SULTAN Versus STATE
1. RASHID AZIZ KHAN, J. --- Sultan son of Hayat (32), Mutalli son of Salehon (57), Amir son of Salehon (52), Allah Bakhsh son of Allah Yar (46) alongwith Muhammad Riaz son of Allah Bakhsh (24) Muhammad Nawaz son of Muhammad Hayat (37), Faizullah alias Kaka Balli (27), Sarfraz alias Sabbu son of Khan (29) and Allah Ditta son of Allah Yar (62) Allah Ditta son of Muhammad were sent up for trial by Police Station Massan, Tehsil and District Jhang; vide F.I.R. No.149/89, dated 15-10-1989, for offences under section 302/307/148/149/109, P.P.C. Additional Sessions Judge, Jhang vide his judgment, dated 20-2-1991 gave the benefit of doubt and acquitted Muhammad Riaz, Muhammad Nawaz, Faizullah, Sarfraz and Allah Ditta son of Allah Yar. Sultan, Mutalli and Amir were, however, found guilty for an offence under section 302/149, P.P.C. and each of them was sentenced to death with a fine of Rs.20,000 or in default suffer R.I. for two years. Allah Bakhsh and Allah Ditta son of Muhammad were convicted under section 302/149, P.P.C. and each of them was sentenced to imprisonment for life with a fine of Rs.30,000, or in default of payment of fine undergo R.I. for three years each. All the convicts were further convicted and sentenced 'Under section 307/149, P.P.C. to 10 years' R.I. each with a fine of Rs.5,000 each, or in default further R.I. for one year each on each of the two counts for having committed murderous assault on Ismail and Sher Muhammad, P.Ws.12 and 13. Each of them was also convicted and sentenced under section 148, P.P.C. to 3 years' R.I. It was further directed that the fine, if recovered, half of it shall be paid to the legal heirs of deceased Ahmad Hayat. It was further observed that the fine awarded under section 307/149, P.P.C., f recovered, half of it shall be paid to Sher Muhammad, and the other half to Ismail, injured witnesses. The convicts have appealed. Case is also before us for confirmation of death sentence. Complainant has also filed a Revision bearing Criminal Revision No.150 of 1991 seeking enhancement of sentences and challenging the acquittal. All these matters will be disposed of by this judgment.
2. Prosecution story in brief, as disclosed in F.I.R. Exh.P.L. lodged by Umar Hayat, was to the effect that he was resident of Village Khatiana and was a Lecturer at Government College, Jhang. On 13-10-1989, it was holiday on account of Eid Miladun Nabi, therefore, he had come home. On 15-10-1989 in the morning, for going to the College he alongwith his brother Ahmad Hayat, Sher Muhammad, his uncle, and Muhammad Ismail started for.Jhang, as the others had to attend the date of hearing. The first informant with Aurangzeb was behind, whereas Ahmad Hayat, his brother, with Sher Muhammad and Ismail, P.Ws. were ahead of them. When they crossed the sugar-cane crop of one Muhammad Ali Saliana, suddenly Sultan armed with .12 bore gun, Nawaz armed with Carbine, Allah Bakhsh son of Allay Yar, Motali and Amir, sons of Salehon, Allah Ditta son of Muhammad, all armed with .12 bore gun emerged out of the sugar-cane crop. Sultan raised a Lalkara that they had come to take revenge of their father and brother. Allah Ditta fired hitting Ahmad Hayat on his right thigh. Allah Bakhsh's fire hit Ahmat Hayat on his left shoulder. It was followed by Motali whose fire hit Ahmad Hayat on the right side of abdomen. Amir fired hitting Ahmad Hayat near his left eye. Whereupon he fell down. Sultan fired hitting Sher Muhammad, first informant's uncle, on the right side of his chest. Motalli fired hitting Sher Muhammad on the right side of his chest. Amir, Allah Ditta and Nawaz fired one shot each hitting Sher Muhammad on his right wrist and right buttock, whereupon he fell down. Thereafter, Sultan, Nawaz, Motalli, Amir, Allah Bakhsh and Allah Ditta fired at Muhammad Ismail on different parts of his body, whereupon he also fell down. Thereafter, the accused persons came near, and Sultan fired at Ahmad Hayat on his head, which was followed by Nawaz whose fire hit on his right jaw. Whereupon, Ahmad Hayat died at the spot. Hearing the fire-arm reports, Muhammad Shafi also came to the spot and witnessed the occurrence. The first informant and Aurangzeb after hiding themselves behind a Dhari witnessed the occurrence. After committing the murder the accused persons decamped from the spot while raising Lalkaras.
