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Criminal Appeal No.640, Murder Reference No. 171 of 1982 and Criminal Revision No. 536 of 1983, heard on 26th February, 1985.
‑‑‑Ss. 302/34 & 307/34‑‑Evidence Act (I of 1872), S.27‑‑Murder‑ Recoveries‑‑No empty recovered from spot‑‑Gun and revolver allegedly used in commission of offence not sent to Forensic Science Laboratory‑-- Recovery, held, of no consequence.‑‑[Recovery].
‑‑‑Ss. 302/34 & 307/34‑‑Criminal Procedure Code (V of 1898), S.154‑ First Information Report lodged promptly and without consultation of police or tutoring by anyone‑‑Names of eye‑witnesses, names of accused, weapons carried by them, part played by them and manner of occurrence were stated in F. I. R.‑‑Authenticity of First Information Report not shaken‑‑Circumstances of case showing that accused had a motive to open attack on deceased‑‑Presence of eye‑witnesses proved by fact of injuries they received in incident‑‑Occurrence taking place in daylight‑ Accused previously known to eye‑witnesses and, therefore, eye‑witnesses, having no difficulty in identification of assailants‑‑Injuries found on person of deceased and prosecution witnesses commensurating with number of accused whom eye‑witnesses had named‑‑No conflict existing between medical and ocular evidence‑‑Statement of eye‑witnesses not suffering from any inherent infirmity, major contradiction, material discrepancies and dishonest improvements‑‑Such statements rather in consonance with probabilities, materially fitting in with other evidence and inspiring confidence‑‑Trial Court applying its conscious mind to evidence and giving sound reasons in support of its decision to convict accused‑‑Conviction of accused upheld in circumstances.
‑‑‑S. 154‑‑Penal Code (XLV of 1860), Ss.302/34 & 307/34‑‑First Information Report lodged with promptitude gives rise to conclusion that its maker either witnessed affairs or was otherwise concerned with it.
---S. 154‑‑Penal Code (XLV of 1860), Ss.302/34 & 307/34‑‑First Information Report made promptly and not shaken‑‑Can be used to corroborate statement of complainant.‑‑[First Information Report]. 1717] A 2
‑‑‑Ss. 302/34 & 307/34‑‑Sentence‑‑Benefit of doubt‑‑Question of sentence demands utmost care on part of Court dealing with life and liberties of people and accused are entitled to benefit of doubt on question of sentence.‑‑[Sentence‑‑Benefit of doubt].
‑‑‑Ss. 302/34 & 307/34‑‑Conviction‑‑Sentence‑‑Accused having no direct interest in disputed land due to which occurrence took place‑‑Possibility, that he might have acted under influence of some other or that something might have been said by deceased before firing of shot by accused and his act might have been somewhat provoked by deceased, not excluded in peculiar circumstances of case‑‑Accused given benefit of doubt and death sentence awarded to accused altered to imprisonment for life.‑ [Sentence].
Ijaz Hussain Batalvi and M.A. Zafar for Appellants.
Col. Muhammad Abdul Rashid for the State.
Munir Ahmad Bhatti for the Complainant.
Dates of hearing: 24h and 26th February, 1985.
‑‑This Criminal Appeal No. 640 of 1982, connected Murder Reference No. 171 of 1982‑and Criminal Revision No. 536 of 1983 against acquittal of the co‑accused and‑for enhancement of the sentence of the appellants arise from the judgment of learned Additional Sessions Judge, Faisalabad, whereby he on 28‑11‑1982 while acquitting Ejaz alias Boola, Maqbool Ahmad, Faqir Muhammad and Safdar Hussain co‑accused, convicted Nawazish Ali (27), Zia‑ul‑Haq (42) and Abdul Waheed (22) under section 302/34, P.P.C. for causing the death of Abdul Qayyum and under section 307/34, P.P.C. for murderous assault on Muhammad Amin and Javed Iqbal P.Ws. and sentenced them as under:‑
section 302/34, P,P_C.‑‑ Nawazish Ali appellant to death and a fine of Rs.2,000, in default thereof two years' R.I. Zia‑ul‑Haq and Abdul Waheed to imprisonment for life and a fine of Rs.5,000 each, in default thereof two years' R.I. It was directed that the fine when recovered be paid to the heirs of the deceased as compensation. ,
Under section 307/34, P.P.C.‑‑ All the three appellants to 3 years' R.I. and a fine of Rs.1,000 each, in default thereof one year's R.I. with the direction that the fine when recovered be paid to Muhammad Amin and Javed Iqbal, injured witnesses as compensation.
