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Criminal Appeal No.627 of 1982 and Murder Reference No. 3 of 1983, heard on 11th November, 1986.
---S.302--Eye-witnesses having no motive to falsely implicate accused- Presence of eye-witnesses at spot at relevant time well explained--Names and other particulars of witnesses were mentioned in first information report which was promptly lodged--Eye-witnesses account corroborated by medical evidence as well as by dying declaration which rang true, having been recorded by Magistrate in presence of doctor on same day when occurrence took place--Prosecution case standing established against accused beyond all shadows of doubt--Conviction maintained in circumstances.
---S. 302--Sentence--Immediate cause of occurrence shrouded in mystery--Sentence of death reduced to imprisonment for life. [Sentence].
---S. 32--Dying declaration need not be a narrative of all facts--Dying declaration has only to state cause of death and other unnecessary omissions are immaterial.
---S. 301--Acquittal--Deceased dying of a fire-arm injury attributed to main accuse d--Co-accused alleged to be armed with pistols but not firing any shot even ineffectively at deceased- -Co-accused were only attributed Lalkara and they, held, bicycle of deceased--Prosecution failing to show any pre-concert of premeditation between accused in doing away with deceased--Acquittal of co-accused by Trial Court giving benefit of doubt upheld.
Zafar Pasha Chaudhary and Ijaz Hussain Batalvi for Appellant.
Ehsan Lilla for the State.
Dates of hearing: 8th, 10th and 11th November, 1986.
--Haq Nawaz son of Ghulam Muhammad, aged 24 years, was tried alongwith Ghulam Muhammad son of Allah Bakhsh, aged 23 years, and Ata Muhammad son of Muhammad Zaman, aged 22 years, for the murder of Iftikhar Ahmad deceased. The learned Sessions Judge, Mianwali by his judgment dated 4-12-1982 convicted Haq Nawaz under section 302, P.P.C. and sentenced him to death and a fine of Rs.10,000 or in default to undergo 5 years' R.I. with the direction that the amount of fine shall be paid to Gul Muhammad P.W.8, father of the deceased as compensation. Ghulam, Muhammad and Ata Muhammad were, however, given the benefit of doubt and acquitted.
We have before us, the reference made by the learned Sessions Judge, Mianwali for confirmation of the death sentence of Haq Nawaz, the appeal filed by him (Crl. Appeal No. 627 of 1982) and the revision No. 823 of 1984 filed by Ghulam Habib against the acquittal of Ghulam Muhammad and Ata Muhammad. All the matters are being disposed of by this judgment.
2. The prosecution case is that on 3-6-1980 at about 8 a.m. Gul Muhammad P.W.8 (the complainant) and his son Iftikhar Ahmad deceased were proceeding to Mochh on bicycles. They were being followed by Muhammad Ishaque P.W.9. When they reached the boundary line between Mochh and Basti Shah Gul Muhammad Wali, they were stopped by Haq Nawaz appellant, Ghulam Muhammad and Ata Muhammad accused (since acquitted). All of them were armed with .12 bore pistols. Ghulam Muhammad and Ata Muhammad declared that they would not spare him alive whereupon Haq Nawaz appellant fired a pistol shot hitting the deceased in his abdomen. He fell injured whereafter the accused left the spot. The occurrence was witnessed by Muhammad Ishaque P.W.9 and Ghulam Habib P W.10 besides Gul Muhammad P.W.8, father of the deceased.
The motive for the occurrence was that Sher Gul a relation of the accused suspected Iftikhar Ahmad deceased of maintaining illicit intimacy with his daughter Mst. Azizan. A year prior to the occurrence Ghulam Muhammad accused had abused Gul Muhammad P.W.8 declaring that he would take revenge from him by insulting his daughter. On the following day Gul Muhammad P.W.8 caused knife injuries to Ghulam Muhammad accused for which he alongwith his son Iftikhar Ahmad deceased was challaned under section 324, P.P.C. but were acquitted as a result of compromise with Ghulam Muhammad accused. On account of the said enmity the accused are alleged to have injured Iftikhar Ahmad deceased which later resulted in his death.
The deceased was removed to Mianwali hospital in an injured condition by his father Gul Muhammad P.W.8.