2. P.W.22 Umar Hayat, S.I., on 15-10-1989 after recording the F.I.R. Exh.P.L. went to the spot and prepared injury statement Exh.P.X. and inquest report Exh.P.Y. of the deceased and thereafter sent the dead body for autopsy. He secured blood-stained earth from the spot vide memo. Exh.P.M. Eleven crime empties were also secured from the spot vide memo. Exh.P.N. He on the same day recorded supplementary statement of the complainant. Thereafter he went to D.H.Q. Hospital, Jhang and took into possession the last-worn clothes of the deceased. He wrote an application for recording the statements of two injured eye-witnesses, but the same was disallowed as both of them were not fit to make the statement. He got prepared site plans Exhs.P.K. and P.K./1 from the Patwari and gave his notes in red ink thereunder. He later on recorded the statements of the witnesses. On 6-11-1989 he arrested Allah Bakhsh, Allah Ditta, Mutalli and Amir accused. On 17-11-1989, Allah Bakhsh while in custody got recovered gun P.1 with licence P.2 from his house, which were secured vide memo. Exh.P.O. On the same day, Allah Ditta accused also got recovered gun P.3, which was secured vide memo. Exh.P.B. Amir accused on the same day also led to the recovery of gun P.4, which was secured vide recovery memo. Exh.P.Q. Mutalli accused got recovered gun P.5, which was secured vide memo. Exh.P.R. He got all the memos attested and signed from the witnesses. On 17-11-1989 he arrested Riaz accused. Said Riaz at the time of his arrest was found in possession of a carbine, which was taken into possession vide recovery memo. Exh.P.T. After usual investigation, the accused persons were challaned.
3. Occurrence in the instant case took place on 15-10-1989 at 7 a.m. in the area of Chak No.62, Village Salyana, near a sugar-cane field, 6 miles from Police Station Massan, District Jhang. F.I.R: Exh.P.L. was recorded on 15-10-1989 at 8 a.m. on the statement of Umar Hayat, P.W.11, which was recorded by Umar Hayat, S.I., P.W.22.
4. Dr. Muhammad Zafar Iqbal Khan, C.M.O. D.H.Q. Hospital, Jhang, P.W.1, on 15-10-1989 at 9-30 a.m. medically examined Sher Muhammad, P.W. and found the following injuries:-
(1) A fire-arm entrance wound 1 c.m. in diameter x not probed with blackening of margins on the front of right chest 5 c.m. below right nipple.
(2) A fire-arm entrance 'wound 1 c.m. in diameter x not probed on the front of left chest with the blackening of margins 4 c.m. below the left nipple.
(3) A fire-arm exit wound 1 c.m. in diameter x not probed with everted margins on front of right forearm middle part.
(4) A fire-arm entrance wound 1 c.m. in diameter x not probed on the back and middle part of right forearm with contused swelling 15 c.m. x all around the right forearm.
(5) A fire-arm entrance wound 1 c.m. in diameter x not probed on the dorsum of right hand with blackening of margins.
(6) A fire-arm exit wound 1 c.m. in diameter x not probed on the outer and back side of right hand near the base of thumb with everted margins.
(7) A fire-arm entrance wound 1 c.m. in diameter with blackening of margins on the outetside of right buttock.