It was also directed that the sentences under both the sections would run concurrently.
2. Zia‑ul‑Haq appellant is father of Ejaz, acquitted accused. Abdul Waheed appellant is first cousin of Zia‑ul‑Haq appellant. The acquitted accused namely Maqbool Ahmad, Faqir Muhammad and Safdar Hussain are cousin inter se. Nawazish Ali is son of Safdar Hussain, acquitted accused.
3. The occurrence took place on 18‑7‑1981 at 4‑15 p.m. in between Killa No.1 of Square No.46 and Katcha Road in the area of Chak No.213/R‑B of P.S. People's Colony, Faisalabad. The F.I.R. Exh. P.H. was lodged by Nazir Hussain P.W.10, paternal uncle of the deceased and was recorded by Muhammad Asghar S.I., P.W.15 at 5‑30 p.m. on the same day. The distance between the place of occurrence and the police station is 2 K. M.
4. The motive as alleged by the prosecution was that Killas Nos. 6, 7, 8 of Square No.47 were owned by Zia‑ul‑Haq and Abdul Waheed appellants. Abdul Qayyum alongwith his father Khadim Hussain were cultivating the said land as tenant. Zia‑ul‑Haq appellant and Abdul Waheed wanted to take back the possession of the land forcibly, thus this occurrence.
5. As far the main occurrence, it has been stated in the F.I.R. that Nazir Hussain complainant was present with his son Tahir Mehmood in his square. Abdul Qayyum deceased and Javed Iqbal sons of Khadim Hussain and Muhammad Amin injured P.W. were present somewhere in between Killa No.1 of Square No.46 and Katcha road waiting for their turn of water. The appellants alongwith Ejaz alias Boola and Maqbool all armed with guns and Safdar Hussain and Faqir Muhammad, acquitted accused armed with carbines came towards the deceased. Nawazish Ali and Zia‑ul‑Haq appellants raised Lalkara addressed to Abdul Qayyum and others that they would teach them a lesson for retaining the possession of the land and watering the same. Safdar Hussain co‑accused instigated that the deceased and others should not be spared. Nawazish Ali appellant fired with his gun hitting Abdul Qayyum deceased in the chest. Safdar Hussain co‑accused fired carbine hitting the deceased on his right eye. Abdul Waheed fired hitting Muhammad Amin on his left buttock. Zia‑ul‑Haq fired shot which hit Javed Iqbal P.W. on the right calf. Nazir Hussain complainant, Tahir Mehmood and Bashir also saw the occurrence. They raised hue and cry whereupon the appellants and their companions started firing on the complainant and others who laid down in the watercourse to save themselves. Thereafter, the appellants and co‑accused left the place of occurrence. Abdul Qayyum succumbed to the injuries on the spot. The complainant leaving Tahir Mehmood and Bashir to guard the dead body, proceeded to police station to lodge report. The injured witnesses were moved to the hospital by the people who had gathered at the place of occurrence by that time.
6. Dr. Muhammad Ajmal Khan P.W.1 conducted post‑mortem examination on the dead body of Abdul Qayyum on 19‑7‑1980 at 9‑30 a.m. and found following injuries:‑
(1) A fire‑arm wound 1 c.m. x 1 c.m. chest deep situated at 10 o'clock position of the left nipple, 10 c.m. away from it on left front of chest passing through the intercostal space between left first and second ribs near left margins of sterunum, rupturing left pleurae, left lung through and through just at left bronchus. Pericardium, with blood vessels over upper end of the heart and stretching in the back of the chest under skin fracturing the left 6th rib just near the vertebral column.
(2) A fire‑arm wound 1 c.m. x 1 c.m. through and through on front outer upper part of right leg near knee continuous internally with injury No.3.
(3) A fire‑arm wound 1 c.m. x 1 c.m. through and through under the skin 7 c.m. behind injury No.2 about 1 c.m. below its level.
On opening the chest cavity its walls ribs, pleurae were found injured as given above. The left pleural cavity was full of blood. Pericardium was found ruptured through and through and cavity was found full of blood. Both sides of the heart were empty. Big blood vessels of the upper end of the heart were found ruptured under injury No.1. All the chest organs were otherwise healthy. Stomach was found empty and the uinary bladder contained about 4 ounces of urine.
