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Criminal Appeal No.464, Murder Reference No.150 and Criminal Revision No.730 of 1983, heard on 28th April, 1987.

---S.302--First information report promptly lodge wherein name of accused, weapon used by him, name of deceased, names of eye witnesses, name of Wajtakkar witness and motive were mentioned- Nothing available on record to show that first information report was recorded after preliminary investigation--Motive of accused to do away with deceased proved through reliable evidence and defence counsel unable to shake evidence relating to motive--Eye-witnesses having no motive to involve deceased falsely in case--Eye-witnesses successfully facing test of cross-examination and giving cogent reason for their presence on spot--Statement of witnesses corroborated by evidence of Wajtakkar--Accused was previously known to witnesses and they had no difficulty in identifying him in light of day--Accused unable to lay down any foundation for his substitution in place of real culprit--Weapon used by accused and seat of injury selected by him leading to conclusion that he had no intention other than that of killing deceased--Conviction and sentence maintained in circumstances.

---S.302--Recovery--No empty recovered from spot--Recovery of gun alone, held, of no significance.--[Recovery].

--S.302--Criminal Procedure Code (V of 1898), Ss.161 & 162- Evaluation of evidence--Statement made before police officer-- Inadmissible.

---S.302--Recovery--Recovery of live bullets from Saluka of deceased, held, would not lead to inference that deceased was armed with a revolver or that he might have fired on his unknown assailant.

M. Aftab Farrukh for Appellant.

Kh. Shaukat Ali and Sh. Zameer Hussain for the State.

Date of hearing: 28th April, 1987.

--This Criminal Appeal No.464/83, connected Murder Reference No.150/83 and Criminal Revision No.730/83 for the enhancement of the compensation, arise from the judgment of learned Additional Sessions Judge, Attock, whereby he on 17-8-1983 convicted Sajjad Ali (19) appellant under section 302 P.P.C. for the murder of Izharul Haq (20/21) and sentenced him to death and a fine of Rs.25,000 or in default thereof, two years' R.I. with the direction that the fine if recovered Rs.20,000 be paid to the heirs of the deceased. We propose to dispose of them through single judgment.

2. The occurrence took place on 7-10-1982 at 7.30 a.m. on a path of the village near Hujra Marfat Shah of village Garhi Matani at a distance of 9 miles from Police Station Hazro, District Attock. The FIR Ex. PG was lodged by Muhammad Usman P.W.11, the paternal uncle of the deceased at police station and was recorded by Muhammad Khan ASI, P.W.10 on the same day at 11.45 a.m.

3. The motive as alleged in the FIR was that some days before the occurrence, Sajjad Ali appellant had teased Muhammad Azam P.W.9, whereupon Muhammad Usman complainant and Izharul Haq deceased complained to Sajjad Ali appellant who in return lost his temper.

This led to the exchange of abuses between the appellant on one side and Muhammad Usman and Izharul Haq deceased on the other side. Sajjad Ali threatened them of the dire consequences, hence this occurrence.

4. As for the main occurrence, it has been stated that on the eventful day Izharul Haq deceased had gone to the house of Muhammad Usman P.W.11 at 7.00 a.m. He remained there for a short time and left for his house. Shortly thereafter Muhammad Usman complainant heard the report of gunfire. He came out of his house and saw Sajjad Ali appellant running towards river Indus carrying .12-bore gun in his hands. Muhammad Usman had covered a short distance when he met Abdul Ghaffar P.W. who was rushing towards him. Abdul Ghaffar P.W.12 told him that the appellant had seriously injured Izharul Haq by firing shot from his gun hitting on his head and on his left shoulder who was lying on the path of the village near Hujra Marfat Shah. On this Muhammad Usman ran towards the spot and found Izharul Haq lying unconscious. Izharul Haq was then removed to D.H.Q. Hospital Attock in a car by Muhammad Usman and Abdul Rauf Lumbardar. Izharul Haq was admitted in the hospital. He was medically examined by Dr. Rehmat Elahi P. W.1 at 9.00 a. m. The doctor found 8 injuries on his person caused by fire-arm within 1 to 4 hourse of the examination. The injury on the left side of the forehead was dangerous and grievous The other injuries were kept under observation. The doctor prepared medicolegal report Ex. PA and handed over the same to Muhammad Usman P.W. Muhammad Usman complainant and Abdul Rauf Lambardar were still in the hospital when Izharul Haq succumbed to the injuries. Thereafter, Muhammad Usman and Abdul Rauf P.W. left for the police station to lodge report. On reaching the police station Muhammad Usman lodged report Ex.PG, and produced medico-legal report of the injuries of Izharul Haq.

