Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Criminal Appeal No. 59 and Murder Reference No. 43 of 1984, decided on 21st October, 1986.
---S. 302/34--Motive--Brother of accused and one brother of acquitted co-aecusrd murdered previously---Deceased and others being prosecuted for, those murders- -Deceased apparently on bail--Accused admitting these facts--Accused, held, had motive against deceased.--[Motive].
---S. 302/34--Recoveries--Proof--Accused leading to recovery of crime weapons from their respective houses--Residents of locality not associated with recoveries--Recovery witness having no personal or direct enmity with accused--Witness's presence on death of his relative not unnatural- Witness making consistent statement--No discrepancy found between his statement and Investigating Officer--No circumstance showing investigation, biased or mala fide--Crime weapons found stained with human blood--Evidence of recovery witness, held, could not be excluded from consideration or disbelieved in circumstances.--[Recovery].
---S. 302/34--Related witnesses--Accused having strong motive to attack deceased--No conflict found between medical and ocular account--Witnesses residents of Chak where occurrence took place--Witnesses returning home after day's work at normal time of their return--Recovery of crime weapons from accused--F.I.R. promptly made--Ocular account of related and interested witnesses having been corroborated by evidence of motive, recoveries and the doctor, thus could not be thrown out of consideration.--[Witness].
---S. 302/34--Common intention--Accused armed with gun attributed to ineffective firing--Not repeating second shot although having live cartridge---Accused usIng butt of his gun causing simple injuries--Gun and crime empty not sent to Forensic Science Laboratory--Accused, held, entitled to benefit of doubt for not sharing common intention with co-accused and was acquitted.--[Common intention].
---S. 302/34--Quantum of sentence--Accused causing fatal injury, which was individually sufficient to cause death, sentenced to death and accused responsible for causing grievous injuries not individually sufficient to cause death but were collectively sufficient to cause death in ordinary course of nature, sentenced to life imprisonment.
Malik Muhammad Ramzan Khalid for Appellants.
Tasaddaq Hussain Jilani, Asstt. A.--G. for the State.
Date of hearing: 21st October, 1986.
.--This is an appeal by Amira 27, Dost Muhammad 29, Safawal 30 and Naseer Ahmad 20 against their conviction under section 302/34, P.P.C. by learned Additional Session Judge, Vehari, who vide judgment dated 1-3-1984, sentenced each of them to death plus fine of Rs.5,000 or in default two years' R.I. It was ordered that half of the fine, if revovered, will be paid as compensation to heirs of Sardar Khan deceased aged about 45 years.
The four appellants, having been sentenced to death, the proceedings are also before us for confirmation of sentence.
Charagh, Majeed and Manzoor co-accused of present appellants were, however, acquitted by the same judgment.
2. The occurrence in this case took place at 5-00 p.m. on 23-9-1982 in Chak No. 49/E.B., about 12 miles from Police Station, Sadar Burewala, District Vehari. The F.I.R. Exh. P.F. was recorded on the same day at 7-30 p.m. at the police station by S.I. Muhammad Aslam P.W.11 at the instance of Muhammad Gulzar P.W.5.
3. It was stated by Muhammad Gulzar Ali complainant in his First Information Report that on 25-9-1982, at morning time, he alongwith Muhammad Nawaz P.W. son of Bahawal Khan went to Adda Machhiwala for some personal job. They both were returning home in the evening. When they reached near the flour mills of Ata Muhammad in Chak No. 549/E.B., he found his brother Sardar Khan (deceased) present there for grinding of his wheat. He and Muhammad Nawaz P.W. stopped there. He was talking to Sardar Khan, when all of a sudden, the electricity went off. At this, -he and Muhammad Nawaz P.W, started walking towards their house while Sardar deceased proceeded ahead of them on a bicycle. At about 5-00 p.m., when they reached Killa No.25 of Square No.9 belonging to Ata Muhammad, all of a sudden, Amira armed with .12 bore gun, Dost Muhammad, Suja (Sajawal) and Naseer Ahmad accused, armed with hatchets, came out from the right side of Katcha path from behind a Sarkanda bush. They challenged Sardar Khan saying that they would teach him a lesson for the murder of Dur Muhammad. Simultaneously, Amira accused fired at Sardar Khan, who was not hit. Dost Muhammad gave a hatchet blow on the head of Sardar Khan, whereafter Naseer Khan gave a hatchet blow, which also fell on the head of Sardar Khan, who fell down with face downward. Suja accused then gave a hatchet blow on the back of head near the neck. It was further stated by Gulzar complainant that Dost Muhammad, Naseer and Suja accused gave more hatchet blows to Sardar Khan. Their co-accused Amira gave repeated butt blows on the neck, head and other parts of Sardar Khan deceased. The alarm attracted Bahadur and Muhammad Rafiq P.Ws., who also witnessed the occurrence. The accused threatened the witnesses not to come near. The accused finding Bahadur Khan, Muhammad Rafiq and other villagers reaching the spot, left for their house alongwith their weapons. Sardar Khan died at the place of occurrence, as a result of the injuries.
