Find a Lawyer

Criminal Appeal No.301 and Murder Reference No.136 of 1985, heard on 30th June, 1987.

---S.302--Recovery of crime-empty--Forensic report that crime-empty could not be compared because percussion cap of crime-empty was perforated and identifiable data was intermingled--Recovery of revolver in circumstance, held, of no consequence.--[ Recovery].

---S.302--Criminal Procedure Code (V of 1898), S.154--F.I.R. if a genuine document, can be used to corroborate the statement of complainant.

---S.302--Injuries on person of accused--Convincing and consistent statements of eye-witnesses cannot be thrown out on account of their failure to give satisfactory explanation of the injuries on accused- Possibility of accused receiving injuries on being overpowered by eye-witnesses and people collecting on spot cannot be ruled out.

---Ss.302 & 34--Person charged under S.34 must be shown to have consented to the commission of crime--Saving no knowledge that G, his co-accused, had a pistol concealed in the folds of his Shalwar or that G had intention to commit murder--S, held, could not be saddled with sharing common intention with G the -principal accused nor was he constructively liable with him--Benefit of doubt given to S and was acquitted of the charge.

Sultan Ahmad and Abdul Ghani for Appellants.

Javaid Shaukat Malik for the State.

Date of hearing: 30th June, 1987.

.--This Criminal Appeal No.301/1985 and the connected Murder Reference No.136/1985 arise from the judgment of the learned Additional Sessions Judge, Sialkot, whereby he on 11-5-1985 convicted Muhammad Jameel alias Kala (21) and Shakeel alias Mithho 20/21 appellants a/s. 302/34, P.P. C. for the murder of Khushi Muhammad (36) and sentenced them as under:--

(i) Muhammad Jameel to death and a fine of Rs.5,000 or in default thereof two years' R.I. with the direction that the fine if recovered be paid to the legal heirs of the deceased;

(ii) Shakeel to imprisonment for life and a fine of Rs.5,000 in default thereof two years R.I. He was directed to pay Rs.10,000 as compe4nsation or in default thereof six months' R.I.

It may be noted here that although the trial Court directed Muhammad Jameel to pay compensation under section 544-A , Cr.P.C. or in default thereof six months' R.I. yet the Court did not fix the amount of the compensation.

2. The occurrence took place on 18-5-1984 at 3.30 p.m. opposite to the shop of Khushi Muhammad deceased situated in Mohallah Hajipura at a distance of 3/4 furlongs from P.S. (City) Sialkot. The statement EX.P1 of Shabbir Hussain P.W.6, the brother of the deceased was recorded by Bashir Ahmad A.S.I. P.W.10 in the District Headquarters Hospital, Sialkot at 5 p. m. on the same day. Formal F. I. R. Ex. PF was drawn up by Muhammad Malik A.S.I. P.W.3 on the same day at 5.20 p.m. Muhammad Jameel and Shakeel appellants are stated to be friends.

The background of the occurrence as alleged by the prosecution was that a day before the occurrence some girls were going in a tonga in Mohallah Bijlighar of City Sialkot. The appellants and one Tasaddaq Hussain followed them on motor-cycle. Shakeel appellant jumped into the tonga whereupon the girls raised hue and cry. Chand P.W.9 enquired from Shakeel appellant as to why he had done so on which Shakeel abused him. The appellants and Tasaddaq then grappled with him. Khushi Muhammad deceased came out of his shop and separated them: The appellants threatened that they will teach lesson to Chand P.W.Khushi Muhammad asked Chand P.W.9 and the appellants to come to his, shop at 3 p. m. on the next day i.e. the day of occurrence for' reconciliation. On the day of occurrence, Chand P.W.9 went to the shop of the deceased at 3 p. m. Shakeel and Jameel appellants also came there. During conciliation proceedings, the appellants started abusing Chand P.W.9. The deceased told the appellants to behave properly. On this Shakeel appellant challenged the authority of Khushi Muhammad to effect compromise between the parties and raised lalkara' whereupon Jameel appellant took out revolver from the folds of his Shalwar and fired shot hitting Khushi Muhammad on the right side of his abdomen. On receiving the injury Khushi Muhammad fell down. The occurrence was seen by Shabbir Hussain complainant, Abeer Baig P.W.7, Chand P.W.9 and Muhammad Akram (not produced). The aforesaid eye-witnesses apprehended Shakeel appellant' on the spot' who received injuries during the struggle. Muhammad Jameel however made good his escape. Khushi Muhammad was removed to D . H . Q . Hospital Sialkot from where he was shifted to General Hospital, Lahore where he died on 29-5-1984.

