Find a Lawyer

Criminal Appeal No. 71 and Murder Reference No. 26 of 1983, heard on 10th March, 1985.

‑‑‑S. 302/307‑‑Evidence, corroborative value of‑‑No empty recovered from place of occurrence nor fire‑arms recovered from accused sent to Arms Expert for analysis whether same was used in occurrence or not‑ Recovery of fire‑arms from accused, held, of no consequence, in circumstances.

‑‑‑S. 302‑‑Evidence, appreciation of‑‑Benefit of doubt‑‑Accused allegedly armed with a rifle at time of occurrence yet nobody was hit by his firing‑‑Case of accused at par with acquitted co‑accused who were extended benefit of doubt by trial Judge‑‑Accused also given benefit of doubt and acquitted in circumstances.

‑‑‑S. 302/307/452/34‑‑Evidence, appreciation of‑‑Prosecution witnesses true and trustworthy and occurrence taking place in manner narrated by them‑‑Accused got together, procured arms and then launched concerted attack by trespassing into house of complainant party‑‑Conviction maintained, in circumstances.

‑‑‑S. 302/307/452/34‑‑Sentence, quantum of‑‑Deceased and injured prosecution witnesses attacked in their house by accused with fire‑arms without any justification‑‑Sentence of death maintained, in circumstances.

Yasin Wattoo for Appellants.

Shaheen Masood Rizvi, A.A.‑G. for the State.

Haji Riaz‑ud‑Din Ahmad Khan for the Complainant.

Date of hearing: 10th Match, 1985.

‑‑Six accused persons, namely, Talib Hussain, Abdul Majeed, Muhammad Yaqoob, Noor Muhammad, Muhammad Ayub and Muhammad Abbas were tried for the offences of rioting, house‑trespass, murder and murderous assault by Additional Sessions Judge III, Bahawalnagar, who vide judgment, dated 27‑7‑1983 acquitted Muhammad Ayub and Muhammad Abbas but convicted and sentenced the rest as under:‑

The convicts have challenged their convictions and sentences by filing this joint appeal. Besides the appeal we have before us reference under section 374, Cr.P.C., for confirmation of death sentence of Talib Hussain. This judgment shall dispose of both the criminal appeal and the murder reference.

2. The incident took place on 14‑8‑1980 at Zohr prayers' time in the house of Muhammad Yar (P.W.4) in Chak No. 163/7‑R at a distance of about 7 kilometres from Police Station Faqirwali, District Bahawalnagar. Report Exh.P.A. was lodged by Umer Hayat (P.W. 1), brother of Allah Yar (deceased), at 5 p.m., the same day, with A.S.I. Muhammad Salim Abbasi (P.W.11). In this occurrence, Allah Yar was murdered while Umer Hayat (P.W.I) and Mst. Zohran Bibi (P.W.2) were injured by gunshots. It was witnessed, besides the injured persons, by Muhammad Ashraf (P.W. 3), uncle of the deceased, and Muhammad Yar (P.W. 4), maternal uncle of the deceased.

3. The prosecution story as disclosed at the trial is that in the days of occurrence Umer Hayat (P.W. 1) was student of 8th Class in Government High School Chak No. 123/6‑R. In the same school Talib Hussain (appellant) and his friend Muhammad Boota used to study. Some months before the occurrence, Umer Hayat (P.W.1) quarreled with said Muhammad Boota who told, Talib Hussain (appellant) about it. A few days later, Umer Hayat while returning home from the school was waylaid and beaten by Talib Hussain (appellant). Umer Hayat informed his uncle Muhammad Ashraf. (P.W.3) all about it who protested to Talib Hussain. At this, Talib Hussain felt annoyed. Some days later, Muhammad Ashraf went for attending civil Courts at Bahawalnagar where Talib Hussain collected certain boys and with their help assaulted Muhammad Ashraf. On account of this, relations between the parties became strained.

