushed to her house. In cross‑examination she stated that she could not tell the age of Muhammad Yousaf and cannot tell whether he was a young man or a man of advance age. She stated that she was dragged for about 12/13 yards from her house. She further stated that she had received injuries on her forehead during the occurrence but she had not got herself medically examined. She stated that she had not given any application to the police but had explained the facts to the Superintendent of Police.

9. The learned trial Court believing motive, ocular evidence and incriminating recoveries, discarded the defence version and convicted and sentenced the appellant as stated above.

10. Learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt; that Muhammad Yousaf and Muhammad Zaman P.Ws. are closely related to the deceased; that no independent person living in the street where the occurrence took place was produced by the prosecution; that the motive is not only far‑fetched but also flimsy, inasmuch as the plot was sold in the year, 1979 but Fazal Elahi, father of Muhammad Riaz deceased was not harmed in any manner during this long interval; that the recovery is fake; that Mst. Gulzar Mufeez has supported the defence version; that there is no reason to disbelieve her and that there is a reasonable possibility that the defence version might be true. Learned counsel for the State has supported the judgment of the trial Court. 10‑A. We have considered the submissions made by the learned counsel for the parties with care. We do not feel persuaded to agree with the learned counsel for the appellant. We find that it is a case of promptly lodged F.I.R. The occurrence took place at 6‑30 a.m. anti the F.I.R. was lodged within half an hour of the occurrence. There is nothing in evidence to show that the F. I. R. Exh. P. C is not a genuine document. The name of the appellant, the weapon used by him and the manner in which the occurrence took place have been mentioned in the F.I.R. It is a case of single accused and day light occurrence. The appellant has also owned responsibility of the death of the two deceased and injuries to Muhammad Yousaf P.W.4 although he pleaded right of self‑defence and grave and sudden provocation. No doubt Muhammad Yousaf is husband of the sister of Suleman deceased and Muhammad Zaman is brother of Muhammad Riaz deceased yet their statements cannot be discarded on account of this relationship. Riasat Ali P.W.8 is a quite independent witness having no animosity, whatsoever, against the appellant. He has supported the version of the occurrence narrated by Muhammad Yousaf anal Muhammad Zaman P.W.5. They have withstood the test of cross-examination. Their statements do not suffer from material contradictions, major discrepancies and dishonest improvements. The medical evidence fully supports them. The location of the injury of Suleman deceased i.e. right knee shows that the fire was shot from, upward. The statements made by the three eye‑witnesses are in consonance with probabilities and fit in with the circumstances of the case. The motive is also proved by the statement of a quite dependable witness namely Niamat Ali P.W.6, who had no enmity whatsoever against the appellant. The recovery is also proved by Muhammad Zaman P.W.5, an independent witness. Farrukh Hussain, Inspector, P.W.9 has also supported this recover: Forensic Science Laboratory Report shows that crime empties were fired from the gun of the appellant. The appellant has also admitted to have fired one shot from his gun resulting in the death of the two deceased ands injuries to Muhammad Yousaf P. W .4.

11. This brings us to the defence version. We find that neither this version has been established by satisfactory evidence nor there is a reasonable possibility of its being true. No report was lodged with the police with regard to the teasing of Mst. Gulzar Mufeez D.W.1 by the two deceased and Muhammad Yousaf P.W. Cross‑report was neither lodged at the police station nor any cross‑complaint was filed by the accused party against Muhammad Yousaf P.W. Mst. Gulzar Mufeez stated in cross‑examination that she could not tell whether Muhammad Yousaf was a young man or a man of advance age. This shows that the story of teasing is perhaps not true. The statement of Mst. Gulzar Mufeez that the two deceased and Muhammad Yousai were injured by one shot does not seem to be in conformity with the injuries found on the person of the two deceased and the injure witness. She stated that she was dragged for about 12/13 yards but no mark of violence was found on her nor she obtained any medics' certificate. She stated that the appellant had fired shot on the two deceased while standing in the street whereas two crime empties were recovered from the roof of the appellant and this part of statement of recovery witness as well as contents of the recovery memo, where in it has been stated that the two crime empties were recovered from the roof was not questioned in cross‑examination. This plea was also not raised during investigation. It has been stated by the appellant as well as Mst. Gulzar Mufeez that her mother had also seen the occurrence but she has not been produced. Although the two deceased were armed with hatchets and Muhammad Yousaf was armed with Sot yet neither Mst. Gulzar Mufeez nor her mother and nor the appellant received any injury. The trial Court has appreciated the prosecution evidence and the defence version in accordance with the guiding', principles laid down by the Superior Courts. The submissions mad by the learned counsel for the appellant do not hold any water. For all these reasons we are convinced that the appellant has rightly been convicted under section 302, P.P.C.

12. This brings us to the question of sentence. We find that the sale of the plot took place in the year 1977. The sale was completed in the year 1979 and that during this long interval of more than 10~ years, no untoward incident happened and that the appellant did not launch attack' straight away; that he came across Muhammad Zaman all of a sudden and that Muhammad Zaman had abused him before he went on the roof and fired shots from there. We feel that the aforesaid circumstances provided mitigating circumstance in favour of the appellant for lesser penalty.

13. As a consequences of the above discussion, the convictions oft Muhammad Fazil appellant under section 302, P.P.C. for the double murder of Suleman and Muhammad Riaz and under section 307, P.P.C. for murderous assault on Muhammad Yousaf P.W., are maintained. F The sentence of death on each count is altered to imprisonment for life on each count. The fine awarded by the trial Court under sections 302 and 307, P. P. C. imprisonment in default thereof and directions for payment of fine to the legal heirs of the deceased are maintained DEATH SENTENCE IS NOT CONFIRMED. M. Y. H. / M‑661 / L Appeal partly allowed