The motive was stated to be that on 3-8-1981, Dur Muhammad, Dost Muhammad accused, was murdered, for which Sardar deceased and others were challaned. It was stated in the F.I.R that the accused have committed this murder on the instigation of Charagh, Majeed and Manzoor accused.
Gulzar complainant, leaving the dead body of Sardar Khan at the spot in the care of Karim Bakhsh Chaukidar and Bahadur Khar P.W., went to Police Station and lodged the F.I.R. Exh.P.F.
4. The police, after registration of the ease, undertook investigation. The dead body of Sardar Khan was sent for post-mortem examination, which was conducted at 1-00 p.m. on 26-9-1982 by Dr. Akhtar Hussain Jafari P.W. 6, who, on external examination, found the following injuries on the dead body of Sardar Khan:-
(1) A multiple incised wound complex 10 c.m. x 4 c.m. x bone and brain cut on the back of head, over the occipital region. The bones of the skull were not only cut but were broken into pieces.
(2) An incised wound 4 c.m. x 1 c.m. x bone cut on the top of the head in the middle.
(3) An incised wound 8.5 c.m. x 4 c.m. x bone cut on the right side of the head on the top.
(4) An incised wound 4 c.m. x 1 c.m. x bone deep joining injury No.3 laterally and merged with it.
(5) An incised wound 6 c.m. x 0.75 c.m. x bone cut on the top of head 1 c.m. right of injury No.2.
(6) Small contusion complex in an area of 5 c.m. x 3 c.m. on the back of chest over midline in the mid scapular area.
(7) Contusion in an area 7 c.m. x 4 c.m. on the back of neck in middle.
(8) Contusion 1 c.m. x 0.5 c.m. on the back of left shoulder.
(9) A contusion 3 c.m. x 1 c.m. on the back of left shoulder; four centimeter medial to injury No. 8.
(10) Contusion 3.5 c.m. 0.5 c.m. on the back on left side over the lumbar area.
(11) Two contusions on the right side of back near midline in the lumbar area.
On dissection, cranium, spinal-cord, scalp and membrane of the brain were found damaged. All other organs of chest and walls were healthy.
In the opinion of Medical Officer, death of Sardar Khan occurred as a result of shock and haemorrhage brought about by sharp-edged weapon injuries on the head, which cut the bones of skull, meniges and the brain substance. Injuries 1 to 5 had been caused by sharp-edged weapon like hatchet, while the remaining injuries 6 to 11 had been caused by blunt weapon. Injuries 1 to 5 were sufficient to cause death in ordinary course of nature collectively. Probable time that elapsed between injuries and death was within a few minutes and post-mortem was conducted within 24 hours of death.
5. S.I. Muhammad Aslam P.W.11 on 25-9-1982, during inspection of the spot, took in possession a bicycle belonging to Sardar Khan deceased vide memo. Exh. P.C. A shoe P.1 of Sardar Khan deceased was picked up from the water channel (Khal) vide memo. Exh. P.D. A live cartridge P.2 and an empty cartridge P.3 were picked up from the place of occurrence vide memo. Exh. P.E. These recovery memos. were prepared by S.I. Muhammad Aslam P.W.11 and attested by Rustam P.W. 4 and Irshad Ullah P.W. (not examined).
All the four appellants were arrested on 28-9-1982.
On 7-10-1982, Amira accused while in police custody led to the recovery of blood-stained gun P.6 from his house, which was taken in possession by S.I. Muhammad Aslam P.W. 11 vide memo. Exh.P.I, in presence of Mehdi Khan P.W. 8 and Irshad Ullah P.W.(not examined).
On the same day Dost Muhammad accused while in police custody led to the recovery of blood-stained hatchet P.7 from his house, which was taken in possession by S.I. Muhammad Aslam P.W.11, vide memo. Exh.P.J., in presence of same witnesses.
