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Criminal Appeal No. 122, Murder Reference No. 34‑M and Criminal Revision No. 768 of 1983, heard on 19th November, 1985.

‑‑‑S. 302/307/34‑‑First information report a genuine document, containing names of witnesses, names of accused, weapon used by them, part played by them and manner in which occurrence took place‑‑Report lodged promptly which could be safely used to corroborate its maker‑ Ocular testimony given by disinterested and reliable witnesses who had no direct motive or enmity to involve 'accused falsely‑‑Witnesses, successfully faced cross‑examination‑‑Presence of one of eye‑witnesses on spot at time‑of occurrence established by fact of injuries on his person while other witness who resided close to place of occurrence giving plausible cause of his presence on spot‑‑No legal infirmity found in statements of witnesses and their evidence in consonance with probabilities and materially fitting in with other evidence‑‑No material contradiction existing between ocular evidence and medical evidence‑ Number, of injuries found on person of deceased and complainant commensurating with number of assailants named by eye‑witnesses Statements ul eye‑witnesses not suffering from material contradictions or discrepancies‑‑Recoveries of guns from accused connecting them with crime‑‑Empties recovered from spot were fired from guns recovered from accused, as per Forensic Science Laboratory report‑‑Conviction maintained in circumstances.

‑‑‑S. 302/34‑‑Sentence‑‑Accused having no direct motive to kill deceased‑‑Cc)‑accused who had a direct motive to kill deceased already awarded lesser penalty of imprisonment for life‑‑Death sentence of accused altered to imprisonment for life.‑‑[Sentence].

‑‑‑S .302/34‑‑Co‑accused‑‑Recovery of lead of bullet from co‑accused disbelieved by trial Court‑‑Butts of guns with which co‑accused reportedly caused injuries to deceased not found to be stained with blood and his case not much distinguishable from that, of another co‑accused who had already been acquitted by trial Court as an abundant caution for want of corroboration‑‑Other co‑accused also given benefit of doubt by way of abdundant caution and acquitted.

‑‑‑S.303/34‑‑lntereslad witnesses‑‑Mere relationship of eye‑witnesses with deceased, held, was no ground to bring them in category of interested witnesses.‑‑[Witness].

Aftab Farrukh for Appellants.

Rafiq Butt and Habib Ahmad Khan for the State.

Date of hearing: 19th November, 1985.

This Criminal Appeal No.122/83, connected Murder Reference No.34‑M/83 and Criminal Revision No.768/83 by Ali Muhammad against the acquittal of Sultan co‑accused, arise from the judgment of learned Additional Sessions Judge, Sehiwal, whereby he, on 15‑2‑1983 while acquitting Sultan co‑accused convicted Muhammad Ali (28) Barkullah (35) and Abdul Ghaffar (26), the appellants under section 302/34, P.P.C. for the murder of Abdul Jabber and for causing hurt to Ali Muhammad P.W.7 and sentenced them as under:‑-

Under section 302, P.P.C.‑‑

(i) Muhammad Ali to death and a fine of Rs.3,000 in default thereof one year's R.I.

(ii) Bark Ullah and Abdul Ghaffar to imprisonment for life and a fine of Rs.3,000, in default thereof one year's R.I. each.

It was directed that the fine when recovered half of the same be paid to the legal heirs of Abdul Jabber deceased.

Under Section 323/34, P.P.C.‑‑--All to 6 months, R.I. and a fine of Rs.500 in default thereof 2 months, R.I.

It was directed that the sentences shall run concurrently.

2. The occurrence took place on 10‑7‑1981 at 6‑00 a.m. in Killa No. 12 of Square No.35 within the area of Chak No. 160/9‑L which is" 6 miles from Police Station Dera Rahim. The F.I.R. Exh.P.J, was lodged by Ali Muhammad P.W.7 on the same day at 9‑00 a.m. at the police station which was recorded by Ch. Sher Din S.I., P.W.9.

3. The motive alleged by the prosecution was that a few days before the occurrence, 'Ali Muhammad complainant and Abdul Jabber deceased had gone to Mian Chanu in order to give Eidi to the sister of Abdul Jabber deceased. On the next day, when they came back and reached Naiwala Bangalow, a tractor trolley was coming wherein Bark Ullah appellant alongwith a lady were sitting. Abdul Jabber deceased and Ali Muhammad complainant tried to board that trolley. Bark Ullah appellant, however, abused the deceased who not only return the abuse but also slapped Bark Ullah appellant, hence this occurrence.

