RASHID AHMAD Versus STATE
Rashid Ahmad son of Ghulab Din, Muhammad Yousaf son of Sardar Muhammad, Muhammad Anwar, Muhammad Ayub, sons of Sardar Muhammad, and Azam Ali son of Ahmad were sent up for trial by Police Station Chak Jhumra, District Faisalabad for an offence under section 302/148/149, . P.P.C. Additional Sessions Judge, Faisalabad vide judgment, dated 17-5-1989, convicted and sentenced each of them to imprisonment for life with a fine of Rs.2,000 under section 302/149, P.P.C. Each of them was further directed to pay compensation of Rs.2,000 to the legal heirs of deceased Azhar Hussain, or in default of payment of compensation each of them to suffer S.I. for 6 months. All of them were further convicted under section 148, P.P.C. and sentenced to one year's R.I. each. The, convicts have appealed. Nasar Ahmad complainant has also filed a Revision bearing Criminal Revision No.435 of 1989 seeking enhancement of sentence and compensation. Both these matters will be disposed of by this judgment.
2. Prosecution story in brief, as disclosed in F.I.R. Exh.P.C./1 recorded on the basis of statement Exh.P.C. lodged by Nasir Ahmad, was to the effect that on 15-9-1985 at about 10- a.m., first informant's brother Azhar after ploughing the land came back to his Dhari and was lying on a cot. Nanr Hussain, another brother of the first informant, went to Killa No.13, and his other brother Khalid Hussain took buffaloes for grazing. First informant was coming from the Chak when he saw Rashid armed with .12 bore gun, Muhammad Yousuf with .12 bore gun, Ayyub with Carbine, Azam Ali with Carbine, and Anwar armed with .12 bore gun. They emerged from the sugar cane field and came to the cot of Azhar. Rashid fired his gun hitting Azhar on the front of his chest. ~Yousaf fired hitting on his leg. Anwar's fire hit on the right side of abdomen of Azhar. Ayyub fired his carbine hitting Azhar on his left arm, which was followed by Azam, who fired with his carbine hitting on his left knee. Thereafter Rashid, Anwar and Ayyub fired another shot each hitting on different parts of Azhar's body. First informant alongwith eye-witnesses Nazar Hussain, Abdul Ghafoor and Sikandar out of fear did not come near the assailants. After the occurrence the assailants ran away. The injured expired at the spot. Motive for the occurrence was registration of criminal cases under section 307, P.P.C. against the deceased and the first informant with the allegation of injuring the assailant side.
Occurrence took place on 15-9-1985 at 10 a.m. in Chak No.124-RB at the Dhari of the deceased, 14 miles from Police Station Chak Jhumra. Complaint Exh.P.C. was lodged by Naser Ahmad, P.W.8 while he was on his way to the Police Station at Salarwala, the same day at 12 noon, which was recorded by Muhammad Ayyub Khan, S.I., P.W.10. Formal F.I.R. Exh.P.C./1 was registered the, same day at 12-45 p.m. by Munir Ahmad, Moharrir/H.C., P.W.2.
Muhammad Ayub, S.I. P.W.10 after recording complaint Exh.P.C. sent the same for registration of the case and himself went to the spot. He prepared injury statement Exh.P.F. and inquest report Exh.P.G. of the dead body and sent the same for autopsy. He secured blood-stained earth from the spot vide memo. Exh.P.B. He recorded the statements of the witnesses on the following day. He took into possession blood-stained cot P.1 vide memo. Exh.PA. He recorded the statements of the witnesses on the following day. He took into possession last-worn clothes of the deceased vide memo. Exh.P.H. He got prepared site plan Exhs.P.D. and P.D./1 and gave his notes in red ink thereunder. On 1-10-1985, he arrested all the accused. After completion of investigation the accused were challaned.
Dr. Muhammad Munir Subhani, P.W.6, Medical Officer Rural Health Centre, Chak Jhumra, on 16-9-1985 conducted the post-mortem examination on the dead body of Azhar, aged 26 years, and found 24 fire-arm injuries. Out of them injuries Nos.7, 17, 19, 20 and 24 were exit wounds. The rest were wounds of entry. Injuries Nos.1, 3, 4; 5, 6, 8, 9, 14, 16, 21 were grievous. The rest were simple. The injuries were sufficient to cause death in ordinary course of nature, and were ante-mortem.
3. Prosecution in support of its case produced ll witnesses in all. P.W.1 Ali Haider had witnessed the recovery of blood-stained earth from the spot. P.W.2 Munir Ahmad, Moharrir/H.C. had drawn formal F.I.R. Exh.P.C./1 on 15-9-1985. Muhammad Ashfaq, Patwari, P:W.5 had prepared site plan Exhs.P.D. and P.D./1 on the directions of the police. Dr. Muhammad Munir Subhani, P .W.6 conducted the post-mortem examination. P.W.7 Muhammad Riaz, F.C. had escorted the dead body. Iii cross-examination he stated that the S.H.O..had reached the spot with him at about 9/9-15 a.m. Eye-witness account was furnished by Nisar AhmaA Sikandar and Nazar Hussain, P.Ws.8, 9 and 11, respectively. The case was investigated by Muhammad Ayyub, P.W.10.
