2000 PLP 208 (MLD)

(1) A firearm wound 2 c.m. x 1 c.m. x DNP on the right shoulder 5 c.m. from the route of the neck. (2) A firearm wound 1 c.m. in diameter into DNP on the right back of shoulder: (3) A firearm wound 1 c.m. in diameter into DNP of the back of right upper arm 6 c.m. below the injury No.2. (4) A firearm wound 1 c.m. x 1 c.m. x DNP on the outer back of right chest 7 c.m. from right axilla. All the injuries were caused by firearm and were ante‑mortem. The cause of death was shock due to puncturing of vital organs and massive haemorrhage due to injuries Nos. l, 2, 3 and 4 which were sufficient to cause death in ordinary course of nature. All the injuries were ante‑mortem, death was within half an hour, time between death and post‑morten was within two to six hours."

7. Same Medical Officer on 24‑12‑1988 at 3.15 p.m., examined Zahid Mahmood and found the following injuries vide medico‑legal report Exh.P.R:‑‑ "(1) A firearm wound with scorching (2 c.m. x 1 c.m.) into scalp deep on the back and right side of head 10 c.m. above the right ear. (2) Complaint of pain on the left side of chest. (3) A lacerated wound 2 c.m. x 0.5 c.m. muscle deep on the second left toe. Injury No. l was caused by firearm while the rest by blunt weapon. "

8. On the same day, at 3‑30 p.m. P.W.12 examined Tahir Mehmood and found the following injury on his person vide medico‑legal report Exh.P.S:‑‑ "(1) Lacerated wound 3.5 c. m. x 0.5 c. in. x bone deep on the forehead." In his opinion the injnry was caused by blunt weapon.

9. The eye‑witness account was furnished by Manzoor Hussain (P.W.8) reiteratins the prosecution story as given .in the F.I.R. He was corroborated by ti,c injured Zahid Mahmood P.W.9 and Tahir Mehmood P. W.10.

10. Appellant Saiful Malook while making his statement under section

342. Cr.P.C. stated that he was in possession of the Ahata in dispute for the last 7; 8 years and had built his residence over there wherein he alongwith his wife and eight daughters was residing. Aslam etc. wanted to forcibly occupy the said Ahata, whereupon he filed a suit for permanent injunction which was decided on 21‑12‑1988. On 24‑12‑1988 at 8.00 a.m. he was taking break=fast alongwith his wife and daughters when Muhammad Aslam and Abdul Waheed came .there armed with their licenced guns to forcibly occupy the Ahata and hurling filthy abuses, asked to vacate the same. They pushed out his daughters from the Ahata and started throwing the house‑hold items. 'lie apprehending danger to his life and lives of his family members in exercise of his right of self‑defence and to save his property fired four shots from his carbine towards Waheed and Aslam, who fell down in front of the residential house. He further stated that at the time of occurrence no other accused was with him nor he has any liaison with them nor Zahid ‑1ahmood. Taitir Mehmood, Khalid Mahmood, Abdur Razzaq and Manzoor llussain (P.Ws.) were present. He denied the allegations of the prosecution by stating that complainant and his brother‑in‑law Ch. Abdul Ghafoor .'M.N.A., have implicated him in the case with the connivance of the police. Ziaur Rehmnn also denied the allegations levelled against him. He stated that he is innocent and has been implicated in the case falsely by the complainant, his brother‑in‑law Ch. Abdul Ghafoor, M.N.A., ex‑Law Minister, on account of enmity and party faction. Appellant Abdul Wahab and other acquitted accused also denied the allegations attributed to them and submitted that they are innocent and have been involved in the case due to enmity and political differences. They denied their presence at the spot. The accused besides making statements under section 340, Cr.P.C. also produced Khadim Hussain DWA, Ilyas Javaid, Advocate, T.T. Singh, D.W.2, Altaf Hussain Chokidar D.W.3, Ali Muhammad Ahmad D.W.4, Masood Ahmad, Advocate, D.W.5, Mohsin Rasheed, Advocate, D.W.6 in support of their defence pleas.

11. According to the report of the Serologist, Exh.P.BB, item Nos.3286/1 and 3286/2 comprising earth of Abdul Waheed and Muhammad Aslam deceased were stained with human blood. In the opinion of Superintendent of Police Technical Services, Punjab, Lahore, vide his report Exh.P.CC. crime empty C.1 was fired from the .SBBL shotgun of .12 bore alleged to have been recovered from Saiful Malook accused and crime empty C.2 was fired from the shotgun of .12 bore allegedly recovered from Ziaur Rehman accused.

