ASHIQ HUSSAIN Versus THE STATE
1. BASHIR A. MUJAHID, J .‑‑‑Ashiq son of Mureed has challenged judgment, dated 2‑12‑1996 passed by the learned Additional Sessions Judge, Faisalabad whereby he was convicted under section 302(b), P.P.C. and sentenced to death for causing death of Maqbool Hussain. He was also ordered to pay compensation of Rs.50,000 to the legal heirs of the deceased section 544‑A, Cr.P.C. in default of undergo six months' R.I. He was further convicted under section 392, P.P.C. and sentenced to 14 years' R.I. and a fine of Rs. 50,000 in default of payment of fine to further undergo five years' R.I. However, both the sentences were ordered to run concurrently if the death sentence is not confirmed, with benefit of section 382‑B, Cr.P.C.
2. The brief facts of the prosecution case are that F.I.R. No. 462 Exh. PQ/1 was registered at Police Station Nishatabad at 11:10 p.m. on 1‑11‑1994 on the statement Exh. PQ of Muhammad Saleem, P.W.11 recorded by Zia Ullah P.W.19 wherein it was stated that he was Bus Driver and at 10.15 p.m. on the day of occurrence he alongwith his brother Maqbool Hussain who was milk seller were present at the Tea Stall of Mushtaq near over‑head bridge Nishatabad, when three persons, two armed with guns while one with Carbine arrived there and started looting the shopkeepers. They extorted Rs.200 from Muhammad Ramzan owner of sweet shop, Rs. 1500 and a silver ring from Muhammad Sarwar owner of A‑one Ice Cream, Rs. 300 from Khalid of Medical Store, Rs. 250 Muhammad Ali Dispensar, Rs. 650 and a silver ring from Irshad Ahmad, Rs. 150 from Akhtar Ali Tailor Master and Rs. 1600 from Manzoor Pan Shop, and when they reached at the Tea Stall of Musthaq Ahmad, Maqbool Hussain (deceased) refused to pay the amount and resisted, on which all the three accused fired at Maqbool Hussain who after receiving the injuries fell on the ground. The shopkeepers and inhabitants of the locality gathered at the spot and they started throwing pellets stone at the culprits. Subsequently, the culprits were fired at by Muhammad Aslam, Taj Muhammad and Dr. Akram in self‑defence and two of the assailants died at the spot while third assailant of wheatish colour, well built, middle height with beard aged about 20/25 years escaped from the spot while firing in the air due to darkness.
3. Zia Ullah Khan, P.W.19 after recording the statement Exh. P.Q. sent the same for registration of formal F.I.R. and sent Maqbool Hussain (injured) for his medical treatment and he himself undertook the investigation and secured the blood stained earth from the spot where Maqbool Hussain was injured through Exh. P.B. and also the places where the dead bodies of the dacoits were lying through memo. Exh. P.W. and Exh. P.H. He took into possession gun P.26 and 10 empties (P.41 to P.50) and bandolier P.51 containing ten live cartridges P.52 to P.61 lying near the dead bodies, and cash amount of Rs.2220, P.53/1‑115 which were taken into possession through memo. Exh. PY. He took into possession Carbine P.54 from near, the dead body of other dacoits, 8 live cartridges P55/1‑8, two empty cartridges P.56/1‑2 and nine currency notes of one hundred each and four currency notes. He also prepared inquest report of the dead body of one person Exh. P.E. and injury statement Exh. P.F. while the inquest report of other person Exh. P.J. and injury statement Exh. P.K. and sent the dead bodies for postmortem examination. On 2‑11‑1994 Ijaz Hussain, Constable produced before him last‑worn clothes of the two deceased and the postmortem reports which were taken into possession by him. On 6‑11‑1994, he got prepared the site‑plan of the place of occurrence Exh. P.A. On 1‑11‑1994 Maqbool Hussain succumbed to the injuries and his postmortem examination was got conducted through Dr. Muhammad Javed, P.W.3. On 24‑11‑1994, he arrested the present appellant, who while in police custody led to the recovery of silver rings P.24 and P.25 and three watches P.3, P.4 and P.4/1 and different clothes which were taken into possession through memo. Exh. P.R. On 24‑11‑1994 Ashiq accused/appellant led to the recovery of gun P.26 and 5 live cartridges P.27 to P.31 which were taken into possession through memo. Exh. P.S. He was directed to muffle his face and was sent to judicial lock‑up for his identification parade. On 25‑11‑1994, the appellant was also got medically examined and sent in judicial lock‑up for his identification parade. The identification parade was held in District Jail Faisalabad on 7‑11‑1994 under the supervision of Muhammad Shamim, Jehangir MIC/P.W.2 and on 8‑12‑1994 physical remand of the accused was obtained. The Investigating Officer recorded the statements of the P.Ws. under section 161. Cr.P.C., completed the investigation and submitted the challan. The trial Court framed the charge which was denied by the accused/appellant, who claimed trial.
