Find a Lawyer

Criminal Appeal No. 135 and Murder Reference No. 63 of 1984, decided on 15th December, 1986.

---S. 302/34--Ocular evidence--Out of four eye-witnesses, three supporting -prosecution, while fourth, the complainant, brother of deceased, not doing so--Complainant making complete somersault from his earlier statement made in F.I.R.--Accused showing favour to complainant in criminal case registered by him against complainant resulting in his acquittal--Statement of complainant found not reliable- Remaining witnesses having no enmity against accused to falsely implicate him--Witnesses unequivocally and categorically stating to be present at spot at time of occurrence--No material on record shown to discredit them--Witness to motive not cross-examined at all on point of motive- Medical evidence corroborating ocular account--Ocular account which had proved prosecution case to hilt, held, could not be disbelieved- Conviction and sentence of accused actively participating and firing at deceased was upheld and accused to whom only Lalkara was attributed was acquitted by giving him benefit of doubt in circumstances.

M. B . Zaman for Appellants.

Rafique Ahmad Butt for A.-G. for the State.

Shah Ahmad Balooch for Complainant.

Dates of hearing: 5th October, 7th and 15th December, 1986.

.--Muzammal Shah alias Zumey Shah, Shahabal Shah and Murad Shah were tried by a learned Additional Sessions Judge of Faisalabad under section 302/34, P.P.C. for the murder of Ahmad Ali, deceased. The learned trial Judge, by his judgment, dated 1-3-1984, acquitted Murad Shah of the charge, but convicted Muzammal Shah alias Zumey Shah and Shahabal Shah under section 302/34, P.P. C. He sentenced Muzammal Shah alias Zumey Shah to death, subject to confirmation by this Court, and to pay a fine of Rs.8,000 or in default thereof to undergo further rigorous imprisonment for two years. He sentenced Shuhabal Shah under section 302/34. P.P.C. to imprisonment for life and to pay a fine of Rs.8,000 or in default thereof to undergo further rigorous imprisonment for two years. Botn Muzammal Shah allas Zumey Shah and Shahbal Shah were ordered to pay Rs.10,000 each as compensation to the heirs of Ahmad Ali, deceased, under section 544-A, Cr.P.C. or in default thereof to undergo further rigorous imprisonment for six months each. All the sentences of imprisonment were ordered to run concurrently. The joint appeal (Criminal Appeal 135 of 1984) preferred by Muzammal Shah alias Zumey Shah and Shahabal Shah against their conviction and sentences, the reference (Murder Reference 63 of 1984) sent up by the learned trial Judge for the confirmation of the death sentence awarded to Muzammal Shah alias Zumey Shah and the private revision (Criminal Revision 217 of 1984) filed by Mst. Azmat Bibi, petitioner, for the enhancement of the sentence of Shahabal Shah under section 302/34, P.P.C. and the enhancement of the compensation ordered to be paid by him, are all now before us for disposal.

2. The brief facts of the prosecution case are that one Ghulam Rasool Khagga owned land in Chak No. 395/G.B. Ahmad Ali, deceased, intended to purchase his land, but the accused did not want that he would purchase the said land, because they had already purchased the lands of the sisters of the said Ghulam Rasul and on this account there were differences between the accused and the deceased, because the deceased insisted to purchase the said lands. On 22-6-1980 at about 4-00 a.m. Ahmad Ali deceased, alongwith his wife Mst. Azmat Bibi P.W.11 his son Allah Ditta P.W.6, his daughter Mst. Paras (given up P.W.), his sons-in-law Muhammad Sharif P.W.5 and his brother Waryam, complainant P.W.10, was sleeping in the courtyard of his house. Bakhtawar, father of the deceased, was suffering from some ailment and for that purpose Sharif P.W.5, who is son-in-law of the deceased, had also stayed for the night there. Muhammad Sharif P.W.5, Allah Ditta P. W.6 and Waryam P. W.10 woke up when Muzammal Shah alias Zumey Shah and Shahabal Shah, accused, entered the house, by scaling over the boundary wall. Both the said accused were armed with guns and proceeded to the cot of the deceased, whereas Murad Shah, accused who was also armed with a gun, remained sitting on the boundary wall. 'Nazar Shah and Nur Shah, accused, were standing near the poulty pen outside, across the boundary wall. Muzammal Shah alias Zumey Shah, accused, fired at the deceased, which hit him in his chest. The gun shot woke up the daughter and the wife of the deceased. Mst. Azmat Bibi P.W.11, the wife of the deceased, grappled with Zummey Shah, accused, whereupon he slapped her face and freed himself from her. Shahabal Shah, accused, raised a Lalkara declaring that if anyone came near, he could be done to death. Thereafter, both the accused escaped from the place of occurrence after scaling over the wall and the third accused Murad Shah also got down from the boundary wall.

