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Criminal Appeal No. 135 and Murder Reference No. 84 of 1979, decided on 7th April, 1980.

-- S. 302/34-[Murder-case]-Two eye-witnesses unanimous ac to first shot by appellant hitting deceased in abdomen which fell him on ground-Eye-witnesses having no previous enmity with appellant ---Prosecution, held, satisfactorily proved its case against appellant--- Death sentence confirmed by High Court.

Muzaffar Qadir for Appellant.

Muhammad Rafiq Butt for the State.

Gul Muhammad Butt for the Complainant.

Dates of hearing : 2nd, 5th and 7,th April, 1980.

-Ghulam Nabi (30), his brother Ghulam Farid (28), their sister's husband Rashid alias Sheeda (65), their cousin Iqbal alias Babu (35) and their friends Abdur Rehman alias Majha (27) and Yaqoob (40) were tried for the offences under sections -148, 302/148 and 109, P. P: C. On 23rd December, 1979 Ghulam Nabi, Ghulam Farid, Rashid were convicted under section 302/34, P. P. C. Ghulam Nabi was sentenced to death and to a fine of Rs. 2000, in default of payment to further suffer one year R. I. Ghulam Farid and Rashid were sentenced to imprisonment for life and to a fine of Rs. 2,000 earn in default to suffer one year R. I. further. These three were also convicted under section 324/34, P. P. C. and sentenced to three years' R. I. and a fine of Rs. 300 each, in default to suffer three months' R. I. They were also convicted under section 323/34, P. P. C. to simple imprisonment for one year and fined Rs. 100 each in default one month's S. I. on two counts. The fine on the count under section 302/34, P. P. C. if realized was ordered to be paid to the heirs of the deceased as compensation. The fine on the remaining counts, if realized was ordered to be paid as compensation to the injured witnesses in equal share. Iqbal alias Babu, Yaqoob and Abdur Rehman alias Majha were acquitted.

A few days before the occurrence in this case Asghar Ali deceased caused serious injury to Ghulam Nabi's father for which he bore a grudge against him. In order to avenge the beating, Ghulam Nabi conspired with Yaqoob (acquitted-accused) who abetted the crime in the case. Further according to the prosecution at Zoharwela, on 28th July, 1975 Fazal Din his son Asghar accompanied by his nephews Muhammad Sharif and Muhammad Sadiq, all went to attend the Mela of Baba Bholey Shah in Chak No. 70/E. B. Muhammad Shaft met them and cautioned Fazal Din that Muhammad Yaqoob had instigated Ghulam Nabi cobbler to kill Asghar. He also gave him a rifle in the presence of Majha son of Khair Din Lobar. Shall further told that he and P. W. Muhammad Rafip Ansari had seen Yaqoob and others conspiring with each other. Upon this infor mation Fazal Din informant, his son and nephew came out of the Mela crowd and had gone some distance, just then the accused appeared. Ghulam Nabi armed with a -12 bore gun, Ghulam Farid with Gandhali, Majha with a gun, Rashid had a clang and Iqbal was armed with a spear. They challenged them. The informant and his companions took to heels, but overtaken by the accused at the tube-well- of P.' W. Muhammad Sadiq. Ghulam Nabi fired a shot hitting Asghar in the left side of his abdomen. Majha, Lobar, kept on firing in the air. Thereafter, all the five accused belaboured Muhammad Sharif and Muhammad Sadiq. , P. W. Sharif received injuries on his head, arm and ankle 'while Muhammad Sadiq suffered injuries on his head, arm and leg. Besides the injured the occur rence was also witnessed by P. W. 13 Muhammad Rafiq who was attracted and said to have raised the alarm. The accused threatened the witnesses with dire consequences, therefore, none dared to go near them the accused ran away towards the Mela. The injured were carried on charpais to Arifwala Hospital. Asghar Ali died on the way. From the hospital P: W. 12 Fazal' Din went .to Police Station, Gaggu, situated at a distance of 16 miles from the place of occurrence. He made the F. I: R. Exh. F. P. to P. W. 16 Malik Fazal Ilahi, S.I. at 7 p. m. the same evening. After registering the case, P. W. 16, Fazal Ilahi S.I. went to Arifwala Hospital, prepared the necessary documents and sent the dead body for its post-mortem examination, He examined P. Ws. Sadiq and Sharif in the hospital and on the following day i. e. 29th July. 1975, he reached the place of occurrence, collected blood-stained earth from there made it into a sealed parcel in the presence of P. W. Khushi Muhammad and Muhammad Shafi. Two empties Exhs. P. 3 and P. 4 were also recovered from there. These were also sealed in a parcel attested by the same witnesses.