At the conclusion of prosecution evidence, the appellants were examined without oath. They refuted the prosecution allegations and pleaded innocence. They, however, neither produced any defence evidence nor appeared on oath in their defence.
4. It was contended by learned counsel for the appellants that- the motive as set up by the prosecution in the instant case was not proved at all. Argued that the motive took place 5 years earlier and during this period both the parties remained in the village, yet no unpleasant incident ever took place. Contended that the F.I.R. was registered after deliberations and preliminary investigation, therefore, no sanctity could be attached to it. Heavily relied upon statement of Muhammad Riaz, F.C. P.W.7. Contended that the eye-witness account could not be relied upon because there were discrepancies in their statements and were contradicted by medical evidence. Argued that the deceased had received 19 wounds of entry, but according to the eye-witnesses he was fired at only 7 shots. The contentions were opposed by learned counsel for the State as well as for the complainant.
5. I have heard the learned counsel at length and gone through the file. The time, place of occurrence and the weapon with which Azhar was done to death have not been disputed. Even otherwise, I have noticed that the blood stained earth was recovered from the Dhari of the deceased, and blood-stained cot on which he was lying was also secured. This part of the prosecution evidence has not been challenged. The doctor who had conducted the post mortem examination, opined that the deceased was done to death by means of fire-arm injuries. This aspect has also not been challenged. Therefore, it is proved that the deceased died from fire-arm injuries while he was lying on a cot at his Dhari. As far as the question who is responsible for having committed culpable homicide is concerned, the prosecution has produced Nasar Ahmad, Sikandar and Nazar Hussain, P.Ws.8, 9 and 11, respectively, to establish the guilt of the appellants. Nasar Ahmad and Nazar Hussain are real brothers of the deceased, whereas Sikandar is his first cousin. They stated that " they were present near the spot and witnessed the occurrence. They ascribed specific role to each of the appellants and have also described the weapon with which they were armed. They were put to the test of lengthy cross-examination but nothing has come on record to indicate that they were not present at the spot or had such a strong motive to let go the real culprits and falsely implicate A the appellants. As far as their presence at the spot is concerned, two of them are real brothers of the deceased. As has already been held that the occurrence took place at their Dhari, therefore, they are natural witnesses who were present at the spot. As far as Sikandar, P.W.9 is concerned, he has given a convincing explanation with regard to his presence at the spot. Mere fact that Sikandar was a relation of the deceased would not make him an inimical witness.
As far as the contention that the statements of-the eye-witnesses are belied by the medical report is concerned, it has been coesidered but I do not find any substance in it. It has been established that all the injuries received by the deceased were fire-arm injuries. The witnesses had described 7 injuries caused by the assailants. As far as the other 12 injuries are concerned, they have not been explained. This by any stretch of imagination would not mean that witnesses were not present at the spot. On the contrary, this establishes their truthfulness. If they were not present at the spot and were imported subsequently, they would have given correct number of injuries on the person of the deceased. Even otherwise, it is virtually impossible to give exact number of shots and location of injury in a situation where 5 people armed with fire arm resorted to indiscriminate firing at the deceased. It is not natural to give detail of each and every injury. In these circumstances, it is held that there is no conflict between the ocular account and the medical evidence.
As far as the,contention that the F.I.R. has been got registered with an unexplained delay and after preliminary investigation is concerned, it has been i considered but I do not find any substance in it. Learned counsel for the appellants while relying upon the statement of P.W.7 Muhammad Riaz, F.C. stated that he had accompanied the S.14.0. to the spot and according to him they reached there at 9/9-15 a.m., whereas admittedly the complaint Exh.P.C. was made at 12 noon, and, in such circumstances, unexplained delay of three hours is fatal to the prosecution version. After careful consideration, I am of the view that no reliance on the statement of P. W.7 can possibly be placed. Admittedly, the occurrence took place at 10 a.m. Every witness has given that time, which finds mention in the F.I.R. as well as in the inquest report. None of the witnesses was cross-examined on the question of time of occurrence. If that be so, then the possibility of the S.H.O. going to the spot with P.W.7 for preliminary investigation at 9-15 a.m. cannot possibly arise.
For what has been discussed above, I hold that prosecution has been able to establish its case beyond doubt. Therefore, relying upon the testimony of eye-witnesses, the appeal fails, which is accordingly dismissed. The appellants shall, however, be given the benefit of section 382-B, Cr.P.C.
For the same reasons the Criminal Revision filed by the complainant for enhancement of sentence and compensation (Criminal Revision No.435 of, 1989) is also dismissed.
N.H.Q./R-151/L Appeal dismissed.