TAZMEEN Versus STATE
MIAN ABDUL KLLALIQ. J. --- (1) Tazmeen son of Muhammad Ashraf aged 19 years, (2) Muhammad Ashraf son of Ghulam Muhammad aged 48 years, (3) Muhammad Arif son of Ghulam Muhammad aged 50 years and (4) Bashir Ahmad alias Beri son of Ashiq aged 18 years were tried by the learned Additional Sessions Judge Bahawalnagar for the murder of Abdul Sattar deceased, who vide his impugned judgment dated 13-10-1992 had convicted and sentenced under section 302/114/34, P.P.C. Tazmeen and Muhammad Ashraf appellant to death each. Muhammad Arif and Bashir Ahmad were acquitted vide impugned judgment. The appellants have filed appeal against their conviction and sentence and the learned Additional Sessions Judge has sent reference under section 374, P.P.C. The appeal and the reference arise out of the same judgment, which are disposed of by one judgment.
2. The prosecution case in brief, as unfolded in case F.I.R. Exh.P.D. recorded at Police Station Fortabbas on 18-5-1991 at 9-00 a.m. on the statement of P.W.5 Mst. Hidayat Bibi by P.W.11 Muhammad Ahmad, S.H.O. is to the effect that she was previously married with Mukhtar Ahmad and from the said wedlock, three daughters and two sons were born. About 20/21 years earlier from Sheikhupura, they settled in the land of Nasir Abbas alias Teddy, Shah for cultivation in Chak No.274/H.R. The litigation started with Teddy Shah and previous husband Mukhtar Ahmad of complainant was in occupation of 1/2 square of land who was murdered in 1977. On the asking of her brotherhood, she married with Muhammad Ashraf alias Shooka appellant. The land of her deceased husband was in possession of her deceased son, who was challaned in a murder case in 1988 and Muhammad Ashraf alias Shooka appellant took the possession of the land of her deceased son. The deceased demanded the restoration of the possession of land after his release, from Muhammad Ashraf alias Shooka appellant but he did not agree and there was dispute on which the police of Fortabbas arrested the deceased and his companions and after deceased's release on bail the appellant Muhammad Ashraf alias Shooka on the previous day of occurrence during the dialogue for compromise in presence of Nazar Hussain alias Najja and Khadim Hussain, summoned the deceased, assured a compromise and permitted him to cultivate the land, who on the day of occurrence at Fajjar prayer time for ploughing the land went to Boota Jat in Chak No.176/7-R for procuring the tractor and asked the complainant to take food in the land. The complainant reached in the land at about 7-30 a.m. with bread and for the help of her deceased son, P.W.12 Muhammad Sadiq alias Jheduo and P.W.6 Muhammad Arshad also reached and were waiting for the deceased. At about 8-00 a.m. Abdul Sattar reached on a tractor in Killa No.23 and was at a distance of 1 or 1-1/2 Kanals, from the bushes of nearby Khal emerged Muhammad Ashraf alias Shooka and signalled the deceased to stop, who stopped his tractor and from nearby bushes appellant Tazmeen alias Bhola son of Muhammad Ashraf appellant armed with gun, Muhammad Arif son of Ghulam Muhammad and Muhammad Bashir alias Bheri son of Ashiq while raising Lalkaras emerged and were stating that it was the last day of the deceased. The complainant alongwith P.W.12 and P.W.6 ran for the help of the deceased and within their sight Tazmeen alias Bhola appellant climbed on the wheel of the tractor and fired straight on the neck of the deceased and thereafter Tazmeen appellant after making the fire ran towards the Dera and the deceased ran to cross the Khal, after him, but due to the injuries, he fell to the ground and the other accused while raising Lalkaras started running. The complainant alongwith P.Ws. made hue and cry on which, Akhtar Ali reached for their help, the deceased in injured condition was placed on a cot and while on the way to the Hospital, for treatment, he expired. She took the dead body alongwith the witnesses to the police station for report and the deceased was murdered by all four accused after mutual consultation.
3. P.W.11, S.H.O. recorded FIR. Exh.P.D., prepared injury statement Exh.P.B. and inquest report Exh.P.B./1 and despatched the dead body for autopsy. He reached the place of occurrence, inspected, secured Tractor Massey Furguoson, secured blood-stained earth from the place where Abdul Sattar deceased had fallen while chasing. He took into the possession the eatables and utensils P.8 to P.12, from near the place of occurrence at a distance of about one Kanal vide memo. Exh.P.J., Exh.P.F., Exh.P.G. and Exh.P.H., respectively. He had destroyed the eatables. He arrested Tazmeen appellant on 24-5-1991 who on 28-5-1991 led to the recovery of .12 bore gun P.18, containing the empty P.19 in its barrel from his house hidden in the heap of chaff vide memo. Exh.P.L. and made into sealed parcel. He arrested Muhammad Ashraf appellant and the acquitted co-accused on 31-5-1991. Muhammad Ashraf appellant led to the recovery of licence of .12 bore gun from his house on 1-6-1991, which he secured vide memo. Exh.P.M. He recorded the statement of P.Ws. and had deposited the case property with Moharrir and after completion of investigation, he had challaned the accused Charge under two heads 302/114, P.P.C. and 302/34, P.P.C. was framed against the accused to which they denied and claimed the trial.
