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Criminal Appeal No. 524 and Murder Reference No. 144 of 1983, heard on 9^thApril, 1985.

‑‑‑Ss. 302/34 & 307‑‑Murder‑‑Appreciation of evidence‑‑First Information Report recorded promptly and names of accused, names of witnesses; immediate cause of attack, weapons carried by accused and part played by them all given therein‑‑Parties residents of same Chak‑‑Accused previously known to eye‑witnesses and no difficulty faced by them in identifying accused‑‑No inherent infirmity existing in statement of eye‑witnesses so as to warrant total rejection of their testimony‑ Corroboration of ocular evidence available in shape of reliable recovery‑ Recovery witnesses having no enmity with accused, standing test of cross‑examination and reliable‑‑Chances of tampering with empties or fire‑arms completely out of question and pointing to inference that accused did participate in commission of crime‑‑Recovery of licensed gun from accused proved by dependable witnesses‑‑Conviction of accused by trial Court maintained in circumstances.

‑‑‑Ss. 302/34 & 307‑‑Sealed parcels containing empties transmitted to Forensic Science Laboratory before recoveries of guns‑‑Chances of tampering with empties or with guns, held, completely eliminated.

--------Ss. 302/34 & 307----Murder----Licensed gun not recovered from physical possession of co‑accused and it was produced by accused before joining of investigation by co‑accused‑‑Possibility that licensed gun might have been .used by someone else not excluded‑‑Recovery of gun therefore failing to connect co‑accused with commission of crime beyond reasonable doubt and satisfactory basis not existing for his conviction‑‑ Co‑accused given benefit of doubt and acquitted of charge.‑‑[Benefit of doubt].

‑‑‑Ss. 302/34 & 307‑‑Sentence‑‑Question of sentence, held, requires utmost care on part of Courts dealing with life of an accused.‑ [Sentence].

‑‑‑Ss. 302/34 & 307‑‑Murder‑‑Conviction‑‑Sentence‑‑Accused having no direct enmity with deceased‑‑Occurrence taking place all of a sudden‑‑Accused somewhat provoked by complainant party Mitigating circumstances existing in his favour‑‑Sentence of death altered to imprisonment for life.‑‑[Sentence].

Waheed‑ud‑Din Virk for Appellants.

Ghulam Bari for Respondent.

Date of hearing: 9th April, 1985.

This Criminal Appeal No. 524 of 1983 and the connected Murder Reference No. 144 of 1983 arise from the judgment of the learned Additional Sessions Judge, Sahiwal whereby he on 3‑8‑1983 while acquitting Manzoor Ahmed, Ali Ahmed, Fareed, Ameer and Alam Sher co‑accused, convicted Noor Ahmed (26) and Fazil (25) appellants under section 302/34, P.P.C. for causing death of Mohabat and murderous assault on Sajar P. W. 9 and sentenced as under:‑

(i) Under section 302/34, P.P.C. to death and a fine of Rs.10,000 in default thereof two years' R.I. with the direction that the fine when recovered be paid to the legal heirs of deceased;

(ii) Under section 307, P.P.C Noor Ahmed appellant to ten years' R.I. and a fine of Rs.10,000 in default thereof one year's R.I. with the direction that the fine if realized be paid to Sajar P.W. It was also directed that the substantive sentences awarded to Noor Ahmed appellant shall run concurrently. It may be noted that Ameer son of Khan co‑accused had died during the trial of the case.

2. The occurrence took place on 22‑6‑1976 at 7‑00 p.m. in Chak No.84/5‑L of Police Station Burjwala. The distance between the place of occurrence and the Police Station is seven miles. F.I.R. Exh.P.E. was lodged at the Police Station Burjwala by Chiragh P.W.7 brother of the deceased on the same day at 11‑00 p.m. It was recorded by Muhammad Anwar S.H.O. P.W. 14.

3. The motive as set up by the prosecution was that a year before the occurrence Mst. Tallan wife of Ameer (acquitted accused) had a quarrel with Ahmed a cousin of the deceased in which the latter gave beating to the former. To take revenge of this insult Ameer, Fareed and Ali Muhammad the three acquitted accused assaulted Mst. Kaneezan alias Bavi the daughter of the complainant when she had gone to a lane near her house to fetch firewood. This happened immediately before the main occurrence. On hearing alarm raised by Mst. Kaneezan, Chiragh P.W. 7 alongwith his wife went to the lane and challenged the three aforesaid acquitted accused who ran away towards the house of Nausha. In the meantime Sajar P.W.9, Hashim P.W.10 and Mokha (not produced) arrived on the spot. The parties then exchanged abuses, hence the occurrence.

