MUHAMMAD SHARIF Versus STATE

MUHAMMAD NAWAZ ABBASI, J. --- The appellants namely Muhammad Sharif and Abdul Hameed sons of Fazal Dad were tried for the charge under sections 302/307/34 and 411, P.P.C. having committing the murder of Muhammad Mansha, Muhammad Asghar and Muhammad Akram and for murderous assault upon Muhammad Sarwar, Muhammad Afzal and Mst. Fayyaz BL by the learned Additional Sessions Judge, Jhelum who vide his judgment, dated 2-9-1990 having found the appellants guilty of the charge convicted and sentenced them to death each on three counts with a fine of Rs.10,000 and in default of toe payment of fine to undergo R.I. for two years each on each count. The appellants were also burdened with the payment of Rs.10,000 each as compensation on each count to be paid to the legal heirs of the deceased and in default of the payment of compensation to undergo R.I. for six months each. They were separately also convicted under section 307/34, P.P.C. for causing murderous assault upon Muhammad Sarwar Mst. Fayyaz Bi and Muhammad Afzal P.Ws. and sentenced to 10 years' R.I. each on each count with a fine of Rs.5,000 each on each count and in default of the payment of fine to undergo R.I. for one year each. The sentence under section 307/34, P.P.C. were ordered to run concurrently in case of non-confirmation of death sentence awarded to them.

2. This judgment shall dispose of Criminal Appeal No.111 of 1990 filed by the appellants against their conviction and sentence, Murder Reference No.185 of 1990 sent by the learned trial Court under section 374, Cr.P.C. and Criminal Revision No.110 of 1990 filed by Muhammad Sarwar complainant of this case.

3. The unfortunate occurrence taking the life of Muhammad Mansha, Muhammad Asghar and Muhammad Akram and receipt of injuries by Muhammad Sarwar, Mst. Fayyaz Bi and Muhammad Afzal took place on 23-4-1989 at 11-00 a.m. in the area of Village Chakyam, Police Station Dina Jhelum. Muhammad Sarwar P.W.10 lodged the report with Police Station Dina at 4-40 p.m. on the same day i.e. about six hours after the occurrence. The case under section 302/307/34, P.P.C. was registered against the appellants through F.I.R. Exh.PA./1 recorded by Muhammad Sharif, A.S.I. Moharrar P.W.1 on the basis of the statement Exh.PA. of the complainant recorded by Muhammad Ayyaz, S.H.O. P.W.12.

4. The prosecution case as contained in the first information report is as under:

"That on the fateful day, Muhammad Sarwar alongwith Muhammad Afzal sons of Fazal Dad and Mst. Fayyaz Bi wife of Muhammad Aslam, were cutting wheat from their land of village Pidri whereas Muhammad Asghar and Muhammad Akram sons of Raham Ali were busy in collecting the wheat crop in the field of Allah. Ditta, real uncle of the complainant. Muhammad Mansha son of Muhammad Afzal, real nephew of the complainant was also present in the field with his cow. When at about 11 a.m. within the views of the complainant and the P.Ws., Muhammad Sharif armed with .12 bore gun and Abdul Hameed armed with .12 bore gun and hatchet appeared at the scene. Muhammad Sharif raised Lalkara that Mansha shall not be allowed to go alive on that day and thereafter he and Abdul Hameed fired one shot each at Muhammad Mansha. Abdul Hameed then fired three successive shots at Muhammad Asghar causing him injuries on left wrist, buttock and head. Muhammad Akram made an attempt to run away from the spot but was fired at by Muhammad Sharif and Abdul Hameed appellants causing him injuries on different parts of his body. The complainant alongwith Muhammad Afzal and Fayyaz Bi P.Ws, when tried to intervene were also attacked by the appellants Muhammad Sharif appellant caused fire-arm injuries to Muhammad Sarwar complainant and Faiz Bi, whereas, Abdul Hameed caused fire?arm injuries to Muhammad Afzal. Abdul Hameed also caused injuries to Muhammad Mansha and Muhammad Akram with hatchet. Allah Ditta and Muhammad Suleman alongwith number of other persons reached at the spot and witnessed the occurrence. The appellants carrying their respective weapons with them decamped from the place of occurrence."

