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Petitioner: IFTIKHAR AHMAD VS Respondent: STATE
1988 S C M R 1598
1988 S C M R 1598
Present: Muhammad Haleem, C.J., Shafiur Rahman, Ali Hussain Qazilbash and Usman Ali Shah, JJ
IFTIKHAR AHMAD‑-Appellant
versus
THE STATE‑‑Respondent
Criminal Appeals Nos.116 and 117 of 1984, decided on 8th December, 1987.
(On appeal from the judgment and order of the Lahore High Court dated 9‑4‑1980 passed in Criminal Appeals Nos.595/78 and 557 of 1978).
(a) Penal Code (XLV of 1860)‑‑
‑‑‑S.302/34‑‑Leave to appeal granted to re‑appraise evidence where High Court, while upholding conviction of accused, acquitted co‑accused on ground that according to evidence on record it was found that ocular evidence against him was contradicted by medical evidence as there existed no fire‑arm injury on right upper arm of deceased allegedly attributed to him by eye‑witness; and also to consider legality of acquittal by High Court of another co‑accused on ground that none of prosecution witnesses attributed to him any injury to have been caused by a rifle shot and that bullet was not matched with rifle secured from him.
(b) Penal Code (XLV of 1860)‑‑
‑S.302134‑‑Bullet was extracted from dead body and affirmative evidence existed to show that there were bullet as well as pellet marks on wall of Baithak where occurrence took place and as many as six pieces of lead were extracted there from‑‑Shots were fired from weapons at complainant party and those which hit deceased on his chest and neck proved fatal‑‑Six pieces of bullet were found on spot‑‑One of crime empties found at spot matched with licensed gun of accused's father which was used in crime and this fact corroborated participation of accused beyond any reasonable doubt‑‑Conviction of accused maintained in circumstances.
(c) Penal Code (XLV of 1860)‑‑
‑‑‑S.302/34‑‑Sentence‑‑Mitigating circumstance‑‑Incident occurred as a result of fight‑ which took place an hour or so before‑‑Accused given benefit of circumstance and his sentence of death replaced with imprisonment for life.‑‑[Sentence].
(d) Penal Code (XLV of 1860)
‑‑‑S.302/34‑‑Co‑accused‑‑Nor,e of witnesses ascribed to co‑accused role of having fired a shot at deceased‑‑Acquittal of co‑accused upheld.
(e) Penal Code (XLV of 1860)‑‑
‑‑‑S.302/34‑‑Co‑accused‑‑Two out of four crime empties, found at spot, matched with gun of co‑accused but as medical evidence was not consistent with ocular testimony, co‑accused was acquitted by High Court‑‑Participation of co‑accused on account of said corroborative evidence, was established but the appeal against acquittal was not pressed as the parties, reportedly had patched up their dispute.
D.M. Awan, Advocate Supreme Court and S.Ali Imam Naqvi, Advocate‑on Record (absent) for Appellant (in Cr. Appeal No.1l6/84).
Ch. Ghulam Ahmad, Advocate Supreme Court for Advocate General, Punjab for the State (in Cr. Appeal No.116/84).
Karam Elahee Bhatti, Advocate‑on‑Record for Appellant (in Cr. Appeal No.117/84).
D.M. Awan, Advocate Supreme Court and ‑Manzoor Ilahi, Advocate‑on‑Record for Respondents Nos.l and 4 (in Cr. Appeal 117/84).
Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Respondents Nos.2 and 3 (in Cr. Appeal No.117/84).
Date of hearing: 8th December, 1987.
JUDGMENT
USMAN ALI SHAH, J.‑‑These two connected appeals: one bearing Criminal Appeal No.116 of 1984 filed by appellant Iftikhar Ahmad and the other bearing Criminal Appeal No.117 of 1984 filed by complainant Muhammad Bashir, arise, by special leave, from the judgment of the Lahore High Court dated 9‑4‑1980, whereby the death sentence of Iftikhar Ahmad awarded to him by the learned Sessions Judge, Sargodha, was upheld and his appeal was dismissed while the appeal of Muhammad Arif and Ghulam Farid against their death sentence was accepted and they were acquitted. The complainant had filed a revision before the High Court against the acquittal of accused Gul Anwar and Fayyaz Tariq which was also dismissed by the same judgment.
The prosecution story briefly stated is that while Mehndi Khan was present alongwith Ali Ahmad, deceased, Iftikhar son of Sher Ali on his land at about 1.00 p.m. on 1st of December, 1975, they saw Iftikhar Ahmad son of Bahadur Khan and one Zaffar Mochi passing through the land which was objected to by Mehndi Khan, and this resllted in a quarrel between them. Mehndi Khan and Iftikhar gave fist and stick blows to Zaffar Mochi while Ali Ahmad and Iftikhar gave fist blows to Iftikhar Ahmad son of Bahadur Khan. Iftikhar Ahmad, appellant, took it ill and threatened to take revenge for this insult from the deceased party. After this beating, Iftikhar Ahmad son of Bahadur Khan went towards his village threatening them that they would take revenge for this insult. An hour later Muhammad Bashir (PW.14), Fazal Ali (PW.15), Iftikhar Ahmad (PW.17), Ali Ahmad deceased and one Zaffar Ali were sitting on the Thara of the Baithak of Iftikhar Ahmad. Meanwhile Iftikhar Ahmad son of Bahadur Khan armed with a gun and the acquitted accused namely, Muhammad Arif armed with a rifle, Ghulam Farid, Gul Anwar and Fayyaz Tariq armed with guns came, and from, amongst them Ghuiam Farid fired the first shot which hit Ali Ahmad, deceased, on the right arm, followed by Iftikhar Ahmad son of Bahadur Khan whose shot struck him on the chest, neck and left arm. Fayyaz Tariq next fired the shot at Fazal Ali which struck him on the forehead. Muhammad Arif and Gul Anwar' also fired shots. As a result of the injuries sustained by Ali Ahmad, he fell down near the door of the Baithak and expired.