5. On the same day he examined Muhammad Ismail, P.W. and found the following injuries:-
(1) A fire-arm crushed injury in an area of 10 c.m. x all around the left hand.
(2) A fire-arm entrance wound 1 c.m. in diameter with blackening of the margins on the left buttock.
(3) A fire-arm entrance wound 1 c.m. in diameter with blackening of the margins on the outerside of left knee joint.
(4) A fire-arm entrance wound 1 c.m. in diameter into not probed on the outerside and middle part of left thigh.
(5) A fire-arm entrance wound 1 c.m. in diameter into not probed on the front and upper part of left thigh with contused swelling 25 c.m. x all around the left thigh.
(6) A fire-arm wound 1 c.m. in diameter x not probed on the back and middle part of right forearm.
(7) A fire-arm entrance wound 1 c.m. in diameter x not probed on the back and upper apart of right forearm 6 c.m. above injury No.6.
(8) A fire-arm entrance wound 1 c.m. in diameter x not probed on the front of right elbow.
(9) A fire-arm entrance wound 1 c.m. in diameter x not probed on the front and lower part of right upper arm.
(10) Multiple fire-arm entrance wounds in an area of 8 c.m. x 6 c.m. on the front and outerside of right shoulder each measuring 1 c.m. in diameter with blackening of the margins x not probed.
6. The injuries on both the witnesses were fire-arm injuries.
7. P.W.2 Dr. Muhammad Sarwar, Medical Officer, D.H.Q. Hospital, Jhang, on 15-10-1989 at 2-50 p.m. conducted the post-mortem examination on the dead body of Ahmad Hayat and found the following injuries:--
(1) A fire-arm entrance wound 2 c.m. x 2 c.m. on the right temporal region. Margins were inverted. Skin margins and hair were burnt.
(2) A fire-arm entrance wound 2 c.m. x 2 c.m. on the right cheek, just in front of right ear. Margins were inverted and burnt.
(3) A lacerated wound 1.5 c.m. x .5 c.m. x muscle deep on the right eyebrow.
(4) A lacerated wound 8 c.m. x 2 c.m. on the left temporal region. Brain matter was coming out. Bone pieces were lying in the wound.
(5) Four fire-arm entrance wounds each measuring 1 c.m. x .5 c.m. with blackened and inverted margins on the left side of face closed to outer angle of left eye.
(6) A lacerated wound 4 c.m. x 2 c.m. x bone deep on the base of nose.
(7) A fire-arm entrance wound 1 c.m. x 1 c.m. with inverted and blackened margins on the outer side of right lower abdomen.
(8) A fire-arm entrance wound 1 c.m. x.5 c:m. with inverted and blackish margins on the back of right shoulder.
(9) A fire-arm exit wound 3 c.m. x 1 c.m. on the top of left shoulder.
(10) A fire-arm entrance wound 4 c.m. x 3 c.m. with burnt and inverted margins directing upwards and to the left on the outerside of right thigh upper part.
8. In his opinion, death had occurred because of shock and injury to the brain. Injuries Nos.l and 2 were sufficient to cause death in ordinary course of nature. Injuries Nos.l, 2, 5, 7, 8 and 9 were caused with fire-arm, whereas injury No.3 with blunt weapon. All the injuries were ante-mortem.
9. P.W.7 Dr. Qaisar Abbas, Registrar, Ward No.24, Nishtar Hospital, Multan had treated Muhammad Ismail and performed surgery on his left hand.
10. P.W.8 Dr. Manzoor Hussain, Radiologist, D.H.Q. Hospital, Jhang, on 15-10-1989 took X-ray of Sher Muhammad, P.W., as well as of Muhammad Ismail, P.W.
11. P.W.24, Dr. Muhammad Abdul Rauf Anwar, M.O., D.H.Q. Hospital, Jhang, on 21-10-1989 examined Muhammad Nawaz son of Riaz to determine if he was an addict. His report was in the negative.
