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Criminal Appeal No. 489 of 1986, heard on 10th December,1986.

‑‑‑Ss. 302, 300, Exception 4 & 304, Part I‑‑Evidence, appreciation of‑‑Offence, alteration of‑‑F.I.R. recorded within a short time of occurrence‑‑Deceased himself initiating trouble by going to the house of accused to protest over kite‑flying‑‑Fight ensued and nothing to show as to what had happened before eye‑witnesses were attracted to spot‑‑Conviction and sentence of accused under S. 302, P.P.C., altered to offence under S. 304, Part I, P.P.C., in circumstances.

M.B. Zaman and R.A. Jermey for Appellant.

Muhammad Shahnawaz for the State.

Sh. Naseeruddin for the Complainant.

Date of hearing: 10th December, 1986.

Hamid Aslam 22, Muhammad Nawaz 50 and Saadat Nawaz alias Tippu 17 were sentenced to imprisonment for life plus fine of Rs.5,000 or in default two years' R.I. each under section 302/34, P.P.C. by learned Additional Sessions Judge, Lahore vide judgment, dated 26‑7‑1986. They were ordered to pay Rs.5,000 each as compensation under section 544‑A, Cr.P.C. to heirs of Imtiaz Butt deceased aged about 20 years and in default to suffer six months' R.I.

Hamid Aslam filed Crl. Appeal No. 489 of 1986 to challenge his conviction and sentence. Muhammad Nawaz and his son Saadat Nawaz filed Cri. Appeal No.522 of 1986 against their conviction and sentence. Mst. Sharifan Bibi filed Crl. Revision No. 468 of 1986 seeking enhancement of the sentence of the appellants. It was not admitted and only ordered to be heard alongwith the connected appeals. All these matters are directed against one judgment and will, therefore, be disposed of together.

2. The prosecution case in brief as stated by Mst. Sharifan Bibi in her statement Exh.P.A. is that she was a resident of house No.7 Street No.18 Gunj Mughalpura Lahore. Her husband was in Iraq doing job On 16‑1‑1984 at about morning time she, Muhammad Rafiq P.W. a brother of her husband and her son Imtiaz Butt deceased went to Sahuwari to meet their relative Zia Ullah. At about Degarwela on that day Imtiaz Butt went on the roof of the house and started kite flying. Tippu son of Muhammad Nawaz was also flying kites on the roof of his own house. In this process the kite of Imtiaz Butt was cut by Saadat Nawaz alias Tippu accused, on account of which Imtiaz Butt came down from the roof and went to the house of Saadat Nawaz accused to lodge protest with him. Both Saadat Nawaz and his father Muhammad Nawaz came out in the street and picked up quarrel with Imtiaz Butt who abused them. She, Muhammad Rafiq and Zia Ullah were also attracted to the spot. They saw them exchanging abuses and quarrelling with each other. Muhammad Nawaz accused asked his son Tippu to bring revolver and murder Imtiaz Butt. At this Saadat Nawaz alias Tippu accused ran inside his house. He brought out revolver and fired two successive shots at Imtiaz Butt, who was hit and fell down. Many other residents of Mohallah also reached there. Muhammad Nawaz and Tippu accused ran away.

Imtiaz Butt was placed on a cot and taken to BHT Hospital Shalimar Link Road, Lahore where he was given first aid. He was then removed to Mayo Hospital for treatment and examination.

The occurrence in this case took place at Degarwela on 16‑1‑1984. S.I. Bashir Hussain Shah P.W.11 learnt about this occurrence and reached emergency ward of Mayo Hospital where at 6‑30 p.m. on 16‑1‑1984 Mst. Sharifan P.W.5 made statement Exh.P.A. on the basis of which formal F.I.R. Exh.P.A./1 was recorded with at Police Station Mughalpura on the same day at 7‑10 p.m. by P.W.1 Wasif Ali, A.S.I. The occurrence took place near the house of Muhammad Nawaz accused in Street No.5 Sahuwari, Lahore.

3. Dr.Anwar Saeed P.W.12 Casualty Medical Officer Mayo Hospital Lahore on 16‑1‑1984 at 5‑05 p.m. medically examined Imtiaz Butt and found the following fire arm injuries on his person:‑

(1) Lacerated margins oval penetrating wound with ecchymosis around it (1 x c. m.) vertically placed on right‑upper side of fore‑head on the anterior side of right parietal' region of skull 3 c.m. from the mid‑line and 7 c.m. above the right eyebrow; No blackening or gun‑powder around the wound Blood and brain matter coming out of the wound.

(2) Lacerated margins circular penetrating wound x c.m. on the left cheek, no blackening or gun‑powder around the wound. It is 1 c.m. from the nose and 2 c.m. below the left eye, below the lid margin. Bleeding and also chip of bone inside the wound; exact depth not probed. Bleeding from the nose and mouth left black eye. No wound of exit seen.

The injuries were fresh and were kept under observation. Both were entry wounds. After medico‑legal examination the patient was referred to the emergency East Surgical Ward for treatment.

Imtiaz Butt expired in hospital at 4 a.m. on 25‑1‑1984. His dead body was sent for post‑mortem examination which was conducted on the same day at 3‑30 p.m. by P.W.13 Dr. Khalid Jamil Akhtar. On external examination the medical officer found 4 stitched wound on the forehead, left cheek, scalp and front of the neck besides a bruise on the right lateral side.

On internal examination the medical officer found under injury No.1 a haemotoma beneath the scalp on the right side of forehead. It was an entry wound and had fractured the frontal bone. The bullet had pierced the membrance and injured the front tissue through and through. The bullet was recovered from the lateral side of cerebral cortex. There was fracture of left maxilla under injury No.2. The bullet was found lodged at the basis of skull beneath sellaterhica.

Injuries Nos. 3 and 4 were operation incision. Injuries 1 and 2 had been caused by fire‑arm. Both were entry wounds and sufficient to cause death, individually and collectively, in ordinary course of nature. The time between injuries and death was few days and post‑mortem was conducted in about 12 to 15 hours.

Dr. Masood Hamid P.W.8 had given treatment to Imtiaz Butt in General Hospital, Lahore.

S.I. Bashir Hussain Shah during inspection of spot on 16‑1‑1984 collected blood‑stained earth from the place of occurrence vide memo. Exh. P. C.

Hamid Aslam accused was arrested on 7‑2‑1984. Muhammad Nawaz and Saadat Nawaz accused were arrested on 8‑2‑1984. At the time of arrest licence book regarding revolver was recovered from Muhammad Nawaz accused vide memo. Exh.. P. E.

On 14‑2‑1984, Hamid Aslam accused while in police custody led to the recovery of revolver P.4 from LDA park which was taken in possession vide memo. Exh. P.F. by S.I. Bashir Hussain Shah P.W.11 in presence of. Muhammad Ismail P.W.4 and Muhammad Sharif P.W. not examined. The fire‑arm expert in his report Exh. P.K. observed that no foulings were recovered from the barrel of the revolver and, therefore, no opinion could be expressed as to when the revolver was last fired.

The accused were challaned after completion of investigation.

4. The prosecution in support of its case examined 13 witnesses. P.W.4 Muhammad Ismail, P.W.5 Mst. Sharifan and P.W.6 Muhammad Rafiq were examined as eye‑witnesses. Zia Ullah, an eye‑witness named in FIR was given up as having been won over by the accused. The recovery of revolver P.4 was witnessed by Muhammad Ismail P.W.4 The medical evidence was furnished by Dr. Anwar Saeed P.W.12 and Dr. Khalid Jamil Akhtar P.W.13 as given in detail above. The case was investigated by S.I. Bashir Hussain Shah P.W.11. The evidence of the rest of the witnesses was of formal nature.

The accused when examined after close of prosecution evidence denied the charge and pleaded innocent. The recovery of revolver P.4 was denied. Saadat Nawaz accused stated that the deceased was a bad character and was killed by some unknown persons during his neferious activities. Hamid Aslam accused stated that he has been involved in this case falsely by the S.I. Bashir Hussain Shah Investigating Officer. He examined Sabir Siddique ,D.W.2, Accountant Railway Workshop Mughalpura to prove that Muhammad Rafiq P.W.6 was not present at the spot at the time of occurrence and was present at the place of his duty in Loco Shop Mughalpura. He also tendered in evidence copies of writ petitions Exh. D.E. and D.F. alongwith copies of orders in those writs Exh. D.E/1 and D.F/1. He also filed his own written statement Exh. D.1 refuting the prosecution case. Muhammad Nawaz accused also denied the charge and examined Bashir Ahmad Head Constable D.W.1 to show that the case diaries were fabricated by the investigating officer and that no case diary of this case was received at the police station or sent to the higher officers till 8 a.m. on 17‑1‑1984.

The learned trial Judge placed reliance on the prosecution evidence and convicted the three appellants as stated above.

5. I have gone through the record of this case and have also heard the learned counsel for the parties at length.

6. Mst. Sharifan P.W.5 is mother of Imtiaz Butt deceased. Muhammad Rafiq P.W.6 is a real brother of father of the deceased. Muhammad Ismail P.W.4 is a cousin of Mst. Sharifan Bibi complainant. All these witnesses are, therefore, closely related to the deceased.

Muhammad Ismail P.W. runs a retail shop in a village in District Sargodha about 200 K.M. from the place of occurrence. It was stated by him that he opens his shop at about sunrise time which is closed at about 9 p. m. He admitted that he remained associated with investigation of this case at Lahore for about one month. He further admitted that he had never been in Lahore in connection with investigation of any other case. He admitted as correct the suggestion that his cousin Irshad Ahmad was murdered in Lalian and that he spent about 3 months in pursuing the said murder case. He claimed that on 16‑1‑1984 he had come to see his cousin's sister Mst. Sharifan Bibi in Guni Mughalpura. When he reached there he learnt that she alongwith Muhammad Rafiq and Imtiaz Butt had gone to the house of Zia Ullah in Sahuwari. He, therefore, also went there and saw that occurrence. In cross‑examination he admitted that he had "just come to see Mst. Sharifan without any specific work". In my view Ismail P.W. was a chance witness. It appears that he was summoned from Sargodha after the present occurrence. The name of Muhammad Ismail P.W. is not mentioned in the F.I.R. It was not stated by Mst. Sharifan that Muhammad Ismail had followed her to the house of Zia Ullah before this occurrence. It will be observed that Muhammad Ismail not only became an eye‑witness but he also attested all the recovery memos of this case. He remained associated with investigation throughout. He is related to Mst. Sharifan. In view of the above no reliance can be placed on his evidence.

Muhammad Rafiq P.W. is real uncle of Imtiaz Butt deceased. It was stated by him that he was employed as machinist in the Loco Tool Shop Railway, Lahore. He claimed that he was on leave from 16‑1‑1984 to 24‑1‑1984. It was stated by him that he got this leave just for enjoyment. He claimed that on the day of occurrence he alongwith Mst. Sharifan and Imtiaz Butt deceased went to Sahuwari to see Zia Ullah and saw the present occurrence. He denied the suggestion that he was present at the place of his duty and did not witness the present occurrence. The accused examined D.W.2 Sabir Siddique Accountant who brought the time sheet of Muhammad Rafiq P.W. employed as machinist having Ticket No. 94207 working at Shop No. 7018 Loco Shop Mughalpura, Lahore. It was stated by Sabir Siddiq DW that there appear to be some tampering in the record regarding the attendance of Muhammad Rafiq on 16‑1‑1984 in both the shifts. He pointed out the tempering in the record by changing the word "81 into A". He further stated that against the name of Muhammad Rafiq P.W. that total working hours were recorded as 175 without any cutting. If 8 hours are excluded then the total working hours should have been recorded as 166 and not 175. He admitted that Muhammad Rafiq was allowed overtime for one hour for his work on 16‑1‑1984. I have carefully gone through the evidence of this witness and have also perused the time‑sheet Exh . D. D. It is clearly established that Muhammad Rafiq P.W.6 was present on duty in Loco Shop Mughalpura on 16‑1‑1984. He could, therefore, not be present at the spot to witness this occurrence. The leave application which Muhammad Rafiq claimed to have filed was not produced in evidence. I, therefore, exclude his evidence from consideration.

Mst. Sharifan P.W.5 is mother of the deceased. The F.I.R. was recorded within a short time of the occurrence. She alongwith her son Imtiaz Butt went to the house of their relative Zia Ullah. She was, therefore, a natural witness of this occurrence. It was argued on behalf of Hamid Aslam accused that he was not named as an accused in the F.I.R. and that he had some personal grudge with Bashir Hussain Shah S.H.O. Police Station Mughalpura. The police went to illegally arrest Hamid Aslam accused from his house during which a false case of police encounter was registered on 22‑1‑1984 vide F.I.R. Exh.P.L. and as such he has been falsely implicated in this case by changing record or police investigation. It is a fact that Hamid Aslam accused was not named in F . I . R. According to the statement Exh . P. A . recorded at the instance of Mst. Sharifan P. W.5 the two fatal shots were fired at the deceased by Saadat Nawaz accused. Hamid Aslam accused is not in any way related or connected with Saadat Nawaz. If Hamid Aslam had fired the fatal shots there was no reason for Mst. Sharifan not to state so in her first information report. It was stated by S.I. Bashir Hussain P.W.1 that after recording the statements of the eye‑witnesses he summoned Mst. Sharifan through a constable. He "confronted her with the statements of the other P.Ws. and questioned her that she and the eye‑witnesses were putting two versions and which of the version was correct. Thereafter, I recorded her supplementary statement". He further stated that the difference between the two version was that Mst. Sharifan Bibi did not name Hamid Aslam as a culprit in the case whereas the other witnesses had named him as an accused. On the other hand Mst. Sharifan stated that "on the next day of occurrence I myself came to the spot on the following day of the occurrence to clarify my statement made earlier while lodging the report P.A. (volunteered)". She further stated that" I became conscious about the mistake in not mentioning the name of Hamid Aslam accused when my son was removed to General Hospital and I was sitting outside in the Veranda". I am not prepared to accept this explanation of Mst. Sharifan. She could not have missed, omitted or forgotten to name the real culprit of her own son. She was an eye‑witness and the first version given by her in the F.I.R. was that Saadat Nawaz accused had fired two fatal shots on her son Imtiaz Butt. Hamid Aslam accused does not figure anywhere in the F.I.R. It appears that she was compelled to change her stance by the police at a later stage. It was stated by H.C. Bashir Ahmad D.W.1 that on receipt of the complaint the formal F. I. R. was recorded at the police station vide Roznamcha Entry No. 45. He further stated that vide Roznamcha entry report No.50 S.I. Bashir Hussain returned to police at 11‑35 p.m. He admitted that there was no mention of deposit of blood‑stained earth by him in the police station in the said report. He stated that the same was recorded in Register No. 19 on 17‑1‑1984. He admitted as correct that in the schedule of cases under investigation prepared on 17‑1‑1984 at 8 a.m., the F.I.R. No. 23 of this case was mentioned in the last column. He further admitted that the column containing number of the Zimnis and its date was left blank. The schedule of cases under investigation uptil 20‑1‑1984 did not contain the number and date of the Zimni. The relevant column was left blank. It is evident from this statement that the police diaries regarding investigation of this case were not deposited in the police station nor sent to higher officers regularly uptil 20‑1‑1984 as required by the police rules. These facts make the investigation doubtful and support the view that Mst. Sharifan changed her story at the instance of police at a later stage, during investigation.

The occurrence took place in front of the house of Saadat Nawaz accused. The cause of the fight, as stated in the F.I.R. was that kite of Imtaiz Butt deceased was cut by Saadat Nawaz accused on account of which Imtiaz Butt went to the house of Saadat Nawaz and lodged a protest. A fight ensued between the two. Mst. Sharifan was attracted to the spot. She was, therefore, not in a position to say as to what happened before her arrival there. Imtiaz Butt deceased himself initiated the trouble by going to the house of Saadat Nawaz accused. In view of this, I am of the view that only Saadat Nawaz accused was present at the time of occurrence. He acted to defend himself in the fight which was already going on when Mst. Sharifan reached the place of occurrence. Hamid Aslam and Muhammad Nawaz accused were not present at the spot. Even according to Mst. Sharifan, Muhammad Nawaz did not cause any injury to the deceased. According to her he was empty handed at the time of occurrence.

Another aspect which requires consideration is that according to S.I. Bashir Hussain P.W.11 he summoned Mst. Sharifan to confront her with the statements of the eye‑witnesses regarding involvement of Hamid Aslam accused. It is not the case of the witnesses that Hamid Aslam was related to his co‑accused and that he was previously known to them. There is no evidence to show as to how the witnesses came to know the name and description of Hamid Aslam accused. This fact also clearly indicates that Hamid Aslam accused was not present at the spot at the time of occurrence.

7. In view of the above discussion, the appeals of Hamid Aslam and Muhammad Nawaz accused are accepted. They both are acquitted their conviction and sentence is set‑aside. They shall be released from prison forthwith of not required in any other case. The conviction and sentence of Saadat Nawaz accused under section 302/34, P.P.C. is se' aside and instead he is sentenced to suffer 10 years' R.I. plus fine of Rs.5,000 or in default two years' R.I. under section 304(1), P.P.C A He will pay Rs.5,000 as compensation under section 544‑A, Cr.P.C. to the heirs of the deceased and in default suffer six months' R.I. Criminal Appeal No.489 of 1986 is accepted. Criminal Appeal No. 522 of 1986 on behalf of Muhammad Nawaz accused is accepted but is dismissed on behalf of Saadat Nawaz alias Tippu appellant subject to the above modification.

8. In view of the above decision in this appeal the connected criminal revision is dismissed in limine.

S.G.D./H‑2/L Order accordingly.

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