2007 PLP 2997 (YLR)

HASNAT AHMAD KHAN, J.

This judgment shall dispose of Murder Reference No. 828 of 2001 and Criminal Appeal No.819 of 2001 filed by Speen Gull and Shahzad Khan, who vide judgment dated 6-11-2001 passed by learned Additional Sessions Judge, Sahiwal, were found guilty under section 302(b) P.P.C. for the murder of Abdul Rehman and sentenced to death as Tazir. They were further directed to pay Rs.50,000 each as fine. In default whereof, they were decided to suffer six months' R.I. each. Learned Trial Court further directed that in case the fine is realized, Rs.80,000 would be paid to .the legal heirs of the deceased.

2. Brief facts of the case which was registered on the statement of Muhammad Khan, complainant, P.W.4, vide F.I.R. No. 828/2001 (Exh.PB-1) dated Z-6-2000 are that Speen Gull (appellant) armed with hatchet, Shahzad Khan (appellant) armed with iron. "Dater" along with co-accused Khanden Khan, Taveez Khan and Lal Khan (since absconders) also armed with iron "Dater" assaulted Abdul Rehman father of the complainant and caused numerous injuries on his body, who succumbed to the injuries.

3. Motive of the occurrence as stated in the F.I.R. was that six months prior to the occurrence, a quarrel had taken placed between the parties on the purchase of wood.

4. The statement of the complainant was recorder by Ghulam Rasool, S.I. P.W; 10, who had stated that on receipt of information, he had recorded said statement (Exh.PB) after reaching Emergency Ward. D.H.Q. Hospital, Sahiwal. Said complaint was sent to the police station for the registration of case. Thereafter, said P.W. prepared injury statement {Exh.Pl) of Abdul Rehman deceased and inquest report (Exh.PJ) Then, he proceeded towards the place of occurrence, where, he took blood?stained earth into possession vide recovery memo. Exh.PC.. Apart from that motorcycle et the deceased and two bicycles P4 and PS belonging to the accused were also recovered by him through Exh.PD and Exh.PE respectively. Rough site plan of place of occurrence was prepared by ~ him as Exh.PO. He got prepared site plans Exh. PN, Exh. PN/1 and Exh.PN/2 on 14-6-2000. The appellants were arrested by him on 25-6-2000. Speen Gull got recovered blood-stained hatchet P6 from his house through recovery memo. Exh.PF and Exh.PF on 29-6-2000. On the same day, Shahzad Khan accused led to the recovery of blood-stained "Dater" P7 from his house through Exh.PG Thereafter, he was transferred and the investigation was taken over by Rasheed Ahmad, S.-I. P.W.12, who got the other co-accused declared as proclaimed offenders and after finding the appellants fully involved in the occurrence, submitted the Challan after mentioning the names of Taveez Khan, Lal Khan and Khandan Khan co-accused in Colunui No. 2 with red ink. Both the appellants were tried by learned Additional Sessions Judge, Sahiwal, and ; convicted and sentenced as mentioned above.

5. During the trial prosecution came forward with 12 witnesses in all to bring home the guilt of the appellants. Dr. Muhammad Zafar, who conducted autopsy on the dead-body of .Abdul Rehman deceased appeared as P.W . 6 and furnished the details of injuries as under:

(1) An incised wound 10 C.M.x 2 C.M. x going deep on the front and right side of head extending to the forehead. (2) Incised wound 5 C.M x 2 C.M x going deep on the left side of head. (3) Incised wound 7 C.M x 5 C.M x going deep on the front of left shoulder. (4) Incised wound 10 C.M x 5 C.M x going deep on the front of left shoulder. (5) An incised wound 8 C.M x 6 C.M on the front and lower part of left ,arm. Going deep. Bone was cut and muscles were also cut. (6) Incised wound 10 C.M x 4 C.M x going deep on the front of all fingers of right hand. (7) Incised wound 6 C.M x 1 C.M x going deep on the front and ulnar side of right hand. (8) Incised wound 5 C.M x 1 C.M x going deep on the back and upper part of the right forearm. (9) Incised would 10 C.M x 4 C.M x going deep on the front and upper part of right leg. Bone and muscles underneath were cut. (10) Incised wound 10 C.M x 6 C.M x going deep on the back of left chest. (11) An incised wound 10 C.M x 6 C.M x going deep on the left scapular region. (12) Abrasion 10 C.M x 1/4 C.M x skin deep on the back of right chest. Clotted blood was present below the scalp. Parital bone was fractured on both sides and clotted blood was present below the parital bone. Stomach contained 100 grams of semi-digested whitish food material. The bladder contained 50 CC urine. All the other organs of the body were normal and healthy. The cause of death in this case in his opinion was due to haemorrhage and shock under injuries Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and head injury under injuries Nos. 1 &