3. Dr. Muhammad Saleem P.W.2 medically examined Khushi Muhammad on the day of occurrence at 4.40 P.M. when he was alive. He found:----

"(i) A balckish circular lacerated wound 3 x 3/4 c.m. depth not probed, on the front of left side of abdomen."

The injury was caused by fire-arm and was kept under observation.

On the same day, the doctor examined Shakeel appellant and found following injuries on his person:--

(i) A lacerated wound 2 c.m. x c.m. x scalp deep on the left side of top of head, just near the mid line transversely.

(ii) A lacerated wound 2 c.m. x c.m. x scalp deep adjacent in injury No. l on the left side of top of head obliquely.

(iii) An abrasion 2 c.m. x 2 'c.m. on the front of left side of head.

(iv) An abrasion 1 c.m. x 1 c.m. on the upper lid of left eye."

All the injuries were simple and caused by blunt weapon.

On 18-5-1984 Bashir Ahmad A.S.I. P.W.10 enquired from the doctor as to whether Khushi Muhammad was fit to make statement or not. The doctor replied in negative. On 19-5-1984 Bashir Ahmad A.S.I. again enquired from the doctor as to whether Khushi Muhammad was fit to make statement. The answer was again in the negative. On 20-5-1984 Bashir Ahmad A.S.I. once again enquired from the doctor as to whether Khushi Muhammad was fit to make statement, the answer was in the positive. So, Bashir Ahmad A.S.I. recorded statement Ex. DC of Khushi Muhammad under section 161, Cr.P.C. It may be noted that the statement of Khushi Muhammad a/s 161, Cr.P.C. was wrongly exhibited as Ex.PN at the time of the recording of statement of Bashir Ahmad A.S.I.

Dr. Zaheer Anjam Sherazi P.W.1 conducted post-mortem examination on the dead body of Khushi Muhammad on 20-5-1984. He found following injuries on his person:-----

(1) Surgical wound in left side of unblical region 3 c.m. x 2.5 c.m. with two stitches intact, colostomy was done to that wound and that corresponding to the injury No.1 in the first medico-legal report No.800/84 of Allama Iqbal Memorial Hospital Sialkot, by Dr. Muhammad Saleem C.M.O.

(2) Surgical wound 2 c. m. x 1 c. m. in left iliac fossa.

(3) Surgical stitched wound 27 c.m. long with 35 stitches intact in left peramedian region of the abdomen.

(4) Surgical wound 2 c.m. x 0.5 c.m. in the right iliac fossa.

(5) Surgical wound 0.5 c.m. x 0.25 c.m. on the right side of umblical region."

In his opinion the cause of death was faecal peritonitis secondary to fire-arm injury. Injury No.1 was sufficient to cause death in the ordinary course of nature. The time between injury and death was 10 to 15 days and between death and post-mortem was 18 to 36 hours.

4. Shakeel appellant was apprehended by the complainant and others on the spot and was produced before the police on the same day. Muhammad Jameel was arrested on 21-5-1984 by Bashir Ahmad ASI P.W.10. On 22-5-1984 he led to the recovery of revolver P.1 containing live bullet P.3, missed bullet P.4 and empty P.5, from Ihata of Veran Jattan near floor mills Hajipura vide Memo PH attested by Muhammad Akram P.W.5, Muhammad Yousaf (not produced) and Bashir Ahmad ASI PW.10. The revolver alongwith crime empty and missed cartridge and crime led bullet were sent to Forensic Science Laboratory. It was found that the missed cartridge had been missed by the revolver P.1. As for the crime empty, it was reported that the same could not be compared because the percussion cap of crime empty was perforated and identifiable data was inter-mingled. It was also reported that the led bullet could not be compared with the test bullet because of the lack of sufficient data for identification. The Forensic Science Laboratory report is Ex.PO. The recovery of revolver P.1 is thus of no consequence.

5. To prove its case, the prosecution produced 11 witnesses. Shabbir Hussain PW.6, Abeer Baig PW.7 and Chand PW.9 have given the ocular account of the occurrence. They claim to have heard Shakeel raising lalkara and instigating Muhammad Jameel to fire at Khushi Muhammad. They also claimed to have seen Muhammad Jameel appellant taking out revolver from folds of his shalWar, firing shot, hitting Khushi Muhammad on his abdomen. They also claim to have apprehended Shakeel appellant on the spot. Chand PW.9 has deposed about the background of the occurrence. Muhammad Akram PW.5 and Bashir Ahmad ASI PW.10 have stated that Muhammad Jameel had got recovered revolver P.1 in their presence. Dr. Muhammad Saleem PW.2 has, proved the medico-legal reports of the injury of Khushi Muhammad and injuries of Shakeel appellant. Dr.Zaheer Anjam Sherazi PW.1 has proved the post-mortem examination report of Khushi Muhammad deceased. Bashir Ahmad ASI has also proved statement Ex.DC made by Khushi Muhammad deceased before him. The rest of the evidence is of formal nature.

6. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances. The appellants raised plea of accidental firing. In reply to the question, "Why the witnesses have deposed against you and why this case against you " Shakeel appellant stated:-----

"The PWs being relatives and friends of the deceased and Chand PW have falsely deposed against me. In fact Chand PW used to tease and follow a lady teacher employed in Govt. Primary School in Mohalla Bijligarh. The said lady teacher was resident of village Syedanwali. She had to pass through Hajipura to go to her school. A few days before the occurrence Chand PW came to Mohalla Bijligarh while following that lady teacher. I alongwith Jameel accused slapped him and reprimanded him. This primary school in which she was employed is close to my house. On the day of occurrence, Shabbir Hussain PW had told us that Khushi Muhammad deceased had called us to his shop for compromise whereupon we went to this shop in good faith. We had indicated our apprehension to Shabbir Hussain PW that we might not be assaulted there but he had assured us. When we reached that shop besides Shabbir Hussain, Abeer Baig one Chamma the cousin of Chand and 2/3 other persons were present in that shop. Chamma had remarked tauntingly that we had come there like shameless persons to beg for compromise. I immediately replied that we had come there at the invitation of Khushi Muhammad. We came to know that we had been deceitfully summoned there only .to make an assault upon us. Chhama also tauntingly remarked that whether the lady teacher was my mother whom Chand used to pursue. On this an exchange of abuses took place. Shabbir Hussain and Abeer Baig made an assault upon me with their sotis. I sustained injuries on my head. Chhama fired from his pistol on Jameel co-accused but the bullet missed. Jameel accused attempted to snatch that revolver from him and during that scuffle Khushi Muhammad came out from his shop and the second shot fired by Chhama accidentally hit Khushi Muhammad deceased. Then Jamil snatched the revolver from Chhama and both of us sent to PP 'A' division for reporting the incident from where I was taken to Civil Hospital for medical examination. The present case was registered against us on account of collusion between the complainant and the police party."

Muhammad Jameel adopted the statement made by Shakeel appellant. In defence, no witness was produced. Muhammad Jameel, however, tendered bed ticket Ex. D.D. of the deceased.

7. Learned counsel for the appellants contended that the prosecution has not been able to prove its case beyond reasonable doubt; that the three eye-witnesses are unreliable; that they are capable of making false statement and distorting facts; that there are contradictions and discrepancies in the statements of the eye-witnesses; that the story of the apprehension of Shakeel on the spot and his production before the Investigating Officer on the same day at 6 p.m. is belied by the statement of Shabbir Hussain complainant as well as by the statement of Dr. Muhammad Saleem who examined Shakeel on 18-5-1984 at 5.20 p.m.; that the injuries of Shakeel appellant have not satisfactorily been explained, rather attempts were made to suppress the time and the manner in which Shakeel received injuries; that there was no motive for the appellant to kill Khushi Muhammad who had summoned the parties for reconciliation; that the version of the occurrence told by appellant finds support from the nature of the injuries found on his person; that a false version has been set up by the prosecution to involve the appellants in a murder case and that in the circumstances of the case there is a possibility of the defence being true. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

