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Criminal Appeal No.81 of 1985, decided on 3rd August, 1987.
---S.302--Recoveries--No empty was recovered from spot and crime guns were not sent to Forensic Science Laboratory--Recoveries of guns, held, could not be considered as corroborating evidence against accused; in circumstance.--[Recovery].
--S.302--Evidence, appreciation, of--F.I.R. promptly lodged and containing all details of occurrence--One of eye-witnesses suffering grievous gunshot injury while the other two having no enmity to falsely implicate accused in crime--Accused coming armed with guns and hatchet, indicating some prior quarrel between parties--Conviction under 5.302, P.P.C. maintained, in circumstances.
---S.302--Sentence, reduction in--Complainant party having enough time to have recourse to law but instead of initiating legal proceedings coming to spot to object to cutting of fodder by accused--What precisely happened immediately before occurrence, not borne out from record- Sentence of death, held, was uncalled for in circumstances and reduced to imprisonment fore.
---S.307--Sentence, reduction in--Accused fired only one shot at prosecution, witness--Sentence of 7 years' R.I. reduced to 5 years' R.I., in circumstance.
Abdul Sattar Chughtai for Appellants.
Kh.Muhammad Asghar for the State.
Date of hearing: 3rd August, 1987.
--In brief the facts of this case are that Saee Muhammad and his brother Ahmad Khan accused cultivated land, measuring about three Killas in village Kot Umrana since about three years before the present occurrence, as tenants under Muhammad Inayat complainant. Bajra crop had been sown in one Killa while the remaining two killas were kept vacant for grazing of cattle. About two days before this occurrence Muhammad Inayat complainant told Saee Muhammad and Ahmed Khan that he. would not permit them to cut Bajra crop till they cultivate the remining two killas of Banjar land. This resulted in exchange of hot words between them. Saee Muhammad and Ahmad Khan stated that they would forcibly cut Bajra crop.
On 29-9-1983 at about 11 A.M. Muhammad Aslam P.W. informed Muhammad Inayat complainant that Saee Mohammad, Ahmad Khan and Noor Muhammad accused while armed were cutting the Bajra crop. At this Muhammad Inayat complainant accompanied by Mubara deceased, Muhammad Aslam P.W. and Malik P.W. went towards the Bajra field. When they reached near Rajbah Bhabbra, in the village, the accused stopped cutting Bajra and Saee Muhammad armed with D.B. gun, Ahmad Khan with S.B. gun and Noor Muhammad armed with hatchet rushed towards them. Noor Muhammad shouted a lalkara. Saee Muhammad fired a shot at Muhammad Inayat who took shelter behind Rajbah and was not hit. The second fire by Saee Muhammad hit Mubara on his left eye. He fell down. Ali mad Khan fired injuring Muhammad Aslam on his right bicep and back. He also fell down. Saee Muhammad then fired another shot at Muhammad Inayat complainant who was not hit. The occurrence was witnessed by Muhammad Aslam and Malik P.Ws. Mubara died at the spot as a result of injury. Many other villagers also reached there. Muhammad Aslam was taken to Civil Hospital for treatment and examination by Akbar and Manzoor who had reached the spot after the occurrence.
Muhammad Inayat complainant P.W.11 leaving the dead body of Mubara at the place of occurrence went to police station Kot Moman District Sargodha about 10 miles from the place of occurrence and lodged FIR Ex.PK on the same day at 1 P.M. which was recorded by S.I. Muhammad Aslam P.W.14.