3. On 28th July, 1975 Dr. Mushtaq Ahmad (P. W. 10) examined P. W. Muhammad Sharif and Muhammad Sadiq at 8 p. m. He noticed eight injuries on P. W. 14 Muhammad Sharif, out of which one of the injuries was caused by a sharp-edged weapon. It was an incised wound 1 x 1 1/3 bone deep on outer side of the left arm. Remaining injuries were lacerations, abrasions and swellings on his hands ankle and arm. The injury on Muhammad Sharif's forearm was declared grievous after X-ray.

P. W. 15 Muhammad Sadiq also suffered eight injuries, one of his injuries was a stab wound x x 1", on the upper part of his left thigh, the rest of his injuries were lacerations, and abrasions, caused by a blunt weapon, mostly suffered on his limbs His injuries were simple in nature.

4. P. W. 10 Dr. Mushtaq Ahmad held the autopsy on the dead body of Asghar at 8 a. in. on 29th July, 1975. He found 80 simple circular lacerated wounds of entrance. I /8' x 1/8" each club grouped close together in an area of 7' x 3/1" on the lower part of the abdomen mostly on the right side and 70 simple circular lacerated wounds of entry each club grouped close together in an area of 7" x 5" on the upper most part of right thigh. The margins of the wounds were black peritoneum was penetrated at numerous places. Similarly the small intestines were perforated at a number of places. The mesentary was also injured at many places. The urinary bladder was perforated by many pellets. The stomach contained semi-digested food. In doctor's opinion death was due to shock and haemorrhage. The abdominal injuries were fatal and sufficient to cause death in the ordinary course pf nature. The fire-arm injuries caused death within an hour and the autopsy was held within 16 hours-thereafter. Eighty- four pellets were removed from the dead body which were kept in a sealed Phial and handed over to police, two pieces of cork were removed from the clothes of the deceased which were also sealed in a bottle.

5. On 3rd August, 1975 P. W. Elahi Bakhsh produced Rashid accused with his stick before the police. He was arrested and the stick taken into possession vide Memo. Exh. P. F., attested by Khushi Muhammad and Muhammad Shafi. On 12th August, 1975 lqbal alias Babu appeared before the S. H. O. with his Barchchi (P. 5). It was taken into possession vide Memo. Exh. P. E. attested by Khushi Muhammad and Muhammad Shafi. On 14th August, 1975 Ghulam Nabi was arrested. Upon interrogation, he led to the recovery of his .12 bore gun from his house on 17th August, 1975. It was made into a sealed parcel vide Memo. Exh. F. C. attested by the same aforesaid witnesses, Yaqoob accused who had been allowed bail was formally arrested by the S. I. on 18th August, 1975. He produced his licensed rifle P. 9 and his licence P. 9/A. These were taken into possession vide Memo. Exh. P. O. attested by the same attesting witnesses. Ghulam Farid was arrested by Rao Abdus Sattar, A. S. I. on 5th September, 1975. Upon interrogation on 17th September, 1975 he led Malik Fazal Elahi, S. I., to the recovery of Gaodala P. 8 from his shop situated in Chak No. 66/E. B. It was made into a sealed parcel vide Memo. Exh. P. H. attested by the same aforesaid witnesses. After completing the investigation the accused were sent up for trial.

6. Ghulam Nabi admitted his relationship with Ghulam Farid and Rashid. He however, denied relationship with Iqbal. He admitted the earlier incident between Asghar Ali and his father Elahi Bakhsh. Denying the occurrence and the recovery of the gun he said that the empties which were sent to the fire-arm expert had been prepared and planted by the Investigating Officer, whereas no empties were in fact, recovered. He asserted that he was arrested on the following day of the occurrence and recovery was planted 20 days thereafter. He further explained that two/three days before the occurrence in this case he had got a case registered under section 325/34, P. P. C. against Asghar Ali, deceased, Muhammad Rafiq, Mansha and others, therefore, they bore a grudge against him and out of suspicion have involved him in this case. He added that the occurrence was said to have taken place after sunset and the assailants were unidentified. He led no evidence in defence. Ghulam Farid and Rashid supported the statement of Ghulam Nabi and said that they have been falsely involved in this case due to party-faction in the village. According to Ghulam Farid he was present in the Army Workshop, Rawalpindi and was marked present in the register against this entry; he had also signed. He produced Exh. D. D., a certificate issued by Major Muhammad Akram Incharge of the Workshop to this effect. The three acquitted accused. Iqbal, Abdur Rehman and Yaqoob denied guilt and ascribed the case to party-faction. Yaqoob denied having produced his licensed rifle but said that the P. Ws. bore a grudge against him because he was an eye-witness in the case registered by Ghulam Nabi against Asghar Ali deceased and others.