8. We have given anxious thought 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 statements made by the appellants under section 342, Cr.P.C., bed ticket Ex.DD tendered by Muhammad Jameel appellant and circumstances appearing in the case, with care. We find that there is no dispute with regard to the time of occurrence, place of occurrence, presence of Shabbir Hussain P.W.6 and Abeer Baig P.W.7, the two eye-witnesses, presence of the appellants, presence of Chamma, cousin of the deceased, presence of Mana, the uncle of Muhammad Jameel appellant and about the fact that Khushi Muhammad received injuries by shot fired from a revolver. The parties have, however, given different versions of the incident leading to the assembly of the parties in front of the shop of the deceased on the eventful day and the manner in which Khushi Muhammad received fatal shot. According to the prosecution, a day before the occurrence, some girls were going in a tonga in Mohallah Bijli Ghar, Sialkot City. The appellants and one Tasaddaq Hussain chased them on a motor-cycle. Shakeel appellant jumped into the tonga whereupon the girls raised hue and cry on which Chand P.W.9 reprimanded Shakeel appellant whereupon Shakeel abused him and the appellants and Tasaddaq also grappled with him. Khushi Muhammad deceased separated them and thereafter asked them to come to his shop on the next day for reconciliation. The appellants have given their own version of the earlier incident. According to them Chand P.W.9 used to tease and follow a lady teacher employed in Government Primary School in Mohalla Bijligarh. A few days before the occurrence Chand P.W.9 was following, the lady teacher when the appellants reprimanded and slapped him. On the day of occurrence Shabbir Hussain P.W. conveyed them message of Khushi Muhammad deceased asking them to come to his shop for compromise with Chand P.W. As for the death of Khushi Muhammad, the prosecution case is that during the conciliation proceedings, the appellants started abusing Chand P.W. whereupon the deceased told them to behave properly. On this Shakeel appellant challenged the authority of Khushi Muhammad to effect compromise between the parties and simultaneously instigated Jameel appellant to fire at the deceased whereupon Muhammad Jameel took out revolver from the folds of his shalwar and fired a fatal shot on the deceased. According to the defence version when the appellants reached the shop of Khushi Muhammad, they found that Shabbir Hussain, Abeer Baig and Chamma, the cousin of Chand P.W.9 were present there. Chamma tauntingly said that the appellants had come there like shameless persons to beg for compromise and also inquired from them as to whether .the lady teacher whom Chand P.W. used to pursue was the mother of Shakeel appellant. This led to exchange of abuses between them. Shabbir Hussain and Abeer Baig P.Ws. opened attack on then with their sotis and injured Shakeel appellant. Chamma fired from his pistol on Jameel appellant but the shot missed. Muhammad Jameel then tried to snatch revolver from him and it was during that scuffle that Khushi Muhammad came out from his shop and was hit accidentally by second shot fired by Chamma. Muhammad Jameel appellant then snatched revolver from Chamma and went to Police Post 'A' Division for reporting the incident from where he was taken to Civil Hospital for medical examination.

9. Keeping in mind the well known principles for the appreciation of evidence in cases of rival versions, we propose to discuss the prosecution case first in order to arrive at an independent opinion with regard to the truth or falsity of the prosecution case and its evidence more particularly, the ocular testimony. In case we disbelieve the prosecution case or the ocular evidence as a whole, we may accept the statements of the appellants recorded under section 342, Cr.P.C. in entirety, and if the prosecution case or the ocular evidence is not discarded we will then review the entire evidence and circumstances at the close. All the factors favouring belief in accusation will be placed in juxtaposition to the corresponding factors favouring the plea of defence and if we find that version of the accused is established or it is even reasonably possible then they would deserve its benefit.

10. Starting with the foundation of the prosecution case i.e. FIR, we find that it is a case, of promptly lodged FIR which contains the names of appellants, the names of the eye-witnesses, the weapon used by Muhammad Jameel in the occurrence, the part played by Muhammad Shakeel, the background of the occurrence and the manner in which Khushi Muhammad was done to death. There is nothing on the file to show that the F.I.R. was not prepared at the time and place as it purports. It seems to us that the F.I.R. is a genuine document which can be used to corroborate the statement of the complainant .

11. Taking up the ocular testimony, we find that the presence of Shabbir Hussain P.W.6 and Abeer Baig P.W.7 is an admitted fact. The name of Chand P.W.9 is mentioned in the promptly lodged F.I.R. Had he not witnessed the occurrence, his name might not have appeared in the F.I.R. which was lodged after one hour and 20 minutes of the occurrence. The aforesaid eye-witnesses had not previous enmity with the appellants to involve them falsely in the case. They have successfully faced the test of cross-examination. Nothing damaging to their veracity could be elicited in the cross-examination. The occurrence took place in the light of the day. The appellants were previously known to the eye-witnesses and as such, the eye-witnesses were in a position to identify them. The number of the injuries found on the person of the deceased and the number of the assailants named by the eye-witnesses commensurates. The injuries found on the person of Shakeel have been explained in the F.I.R. In any case the possibility that the eye-witnesses and others might have given beating to Shakeel after having apprehended him on the spot, cannot be excluded. We, do not see any infirmity in the statements of the eye-witnesses, which are in consonance with the probabilities and also materially fit in with the rest of the evidence. The statements made by them do not suffer from material contradictions, major discrepancies and dishonest improvements. The mere fact that Shakeel appellant was examined by the Doctor at 5.20 p.m. on the same day, does not falsify the claim of the prosecution that Shakeel appellant was apprehended on the spot. The possibility that Shakeel appellant received injuries when he was overpowered by the eye-witnesses or that he was injured after he was apprehended on the spot by the eye-witnesses and the people who might have collected there, after the occurrence, is very much there. Even otherwise, the statements of the eye-witnesses cannot be thrown out on account of their failure to give satisfactory explanation of the injuries of Shakeel appellant. We feel that the ocular account of the occurrence given by Shabbir Hussain P.W.6, Abeer Baig P.W,7 and Chand P.W.9 and the background of the occurrence stated by Chand P.W. is not open to doubt.

