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Criminal Appeals Nos.273, 275, 276, Murder Reference No.88 and Criminal Revision No.572 of 1983, heard on 6th June, 1987.
---S.302/34--F.I.R. genuineness of--F.I.R. promptly lodged, names of accused, weapons carried by them, names of witnesses and manner of occurrence given therein--Nothing on record showing F .I. R. not recorded as it purported to be--Nothing on record available to show it to be recorded after deliberation or consultation--F. I. R. held, was a genuine document in. circumstances.
---S.302/34--Ocular testimony--Related witnesses, evaluation of--Motive part of story almost admitted--Statements of witnesses in consonance with probabilities and materially fitting in with rest of evidence--No material contradiction, major discrepancy or dishonest improvement found in statements--Witnesses having no previous enmity for falsely involving accused--Medical evidence corroborating their statements- Number of injuries commensurate with number of assailants-Presence of witnesses at time of occurrence, plausible--Non-recovery of empties from spot not contradicting version of occurrence given by witnesses- Day time occurrence--Accused known to witnesses--No chance of mistaken identity--Deceased having other enemies but nothing on record showing witnesses to have any soft corner for them or having special enmity with accused to involve them falsely--No foundation for substitution of accused for real culprits, laid down--Ocular testimony provided by witnesses was confidence inspiring and in accordance with guidelines given by superior Courts for appreciation of evidence and their evidence could not be discarded merely because of their relationship with deceased--Recovery of weapons found of no consequence in absence of any crime empty--Accused found rightly convicted by Trial Court in circumstances.
---S.302/34--Sentence--Mitigating circumstance--Accused firing fatal shot--Deceased not party to murder of accused's brother--Deceased killed simply for pursuing case of his son--No justification found for accused to kill him--Accused aged 29 years, not under influence of his brother co-accused--No mitigating or extenuating circumstance, held, could be found in favour of accused--Death sentence confirmed in circumstances.
S. M . Latif Khosa for Appellant.
Ch. Zafar Yaseen for the State.
Ijaz Hussain Batalvi for the Complainant.
Date of hearing: 6th June, 1987.
--This Criminal Appeal No.273/83, connected M.R.No.88/83 and Criminal Revision No.572/83 filed by Ahmad Hayat complainant for the enhancement of sentence, arise from the judgment of learned Sessions Judge, Khushab, whereby he on 7-5-1983 convicted Muhammad Matah (30), Khan Muhammad s/o Muhammad Sadiq (50) and Khan, Muhammad s/o Sher (80) appellants under section 302/34 .P.P. C for the murder of Falak Sher (50) and sentenced them as under:-
(1) Muhammad Matah: to death and a fine of Rs.10,000, in default thereof 2 years' R .I.
(2) Khan Muhammad s/o to imprisonment for life and a fine of
Muhammad Sadiq. Rs.10,000 or in default thereof 2 years' R.I. each.
(3) Khan Muhammad s/o
Sher.
It was directed that out of the fine recovered. Rs.20,000 shall be paid to the legal heirs of the deceased. We propose to dispose of them through single judgment.
2. The occurrence took place on 31-12-1981 at 3.30 P.M. near the 'Behk' of Falak Sher deceased in the area of Jhugian Manda Dakhli Botala at a distance of 9 miles from Police Station Mitha Tiwana.
3. The FIR Ex.PF was lodged by Ahmad Hayat P.W.6, nephew as well as son-in-law of the deceased on the same day at 6.15 P.M. which was recorded by Munir Ahmad S.I., P.W.9.
4. Muhammad Matah and Khan Muhammad s/o Muhammad Sadiq are real brothers. Mother of Matah appellant is the first cousin of Khan Muhammad s/o Sher appellant. Ghulam Muhammad P.W.8 is the maternal nephew of the deceased. Grandfather of Ghulam Muhammad P. W .8 and grandfather of Muhammad Matah appellant were first cousin interse.
5. The motive as alleged by the prosecution was that on 27-6-1981 Atta Muhammad, brother of Muhammad Matah appellant was murdered by Asif Hayat s/o Falak Sher deceased and others. Falak Sher deceased was pursuing the case of his son Asif Hayat, who was released oh bail by the orders of the High Court, hence this occurrence.
6. As for the main occurrence, it has been stated that at the eventful time, Ghulam Muhammad P.W.9; Falak Sher deceased and Mst. Daulat Khatoon widow of the deceased (not produced) left for their 'Behak' in the area of Judian Manda. When they reached near the 'Behak', the appellants armed with guns emerged from nearby sugarcane fields raising lalkara that Falak Sher be taught a lesson for pursuing his son's case, attacked him. Khan Muhammad s/o Muhammad Sadiq fired shot hitting the left leg of Falak Sher. Khan Muhammad s/o Sher fired shot on 'the face of Falak Sher who fell to the ground. Muhammad Matah fired at the deceased from a close range hitting below his left flank. The appellants then went away firing indiscriminately. Falak Sher died on the spot.
7. On 1-1-1982 at 12.30 P.M. Dr.Riaz Ali P.W.7 conducted post- mortem examination on the dead body of the deceased. He found following injuries:-
(1) "A lacerated wound "x 1/3"x 1/8" on the tip of the nose.
(2) A lacerated wound 3/4" x 1/3" x skin deep upper lip on left side.
(3) A lacerated wound " x 1/3" x skin deep on left side of the face.
(4) A lacerated wound " x 1/3" x skin deep on top of the head on right side.
(5) A lacerated wound 1 " x 1 " x deep just below and on costal margin on left side area around was blackened and omentum had come out of the wound.
(6) A lacerated wound 1/3" x 1/3" x skin deep on left lateral side of the abdomen above iliac bone.
(7) Three lacerated wounds 1/3" x 1/3" x deep on the back 2 in the middle line and other on the left of the back.
(8) Four lacerated wounds 1/3" x 1/3" x skin deep above the left knee joint.
(9) A lacerated wound 1/3" x 1/3" x skin deep on left thigh."
On internal examination, he found that 7th rib was fractured under injury No.5. The pleura was injured on both sides. The right lung was injured and cavity was full of blood. The left lung was also injured and the cavity contained blood. Peritoneum was injured under injury No.5. Diaphram was also injured on left side. The stomach was badly injured which contained some undigested food.
In his opinion, the death was due to shock and haemorrhage and injury to vital organ resulting from injuries No.5 & 7, which was sufficient to cause death in the ordinary course of nature. The rest of the injuries were simple. All the injuries were caused with fire-arm. The death was instantaneous. In cross-examination, the doctor stated from the contents of the stomach that the deceased had eaten something 3/4 hours before the occurrence.
8. The appellants were arrested on 2-1-1982 by Munir Ahmad S.I. P.W.9. On 5-1-1982 Khan Muhammad son of Muhammad Sadiq led to the recovery of gun Ex.P6 and 4 live cartridges Ex.P7/1-4 from his kotha which were taken into possession vide memo Ex.PC attested by Fateh Muhammad P.W.4 and Muhammad Nawaz (not produced). On the same day Khan Muhammad s/o Sher appellant got recovered from his Dera gun Ex.P7 and live cartridges Ex.PB/1-3, which were taken into possession vide memo Ex.PG attested by the same witnesses. On the same day Muhammad Matah led to the recovery of gun Ex.P10, 2 live cartridges Ex.P11/1-2 and his licence Ex.P12 from his Dera, which were taken into possession vide memo Ex .PE attested by the same witnesses. The recoveries were effected by Munir Ahmad S. I., P.W.9. It may be noted that no crime empty was recovered from the spot and as such, the recoveries of guns effected from appellants are of no consequence.
9. To prove its case prosecution produced 9 witnesses. Ahmad Hayat complainant, P.W.6 and Ghulam Muhammad P.W.8 have given the ocular account of the occurrence. They claim to have seen the appellants firing shots from their guns hitting the deceased resulting in his death. Ahmad Hayat has also desposed about the alleged motive. Fateh Muhammad P.W.4 has stated that the 3 appellants had led to the recovery of guns in his presence. Dr. Muhammad Riaz Ali P.W.7 has proved the post-mortem examination report of the deceased. Munir Ahmad S.I., P.W.9 had recorded the FIR, effected the recoveries from the appellants, investigated the case and submitted the challan. The rest of the evidence is of formal nature.
10. When examined under section 342.Cr.P. C. the appellants denied all the incriminating circumstances and raised the plea of false implication on account of enmity. In reply .to question No.11, "Do you want to say anything else ", Muhammad Matah appellant stated:-
"I am innocent. In the year 1962, my brother Ghulam Muhammad was murdered. Then I was a child. In those days my brother Ghulam Muhammad was engaged with Mst. Hayat Bibi daughter of my phuphi. In exchange for that my sister Mst. Bhag Bhari was engaged with Dost Muhammad, brother of Mst. Hayat Bibi aforesaid. After the murder of my brother Ghulam Muhammad Mst.Hayat Bibi was engaged with me while I was still a child and the marriage and rukhsati of Mst. Bhag Bhari was made with Dost Muhammad aforesaid. When I became major then I refused to accept Mst.Hayat Bibi as my wife and she is unmarried till today. Then with my own consent I married Mst. Jalal Bibi caste Vesi resident of Hadali. For this reason my brothers separated themselves from me and they boycotted me.