4. During the trial, the prosecution examined as many as 19 witnesses to prove the guilt of the accused.
5. The medical evidence was furnished by Dr. Muhammad Javed, P.W.3 who on 2‑11‑1994 conducted the postmortem examination on the dead bodies of two unknown persons taken from the spot and found 4 injuries on the dead body of one dacoit aged about 20/23 years. While on the other dacoit found three injuries who was aged 30/31 years.
6. On the same day at 12.50 p.m., he conducted the postmortem examination on Maqbool Hussain and found the following injuries on his person:‑‑‑
(1) A lacerated wound 1/2 x 1/2 c.m. blackened and inverted margins on the lateral side of right arm 10 c.m. above the right elbow joint it was wound of entry making a tract moving interomedial and producing exit wound 1 x 1 c.m. on medial aspect of right arm.
(2) A lacerated wound 1 x 1 c.m. on the left cheek moving medially and upwardly, on opening the skull a pellet was removed from the skull base it had damaged the skull base and part of the brain.
(3) A lacerated wound 1/2 x 1/2 c.m. with inverted margins on the lateral part of left leg moving down wordly and medially producing an exit wound of 3/4 x 3/4 c.m. about 2 c.m. inferior to the entry wound.
(4) A lacerated wound of entry 1/2 x 1/2 c.m. on the anteriolateral part of left side of chest 7 c.m. above the left nipple 14 c.m. to the midline moving through the upper lobe of left lung damaging and passing the fourth thorasis vertibrae, a pellet was removed from the skin covering both thoracic vertibrae.
7. Earlier on 25‑11‑1994 he had medically examined Ashiq, appellant and found the following injuries on his person:‑‑‑
(1) A healed wound 1/2 x 1 /2 c. m. on top of left side of head on polpating the area of foreign body could be feet.
(2) A healed wound 1/4 x 1/4 c.m. on left side front of chest.
(3) A healed wound 1/4 x 1/4 c.m. on back of right fire‑arm.
(4) A healed black surface wound 1 /4 x 1/4 c.m. on front of lower part of left thigh.
(5) A healed wound 1/4 x 1/4 c.m. on xiphi sternum.
8. The ocular account was furnished by Muhammad Saleem P.W.12 who was complainant of the case. He supported the version of the F.I.R. Irshad Ahmed, P.W.12 and Mushtaq Ahmad, P.W.8 were also eye‑witness of the occurrence. Their statement is in line with the statement of Muhammad Saleem complainant. All the three witnesses Muhammad Saleem, Irshad Ahmad and Mushtaq Ahmad had identified the appellant during the identification parade in District Jail Faisalabad on 5‑12‑1994 under the supervision of Muhammad Shamim Jehangir, P.W.2 by his role played during the occurrence. Fakhar‑ul‑Abbas,' P.W.4 H.C. had recorded the formal F.I.R Exh. P.Q./1. Muhammad Rafiq, F.C. P.W5 attested the recovery memo. Exh. P.S. Whereby appellant got recovered gun P.26 on 24‑11‑1996. Ijaz Ahmad, F.C. P.W.6 had produced last‑worn clothes of the deceased before the Investigating Officer Manzoor Ahmad P.W.7, Taj Mehmood P.W.9, Muhammad Aslam, P.W.10, Muhammad Ali P.W.13, Khalid Mehmood P.W.14, Muhammad Ramzan P.W.16, Akhtar P.W.15 and Muhammad Sarwar P.W.17 were victim and deprived of the cash amount and other articles. They were also eye‑witnesses of the occurrence and supported the prosecution story as mentioned above. Zia Ullah Khan, P.W.19 investigated the case as mentioned above.