3. Prosecution in support of its case produced 24 witnesses in all. The doctors who had conducted the post-mortem examination on the dead body of Ahmad Hayat, deceased, and medically examined the injured witnesses have already been discussed. Wali Muhammad, P.W.4 had deposed about hatching of conspiracy of the accused amongst themselves. According to him, it took place at the Dera of Nawab Amanullah Khan Sial. The witness has since been disbelieved and the accused persons have been acquitted on the charge of conspiracy. P.W.5 Ahmad Khan, H.C., was Moharrir, Police Station Massan. On 15-10-1989 the S.H.O. gave him three parcels for safe custody containing blood-stained earth. On 24-10-1989, he handed over the said sealed parcels to Ghulam Akbar, Constable, for onward transmission to the concerned office. Thereafter, on the same day, i.e. 15-10-1989 he was given another parcel containing crime empties. He gave the said sealed parcel to Muhammad Hafeez, Constable on 3-11-1989 to be delivered in the office of Forensic Science Laboratory, Lahore. He was again given three parcels containing .12 bore guns and a carbine on 17-11-1989, which he got delivered through Ashfaq Hussain, Constable on 25-11-1989 in the concerned office. So long the parcels remained in his custody, nobody tampered with them. P.W.10 Fazal Din, Patwari had prepared the site plan Exhs.P.K. and P.K./1 on the directions of the police and pointation of the witnesses. Ocular account was furnished by Umar Hayat, Muhammad Ismail, Sher Muhammad, injured, and Aurangzeb, P.Ws.11, 12, 13 and 14, respectively. P.W.15 Ashiq Ali, Inspector/S.H.O. on 13-12-1989 arrested Allah Ditta son of Allay Yar accused from the Sessions Court premises. P.W.16 Muhammad Ashiq, Inspector, C.I.A. was entrusted with the investigation of the case on 14-3-1990. On 16-3-1990 he arrested Faizullah accused and sent him to jail. P.W.17 Muhammad Shafi, A.S.I. on 30-6-1990 arrested Sarfraz. P.W.18 Haq Nawaz, Constable had witnessed the recovery of Riaz accused on 17-11-1989 when he was present with Bashir Ahmad, A.S.I. at a Nakabandi. Carbine P.8 was found on his person at the time of his arrest. He was also entrusted with warrants of arrest Exh.P.U. of Sultan. Since said Sultan was not traceable, therefore, he gave his report on the said warrants Exh.P.U./1. P.W.21 Haibat Khan, S.I. on 7-8-1990 arrested Sultan accused from Chak No.250/JB. At the time of his arrest said Sultan was a proclaimed offender. At the time of his arrest revolver .32 bore with 4 live cartridges were recovered from him, therefore, he got a separate case under section 13/20/65 of Arms Ordinance registered against him. Sultan accused while in custody on 11-8-1990 got recovered gun P.6 from his residence, which was secured vide recovery memo. Exh.P.S. he got the said memo attested from the witnesses as well. Umar Hayat, S.I. P.W.22 had recorded formal F.I.R. Exh.P.L. and investigated the case. Bashir Ahmad, A.S.I., P.W.23, on 17-i1-1989 arrested Riaz accused in Nakabandi and a carbine was also secured from him. The rest of the witnesses are of formal nature, therefore, need not be discussed.
12. At the conclusion of prosecution evidence, the appellants were examined without oath. They refuted the prosecution allegations and pleaded innocence. They further stated that they were involved on account of enmity and political rivalry. They, however, did not choose to appear in their defence on oath. The defence examined Mehboob Khan as D.W.1. He was Administrative Manager, Nazir Cotton Mills, Sheikhupura. According to him, Riaz accused was known to him as he was in the service of Nazir Cotton Mills. According to the attendance register he remained present in the month of October from 1st to 21st, except 20th and 21st. In November, 1989 he was on duty from 1-11-1989 to 7-11-1989, on which date the police took him into custody.