In his opinion, the death was due to shock and haemorrhage resulting from injury No.1 which was sufficient to cause death in the ordinary course of nature. All the injuries were caused by fire‑arm. Injury No.2 was simple. The probable time between injuries and death was immediate and between death and post‑mortem was about 15 to 20 hours. In cross‑examination he stated that a pellet of the shot from a distance can disperse in the area of one feet radius in the above poster. Injuries Nos. 1 and 2 having been caused by one shot, cannot be excluded.
(ii) On 18‑7‑1980 at about 6‑15 p.m. Dr. Imtiaz Ahmad Gill P.W.9 had examined Muhammad Amin and Javed Iqbal P.Ws. He found one fire‑arm wound 3/4 c.m. x 3/4 c.m. on the outer side left buttock of Muhammad Amin. Both testicles were swollen. The injured was in the condition of shock and was serious. The injury was subsequently declared grievous. He found one fire‑arm wound 3/4 c.m. x 3/4 c.m. in front of right leg lower part of Javid Iqbal. The injury was subsequently declared simple. In cross‑examination, he stated that the injuries received by Javed Iqbal and Muhammad Amin P.Ws. can be the result of one shot from a distance.
7. The appellants were arrested on 21‑7‑1980 by Ahmad Khan Inspector Police P.W.16. Nawazish Ali got recovered revolver Exh. P.6 and 3 live bullets Exh. P.7/1‑3 on the same day but the recovery memo. has not been placed on record. Ahmad Khan P.W.16 alone stated that he had recovered revolver and bullets from the appellant. On 25‑7‑1980 Zia‑ul‑Haq appellant led to the recovery of gun Exh. P.5 from the Kotha of his house which was taken into possession vide memo. Exh. P. G. attested by Maqbool Ahmad P. W. 8. The recovery was effected by Ahmad Khan S.I., P.W.16. It may be noted here that no empty was recovered from the spot, so gun and the revolver were not sent to Forensic Science Laboratory. The recoveries from Nawazish Ali and Zia‑ul‑Haq are, therefore, of no consequence. No weapon of offence was recovered from Abdul Waheed appellant.
8. To prove its case, prosecution examined 18 witnesses. Nazir Hussain P.W.10, Javed Iqbal P.W.13 and Muhammad Amin P.W.14 gave the ocular account of the occurrence. They supported the prosecution case as detailed in the F.I.R. except that that the complainant changed the location of the injury allegedly inflicted by Safdar Hussain from eye to leg. The witnesses claim to have seen Nawazish Ali firing shot, hitting Abdul Qayyum in the chest; Safdar Hussain firing carbine hitting on leg of the deceased and Abdul Waheed and Zia‑ul‑Haq causing fire‑arm injuries to Muhammad Amin and Javed Iqbal P.Ws. respectively. Tahir Mehmood and Bashir, the other eye‑witnesses were given up as unnecessary. Maqbool Ahmad P.W.8 and Ahmad Khan P.W.16 supported the recoveries of revolver Exh. P.6 and 3 bullets from Nawazish Ali and of gun Exh. P.5 from Zia‑ul‑Haq appellant. Dr. Muhammad Ajmal Khan proved the post‑mortem report and Dr. Imtiaz Ahmad Gill proved the medico‑legal reports relatable to Muhammad Amin and Javed Iqbal P.Ws. Dr. Ghulam Nabi Bajwa, P.W.18 stated that on the direction of the Magistrate, he checked the hospital record pertaining to Muhammad Amin P.W. He was admitted in the hospital on 18‑7‑1980 and discharged on 2‑8‑1980 as cured. He further stated that Javed Iqbal was admitted on 18‑7‑1980 and discharged on 28‑7‑1980. He had fire‑arm injury on the right leg resulting in compound fractures of both bones of the leg. The injury was grievous in nature. The rest of the evidence is almost of formal nature.
9. When examined under section 342, Cr. P. C., the appellants denied all incriminating circumstances. They denied their presence and participation in the occurrence. They raised plea of false implication on account of enmity. In defence no witness was produced. Zia‑ul‑Haq, however, tendered documents Exh. D.D./1‑27 either to prove the possession of the accused party on Killas No.6, 7 and 8 of Square No.47 or to prove the enmity of the complainant party with the acquitted accused.