3. Leaving the dead body in the custody of the remaining witnesses, Waryam P.W.10 proceeded to Police Station Tandlianwala, where he lodged F.I.R. Exh.P.K. at 7-15 a.m., which was recorded by Anwarul Haq, A.S.I. P.W.12. The Police Officer then proceeded to the place of occurrence, where, after preparing the necessary papers, he sent the dead body of the deceased for post-mortem examination. The Investigating Officer recovered blood-stained earth from the spot, vide memo. Exh.P.G, and one .12 bore crime empty P.7, vide memo. Exh.P.H. which recoveries were made in the presence of Muhammad Sharif P.W.5, Waryam P.W.10 and Anwarul Haq A.S.I. P.W.12.

4. On 22-8--1980 at 4-00 p.m. Dr. Ahmad Saeed P.W.1 conducted the post-mortem examination on the dead body of Ahmad Ali, deceased, and found a fire-arm wound of entry 3 c.m. x 3 c.m. with charred margins on the front of the chest. Seven pellets were found embedded under the skin on the back of left side of chest and loin. The sternal and of right second rib, the pleurae, the left lung, the peritoneum, the diaphragm and the stomach were found perforated. The right lung, the pericardium and the heart were found to be torn. Death was due to shock and haemorrhage as a result of the said injury, which was individually sufficient to cause death in the ordinary course of nature. Probable duration between the injury and death was instantaneous and that between death and post-mortem examination was within eight to sixteen hours.

5. On 22-8-1980, all the accused were arrested by Altaf Hussain Shah, Inspector, P.W.8.

6. On 30-9-1980, Muzammal Shah alias Zumey Shah, accused, led to the recovery of a gun P.3, which was taken into possession vide memo. Exh.P.E., in the presence of Malls. P.W.4, Altaf Hussain Shah S.I. P.W.8 and kamir (given up P.W.).

7. During the investigation, Nur Shah and Nazar Shah, accused were not summoned by the police. Muzammal Shah alias Zumey Shahabal Shah, and Murad Shah, accused, were challaned by the police whilst the name of Nazar Shah, accused, was placed in column No.2 of the challan. During the trial, the trial Judge did not summon Nazar Shah or Nur Shah, accused, to face trial, but only tried the remaining three accused.

8. At the trial, the prosecution produced Muhammad Sharif P.W.5 to prove the motive, the said witness and Allah Ditta P.W.B, Waryam complainant P.W.10 and Mst. Azmat Bibi P.W.11 in proof of the ocular account. Malls. P.W.4, Muhammad Sharif P.W.5, Altaf Hussain Shah S. P.W.8, Waryam P.W.10 and Anwarul Haq A.S.I. P.W.12 in support the recoveries and Dr. Ahmad Saeed P.W.1 in corroboration of the medical testimony.

9. All the three accused denied the accusations that were levelled against them. Muzammal Shah alias Zumey Shah, accused, denied the recovery of the gun, alleged to have been made at his instance. He Stated that the prosecution witnesses were not present at the scene of occurrence, as, at the relevant rime; Bakhtawar, the father of the deceased, was in Tandlianwala Hospital, where the prosecution witnesses were present with him. He produced the discharge certificate Exh.D.D. of the said Bakhtawar. The other two accused imputed their false implication to enmity.

10. The learned trial Judge, relying upon the motive, the ocular account and the medical testimony, convicted and sentenced Muzammal Shah alias Zumey Shah and Shahabal Shah, accused, as stated above and acquitted Murad Shah, accused.

