NISAR AHMAD Versus THE STATE

JUSTICE RAJA AFRASIAB KHAN (MEMBER). ---- Muhammad Ali alias Baggr son of Khadim Hussain caste Rajput resident of Mohallah Islam Nagar, Sahiwal and Nisar Ahmad alias Billa son of Sardar Muhammad, caste Arain, resident of Old Civil Line, Sahiwal, were tried by the learned Judge, Special Court for Speedy Trials, Multan, under sections 452, 398, 302/34, P.P.C. They were convicted and sentenced to 7 years' R.I. plus a fine of Rs.10,000 each or in default thereof to suffer further 4 months' S.I. under section 452, P.P.C. They were also convicted and sentenced to 7 years' R.I. and a fine of Rs,10,000 each or in default thereof to undergo 4 months' S.I. under section 398, P.P.C. Muhammad Ali was held guilty under section 302, P.P.C. for causing an intentional death of Malik Bashir Ahmad. He was, therefore, sentenced to death as Qisas plus a fine of Rs.50,000 or in default thereof to suffer further R.I, for one year. About Nisar Ahmad, the learned trial Judge held that he did not cause any injury to the deceased and as such he was sentenced to a lesser sentence of imprisonment for life as Tazir and a fine of Rs.20,000 or in default thereof to suffer further 8 months' R.I. It was ordered that the sentences so awarded, shall run concurrently. It was directed that in case of recovery of fine, a sum of Rs.60,000 shall be paid to Mst. Saeeda Begum, widow of the deceased as compensation under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. was given to the appellants. The appellants have separately challenged their conviction and sentences by; filing appeals before this Court. This judgment shall decide both the appeals together as they arise out of the same judgment.

2. Shortly stated, the facts are that Malik Bashir Ahmad, husband of the complainant Mst. Saeeda Begum, was a Contractor. On 30-12-1990, at about 8-15 p.m. the complainant, her husband, their son Atif Bashir and their guest Shafaat Ahmad were sitting in a room of their house. Their servant Nazar Muhammad, a boy of 10/12 years, was also present in the same room. They were watching the television. Some body rang the bell. Their servant went outside and opened the door. Suddenly, four persons entered their house. They kept a pistol on the temple of their servant and entered the house. Two of the robbers had masked their faces. One of them ordered to switch off the T.V. It was also directed by the robbers that whatever valuables were with them should be handed over to them. The robbers also fired a shot which hit the roof of the room. The complainant and her husband asked them to behave and not to indulge in nonsense and also to disclose their identity. Upon this, Malik Bashir Ahmad (deceased) got up and grappled with one of the masked men. He was able to push the robber into another room. In the meantime, the other masked man intervened to help their companion. During the scuffle, masks of both the robbers fell down and their, faces became visible. The complainant and his son recognized Shafaat Ahmad Alias Billa who was their Mohalladar. He was armed with a pistol. The other robber was Muhammad Ali alias Daggr. He too was armed with a fire-arm. The witnesses called them by their names and declared that they had been fully identified by them. Muhammad Ali appellant fired a shot, which hit Malik Bashir Ahmad on his back. On receipt of the injury, he fell down. On the alarm raised by the witnesses the accused ran away from the spot with their weapons. One of the robbers was of fair colour with a round face and had also moustaches and was about 5 feet and 8 inches in height. He appeared to be about 24/25 years old and was wearing jacket and pant. The other accused was of wheatish colour with a round face. He was putting on pant and shirt. He looked about 27/28 years old. It was claimed that two accused, who were strangers, could be identified by them. The injured was immediately shifted to hospital.

3. Muhammad Afzal Wattoo Inspector P.W.8 recorded the complaint Exh.P.A. on the statement of Mst. Saeeda Begum. A formal F.I.R. Exh.P.B. was registered by Bahadur Ali Moharrar Head Constable on 30-12-1990 at about 9-10 p.m. The Investigating Officer recovered two empties, P.8 and P.9, from the spot which were kept in a sealed parcel vide recovery memo. Exh.P.S. Blood-stained earth was taken into possession vide memo. Exh.P.D. The Police Officer went to the hospital. He prepared injury statement Exh.P.J. and inquest report Exh.P.K. of the deceased. Muhammad Ameen Constable on 31-12-1990 produced the clothes of the deceased P.1 to P.4 which were taken into possession vide memo. Exh.P.C. Muhammad Ali was arrested on 31-12-1990. He led the police party to the recovery of pistol P.5 and two live cartridges P.6 and P.7 from his house which was still under construction. Under the instructions of the police officer, site plan Exh.P.F., its duplicate Exh.P.F./1 and triplicate Exh:P.F./2 were prepared by the Draftsman.