The motive behind the occurrence given in the F.I.R. was the enmity between the parties due to the criminal litigation between them. Muhammad Mansha, Muhammad Asghar and Muhammad Akram succumbed to the injuries at the spot, whereas,' Muhammad Sarwar the complainant alongwith Muhammad Afzal and Fiaz Bi, the injured witnesses while proceeding to the police station on a tractor for lodging report met Muhammad Ayyaz, S.I. and the S.H.O. at Tima Mor, who recorded the statement of Muhammad Sarwar complainant and sent it to the police station for registration of the case. He after preparing the injury statement Exh.P.R./2 of Muhammad Sarwar, Exh.P.T./2 of Mst. Fiaz Bi and Exh.P.S./2 of Muhammad Afzal, the injured witnesses proceeded to the place of occurrence and prepared inquest reports Exhs.P.U., P.V. and Exh.P.W. and the injury statement Exh.P.U./1, Exh.P.V./1 and P.W./1 of the three deceased namely Muhammad Asghar, Muhammad Mansha, Muhammad ~Akram respectively. During the course 'of spot inspection, he secured the blood-stained earth from the places of murder of the three deceased and took the same into possession through separate memos, Exh.P.L. and Exh.P.K. and Exh.P.M., respectively. The empty cartridges P.14/1-5 of .12 bore gun found lying at the spot were taken by him into possession vide memo. Exh.P.N. The recovery' of blood-stained earth and the empties were witnessed by Latif and Safdar Ali P.Ws. He then took into possession last-worn clothes of the three deceased produced before him after their post-mortem examination and got prepared the site plans Exh.P.J. and Exh.P.J./1 of the place of occurrence. He took into possession the sealed bottles containing the pellets produced before him vide memo. Exh.P.D. The accused were arrested on 30-6-1989 and on 7-6-1989 Muhammad Sharif while in police custody led to the recovery of .12 bore gun P.15 from his residential house which was taken into possession vide memo. Exh.P.C. Abdul Hameed led to the recovery of .12 bore gun alongwith its licence P.16 from his residential Kotha which was taken into possession vide memo. Exh.P.D. and the hatchet P.17 recovered at the instance of Abdul Hameed was taken into possession vide memo. Exh.P.Q. These recoveries of the weapons of offence were witnessed by Shafqat Ali and Safdar P.Ws. Muhammad Ayyaz, S.I./S.H.O., the Investigating Officer after completion of formal investigation challaned the appellants to face the trial.

Muhammad Sarwar first informant was medically examined by Doctor Sarfraz Ahmad P.W.11 on the day of occurrence who found the following injuries on his person:--

(i) A circular wound of entry almost in the middle of left thigh on front directed backwards, muscle deep and margins were charged.

(ii) Wound of entry on the outer side of the left knee just close to the knee cap directed backwards 1-1/2 inches deep.

(iii) Wound of entry on the front of the right thigh directed backward 1-1/2 c.m. deep.

(iv) Wound of entry on the root of the penis of the left side of the shaft directed inward.

(v) Laceration on the left side of the shaft of penis measuring 1 c.m. x ? c.m. in oblique direction.

(vi) Wound of entry glands of penis directed inward and obliquely.

(vii) Wound of exit corresponding to injury No.6 under surface of the shaft of penis. Tracks of the wound were directed obliquely.

(viii) Wound of entry just in middle of scrotam back just below the shaft of penis directed inward.

(ix) Wound of entry on the left hip three inches away from the prominence of hip joint.

(x) Wound of entry just below the injury No.9 fold directed inward and obliquely.

(xi) Wound of exit just below the cluteal fold on the left corresponding to injury No.1.

(xii) Wound of exit on the right thigh in the middle of right hip, track corresponding to injury No.3.

(xiii) Laceration on right cludeal fold measuring 1 c.m. x 1/4 c.m.