7. Trial Court came to the conclusion that the evidence of P. Ws. Muhammad Sbarif and Muhammad Sadiq was fully corroborated by the evidence of motive, medical evidence, recoveries from the spot and from Ghulam Nabi, Ghulam Farid and Rashid. Relying on this evidence, these three accused were convicted. Against Yaqoob accused there was no evidence of conspiracy. Therefore he was acquitted. Abdur Rehman alias Majha was not attributed any injury. He was ascribed the role of a lalkara ; thus he was given the benefit of doubt and acquitted. Iqbal accused was said to have given a barchi blow to Sadiq on his left thigh. Since it could not be satisfactorily proved, therefore he was also given the benefit of doubt. Moreover, the barchi recovered from him was also not found to be stained with blood.

8. Criticising the finding of the trial Court, learned counsel for the appellant contended that the occurrance took place when it was dark. Therefore, the prosecution has put up interested witnesses who have readily stage-managed their presence at the spot. Although the distance between the place of occurrence and the Mela was only 2 squares, yet not a single unconnected witness came to the spot., To support the contention that it was an unwitnessed occurrence, learned counsel contended that the ocular testimony was inconsistent with the medical evidence. He next submitted that P: Ws. Fazal Din and Muhammad Rafiq reached the spot touch later. In support of this submission a reference was made to the statement of Muhammad Sharif the injured witness who had not stated before the police that Fazal Din was with them when they were going back home. The witness bad stated there that Fazal and Rafiq had reached after the injured had fallen. No doubt this contradiction is there in the statement of the injured witness regarding these two witnesses. Learned counsel further contended that the deceased did not receive any sharp-edged or blunt-weapon injury ; the injuries of Sharif and Saddiq could not be caused by a Kundali which was ascribed to -Ghulam Farid accused and with regard to the firearm injuries the contention was that though according to the expert the two crime empties recovered from the spot were found waded with the .12 bore gun recovered from Ghulam Nabi, yet the expert's opinion was of no value to the prosecution because the empties were recovered on 30th April, 1975 and the gun on 17th August, 1975. The two were despatched together to the expert. No doubt, these weaknesses are there in the prosecution case, but in our opinion the sole question in this case would be whether the evidence of the injured witnesses could be relied upon. Admittedly there is no doubt that both Muhammad Sharif and Muhammad Sadiq mentioned that Fazal Din came to the place of occurrence later, Same is the position about P. W. Muhammad Rafiq the other eye-witness. The evidence of Rafiq suffers from another defect. He was involved in the previous litigation with the accused but we find that neither Muhammad Sharif nor Muhammad Sadiq have any enmity with the accused. Although they are cousins of the deceased but they were not involved in the earlier litigation in any manner. Under these circumstances, by no stretch of imagination they could be called interested witnesses.

9. P. W. 14 Muhammad Sharif and P. W. 15 Muhammad Sadiq have attributed a general role of beating to them by all accused. Nature of their injuries is simple. Sharp-edged injury suffered by each is not attributed to any particular accused. They have neither mentioned the location of their injuries nor the weapon with which trey were hit. However, they are positive about the fire-arm injury inflicted to Asghar (deceased) by Ghulam Nabi accused in the abdomen which is also supported by the medical evidence. Trial Court observed that the blunt weapon injuries suffered by these two witnesses could have been inflicted to diem by the Butt-end of the gun by Ghulam Nabi, However, this fact is not mentioned by these two witnesses. They have made a general statement that all accused beat them. Under these circumstances, in so far as the case of Farid and Rashid was concerned, we do not consider the evidence of the eye-witnesses enough to fix their responsibility. But in so far as Ghulam Nabi was concerned Sharif and Sadiq were unanimous that the first shot was fired by Ghulam Nabi hitting Asghar in the abdomen which fell him on the, ground. We have no reason to disbelieve their statements in so far as the attack by Ghulam Nabi is concerned. These two witnesses have no previous enmity with him. They claimed to be present with the deceased at the time when he was returning from the Mela. Relying on their evidence we are of the view that the prosecution has satisfactorily proved its case against Ghulam Nabi. His appeal is dismissed and the death sentence is confirmed. For the reasons given above we give the benefit of doubt to Farid and Rashid anu acquit them.

Order accordingly.

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