Nisar Ahmad alias Billa was arrested by the investigating officer on 30-1-1991. He led the police party to the recovery of a .32 bore pistol P.11 which he had concealed in an iron box lying in his house. Two live cartridges P.12 and P.13 were recovered which were sealed into separate parcels. The statements of the witnesses were recorded by the police officer under section 161, Cr.P.C.

The report of the Chemical Examiner Exh.P.N., dated 12-1-1991 was positive. Similarly, the report of the Serologist Exh.P.O. dated 18-5-1.991 was also positive inasmuch as it was opined that the item sent to him was stained with human blood. However, the report of the Fire-arm Expert Exh.P.P. was found negative.

4. Dr. Arshad Rafique, M.O. D.H.Q. Hospital, Sahiwal, P.W.9, medically examined Malik Bashir Ahmad on 30-12-1990 at 8-45 p.m. and found the following injuries on his person:--

(1) Rounded lacerated wound 1/4 c.m. x 1/4 c.m. deep going on the back lower part of the chest close to vertebral column. Blackening around the wound present. Margins of wound were inverted. This is the wound of entry.

(2) Lacerated wound 3.5 c.m. x 1.5 c.m. x deep going on the right side of abdomen 17 c.m. away from the umblicus margins of wound are averted. This is the wound of exit.

(3) Lacerated wound 1/ 2 c.m. -x 1/2 c.m. x cartilage deep on upper 1/3 rd of left Pinna.

(4) Lacerated wound 1/2 c.m. x 1/4 c.m. x cartilage deep on left ear about 2 c.m. from injury No.3.

(5) Lacerated wound 1 c.m. x 1/4 c.m. x muscle deep on the, right side of forehead, 1.5 c.m. from right eyebrow.

Injuries Nos.1 and 2 were kept under observation while injuries Nos.3, 4 and 5 were declared simple. Injuries Nos.1 and 2 were caused by fire-arm. Injuries Nos.3, 4 and 5 were inflicted by a blunt weapon. Duration of the injuries was within about one hour.

On 31-12-1990 at 9-40 a.m. the same doctor conducted the post-mortem examination on the dead body. It was opined by the doctor that death occurred due to shock and haemorrhage as a result of injury No.1 which was sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was within one hour and the time between death and post-mortem examination was within 13 hours.

5. The eye-witness account was furnished by Mst. Saeeda Begum P.W.5 and Atif Bashir P.W.6. The appellant Muhammad Ali denied the allegations levelled against him in his statement under section 342,.Cr.P.C. He took up the plea that he was falsely implicated in the case and that the occurrence was an untraced one. He further stated that he was falsely implicated in the case because the police wanted to show its efficiency and performance. He pleaded his innocence. However, no evidence in defence was led by him. Nisar Ahmed, the other appellant, took the plea that he had been falsely involved in the case on account of his enmity with Muhammad Latif Mughal, a local M.PA. He also stated that it was a blind murder. He also produced an application Exh.D.B. and the order of the learned Sessions Judge, Sahiwal Exh.D.C. in his defence. However, the appellants did not make any statement on oath under section 340(2), Cr.P.C.

6. The learned trial Judge, after examining the prosecution evidence, came to the conclusion that the witnesses, namely, Mst. Saeeda Begum and Atif Bashir were natural and that they had identified the accused on the spot while they committed the offence. It was held that the F.I.R. was lodged with promptitude. It was observed that the medical evidence lends full support to the ocular account and that there was no enmity between the accused and the complainant party.

7. Ch. Khalil-ur-Rehman, learned counsel for Nisar Ahmed appellant vehemently argues that it is in the evidence of the Investigating Officer that there was no bullet mark having been found on roof of the room which fact runs counter to the case of the prosecution. He maintains that there was no evidence available on record to show that Nisar Ahmed appellant went to the house of the complainant in order to commit the murder. He adds that there was absolutely no justification to convict and sentence him under section 302, P.P.C.