4. As far the main occurrence, it has been stated that when the parties were exchanging abuses, Ali Muhammad, Alam Sher, Ameer son of Saleh, Ameer son of Khan and Fareed accused went to the top of the roof of the house of Nausha. Alam Sher and Ali Muhammad were armed with guns. Ameer son of Khan was armed with pistol, Ameer son, of Saleh and Fareed were armed with Sotas. Fazil, Noor Ahmed appellants both armed with guns and Manzoor armed with Sota went to the top of the roof of the house of Pehlwan. Noor Ahmed fired shot from his gun hitting on the face and chest of Sajar P.W. Alam Sher fired shot which hit Hashim P.W. on his head and face. Manzoor instigated Noor Ahmed and Fazil to fire at Mohabit deceased who was climbing the stairs. on this Noor Ahmed and Fazil, opened fire from their guns hitting Mohabit on his chest and abdomen causing his immediate death on the spot. The occurrence was also witnessed by Shahadat P.W.11, Ahmed and Mokha (both not produced). The appellants and the co‑accused then made good their escape taking away the weapons with them. Sajar and Hashim were removed to the hospital and Chiragh P.W. left for Police Station to make report.

5. On 23‑6‑1976 at 12‑00 noon Dr. Muhammad Hussain (since dead) whose writing and signatures on the post‑mortem report have been identified by Dr. Abdur Rauf Bhatti P.W.6, had conducted post‑mortem examination on the dead body of Mohabit. The following injuries were found on the dead body:‑

(1) Multiple gunshot pellets wound 1/8 to 1/6" in diameter at different places in an area 12" x 10" on the front of chest going deep.

(2) Multiple gunshot pellet wounds 1/8" to 1/6" diameter going deep in an area 5" x 3" on the front of upper part right upper arm.

(3) Multiple gunshot pellets wounds 1/8" to 1/6" diameter going deep in area 10" x 3" on the front of left forearm.

(4) Multiple gunshot pellet wounds 1/8" x 1/6" diameter in area 18" x 11" on the front of abdomen at different places.

(5) Three fire‑arm pellet wounds 1/6" to 1/8" to 1/6" in diameter in area 3" x 1" on the front upper part right thigh.

(6) Multiple fire‑arm pellet wounds 1/8" to 1/6" diameter in area 6 " x 2" on the front upper part left thigh.

On internal examination the walls of the chest, pleurae, lungs paridardium, aorta, abdomen, paritonium, stomach, spleen and pancreas were found perforated. Several pellets were removed from the body.

In the opinion of the doctor, the death was due to shock and haemorrhage resulting from injuries Nos. 1 to 4, which were sufficient to cause death in the ordinary course of nature. All the injuries were caused by fire‑arm. The death was immediate and the time between death and the post‑mortem was about 18 hours.

6. Dr. Abdur Rauf Bhatti R.W.6 had himself examined Sajar P.W. on 22‑6‑1976. He found nine multiple circular fire‑arm wounds on the different parts of his person. Three injuries found on left eye, right eye and on the front of chest, respectively were declared grievous. The rest were simple.

Dr. Muhammad Hussain (since dead) had examined Hashim P.W. He issued medico‑legal report Exh.P.C. which has also been proved by Dr. Abdur Rauf Bhatti P.W.6. The medico‑legal report shows that the following injuries were found on his person:‑

(1) Five circular fire‑arm wounds each measuring 1/8" x 1/8" ‑x going deep on the skull from on the right side one on the left side at different places.

(2) One circular fire‑arm wound 1/8" x 1/8" x going deep on the left side of upper lip on the outer aspect.

The injuries were caused by fire‑arm and were simple in nature. In cross‑examination, the witness stated that the deceased had taken last meal about 2/3 hours before his death.

7. On 23‑6‑1976, Muhammad Anwar, S.H.O. P.W.14 took into possession crime empties P.1 to 6 vide P.H. attested by Muhammad P.W.8.