4. It was contended by learned counsel for the appellants that the case against the appellants was highly doubtful. Submitted that the convictions were based on the statements of the witnesses, who had been corroborated by the recoveries effected at the instance of some of the appellants. Submitted that a grave illegality was committed by the trial Court by seeking corroboration from the recoveries at the instance of the appellants when the recovery witnesses were the same who had furnished ocular account. Submitted that the prosecution story became highly doubtful because at initial stages the complainant had named Muhammad Nawaz as one of the assailants armed with a carbine, but subsequently when the prosecution side learnt that he was in jail, he was substituted with Riaz, that is why the necessity arose for the complainant to make a supplementary statement. Argued that the recovery of fire-arm and the empties recovered from the spot would not be of any consequence because the carbine recovered from Riaz had matched with empties recovered from the spot, yet the trial Court had acquitted said Riaz, therefore, the recoveries also became doubtful. Argued that D.W.1 Mehboob Khan, Administrative Manager of Nazir Cotton Mills was an independent witness, neither related to any side nor a partisan. According to him, Riaz was arrested immediately after the occurrence, yet the police showed his arrest after a month, which makes the entire prosecution case doubtful. Submitted that the witnesses were interested and inimical. They stood belied by the fact drat some of the accused were acquitted, and in such circumstances they could not be relied upon unless strong corroboration was available. Asserted that in the instant case the recover of fire-arm at the instance of the appellants would not be of any consequence, because the recovery witnesses were the same who could not be relied upon without corroboration and a witness cannot corroborate his own testimony. Asserted that the role ascribed to Riaz accused was that he fired at Ismail on his shoulder, but according to the doctor it was an exit wound. The contentions were opposed by learned counsel for the State as well as for the complainant. According to the learned counsel for the complainant, 2 of the eye-witnesses were injured and their presence could not be doubted. Submitted that there was not such a serious enmity between the parties which could prompt them to falsely implicate the appellants. Asserted that the prosecution witnesses stood amply corroborated by the recoveries of the fire-arm at the instance of the appellants and the same matched with the empties secured from the spot.
5. We have heard the learned counsel at length and gone through the file. The prosecution in order to establish its case mainly relied upon the ocular account furnished by Umar Hayat, Muhammad Ismail, Sher Muhammad and Aurangzeb, P.Ws.ll to 14, respectively. Prosecution sought corroboration from the recovery of guns, which according to the report of Forensic Science Laboratory, matched with the weapons recovered from some of the appellants. Prosecution also sought corroboration against Sultan appellant because he was declared an absconder by virtue of report Exh.P.U./1. As far as the eye witnesses are concerned, we have noticed that Muhammad Ismail and Sher Muhammad, P.Ws., were injured. Both of them had serious injuries on their person. Sher Muhammad, P.W. had 7 injuries on his person; all of them were fire-arm injuries; five were wounds of entrance and two were exit wounds. The defence at any stage did not suggest that they Could be with a friendly hand or could be self-suffered. Similar is the case with Muhammad Ismail, P.W., who had 10 injuries on his person; all were fire-arm injuries. In this view of the matter, we can safely hold that both the witnesses were present at the spot. How much weight is to be given to their statements will be discussed later. Similarly, Umar Hayat and Aurangzeb, P.Ws.11 and 14, respectively, have given a detailed account of the occurrence and an explanation with regard to their presence at the spot. All the eye-witnesses were put to the test of lengthy cross-examination but the defence could not come up with any material which could render their statements inadmissible or not worthy of reliance. We have noticed that there did not exist enmity such a nature between the parties which could prompt them to make statements involving innocent persons. Undoubtedly we have noticed that in the F.I.R. Umar Hayat, P.W., had named one Nawaz as armed with carbine, who actively participated in the occurrence, but the same day he made a supplementary statement asserting that inadvertently on account of mental pressure because of the incident, he