Mr. Yawar Ali Khan, learned counsel for Muhammad Ali appellant contends forcefully that there is not an iota of evidence to connect his client with the commission of the offence under section 302, P.P.C. He argues that it was 'the duty of the prosecution to prove the intention to murder Malik Bashir Ahmed. According to him, the allegations were that of a simple robbery and certainly not that of murder. He also maintains that it is a case of blind murder and the prosecution story on the face of it appears to be doubtful.

Mr. S.M. Nazim, learned State counsel while replying to the arguments of the learned counsel submits that it was proved that the appellants went duly armed with deadly weapons to the house of the complainant and that they were prepared to meet any eventuality like the one in the case in hand. He maintains that an intention to murder can very well be gathered from the acts done by the appellants at the spot in the commission of the crime. He submits that the case of the appellants falls under section 302, P.P.C. without any doubt.

8. We have heard the learned counsel for the parties at considerable length and have also read the evidence with their assistance very carefully. There is considerable force in the arguments of the learned counsel for Nisar Ahmad appellant inasmuch as he did not cause any injury to the deceased. Both the eye-witnesses, namely, Mst. Saeeda Begum and her son Atif did not involve Nisar Ahmad on the murder charge. He was undoubtedly armed with a deadly weapon at the time of occurrence. He however, did not use it. This would clearly indicate his intention not to cause any harm to the inmates of the house. There is also no prosecution evidence to show that Nisar Ahmad shared intention with the other appellant Muhammad Ali to murder Malik Bashir Ahmad. The fact that admittedly there was no enmity between the parties, would demonstrate that this appellant had gone to the house of the complainant only in order to commit robbery. He is, accordingly, acquitted of the murder charge because of lack of evidence against him. His appeal to that extent is accepted and is hereby allowed. The testimony of the eye-witnesses was that it was Muhammad Ali appellant alone who fired at and committed the murder of Malik Bashir Ahmad. The prosecution evidence was natural and it inspired confidence and was worth reliance. It is, therefore, established that he had the intention to murder. He could very well indulge in an ineffective firing to frighten the complainant party in order to avoid the murder of an innocent soul. This he did not do because he wanted to finish Malik Bashir Ahmad as he dared to apprehend them at the time of commission of the crime. The evidence of Mst. Saeeda Begum was materially corroborated by Atif Bashir P.W.6. They are the most natural witnesses because the occurrence took place in a room of their house before them when they were watching the T.V. programme. They were also in a position to identify the appellants in the electricity light and also because they were the residents of the locality of the complainant. The medical evidence of Dr. Arshad Rafique P.W.9 lends considerable support to the ocular account of P.W.5 and P.W.6. There was blackening around injury No.1 which was on the chest of the victim. It shows that the injury was inflicted on the victim from a very close range. This injury was attributed to Muhammad Ali appellant by all the witnesses of the prosecution. In these circumstances, the case of murder stands proved beyond doubt against Muhammad Ali. His appeal, being devoid of force, fails and is hereby dismissed.

However, the other appellant Nisar Ahmad was armed with a deadly weapon when he committed robbery during night. In our view, the provisions of section 398, P.P.C. are clearly attracted to the facts and circumstances of the case. The sentence awarded to him, in our view, does not commensurate with the nature of offence committed by this appellant. In the given circumstances, a notice was issued to his learned counsel to show cause as to why his sentence may not be enhanced to meet the ends of justice. After hearing the learned counsel we are of the view that this was a fit case in which the appellant should be suitably punished under section 398, P.P.C. It is in the evidence of P.W.5 and P.W.6 that the appellant shouted that the complainant party should immediately hand over cash etc. to them. This being so, we enhance the sentence of Nisar Ahmad alias Billa, appellant, from seven years to fourteen years' R.I. under section 398, P.P.C. The sentence of fine awarded to him by the learned trial Court is, however, maintained. There was no lawful justification for conviction and sentence of the appellants under section 452, P.P.C. in the circumstances of this case inasmuch as the accused went to the house of the complainant in order to commit robbery only. They are, therefore, acquitted of the charge under section 452, P.P.C. With these remarks, both the appeals stand disposed of.

N.H.O./57/SAC

Order accordingly