4. On the fateful day at about Zohr prayers' time Umer Hayat (P.W. 1) and his brother Allah Yar (deceased) were saying prayers in the mosque adjacent to the house of their maternal uncle Muhammad Yar (P.W. 4). Talib Hussain came there and threw a pebble on the head of Allah Yar. This led to an altercation between them wherein Umer Hayat and Allah Yar gave fist blows to Talib Hussain who went away saying that he would take revenge of his insult. Thereafter, Umer Hayat and Allah Yar came to the house of Muhammad Yar (P.W. 4), their maternal uncle where Mst. Zohran Bibi, Muhammad Yar and Muhammad Ashraf P.Ws. also reached. After about. 20 minutes Talib Hussain, Abdul Ma feed, Muhammad Yaqoob and Muhammad Ayub armed with guns, Noor Muhammad with rifle and Muhammad Abbas with revolver came there shouting Lalkaras that they had come to take revenge. Mst. Zohran Bibi requested them to be patient but Talib Hussain opened fire hitting Allah Yar on the head who fell down. Abdul Majeed fired at Mst. Zohran Bibi who suffered grievous injuries on her both hands and Muhammad Yaqoob's firing hit Umer Hayat (first informant). Muhammad Ayub, Muhammad Abbas and Noor Muhammad also fired from their weapons but nobody was hit. All the accused persons then went to their Dera saying that they have avenged their insult. Allah Yar died at the spot. Umer Hayat in the company of Muhammad Yar went to the police for making report and having met A.S.I. Muhammad Salim Abbasi at canal bridge 6‑R lodged report Exh. P.Awith him. The A.S.I. sent it to the police station for formal registration of the case and then sent Umer Hayat for medical examination under police escort and he himself proceeded to the spot.

5. A.S.I. Muhammad Salim Abbasi reaching the spot prepared injury statement Exh.P.F./2 and inquest report Exh.P.F./3 of the deceased and sent the dead body for post‑mortem examination to the mortuary. He also sent Mst. Zohran Bibi, injured P.W., to the hospital for medical examination and treatment. He partly investigated the case and got prepared site plan Exh.P.L. and gave notes thereon in red ink and then handed over the investigation to S.I. Muhammad Afzal Abbasi (P.W. 12) who arrested ail the appellants as well as the two acquitted accused on 20‑8‑ 1980. Muhammad Yaqoob, Talib Hussain and Abdul Majeed individually got recovered a .12 bore gun each while Noor Muhammad got recovered a rifle at his pointation which were taken into possession vide memos. Exhs. P.K., P.G., P.H. and P.J. respectively. It may be noted that since no empty was recovered from the spot, therefore, the fire‑arms recovered from the appellants were not sent for examination by the fire arms expert. The appellants, however, failed to produce licence for possessing the said arms and were, therefore, challaned under section 13 of the Arms Ordinance, 1965. After usual investigation the appellants and the acquitted accused were challaned to Court for trial.

6. Dr. Manzurul Haq, Senior Medical Officer, Haroonabad (P.W. 8) medically examined Umar Hayat P.W. on 15‑8‑1980 at 6‑30 a.m., who noted on his person a lacerated wound 5 c.m. x 2‑1/4 c.m. x skin deep on the inner aspect of his palm of left hand 2 c.m. below the wrist joint with burning around it, which was found to have been inflicted by a fire‑arm within 24 hours duration and simple in nature.

7. On the same day, the same doctor examined Mst. Zohran Bibi P.W. who had suffered two gunshot wounds on her right and left hands, that is, one lacerated wound of entrance and exit 3 c.m. x 1 c.m. x bone deep on front outer aspect of terminal phalanx of left finger with a fracture and the other is a punctured wound of entrance 1‑1/3 c.m. x 1/3 c.m. x muscle deep on the back of right hand between the knuckles of ring and little fingers. Injury No. 1 was declared grievous.