Gul Muhammad P.W.8 reported the matter to the police on the same day at 9-30 a.m. by making statement Exh.P.N to S.I. Rafiq Ahmad Khan P.W.11. After recording the statement S.I. Rafiq Ahmad Khan proceeded to the hospital and met Dr. Muhammad Akram Khan Niazi P.W.7 who told him that in view of the precarious condition of Iftikhar Ahmad his dying declaration be recorded. Consequently, the S.I. drafted application Exh.P.Q. and presented it before the A.C. Mianwali who deputed Mr. Muhammad Naseem Sipra, M.I.C. Mianwali P.W.13 for recording the dying declaration. After completing the necessary formalities Mr. Muhammad Naseem Sipra, M.I.C . recorded the dying declaration Exh.P.Z. of Iftikhar Ahmad deceased in the presence of Dr. Muhammad Akram Khan Niazi P.W. It was read over to him who thumb marked the same in token of its correctness. The certificate of the Magistrate is Exh. P. A./1.
3. S. I. Rafiq Ahmad Khan P.W.11 arrested the appellant on 7-6-1980. On the same day Haq Nawaz appellant led to the recovery of pistol P.5 and two live cartridges P.5/1-2 from the Chhapar of his residential Haveli through memo. Exh.P.E. attested by Muhammad Zaman P.W.5 and Muhammad Siddique (not examined).
Ata Muhammad and Ghulam Muhammad accused were arrested on 9-6-1980. Ghulam Muhammad led to the recovery of pistol P.6 on 11-6-1980 through memo. Exh.P.F. attested by Ghulam Habib P.W.6 and Ghulam Muhammad (not produced). Ata Muhammad accused also led to the recovery of pistol P.7 on the same day through memo. Exh.P.G. attested by the aforementioned witnesses. Since the accused failed to produce any licence for the pistols they were, therefore, separately challaned under section 13 of the. Arms Ordinance. It would not be out of place to mention that they were separately tried under the Arms Ordinance and were convicted by the learned trial Court on 4-12-1982 for which they have filed separate appeals which shall be disposed of through separate judgments.
Iftikhar Ahmad died in the hospital on 13-6-1980. On receiving an intimation to that effect S.I. Rafiq Ahmad Khan P.W.11 proceeded to the hospital and prepared the injury statement Exh.P.S. and inquest report Exh.P.T. of the deceased. After completing the investigation he challaned the accused.
4. Dr. Muhammad Aukraai Khaki P.W.7 examined Iftikhar Ahmad deceased, aged 20/21 years, on 3-6-1980 at 10-15 a.m. and found the following injuries on his person: --
(1) A fire-arm wound of entry 3 c. m. x 3 c.m.' 'with ' black edges, intestine was coming out of the right side of the abdomen. The injury was 3 c. m. from umbilicus and 2 c. m. from mid-line. Shirt and Bunian had corresponding cut marks and blackening.
(2) Abraided blackened area 2 c. m. x 2 c. m. on the right iliac fossa.
Injury No.1 was caused by a fire-arm while injury No.2 was caused by blunt weapon and was simple in nature. Injury No.1 was declared dangerous to life vide operation note dated 3-6-1980. He also conducted autopsy on the dead body of Iftikhar Ahmad deceased and found the above-mentioned injuries on his body. Left side pelvic bone was found fractured at three places. Six pellets were found from muscles of left buttock. Death was due to shock, internal haemorrhage peritonitis, jaundice caused by fire-arm wound. Probable time between injury and death was 11 days while that between death and post-mortem about 3 hours and 10 minutes.
5. The accused pleaded not guilty to the charge and denied the prosecution allegations.
Haq Nawaz appellant denied his relationship with Ghulam Muhammad but, however, admitted his relationship with Ata Muhammad accused. He also denied his relationship with Sher Gul father of Mst. Azizan with whom the deceased was suspected of maintaining illicit intimacy. He denied any knowledge about the suspicion of illicit intimacy between the deceased and Mst. Azizan. He also denied knowledge about the alleged compromise between the complainant and Sher Gul. He admitted the quarrel taking place between Ghulam Muhammad accused and Iftikhar deceased during the volleyball game and Ghulam Muhammad receiving injuries at the hands of Iftikhar Ahmad deceased and the registration of case against Iftikhar Ahmad deceased and his father but he stated that he had no concern with Ghulam Muhammad accused. He, however, admitted that his brother Rab Nawaz was an eye-witness in the said case against Iftikhar Ahmad deceased and his father. He attributed the case to enmity and stated that the deceased had been injured during the small hours of the morning by some unknown persons when he was alone and that the eye-witnesses had been set up on account of their relationship with the deceased. He did not call any evidence in defence but tendered in evidence attested copies of the F.I.Rs. Exhs.D.C., D.D. and D.E.
Ghulam Muhammad accused did not deny the quarrel taking place between him and Iftikhar deceased and subsequently receiving injuries at the hands of the deceased and the registration of case against the deceased and his father Gul Muhammad. According to him, the said case was compromised as he had received Rs.2,000 as compensation from Gul Muhammad.
Ata Muhammad accused stated that he had no concern with Ghulam Muhammad accused. He, however, admitted his relationship with Haq Nawaz appellant. He stated that he had been falsely implicated because Rab Nawaz his relative was one of the accused in the murder case of Fateh Muhammad father of Ghulam Habib P.W. and that he was also a witness against Gul Muhammad complainant in the case under section 324, P.P. C. got registered by Ghulam Muhammad accused.
6. The learned trial Court found that the prosecution had successfully established the motive. The dying declaration of the deceased was also found to be true. The presence of the eye-witnesses at the spot was also accepted. The recoveries of the pistols from the accused were also fund proved. In consequence, the trial Court convicted and sentenced Haq Nawaz appellant as described above but acquitted Ghulam Muhammad and Ata Muhammad accused of the charge by giving them benefit of doubt. The trial Court was of the view that the prosecution had failed to show any preconcert or pre-meditation between Haq Nawaz appellant and the acquitted accused.
7. Learned counsel for the appellant has assailed the judgment of the trial Court on a number of grounds. According to him the occurrence did not take place at 8 a. m. but took place much earlier and that there has been an interpolation in the F.I.R. about the time of occurrence. He states that there had been an outstanding enmity between the parties. According to him Haq Nawaz was not at all concerned with the previous incidents taking place between the parties and was not related to Ghulam Muhammad accused who had received injuries at the hands of Gul Muhammad P.W. His relationship with Sher Gul father of Mst. Azizan is also denied. According to him the eye-witnesses were chance witnesses and close relations of the deceased. Gul Muhammad P.W.8 is father of Iftikhar deceased, Muhammad Ishaque P.W.9 is first cousin of the mother of the deceased while Ghulam Habib P . W.10 is married to a sister of the deceased. The dying declaration is also challenged on the grounds that it lacks material details and does not even mention the names of the eye-witnesses or the details of enmity existing between the parties. It is stated that recovery of pistol being unconnected is without any significance.
8. We have considered the contentions of the learned counsel for the appellant. No doubt the eye-witnesses examined by the prosecution are closely related inter se but in the absence of any motive to falsely implicate the appellant their testimony cannot be discarded. They cannot be termed as interested witnesses because they had no motive to falsely implicate, the appellant. Rather they had been very fair that they did not attribute any firing to the acquitted accused and merely stated that though armed with pistol, they simply raised Lalkaras. Their presence at the spot at the relevant time stands well explained. According to Gul Muhammad P.W.8 he was accompanying the deceased when the occurrence in question took place and were going to make purchases for their shops. He stated that Muhammad Ishaque P.W. was following them at that time. The names and other particulars of the eye-witnesses find mention in the F.I.R. which was promptly lodged. No substance appears in the contention of the learned defence counsel that there has been an interpolation in the F.I.R. about the time of occurrence. According to him, the occurrence had taken place at Fajar time but it was shown to have taken place at 8 a.m. to obliterate any chance of mistaken identity of the assailants in the dark hours of the morning. The time of occurrence is not only mentioned at the top of the F.I.R. but also in the main body. There is a consistency about the time of occurrence at both the places and no interpolation whatsoever appears anywhere. The F.I.R. was lodged 9-30 a.m. soon-after despatching the injured to the hospital. There was thus, no time at the disposal of the complainant to make deliberations and consultations. The eye-witnesses stand corroborated by the medical evidence. According to them the deceased was fired at by Haq Nawaz from a close range. The presence of blackening around the wound and on the shirt and Bunian of the deceased lends corroboration to their testimony. The dying declaration further corroborates their testimony. It was recorded on the same day on which the occurrence in question had taken place by Muhammad Nasim Sipra, Magistrate 1st Class. According to him, it was recorded in the presence of Dr. Muhammad Akram Khan and that he had made sure that none of the relatives of the deceased was present at the time of recording it. No doubt, it is very brief and concise and does not even mention the names of the witnesses who were accompanying the deceased at the relevant time but considering the pain and agony in which he would have been at that time the said omissions do not materially detract from the value of his statement. The dying declaration need not be a narrative of all the facts. The law requires it only to state the cause of his death and other unnecessary omissions are immaterial. According to Iftikhar Ahmad deceased he was fired at by Haq Nawaz while he and other accused were grappling with him. The presence of blackening around the wound confirms that the firing had been made from a close range and as such he would not have faced any difficulty in identifying his assailant. The dying declaration was recorded by a Magistrate against whom there exists no material on record to discredit him. There is nothing to question his integrity. He had no reason to record it falsely. The doctor in whose presence it was recorded also confirms it that it was as per dictation of the deceased. It, therefore, rings true and thus was rightly acted upon by the trial Court.
9. The argument of the learned defence counsel that Haq Nawaz appellant had no concern at all with the earlier incidents taking place between the deceased and his father on one side and Ghulam Muhammad accused on the other is not convincing. According to him, Haq Nawaz appellant is not connected with Ghulam Muhammad in any manner. This assertion stands belied by the statement of Gul Muhammad P.W.8 who stated that Ghulam Muhammad accused is a Phoophizad of Haq Nawaz appellant and that the maternal-grand mother of Haq Nawaz appellant was the real sister of the mother of Ata Muhammad accused. Rab Nawaz a brother of Haq Nawaz appellant was an eye-witness in the case under section 324, P . P . C . against Gul Muhammad P . W.8 and the deceased. Haq Nawaz appellant also did not deny the quarrel taking place -between Ghulam Muhammad accused and the deceased during the volleyball game and the receipt of injuries by Ghulam Muhammad accused at the hands of Iftikhar deceased and his father Gul Muhammad P.W. and his brother Rab Nawaz being an eye-witness in the said case. Learned counsel for the appellant contends that it is admitted by both the parties that there had been a rapprochement between the parties and the case under section 324, P.P.C. had been withdrawn on the compensation paid to Ghulam Muhammad accused by the complainant party before the present occurrence. Thus, the prosecution has not brought on record anything indicating the immediate cause of occurrence. According to the learned counsel for the appellant, the trend of the superior Courts is that where the motive alleged by the prosecution remains obscure or is shrouded in mystery capital punishment is not awarded.
10. Considering the circumstances narrated above the prosecution case stands established against Haq Nawaz appellant beyond all shadow of doubt. He was, therefore, rightly convicted and we maintain his conviction. As regards sentence since the immediate cause of occurrence is shrouded in mystery, therefore, we consider that the ends of justice will be met if lesser punishment is awarded to him. We order accordingly and sentence him to imprisonment for life and a fine of Rs.15,000 (as agreed to by his learned counsel) or in default to undergo 2 years' R.I. The fine, if recovered, shall be paid to the legal heirs of the deceased. The death sentence awarded to him is not confirmed.
With the above modification in the sentence the appeal of Haq Nawaz appellant is otherwise dismissed.
10. Iftikhar Ahmad deceased died of a fire-arm injury which is attributed to Haq Nawaz appellant. Ghulam Muhammad and Ata Muhammad accused (since acquitted) though alleged to be armed with pistols are not said to have fired any shot even ineffectively at the deceased. They are merely alleged to have raised Lalkaras and held the bicycle of the deceased. If they had really intended the murder of Iftikhar Ahmad deceased they would not have lagged behind. They may be present at the time of occurrence but the prosecution has failed to show any pre-concert or pre-meditation between them in doing away with the deceased. They were, therefore, rightly given the benefit of doubt by the trial Court and acquitted. The reasons given by the trial Court for their acquittal are sound and appealing. We, therefore, find no reason to differ with them and refuse to interfere with the order of acquittal and in consequence dismiss the revision.
M . Y . H . Appeal dismissed.
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