2. The police after registration of the case undertook investigation. The dead body of Mubara, a middle aged man, after necessary formalities, was sent for post-mortem examination which was conducted on 30-9-1983 at 7 A.M. by P.W.7 Dr.Mazhar Rashid. The medical officer on external examination of dead body found "a lacerated wound 4 cm x 31 cm with blackening on the left side of face alongwith left side of nose 1 cm below left eye". On dissection it was noted that the injury was going deep and the muscles on the left side of face were badly lacerated. There was extensive communicated fracture of left maxilla. The mandible was also fractured in middle. The left tempero-mandibular joint was found dislocated. The injury extended up to lower part of foramen magnum. The back of neck in the upper part had extensive laceration with collecting of blood of the muscles in the upper cervical region. The second and third cervical vertebrae were badly fractured into multiple small pieces. The muscles,, ligaments and spinal cord were extensively damaged. Two bullets were removed from vertebrae. The death was due to the shock and haemorrhage as a result of-the above mentioned injury, which was sufficient in the ordinary course of nature, to cause death. The injury had been caused by fire-arm the time between injury and death was immediately, and post-mortem was conducted after about 24 hours of death.
The same medical officer on 29-9-1983 at 2.45 P.M. medically examined Muhammad Aslam P.W. and noted 7 circular and lacerated wound a of various dimensions on the outer aspect of right upper arm and back of right chest. Injuries No.5 to 7 on back of right chest had blackening around the margins of wounds while injuries 1 to a on right upper arm had no blackening around the wounds. These injuries had been caused by fire-arm and kept under observation. The patient was under shock. The injuries were fresh. The injuries were X-rayed by Dr. Rafi Ullah P.W.13 who gave his report Ex.PF/1 on the basis of which injury No.5 on back of right chest was declared grievous.
3. S.I. Muhammad Aslam PW 14 during inspection of the place of occurrence on 29-9-1983 collected blood-stained earth vide memo Ex. PC . where Mubara had fallen and vide memo Ex.P.D. where Muhammad Aslam PW had fallen after receipt of injuries. He also took in possession a bundle of cut fodder vide memo Ex.P.N.
The three appellants were arrested on 22-10-1983.
Ahmad Khan accused while in police custody on 22-10-1983 led to the recovery of gun P.5 from his house which was taken in possession by S.I. Muhammad Aslam P.W.II vide memo Ex.P.G. attested by Akbar PW.10 and Muhammad Bakhsh PW (not examined). At about the same time Noor Muhammad accused while in police custody led to the recovery of blood-stained hatchet P.6 from his house vide memo Ex.PH in presence of same witnesses.
On 31-10-1983 (wrongly stated by S.I. Muhammad Aslam PW.14 during trial as on 22-10-1983), Saee Muhammad accused while in police custody during police remand led to the recovery of D.B. gun P.10 and two live cartridges P.11/1-2 which were taken in possession by S.I. Muhammad Aslam PW.14 vide memo Ex.PL attested by Muhammad Inayat PW 11 and Malku PW not examined.
The two guns P.5 and P.10 were not sent to the Forensic Science Laboratory for examination. No crime empty was recovered from the place of occurrence. The hatchet P.6 was also not sent to the Chemical Examiner/ Serologist.
During investigation of the case the complainant Muhammad Inayat alleged that the three accused-appellants committed the crime under instigation of Muhammad Nazir, Shera and Mutalli. They were made to join investigation. The police found them innocent and placed their names in column No.2 of the challan.
The accused were challaned after completion of the investigation.
4. In support of its case prosecution examined 14 witnesses in all. Muhammad Inayat PW 11 and Muhammad Aslam PW 12 were examined as eye-witnesses of the occurrence. Malik another witness named in FIR was given up as unnecessary. The incriminating recoveries were witnessed by Akbar PW 10 and Muhammad Inayat PW 11. The medical evidence was furnished by Dr.Mazhar Rashid PW.7 and Dr. S.M. Rafiullah PW.13 as given in detail above. The case was Investigated by S.I. Muhammad Aslam PW.14. The evidence of the rest of witnesses was of formal nature.
The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. They admitted being tenants under Muhammad Inayat but denied that only one acre was cultivated. They denied their presence at the spot or having committed the offence. They did. not produce any witness in defence.