On the same day, Sajawal accused while in police custody led to the recovery of blood-stained hatchet P.8 from his house, which was taken in possession by S.I. Muhammad Aslam P.W.11, vide memo. Exh. P.K. in presence of same witnesses.
On the same day, Naseer Ahmad accused while in police custody led to the recovery of blood-stained hatchet P.9 from his house which was taken in possession by S.I. Muhammad A-slam P.W.11 vide memo. Exh. P L. in presence of the same witnesses.
Gun P.6 and hatchets P.7 to P.9 were found stained with human blood, vide report of Chemical- Examiner Exh. P.M. and that of Serologist Exh. P. P. The accused were challaned after completion of the investigation.
6. The prosecution, in support of its case, examined Muhammad Gulzar Ali P.W. 5 and Muhammad Nawaz P.W.7 eye-witnesses. Bahadur and Muhammad Rafiq, two eye-witnesses named in the F.I.R., were given up as having been won over by the accused. The incriminating recoveries from the place of occurrence were witnessed by Rustam P.W.4 and the recoveries of crime weapons P.6 to P.9 were witnessed by Mehdi Khan P.W. 8. The medical evidence was furnished by Dr. Akhtar Hussain Jafari P.W. 6 as given in detail above. The case was investigated by S.I. Muhammad Aslam P.W.11. The evidence of the rest of the witnesses was of formal nature.
The accused after close of evidence denied the charge and pleaded innocence. The recoveries of crime weapons were also denied. The involvement of Sardar Khan deceased and others in the murder case of Dur Muhammad, a brother of Dost Muhammad accused, was admitted. It was pleaded by them that they have been falsely implicated in this case on account of enmity. The accused did not lead any evidence in defence.
The learned trial Judge placed reliance on the evidence of motive, recoveries of crime weapons from the accused and the eye-witnesses and convicted them, as stated above.
7. We have minutely gone through the evidence on record and have also heard the learned counsel appearing on behalf of the parties. It is contended on behalf of the appellants that the prosecution has failed to prove motive against the accused and, as such it did not provide corroboration to the ocular account; secondly, that the evidence of recoveries of crime weapons from the accused is not reliable; thirdly, that the eye-witnesses were related and inimical and. therefore, not reliable; and finally that sentence of death to four appellants for one murder was not justified in the facts and circumstances of this case. The learned A.A.-G. controverted the above contentions and supported the judgment of the trial Court. It was, however, conceded by him that the question of common intention of Amira accused with his co-accused will require determination by this Court.
8. Amira and Sajawal accused are real brothers inter se, Dost Muhammad and Naseer Ahmad accused are cousins of Amira and Sajawal accused. Manzoor and Majeed acquitted accused were brothers inter se and Charagh acquitted accused was not related to them. It is in evidence that Dur Muhammad, a real brother of Dost Muhammad accused was murdered on 3-8-1981. At that very time, Abdul Latif, a real brother' of Manzoor acquitted accused, was also murdered. Sardar Khan deceasec', and others were being prosecuted for those murders, when this murder took place. The accused, when examined under section 342, Cr.P.C., admitted this fact. The learned counsel for the appellants also admitteu that Sardar Khan deceased and others were being prosecuted during the days of occurrence for the murder of Dur Muhammad and Abdui Latif. It was, however, contended by him that as the case was still pending, the accused could not be said to have motive against Sardar Khan deceased etc. This argument is without any basis. Mere pendency of trial would not mean that the accused had no motive against Sardar Khan who, it appears, had been allowed bail in the said case. We, therefore, hold that the accused had motive against Sardar Khan deceased, which fact lends corroboration to the ocular account of this case.