8. The same doctor on the same day at 7‑40 a.m., conducted autopsy on the dead body of Allah Yar aged 25 years and found one punctured wound of entrance of bullet 6 c.m. x 4 c.m. on the back of middle of scalp 12 c.m. above both ears with wound of exit 8 c.m. x 6 c.m. on right side of scalp 3 c.m. above the right ear. Brain matter was coming, out of the wound and on dissection, right and left occipital, parietal and frontal bones were found fractured. In the opinion of the doctor, death had occurred due to severe shock and haemorrhage and the injury was sufficient to cause death in ordinary course of nature. Death in this case was instantaneous and post- mortem examination was carried out within 12 to 24 hours of the death.

9. It may be mentioned here that under the orders of District Magistrate, Bahawalnagar, Dr. Sher Muhammad, Medical Superintendent, Bahawalnagar (C.W.1) carried out re‑examination of the injuries of Umar Hayat and Mst. Zohran Bibi P.Ws. on 6‑10‑1980. He expressed the opinion that because the injury of Umar Hayat had healed, therefore, it was, too late to give some positive comments on it. About the injuries of Mst. Zohran Bibi he stated that the X‑Ray of her injury No. 2 showed deshaped various sized foreign bodies in the palm of her left hand but the bone of left middle finger was unhurt. He expressed doubts if Mst. Zohran's injuries were caused with gunshots as 'there was enough reason to believe that the injuries were self‑suffered'. Again, Mst. Zohran Bibi was examined by a Board of Doctors comprising three doctors with Dr. Badar ud‑Din Chaudhary, Medical Superintendent, BY. Hospital, Bahawalpur (C.W. 2) as its Chairman. Vide report Exh. C.W.1/2, dated 27‑ 11‑ 1980 the Medical Board under local anaesthesia removed foreign body lying embedded in the palm of witness. In the opinion of the Medical Board, it was 'quite obvious that foreign body in question had been fired from a fire‑arm and (injury) was not self‑inflicted'. The evidence of Dr. Sher Muhammad Khan (C.W.1) is whimsical in nature being not supported by any medico‑legal authority and stands totally washed off by the Board's opinion.

10. At the trial, the prosecution in support of its case examined 12 witnesses besides two Court‑witnesses, namely Dr. Sher Muhammad Khan (C.W. 1) and Dr. Badar‑ud‑Din (C.W. 2), Chairman of the Medical Board. Apart from the injured witnesses, namely, Umar Hayat (P.W. 1) and Mst. Zohran Bibi (P.W. 2), eye‑witness account had been furnished by Muhammad Ashraf (P.W. 3) and Muhammad Yar (P.W. 4). Recovery of arms from the appellants has been deposed to by Ahmad Khan (P.W. 9) and the medical evidence provided by Dr. Manzoorul Haq (P.W. 8) and the afore‑mentioned two Court‑witnesses.

11. The plea of the appellants and the acquitted accused before the trial Court was of denial simpliciter. Talib Hussain (appellant) when questioned about the motive made the following reply:‑

"It is correct that Muhammad Boota was a friend of mine. Umar Hayat P.W. and his brother Allah Yar deceased had teased and quarrelled with Muhammad Boota for the satisfaction of their unnatural lust and said Muhammad Boota had informed me about that objectionable conduct of Umar Hayat P.W. but it is incorrect that I or any body else had attacked or injured Muhammad Ashraf P.W. It is also incorrect that Muhammad Ashraf had lodged any protest about my conduct or I bore any grudge against him"

They also denied recovery of weapons and examined only one defence witness, namely, Muhammad Ashraf Malik, Director, Forensic Science Laboratory, Lahore (D.W.1) who stated that the head injury found on the person of Allah Yar (deceased) could not be caused with .12 bore gun if fired from a distance of 10/12 Karams. He also stated that the injury of Umar Hayat P.W. described in the medico‑legal report Exh.P.D. has marks of burning which marks were possible only if the fire‑arm had been discharged from a very close range, say within 18 inches. About the injuries of Mst. Zohran Bibi P.W., he stated that the injuries on her both hands could not be caused with a single shot but in cross‑examination he conceded that these injuries could be caused with one fire if the left hand was in a verticle position with the right hand facing the assailants. He also conceded that if the hands were kept away from the body then exposed parts of body could not be hit.