4. Prosecution examined 12 P.Ws., in all, to substantiate its case.
5. P.W.1 Dr. Muhammad Mushtaq Anjum on 18-5-1991 at 11-00 a.m. conducted autopsy on the dead body of the deceased Abdul Sattar and found a punctured wound measuring 6-1/2 c.m. x 4 c.m. with inverted margin deep enough slightly on the right side of front of neck just on the inner third of right clavicle. Five adjacent 1 c.m. x 1 c.m. sized wounds with everted margins on the outer side of right arm pit. Fresh blood was coming from the wound. On dissection three pellets obtained from the outer wall of right chest close to the arm pit. Pleural of right lung ruptured and right pleural cavity contained blood, two pieces of outer shell of the neck obtained from the right pleural cavity. Trachia was ruptured and was full of blood. Wound of trachia was continuous with the wound on the front of neck. Right lung was also ruptured and wound containing with that of trachia. Right heart contained blood and left was empty. He opined death in this case occurred due to the injury on the neck which was with fire-arm. The time between injury and death was a few minutes and between post-mortem 2 to 3 hours.
6. The motive behind the occurrence was stated by P.W.5 Mst. Hidayatan Bibi and P.W.8 Nazar Muhammad. P.W.5 m F.I.R. stated that the deceased was challaned in a murder case and thereafter Muhammad Ashraf appellant had taken possession of the land of the deceased. The deceased after his release demanded back the possession from Muhammad Ashraf appellant and a dispute ensued. Muhammad Ashraf appellant one day earlier to the present occurrence during compromise proceedings in the presence of P.W.8 Nazar Muhammad had allowed the deceased to plough the land. P.W.8 Nazar Muhammad corroborated the statement of P.W.5 and stated in his presence compromise between the deceased and Muhammad Ashraf appellant was ,effected i.e. the deceased could cultivate his land but the following day, Abdul Sattar was murdered.
7. The ocular account was stated by P.W.5 Mst. Hidayatan Bibi complainant. P.W.6 Muhammad Arshad and P.W.12 Muhammad Sadiq: They had unanimously stated that the appellant Tazmeen had fired with gun straight at the neck of the deceased within their sight and in a consequence thereof deceased succumbed to his injuries.
8. P.W.1 Dr. Muhammad Mushtaq Anjum had conducted autopsy on the dead body of the deceased Abdul Sattar. The recovery aspect of the case was furnished on record by P.W.8 Nazar Muhammad in whose presence the appellant Tazmeen had led to the recovery of .12 bore gun P.8 alongwith an empty P.19 in its barrel, which was secured by P.W.11 vide memo. Exh.P.L. and made into a sealed parcel. P.W.11 corroborated the statement of P.W.8.
9. P.W.11 Muhammad Ahmad, Inspector (Retd.) had investigated the case and the other P.Ws. are of formal nature.
10. The appellants when examined under section 342, Cr.P.C. denied the prosecution evidence against them. Muhammad Ashraf alias Shooka appellant had stated that he was innocent and contracted marriage with Mst. Hidayatan Bibi (P.W.5). Abdul Sattar deceased joined hands with gang of criminals, used to commit murders, dacoities, involved in many criminal cases and he was turned out from house. The deceased committed the murder of Javed and ran away from the judicial lock-up Fortabbas alongwith two Sikhs (Indian Nationals) and the case was registered. He also committed Harabah. The deceased and his mother had no agriculture land but the land was in his cultivation and the deceased armed alongwith Muhammad Ashraf and other forcibly tried to take possession of the land and he reported to the police, who arrested them and they remained confined up to 17-5-1991. The deceased was a desperate person, wanted in many cases by police and some of his enemies might have killed him. He alongwith his co-accused was falsely involved and to occupy his land have been falsely implicated. The appellant Tazmeen denied the prosecution evidence against him and recovery of .12 bore gun P.18 which contained empty P.19 in- its barrel. He stated that he was innocent. All the P.Ws. were inimical and belong to the gang of criminals. He adopted the statement of his co-accused Muhammad Ashraf. The appellant neither made statement on oath as envisaged under section 340(2), Cr.P.C. nor produced evidence in defence.
11. The learned trial Court after evaluating the evidence on record had convicted and sentenced the appellants.
12. We have heard the learned counsel for the parties and have perused the record.
13. The learned counsel for the appellants vehemently contended that there was no motive against the appellants for the murder of the deceased and the eye-witnesses are inimical. The recovery aspect of the case is not proved. The medical evidence is in conflict with the ocular account: The appellants were innocent, have been falsely involved and the deceased was done to death by some unknown persons.
