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Criminal Appeal No.78 and Murder Reference No.33 of 1985, decided on 15th March, 1987.

---S.302--Sentence, reduction in--Motive and immediate cause for occurrence shrouded in mystery--Sentence of death reduced to imprisonment for life.--[Sentence].

Mian Aftab Farrukh for Appellants.

Mrs. Yasmeen Saighal for the State.

Date of hearing: 15th March, 1987.

--Vide judgment dated 23-12-1984, passed by a learned Additional Judge, Gujranwala, Sarfraz alias Kalu son of Nazir Khan, aged 20, has been convicted under section 302 P.P.C., for causing the murder of Javid Sabir deceased (28) and has been sentenced to death and a fine of Rs.10,000 or in default three years R.I. He has also been ordered to pay compensation amounting to Rs.15,000 to the heirs of the deceased or in default R.I. for six months. Vide the same judgment, Arif alias Kalu son of Muhammad Siddique (20), Mustafa son of Rehman (25) and Riasat Ali son of Allah Rakha (25) have been convicted under section 323 P.P.C. for causing simple injuries with dangs to Amir Ahmad P.W. and have been sentenced to pay a fine of Rs.1000 each or in default three months, R.I. Zafar, Riaz and Ayyaz alias Abadullah co-accused were, however, acquitted by the same judgment.

2. The aforementioned convicts have challenged their convictions and sentenced through the present appeal (Criminal Appeal No.78 of 1985), while the matter also stands referred to us under section 374 Cr.P.C. seeking confirmation of death sentence awarded to Sarfraz alias Kalu. Both these matters shall be disposed of by this judgment.

3. The occurrence in this case took place on 22-7-1982 at 8.30 a.m. in the open field in the area of village Depepur, at a distance of about nine miles from Police Station Nowshehra Virkan, District Gujranwala.

The incident was reported to the police by Amir Ahmad P.W.8, through F.I.R. Ex. P.L. which he lodged at the police station the same day at 10.00 a.m. The F.I.R. was recorded by Barkat Ali, the then SI/SHO Police Station Nowshehra Virkan P.W.12.

4. Regarding motive, it has been alleged that about a year prior to the present occurrence, the C.I.A. staff recovered an unlicensed rifle from Sarfraz appellant who suspected that Amir Ahmad P.W.8 was responsible for the raid. It has also been alleged that a few days before the occurrence, Ramzan Changar who was earlier in the employment of Sarfraz appellant, left his service and started serving Amir Ahmad complainant. Sarfraz sent a message through Abad Ali P.W.4 to Amir Ahmad that he should turn out Ramzan Changar from his service, else he would be murdered.

5. So far as details of the main occurrence are concerned, it has been stated that on the eventful day, which happened to be Eid day, the complainant Amir Ahmad after offering Eid prayer left for graveyard in the company of Javed Sabir deceased, Inam Khaliq P.W.9, Abdul Shakoor and Tanvir Ahmad (given up P.Ws) for offering Fateha. Suddenly Sarfraz, Zafar, Riaz and Ayyaz armed with .12 bore guns, Arif, Mustafa and Riasat Ali armed with Dangs emerged at the scene. Sarfraz raised Lalkara prompting the co-accused to deal with Amir Ahmad. Arif caused a Dang blow on the left thigh of Amir Ahmad. Riasat caused yet another injury with Dang on the left thigh of Amir Ahmad. After receiving these injuries, Amir Ahmad got terrified and ran for his life towards east. When he reached the nearby field of Lutaf Khan, he was surrounded by all the seven assailants. In the meantime Javed Sabir deceased, is sister's son, came forward to help Amir Ahmad and to save him from the assailants. He wanted to catch hold of Sarfraz. Zafar fired a shot at Javed Sabir hitting him on the left elbow. Sarfraz fired a second shot hitting the deceased Javed Sabir in his abdomen near the right hip. Thereafter Javed Sabir fell down and succumbed to the injuries. The assailants ran towards the road while firing and raising Lalkaras. The occurrence was allegedly witnessed by Abdul Shakoor and Tanvir Ahmad.

6. The autopsy on the dead body of Javed Sabir deceased was performed by P.W.10 Dr. Ashraf Ali, the then Medical Officer, D.H.Q. Hospital, Gujranwala on 23-7-1982, at 9.00 a.m. He noticed the following injuries on the dead body:-

(1) A firearm wound in the right illiac fossa, just above the interior superior illiac spine with contused and tattooed and inverted margins, 5 c. m. x 5 c. m. going into the abdominal cavity with four small circular contused tattooed and inverted margin wounds around this big wound. Each 1 x 1 c. m. communicating with this big wound. (All these were wounds of entry).

(2) A contused wound with tattooed margins and inverted edges on the posterio-medial side of right elbow joint, 1 x 1 c.m., going downward and backward (wound of entry) and communicating with the wound of exit which is at the back of right elbow joint, 1 c. m. x 1 c. m. with averted margins.

(3) Contusion 5 x 5,c.m., from of right thigh middle part.

(4) A firearm wound (wound of exit) 1 x 1 c.m., with averted, margins coming from the abdominal cavity. on the upper inner part of the right buttock. On dissection one pellet and wads were taken out.

(5) A firearm wound (wound of exit) 1 x 1 c.m., coming from the abdominal cavity with averted margins on the upper inner part of left buttock near the midline.

(6) A firearm wound (wound of exit) with averted margins coming from the abdominal cavity1 x 1 c.m., on the left buttock, upper outer part.