4. As far the main occurrence, it has been stated that on the eventful day at 'Namaz Wela' Ali Muhammad complainant left for his square for easing himself. Abdul Jabber deceased followed him. Both of them eased themselves and offered morning prayer in the field. While returning to their house when they reached Kills No. 12 of Square No.35, they saw Bark Ullah armed with S.B. Gun and Muhammad Ali armed with D.B. Gun standing at the end of sugarcane field on its western side. They also found Sultan acquitted accused duly armed with the rifle present on the northern side of the cotton crop. Abdul Ghaffar was also there armed with S.B. Gun. When the deceased and Ali Muhammad complainant reached the water channel, then Muhammad Ali appellant raised Lalkara that Abdul Jabber should not be spared whereupon Bark Ullah appellant fired a shot hitting on the right fore‑arm of the deceased. Muhammad Ali then fired a shot which hit Abdul Jabber on the left side of the chest. When Ali Muhammad c6mplainant tried to intervene, Abdul Ghaffar appellant gave butt blows on the left index finger, back side of right fiend and left knee of the complainant. Thereafter, Bark Ullah appellant and Sultan acquitted accused fired in the air to scare away the witnesses and other persons who by that time had collected there. The noise had attracted Abdul Satter P.W.8 and Subhan Din (not produced) to the spot. Abdul Jabber died on the spot.

5. On 10‑7‑1981 at '5‑00 p.m. Dr. Munir‑ud‑Din conducted post mortem examination on the dead body of Abdul Jabber. He found:‑-

(1) A lacerated wound 5 c.m. x 3 c.m. x deep going on the outer middle left chest, edges of the wound were inverted and blackish. Same type and size of hole was present on the shirt with multiple small holes around it corresponding to the site of the injury.

(2) Multiple small rounded lacerated wounds c.m. x c.m. each in an area of 18 x 10 c.m. all around injury No.1.

(3) A lacerated wound 12 c.m. x 9 c.m. x muscle deep, edges were inverted and black on the front middle of left fore‑arm.

(4) Three rounded lacerated wounds x c.m. each x skin deep in an area of 4 c.m. x 1 c.m. on the front lower left upper arm.

(5) Contusion mark 13 c.m. x 3 c.m. on the front middle right thigh."

On dissection of left chest 5th and 6th ribs were found fractured under injury No.1. Lower lobe of left lung was also ruptured under the fractured rib. Left atrium and ventricle of heart was also ruptured. Left chest cavity was filled with blood. About 13 small rounded matalic bodies resembling pellets were found from wound No.1, in front of the ruptured lungs, heart and from the skin around injury No. 1. 2, 3 and 4. The stomach contained, about 6‑7 ounces of semi‑digested food. Small and large intestines were healthy and contained gases and faecal matter. The bladder contained about 2 ounces of urine.

In his opinion, the death had occurred due to haemorrhage and shock caused by injury No. 1 which was sufficient to cause death in the ordinary course of nature. The rest of the injuries were simple. Injuries Nos.1 to 4 were caused by fire‑arm and injury No.5 was caused by blunt weapon. The death was immediate and the time between death and post‑mortem was about 12 hours. In cross‑examination, the doctor stated that injuries Nos.1, 2 sand 4 may be the result of one fire and that the deceased had taken his last meal about 4 to 6 hours before his death.

6. Ch. Sher Din, S.I., P.W.9 took into possession 2 crime empties Exh.P.8/1‑2 from the spot, vide memo. Exh. P.L which was attested by Ali Muhammad P.W.7, Subhan Din and Muhammad Tufail (both not produced). Ch. Sher Din P. W .9 also took into possession one led of bullet Exh. P.9 from the spot, vide memo. Exh.P.M. attested by same witnesses. The appellants were arrested on 25‑7‑1981 by Ch. Sher Din S.I., P.W.9. On 27‑7‑1981, Bark Ullah appellant led to the recovery of S.B. Gun Exh.P.4 from his house which was taken into possession, vide memo. Exh.P.C. attested by Mushtaq Ahmed P.W.4 and Muhammad Iqbal (not produced). On the same day Sultan acquitted accused got recovered rifle Exh. P.5 from his house which was taken into possession, vide memo. Exh.P.D. attested by the same witnesses. On 4‑8‑1981 Muhammad Ali and to the recovery of D.B. Gun Exh.P.6 from his house which was taken into possession, vide memo. Exh.P.E. attested by the same witnesses. On 10‑8‑1981, Abdul Ghaffar appellant got recovered S.B. Gun Exh.P.7 from his house which was taken into possession, vide memo. Exh.P.F. attested by the same witnesses. It may be noted that only two guns were sent to the Forensic Science Laboratory. One crime empty matched with D.B. Gun Exh.P.6 recovered from Muhammad Ali and the other empty did match with S.B. Guns allegedly recovered from Bark Ullah. The Forensic Science Laboratory Report is Exh.P.T.

7. To prove its case, prosecution examined 9 witnesses. Ali Muhammad P.W.7 and Abdul Satter P.W.8 have given the ocular account of the occurrence. They claim to have seen the appellants Muhammad Ali and Barak Ullah firing shots hitting Abdul Jabber on his left arm and left side of chest, respectively. They also claim to have seen Abdul Ghaffar appellant giving Butt blows to Ali Muhammad complainant Barakullah appellant and Sultan acquitted accused also firing in the air to scare away the witnesses. Mushtaq Ahmed P.W.4, Ali Muhammad P.W.7 and Chaudhry Sher Din P.W.9 have supported the recoveries of the crime empties from the spot arid recoveries of guns and rifle from the appellants and Sultan acquitted accused. Dr. Munir‑ud‑Din has proved the post‑mortem examination of the deceased. Dr. Muhammad Dawood Ahmed P.W.5 had examined Ali Muhammad complainant on 11‑7‑1981 at 11‑45 a.m. He found one contusion and two abrasions on his person caused by blunt weapon and simple in nature.

8. When examined under section 342, Cr.P.C. the appellants denied all the incriminating circumstances. They raised the plea of false implication on account of enmity. In defence Muhammad Ali tendered Exh.D.I. a certified copy of the judgment passed by Commissioner, Multan Division, Multan and Exh. D.2 copy of the memorandum of appeal filed by Noor Muhammad father of Ali Muhammad complainant.

9. The learned trial Court has believed the ocular evidence and recoveries of crime empties P.8/1‑2 from the spot and the recoveries of guns Exhs. P.4 and P.6 from Barak Ullah and Muhammad Ali appellants, respectively. The trial Court has not believed the recovery of led of bullet Exh.P.9 from the spot and has refrained from using the recovery of gun from Sultan co‑accused against him on the ground that the same was recovered from a place which was not in his exclusive possession. The trial Court acquitted Sultan accused as an abundant caution for want of corroboration. While believing the ocular evidence, the 'medical evidence and the recoveries of guns as well as the motive, the trial Court has convicted and sentenced the appellants as stated above.

10. The learned counsel for the appellants contended that the prosecution has failed to prove its case beyond reasonable doubt against the appellants, that Ali Muhammad P.W.7 and Abdur Satter P.W.8 are interested witnesses; that the medical evidence falsifies the prosecution case and the ocular account of the occurrence given by the eye‑witnesses inasmuch as the prosecution case is that the occurrence took place immediately after deceased having eased himself whereas the medical evidence shows that the stomach contained about 6/7 ounces of semi digested food; that the eye‑witnesses have stated that the shot was fired at the deceased from 4/5 Karams whereas the medical evidence shows that the edges of injuries Nos.1 and 3 were blackish; that no independent witness has been produced to prove the recoveries of the crime empties and the guns and that the eye‑witnesses having been disbelieved to the extent of Sultan co‑accused, the conviction of the appellants could not have been based on the same evidence. Conversely the learned counsel for the State has supported the judgment of the trial Court. The learned counsel for the, complainant maintained that the learned trial Court has acquitted Sultan co‑accused without legal and factual justification and that there were no mitigating circumstance in favour of Barakullah and Abdul Ghaffar appellants.

11. We have considered the arguments advanced by the learned counsel for the parties with care. After having appreciated evidence in accordance with the guiding principles laid down by the superior Courts we find that the F.I.R. Exh.P.J. is a genuine document. It contains the names of the witnesses the names of the accused; the weapon used by them; the part played by them and the Manner in which the occurrence took place. The F.I.R. was promptly recorded within three hours of the occurrence. So this document can safely be used to corroborate the statement of Ali Muhammad P.W.7 i.e. its maker. As far the ocular testimony, we find that Ali Muhammad and Abdul Satter are not interested witnesses. No doubt they are closely related to the deceased but mere relationship hill not bring them in the category of interested witnesses in that they had no direct motive to involve tile appellants falsely. The documents Exh.D.1 and D.2 tendered by the appellants do not show any direct enmity of Ali Muhammad complainant with Muhammad Ali appellant. They have successfully faced the cross‑examination. By the fact of the injuries on the person .of Ali Muhammad P.W.7 his presence on the spot at the time of occurrence is very much established. Abdul Satter P.W.8 also resides close to the place of occurrence. He has given plausible cause of his presence on the spot at the time of occurrence. We do not see any legal infirmity in their statements. The evidence is in consonance with the probabilities and materially fits in with the other evidence. Since it cannot be said with certainty that the deceased had eased himself and the complainant could not know whether he had actually eased himself or not, therefore, the contents of the stomach do not falsify the prosecution case. It is in the evidence that Abdul Jabber deceased was running to safe his life when he was fired at, therefore, the eye‑witnesses cannot be l expected to state the distance between the assailants and the deceased at the time of firing with scientific exactitude, so we do not see any material contradiction between the ocular evidence and the medical evidence. The number of the injuries found on the person of the deceased and Ali Muhammad complainant commensurate with the number of the assailants named by the eye‑witnesses. The statements of the two eye‑witnesses do not suffer from material contradictions or discrepancies. The recoveries of gun from Muhammad Ali and Barakullah also connect them with the crime. Mushtaq Ahmed P.W.4 is a quite reliable witness. He had no animosity with the appellants. No doubt Chaudhry Sher Din S.I.P.W.9 has stated that there was party friction in the village but there is nothing on record that Ali Muhammad P.W.7, Abdul Satter P.W.8 and Mushtaq Ahmed P.W.4 or the accused persons, were the members of the aforesaid parties. The Forensic Science Laboratory report was to the effect that the empties 'recovered from the spot were fired from the guns recovered from Barakullah and Muhammad Ali appellants. Sultan co‑accused was acquitted as an abundant caution for want of corroboration. Therefore, his case was quite distinguishable from that of Muhammad Ali and Barakullah appellants.

12. So far as Abdul Ghaffar appellant is concerned, we feel inclined to treat him at par with Sultan co‑accused inasmuch as the recovery of lead of bullet Exh. P.9 having already been disbelieved by the trial F Court and the butts of the gun with which he caused injuries to Ahmed Ali complainant being' not stained with the blood and he too having no direct motive against the deceased, his case is not much distinguishable from that of Sultan co‑accused. It seems to us that he is also entitled to the benefit, of doubt as an abundant caution.

13. This brings us to the question of the sentence of Muhammad Ali appellant. We find that there are mitigating circumstances in his favour for lesser penalty in that he had no direct motive to kill the deceased and that Barakullah appellant who had a direct motive against the deceased has already been awarded lesser penalty a6d rightly so because the deceased had not only abused him but had also slapped him a few days before the occurrence.

14. The upshot of the above discussion is that the appeal is partly accepted and while giving him the benefit of doubt, Abdul Ghaffar is acquitted of the charges. The conviction of Muhammad Ali and Barakullah appellants under section 302/34, P.P.C. for the murder of Abdul Jabber deceased and under section 323/34, P.P.C. for causing hurt to the complainant is maintained. The sentence of death of Muhammad All appellant is altered to imprisonment for life. The sentence of imprisonment K for life of Barakullah is also maintained. The fine of Rs.3,000 each or imprisonment in default thereof and the direction's as given by the trial Court for the payment of fine to the legal heirs of the deceased are also maintained. Abdul Ghaffar appellant shall be released if not required to be detained in some other case.

The sentence of death is not confirmed.

M.Y.H. Appeal partly accepted.

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