11. We have heard the arguments of the learned counsel for the appellants, the complainant and the State and have perused the record. The evidence as regards motive is furnished by Muhammad Sharif P.W.5.

According to his testimony, one Ghulam Rasul Khagga owned land in Chak No. 395/G.B. Ahmad Ali, deceased, wanted to purchase his land, but the appellants restrained him from doing so, because they had already purchases some land from the sister of the said Ghulam Rasul Khagga situated in the same village. Since the appellants were averse to the deceased purchasing any land from the said Ghulam Rasul Khagga, they committed his murder. The said witness has not been cross-examined at all on the point of motive. In the absence of any material to disprove the motive, the same stands established on the record.

12. The ocular account is furnished by Muhammad Sharif P.W.5, Allah Ditta P.W.6, Waryam complainant P.W.10 and Mst. Azmat Bibi P.W.11. Mst. Azmat Bibi P.W.11 and Waryam complainant P.W.10 are the widow and brother, respectively, of the deceased and Allah Ditta P.W.6 and Muhammad Sharif P.W.5 are the son and son-in-law, respectively, of the deceased. Whereas Muhammad Sharif P.W.5, Allah Ditta P.W.6 and Mst. Azmat Bibi P.W.11 have supported the case, Waryam complainant P.W.10 has not done so. On behalf of the appellants it is pleaded that all the eye-witnesses were present at the Civil Hospital, Tandlianwala, alongwith Bakhtawar, the father of the deceased, who was sick and admitted in that hospital on 21-6-1980 and that in the early hours of the following morning when one Muhammad Shah arrived in the hospital to intimate to them that Ahmad Ali, deceased, had been murdered, all of them then left for the village. In this connection, the statement of Waryam complainant P.W.10, which fully supports this version, and the testimony of Dr. Ahmad Saeed Sheikh C.W.1, that partly corroborates it, have been read. We would first take up the testimony of Waryam complainant P.W.10. At the trial he has made a complete somersault from his earlier testimony, contained in the F.I.R. Exh.P.K., which supported the prosecution version. This appears to be the result of a favour shown by Shahabal Shah, appellant, by giving a statement in favour of Waryam P.W.10 in a case instituted by the said appellant against Waryam P.W.10 under section 307, P.P.C. The certified copy Exh.P.N./1, which is the statement of Shahabal Shah, appellant, given in that case, denying any knowledge of the occurrence and the certified copy Exh.P.N., which is the final judgment of the Magistrate, dated 1-3-1982 acquitting Waryam P.W.10 in the case under section 307, P.P.C. prove this favour shown to Waryam P.W.10. Waryam P.W.10 admitted in cross-examination that Shahabal Shah, appellant, had got registered a case against him under section 307, P. P. C . after occurrence, that he had also got a cross-case registered against the said appellant and that though he was acquitted in the case pending against himself, Shahabal Shah appellant, was facing trial. He also stated that he had appeared against Shahabal Shah, appellant, as a witness and had not resiled in the said case. Waryam P.W.10 has not been able to show what cross-case registered by him against Shahabal Shah, appellant, relative to the case registered by the latter against him under section 307, P.P. C. It is, therefore, clear that in consideration of Shahabal Shah, appellant, bogging down in the criminal case instituted against him under section 307, P.P.C. he gave a statement in favour of the appellants in the present case by supporting the defence version. In these circumstances, the statement of Waryam P.W.10 cannot be believed and must be rejected. The learned trial Judge also rejected the testimony of Waryam P.W.10 totally for this reason and we approve his action. This leaves us with the testimony of Muhammad Sharif P.W.5,. Allah Ditta P.W.6 and Mat. Azmat Bibi P.W.11. None of these witnesses has any enmity or animosity with any of the appellants to falsely involve them on a capital charge of murder. The evidence of Dr. Ahmad Saeed Sheikh C.W.1 only shows that he admitted Bakhtawar, the father of deceased, in the Civil Hospital, Tandlianwala, some time in the morning on 21-6-1980 and that on his early morning round in the hospital on 22-6-1980 at 7-00/7-30 a.m., he did not find