8. Noor Ahmed was arrested on 1‑7‑1976. On the same day he produced his licensed gun P.7 which was taken into possession by Muhammad Anwar, S.H.O. P.W. 14 vide memo. Exh.P.G. attested by Ali Muhammad P.W.13 and Roshan (not produced). Noor Ahmed also produced licensed gun P.9 of Fazil appellant on 5‑7‑1976 before P.W.14 which was taken into possession vide memo. P.J. attested by same witnesses. Fazil appellant joined investigation on 15‑8‑1976. He was however, formally arrested on 29‑9‑1976. The empties were despatched to Forensic Science Laboratory on 1‑7‑1976 whereas the two guns were sent to Forensic Science Laboratory on 28‑7‑1976. The report from the Forensic Science Laboratory is Exh.P.T. which reveals that out of the six empties recovered from the spot, three empties had been fired from each gun.

9. To prove its case, the prosecution examined 15 witnesses in all. Chiragh P:W.7, Sajar P.W.9, Hashim P.W.10, Shahadat P.W.11 have given the ocular account of the occurrence. They have supported the prosecution case as detailed above. They claimed to have seen Noor Ahmed and Fazil appellants firing from their guns hitting Mohabit deceased causing his death and injuries to Sajar P.W. Chiragh P.W.17 also supported the alleged motive for the crime. Mst. Kaneezan alias Bavi P.W.12 narrated the incident preceding the main occurrence in which she was beaten and dragged by Ali Muhammad Ameer and Fareed (acquitted accused), Ali Muhammad P.W. 13, Mahmood P.W.8 and Muhammad Anwar, S.H.O. P.W.14 have proved the recoveries of the crime empties from the spot and production of the two guns by Noor Ahmed appellant. Dr. Abdur Rauf Bhatti has proved post‑mortem report of deceased and medico‑legal reports regarding the injuries found on the persons of Hashim and Sajar P.Ws. The rest of the evidence is of formal nature.

10. When examined under section 342, Cr.P.C. the appellant, denied all the incriminating circumstances. They raised plea of false implication. Noor Ahmed stated:‑

"The P.Ws. are inimical towards me and my co‑accused. They wanted to prevent me from pursuing this case and I have been falsely involved being a public servant. I was not at all present at the time of occurrence."

He tendered copy of statement Exh.P.G. of P.W. Sajar made by him in the Court of Senior Civil Judge, Sahiwal. Fazil in reply to the question, "Whether he had anything else to say " stated:‑

"I am innocent. I was also found innocent during the investigation of this case and my name was placed in column No.2 of the challan Exh.D.F."

The trial Court was convinced that the immediate cause of the occurrence stood sufficiently proved. So far as the ocular account is concerned, the trial Court was of the view that it required independent corroboration qua each accused. Since there was no corroboration of the statements of the eye‑witnesses against the acquitted co‑accused and there were some material contradictions /discrepancies relatable to them, therefore, giving them the benefit of doubt, they were acquitted of the charges. The trial Court believed the recoveries of the crime empties from the spot as well as of the licensed guns of Noor Ahmed and Fazil appellant. Treating the same as corroborative ocular evidence, the trial Court recorded their convictions.

11. The learned counsel for the appellant contends that case of Fazil was at par with that of the acquitted co‑accused inasmuch as the recovery was not effect from his physical possession; that the eye witnesses are not reliable; that there are material contradictions and discrepancies in their statements; that the recoveries are fake and that the occurrence did not take place in the manner as alleged by the prosecution. On the other hand, the learned counsel for the State supported the judgment of the trial Court. He argued that witnesses were dependable and that the trial Court has rightly convicted the appellants.