The learned Sessions Judge Sargodha acquitted Muhammad Nazir 25, Shera 32 and Muttali 25 accused as there as no evidence against them. ' Noor Muhammad 30 .gas also acquitted because he had caused no injury to the deceased or Muhammad Aslam P.W. The learned Sessions Judge placed reliance on the evidence of the eye-witnesses, incriminating recoveries and motive and vide the impugned judgment dated 22-12-1984 sentenced Saee Muhammad 30 to death plus fine of Rs.2,000 or in default one year R.I. under section 302 P.P.C. for the murder of Mubara deceased. It was ordered that the fine, if recovered, will be paid as compensation to heirs of the deceased. Ahmad Khan 25 was sentenced to suffer 7 years R.I. and fine of Rs.2,000 or in default one year R.I. under section 307 P.P.C. for murderous assault on Muhammad Aslam PW. It was ordered that the fine if recovered will be paid as compensation to Muhammad Aslam PW. Hence, this appeal.
Saee Muhammad appellant having been sentenced to death the proceeding are also before' us for confirmation of sentence. This judgment will dispose of both the matters together.
5. It is contended on behalf of the appellants firstly, that prosecution has failed to prove motive against the accused. Secondly, that the incriminating recoveries could not be considered as corroborating evidence in this case and thirdly, that it appears that Mubara deceased after jumping over the Rajbah (water channel) reached near the accused who in view of the incident that took place two days earlier might have fired apprehending danger to their lives. It was, therefore, argued that the prosecution has failed to prove its case against the appellants and that in any circumstance it was not a case justifying capital sentence to Saee Muhammad. The learned counsel for the State controverted the above contentions.
6. The main objection to the evidence on motive was that according to Mushtaq Ahmad Patwari PW 4 there was no entry in the Revenue Record indicating Bajra crop in Killa Nos.20/1 or 20/2. Secondly the cut fodder was not exhibited or produced in Court during trial. Thirdly, according to Muhammad Aslam PW 12, Muhammad Inayat had asked him and others to go to the spot to tell the accused not to cut Bajra from the field. The learned counsel, therefore, argued that there was no Bajra crop at the place of occurrence and as such the prosecution has failed to prove motive against the accused. We are not inclined to agree with the learned counsel. It was stated by Mushtaq Ahmad Patwari PW 4 that he omitted inadvertantly to record Bajra crop in Killa Nos.20/1 and 20/2 although its presence was noted in Killa No.21. This witness clearly slated that there was Bajra crop in Killas, No.20/1 and 20/2. The investigating officer during inspection of the place of occurrence took in possession a bundle of cut fodder vide memo Ex.PN. It is correct that the said fodder was not produced during the trial but in our view this will have no effect on the merits of the case because fodder was a perishable commodity and could, therefore, not be produced in Court. The evidence on motive was furnished by Muhammad Inayat PW.11 who admittedly was owner of the land under tenancy of the accused. There could be no better witness than Muhammad Inayat himself. It was stated by the complainant that there was exchange of hot words between him and the accused about 2 days earlier. The fact that the accused were armed with guns and hatchet at the time of occurrence lends support to the inference that there must have been some quarrel between the parties before the present occurrence on account of which they thought it proper to come armed to the field to cut Bajra crop. The sickle was not taken in possession by the investigating officer but this omission did not mean that the accused did not cut fodder on the day of occurrence. In our view prosecution successfully proved motive against the accused.
The incriminating recoveries were witnessed by Munammad Akbar PW 10 and Muhammad Inayat PW.11. In our view these recoveries are of no consequence in this case firstly, because the hatchet P.6 was not found stained with human blood. It was stated to be with Noor Ahmad acquitted accused who did not cause any injury to the deceased or Muhammad Aslam PW during the occurrence. The investigating officer did not find any crime empty at the spot during inspection of the place of occurrence. The guns were not sent to the Forensic Science Laboratory for examination. In our view the recoveries of Guns cannot be considered as corroborating evidence against the accused.