10. The learned trial Court has not believed the motive to the extent of Nawazish Ali appellant and acquitted accused. It was, however, held that Zia‑ul‑Haq and Abdul Waheed appellants had a motive to murder the deceased. The trial Court has not acted upon the recoveries. It has believed the ocular evidence to the extent of the appellants and did not consider it safe to act upon the ocular testimony without independent corroboration against the acquitted accused.
11. Learned counsel, for the appellants contended that the eye‑witnesses being related, inimical and their evidence being in conflict with the medical evidence, inasmuch as, most probably the deceased and the two P.Ws. were injured by one shot, are not reliable witnesses; that the eye‑witnesses have introduced false motive; that they had falsely involved the co‑accused; that at trial stage while changing their statements to bring their evidence in conformity with the medical evidence they stated that the fire‑shot by Safdar Hussain had hit on the leg of the deceased; that their statements were recorded by the police after 9 days; that in the hospital Nazir Hussain complainant had told Javed Iqbal P.W. all the details of the F.I.R. including the roles assigned to .the accused persons and as such, there was no option for the injured witnesses but to support the version given by the complainant in the F.I.R. and that the ocular account having been disbelieved to the extent of four acquitted accused, conviction cannot sustain on their uncorroborated account.
On the other hand, the learned counsel for the State and the learned counsel for the petitioner in the connected revision not only supported the judgment of the trial Court but also requested for retrial of the case and enhancement of the sentence of Zia‑ul‑Haq and Adbul Waheed appellants.
12. We have considered the arguments advanced by the learned counsel for the parties with care. Keeping in mind, that since it is a case where the appellants have not taken any specific plea and have denied their presence and participation in the occurrence altogether and as such, the entire burden is on the prosecution to prove its case through reliable witnesses, we propose to examine whether the prosecution has been able to prove its case against the appellants beyond reasonable doubts or not. Starting with the F. I. R., we find that it is a case of prompt F.I.R. The occurrence took place at 4‑15 p.m. and the report was lodged at 5‑30 p.m. on the same day. The names of the eye‑witnesses; the names of the appellants; the weapon carried by them; the part played by them and the mann6r of occurrence A2 have been stated therein. There is nothing in evidence to show that the F.I.R. was not written at the time and place as it indicates. Since the report was made with great promptitude, it gives rise to the conclusion that its maker, i.e. Nazir Hussain either witnessed the affair or was otherwise concerned with it. The learned counsel has not been able to shake the authenticity of this valuable document which can be used to corroborate the statement of the complainant. Admittedly, there was a dispute between the deceased and his father on one hand and Zia‑ul‑Haq and Abdul Waheed appellants on the other hand. The place of occurrence and the time of occurrence show that the deceased and the eye‑witnesses were present on path near the disputed Killas Nos. 6, 7 and 8 of Square No.47, 15 minutes before the turn of water for the irrigation of the disputed Killas. From these circumstances, it is very much obvious that the appellants had a motive to open attack on them.