12. On consideration of evidence, learned trial Court acquitted Muhammad Ayub and Muhammad Abbas (accused) who were attributed ineffective firing and from whom fire‑arms were not recovered but the four appellants were convicted relying on the evidence of motive, ocular testimony and the incriminating recoveries.

13. Learned counsel appearing on behalf of the appellants argued that the prosecution witnesses are interested, therefore, their testimony could not be relied upon without independent corroboration which is wanting in this case; that the ocular testimony is in conflict with the medical evidence, as well as with the evidence of fire‑arms expert and as such it merits to be ignored; that Noor Muhammad, appellant, is entitled to be acquitted; and lastly he urged that if it is accepted that the occurrence took place as described by prosecution witnesses then it appears to be a case of sudden flare up and does not call for the extreme penalty. As against this, learned State counsel as well as learned counsel for the complainant supported the impugned judgment,

14. Learned trial Court has believed the recovery of fire‑arm from the appellants and has used it as confirmatory circumstance against them. Admittedly, no empty was recovered from the place of occurrence and the fire‑arms recovered from the appellants were not sent to the arms expert for analysis that they were used in this occurrence. In the absence of positive evidence that the fire‑arms recovered from the appellants were used in the occurrence, such a recovery, in our view, will be of no consequence. Learned trial Court has, therefore, erred in using this circumstance particularly against Noor Muhammad, appellant, who was allegedly armed with a rifle at the time of occurrence and nobody was hit by his firing. Learned counsel for the appellant is, therefore, not far wrong in saying that benefit of doubt extended to Muhammad Ayub and Muhammad Abbas (since acquitted) is equally available to Noor Muhammad, appellant, in the circumstances of the case. Consequently, we extend the benefit of doubt to Noor Muhammad, appellant, and acquit him.

15. The ocular evidence in this case has been provided by two injured witnesses, namely, Umer Hayat, first informant, Mst. Zohran Bibi (P.W. 2), their maternal‑uncle Muhammad Ashraf (P.W. 3) and maternal‑uncle Muhammad Yar (P.W. 4). The occurrence took place in the house of said Muhammad Yar from where the blood‑stained earth was also collected. Learned counsel attempted to argue half‑heartedly that the occurrence did not take place at Zohr prayers time and in the house of Muhammad Yar P.W. but could not point out any circumstance in support of this contention. He also failed to show as to what benefit did the prosecution derive by changing the time and place of occurrence. The fact that a woman of the complainant party (Mst. Zohran) was grievously injured left us in no manner of doubt that the incident took place in the house of Muhammad Yar P.W. as alleged by the prosecution. Injuries on the persons of Mst. Zohran Bibi and Umar Hayat P.Ws. established their presence at the spot. Muhammad Yar is the owner of the house of occurrence and Muhammad Ashraf P.W. lived closeby, hence their presence too, is not unusual. It is true that some 3/4 months before the occurrence Muhammad Yar P.W. had lodged F.I.R. Exh. D.C dated 31‑5‑1980 under section 307/452, P.P.C. at police station Faqirwali against Muhammad Yaqoob and Noor Muhammad, appellants, but it would not mean that complainant party had grievance against the appellants, rather appellants would have felt aggrieved of having been named as accused in the said criminal case. It is pertinent to note that no suggestion to Muhammad Yar P.W. was made on behalf of Muhammad Yaqoob and Noor Muhammad, appellants, that they had been falsely implicated in the instant case on account of earlier incident. Learned counsel for the appellant has tried to argue that because Talib Hussain, appellant, had given beating to Umer Hayat, the first informant, and also to Muhammad Ashraf P.W., therefore, the motive lay on their side instead of the appellants. By this learned counsel perhaps wanted to show that the complainant party was the aggressor but he shirked from telling us what is his side of version, because the record is absolutely silent in this regard. The appellants did not give any counter version blaming the complainant party as aggressor. Suffice it to say that on the appellants side not a scratch was suffered by anybody. We are therefore, satisfied that the eye‑witnesses were present at the time of occurrence. they did not have any long‑standing‑enmity prompting them to falsely implicate the appellants and their testimony can be safely acted upon without any corroboration.