9. The accused were arrested on 28-9-1982. They were on personal remand with the police for the purposes of interogation. On 7-10-1982, the appellants led to the recoveries of crime weapons from their respective houses. It was argued by the learned counsel that these recoveries have been supported only by Mehdi Khan P.W. 11, who was interested to support the prosecution case. It was argued that other residents of the Chak were firstly not associated with the investigation and secondly, were not made to join the proceedings of recoveries from the accused and, as such, no reliance can be placed on the recoveries of crime weapons from the accused. Mehdi Khan P.W. was the son of a sister of Sardar Khan deceased, but he had no personal or direct enmity with the accused to falsely implicate them in this case. Mehdi Khan P.W, was not himself involved in the case pertaining to the murder of Dur Muhammad and Abdul Latif. It is correct that he was a resident of Chak No. 571, 13 miles from the place of recovery, but that fact would not mean that he was a false witness. He was related to the deceased and was, therefore, naturally present in the village where the occurrence took place. He was made to join investigation by the Investigating Officer. It is common knowledge that residents of a village do not readily come forward to become witnesses in such like cases to avoid siding with any particular party. If, therefore, independent witnesses were not associated in investigation or cited as witnesses, it would not mean that the recoveries were false. Mehdi Khan P.W. made consistent statement during the trial. There was no discrepancy in the statement of Mehdi Khan P.W.8 and S.I. Muhammad Aslam P.W.11. The rooms from where the four appellants respectively got recovered their cricee weapons, were owned and possessed by them. We do not find any reason to exclude the evidence of Mehdi Khan from consideration against the accused. Even if, for the sake of agruments, his evidence is excluded, from consideration, then also in our view, there is no reason to disbelieve S.I. Muhammad Aslam P.W.11. There is no circumstance to show that the investigation conducted by him was, in any way, biased or mala fide. He even declared some of the accused innocent and placed them in column No.2. It was argued by the learned counsel that the provisions of section 103, Cr.P.C. were not complied with and, as such, the proceedings of recoveries of crime weapons from the accused were illegal. We do not find any substance in this argument. The recoveries of crime weapons were not made by searching the houses of the accused. In fact, the accused led to the recoveries of crime weapons. It cannot, therefore, be said that there was any contravention of the provisions of section 103, Cr.P.C. In our view, the recoveries of crime weapons P.6 to P.9 were fully established from the evidence on record.
10. The two eye-witnesses, as stated above, were closely related to the deceased. It will, however, be observed that Dur Muhammad, a brother of Dost Muhammad accused was murdered only a few months before the present occurrence. Sardar Khan deceased and Muhammad Nawaz P.W. who both were accused in the said murder case, were on bail. The accused, therefore, had a strong motive to launch an attack on Sardar Khan, who at the time of occurrence was coming ahead of the two eye-witnesses.
It was argued by the learned counsel that the medical evidence contradicted the ocular account of this case. The learned counsel was not able to state as to in what respect the medical evidence contradicted the evidence of the two eye-witnesses. According to the F.I.R. as well as the statement of the two eye-witnesses, first of all Amira accused fired a shot at Sardar Khan deceased who was not hit. Dost Muhammad accused gave a hatchet blow on the head of Sardar Khan deceased. This injury was noted as injury No.2 during post-mortem examination. Naseer Ahmad accused then gave another hatchet blow on the head of Sardar Khan which was noted as injury No.3 by the Medical Officer. The deceased then fell down, whereafter Suja (Sajawal) accused gave hatchet blow which fell on the back of head near neck of the deceased. This was recorded as injury No. 1 by the Medical Officer. The accused then gave more injuries to the deceased with their respective weapons. Amira accused allegedly gave injuries with the butt of his gun. We have carefully considered this contention on behalf of the appellants. We do not find any disparity/ conflict between the statements of the Medical Officer and the two eye-witnesses.
It was next contended on behalf of the appellants that the bicycle of the deceased was not produced during trial in Court and as such, the prosecution story was false. Secondly, the presence of bicycle, a live cartridge and crime empty were not noted in the inquest report by the Investigating Officer. This fact is borne out from the record, but, in our view, the omission to mention these articles present near the dead body would not affect merits of the case. It was explained by the Investigating Officer that as these were lying at some distance from the dead body, he did not consider it necessary to mention them in the inquest report. The bicycle was taken in possession vide memo. Exh. P.C. It should have been produced in Court during recording of evidence. It appears to be the carelessness of the Investigating Officer and the Public Prosecutor, but it does not have material effect on the evidence of the eye-witnesses.
It was next argued by the learned counsel that Ata Muhammad owner of the flour mill who also happened to be the owner of the land where the occurrence took place, was not examined by the Investigating Officer or cited as witness during the trial. According to the learned counsel, this omission was fatal because Ata Muhammad was an important witness in this case. It is in evidence of Muhammad Amir Patwari P.W.1 that the flour mills of Ata Muhammad was at a distance of 28 Acres from the place of occurrence. There is no evidence that Ata Muhammad had witnessed the present occurrence. Ata Muhammad was, therefore, not a necessary witness in this case and, as such, omission to examine him during the investigation or trial has no bearing on facts of the case.