All the injuries were caused with fire-arm. The same doctor during the medical examination of Muhammad Afzal found the following injuries on his person:--

(i) Wound of entry just close to left mostral directed upward and inwards, in the oral cavity.

(ii) Wound of entry just close to the left corner of hip directed inward and laterally on the left hip directed inward and laterally in the lower jaw.

(iii) Wound of exit seen 2 c.m. below and laterally on the left side just below injury No.2.

(iv) Wound on the supra clavicle fossa (wound of entry) just inside the left collar bone directed inward in the chest cavity.

(v) Wound of entry at the tip of left shoulder joint directed inwards in the chest cavity.

(vi) Wound of entry almost 2 c.m. inside the injury No.5 directed inward in the chest cavity.

(vii) Exit wound on the middle of left shoulder blade tract directed upwards and obliquely corresponding to injury No.5.

(viii) Laceration measuring 2 c.m. x' 1/4 c.m. on the left shoulder blade running obliquely.

(ix) Exit wound on the middle of neck corresponding to injury No.1.

(x) Swelling on the left side of neck and front of left side of chest (surgical enthysema).

The injuries were caused with fire-arm.

The medical examination of Mst. Fayyaz Bibi revealed the following injuries on her person:--

(i) 2 wounds of entry on the right inguinal almost 2 c.m. part on the right side.

(ii) Exit wounds were seen on the middle of right hip.

(iii) Wound of entry just above the right knee, directed upwards and outwards.

(iv) Exit wound on the inner side of right thigh in the middle.

(v) Wound of entry on the outer side of left hip joint directed inwards.

(vi) Swelling and limitation of movement on the left hip joint. Swelling was vibally clinically dislocation of left hip joint was observed.

All the injuries on her person were caused with fire-arm.

5. Doctor Munir Hussain Shah P.W.13 conducted post-mortem examination on the dead body of Muhammad Asghar deceased on 24-4-1989 and found the following injuries on his person:--

(i) An injury of 8 c.m. x 4 c.m. in right front of temporal region with brain matter obvious spilled outside and right ear was absent, except ear lobule. Margins were black and irregular.

(ii) An injury on the right wrist 6 c.m. x 4 c.m. size with blackening and charring. Muscles, tendons and carpal bones were exposed and radius bone was broken into pieces.

(iii) An entrance wound of pellets on the lateral side of right elbow joint. Margins were black and inverted. No exit wound was found.

(iv) Two entrance wounds on the top of right shoulder with blackening and charring. No exit wound. Corresponding holes were found on the shirt and Bunyan (which was half sleeves).

(v) Three wounds of entry of pellets each 1 c.m. x 1 c.m. incise just below the umbilicus above the pubic symphsis. Margins were black. The corresponding holes were present on the shirt and Bunyan.

In his opinion, the death was the result of injury No.1 on head, which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and were caused by fire-arm.

6. The post-mortem examination of Muhammad Mansha conducted by the said doctor revealed the following injuries:-- '

(i) 2 entrance wounds of pellets near the posterior border of axilla on left side of chest measuring 1 c.m. x 1 c.m. x 1/2 c.m. x 1/2 c.m. with profused bleeding.

(ii) Entrance wound on the medial side of left arm four in numbers with inverted margins and black. Size was 1 c.m. x 1 c.m. of each.

(iii) Entrance wound of pellet at the base of thumb of right hand (palmer side). Margins were inverted with wound of exit on' the dorsel side of right thumb base. Margins were black and out-warded.

(iv) Entrance wound on lateral side of buttock (posto lateral aspect) two in number 1 c.m. x 1 c.m., 2 c.m. x 2 c.m. with bleedings. There was no exit wound.

(v) An incised wound with no bleeding on lateral side of right arm 4 c.m. x 2 c.m. x 1 c.m. size with leniar cut at one angle of wound clinical fracture of right humerous.

(vi) Two incised wounds each about 2-1/2 c.m. x 1/2 c.m. with leniar cut marks at one angle of the wound on the back of middle of right thigh.