12. Learned counsel for the appellants contended that the prosecution evidence qua acquitted accused was disbelieved by trial Court and same cannot be relied upon against the appellants. The prosecution has thrown a wider net and implicated 8 persons out of which five have been acquitted. Eye‑witnesses count is not trustworthy and the conviction of the appellants on their deposition is not sustainable. Appellant Saiful Malook was in possession of the Ahata in dispute. Deceased Muhammad Aslam alongwith his pet goonda Abdul Waheed attacked him to forcibly eject him therefrom. He, in exercise of his right of defence of the property and self‑defence, alone fired at the deceased, 2iar‑ur‑Rehman and Abdul Wahab appellants were not present at the spot. The defence plea of appellants examined in juxtaposition with that of the prosecution appears to be reasonable and believable. The prosecution has not produced the judgment of the Civil Court whereby the case was decided in favour of the Mst. Bashiran mother of Khalid Mahmood, who was also withheld by the prosecution and was given up as unnecessary, hitting upon the veracity of the prosecution. The investigation of the case was tainted with malice and remote controlled. Ziaur Rehman and Abdul Wahab appellants have no motive to participate in the occurrence and have been falsely implicated on account of enmity and party faction. The recoveries are fake, and the prosecution evidence as a whole does not inspires confidence and the appellants are entitled to acquittal.

13. Learned counsel for the complainant as well as the State, on the other hand, submits that the appellants have fired at the deceased Muhammad Aslam and Abdul Hameed who came there for reconciliation purposes regarding the possession of the Ahata. They were empty handed, and have been fired at by Saiful Malook and Ziaur Rehman. He further stated that Ziaur Rehman' second shot caused grievously hurt to Zahid Mahmood while Abdul Wahab caused brickbat injury to Tahir mahmood. The prosecution evidence inspires confidence and has proved the case against the appellants. The claim of appellant Saiful Malook that he alone has fired at both the deceased is belied by the nature of injuries received by the deceased and the weapon of offence used by the accused during the occurrence. Further, he has not raised this plea before the Investigating Officer. During trial no such suggestion was put to the P. Ws. by the defence. This is an afterthought plea raised for the first time by the said appellant while appearing as his own witness which absolutely does not ring any truth. The report of the Firearm Expert that the empties recovered from the spot wedded with the weapons recovered from Saiful Malook and Ziaur Rehman, medical evidence, recoveries corroborate the ocular account. The prosecution has established the case against the appellants beyond any shadow of doubt, and the benefit of doubt extended to acquitted accused in no way affects the case of the prdsecution qua the formers, Two of the eye‑witnesses namely Zahid Mahmood P.W.9 and Tahir Mahmood P.W.10 are injured and their presence at the spot cannot be denied. The motive as set up by the prosecution has also been proved, therefore, the appellants Saiful Malook and Ziaur Rehman were rightly convicted and sentenced by the trial Court while judgment of acquittal of their co‑accused is erroneous and is liable to be set aside.

14. We have heard the learned counsel for the parties and gone through the evidence with their assistance. Two of the acquitted accused namely, Abdul Haq and Hafeezur Rehman were involved on the charge of conspiracy whereas the remaining were empty handed at the place of occurrence. Learned trial Court disbelieved the prosecution evidence qua them as no overt act was attributed to them. The evidence of conspiracy was disbelieved. In every case the Court has to sift the grains from the chaff and especially in such like cases where the number of accused disproportionate with the injuries received by the victims. We are of the view that they were rightly acquitted of the charge against them by the trial Court which does not affect the prosecution case qua the convicts.

15. P.W.8 Manzoor Hussain complainant is brother of Muhammad Aslam deceased. He is councillor and was requested by Khalid Mahmood for advising Saiful Malook not to interfere in the construction to be raised by him in the Ahata in dispute. Local representatives in such‑like situation can exercise their influence for patching up the petty disputes in their Halqa. He came over the place of occurrence on the request of Khalid Mahmood. Zahid Mahmood P.W.9 and Tahir Mahmood P.W.10 received injuries during the occurrence, therefore, presence of PWs.8,‑ 9 and 10 at the spot is established. They supported the prosecution case as narrated in the F.I.R. Their evidence is supported by the medical evidence and recoveries. The Investigating Officer recovered the empties from the spot P.11 and P.12 on 24‑12‑1988. The weapons of offence, guns, were recovered from Saiful Malook and Ziaur Rehman on 29‑12‑1988. Muhammad Tariq Constable delivered the parcel containing empty cartridges to the Forensic Science Laboratory on 26‑12‑1988 and he delivered the parcels containing guns on 4‑1‑1989. The possibility of tampering with the weapons or cartridges stands excluded as they were delivered intact separately by the said P.W. to the Forensic Science Laboratory, which reported vide Exh.P.C.C. the empties recovered from the spot wedded with the weapons recovered from the appellants.