16. The medical evidence available on record shows that the deceased as well as the two injured witnesses suffered gunshot injuries. The injuries found on the dead body as well as on the person of eye‑ witnesses appear to have been caused by three shots. Dr. Manzur‑ul‑Haq (P.W.8) described the fatal head injury of the deceased as "punctured wound of entrance of bullet 6 c.m. x 4 c.m." In other words the diametre of this injury is 2‑1/2 x 1‑1/2" and we are unaware of bullet of a size which if fired through a rifle or pistol would cause such an extensive wound of entry. It appears to us that a cartridge containing ball pellet was fired which entered the head of the deceased in a mass causing such a wound. It has been further argued that the witnesses' claim that Umer Hayat P.W. was fired at from a distance of 12 Karams is belied as the burning found around the wound of Umer Hayat could only appear if fired at from a very close range. It may be noted that, according to Muhammad Akram, Sub‑Engineer (P.W.10) who traced the site plan Exh. P.L., the victims were fired at from a distance of 33‑1/2 feet. We think it would be too much expecting the witnesses who are simple in villagers to give accurate distance from where they were shot at. Again in such a situation where the enemies duly armed with guns trespassed into a house with determination to kill, the inmates of the house would have run helter‑skelter and the shooters also did not remain stationary. It is thus quite possible that Umar Hayat was shot at in the process from a distance of few feet. It is worth noting that the injured witnesses were not suggested that they had simulated the injuries on their persons. The evidence of Muhammad Ashraf Malik (D.W.1) to our mind is of least help to the appellants and the medical evidence also did not damage the prosecution case.

17. We have already held that the injuries of the deceased and the prosecution witnesses were caused by three shots. None of the assailants allegedly fired twice. It means that three persons definitely participated in the firing. Talib Hussain, Abdul Majeed and Muhammad Yaqoob, appellants, have been attributed specific shot. It did not happen all of a sudden as canvassed by the learned counsel, as it must have taken some time for the appellants to get together, procure the arms and then launched concerted attack by trespassing into the house of the complainant party.

18. For the foregoing reasons, we are convinced that the prosecution witnesses are true and trustworthy and the occurrence had taken place in the manner narrated by them. We, therefore, hold that Talib Hussain, Abdul Majeed and Muhammad Yaqoob, appellants, have been rightly I convicted for the offences under sections 452, 307 and 302, P.P.C. read with section 34, P.P.C.

19. As for the sentence, we find that Allah Yar (deceased), his brother Umar Havat and sister Mst. Zohran Bibi P.Ws. were attacked in their house by the appellants with fire‑arms without any justification. There being no mitigating circumstance, Talib Hussain, appellant, who fired fatal shot at Allah Yar (deceased) richly deserves the death penalty. Life imprisonment to Abdul Majeed and Muhammad Yaqoob, appellants, under section 302/34, P.P.C. is also appropriate. Likewise the sentences awarded to the appellants under sections 452 and 307/34, P.P.C. do not call for interference and as such are maintained

20. The result is that this appeal is accepted to the extent of Noor Muhammad, appellant. His convictions and sentences are set aside and he is acquitted. He be released forthwith if not wanted in any other case. As for Talib Hussain, Abdul Majeed and Muhammad Yaqoob, appellants, this appeal is dismissed. Their convictions and sentences are maintained. The death sentence of Talib Hussain IS confirmed.

S.G.D./T‑7/L 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.