(vii) A cut mark on the medial aspect of left hand's ring finger, 1 c.m. x 1/2 c.m. in size.

The doctor opined that cause of death was intra thoracic haemorrhage, shock resulting from injury No.1 which was sufficient to cause death in the ordinary course of nature.

The detail of the injuries on the person of Muhammad Akram deceased found during his post-mortem examination was as under:--

(i) Multiple entry wounds (8 in number) on the left side of chest with black and inverted margins.

(ii) An exit wound on right side of chest 10-12 c.m. below the axilla Margins were everted.

(iii) Multiple entry wounds on the medial side of left arm near the axilla (four in number) with black margins which were inverted.

(iv) Am entry wound on the lateral side of middle part of left forearm having no exit wound.

(v) Multiple entrance wounds on the abdomen just below the umbilicus on lateral side (nine in number) having no exit wound.

(vi) Multiple entrance wounds on the postzro lateral view of the left loin (four in number) having no exit wound.

(vii) A cut wound on the frontal view of both legs resulting in compound fracture tibya and fabula above the ankle joint one on each leg. Size 5 c.m. x 1-1/2 c.m. x 5 c.m. x 1-1/2 c.m.

(viii) Swelling of the face (right side) with right eye bleeding from nose. No corresponding mark was present on the Shalwar but the corresponding hole of pellet were present on Shalwar and Kamiz.

According to the doctor cause of his death was haemorrhage and shock due to the result of injuries Nos.1, 2, 5 and 8 which were sufficient to cause death in the ordinary course of nature.

7. The prosecution to prove its case at the trial placed reliance upon the ocular testimony furnished by Mst. Fiaz Bi P.W.8 niece of Muhammad Sarwar, the complainant Muhammad Afzal P.W.9 his brother-in-law and Muhammad Sarwar P.W.10, the real maternal-uncle of Muhammad Mansha deceased. In addition to the ocular testimony, the prosecution also placed reliance upon the corroborative evidence in the form of the recovery of blood-stained hatchet, the .12 bore guns used as weapons of offence and the crime empties recovered from the spot found matched with their guns. The prosecution further substantiated its case through the motive and the medical evidence.

8. The accused when examined under section 342, Cr.P.C. denying the charge pleaded false implication due to the enmity with the complainant and that they being step-brother of Muhammad Afzal P.W.9 have been involved in the case with the motive to deprive them from the possession of the land with them. However, they did not produce defence evidence.

9. The learned counsel for the appellants argued that the injuries on the person of witnesses can prove their presence at the spot but it cannot be an evidence of their being truthful and that the hostile testimony of the interested witnesses merits to be rejected unless corroborated by an independent evidence of unimpeachable character which in the present case is not forthcoming. He next argued that complainant party in order to deprive the appellants from the possession of land had a strong motive to involve them in the case.

10. Conversely, the learned AA.-G. argued that the appellants having a strong motive, committed murder of the three deceased in a brutal manner and on the intervention of the P.Ws. they were also caused injuries. He argued that the evidence of the three injured witnesses corroborating each other on all material points was sufficient to prove the case against the appellants.

11. We have given due consideration to the contentions raised by the learned counsel for both sides and perused the entire record carefully with their assistance.