16. The plea of appellant Saiful Malook that he alone fired at the deceased and his co‑convicts and others were not present at the spot appears to be an afterthought. The nature of injuries on the person of Abdul Waheed and Muhammad Aslam deceased indicates that two different type of weapons were used during the occurrence. Injury No.1 on the person of Abdul Waheed was firearm wound of 6 cm. x 3 c.m. x DNP on the front and upper part of right chest. It was entry wound while injury No.2 was exit wound of injury No.l. The injury was caused from short range. Third and fourth ribs of the deceased were fractured. Said injuries were, in the opinion of P.W.12 sufficient to cause death in the ordinary course of nature. While injury No. 1 on the body of other deceased was of 2 c.m. x 1 c.m. x DNP, injury No.2 was of the dimension of 1 c.m. in diamter DNP on the right back of the shoulder. Injuries Nos.3 and 4 were also of similar dimensions. The medical evidence, and tf recoveries is consistent with the ocular account furnished by the eye‑witnesses P.W.8; P.W.9 and P.W.10. The plea of Saiful Malook that the other accused did not participate in the occurrence is not worth reliance. He has not taken this plea before the Investigating Officer. For the first time he raised this plea while making his statemeni under section 342, Cr.P.C. on 5‑3‑1990. No such suggestion was put to the P.Ws. during the trial and as such this plea of the appellant is discarded. 17. ‑ The contention of the learned counsel that the prosecution has not produced Khalid Mahmood P.W. who is originator of the incident, tending the inference against the prosecution is of not much significance. Khalid Mahmood given up P.Ws: real brother of Zahid Mahmood and Tahir Mahmood P.Ws. who have fully supported the prosecution case. Probably he was given up as he did not receive any injury and his evidence was not considered necessary in presence of the said two injured witnesses and his non‑examination by the prosecution has not affected its case in any manner and no adverse inference against it can be drawn therefrom. The occurrence has been admitted by the principal accused Saiful Malook although denied by other accused, who raised the plea that they were not present at the spot anti have been falsely implicated in the case. The version of Saiful Malook has been disbelieved by us for the reason stated above. The prosecution evidence inspires confidence. Ocular account is corroborated by the medical evidence as well as evidence of recoveries. The prosecution has succeeded to prove the case against the appellants and they were rightly convicted by the learned Trial Judge under sections 302/34 and 324, P.P.C.

18. Now coming to the motive part of the prosecution, the prosecution has alleged that Khalid Mahmood wanted to raise construction in the, plot in dispute after the case was decided in his favour by the Civil Court which was obstructed by Saiful Malook appellant and in order to resolve the dispute amicably he approached Manzoor Hussain P.W.8 Councillor to prevail upon Saiful Malook so that the construction could be raised whereas plea of Saiful Malook appellant is that he was in possession of the Ahata and Khalid Mahmood or his mother was not in possession. thereof. They were interfering in his possession and he was forced to file a civil suit for declaration and permanent injunction, which was decided on 21‑12‑1988. Copy of the said decision has not been placed on record by the prosecution or the appellants. However, report of the Local Commissioner has been placed on record by the defence as Exh.D.O./1, which is, dated 15‑10‑1985, and shows that Ahata in question was in possession of Siaful Malook for the last .4/4‑1/2 years. There is nothing on the record to establish possession of Khalid Mahmood or his mother over the plot. Similarly assertion of Saiful Malook that he was in possession of the Ahata in dispute and complainant party in order to forcibly eject him, launched an attack on him and he, in exercise of right of defence of his property and himself, fired at the deceased alone also does not inspire confidence. If the complainant party really wanted to dispossess Saiful Malook as alleged by him, they would have come there with full force duly equipped and could have caused many injuries to him, without suffering any such even Saiful Malook appellant could not go safely. Both the prosecution as well as defence have suppressed the immediate cause of incident, which is shrouded in mystery. 1n this view of the matter we are not inclined to confirm the death sentence awarded to appellants Saiful Malook and Zia‑ur‑Rehman.

19. For the foregoing reasons while partly allowing the appeals and maintaining the conviction of appellants Saiful Malook and Ziaur Rehman under section 302/34, P.P.C convert the sentence from death penalty into imprisonment for life. The conviction and sentence of Ziaur Rehman under section 307, P.P.C. is maintained. The conviction and sentence of appellant under section 324, P.P.C. is also maintained. Both the sentences awarded to Ziaur Rehman shall run concurrently. All the convicts shall be entitled to benefit as contemplated by section 382‑B, Cr.P.C.

20. Criminal Revision No.652 of 1991 is without any substance and is dismissed.

21. Murder Reference No. 126 of 1990 is answered in the negative and the death sentence is not confirmed. Q.M.H./M.A.K./S‑415/1