had named Nawaz, instead it was Riaz who was armed with a carbine. As far as the other witnesses are concerned, we have noticed that in their statements under section 161, Cr.P.C. all of them had named Riaz as one of the assailants. After giving careful consideration to this aspect of the case, we feel that the omission on the part of the complainant and assertion on the part of the witnesses that Riaz fired hitting Ismail on his shoulder, which subsequently was held to be an exit wound by the doctor, has cautioned us. Therefore, we hold that the statements of the eye-witnesses can be relied upon only if they find corroboration from independent source. We have noticed that Allah Bakhsh on 17-11-1989 had got recovered gun P.1 with licence from his house, which were secured vide memo. Exh.P.O. It was signed by Aurangzeb, P.W.14, and Umar Hayat, S.I./S.H.O., P.W.22. Similarly, Sultan after his arrest led the police party to hiss house and got recovered gun P.6 and licence P.7 on 11-8-1990, which was secured vide memo. Exh.P.S., witnessed by Aurangzeb, P.W.14, and Haibat Khan, S.I., P.W.21. As far as the contention of the learned counsel for the appellants that the recoveries may not be relied upon because they were witnessed by Aurangzeb, P.W.14, who was an eye-witness and in order to rely upon his statement corroboration was required, therefore, an interested witness cannot corroborate his testimony by becoming a recovery witness, we find there is substance in it. But the learned counsel for the appellants had lost sight of the fact that the recovery memo. was also signed by the Investigating Officer who was put to the test of lengthy cross-examination but the recoveries of the guns effected at the instance of the appellants were not seriously challenged. In these circumstances, while relying upon the statements of the police officials who had also witnessed the recovery of guns at the instance of the appellants, we accept the recoveries and hold that they can be used as corroboration against the appellants. The gun recovered at the instance of Allah Bakhsh matched with three crime empties secured from the spot. Similarly, the gun recovered at the instance of Sultan; appellant, matched with two crime-empties secured from the spot. We have noticed that the crime empties were recovered on the day of incident and they were sent to the office of Forensic Science Laboratory, Lahore before the guns were recovered from Allah Bakhsh and Sultan. As far as the remaining appellants are concerned, no corroboration qua them is available. Any weapon recovered at their instance would not be of any help because it did not match with the empties secured from the spot, and it has already been held, that the witnesses as an, abundant caution cannot be relied upon unless they are corroborated qua each of the accused.
13. For what has been discussed above, we find that there is no corroboration to the statement of the eye-witnesses available qua Mutalli, Amir and Allah Ditta son of Muhammad. Therefore, as an abundant caution, giving them benefit of doubt their appeal is accepted. They are acquitted of all the charges. They shall be released forthwith if not required in any other case. Death sentences of Amir and Mutalli are not confirmed.
14. As far as Allah Bakhsh and Sultan appellants are concerned, the eye witnesses qua them can be relied upon, because the eye-witnesses have been corroborated by the recovery of fire-arms at their instance, which matched with the empties secured from the spot vide report of the Fire-arms Expert Exh.P.CC. As far as Sultan appellant is concerned, he was also declared a proclaimed offender and warrants of arrest Exh.P.U. issued against him could not be executed. In the light of above discussion, the appeal of Sultan is dismissed. His death sentence is confirmed.
15. Similarly, the appeal of Allah Bakhsh is also dismissed. His conviction and sentences are maintained. For the same reasons, their convictions recorded under section 307, P.P.C., on two counts are maintained, but the sentence of imprisonment for ten years of both the appellants, i.e. Sultan and Allah Bakhsh is reduced to seven years' R.I. each on each count (under section 307/34, P.P.C.). The sentence of fine, or imprisonment in default of payment of fine, is however, maintained. Their conviction and sentence recorded under section 148, P.P.C. is, however, set aside. We have considered but are of the view that Allah Bakhsh appellant is not entitled to the benefit of section 382-B, Cr.P.C. as he acted in a callous manner. His sentences shall run concurrently.
16. For the same reasons, Revision bearing Criminal Revision No.15 of 1991, filed by the complainant also fails, which is dismissed.
17. N.H.Q./S-501/L Order accordingly.