ALI AHMAD BALOCH Versus STATE
MUHAMMAD NAWAZ ABBASI, J.-- -- This judgment shall dispose of Criminal Appeal No.129 of 1991 filed by Muhammad Nadeem, Muhammad Hanif, Saleem and Sarfraz convicts and Murder Reference No.273 of 1991 made by the trial Court under section 374, Cr.P.C. for confirmation of* death sentence of Nadeem.
2. Muhammad Nadeem (20 years), Muhammad Saleem (22 years) sons of Muhammad Hanif, Sarfraz (20 years) and Muhammad Hanif (70 years) appellants alongwith Maqsood Ahmad son of Manzoor Ahmad, Nizam Din (65 years), Mushtaq Ahmad (50 years) and Manzoor Ahmad (48 years) acquitted accused faced trial under section 302/307/148/149, P.P.C. for the allegation of committing murder of Muhammad Khalil deceased before the learned Additional Sessions Judge, Multan who vide his judgment, dated 19-5-1991 convicted Muhammad Nadeem, Muhammad Saleem, Muhammad Hanif and Sarfraz under section 302/307/34, P.P.C. Under section 302/34, P.P.C. Muhammad Nadeem was awarded death penalty whereas the remaining three appellants namely Muhammad Saleem, Muhammad Hanif and Sarfraz were awarded life imprisonment with a fine of Rs.20,000 each and in default of the payment of fine to undergo R.I. for 1-1/2 years. Fine if realized was directed to be paid to the legal heirs of the deceased as compensation. Under section 307/34, P.P.C. all the appellants were separately awarded seven years' R.I. each with a fine of Rs.5,000 each and in default of the payment of fine to undergo further R.I. for nine months. Fine if realised was directed to be paid to the injured P.Ws. in equal share.
3. Ghulam Muhammad S.I. P.W.14 on receipt of information about the occurrence and removal of the injured to the Nishtar Hospital reached there. He after seeking permission from the doctor who declared the injured fit to make statement recorded the statement Exh.P.L. of Muhammad Akhtar injured P.W.11 to the following effect.
That at about 12 noon on 5-6-1989, a quarrel took place between Abid Ali nephew of the complainant and Tanvir son of Manzoor Ahmad accused. Muhammad Akhtar complainant protested against the behaviour of Tanvir to Muhammad Hanif. Muhammad Hanif accused reacted and abused the complainant uttering that the children of the complainant side are Badmuash as a result of which there was an exchange of hot words and grappling between them. However, they were separated and Muhammad Hanif went away extending threats to teach lesson to the complainant for the insult.
At about 10 p.m. on the same day Muhammad Akhtar complainant alongwith Muhammad Khalid Ghulam Saber, his brothers and Khalil, his cousin was present in Chowk Mandar Gopal when all the four appellants with Mushtaq and Maqsood acquitted accused armed with .12 bore guns, Manzoor and Nizam Din empty-handed appeared on the roof of Primary School adjacent to the Chowk Mandar Gopal, raising Lalkara to evenge themselves and not to spare them. Manzoor and Nizam Din instigated their co-accused to do away with the complainant and P.Ws. whereupon Muhammad Nadeem fired with his gun which hit Muhammad Khalil on head. Muhammad Saleem fired a shot hitting on the forehead and shoulder of the deceased. The fire shot by Muhammad Hanif hit Khalid P.W. causing him injuries on face and left side of chest. Thereafter, all the six accused started firing and as a result of this firing, the pellets hit Muhammad Akhtar on right thigh, left foot and left buttock. Ghulam Sabir received injuries on the left side of his chest. Muhammad Ishaq and Saced Ahmad passers by were also injured because of firing of the appellants. Muhammad Latif and Sajjad Ahmad were attracted to the scene and witnessed the occurrence.