12. The appellants are step-uncle of Mst. Fiaz Bi P.W.8 and step-brothers of Muhammad Afzal P.W.9 the father of Muhammad Mansha deceased. Muhammad Sarwar P.W.10, the first informant of the case is maternal-uncle of Muhammad Mansha deceased and Mst. Fiaz Bi. Muhammad Asghar and Muhammad Akram deceased are the real brother of Muhammad Sarwar. According to the prosecution version, Muhammad Mansha and Abdul Majeed were inimical to each other on account of criminal cases and there was also dispute of land between the deceased and the accused. Muhammad Sarwar P.W,10 who received 13 fire-arm injuries on his person lodged the report of the occurrence within six hours of the occurrence with Police Station Dina at a distance of 8 miles. The F.I.R. contained the full account of the occurrence and the witnesses while appearing in the witness-box remained consistent with the prosecution story of the F.I.R. on all material points and also corroborated each other on each minute and particular point. It is in the evidence of Mst. Fiaz Bi that the accused having the dispute of land with Muhammad Mansha deceased committed this aggression. Muhammad Afzal D.W.9,, the step?brother of the appellant stated that the land left by their father was in possession of the accused and despite his efforts he was not given his share in the property. According to him, two years ago, Sharif appellant was caused injuries by Muhammad Mansha his deceased son but Muhammad Asghar and Muhammad Akram were not inimical to the accused and that except the dispute of land and grudge against his son Muhammad Mansha deceased the accused had no other enmity with him and Mansha, Muhammad Sarwar complainant and his two deceased brothers namely Muhammad Asghar and Muhammad Akram had also no dispute with the accused Muhammad Sarwar P.W.10 the first informant with no addition or omission categorically supported the prosecution case as contained in the F.I.R. All the three eye-witnesses were unanimous in disclosing the manner in which occurrence took place and the role played by the individual appellant of causing injuries to the deceased and to the P.Ws. The occurrence took place in the fields where the complainant alongwith Muhammad Asghar and Akram was collecting wheat and Muhammad Afzal and Fayyaz Bibi were cutting wheat. The appellants being revengeful against Mansha fired at him who was present with his cow at the Banna of the field where Muhammad Asghar and Muhammad Akram the other two deceased were busy in collecting the wheat. Undoubtedly, Muhammad Akram and Muhammad Asghar had no enmity with the appellants were not supposed to be attacked by the appellant but the circumstances of the case suggested that they were fired at and done to death while making efforts to rescue Mansha. The causing of injuries to the complainant and the P.Ws. was also for the reason that they made an attempt to interfere in the matter. The contention of the learned counsel that the appellants had no enmity or grudge against Mansha son of Afzal their step-brother and that the dispute if any regarding the property being between appellants and Muhammad Afzal, there was no fun to commit murder of Mansha. The contention is devoid of any force for the simple reason that earlier Mansha caused injuries to Sharif and further he being young man must have demanded the share of his father in the property from the appellants therefore, the appellants had grudge and strong motive against him.

13. Looking at the facts of the case and the circumstances under which the occurrence took place, the testimony of the eye-witnesses cannot possibly be discarded unless it is shown that they had very strong motive to falsely implicate the appellants by way of substitution or their testimony was so inherently defective that the probability or truth of the prosecution becomes clouded with doubt. Nothing can be traced from the evidence to suggest that the witnesses were not truthful or confidence inspiring. We, therefore, hold that the evidence of the eye-witnesses in the present case being of unimpeachable character can safely be relied upon even without looking for any other confirmatory evidence. However, in the present case, we find that the five crime empties of .12 bore gun recovered from the spot were found matched with the licensed gun recovered at the instance of the appellants which in addition to the motive provided a strong corroboration to the, ocular account of the injured witnesses.

14. The recovery of the crime empties and subsequently the weapons of offence from the appellants was proved beyond doubt which corroborated the prosecution version to the use of fire-arm and the nature of injuries sustained by the deceased, the prosecution beyond doubt has brought home the guilt of the appellants.

15. We having considered the circumstances of the case could not find out any mitigating circumstance in favour of the appellants who took the lives of three innocent persons in a brutal manner. Admittedly Akram an, Asghar had no concern with the affairs of the appellants and were killed for no excuse.

16. For the foregoing reasons, we maintaining the conviction and sentence of death with fine awarded to the appellants namely Muhammad Sharif and Abdul Hameed by the learned trial Court under section 302/307/34, P.P.C., dismiss their appeal. The murder reference sent by the learned trial Court under section 374, Cr.P.C. for the confirmation of death sentence of both the appellants is answered in the affirmative. Criminal Revision No.110 of 1990 also stands dismissed.

N.H.Q./M-1590/L

Appeal dismissed.