2. All the injuries were anti-mortem and were caused by sharp-edged weapon and were individually and collectively fatal in the ordinary course of nature. The duration between injuries and death was immediate while the duration between death and post-mortem was 3-4 hours. Muhammad Ali, Constable, who had delivered the parcel containing blood-stained earth to the office of Chemical Examiner, Lahore, appeared as P.W. 1, while Noor Khan who identified the dead-body of the deceased appeared as P.W.

3. Muhammad Khan complainant/eye-witness appeared as P.W.4 and furnished the ocular account. While Sher Khan .other eye-witness appeared as P.W. 5 and apart from the ocular account, he proved recoveries of motorcycle of the deceased and bicycles of the accused from the venue of occurrence. Likewise, he also proved factum of recoveries of blood-stained hatchet P6 and Dater P7 at the instance of Speen Gull and Shahzad Khan appellants vide recovery memo Exh. PF and Exh. PG respectively. Muhammad Saeed P.W. 8 proved the site plans. Exh.PN Exh.PN/1 and Exh.PN/2. Ghulam Rasool, S.I. and Riaz Ahmad, S.I. appeared as P.W. 10 and P.W.12 respectively and furnished details of the investigation. Muhammad Aslam, Head Constable, who had recorded formal F.I.R. appeared as P.W. 11.

6. After tendering the reports of Chemical Examiner, Exh.PT, Exh.PU and those of Serologist Exh.PV and Exh.P.W., the learned A.D.A. closed the, prosecution case. Thereafter, statements of all the accused including the appellants were recorded under section 342, Cr.P.C. Both the appellants denied the prosecution case in toto and claimed their innocence.

7. In response to question No. 10, Speen Gull replied as under:

"I have been involved in this case due- to previous emnity with the complainant party. The P.Ws. are inimical towards me and my family. The P.Ws. are related inter se and with the deceased. They are interested witnesses and have deposed falsely against me." While in answer to the same question, Shahzad Khan replied as under:

"The P.Ws. are related inter se and. with the deceased. They have made false statements against us due to amenity and they are interested witnesses, and have deposed falsely. I was married with Mst. Marzak Bibi paternal aunt of complainant about ten years back and in exchange of that marriage the sister of Khandan Khan accused was engaged with the complainant. I was married with Mst. Marzak Bibi whereas sister of Khandan Khan was not married with the complainant because she was minor at that time and when she attained puberty the complainant party asked for the marriage with her but we refused their request and I divorced Mst. Marzak Bibi. Due to this the complainant party become annoyed with us." Both the accused, however, refused to make statement under section 340(2), Cr.P.C.

8. After the conclusion of the trial learned Trial Court discarded the defence version and convicted and sentenced both the appellants as mentioned in the opening paragraph of this judgment.

9. In support of this appeal, learned counsel for both the appellants has contended that the ocular version being based upon the evidence of related witnesses is not reliable; that though the deceased was done to death in a thickly-populated area, yet no independent and natural witness was produced to support the prosecution case; that both the eye-witnesses produced by the prosecution are chance witnesses; that both the eye-witnesses made material improvements by way of attributing additional injuries to the appellants" as compared to the number of injuries stated in the F. I. R that investigation was conducted dishonestly; that the prosecution has failed to prove the motive as alleged by the .prosecution story also. On the basis of said contentions, he has submitted .that .the prosecution has miserably failed to prove its case against the appellants. He adds that neither section 149 nor section 34 of the P.P.C. is attracted to the facts and circumstances of the case as same applies only in the cases of Qisas and not in the cases of Tazir.