It was contended on behalf of the appellants that the occurrence allegedly took place at about 5-00 p.m. and the post-morterg was conducted next day at 1-00 p.m.; secondly, according to Muhammad Nawaz P.W.7, the Investigating Officer had recorded his statement at 9-00 p.m. at the spot. It was stated by him that "the police made inquiries from Gulzar P.W. as well. He narrated the incident to the police. I do not remember if my statement was recorded first or that of Gulzar P.W. Statements of four persons namely Gulzar, Bahadur, Rafiq and myself were recorded at the spot by police." He further stated that "after the statement had been read over to Gulzar, he admitted it correct. Gulzar P.W. signs. He had signed". In view of these circumstances, it was argued by the learned counsel that the F.I.R. was recorded by the police at the place of occurrence after preliminary inquiry. This argument is without any substance. According to Muhammad Nawaz P.W.7, "Gulzar arrived at the spot from Burewala after the arrival of the police". It is apparent from the statement of S.I. Muhammad Aslam P.W.11 that Gulzar P.W. had not accompanied him to the spot from police station after recording of the F.I.R. He stated that Gulzar had followed him. We do not find any delay in conducting of post-mortem by the Medical Officer. The occurrence took place at 5-00 p.m. The post-mortem could not have been performed on the dead body during night 'and it was, therefore, natural that autopsy was held next day at about 1-00 p.m. We are clear in our mind, after perusing the evidence, that the F.I.R. was not recorded at the place of occurrence, as suggested on behalf of the appellants.
The learned counsel argued that the omission to examine Bahadur and Rafiq P.Ws. should lead to presumption that they were not willing to support a false prosecution case. This is a misconceived argument. These two witnesses were given up as having been won over by the accused. In these circumstances, it was not necessary for the prosecution to examine them in support of its case.
It was argued on behalf of the appellants that the two eye witnesses were chance witnesses. We are not prepared to agree with the learned counsel on this point. The two eye-witnesses stated that they had gone to Adda Machhiwal where they worked as labourers for the construction of the house of Master Badar Din. These two witnesses were residents of Chak No. 549/E.B. where the occurrence took place. They were returning home on a Katcha path. It was the normal time of their return to the village. They could. therefore, not be termed as chance witnesses.
On an overall assessment of the evidence, we are of the view that the two eye-witnesses who are related to the deceased and had enmity with the accused were corroborated by the evidence on motive and the recoveries of crime weapons from the accused. The F.I.R. in this case was lodged without any delay at the police station, about 12 miles from the place of occurrence.
11. According to the prosecution evidence, Amira accused fired at Sardar Khan deceased from a distance of 2 Karams, aiming at his chest. Sardar Khan was, however, not hit. It is also in evidence that during inspection of spot, the Investigating Officer took in possession one crime empty and one live cartridge from the place of occurrence. If Amira accused had that live cartridge, he could have easily fired a shot at Sardar Khan deceased. He did not fire a second shot and instead allegedly used the butt of his gun to inflict simple injuries on the person of deceased. The gun and the crime empty were not sent to the Forensic Science Laboratory for comparison. At the time of recovery of gun P.6 vide memo. Exh.P.I., the Investigating Officer noted that its butt was broken. This fact is not borne out from the F . I . R . We are, therefore, of the view that from the evidence on record it cannot be said that Amira accused shared common intention with his three co-accused-appellants.
12. In view of the above discussion, the appeal of Amira accused is accepted, by giving him benefit of doubt. His conviction and sentence is set aside. He is acquitted of the charge. He shall be released from prison forthwith, if not required in any other case.
The appeal of Dost Muhammad Sajawal and Naseer Ahmad is dismissed. Their conviction under section 302/34, P.P.C. is maintained. As stated above, injury No.1 is attributed to Sajawal. This injury in our view was individually fatal to cause death of Sardar Khan. His sentence of death is, therefore, maintained and IS CONFIRMED.
The injuries attributed to Dost Muhammad and Naseer accused were grievous, but do not appear to be individually fatal to cause death of Sardar Khan. According to the Medical Officer, the injuries were collectively sufficient to cause death in ordinary course of nature. The sentences of death of Dost Muhammad and Naseer Ahmad accused are, therefore, reduced to imprisonment for life. Their sentence of death are NOT CONFIRMED.
The sentence of fine of Sajawal, Dost Muhammad and Naseer Ahmad is maintained. The last two appellants will be given benefit of section 382-B, Cr.P.C.
13. With the above modification, this appeal fails and is accordingly, dismissed.
S.A./738/L Appeal dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer