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Criminal Appeal No.10/J and Murder Reference No.94 of 1985, decided on 31st May, 1987.
---Ss.302/307--Prosecution story supported by evidence and plea taken by defence not corroborated from evidence on record--Witnesses involving accused having no enmity against him--Accused while sitting on roof of bus resorting to firing on a trivial dispute with conductor who asked him to pay fare--Accused ran away but was pursued and overpowered after he had fired at persons chasing him whereby fatal injury was caused to deceased--Crime empties recovered matching with pistol, snatched from accused--Conviction and sentence maintained in circumstances.
Dil Muhammad Tarar for Appellant.
Ashraf Khan for the State.
Dates of hearing: 26th and 31st May, 1987.
--Dost Muhammad, aged 22 years was tried for committing murderous assault on Dost Muhammad P.W.8 and murder of Talib Hussain, aged 55 years by the Addl. Sessions Judge, Sargodha who vide his judgment dated 13th of February, 1985 convicted him under sections 307 and 302 PPC and sentenced him under section 307 PPC to R.I. for five years and to pay a fine of Rs.2,000 or in default to suffer R.I. for a further period of six months and under section 302 PPC to death and to pay a fine of Rs.10,000 or in default to undergo R.I. for a further period of two years. It was directed that the fine, if realized, be paid to the legal heirs of the deceased under section 544-A Cr.P.C. He has filed an appeal through the jail authorities against his convictions and sentences. The trial Court also has submitted a reference under section 374 Cr.P.C. for confirmation of the sentence of death. This judgment shall dispose of the appeal as well as the reference.
2. The occurrence took place on 3rd of July, 1984 at about 5.00 p.m. partly near Bus Stand Gondal and partly in the area of village Mohabata, about one or one and a half miles away from Bus Stand Gondal, situate nine miles away from Police Station Sahiwal, District Sargodha. It was reported by Ghulam Hussain P.W.7, son of the deceased, near the Dera of Sardar Hussain Shah P.W.9 at a distance of 5 or 6 acres from the second spot to S.I. Muhammad Aslam Niazi P.W.10 vide statement Ex. P.B. on the same date at 6.30 p.m. On the basis of this statement, a case under section 307 PPC was registered at Police Station Sahiwal on the same date at 7.30 p. m. vide formal F. I. R. Ex.P.B/1 drawn by Moharrar Head Constable Zafarullah Muhammad P.W.2. Subsequently on the expiry of the deceased on the same night in the hospital, the offence under section 307 PPC was altered to that under section 302 PPC.
3. The prosecution case briefly was that on 3rd of July, 1984, the appellant alongwith two others boarded Bus No. SG-4363 of Baloch Transport Company at Chakrala Adda while it was going from Sahiwal to Shahpur. They sat on the roof of the bus. On the way, Ghulam Hussain P.W.7 also boarded the bus at Wadhi and he too sat on its roof. When the bus reached near Gondal Bus Stand, Dost Muhammad P.W.8, conductor of the bus, climbed up the roof and demanded fare from the appellant and his companions. They however, refused to pay any fare on the ground that they were students. There an altercation ensued between the appellant and the conductor during the course of which the appellant fired at the conductor from a pistol. However, the shot did not hit the conductor. When the bus reached Gondal Bus Stand and stopped there, all the passengers alighted from it. Ghulam Hussain P.W.7 and Ahmad Shah P.W., driver of the bus (given up at the trial as having been won over) asked the appellant to surrender the pistol but he took to his heels. Ghulam Hussain and Ahmad Shah P.Ws started chasing him. When they reached near the Dera of Sardar Hussain Shah P.W.9, situate in the area of village Mohabata, about one mile away from Gondal Bus Stand, the deceased alongwith Sardar Hussain Shah P.W.9 and Muhammad Ali Shah and Liaqat Shah P.Ws (given up at the trial as unnecessary) joined in the pursuit. When the deceased had reached near the appellant, the appellant fired at him hitting him on his right shoulder. Meanwhile Ghulam Hussain Shah and Sardar Hussain Shah P.Ws had also overtaken the appellant. They surrounded and apprehended him there with the pistol and two live cartridges. When they were taking the appellant to the Police Station, S.I. Muhammad Aslam Niazi P.W.10, S.H.O. Police Station Sahiwal met them near the Dera of Sardar Hussain Shah and they produced before him the appellant alongwith the pistol and the two live cartridges.
4. The S.I. recorded the statement Ex. P.B. of Ghulam Hussain P.W.7 and sent the same to Police Station Sahiwal for the registration of a case. He arrested the appellant. Ghulam Hussain PW also produced before him pistol .12 bore P.4 and two live cartridges P.5/1-2 which had been earlier snatched from the appellant. He took them into possession and sealed them into a parcel vide memo. Ex. P. E. which was attested by Ghulam Hussain P.W.7 and Sardar Hussain Shah P.W.9. He then reached the spot and prepared injury statement Ex. P.J. in respect of the deceased who was then alive and sent him co the hospital .for medical examination. On inspection of the spot, he took into possession from there blood-stained earth vide memo. Ex. P.F. and one crime empty P.6 and made them into separate sealed parcels vide memo. Ex. P.F. and P.G. respectively in the presence of the same witnesses. He then proceeded to Gondal Bus Stand and recovered from there one crime empty P.7 and made it into a sealed parcel vide memo. Ex. P.H. which was also attested by the same witnesses. After the medical examination, the deceased succumbed to the injuries in the District Headquarters Hospital, Sargodha. On receipt of information about the death of the deceased, the S. I. went to the D.H.Q. Hospital, Sargodha and on reaching there prepared inquest report Ex.P.M. in respect of the dead body and sent the same to the mortuary for post-mortem examination. At the time of arrest, the appellant also bore marks of injuries on his person. The S.I. prepared his injury statement Ex.P.A/1 and got him medically examined. He got prepared from Muhammad Yousaf P.W.5, Revenue Patwari, site plan Ex.P.D. and its duplicate Ex.P.D/1 of the place of occurrence. The Chemical Examiner vide his report Ex.P.Q. and the Serologist vide his report Ex.P.R. observed that the earth collected from the spot was stained with human blood. The Fire Arms Expert reported vide Ex.P.S. that the two crime empties recovered in this case had been fired from .12 bore pistol, snatched from the appellant. On the completion of the investigation, the appellant was challaned.
5. On 3rd of July, 1984 at 9.15 p.m. when the deceased was alive, he was medically examined by Dr. Muhammad Shafqat Malik P.W.11, the then Medical Officer, D.H.Q. Hospital, Sargodha. The following injuries were found on his person:-
(1) Fire arm wound of entry 1 c.m. x 1 c.m. on the top of right shoulder.
(2) Fire arm wound of exit 1 c. m. x 1 c. m. on the back of right shoulder top.
(3) Fire arm wound of entry 1 c. m. x 1 c. m. on the clevicle region.
(4) Fire arm wound of entry 1 c.m. x 1 c.m. x 3 c.m. from injury No.3.
(5) Fire arm wound of entry c.m. x c.m. x 2 c.m. below injury No.4.
(6) Three fire arm wounds of entry in line all the three 1 c.m. x 1 c.m. with 1 c.m. distance between the three wounds front of right shoulder.
(7) Fire arm wound c.m. x c.m. on the lateral side of right shoulder.
(8) Fire arm wound of entry 1 c.m. x 1 c.m.--4 c.m. below injury No. 7.
(9) Swelling of 40 c.m. x 35 c.m. on the front of right upper chest and right shoulder region due to fire arm wounds.
(10) Lacerated wound 1 c. m. x c. m. with swelling 4 c. m. x 2 c.m. on the left side of forehead 1 c.m. from left eye brow.
According to the Medical Officer, injuries 1 to 8 were cause by fire arm. Injury No.10 was simple and had been caused by blunt weapon. The injuries were kept under observation. The duration of the injuries was within four hours. Ex. P.N. is the medico legal report.
6. The deceased expired in the hospital on the same date at 11.00 p.m. On 4th of July, 1984 at 8.00 a.m. the above Medical Officer performed autopsy on the dead body and observed as follows:-
(1) Fire arm wound of entry 1 c.m. x 1 c.m. on the top of right shoulder.
(2) Wound of exit 1 c. m. x 1 c. m. on the back of right shoulder.
(3) Fire arm L/wound of entry 1 c.m. x 1 c.m. on the right clavicle region.
(4) Fire arm L/wound of entry 1 c. m. x 1 c. m. 3 c. m. from injury No.3.
(5) Fire arm L/wound of entry c.m. x I c.m.--2 c.m. below injury No.4.
(6) Three fire arm lacerated wounds of entry in line 1 c.m. x 1 c.m. each at a distance of 1 c.m. between wounds in front of right shoulder.
(7) Fire arm wound c.m. x c.m. on the lateral side of right shoulder.
(8) Fire arm wound of entry 1 c.m. x 1 c.m.--4 c.m. below the injury No. 7.
(9) Swelling 40 c.m. x 35 c.m. on the front of right shoulder, upper chest.
(10) Lacerated wound 1 c. m. x c. m. with swelling 4 c. m. x 2 c.m. on the left side of forearm 1 c.m. from left eye brow.
Note: Injuries Nos.l to 8 be grouped under heading I.
In the opinion of the Medical Officer, the death occurred due to haemorrhage and shock caused by injuries No.l to 8 which were by fire arm and sufficient to cause death in the ordinary course of nature. Injury No.10 was by blunt weapon. All the injuries were ante mortem. The probable interval between the injuries and the death was about six hours and between the death and the post-mortem examination about nine hours. Ex. P.O. is the post-mortem examination report and P.0/1 is the diagram showing the locale of the injuries.
At the trial, the Medical Officer said in his cross-examination that the deceased was fired at from very close range.
7. Dr. Muhammad Ayyub Ansari, P.W.1, medically examined the appellant on 3rd of July, 1984 and found the following injuries on his person:-
(1) The patient complained of pain in the head.
(2) Complained of pain in the legs.
(3) Right and left eyes were ecchymosed, on lateral side.
(4) Abrasion on the lateral side of abdomen on left side.
(5) Abrasion on left thigh on interior, superior illiac spine.
sIn the opinion of the Medical Officer, the injuries were simple it nature and had been caused by blunt weapon within a duration of 4 to 5 hours. Ex. P.A. is the medico legal report.
8. The appellant pleaded not guilty to the charge framed against him under sections 307 and 302 PPC. When examined under section 342 Cr.P.C. he denied the prosecution case. According to him, the occurrence took place as follows:-
"The incident took place in this manner that conductor of the bus demanded fare from me of the bus on which I came to Adda Gondal. I paid him the fare, but then he demanded the fare of the other persons contending that they were my companions. I refused to pay to them as they had nothing to do with me. At this the conductor abused me and I abused him back. Thereafter he took over the pistol and fired at me. I snatched the pistol and ran up in order to produce the same before the police. Thereafter, some people pursued me leaving out threats after covering a distance of about one mine, passing through field and crops. I ultimately reached a place where some of my pursuers almost reached me and assaulted me. Out of them, the deceased was fired at by me in self-defence. Ghulam Hussain PW was never present at the time of occurrence nor he did travel by bus. After the occurrence I went to the village Mohabata and after some time the police reached there and caught me."
9. When questioned about the recovery of pistol P.4 and the crime empties P.6 and P.7, the appellant replied as under:-
"As the pistol belonged to the conductor and he fired at me ineffectively at the first time and hence an empty might have been recovered from there. Thereafter, I fired at the deceased in self-defence and threw the pistol there at the spot, so that might have been taken by the police."
He further pleaded as below:-
"As the aggressor happened to die, therefore, the police has cooked up a false case against me. All the witnesses are interested in deceased and are not expected, therefore, to tell the real facts."
He, however, did not adduce any evidence in support of his plea of innocence.
10. At the trial the prosecution examined eleven witnesses who comprised two Medical Officers, three police officials including the investigating officer, a Patwari who prepared the site plan, Abid Hussain P.W.6 who identified the dead body of the deceased, his father, Dost Muhammad P.W.8, conductor of the bus who deposed to the ineffective firing at him by the appellant on the roof of the bus in the altercation over the payment of fare and Ghulam Hussain P.W.7 and Sardar Hussain Shah P.W.9 who testified to the occurrence of murder. After appraising the evidence, the learned trial Court found the appellant guilty of the murderous assault on Dost Muhammad P.W.8 and murder of the deceased and accordingly convicted and sentenced him as above.
11. The prosecution case that an altercation had taken place between the appellant and the conductor on payment of fare is not denied.
According to the appellant, he paid his fare but the conductor demanded from him the fare of other persons also and when he refused to pay it, both of them exchanged abuses. He, however, said that the conductor took out a pistol and fired at him but he snatched the same from the conductor and started running to produce the same before the police. This plea is not only improbable but also falsified by the conductor namely Dost Muhammad P.W.8 and Ghulam Hussain P.W.7. Dost Muhammad P.W.8 deposed that the appellant and his two companions namely Ghulam Hussain and Muhammad Mukhtar boarded bus from Wadhi Bus Stand and sat on its roof. When the bus reached near Gondal Bus Stand, he went up the roof and demanded fare from the appellant and his companions. They refused to pay the same whereupon an altercation took place between him and the appellant. During the altercation the appellant fired at him from his pistol but it did not hit him. When the bus stopped at Gondal Bus Stand, all the passengers including the appellant alighted from it. Ahmad Shah, driver P.W. also got down from the bus. The appellant was asked to surrender the pistol but he started running towards east. He was fully supported by Ghulam Hussain P.W.7. There is nothing in the evidence to bear out the plea of the appellant that it) was the conductor who fired at him.
12. Ghulam Hussain P. W.7 and Sardar Hussain Shah P. W.9 furnished ocular account of the occurrence. They stated that when they alongwith the deceased and others were chasing the appellant and the deceased reached near the appellant, the appellant fired at the deceased. The appellant, however, pleaded that when the pursuers assaulted him, he in self-defence fired at the deceased. This plea too does not get support from the evidence on record. According to the eye-witnesses, they managed to catch hold of the appellant after he had fired at the deceased and they gave him some fist blows when he tried to escape. According to the medical evidence, he had received only minor injuries. Even if these injuries had been caused' before the firing the same did not at all justify the appellant, in the circumstances of the case, to fire from his pistol. The appellant was quite a stranger to the pursuers. They had no enmity against him. They were chasing him merely to apprehend and produce him before the police as he had resorted to firing on the roof of the bus on a very trivial dispute.
13. Ghulam Hussain P.W.7 and Sardar Hussain Shah P.W.9 further deposed that they snatched pistol P.4 from the appellant and produced it before the investigating officer who also recovered crime empty P.6 from the place of murder and crime empty P.7 from Gondal Bus Stand. According to the Fire Arms Experts, the crime empties P.6 and P.7 matched with pistol P.4. These recoveries are undisputed.
14. In view of the above evidence, the learned trial Court was perfectly justified in disbelieving the plea of the appellant and relying upon the evidence adduced by the prosecution invoking his convictions under sections 307 and 302 PPC. The sentences imposed on him also were appropriate. We, therefore, maintain the convictions and sentences of the appellant and dismiss this appeal.
15. The sentence of death awarded to the appellant is confirmed.
M.Y. H./D-11/L Appeal dismissed
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