12. Adverting to the defence version, we find that the appellants have not been able to establish their version of the earlier incident as well as of the main occurrence. Neither they led any evidence to prove their version, nor the same is spelt out from the prosecution case. Admittedly Mana, maternal-uncle of Shakeel appellant was present at the time of main occurrence, yet he was not produced to support the defence version of the occurrence. The lady teacher who was allegedly followed by Chand P.W.9, a few days before the occurrence was also not produced to support the earlier, incident alleged by Shakeel appellant. So we are of the view that the appellants have not been able to establish their case. We find that there is also no reasonable possibility of the defence version being true. Shabbir Hussain P.W.6 is brother of the deceased. Maternal-aunt of Shakeel appellant is wife of Abdul Aziz, first cousin of Khushi Muhammad deceased. Shakeel appellant in his statement recorded under section 342, Cr.P.C. has admitted this relationship. Shabbir Hussain P.W.6 claims to have seen Muhammad Jameel appellant taking out revolver from the folds of his shalwar and simultaneously firing on Khushi Muhammad hitting him on his abdomen. Had he not seen him causing death of Khushi Muhammad he would have certainly not deposed against them. On the other hand, had the complainant party been aggressor or had Chamma killed the deceased then Shabbir Hussain P.W. who is real brother of the deceased would have certainly named him as murderer. We see no reason for substitution of the appellants in place of real culprits. Furthermore, no foundation for establishing the theory of substitution of the appellants in place of the real offenders has been laid down. The defence version was also not put forth at the earliest, i.e. during investigation. The revolver which was allegedly snatched by Muhammad Jameel appellant from Chamma was not produced before the place either. The submissions made by the learned counsel challenging credibility of the prosecution witnesses regarding manner of the occurrence are not weighty. The learned trial Court appears to have applied its conscious mind to the relevant evidence and given sound and cogent reasons for believing the prosecution case and also for disbelieving the defence version.

13. We now proceed to determine the criminal liability of the appellants. According to the prosecution, Muhammad Jameel appellant caused the death of Khushi Muhammad. The kind of weapon used and the part of the body of the deceased selected for inflicting injury by him shows that the appellants had no other intention but to kill him. The case of Shakeel appellant appears to be little different. He did not cause any injury to the deceased. Muhammad Jameel had concealed the revolver in the folds of his shalwar and had pulled it out immediately before the fired at the deceased. Shakeel does not appear to be having prior knowledge about carrying of revolver by co-accused or his intention to murder the deceased, therefore, he cannot be saddled with sharing common intention with Jameel, the principal accused. In the FIR lodged by Shabbir Hussain P.W.6, the real brother of the deceased, it has been stated that:

It is thus very much obvious that in the FIR which always gives first impression of the prosecution case, it has not been stated that Shakeel appellant had asked Muhammad Jameel to fire at the deceased. It is well-established that persons charged under section 34, P.P.C., must have consented to the commission of crime committed. The' presence as well as the arrest of the accused on the spot does not justify his being imputed with necessary intention in the circumstances of the case. Murder of Khushi Muhammad by Muhammad Jameel appellant seems to us an individual act and Shakeel is not constructively liable with him.

14. This brings us to the question of sentence of Muhammad Jameel appellant. We have considered this question with utmost care. We do not see any mitigating/ extenuating circumstance in his favour for lesser penalty. He killed Khushi Muhammad, an innocent person without any excuse.

The upshot of the above discussion is that while giving the benefit of doubt, Shakeel appellant is acquitted of the charge, and there being satisfactory basis to uphold the conviction and sentence of Muhammad Jameel appellant, the appeal to his extent is dismissed. Shakeel appellant is on bail, he stands discharged of the bail bonds.

THE SENTENCE OF DEATH IS CONFIRMED.

K . B . A . / S-94/ L Appeal partly accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.