In reply to Question No.1l, "Do you want to say anything else ", Khan Muhammad s/o of Muhammad Sadiq appellant stated:-
"Mst.Daulat Khatoon P.W. had eloped with Falak Sher deceased. To take revenge for it, the relations of Daulat Khatoon P.W. abducted Mst. Amir Khatoon a close relation of Falak Sher deceased. The Nikah of Mst. Amir Khatoon was after abduction made with Fateh Khan. In retaliation for the abduction of Mst. Amir Khatoon, Mst. Zeenat Khatoon a relation of Mst. Daulat Khatoon was abducted by the deceased party and she was married with Atta Muhammad. Some time later Amir Khatoon and Zeenat Khatoon abductees were returned to their parents but their Nikah persisted. Sher Bahadar, brother of the deceased used to demand Talaq for Mst. Amir Khatoon but Fateh Khan husband of Mst. Amir Khatoon put this precondition that first Mst. Daulat Khatoon should be returned to them. On this the deceased party murdered Fateh Khan. The deceased had many enemies. The deceased party is habitual to make false criminal cases including murder cases against their enemies. The deceased was killed by some unknown persons in the darkness of the night and we were falsely implicated in this case because I was first informant in the case of Atta Muhammad. I have strained relations with my co-accused since long.
In reply to Question No.1l, "Do you want to say anything else ", Khan Muhammad s/o Sher appellant stated:-
"I have my landed property measuring 21 Killas at the Dera of Jindwada my brother. That land was under cultivation of Rab Nawaz son of Jindwada. I live at the Dera of Hanif and cultivate his land as a tenant under him, which place is four miles away from the place of this occurrence.
My brother Ghulam Muhammad since dead was engaged with Bakhat Bhari daughter of my maternal-uncle. Khan son of Sadiq accused got that engagement dissolved and himself married Mst. Bakhat Bhari. For this reason my relations with Khan Muhammad co-accused were strained."
In defence two witnesses were produced. Munawar Din, Head Constable, D.W.1 was produced to prove the register of FIRS. Ex.DF to DI. In cross-examination, he stated that in the FIRS Ex. DF to DI, Falak Sher deceased was neither an accused nor a witness. Azmat Ullah, F.C. D.W.2 has proved the copy of FIR Ex: DG under section 302/34, P.P.C. registered at P.S. Bhagtanwala on 5-3-1981. In that case one Muhammad Nawaz was the complainant and Ahmad Khan was an accused. Khan Muhammad s/o Muhammad Sadiq appellant tendered in defence copy of the report under section 173, Cr.P. C. Ex. DK in case FIR No.46 dated 5-3-1981, P.S. Bhagtanwala and copy E-x.DL of FIR No.29 dated 18-3-1981, P.S. Mitha Tiwana under section 302/34, P.P.C. lodged by Alim Sher for the murder, of Muhammad Hayat and copy of the challan Ex.PM in that case. It may be noted that in the aforesaid cases the parties were neither accused nor P.Ws against each other.
11. Learned counsel for the appellants contended that the eye witnesses are related to the deceased and also inter se; that they were inimical towards the appellants on account of the murder case of Atta Muhammad; that they were the chance witnesses; that they were not injured; had they been present there, they would have certainly received injuries; that the eye-witnesses have made dishonest improvements in that it was not stated in the FIR and statements of the eye-witnesses recorded under section 161, Cr.P.C. that the deceased had gone to urinate when he was fired at; that there was no sugar-cans crop or Dera near the place of occurrence and that no empty was recovered from the place although the accused allegedly fired indiscriminately. In the alternative, the learned counsel argued that Muhammad Matah being the younger brother of Khan Muhammad appellant had acted under the influence of his elder brother and that the son of the deceased had killed Atta Muhammad, brother of Muhammad Matah appellant only six months before the present occurrence, therefore, lesser penalty would meet the case. Learned counsel for the State has supported the judgment of the trial Court. Learned counsel for the complainant prayed for the enhancement of sentence of Khan Muhammad son of Muhammad Sadiq and Khan Muhammad son of Sher appellants from imprisonment for life to death on the ground that they having acted in furtherance of common intention were equally responsible for the death of the deceased.
12. We have anxiously 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 and the defence and the surrounding circumstances, with care. We find that it is a case of promptly lodged FIR containing the names of the appellants, the weapons carried by them, the manner of the occurrence and the names of the eye-witnesses. It seems to us that the FIR Ex.PF is a genuine document. There is nothing on record to show that the FIR was not recorded at the time and place as it purports or that it was made after deliberation or consultation, so much so, no suggestion was given to the complainant or the Investigating Officer with regard to the registration of the case after preliminary investigation.