4. On the report lodged by Muhammad Akhtar P.W.11, a case was registered against the appellants and others through F.I.R. Exh.P.L./1. On expiry of Muhammad Khalil, during the same night i.e. 5-6-1989 at 1-00 a.m. Section 302, P.P.C. was added. Girl Muhammad S.I. P.W.14 after preparing the injury statement Exh.P.E. and inquest report Exh.P.H. of the deceased sent the dead body to the mortuary for post-mortem examination. He took into possession blood-stained Shirt P.7, Shalwar P.8 and Vest P.9 of Muhammad Akhtar injured vide memo. Exh.P.S. The blood-stained shirt P.10 of Muhammad Khalil deceased was taken, into possession vide memo. Exh.P.I. Shirt P.11 and Vest P.12 of Muhammad Khalid were taken into possession vide memo. Exh.P.U. He recorded the statement of injured P.Ws. He also took into possession blood-stained shirt P.6 of Ghulam Sabir injured P.W. vide memo. Exh.P.R. During the spot inspection, he collected 9 crime empties Exh.P.13/1 -9 from the spot and took the same into possession vide memo. Exh.P.B. The blood-stained earth secured from the spot was taken into possession vide memo. Exh.P.W. He arrested Muhammad Nadeem on 21-6-1989 who alongwith gun P.4 was produced before him by Barkat. The gun was taken into possession vide memo. Exh.P.O. by Gul Muhammad S.I. P.W.14 in presence of Gulzar Hussain P.W.9. Muhammad Saleem appellant was arrested on 16-6-1989 and a .12 bore gun PS was recovered at his instance on 22-6-1989 which was taken into possession vide memo. Exh.P.Q. No recovery was effected from Sarfraz and Muhammad Hanif. The positive report of the Technical Services regarding the crime empties and the weapon of offence Exh.P.DD. and that of Chemical Examiner Exh.P.BB. were made part of record.
5. Doctor Sajjad Ahmad P.W.15 medically examined Muhammad Khalil on 5-6-1989 at 11 p.m. and found the following injuries on his person:--
INJURIES
(1) Three lacerated wounds of entry with inverted and ragged margin depth not probed, each measuring 1 c.m. x 1 c.m. in diameter, on the frontal part of skull on area measuring 6 c.m. x 4 c.m.
(2) A lacerated fire-arm entry measuring 1 c.m. x 1 c.m. on the front of left shoulder. Depth not probed.
6. Doctor Altaf Hussain P.W.4 conducted the post-mortem examination on the dead body of Khalil deceased on 6-6-1989 and found the following injuries: --
INJURIES:
(1) Three lacerated wounds of fire-arm entry with inverted margins on the front part of head measuring 1 c.m. x 1 c.m. circumference.
(i) Right side of head 3 c.m. from central line and 7 c.m. from eyebrow.
(ii) At the central line 2 c.m. back and medial to No.(i).
(iii) Right side of head 2 c.m. back and lateral to No.(ii).
(2) A lacerated wound of fire-arm entry 1 c.m. x 1 c.m. on the front and upper part of left shoulder 3 c.m. below and lateral to clavicle.
In the opinion of the doctor, the death was occurred due to intra cranial haemorrhage and shock as a result of injury No.l which was sufficient to cause death in the ordinary course of nature.
7. Doctor Noor Ahmad P.W.5 examined the injured witnesses namely Muhammad Khalid P.W.12, Muhammad Akhtar P.W.11 and Ghulam Saber P.W.13 alongwith Muhammad Ishaq and Muhammad Saeed (given up P.Ws.).
The following injuries were found on the person of Muhammad Khalid:--
(1) Multiple gunshot wound all over the left side of face in the area of 16 c.m. x 10 can.
(2) Multiple gunshot wound on the front of left shoulder and the upper part of left upper arm.
Ghulam Saber was caused on fire-arm injury as under:--
A gunshot wound 1/2 c.m. x 1/2 c.m. with blackening over shirt and blood-stained clothes, on left side of chest 5 c.m. away from the middle aspect of sternum bone.
The injuries on the person of all the three injured witnesses were found simple caused within a duration of about 3 to 4 hours.
8. The Investigating Officer after completing the investigation challaned the appellants and acquitted accused to face the trial.
9. The prosecution in order to prove the charge examined Muhammad Akhtar P.W.11, Muhammad Khalid P.W.12 and Ghulam Saber P.W.13, real brothers and first cousins and brother-in-law of Muhammad Khalil deceased. Doctor Altaf Hussain P.W.4, Doctor Noor Ahmad P.W.5 and Doctor Sajjad Ahmad P.W.15 have furnished the medical evidence. Gulzar Hussain P.W.9 and Gul Muhammad S.I. P.W.14 proved the recoveries of the crime empties at the spot and the weapon of offence from Muhammad Nadeem and Muhammad Saleem appellants. The remaining witnesses being of not much importance need not to be discussed.
10. The appellants denied their participation in the occurrence and pleaded their false implication. Muhammad Hanif appellant pleaded that he has been involved in the case due to quarrel between the children. Muhammad Nadeem took the plea of alibi stating that he was admitted as indoor patient in the hospital from 3-6-1989 to 8-6-1989. The remaining accused pleaded that they were involved in the case because of their relation with Muhammad Hanif. Doctor Abdul Ghaffar, Medical Officer Rural Health Centre, Head Rajkan, Tehsil Yazman, District Bahawalpur appeared as D.W.1 in support of the defence plea of alibi raised by Muhammad Nadeem appellant. Except Sarfraz, the appellants as well as the acquitted accused appeared in the witness-box in their own defence.
11. The learned trial Court believing the prosecution case to be true convicted and sentenced the appellants accordingly.
12. Ch. Mehboob Ahmad, Advocate, learned counsel for Muhammad Nadeem, Muhammad Saleem and Sarfraz appellants raised the following contentions: --
(i) That it was a night time occurrence and the eye-witnesses remained silent about the availability of the light at the place of occurrence, therefore, it was not possible for them to identify the appellants in the dark night. He submitted that the electric bulb with shed and Tube-light with cover shown in the site plan prepared by P.W.2 Shaukat Hayat, Draftsman was a futile attempt to fill the lacuna in the prosecution case to prove the identity of the appellants at the time of occurrence.
(ii) That as per prosecution case, the appellants fired at the deceased and the P.Ws. from the roof of the school from a reasonable height but the empties were collected from near the place where deceased and the P.Ws. were present.
(iii) That the plea of alibi raised by Muhammad Nadeem was wrongly rejected. According to the official record Nadeem appellant remained indoor patient in the Health Centre in question during the days of occurrence. In absence of positive proof that a wrong record was prepared, the plea could not be rejected as presumption of truth is attached with the official record.
(iv) That according to the prosecution own case, only Muhammad Nadeem and Muhammad Saleem caused one fire each to the deceased whereas Sarfraz and Hanif having not caused any injury to the deceased, their presence and participation became doubtful.
13. Ch. Pervaiz Aftab, Advocate, learned counsel for Muhammad Hanif appellant added that the availability of electricity fight even if is accepted, it was available at the place where the deceased was injured on the ground and not on the roof of the school from where the appellant allegedly fired, hence, the identification of the appellant was not proved beyond doubt: It is further added that the injuries on the person of eye-witnesses were not declared to be the result of fire-arm, therefore, the presence of the P.Ws. at the spot was not free from doubt. He strenuously argued that Barkat Ali who produced Muhammad Nadeem appellant was not examined as a witness of arrest and recovery of gun from Nadeem appellant, hence, the recovery was doubtful. He contended that the appellant in fact was taken into custody much before the date of his arrest shown in the papers and the positive result of the Technical Services was obtained after arranging the empties hence, the recovery of the empties and the gun having no evidentiary value could not be used against the appellant. He next contended that the quarrel took place between Abid Ali and Tanvir which matter was not directly concerned with Hanif and his sons and admittedly the complainant had gone to lodge protest to Manzur, but by chance he met with Hanif and an exchange of hot words took place between them. He argued that the occurrence was not the result of quarrel between Abid Ali and Tanvir but due to the exchange of hot words between Muhammad Hanif and the complainant and therefore, it was not a case of capital punishment. He also argued that doctor Sajjad Ahmad P.W.15 who examined the deceased before his death and doctor Noor Ahmad P.W.5 who conducted the post-mortem examination of the deceased have not ruled out the possibility of injuries to be the result of one fire.
14. The learned counsel appearing on behalf of the complainant in Criminal Appeal No.332 of 1991 and Criminal Revision No-171 of 1991 already dismissed, has submitted that there was no other enmity between the parties except the motive given by the prosecution which has been admitted by the defence and that tyro injuries on the person of the deceased being independent to each other, were the result of separate shot. He submitted that the opinion of the doctor, being not a positive evidence, based on guess cannot dislodge the eye-witness account on the subject. He submitted that the occurrence took place in the populated area in the city and admittedly the electricity light was available at the time of occurrence and as per evidence of Draftsman apart from the street light, it was also being provided by the houses situated near the place of occurrence. The appellants otherwise being related to the P.Ws. could be easily identified by them even if there was slight dark but there being sufficient light available at the place of occurrence, the question of mistaken identity did not arise excluding the possibilities of substitution or false implication. He argued that recovery of weapon of offence was unquestionable as it was effected after the despatch of the empties, recovered from the spot on the day of occurrence.
15. The learned A.A: G. adopting the arguments of Sahibzada Farooq Ali learned counsel for the complainant submitted that there was no exception to the conviction and sentence of the appellants awarded to them by the learned trial Court.
16. We have considered the arguments advanced by the learned counsel for the parties and carefully perused the record with their assistance.
17. The pivotal question involved in the case is that of the identification of the appellants. The occurrence took place in a populated area surrounded by the residential houses. The outer lights of the houses were undoubtedly available during night and the availability of the Tube-light and mercury bulb near the place of occurrence as shown in the site plan was undisputed. The occurrence took place in Chowk Mandar Gopal, on thoroughfare at 10 p.m. in the month of June, when it could not be a complete dark in the area, to suggest the mistaken identity of the appellants. The defence has not put a single question to the P.Ws. about the non-availability of the electricity light or the tube and mercury bulb or the non-availability of light outside the houses, and eye-witnesses during the cross-examination were not put any question about their inability to identify the appellants or that it was dark at the spot. The suggestions put to the P.Ws. indicate that the identification of the appellants was dot disputed at the trial but whole effort was to create dent in the prosecution case through contradictions in the evidence of P.Ws. and to prove their non-presence at the spot. Mere fact that the occurrence took place at 10 p.m. is not enough to suggest that it was a dark night and the P.Ws. could not identify the appellants. The identification of the appellants in the electric light available at the spot was free from all doubts. The occurrence took place in the Chowk just in front of the school and the roof of the school being at equal level to the houses situated in the surrounding, the light coming from these houses could provide sufficient visibility at the roof of the school to enable the P.Ws. to identify the assailants, closely related to them. The detailed scrutiny of the evidence, led us to arrive at the conclusion that there was no infirmity in the findings of the learned trial Court with regard to the identification of the appellants.
18. The ocular account in the present case has been furnished by Muhammad Akhtar P.W.12, Khalid P.W.11 and Ghulam Sabir P.W.13, the real brothers inter se and first cousins of the deceased. Undoubtedly they being closely related to the deceased were interested in the conviction of the assailants but mere relationship with no animosity or ill will of the P.Ws. against the appellants prior to the occurrence was a strong circumstance to rule out the possibility of any false implication or substitution. The occurrence took place at a short distance from the houses of the eye-witnesses who received injuries in the occurrence, therefore, their presence at the spot and witnessing the occurrence was established beyond any doubt. The defence despite the lengthy cross-examination has not been able to bring on record any circumstance suggesting the non-presence of the P.Ws. at the spot. The defence has also not been able to rebut the prosecution version with regard to the launching of the attack by the appellants on the complainant party. The P.Ws. being injured and natural witnesses of the occurrence were confidence inspiring to be believed even without looking for any other confirmatory evidence. However, since Mushtaq and Maqsood the two acquitted accused were armed with gun and also attributed joint firing with the appellants for a common cause, their case having some similarity with that of the appellants, the rule of corroboration as abandoned caution shall prevail and be applicable in the present case. The quarrel between Abid Ali and Tanvir was admitted by Muhammad Hanif in his statement under section 342, Cr.P.C. The lodging of the complaint by Muhammad Akhtar P.W.11 against the conduct of Abid Ali to Muhammad Hanif was proved with no ambiguity. The defence has not been able to rebut the evidence of -Muhammad Akhtar P.W.11 on the question of his exchange of hot words and abuses with Muhammad Hanif in the morning of the day of occurrence through any evidence or circumstance on the record. The motive for the occurrence, as argued by the learned counsel, might not be a quarrel between Abid and Muhammad Tanvir but it appears that Muhammad Nadeem and Saleem, the young sons of Hanif could not pocket the insult of their father at the hands of the complainant and they in order to take revenge of this insult launched a pre-meditated attack on the complainant party choosing the time of assembly of the P.Ws. at the Chowk as stated by them. Hence the motive set up by the prosecution and consequently the insult of Muhammad Hanif at the hands of complainant inviting this fateful incident having proved beyond doubt provided sufficient corroboration to establish the charge.
19. Muhammad Nadeem and Muhammad Saleem appellants are attributed one fire each to the deceased in the F.I.R. which role of the two appellants was consistently narrated by the P.Ws. at the trial with no improvement or omission. The opinion expressed by the doctor that both injuries on the person of the deceased could be the result of one fire in presence of the direct evidence of the eye-witnesses coupled with the fact that the crime empties recovered from the spot matched with the weapons recovered from Nadeem and Saleem, the injuries on the person of the deceased being independent to each other, was weightless to be given any effect.
20. The crime empties recovered from the spot were delivered by Fayyaz Haider P.W.1 in the concerned office on 17-6-1989. The gun P.4 was recovered from Muhammad Nadeem appellant at the time of his arrest on 21-6-1989 and gun P.S was recovered from Muhammad Saleem appellant on 22-6-1989 who was arrested on 16-6-1989. The empties having been delivered in the concerned offices even before the arrest of the appellants, a remote possibility of fabrication of the same was ruled out. The recoveries of the empties and the weapon of offence with the positive result provided another strong circumstance against Muhammad Nadeem and Muhammad Saleem appellants.
21. The plea of alibi raised by Nadeem appellant was rejected by the learned trial Court having been found false. Doctor Abdul Ghaffar D.W.1 stated that he had seen Nadeem appellant in jail and cannot say with certainty that said Nadeem was brought before him in the hospital. He admitted that the criminal proceedings were initiated against Doctor Amjad Hussain who was found responsible for making entry in the official record showing Nadeem appellant as indoor patient of the Centre. He admitted that a case was registered against Doctor Amjad Hussain who after obtaining bail become fugitive from law and during departmental inquiry having been found guilty of misconduct was terminated from service. The D.W. also admitted that Tariq Hussain Dispenser did not identify the appellant before the inquiry officer in the jail and that in fact Nadeem appellant present in Court was never indoor patient of the Health Centre from 3-6-1989 to 8-6-1989 and was not operated upon in the said Centre. Keeping in view the evidence of Dr. Abdul Ghaffarr, no ambiguity was left in disbelieving the false plea of alibi raised by the appellant. No sanctity can be attached to the entries in the relevant register in presence of the evidence of Doctor Abdul Ghaffar D.W.1 and particularly in view of the fact that the doctor with whose connivance the appellant arranged these entries was proceeded against for making the false entries in the official record and was ultimately terminated from service. However, there is no proof of the fact on the record that the entries in question even if correct related to the appellant. However, the plea of alibi raised by the appellant having been not substantiated and proved through any reliable evidence was bound to be rejected.
22. The next question for determination, shall be the liability of the each appellant. Muhammad Saleem and Muhammad Nadeem appellants are attributed specific role of causing injuries to the deceased which role was corroborated by the medical evidence and matching of the recovery of the empties from the spot and with the gum recovered from the appellants after their arrest. The presence and participation of Muhammad Nadeem and Muhammad Saleem appellants is proved beyond any doubt and their conviction under section 302/34, P.P.C. is not questionable. It appears that Muhammad Nadeem and Muhammad Saleem in order to take revenge of the insult of their father arranged attack on the complainant party possibly without taking into confidence Muhammad Hanif their father who was not attributed specific injury to the deceased. The injury on the person of Saber Ali P.W. B attributed to him could be the result of the firing of Muhammad Nadeem and Muhammad Saleem appellants, therefore, the possibility of injury on the person of Saber Ali with stray pellet could not be ruled out. The role assigned to him is not corroborated by any other evidence available on record, the case, against him is not free from doubt. We accordingly giving him benefit of doubt acquit him of the charge. We are of the confirm view that Muhammad Nadeem and Muhammad Saleem appellants in furtherance of their common intention launched a premeditated attack on the deceased and P.Ws. causing them injuries and resultantly their guilt having been proved beyond doubt, the appeal to their extent stands dismissed.
The case against Sarfraz is not distinguishable to that of Muhammad Hanif appellant. The role attributed to Muhammad Sarfraz is that of general firing with no specific injury either to the deceased or the P.Ws. He had no D direct motive to participate in the occurrence and no recovery was effected from him. We also extending benefit of doubt to him acquit him of the charge.
23. Considering the quantum of sentence, we are of the view that this is not a case of capital punishment for the reasons that the two appellants Nadeem and Saleem being sons of Muhammad Hanif in order to take revenge of the insult of their father caused one injury each to the deceased. Muhammad Nadeem appellant is attributed single injury and despite opportunity did not repeat it. Taking revenge of the insult of elders being a mitigation circumstances, we are not inclined to confirm the death sentence awarded to Muhammad Nadeem by the learned trial Court under section 302, E P.P.C. We, therefore, while maintaining their conviction under section 302/34, P.P.C. alter the sentence of Muhammad Nadeem appellant from death to life imprisonment and maintain the sentence of life imprisonment awarded to Muhammad Saleem appellant by the trial Court. The sentence under section 307/34, P.P.C. and compensation awarded to Muhammad Nadeem and Muhammad Saleem appellant are also maintained. However, the appellants shall get benefit of section 382-B, Cr.P.C. The appeal of Muhammad Hanif and Sarfraz appellants is accordingly accepted. They are acquitted of the charges and directed to be released from jail forthwith if not required in any other case.
The State Appeal bearing No.332 of 1991 and the Criminal Revision No.171 of 1991 have already been dismissed. The Murder Reference is answered in the negative.
N.H.Q./N-211/L Order accordingly.