12. We have considered the arguments advanced by the learned counsel for the parties with care. We find that it was a case of prompt F.I.R. The names of the accused the names of the witnesses, the immediate cause of the attack, the weapons carried by the accused and part played by them in the occurrence, are given therein. The learned counsel has not challenged the genuineness of this valuable document before us. The eye‑witnesses namely Chiragh P.W.7, Sajar P.W.9, Hashim P.W.10 and Shahadat claim to have seen the occurrence. Chiragh, A Shahadat being the residents of the locality, their presence on the spot was very much natural. Mohabit deceased had received injuries while he was climbing the stairs of the house of Shahadat P.W. By the fact of injuries on the person of Sajar and Hashim their presence on the spot at the time of occurrence is very much established. The occurrence took place at 7 p.m. in the month of June when it was not dark. The parties being residents of the same Chak, the accused were previously, known to the eye‑witnesses so there was no difficulty in the identification of the offender. We are, therefore, convinced that the four eye‑witnesses had not only seen the occurrence but were in a position to identify the culprits. The further question arises as to whether they could have been relied upon without corroboration. We find that the witnesses are related to each other; that the number of the injuries found on the deceased and the injured witnesses and the number of the persons named by them as accused do not commensurate; the number of the accused persons named by eye‑witnesses exceeded that which appear to be the true number of culprits and as such the possibility of the exaggeration of the number of the accused cannot be excluded. The trial Court after having attended to the evidence of the eye‑witnesses has rightly observed that the ocular testimony did require independent corroboration qua each accused. The learned counsel has failed to point out any inherent infirmity in the statement of the eye witnesses which may warrant total rejection of their testimony. In this view of the matter, we feel inclined to hold that in the circumstances of the case, the prudence requires independent corroboration of ocular testimony qua each of the appellant. So we will have to look for some additional evidence direct or circumstantial, which corroborates their testimony. We find that in case of Noor Ahmed corroboration of the ocular evidence is available in the shape of reliable recovery of his licensed gun P.7 with which the three crime empties recovered from the spot have matched. The recovery witnesses have not enmity with Noor Ahmed appellant. They have successfully stood the test of cross-examination. They are quite reliable. Gun P.7 is the licensed gun of Noor Ahmed appellant. The other three empties also match with licensed gun P.9 of Fazil, which was produced by Noor Ahmed. Since the sealed parcel containing the empties were transmitted to Forensic Science Laboratory before the recoveries of the two guns, therefore; the chances of tampering with the empties or with the guns stand completely eliminated and as such recovery of gun P.7 points to the inference that Noor Ahmed appellant did participate in the commission of the offence and it connects him with firing at the deceased beyond reasonable doubt. The recovery of the licensed gun P.7 from Noor Ahmed proved by dependable witnesses has fully satisfied us that the eye‑witnesses while naming Noor Ahmed as culprit have spoken truth. For all these reasons, we are of the view that the trial Court has rightly convicted Noor Ahmed appellant under section 302, P.P.C. for the death of Mohabit and for murderous assault on Sajar P.W. As far Fazil, we find that since gun P‑9 was not recovered from his physical possession and it was produced by Noor Ahmed appellant before he (Fazil) could join investigation, therefore the possibility that the licensed gun P.9 of Fazil might have been used by someone else cannot be excluded. The recovery of gun P.9 in the circumstances of the case fails to connect Fazil with the commission of crime beyond reasonable doubt.

13. This brings us to the question of sentence awarded to Noor Ahmed appellant by the trial Court. We have given, due consideration to the question of sentence which requires utmost care on the part of the Courts dealing with the life of an accused. We find that there are mitigating/extenuating circumstances in favour of Noor Ahmed for lesser penalty inasmuch as Noor Ahmed had no direct enmity with Mohabit deceased; that the occurrence took place all of a sudden; that admittedly the complainant party had abused the accused party before the main occurrence and that in the circumstances of the case, the act of Noor Ahmed was somewhat provoked by the complainant party factory.

The upshot of the above discussion is that there being no satis factory basis to uphold the conviction of Fazil, while giving him the benefit of doubt, he is acquitted of the charge. The conviction of Noor Ahmed under section 302/34, P.P.C. for causing death of Mohabit and under section 307, P.P.C. for murderous assault on Sajar P.W. are maintained. The sentence of death under section 302, P.P.C. is altered to imprisonment for life. The fine imposed by the learned trial Court, sentence in default thereof and the direction for its payment to the legal heirs of the deceased are maintained. The sentence awarded to Noor Ahmed appellant under section 307, P.P.C. in view of the harm done to Sajar P.W. is properly balanced and is, therefore, maintained. The fine, sentence in default thereof and direction for payment to Sajar P.W. are also upheld. The sentences under sections 302, P.P.C. and 307, P.P.C. shall run concurrently.

Death sentence is not confirmed.

M.Y.H.

Appeal partly accepted

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