5. On the same day at 2.00 p.m. Dr. Faiz Muhammad Farooqi P.W.2 conducted post-mortem examination on the dead-body of Izharul Haq. He found following injuries:

(1) A stitched wound 5 c.m. x 0.2 c.m. on the left side of forehead.

(2) A stitched wound 4.5 c.m. x 0.2 c.m. behind and above left ear.

(3) An abrasion mark 3.5 c.m. x 1 c.m. in front of left ear.

(4) A stitched wound 1 c.m. x 0.1 c.m. on left ear lobule.

(5) A stitched wound 1 c. m. x 0.1 c. m. on left ear lobule near injury No. 4.

(6) A stitched wound 1 c.m. x 0.2 c.m. behind left ear.

(7) Five stitched wounds 1 cm. x 0.2 c.m. on the top of left shoulder.

On internal examination, the doctor found fracture of skull under injuries No. l to 4. Three pellets of cartridge alongwith covering were found in the body. The membranes were ruptured and the brain matter was found injured. The first, second and third ribs were fractured. Pleura and left lung were also found injured. One pellet was recovered from the wound.

The stomach contained about 6 ounces of fluid. The small intestines contained semi-solid material and large intestine contained faecal matter. The bladder was empty.

In his opinion, the cause of death was severe haemorrhage and shock due to injuries No.l, 2, 3 & 6, which were sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was about 4 to 8 hours and between death and post-mortem was about 21 to 4 hours. In cross-examination, the doctor stated that he did not found any solid material in the stomach and that the deceased had not eased himself.

6. On 8-10-1982 Sajjad Ali appellant was arrested by Raja Ghulam Rasul SI/SHO, P.W:15. On 11-10-1982 he led to the recovery of .12-bore gun Ex.P3 from the Bela in village Garhi Matani which was taken into possession vide memo Ex. PF attested by Muhammad Javed P.W.8, Muhammad Khan ASI P.W.10 and Wasil Muhammad (not produced). It may be noted that no empty was recovered from the spilt and as such, the recovery of gun alone is of no significance.

7. To prove its case, prosecution produced 15 witnesses. Abdul Ghaffar P.W.12 and Muhammad Uns P.W.13 claimed to have seen the appellant firing at the deceased with gun hitting him on his head and shoulder. Muhammad Usman P.W.11 had seen the appellant running away towards River Indus carrying gun in his hands. Immediately after the occurrence Abdul Ghaffar P. W.12 had told him that Izharul Haq was fired at by the appellant and was lying injured on the spot, Muhammad Usman P.W. has also deposed about the motive. Muhammad Azam P.W.9, who was also recalled and examined as C.W.1 has also deposed about the motive. He has fully supported the motive part of the story of the prosecution. Muhammad Javed P.W.8, Muhammad Khan ASI, P.W.10 and Ghulam Rasul SI/SHO, P.W.15 have stated that the appellant had led to the recovery of gun Ex.P3. Dr. Rehmat Elahi P. W.1 has proved the medico legal report Ex. PA with regard to the injuries found on the person of Izharul Haq when he was alive. Dr. Faiz Muhammad Farooqi, P. W. 2 has proved the post-mortem examination report of Izharul Haq deceased. The rest of the evidence is of formal nature.

8. When examined under section 342 Cr.P.C., the appellant denied all the incriminating circumstances. He raised the plea of false implication on account of suspicion and enmity. In reply to Q.No.8 i.e. "Why this case against you and why the P.Ws. have deposed against you ", he stated:-

"There were two volleyball teams in our village situated in the land of Bazid Khan. I was captain of one of the teams and Izharul Haq deceased was captain of the other team. 2-3 days before the occurrence during the game a quarrel took place between myself and Izharul Haq deceased and we exchanged abuses. On the day of occurrence at about 10-11 a.m., I came from village Formulli and learnt that Izharul Haq deceased was killed in the early hours of the morning by some unknown person when he had fired on the assailant who in retaliation fired back at the deceased. The deceased did not hold good moral reputation and he had many enemies. I was falsely implicated by the complainant party because the volley ball net was cut by some unknown person but I was blamed for that. Due to all reasons I am falsely implicated in this case. The P.Ws. have made false evidence against me because of their inter se relations."