Bakhtawar present and, therefore, recorded in the Indoor Patient Register that he had left against advice. He also stated that the summer time of the hospital was 7-00 a.m. to 12-00 noon and 4-30 p.m. to 6-30 p.m. and that he could not remember whether on 21-6-1980 at 6-00 p.m. he took a round of the hospital or not. He also admitted that after 6-30 p. m. on 21-6-1980, he had no information as to whether Bakhtawar son of Machhia was in the hospital or had left. He admitted that it was possible that some patients could have left in late evening and appeared again in the hospital in the morning to show their presence. He could not say whether Bakhtawar son of Machhia had so left the hospital in the evening and did not turn up thereafter. The evidence of Dr. Ahmad Saeed Sheikh C.W.1 is, therefore, equivocal as regards whether Bakhtawar son of Machhia left the hospital the same evening on 21-6-1980, or left early in the morning at 4-00 a.m. on 22-6-1980, or had just left the hospital at 7-00/7-30 a.m. on 22-6-1980 before the doctor took his early morning round. However, whatever may be the position as regards Bakhtawar son of Machhia, the statement of Dr. Ahmad Saeed Sheikh C.W.1 does not state anything about whether Muhammad Sharif P.W.5, Allah Ditta P.W.6 or Mst. Azmat Bibi P.W.11 were present in the hospital at any time on 21-6-1980 or 22-6-1980. It is not possible to believe that all these witnesses stayed with Bakhtawar in the hospital, assuming he spent the night there. At best, his son Waryam P.W.10 may have been with him, but not Mst. Azmat Bibi P.W.11, Allah Ditta P.W.6 and Muhammad Sharif P.W.5 who were the wife, the son and the son-in-law, respectively, of Ahmad Ali, deceased, who admittedly then was sleeping in his house. The said three witnesses unequivocally and in categorical terms have submitted that they were present at the residence of the deceased at 4-00 a.m. on 22-6-1980. There is no material to discredit their statements. They have no enmity against the appellants either. The ocular account, therefore, cannot be disbelieved under any circumstances whatsoever. The eye-witnesses, therefore, establish the prosecution case regarding the presence of the two appellants at the time of occurrence. Muzammal Shah alias Zumey Shah, appellant, is clearly imputed the part of having fired at Ahmad Ali, deceased, and injuring him. His active participation is established. Shahabal Shah, appellant, is only alleged to have uttered a Lalkar threatening the witnesses that if they intervened, they would be don to death. We have some doubt as regards his criminal participation, for had he been present there, he would surely have used his fire-arm to kill the deceased, for the motivation that bound Muzammal Shah alias Zummey Shah, appellant, to kill the deceased, also bound him in the same manner. It appears, he was unarmed, as no fire-arm was recovered from him. His criminal participation does not stand unequivocally established. His case is at par with that of Murad Shah, co-accused, who has been acquitted. We would, therefore, give the benefit of doubt to Shahabal Shah, appellant.

13. The medical testimony furnished by Dr. Ahmad Saeed Sheik C . W .1 clearly shows that the deceased suffered one gun shot wound on the front of his chest. The medical testimony, therefore, corroborates the ocular account.

14. The upshot of the above discussion is that the motive, the ocular account and the medical testimony, clearly prove the case of the prosecution to the hilt against Muzammal Shah alias Zumey Shah, appellant. He appears to have been properly convicted and sentenced. The case against Shahabal Shah, appellant, is not free from doubt. He is, therefore, given the benefit of doubt.

15. For the foregoing reasons, the appeal of Muzammal Shah alias Zumey Shah, appellant is dismissed. His death sentence is confirmed. The appeal of Shahabal Shah, appellant, is accepted. His conviction and sentence is set aside. The fine and compensation, if recovered from him, shall be refunded to him. He is already on bail. His bail bond shall stand discharged.

16. There being no merit in the revision petition (Criminal Revision 217 of 1984) preferred by Mst. Azmat Bibi, petitioner, the same is dismissed in limine.

S. A. Order accordingly.

Find a Lawyer Near You

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