PROVINCE OF THE PUNJAB Versus MUHAMMAD SHARIF & CO.
RASHID AZIZ KHAN, J .--- Muhammad Amir (22 years), Umar Hayat (22 years) alongwith Muhammad Nawaz, Mushtaq and Nazar Muhammad were sent up for trial by Police Station Bhalwal for offence under section 302/34/109, P.P.C. The case came up for trial and disposal before Special Court for Speedy Trials, Sargodha who vide his judgment dated 15-6-1988 acquitted Nawaz, Mushtaq and Nazar Muhammad. Muhammad Amir and Umar Hayat appellants were however found guilty. Amir was convicted and sentenced under section 302/34, P.P.C. to death with a fine of Rs.30,000 or in default thereof five years' R.I. Umar Hayat was convicted under section 302/34, P.P.C. and sentenced to imprisonment for life with a fine of Rs.30,000 or in default thereof five years' R.I. It was further directed that the fine, if recovered, Rs.40,000 out of it shall be paid to the legal heirs of deceased Muhammad Amir. Convict Umar Hayat was also given benefit of section 382-B, Cr.P.C.
2. Prosecution story in brief as unfolded by Umar Hayat P.W.1 was to the effect that on 26-5-1987 at about 9 a.m. first informant with Muhammad Amir and Muhammad Azam sons of Fateh Muhammad was present at Jhal Chakkian Phullarwan. First informant and his nephew Muhammad Azam were sitting in the shop of a Barber where Muhammad Afzal was also sitting. Muhammad Amir was standing near the shop of sweetmeat waiting for bus. Both the appellants Muhammad Amir and Umar Hayat armed with .12 bore guns came- on a Tonga. Both of them got down and fired after raising Lalkaras a shot each at Muhammad Amir deceased hitting on his left leg. Muhammad Amir fell down after receiving the injuries whereupon both the accused fired a shot each hitting on his right leg. First informant and other eye-witnesses out of fear did not go near. After the occurrence, both the assailants decamped with their respective weapons. First informant with Muhammad Iqbal took Muhammad Amir injured in a Tonga to hospital at Phullarwan where doctor after giving first aid advised them to take the injured to Sargodha hospital which they accordingly did. When they reached near the hospital, deceased expired, therefore, he was brought back. It was further asserted in the F.I.R. that Muhammad Amir was done to death on the abetment and instigation of Mushtaq Ahmad, and Nazar Muhammad. The motive for the occurrence was that four years earlier Muhammad Amir accused had injured Muhammad Azam for which a case under section 307, P.P.C. was registered. Two years thereafter, first informant and Muhammad Amir deceased injured Mushtaq Ahmad and Muhammad Nawaz acquitted co-accused for which a case under section 325, P.P.C. was registered. Present occurrence had taken place because of said criminal cases.
3. Statement Exh.P.A. was lodged by Umar Hayat P.W.1 which was recorded by Shah Nawaz S.I. P.W.10 at 12-30 p.m. with regard to an occurrence which had taken place on the same day i.e. 26-5-:987 at 9 a.m. at Jhal Chakian Phullarwan 14 miles from the Police Station Bhalwal, Sargodha. Formal F.I.R. Exh.P.A./1 was recorded on the same day at 1-15 p.m. by Muhammad Iqbal Moharrar H.C. P.W.9.
4. Shah Nawaz S.I. P.W.10 on 26-5-1987 after recording complaint Exh.P.A. sent the same to the concerned police station for registration of a case and himself came to the spot. He prepared injury statement Exh.P.K. and inquest report Exh.P.L. of the deceased and sent the dead body for autopsy. Blood-stained earth was recovered vide memo. Exh.P.B. He also took into possession two empties P.1 and P.2 from place of occurrence and sealed them into a parcel vide memo. Exh.P.C. On 27-5-1987 he raided the house of the appellants and arrested them. At that time, both the appellants were carrying guns. A double-barrel gun P3 with three live cartridges P.4/1-3 was secured from Umar Hayat accused. They were sealed into a parcel vide memo. Exh.P.E. A single barrel gun PS was secured from Muhammad Amir with two live cartridges P.6/1-2 which were secured vide memo Exh.P.F. Both the recoveries memos were attested by Nazir Ahmad P.W.4, Muhammad Ashraf (given up) and Shah Nawaz S.I. P.W.10. He got site plan Exhs.P.H. and P.H./1 prepared from draftsman and gave its notes in black ink. After usual investigation, he challaned the appellants.
5. Doctor Riaz Ahmad P.W3 on 26-3-1987 at 5 p.m. conducted the post- mortem on the dead body of Muhammad Amir and found the following injuries:--
(1) A multiple fire-arm wound of entry with inverted edges, in area of 17 c.m. x 9 c.m. x muscle deep on front of lower 1/3rd of left thigh, with corresponding holes on the Shalwar.
(2) A fire-arm wound of entry with inverted edges, 2-1/2 c.m. x 2 c.m. x muscle deep on inner side of left knee.
(3) A fire-arm wound of entry with inverted edges 3 c.m. x 3 c.m. muscle deep in inner side of left knee, about 1 c.m. from injury No.2 with corresponding holes on the Shalwar.
(4) A fire-arm wound of exit in an area of 4 c.m. x 3 c.m. in popliteal fossa on back of left knee joint.
(5) A fire-arm wound of entry 7 c.m. x 3 c.m. x bone deep, on outer side of left lower leg, upper 1/3rd with fracture of left fibula.
(6) A fire-arm wound of exit 14 c.m. x 6 c.m. x bone deep on inner side of left lower leg upper 1/3rd.
(7) A fire-arm wound of entry 1 c.m. x 1 c.m. x muscle deep on inner side of right lower leg lower 1/3rd.
(8) A multiple fire wound of entry in the area of 4 cm. x 3 c.m. on lower 1/3rd of right shin about 4 c.m. from injury No.7.
(9) A fire-arm wound of entry 2 c.m. x 1 c.m. x muscle deep on inner side of right ankle.
In his opinion, death had occurred due to shock and haemorrhage because of the injuries. Injuries Nos. 1, 3, 4 and 5 were declared grievous and fatal. All the injuries were ante-mortem and caused with fire-arm.
6. Prosecution in support of its case produced ten witnesses in all. Umar Hayat P.W. and Muhammad Afzal P.W.2 gave ocular account of the occurrence. Doctor Riaz Ahmad P.W3 had conducted post-mortem examination of the dead body. Nazir Ahmad P.W.4 had witnessed recovery of gun P3 from Umar Hayat appellant and recovery of gun P.5 from Amir appellant. Manzoor Hussain Constable P.WS had escorted the dead body to the mortuary. Muhammad Nawaz H.C. P.W.6 kept sealed parcels of guns and empties in the Malkhana on 27-5-1987. Thereafter on 1-6-1987, he handed over the said parcels intact to Manzoor Hussain P.W. for delivery in the concerned offices at Lahore. Ghulam Ahmad Draftsman prepared site plan Exhs.P.H. and P.H./1 on the direction of the police. Muhammad Akram P.W.8 deposed about the abetment of the accused persons about the present occurrence. Muhammad Iqbal A.S.I. P.W.9 had recorded formal F.I.R. Exh.PA./1. Shah Nawaz had conducted the investigation and challaned the appellant.
7. At the conclusion of the prosecution evidence appellants were examined without oath. They refuted the prosecution allegations and pleaded innocence. They neither produced defence evidence nor appeared in their defence on oath.
8. It was contended by the learned counsel for the appellants that there was delay in the registration of the F.I.R. which casts serious doubt on the prosecution version. Argued that delay in the F.I.R. further showed that the eye-witnesses were not present at the spot, they were imported subsequently. Asserted that in such circumstances no reliance on the ocular account can be placed. It was argued in the alternative that eye-witnesses may not be relied upon without independent corroboration because they have been disbelieved qua three acquitted co-accused. Asserted that corroboration in the instant case was not available because recoveries of empties were made on 26-5-1987 but were kept by the Investigating Officer and on the following day after recovery of the gun he deposited them in the Malkhana and in such circumstances no reliance could be placed. Contentions were opposed by the learned counsel for the State.
9. We have heard the learned counsel for the parties and have gone through the evidence with their assistance.
10. Ocular account has been furnished by Umar Hayat and Muhammad Afzal P.W.1 and P.W.2 respectively. Both of them were put to test of cross examination but nothing could be brought on the record which could create doubt in the truthfulness on their statements. The argument of the learned counsel that both the eye-witnesses may not be relied upon because there is a background of enmity between the appellant and the eye-witnesses is without substance. Muhammad Amir had admitted in his statement under section 342, Cr.P.C. that there were criminal cases against both the sides but there had been a compromise and all the accused in both the cases were acquitted. In this view of the statement coupled with the fact that the eye-witnesses had also asserted that there had been a compromise in the criminal cases with the appellants would go to show that there was no background of enmity. We have also considered the argument of the learned counsel for the appellants that there is a delay in the registration of the case but do not find any substance in the same. The occurrence had taken place at 9 a.m. and the case was got registered same day at 12-30 a.m. Umar Hayat P.W.1 has given a detailed account explaining time from 9 a.m. till 10-30 p.m. According to him he took the injured to the dispensary at Phularwan and thereafter took the deceased to Civil Hospital Sargodha. The explanation appears to be correct because at that time sole consideration of the witnesses would be to make efforts to save the life of the injured. If a person is placed in such a situation he cannot be expected to think of technicalities. The assertion of the learned counsel that no doctor from Civil Hospital Phularwan or from Sargodha has appeared to corroborate the assertion of the complainant is also without force. As narrated by Umar Hayat P.W. that when he reached Sargodha injured expired and therefore, he brought him back. In such circumstances, no doctor possibly be expected to appear. As far as any doctor from civil dispensary Phularwan is concerned, no question was put to the Investigation Officer to explain whether he examined the said doctor or not. In absence of such question no benefit can be taken by the appellants. Both the eye-witnesses are residents of the place where the occurrence took place. They have given plausible explanation with regard to their presence at the spot. Acquittal of the three co-accused cannot shake the credibility of the witnesses because they were not witnesses of conspiracy and thereby it cannot be argued that they were disbelieved qua the co-accused.
11. As far as the recovery of crime empties at the spot is concerned, it was witnessed by Muhammad Afzal P.W.2. He has signed the memos. The defence except for a suggestion has not seriously challenged the recovery. Guns recovered from the appellants were witnessed by Nazir Ahmad P.W.4. He was also put to lengthy cross-examination but nothing could be brought on the record to shake his credibility. Argument that crime empties were recovered on 26-5-1987 but kept till 27-5-1987 by I.O. therefore, no reliance on the recoveries be placed is rejected. The Investigating Officer as well as the recovery witnesses have categorically stated that crime empties recovered from the spot were sealed into a parcel. Report of the Forensic Science Laboratory is that the parcels were received with their seals intact. Even otherwise Investigating Officer should have been cross-examined why he did not deposit crime empties in the Malkhana on 26-5-1987. In the absence of any question of no benefit can be taken by the appellants. It was not even suggested to the recovery witnesses of the gun that after its recovery it was fired and then empties were sealed into parcel. Ballistic Expert after examining the guns and the crime empties gave positive report Exh.P.R. This fact can be used as corroboration of the eye-witnesses.
12. For what has been discussed above, we hold prosecution has been able to prove its case against the appellants beyond reasonable doubt. Therefore, their appeal fails which is dismissed. There is some force in the argument of the learned counsel for the appellants that role of Muhammad Amir and Umar Hayat is identical. Both of them had fired at the non-vital part of the body of the deceased and in such circumstances Amir convict was also entitled to lesser sentence. We have noticed that both the appellants had caused injuries only on the legs of the deceased. None of them had caused injuries on the vital parts of his body. In these circumstances, while dismissing the appeal the sentence of I death of Muhammad Amir is converted into imprisonment for life. The sentence of fine of both the convicts are maintained. Both the convicts shall also be given benefit of section 382-B, Cr.P.C.
N.H.Q./M-667/L Order accordingly.