13. This brings us to crucial evidence, i.e. the ocular testimony furnished by Nazir Hussain P.W.10, Javed Iqbal P.W.13 and Muhammad Amin P.W.14. We find that Nazir Hussain has lodged the F.I.R. with great promptitude which gives rise to the conclusion that he could not have been procured so early, if not witnessed the occurrence. By the facts of injuries on their persons, the presence of Javed Iqbal P.W.13 and Muhammad Amin P.W.14 on the spot at the time of occurrence is very much proved. It was a daylight occurrence. The appellants were previously known to the eye‑witnesses and as such, there was no difficulty in the identification of the assailants. So, we do not see any reason to doubt that the eye‑witnesses, in fact, witnessed the occurrence and were in position to identify the culprits. The injuries found on the person of the deceased and the P.Ws. do commensurate with the number of the appellants to whom the eye‑witnesses have named. The eye‑witnesses have not attributed any injury or active part to the three acquitted accused namely Ejaz, Maqbool Ahmad and Faqir Muhammad. We have been very much impressed by the straightforward manner in which the eye‑witnesses have given the evidence. They could have easily assigned some active role to these persons but they did not do so and stated in the Court what they had actually seen. No doubt, in the F.I.R. it has been stated that Safdar Hussain fired from his carbine hitting on the eye‑ of the deceased but it was immediately, corrected through supplementary statement. This circumstance gives rise to the irresistable conclusion that there was no consultation with the police. or tutoring by anyone else before the recording of the F.I.R. Otherwise, it would not have been mentioned in the F.I.R. that the fire from the carbine of Safdar Hussain hit on the eye of the deceased. The injured eye‑witnesses have stated in the Court that the shot from the carbine had hit on the leg of the deceased. They have not been confronted with their statements recorded under section 161, Cr. P. C. which would show that in those statements they had not state that the shot had hit on the eye. As far the submission made by the learned counsel that Nazir Hussain after having lodged the F.I.R. had given the details of the occurrence to Javed Iqbal P.W. and as such, there was no option for him but to repeat the same at the time of trial, we find that this submission might have been of great significance, had the complainant passed on the details of the F.I.R. to Javed Iqbal P.W. before his statement could be recorded under section 161, Cr. P. C. In the case in hand, the learned defence counsel did not care to clarify as to whether the complainant had talked to Javed Iqbal P.W. before recording of his statement by the police or thereafter, the appellants thus cannot be given any benefit of the ambiguity created by their counsel. We do not see any conflict between the medical and the ocular evidence. No doubt, the complainant in the F.I.R. had stated that the fire shot from carbine of Safdar Hussain had hit on the eye of the deceased but immediately in his supplementary statement recorded by the police had corrected himself. As far the injured witnesses, there was/is no such conflict. The statement of the eye‑witnesses do not suffer from major contradiction, material discrepancies and dishonest improvements. We do not see any inherent infirmity in their statements. Since the case of the acquitted accused was quite distinguishable and the trial Court has given them the benefit of doubt, therefore, their acquittal cannot damage the veracity of their statements. Their statements are in consonance with the probabilities, materially fit in with other evidence and had inspired confidence of truth in our mind. We have examined documents Exh. D.D./1‑27. These/ are either relatable to the question of the possession of disputed Killas or enmity of the complainant party with the acquitted accused. Sine the occurrence did not take place in the disputed Killas and the parties have not asserted any right of private defence of person or property and the cases of the co‑accused were quite distinguishable, therefore, these documents do not rebut the prosecution case and its evidence qua the appellants. For all these reasons, we are of the view that the submissions made by the learned counsel do not hold any water. The trial Court has applied its conscious mind to the evidence and given sound reasons in support of its decision and as such, no exception cant be taken to the conviction of the appellants by the trial Court.
14. This brings us to the question of sentence more particularly that of Nawazish Ali to whom the death has been awarded, since in criminal cases, the question of sentence demands the utmost care on the part of the Court dealing with the life and the liberties of the peoples and that the accused persons are also entitled to benefit of doubt on the question of sentence. We have examined this question in the light of all circumstances sorrounding the guilt. We find mitigating/ extenuating circumstance in favour of Nawazish Ali appellant for lesser penalty inasmuch as, he had no direct interest in the disputed land and such, the possibility that he might have acted under the influence of Zia‑ul‑Haq (42) or that something might have been said by the deceased before the firing of shot by the appellant and his act might have been somewhat provoked by the deceased, cannot be excluded in the peculiar circumstances of the case. So, giving him the benefit of doubt on the question of sentence, we feel inclined to alter the sentence of death awarded to Nawazish Ali appellant to imprisonment for life. The sentence of fine and imprisonment in default thereof awarded by the trial Court is, however, maintained. The sentences awarded by the trial court to Zia‑ul‑Haq, Abdul Waheed and all the three appellants under section 307/34, P.P.C. are legal as well as balanced, the same are, therefore, maintained. The directions given by the trial Court for the payment of the amount of fine when recovered be paid to the legal heirs of the deceased and the injured P.Ws. are maintained.
15. The upshot of the above discussion is that there being satisfactory basis for upholding the convictions of the three appellants under sections 302 and 307/34, P.P.C. for the murder of Abdul Qayyum and murderous assault on Muhammad Amin and Javed Iqbal P.Ws., while altering the sentence of death of Nawazish Ali to imprisonment for life, the appeal is dismissed.
DEATH SENTENCE IS NOT CONFIRMED.
Resultantly the connected revision is dismissed.
M. Y. H. Appeal partly accepted.
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