The post‑mortem examination on the dead body of the deceased was conducted twice once before exhumation and the other after exhumation.
Dr. Mumtaz Ahmad Janjua (P.W.1) conducted the first post‑mortem examination before exhumation. He found the following injuries on the dead body of the deceased:‑‑
(1) An abraided area on the front of right shoulder joint 1 " x ".
(2) A wound of entry above right clavical 1" x " margins irregular inverted.
(3) A wound of entry on the front of neck 1" x 1/8" margins irregular inverted.
(4) An abraided area below right neck 2 " x 1".
(5) A wound of entry or, the outer aspect of left arm " x " margins irregular left humerous broke.
In the opinion of the doctor injuries Nos.2 and 3 were mainly responsible for the death of the deceased as also that injuries Nos.2, 3 and 5 were sufficient to cause death in the ordinary course of nature.
The second post‑mortem examination after exhumation was conducted by a Medical Board of three Doctors headed by Dr. Abdul Qadeer (P.W.2). The Board found same injuries on the dead body as above. The dead body was exposed to X‑Ray. The X‑Ray film, inter alla, revealed a bullet which was extracted from the dead body. The Board agreed with Dr.Janjua that death of the deceased was the result of fire‑arm injuries.
The trial Judge acquitted Gul Anwar in view of the evidence that the crime empties picked up from the spot were not found to match with the gun recovered from him and further that the injury attributed to him was not supported by the medical evidence. Fayyaz Taeiq pleaded alibi which plea was accepted by the trial Court and he too was acquitted.
The learned Judges in the High Court further acquitted Ghulam Farid as, according to the evidence on record, it was found that the ocular evidence against him was contradicted by the medical evidence as there was no fire‑arm injury on the right upper arm of the deceased allegedly attributed to him by the eye‑witnesses. While acquitting Muhammad Arif, the learned judges held that none of the prosecution witnesses attributed to him any injury to have been caused by a rifle shot. Moreover, they also gave the benefit of the fact that the bullet was not matched with the rifle secured from him.
Leave to appeal was granted to re‑appraise the evidence.
It was 'contended on behalf of the convicted appellant Iftikhar Ahmad that the ocular testimony qua the acquitted accused was not accepted, therefore, in his case too it should not be relied on as the roles assigned to the acquitted accused were not established. It is significant to note that a bullet was extracted from the dead Body and there was affirmative evidence to show that there were bullet as well as pellet marks on the wall of the Baithak. As many as six pieces of lead were extracted therefrom. What appears from the proved circumstances is that shots were fired from the weapons at the complainant party and those which hit the deceased on his chest and neck proved fatal. Besides six pieces of bullet were found on the spot. The prosecution witnesses may not have been too observant to describe the manner in which the shots were fired as, it is not possible in such a situation to remain attentive and to see as to whose shot struck whom. It is on this hypothesis that the presence of bullet can only be explained in the body of the deceased.
It is not possible to deny the participation of Muhammad Arjf, but as the High Court found that none of the witnesses had ascribed to him a role of having fired a shot at the deceased, he was acquitted by way of abundant caution. As for Ghulam Farid there was definite evidence of the matching of his gun with two of the four crime‑empties found at the spot, but as the medical evidence was not consistent with the ocular testimony, he was also acquitted on that ground: In our view his participation on account of thi:3 corroborative evidence was established if criminal appeal No.117 of 1984 had been pressed.
It is true that the blunt weapon injuries on the deceased had not been explained by the prosecution witnesses, but we are of the view that it could not have been possible of the witnesses to have stayed at‑ the spot till the transaction was over and the probability cannot be ruled out that they were caused by the butt of the guns. Despite these injuries not having been explained, nothing will turn on it.
As for the injury on Fazal Ali (PW.15) on his forehead, the prosecution has failed to establish that it was caused by a pellet. It is also a matter for consideration that if a shot had been fired at him by a gun, the injuries on him would have been many more rather than a dubious injury on his forehead whose origin has not been established by the prosecution. However, the presence of this witness has been accepted by the Courts below, and we see no reason to differ from that view.
One of the crime empties found at the spot matched with the licensed gun of the appellant's father in which case it is not possible in the absence of any explanation to infer that it was not used in the crime. This fact corroborates the participation of appellant Iftikhar Ahmad beyond any reasonable doubt. As for the other contentions that some of the injuries could not have been caused from the distance alleged or for that matter that although they were caused from a higher level yet there was no evidence of the pellets having travelled downwards are mere conjectures and nothing turns on these aspects.
As the incident occurred as a result of the fight an hour or so earlier, we would give the benefit of this circumstance to the appellant to mitigate the sentence. Accordingly, while upholding his conviction, we would alter the death sentence awarded to appellant Iftikhar Ahmad to imprisonment for lifer and enhance the fine to Rs.25,000, which, if realised, should be paid to the heirs of the deceased. In case of default in the payment of fine, the imprisonment in lieu thereof shall remain the same. In computing his sentence, the benefit of section 382‑B Cr.P.C. shall be extended to him. Subject to this modification, his appeal is dismissed.
We are informed at the Bar that the parties have patched up their dispute, and for that reason neither the complainant nor his counsel have come forward to press the appeal No.117 of 1984. This appeal, therefore, stands dismissed as not pressed.
M.Y.H./I‑37/S Order accordingly.