In defence he produced Sher Afzal Khan, Headmaster, Government High School Shadi Khan, D.W.1, who stated that Muhammad Azam P.W. had attended the school till 26-9-1982 and thereafter remained off from the school for his continuous absence. In cross examination, he stated that the attendance of Muhammad Azam P.W.9 was not marked by him and that the record showed that from 28-9-1982 to 1-10-1982, the school was closed on account of holidays and that from 2-10-1982 to 7-10-1982 Muhammad Azam remained absent from school without any intimation. The appellant had also tendered in evidence Ex. DH, judgment dated 30-6-1983 passed in case under section 13 of the Arms Ordinance, 1965.

9. The learned trial Court while believing the. motive, ocular testimony, medical evidence and disbelieving the plea raised by the appellant, has convicted and sentenced him as stated above.

10. Learned counsel for the appellant contended that the prosecution has failed to prove its. case beyond reasonable doubt, inasmuch as, the two eye-witnesses namely Abdul Ghaffar and Muhammad Uns being maternal uncle and maternal cousin respectively of the deceased and Muhammad Usman complainant. the witness of Wajtakkar, being paternal uncle of the decease, are interested witnesses; that although about 200/300 independent persons of the village had seen the appellant running away alongwith gun at the time of occurrence, yet not a single person out of them has been produced to corroborate the statements made by Abdul Ghaffar, Muhammad Uns and Muhammad Usman P.Ws; that since the statements of the eye-witnesses were got recorded under section 164 Cr.P.C., therefore, they had no option but to stick to the same at the time of trial; that the place wherefrom the appellant is alleged to have fired at the deceased is behind a wall which is 3 feet and 9 inches high, therefore, the eye-witnesses had no occasion to see and identify the assailant; that in the natural course of events, the assailant would have made good his scape being unidentified; that the medical evidence is in conflict with the statements made by the eye-witnesses in that the ocular evidence shows that the shot was fired from front whereas the injuries are on the back of the ear and shoulder; that the contents of the stomach indicate that the occurrence had taken place before sunrise; that the recovery of 32 live bullets from 'Saluka' of the deceased leads to the inference that the deceased was armed with revolver which was removed after the occurrence by the complainant party or police in order to suppress the manner in which the occurrence had really taken place and that three independent witnesses had appeared before the police as admitted by Raja Ghulam Rasul SI/SHO P.W.15 and had given a different version of the occurrence. Conversely, the learned counsel for the State has supported the judgment of the trial Court. No one has appeared on behalf of the petitioner in Cr.R.No.730/83.

11. We have attended to the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statement of the appellant recorded under section 342 Cr.P.C., the defence evidence and the attending circumstances, with care. We have not been able to persuade ourselves to agree with the learned counsel for the appellant we find that the occurrence took place at 7.30 a.m. Since Izharul Haq was in serious condition, therefore, he was removed in a car to D.H.Q., Hospital Attock and this conduct of the complainant runs parallel to the natural probabilities because the first and the foremost anxiety of the complainant or anybody else should have been to provide medical treatment to the deceased and save him from death. In the hospital Izharul Haq was medically examined and thereafter died while the complainant was still in the hospital. The complainant then left for the police station and lodged FIR at 11.45 a.m. on the same day. To our mind, it is a case of promptly lodged FIR wherein the name of the accused /appellant, the weapon used by him, the name of the deceased, the names of the eye-witnesses, the name of Wajtakkar witness and the motive have been mentioned. There is nothing on record to show that the FIR was recorded after preliminary investigation, so much so, it was not even suggested to the complainant or to Muhammad Khan ASI P.W.10 who had recorded the FIR that the FIR was recorded after preliminary investigation. The FIR Ex. PG seems to be a genuine document which can safely be used to corroborate the statement of Muhammad Usman P.W.11.