14. The motive behind the occurrence was that the land of the deceased was occupied by Muhammad Ashraf appellant in the absence of the deceased, when he was confined in jail in a murder case. P.W.5 complainant had narrated in F.I.R., the motive behind the occurrence that the deceased had demanded the restoration of his land from Muhammad Ashraf appellant and the quarrel ensued. The deceased alongwith his accompanying persons were arrested by the police of Fortabbas and on his return the appellant Muhammad Ashraf had permitted him to plough his land in the presence of P.W.8. P.W.8 had corroborated the statement of P.W.3 and stated that the deceased was allowed by appellant Muhammad Ashraf to plough his land and on the fateful day at the relevant time when the deceased reached on a tractor to plough the land, he was done to death. The motive behind the occurrence stands proved. The ocular account was furnished on record by the statements of P.W.5, P.W.6 and P.W.12. P.W.5 is the mother of the deceased, who had reached near the place of occurrence with utensils and eatables for her deceased son and P.W.6 and P.W.12 had been asked by the deceased to help him in the cultivation and construction of a Kotha. They have unanimously stated that within their sight, the deceased was fired at the neck with .12 bore gun by Tazmeen appellant. No doubt, P.W.5 is the mother of the deceased but P.W.6 and P.W.12 are not related to the deceased and had reached the place of occurrence on the asking of the deceased. P.W.11, S.H.O. had secured from the place of occurrence the utensils P.8 to P.12 vide memo. Exh.P.J. to Exh. P.H. as well as eatables, which were destroyed by him. P.W.5, P.W.6 and P.W.12 have stated the probable cause of their presence at and near the place of occurrence at the relevant time. They have no animus and motive to falsely involved the appellant Tazmeen in the present case. They have made their statements in a straightforward manner and an implicit reliance can be placed on their testimony.
15. The medical aspect of the case was stated by P.W.1 who had found a punctured wound measuring 5-1/2 c.m. x 4 c.m. with inverted margins deep enough slightly on the right side of front of neck just on the inner third of right clavicle. Five adjacent 1 c.m. x 1 c.m. sized wounds with everted margins on the outer side of right arm pit. The medical evidence is in consonance with they ocular account.
16. The recovery aspect of the case was stated by P.W.8 and P.W.11 in whose presence appellant Tazmeen led to the recovery of .12 bore gun alongwith empty P.19 from the barrel, which was made into sealed parcels and secured vide memo. Exh.P.L. P.W.4 Muhammad Sarfraz, A.S.I. had kept the sealed parcels of gun P.18 and empty P.19 in the Malkhana, which he sent to the Forensic Science Laboratory on 17-7-1991 through P.W.3 Muhammad Ashraf, Constable. No doubt the recovery of the crime property was effected on 25-5-1991, the same was kept in Malkhana and sent to the Laboratory on 17-7-1991 with a delay of about 1 month and 20 days but P.W.3 and P.W.4 were not cross-examined by the defence to elucidate reasons for delay in sending the sealed parcels to the Forensic Science Laboratory. The report of Technical Services Exh.P.T. in respect of P.18 and P.19 is positive. The recovery aspect, in the circumstances, stands proved.
17. The occurrence took place on 18-5-1991 at about 6-00 a.m. whereas F.I.R. was recorded at police station on the same day at 9-00 a.m. which is at the distance of 3 kilometres from the place of occurrence. The deceased after the incident in injured condition was being taken to the hospital for medical treatment on a cot and on the way, he succumbed to his injuries. Thereafter, the dead body was taken to the police station and the F.I.R. was lodged. In the circumstances, we held that the F.I.R. Exh.P.D. was lodged with promptitude. The occurrence took place in broad day The appellants were closely related to the deceased i.e. Muhammad Ashraf appellant was the step-father of the deceased, whereas Tazmeen appellant is his son. There could be no mistaken identity and the substitution is a rare phenomena.
18. Muhammad Ashraf appellant was stated to have signalled the deceased to stop the tractor and thereafter appellant Tazmeen emerged armed with gun from nearby bushes and fired at the deceased. Muhammad Ashraf appellant was neither armed nor raised Lalkara and as well as had not exhorted appellant Tazmeen to fire at the deceased. No overt act is attributed to him and giving him benefit of doubt as an abundant caution, we acquit him of the charge. He shall be released forthwith, if not required in any other case. -His Death sentence is not confirmed.
19. The appeal filed by Tazmeen appellant is dismissed and his Death sentence is confirmed. He shall pay Rs.20,000 (Twenty thousand) as fine, in default to undergo 1 year's R.I. He shall also pay Rs.20,000 (Twenty thousand) as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased or in default, he shall further undergo 6 months' R.I. There is no mitigating circumstance in his favour for lesser penalty.
N.H.Q./T-75-L
Order accordingly.