9. The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh. PAA and that of Serologist Exh. PBB.
10. The statement of the accused under section 342, Cr.P.C. towards the end of the trial. He denied the allegations w id claimed his innocence and false involvement. He also denied allegations for having participated in the occurrence.
11. The trial culminated into conviction of the accused/appellant as mentioned above. He has challenged his conviction and sentence through Criminal Appeal No. 1061 of 1996 while the trial Court has sent up Murder Reference No. 116 of 1998 for confirmation of death sentence of the appellant under section 374, Cr.P.C. Both the matters are being decided by this judgment.
12. Learned counsel for the appellant has argued that the prosecution case for commission of murder of Maqbool Hussain has not been proved against the appellant, that the appellant was alleged by all the witnesses having been armed with Carbine while recovery of gun has been effected which creates serious doubt in the prosecution story: that two of the assailants were admittedly murdered by the people gathered at the spot and the appellant was also injured and from the site‑plan it is evident that Maqbool Hussain was fired at by the persons who caused the death of two assailants and appellant is not responsible for the alleged offence and he is entitled for acquittal as he has been falsely implicated.
13. Conversely the appeal has been opposed by the learned counsel for the State who has supported the impugned judgment.
14. Heard. Record perused.
15. It is correct that the F.I.R. was recorded against unknown assailants. The description of the assailants who escaped from the spot was given by the complainant in the F.I.R. and he was duly identified by Muhammad Saleem, P.W.11 Mushtaq Ahmad, P.W.8 and Irshad Ahmad, P.W.12 during the identification parade by his role. The identification parade was held under the supervision of Muhammad Shamim Jehangir P.W.2. He observed all the legal formalities for conducting the parade. There is no possibility of false involvement of the appellant or substitution. The recovery rings and other articles looted by him was also effected from his possession. The ocular account against the appellant has been furnished by three witnesses namely, Mushtaq Ahmad P.W.8, Muhammad Saleem P.W.11 and Irshad Ahmad P.W.12 which has also been corroborated by independent and impartial witnesses i.e. Ijaz Ahmad. P.W.6, Manzoor Ahmad P.W.7, Tai Muhammad P.W.9, Muhammad Aslam P.W.10, Khalid Mehmood P.W.14. Muhammad Ali P.W.13, Akhtar P.W.15, Muhammad Ramzan P. W.16, Muhammad Sarwar P.W.17 and Ghulam Hussain P.W.18. All of them were victims in dacoity and they have no enmity against the appellant to depose against them. They unanimously stated that the appellant fired at Maqbool Hussain deceased, therefore, we do not find any force in the arguments advanced by the learned counsel for the appellant that he was involved falsely by the complainant. The prosecution case has further been corroborated by the medical evidence and also medical examination of the appellant who was injured in the same occurrence, therefore, the conviction is maintained.
16. As far as the sentence is concerned all the eye‑witnesses have stated that he was armed with Carbine but recovery of gun has been affected from his possession. The empties taken into possession from the spot have tot been sent for comparison to the Forensic Science Laboratory, therefore, recovery of weapon of offence is immaterial and is of no consequence. As the firing was made from both the sides as the persons gathered at the spot also fired at the accused which caused death of two assailants. The appellant was also injured in the same occurrence. The injuries on the appellant/accused have been suppressed in the F.I.R. The accused have been stated to be at Point No.4 in the site‑plan while the persons who fired at the assailants were at Point No. 5 (behind the tractor) and the injuries on the person of deceased Maqbool Hussain are result of scattered pellets and it is not clear that who out of the assailants caused the fatal injuries. There was cross‑firing from both the sides, therefore, keeping in view all the circumstances of the case, we consider that it is not a fit case for capital punishment and the same is reduced to imprisonment for life under section 302(b), P.P.C. However, the case under section 392, P.P.C. has been fully proved by the prosecution as looted articles were recovered from his possession, therefore, the conviction and sentence under section 392, P.P.C. is maintained. However, in lieu of payment of fine the sentence is reduced to one year's R.I. Both the sentences shall run concurrently. Benefit of section 382‑B, Cr.P.C. will also be available to the appellant. The appeal is dismissed with the above modification. The death sentence of Ashiq appellant is not confirmed.
17. Murder References is answered in the negative.
18. H.B.T./A‑662/L Order accordingly.