RAFIQUE ALI Versus STATE
SARDAR MUHAMMAD DOGAR, J : ‑ Muhammad Aslam, aged 28 years was tried by Sessions Judge, Jhang, alongwith his brother, Manzur Ahmad, aged 32 years and Ghulam aged 30 years, for having murdered Hayat, at 10 a.m. on 22‑11‑1984, in the Fertilizer shop of Abdus Salam, at Adda Ahmad Nagar, at a distance of two miles from Police Station Rabwah, District Jhang.
The learned trial Judge convicted Muhammad Aslam under section 302, P.P.C. and sentenced him to death, plus to pay a fine of Rs.10,000 in default whereof to undergo R.I. for three years, vide judgment dated 3‑2‑1986. The fine, on realization, has been directed to be paid as compensation to the heirs of the deceased.
The other two accused were acquitted vide the same judgment.
2. The convict has filed appeal. Reference has also been made by the trial Judge for confirmation of death sentence. Both the matters are being disposed of together.
3. F.I.R. (Exh. P.E.) was recorded at Police Station Rabwah, on 22‑11‑1984 at 11 a.m. by Mahmood Ahmad, A.S.I. (P.W.9), on the statement of Nazir Ahmad (P.W.7).
According to F.I.R., complainant alongwith deceased reached Adda Ahmad Nagar at 10 a.m. on 22‑11‑1984 while on way to Kot Ismail. They sat at the tea hotel of Abdul Latif for taking tea. No sooner they had taken seats, the appellant armed with a revolver, accompanied by his brother Manzur, also armed with a revolver, and Ghulam armed with a carbine, came, there. The appellant raised a Lalkara that they have come to avenge the murder of their brother, Bashir. Hayat ran to the Fertilizer shop of Abdus Salam to save his life. He chained the door from inside after entering the shop. All the three accused broke open the door while firing in the air. The appellant then fired from his revolver hitting Hayat on the side of right ear. The shot fired by Manzur struck Hayat on the left flank. Ghulam fired three successive shots hitting Hayat near the right eye, left arm and chest. He died at the spot. The occurrence, apart from the complainant, was witnessed by Sardara (P.W.8) and Sahib Din, given up P.W.
The motive for the occurrence given in the F.I.R. is that Sardara, a paternal cousin of Hayat, had murdered Bashir, real brother of Aslam and Manzur. The accused suspected that Hayat had got Bashir murdered.
4. Mahmood Ahmad, A.S.I. (P.W.9), after recording the F.I.R. reached the spot. He despatched the dead body for post‑mortem examination, after preparing the injury statement and inquest reports. He collected blood‑stained earth from the spot and also took into possession wooden shutter of the door (P.6) vide memo. Exh. P.G. The investigation thereafter, was taken over by Zulfiqar Ali, S.I. (P.W.10). He formally arrested Aslam, after obtaining his custody from the police of P.S. Chiniot, who had arrested him in some other case. Aslam led to the recovery of revolver (P.5) on 12‑3‑1985, which was taken into possession vide memo. Exh. P.D. He had declared the other two accused as innocent after investigation, which was verified by the D.S.P. He had initially shown their names in column No.2 of the challan but on an objection raised by the District Attorney he placed their names also in column No3.
5. Statements of ten P.Ws. were recorded at the trial.
Dr. Muhammad Abdullah Shah Hashmi, who had performed the post-?mortem examination at 4 p.m. on 22‑11‑1984 on the dead body of Hayat, was not available. Secondary evidence was, therefore, produced by way of examining Fida Hussain, Dispenser as P.W.5, to prove the entries in the post‑mortem report (Exh. P.C.) Fida Hussain stated that he could identify the handwriting and signatures of Dr. Abdullah Shah Hashmi, as he had been working with him. According to him, the post‑mortem report (Exh. P.C.) and the sketches of the injuries (Exhs. P.C./1 and P.C/2) were in the hand of Dr. Adbullah Shah Hashmi and bore his signatures.
According to the post‑mortem report, the deceased was found to have suffered following injuries:‑
(1) ??????? A gunshot wound with lacerated edges 2 x 2 c.m. in the skull, coming on the right ear.
(2) ??????? A gunshot wound, 1/2 c.m. in circumfrance on the outer side of the right eye.
(3) ??????? A gunshot wound 1/2 c.m. circumfrance below the right eye.
(4) ??????? A gunshot wound 1/2 c.m. in circumfrance on the outer side of the right ??????????? forearm 6 c.m. from the elbow joint.
(5) ??????? A gunshot wound 1/2 c.m. in circumfrance 4 c.m. above the right wrist joint.
(6) ??????? A gunshot wound 5 x 3 c.m. on the front of left chest, below the nipple.
(7) ??????? A gunshot wound 1/2 c.m. circumfrance at level of the tip, 9th left 10 th ribs. All the wounds were of entrance, with inverted edges lacerated.
Skull under injury No.1 was found fractured. A bullet was found at the base of the brain. 8th and 9th ribs were also fractured in the left side of the chest. Six pellets were recovered from the left side of the chest. Peritoneum and spleen were found ruptured.
Death was opined to have occurred due to shock and haemorrhage, resulting from injuries Nos. 1, 6 and 7, which were opined to be sufficient to cause death in the ordinary course of nature. Time between injuries and death was opined to be immediate while duration between death and post‑mortem was opined to be about six hours.
6. The ocular account was deposed to by Nazir Ahmad (P.W.7) and Sardara (P.W.8). Nazir Ahmad repeated the facts given by him in the F.I.R. He also stated about having witnessed the collection of blood‑stained earth from the spot and taking into possession of wooden shutter from there. Sardara (P.W.8) corroborated the statement made by him.
P.W.7 during cross‑examination explained that Muhammad Hayat was going to Kot Ismail to get the price of his bullock from Jumma Odh and that he was accompanying him on his asking. He denied the suggestion that the story of going to Kot Ismail was cooked up. He admitted that Manzur (acquitted accused) was complainant in the case of murder of his brother Bashir and that Shera, one of the accused in that case, was brother‑in‑law of Hayat (brother of Hayat's wife). He also stated that Sardara accused in that case was his first cousin as well as that of Hayat deceased.
Both the witnesses, i.e. P.Ws.7 and 8 admitted during cross‑examination that there were 15/20 shops near the place of occurrence and that sufficient number of persons, other than P.Ws., had also witnessed the occurrence. P.W.7 explained that nobody was prepared to come up as a witness because of the fear of the accused. They admitted that the accused had not fired at the deceased when he was running from the hotel to the fertilizer shop. The distance of fertilizer shop from the hotel was given to be four Karams by P.W.7. While explaining his presence at the spot, P.W.8 stated that he had gone there to purchase fertilizer. Both the witnesses denied the suggestion that they had not witnessed the occurrence and had made false statements.
7. Allah Yar, who had witnessed the recovery of pistol (P.5) at the pointing out of the appellant from his house appeared as P.W.6. He admitted during cross?-examination that he was neither a Lambardar nor a Councillor. He admitted that given up P.W. Samanda, pertaining to the recovery of pistol, was his first cousin. In answer to another question, he stated that no other person from the public was present at the time of recovery except himself and Samanda. He denied the suggestion the pistol was not recovered at the instance of the appellant. His statement about the recovery of pistol has been corroborated by Zulfiqar Ali, S.I. (P.W.10). P.W.10 also deposed about having from all arrested the appellant and of having arrested Ghulam and Manzur (acquitted accused). He disclosed that Ghulam accused was declared innocent during investigation and the investigation was verified by D.S.P.
8. We have gone through the evidence with the assistance of the learned counsel for the appellant and have perused the impugned judgment.
9. Learned counsel for the appellant did not deny the factum of the murder of Bashir, brother of Manzur co‑accused of the appellant, and of the case having been registered against a cousin of the deceased for that. He, however, stated that brothers of Bashir deceased had never expressed suspicion against Hayat of having got their brother murdered. Learned counsel laid stress on the fact that no such thing was mentioned in the F.I.R. lodged by Manzur acquitted accused.
Learned counsel contended that the motive mentioned by the complainant could not have been a reason for the appellant to murder Hayat anti that instead the complainant could have grievance against the appellant's family, as their relatives were involved in that case. But we do not subscribe to this view. One of the murderers of Bashir, namely, Shera, was brother of the wife of the deceased while the other, namely, Sardara, was his first cousin ... The deceased must naturally had been pursuing that case and so the appellant would definitely have a grievance against him.
10. The argument of the learned counsel for the appellant that the eye-witnesses in this case do not belong to the place where the occurrence had taken place and were residing in a village about 6/7 miles away and so being chance witnesses no reliance can be placed on their testimonies in our view, does not possess strength in the circumstances of this case. Herein the deceased also did not belong to the place, where the murder took place. The appellant also did not reside there. It is nobody's case that the deceased was not murdered in the fertilizer shop. Both the eye‑witnesses have given sufficient reasons for being " present at the place of occurrence. Except the shopkeepers of the shops near the place of occurrence, anybody else would have been a chance witness. It is common knowledge that people do not come up as witnesses in capital offences, in the occurrence, which takes place amongst strangers for fear of reprisals. This fact is apparent in this case as well. The shop‑keepers who did not come up as witnesses for the prosecution also did not come up m defence of the accused. The statements of the eye‑witnesses, therefore, in our view, cannot be ruled out on the ground of not belonging to the place of occurrence.
11. The argument of the learned counsel for the appellant that picturesque narration of the infliction of injuries to the deceased by the accused given by the witnesses is unbelievable, particularly in view of the fact that the deceased was said to have suffered injuries while being inside the room, in the door of which the assailants were standing, has been examined by us by going through the statements of the eye‑witnesses.
Apparently the argument seems to possess weight. But at the same time, we are of the view that testimonies of the eye‑witnesses cannot be discarded merely on that account. They might have a little bit overacted in their anxiety to see that the murderers of the deceased do not escape scot free by giving the seats of injuries from the shots fired by the assailants. The mere fact of their having done that cannot be taken to mean that they had not witnessed the occurrence. Their statements of having seen the deceased being fired at from the door, as a result of which he was found later to have died, is in itself sufficient to connect the appellant with the crime. While arriving at this conclusion, the fact of the F.I.R having been lodged promptly and the recovery of revolver at the instance of the appellant, has also been in our view. More than that what has impressed us is also the fact that the statements of the eye‑witnesses that the deceased was chased and was murdered after breaking open the door, finds corroboration from the taking into possession of a plank of the door.
12. In the circumstances, we are convinced that the appellant has rightly been convicted under section 302, P.P.C. The same is maintained.
However, we are of the view that sentence of death cannot be maintained in this case. The reasons for that are that apart from the fact that even according to the witnesses, some other persons had also fired at the deceased, the doctor, who had performed autopsy had, during post‑mortem examination, found a bullet lodged at the base of the brain under injury No.1 and six pellets on the left side of the chest. The recovery of the bullet and pellets shows that the deceased was struck with shots fired from two different types of weapons. He had died of the injuries numbered 1, 6 and 7. The doctor did not specifically say that each of the three injuries individually was sufficient to cause the death. The impression one gets from his statement is that the death had occurred due to cumulative effect of all the three injuries. In the circumstances, it cannot be assumed with reasonable certainty that appellant alone was responsible for the death of the deceased. His sentence of death is, therefore, altered to imprisonment for life. The sentence of fine is maintained. He shall be given the benefit of the provisions of section 382‑B, Cr.P.C.
S.A./M‑1430/L ??????????????????????????????????????????????????????????????????????????????????? Sentence altered.