He opined that death in this case occurred due to cardio respiratory failure on account of shock and haemorrhage, resulting from injury No.1 which was grievous caused with firearm and was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. Injuries Nos.l, 2, 4 and 6 were caused with firearm while injury No. 3 was caused with blunt weapon. In cross-examination, the doctor clarified that injuries Nos.4 to 6 were exit wounds and that possibility of injuries Nos.l and 2 having been caused with one and the same shot could not be ruled out. He opined that injury No.3 could possibly be caused with a Dang.

Dr. Fakhar Ali (P.W.5), the then Medical Officer, Civil Hospital, Nowshehra Virkan, medically examined Amir Ahmad P.W.8 on 22-7-1982 at 11.30 a. m. and found the following injuries on his person:-

(1) A contusion 19 x 2 c.m., on back of trunk in the lumbar region bilaterally.

(2) An abrasion, 1 x c.m., on lateral aspect of upper part of left thigh.

(3) Swelling, 5 x 2 c.m. on lateral aspect of middle of left thigh.

All the injuries were simple and caused with blunt weapon. It is noteworthy that injury statement Ex. PC was produced before Dr. Fakhar Ali who recorded the result of examination as Ex.PC/1 on this injury statement and did not prepare a separate medico-legal report in the prescribed pro forma.

7. All the seven accused persons in this case were arrested by Barkat Ali SI, P.W.12 on 4-8-1982.

Two crime empties Ex.P 5/1-2 were secured from the place of occurrence vide memo. Ex. PD attested by Muhammad Aslam P.W.7 and Tanvir Ahmad (not produced) besides Barkat Ali SI. P.W.12. Dangs P.6, P.7 and P.8 were allegedly recovered at the instance of Arif; Mustafa and Riasat Ali, vide memos. Exs. PF, PG and PH, respectively. These Dangs were not bloodstained and, therefore, their recovery is of no consequence. On 13-8-1982, Sarfraz led to the recovery of S. B. B. L. shotgun P.9 from underneath of chaff lying in his kurh which was secured vide memo Ex. PJ attested by Muhammad .Aslam P.W.7, Nazir Ahmad (not produced) and Barkat Al i S. I. (P.W.12). On the same day i.e. 13-8-1982, Zafar acquitted accused also led to the recovery of shotgun P.10 from 'his residential house vide memo Ex. PK. which has been attested by the aforementioned witnesses.

Vide report Ex. PS of the Forensic Science Laboratory, one of the crime empties marked as C/2 had been fired from S.B.B.L. shotgun of .12 bore marked as G/1. This gun bears laboratory No.1038/82. It was recovered at the instance of Sarfraz appellant.

8. At the trial Amir Ahmad P.W.8 and Inam Khaliq P.W.9 testified as eye-witnesses to furnish the ocular account of the prosecution version. They fully supported the prosecution case as disclosed in the F.I.R. Abad Ali P.W.4 testified about the motive as alleged in the F.I. R. This witness is father of Inam Khaliq and has admitted that he hails from the brotherhood of Amir Ahmad. This witness admitted that when he delivered the message to Amir Ahmad that Sarfraz wanted him to release Ramzan Changar from his service he did so and removed Ramzan from his employment.

9. The plea of the appellants and the acquitted accused was that of denial simpliciter and false involvement due to enmity. No evidence, however, was led in defence.

10. We have thoroughly considered and minutely analysed the direct as well as circumstantial evidence available on the records. Inam Khaliq P.W.9, is an independent witness, inasmuch as he is not related to the deceased or the complainant. The testimonies of both the eye-witnesses are fully corroborated by reliable circumstantial evidence comprising the opinion of the Forensic Science Laboratory that one of the crime empties recovered from the spot was fired from gun which has been recovered at the instance of Sarfraz appellant. This appellant is liable for causing fatal injury to the deceased with firearm. The other co-accused, namely, Zafar, who was accused of having fired a shot and injuring the deceased on his elbow, has been acquitted. The doctor has opined that injury on the elbow of the deceased could be the result of the same shot which caused injury in his abdomen. The second crime empty recovered from the spot could not be compared with the gun recovered from Zafar. He has, therefore, justifiably been extended the benefit of doubt by the learned trial Court. It has also been fully established by the ocular evidence that simple injuries were caused with Dangs to Amir Ahmad complainant by Arif, Mustafa and Riasat Ali appellants.

11. It has been urged on behalf of Sarfraz appellant that the motive, as alleged in this case, has not been proved at all. There is nothing on the records to suggest that recovery of illicit arm from Sarfraz was based on the information furnished by Amir Ahmad complainant. It is a common ground between the parties that Sarfraz was acquitted in that case. Abad Ali P.W.4 has admitted that when he delivered the message of the appellant to the complainant that he should remove Ramzan Changar from his employment, he did so. In such an eventuality there could not be any motive for causing harm to the complainant by Sarfraz. The complainant himself has stated that Ramzan Changar had left his service prior to the present occurrence after the complainant received the message of Sarfraz through Abad Ali. In the above circumstances there could be hardly any occasion for Sarfraz to entertain any grievance or harbour any grudge against the complainant which could result in the present occurrence. In this view of the matter, we find that motive /immediate cause for the present occurrence has not come on the record and in fact is shrouded in mystery.

12. In the light of the above discussion, we maintain the conviction of Sarfraz appellant under section 302 P.P.C. but alter his sentence from death to imprisonment for life. The fine as imposed by the learned trial Court and the direction regarding compensation are also maintained. The death sentence awarded to him is thus not confirmed. The conviction and sentence of the other appellants are also maintained.

But for the alteration of sentence of Sarfraz, the appeal is dismissed.

S.G.D./S-74/L Order accordingly

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