10. On the other hand, learned State counsel assisted by learned counsel for the complainant has vehemently opposed the contentions raised by learned counsel for the appellants. Learned counsel "for the complainant has contended that it was a broad-day-light occurrence which was reported to the police very promptly that the accused are specifically named in the F.I.R. that presence of the eye-witnesses is natural' that in such-like cases, disinterested witnesses do not come forward especially in the murder cases; that the occurrence being day time there is no chance of substitution especially when the complainant party had got no reason to falsely implicate the accused/appellants. He adds that the appellants have committed the murder of the deceased in a very brutal way by using formidable weapons, and as such; they do not deserve any leniency.

11. Heard. Record perused.

12. The perusal of the record shows that the prosecution case is based upon the following pieces of evidence;

(i) Motive; (ii) Recoveries; (iii) Medical evidence; and (iv) Ocular account. We would like to discuss all the pieces of prosecution evidence separately. Motive

13. In the F.I.R. motive of the occurrence was stated to be a dispute between the parties which across six months prior to the occurrence: The detail of the said dispute was not explained in the F.LR: However, while appearing in the witness-box. Muhammad Khan complainant, who is son of the deceased, explained the details of motive on the basis of which its father was butchered by the appellants and. their co-accused. According to him; six months prior to the occurrence, he along with Sher Khan, P.W. 5 and Abdul Rehman deceased 'had gone to Chak No.5/11-L in order to purchase wood where they found Shahzad Khan and Speen Gull appellants who were also interested to purchase that wood, upon which the deceased insulted and abused both the appellants.. P.W. 4 further stated that his father used to purchase wood by giving higher bid as against the accused appellants. The version of the P.W.1 regarding the motive was fully supported and endorsed by Sher Khan, who was also present. at the relevant time. As such, the motive of the murder stands fully proved and the same cannot be discarded only on the ground that detail of the motive was not provided by the complainant while lodging the F.I.R. It is established law that F.I.R. is never considered exhaustive document and it is used only to put the legal machinery into .motion and it is not necessary to give each and every detail in the F.I.R. Dispute on the question of purchase of wood was duly mentioned in the F.I.R. Said witnesses, though, were tested through detailed and searching cross-examination, but they remained' consistent and firm. The defence has, even otherwise, failed to establish parallel story for their -false implication. Motive described by the prosecution appears' to be natural one, as both the sides belong to the same tribe/clan and it was not denied by the defence that both the parties are engaged in the business of dealing in wood. Thai shows that the business rivalry as claimed by the prosecution was there between the parties. As such, we are fully satisfied that the prosecution has. successful)5' proved the motive against the appellants. Recoveries

14. During the .investigation; blood-stained hatchet and "Dater" were recovered at the instance of the appellants. There is positive report of Serologist. Said recoveries were proved through the evidence of Sher Khan P.W. 5 and Ghulam Rasool P.W.10. Defence has failed to demolish evidence of said .witnesses. Even otherwise, the learned counsel for the appellants did not opt to challenge said evidence: Medical evidence

15. According to the contents of the F.I.R. eight injuries suffered by the deceased were specifically ascribed to the appellants as well as their co-accused. The medical evidence as provided by Dr. Muhammad Zafar, P.W. 6 shows that the deceased received as many as 12 injuries. While appearing in the witness-box, admittedly : the witnesses attributed additional injuries to the appellants, but that fact alone .cannot discard the prosecution version, as admittedly, almost all the injuries suffered by the deceased are incised wounds, the dimension of .the injuries also shows that during the occurrence heavy sharp-edged weapons as claimed by the prosecution were used in the occurrence. Therefore, ocular evidence is fully corroborated by the medical evidence. As tar as the evidence of P.Ws., whereby, the additional injuries have been attributed to the appellants is concerned, the same cannot be termed as dishonest improvement, inasmuch as, the number of the injuries received by the deceased is corroborating ocular version. As far as, the contention of the learned counsel for the appellants that the head injury received to the deceased was originally attributed to Taveez Khan, absconding accused, is concerned, it has been observed by us that in the F.I.R. only one injury on the head of the deceased was attributed and the other head injury, which was not mentioned in the F.I.R. has been attributed to Speen Gull. So it cannot be said that the injury originally attributed to Taveez Khan, proclaimed offender, was attributed to Speen Gull during the trial. Even otherwise, according to doctor all the injuries received by the deceased were not only collectively fatal but individually also, were found fatal. As such no premium' can be taken by the defence due to said alleged improvement. Even otherwise the F.I.R. is never considered an exhaustive piece of .evidence and the further details of the occurrence can be given at the time of trial.

16. Epitome of all the discussion made above is that the medical evidence has fully corroborated the ocular version provided by the prosecution. Ocular testimony

17. The ocular testimony as provided by P.W. 4 and P.W. 5 has been criticized and challenged on the ground that the eye-witnesses are .not natural witnesses and though, the occurrence took place iii a thickly and populated area, yet independent witnesses were not produced'. We have attended this aspect of the case very carefully and after the perusal of the entire material, we have come to the conclusion that the .occurrence in this case took place at 9.30 a.m. and within an hour the complaint (Exh.PB) was recorded by the police .which shows that the. F.I.R. was promptly lodged at the instance of the complainant who along with P.W.4 had removed Abdul Rehrnan (deceased),' injured condition to the hospital. The explanation of the presence of the eye-witnesses at the time of occurrence appears to be a natural one, as -being the dealers of wood, the complainant party has to travel the different places. Similar is the case of the appellants. As such, the contention that appellants being residents of a place which was miles away from the place of occurrence were not expected to be present at the .time of occurrence, is not worth acceptance. The occurrence had taken place in a broad-day light in a thickly and populated area. Substitution of the accused is a rare phenomena. Even otherwise, the defence could not establish any valid reason for their false implication. Both the eye-witnesses, though, related cannot be termed as interested witnesses, as they had got no previous enmity of the sort to falsely implicate the accused in a heinous case of murder. Both the eye-witnesses were cross-examined at great Length, but their testimony could not be shaken. They remained firm. .Their testimony is corroborative to each other. No material contradictions have been found in their evidence, therefore, we are fully convinced that the ocular evidence is worthy of acceptance and reliance. Conclusion

18. While convicting the appellants, the-learned trial Court has awarded the sentence to both the appellants under section 302(b), P.P.C. and has failed to mention the application of section 34 or 149, P.P.C. though the offence of murder was committed by five persons including three proclaimed offenders with a common object, hence provisions of section 149; P.P.C. are fully attracted in this case.

19. As mentioned above, the prosecution has fully proved the case against the appellants beyond any shadow of-doubt and no reason has been found by us to up set the findings of the conviction. As far as the question of quantum of sentence is concerned, the injuries attributed to all the accused were found by the doctor to be individually and collectively fatal As far as Speen Gull is concerned, injuries .attributed to him are found to be very serious. Ahead injury received by the deceased is attributed to him. Apart from .that injury No. 5 attributed to him shows that bone of left arm was cut. Similarly, injury of right leg which got fractured and cut, has also been attributed to him. The length and width of the injuries attributed to him shows that he had acted quite callously. The latter two injuries were duly attributed to him by the complainant in the F.I.R. as well as during the trial by both the eye-witnesses. As such, he deserves no leniency in the matter of punishment and therefore, we have got no option but to hold that he was rightly awarded death sentence by the learned Trial Court. However, Shahzad Gull does not deserve the death sentence, as injuries attributed to him are found to be on the hands i.e. non-vital part of body of the deceased and are not so grievous. Hence, while dismissing the appeal, the death sentence, awarded to Speen Gull is confirmed while death sentence awarded to Shahzad Khan is not confirmed and his sentence is converted into life imprisonment with benefit of section 382-B, Cr.P.C. Consequently, murder Reference to the extent of Speen Gull is answered in affirmative, while Murder Reference to the extent of, Shahzad Khan is answered in negative.

20. Before parting with the judgment, it is observed that the sentence of fine awarded to both the appellants is converted into sentence of compensation. H.B.T./S-110/L??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.