12. The motive of the appellant to do away with the deceased is very much proved through reliable evidence. Muhammad Azam P.W.9, a young boy of 14 years who was also a student of 8th Class has deposed about the background of the murder. He stated that Sajjad Ali appellant had twice caught hold of him and compelled him to allow him to commit sodomy on him (the witness). As he was fed up with the behaviour of the appellant so he stopped going to school and narrated the whole facts to Muhammad Usman complainant and Izharul Haq deceased 2/3 days prior to the occurrence. The witness was subjected to the lengthy cross-examination but nothing damaging to his veracity could be elicited. We have been very mush impressed by the straightforward manner in which Muhammad Azam P.W.9 made his statement. Had the incident of criminal assaults by the appellant on him not been true then the witness who was a student and a young boy of 14 years would not have made such a statement which could expose him to insult, humiliation, social criticism or ignominious reflection among his fellow students. Muhammad Usman while supporting Muhammad Azam P. W.9 has stated that when he and Izharul Haq deceased complained to the appellant about his misbehaviour with Muhammad Azam P.W.9, the latter threatened them of dire consequences. The learned defence counsel has not been able to shake evidence relating to motive.

13. Adverting to the crucial evidence, i.e. the ocular account of the occurrence given by Abdul Ghaffar P.W.12, Muhammad Uns P.W.13, we find that although they are maternal uncle and maternal cousin respectively of the deceased, yet they cannot be termed as interested witnesses because they had no motive to involve the appellant falsely in the case. No previous enmity of the P. Ws. with the deceased has even been suggested in cross-examination. The statements made by them cannot be discarded on the ground of mere relationship with the deceased. The witnesses have successfully faced the test of cross-examination. They have given cogent reasons for their presence on the spot at the time of occurrence. Their names are mentioned in the promptly lodged FIR. It was a daylight occurrence and they have named single accused. The number of the injuries and the number of the assailant named by them commensurates. The appellant was previously known to them and as such, there was no difficulty in identifying him in the light of the day. The mere fact that the deceased had not eased himself before his death will not show that the occurrence had taken place before sunrise. It may be noted that bladder was found empty, which shows that the appellant had urinated himself before the occurrence. The statements made by the eye-witnesses are in consonance with probabilities and materially fit in with the rest of the evidence and the circumstances appearing in the case. Except for minor and immaterial discrepancies and omissions, the learned counsel has not been able to point out any material contradiction between the statements of the prosecution witnesses. We also do not see any major conflict between the medical evidence and the statements of the eye-witnesses. The learned. defence counsel did not care to cross-examine the doctor with regard to the position of the assailant at the time of occurrence. He did not ask the doctor whether the shot was fired from front or back side of the deceased. The deceased on seeing the appellant aiming at him might have turned or tried to turn his head and received the injuries found on him. The statements of the eye-witnesses find corroboration from the evidence of Wajtakkar and Res Gestae, given by Muhammad Usman P.W.11. He had no previous enmity with the appellant. In the circumstances of the case, the substitution of the appellant-in place of the real culprit is not possible at all. The appellant has not been able to lay down any foundation for his substitution in place of the real culprit. The prosecution was not obliged to produce each and every witness of the occurrence, so the omission on the part of the prosecution to produce persons out of 200/300, who had seen the appellant running away after the occurrence does not damage the veracity of the eye-witnesses and the complainant. Abdul Ghaffar P.W.12 had seen the appellant sitting alongwith the wall of Hujra Maarfat Shah before the latter opened fire on the deceased. Muhammad Uns P.W.13 had also seen the appellant firing at the deceased from near the wall of Hujra which is only 3 feet and 9 inches high. The occurrence had taken place in the light of the day, therefore, the eye-witnesses and the complainant were in a position to identify the appellant. No doubt Raja Ghulam Rasul stated in cross-examination that in defence of the. accused, three persons namely Dilawar Khan, Sardar Bahadur and Said Akbar had appeared before him and had given a different version of the occurrence but this piece of evidence being a statement before Police Officer is inadmissible and cannot be considered. Furthermore, the appellant did not care to produce them in the Court to depose different version of the occurrence. The mere recovery of 13 live bullets from the 'Saluka' of the deceased does not lead to the inference that the deceased was armed with a revolver or that he might have fired on his unknown assailant as suggested in cross-examination. The submissions made by the learned counsel for the appellant do not hold any water. From the kind of the weapon used by the appellant and the seat of the injury selected by him, it is very much obvious that he had no intention other than that, of killing the deceased. For all these reasons, we are convinced that the trial Court has rightly convicted the appellant under section 302 P.P.C.

14. This brings us to the question of sentence which certainly requires utmost care on our part. After having carefully attended to the circumstances surrounding the guilt of the appellant, we have not been able to find any mitigating circumstance in his favour for awarding lesser penalty.

For what has been said above, the appeal is dismissed and the sentence of death is Confirmed. The connected revision is dismissed.

M. Y. H./S-65/L Appeal dismissed.

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