The eye-witness account has been furnished by Muhammad Inayat PW.11 and Muhammad Aslam PW 12. Mubara deceased was the son of a cousin of Muhammad Inayat PW while Aslam PW was the son of a paternal-aunt of Muhammad Inayat PW. The two eye-witnesses were closely related to the deceased but had no enmity against the accused to falsely implicate them in this case. It was suggested to Muhammad Inayat PW that "the motive about Bajra has been invented and in fact the rival parties had a fight on account of election rivalry." This witness admitted that there was Local Council Elections in the country a day prior to the occurrence. The learned counsel, therefore, argued that Mubara and Muhammad Aslam got injured during that cross firing between the rival candidates of Local Council Elections. This argument is without any merits. We do not find any circumstance or indication in evidence to conclude that there was any firing between rival parties of election on the day of occurrence. The learned counsel argued that the presence of Inayat PW at the time of occurrence was doubtful firstly, because he did not receive any injury and secondly, that according to Muhammad Aslam PW Muhammad Inayat had directed him to go to the Bajra field to ask the accused not to cut the crop. This argument is without any force. It is correct that Muhammad Aslam PW 12 stated that "Inayat PW told us to go there to tell the accused not to cut his crop" but in the very next sentence he stated that "accordingly, 1, Malku PW, Inayat PW and Mubara deceased started for the said field." It could, therefore, not be inferred from his statement that Inayat PW was not present at the spot at the time of occurrence. It is correct that Inayat PW was not injured during the occurrence but this fact alone would not mean that he was not present there. Muhammad Aslam PW was injured during the occurrence by fire-arm. One of his injury was grievous and on vital part of the body. His presence at the spot at the time of occurrence could therefore, not be questioned. Both the witnesses had no enmity to falsely implicate the accused in this case. The occurrence took place at about 11 A.M. and the matter was reported at the police station, about ten miles from the place of occurrence, at 1 P.M. i.e. after about two hours of the occurrence. There was no delay in lodging of the FIR which contained all the details of the occurrence. We, therefore, do not find any reason to exclude the evidence of these eye-witnesses from consideration.
The learned counsel argued that the sentence of death awarded to Saee Muhammad appellant was not justified in the facts and circumstances of this case. It was contended that according to prosecution case there was quarrel between Muhammad Inayat complainant and the appellants about two days before this occurrence. The accused in spite of that incident started cutting the disputed Bajra crop. The complainant party went to the place of occurrence which gave apprehension to; the appellants that they might not get grievously injured at the hands of the complainant party and as such they were justified to fire at them,. We have considered this contention. According to the prosecution case there was some quarrel between Muhammad Inayat complainant and the two appellants about two days before this occurrence. It seems that apprehending some danger at the hands of the complainant party the two appellants went, to the field to cut Bajra crop armed with guns. The complainant party came to know that the appellants were cutting Bajra crop against their instructions and without bringing the two barren Killas under cultivation. They, therefore, went to the place of occurrence to desist the accused from cutting the Bajra crop. Mubara deceased went close to the accused. He was not armed at that time. The complainant party had enough time to have recourse to law but instead of initiating legal proceedings they went to the spot to object to the cutting of fodder by the accused. It is not borne out from the record as to how the occurrence started and as to what precisely happened immediately before the occurrence. In view of these circumstances we are of the view that the sentence of death was uncalled for in the facts and circumstances of this case.
7. In view of the above discussion we find no merit in this appeal which is accordingly dismissed. We maintain the conviction of Saee Muhammad appellant under section 302 but reduce his sentence from death to imprisonment for life. The sentence of fine is maintained. The sentence of death is not confirmed. The conviction of Ahmad Khan appellant under section 307, P.P.C. is maintained. He fired only one shot at Muhammad Aslam PW. We, therefore, reduce his sentence of imprisonment from 7 years' to 5 years R.I. His sentence of fine is also maintained, Both the appellants will be given benefit of section 382-B Cr.P.C. Ahmad Khan appellant is on bail. He will surrender to-undergo the unexpired imprisonment.
S.G.D./S-108/L Order accordingly
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