13. The background of the occurrence i.e. the murder of Atta Muhammad, brother of Muhammad Matah appellant by Asif Hayat, son of the deceased is almost an admitted fact. There is no dispute that Asif Hayat was released on bail. Falak Sher deceased being the father of the deceased it was but natural that he would pursue the case of his son.
14. After having appreciated the ocular testimony furnished by Ahmad Hayat P.W.6 and Ghulam Muhammad P.W.8 in accordance with the guidelines given by the Superior Courts for appreciation of evidence in such like cases. We have come to the conclusion that
evidence of the aforesaid two eye-witnesses is confidence inspiring, No doubt, Ahmad Hayat P.W. is nephew as well as son-in-law of the deceased and Ghulam Muhammad P.W.8 is sister's son of the deceased but merely due to their relationship with the deceased, their statements cannot be discarded. We find that the statements given by them are in consonance with probabilities and materially fit in with the rest of the evidence. Except for minor and immaterial discrepancies, the learned counsel has not been able to point out any material contradic tion, major discrepancy or dishonest improvement. They have stood the test of cross-examination. They had no previous enmity with the appellants to involve them falsely in the case. The incident of the murder of Atta Muhammad i.e. the motive in the instant case, will not bring them into the category of inimical witnesses. There is no conflict in the medical evidence and the statements made by the eye-witnesses. The mere fact that the eye-witnesses had not explained the injury found on the back of the deceased in the FIR and statements recorded under section 161, Cr.P.C., do not detract their evidence from correctness. They have given plausible cause of their presence at the time of occurrence. Ahmad Hayat P.W.6 has stated that he had tethered his cattle alongwith the cattle of the deceased at the 'Behak' jointly owned by them. Ghulam Muhammad P.W.8 has stated in cross-examination that on the day of occurrence he had gone to the Dera of the deceased to get a buffalo from him He sat there for a while and then left alongwith the deceased and others for the Behak/Cattleshed of the deceased. We do not see any reason to dis believe this explanation of Ghulam Muhammad P.W.8 for being present on the spot. Since the two eye-witnesses have given cogent reasons for their presence on the spot at the time of occurrence they are not the chance witnesses. Muhammad Farooq Patwari P.W.3 has stated that there was sugar-cane crop standing in killa No.9 of Square No.19. This fact supports the statements of the eye-witnesses that the appellants had emerged from the nearby sugar-cane field. Ghulam Muhammad P.W.8 is also related to the appellants. He stated that his grandfather Rab Nawaz was the first cousin of the grandfather of Muhammad Matah appellant. The appellants have not tried to disprove the aforesaid relationship. The number of the injuries found on the deceased and the number of .he assailants named by them do commensurate. The omission on the part of the complainant to explain injury found on the back of the deceased and to mention the fact of the deceased having gone to urinate in the field will not adversely effect the testimony of the complainant because the FIR is not supposed to be so much exhaustive. Non-recovery of empties from the place of occurrence does not show that the witnesses had given false version of the occurrence. It seems to us that the occurrence took place in the light of the day. The appellants were previously known to the eye-witnesses and as such they were in a position to identify them. No doubt, at the time of occurrence, Falak Sher deceased was facing trial for the murder of one Sikandar and his two sons and as such he had other enemies, but there is nothing on record to show that the eye-witnesses had soft corner for those enemies or that they had any special enmity with the appellants to involve them falsely in the case. No foundation for the substitution of the appellants in place of real culprits has been laid down by the defence. The submissions made by the learned counsel have no force. For all these reasons we are convinced that the trial Court has rightly convicted the appellants under section 302/34, P.P.C. for the murder of Falak Sher deceased.
15. This brings us, to the question of sentence of Muhammad Matah appellant, which certainly deserves our utmost attention. We have considered the question of sentence very carefully bearing in mind all circumstances surrounding the guilt of Muhammad Matah appellant but we have not been able to find any mitigating/ extenuating circum stance in his favour for converting his death penalty. He fired fatal shots and murdered Falak Sher, who was not a party to the murder of his brother Atta Muhammad. He was killed simply because he was pursuing the case of his son. The deceased being father of Ahmad Hayat, accused of the murder of Atta Muhammad, was justified in pursuing the case of his son before a Court of law and as such, there was no justification whatsoever for Muhammad Matah appellant to do away with him. Muhammad Matah appellant was about 29 years in age at the time of occurrence. He was fully matured and as such it cannot be said that he was under influence of his brother co-accused.
The upshot of the above discussion is that there being satis factory basis to uphold the conviction and sentences of the appellants, the appeal filed by them is dismissed and the sentence of DEATH awarded to Muhammad Matah appellant is CONFIRMED. Resultantly the connected revision is dismissed in limine.
S. A./M-309/L
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