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2001 Y L R 246
2001 Y L R 246
[Lahore]
Before Khalil‑ur‑Rehman Ramday and Ijaz Ahmad Chaudhry, JJ
SIKANDAR and others‑‑‑Appellants
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.2 of 1996 and Murder Reference No.13 of 1996, heard on 31st May, 2001
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Maxim "falsus in uno falsus in omnibus" is not applicable for discarding the evidence of the witnesses as a whole and hence so much of the‑ evidence which is credible can be accepted.
Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502; Shahid Raza and another v. The State 1992 SCMR 1647 and Irshad Ahmad and others v. The State and others PLD 1996 SC 138 ref.
(b) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑ Fire‑arm injury consistently attributed by the eye‑witnesses to the accused on the chest of the deceased was not found by the Doctor on the person of the deceased and to that extent medical evidence was totally in conflict with the ocular evidence‑‑‑Accused was acquitted in circumstances.
(c) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 302(b) & 337‑F(i)‑‑‑Appreciation of evidence‑‑‑Fire shot by the accused had hit the deceased on his left arm‑‑‑Said injury, was found by the Doctor as simple in nature‑‑‑Murder was not pre‑planned ‑‑‑Accused did not share the common intention with co-accused and every accused was liable for his individual act‑‑‑Conviction and sentence of accused under S.302(b), P. P. C. were consequently set aside and he was convicted under S.337‑F(i), P. P. C. and sentenced to undergo one year's R.I. with payment of Daman amounting to Rs.1,000 to the legal heirs of the deceased.
(d) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302 (b)‑‑‑Appreciation of evidence‑‑ Eye‑witnesses had consistently stated that the accused had fired at the deceased hitting him on the left flank which was fatal‑‑‑Ocular testimony was fully supported by medical evidence‑‑‑Conviction of accused was maintained accordingly‑‑‑Six accused out of twelve accused had already been acquitted by the Trial Court on the same evidence and two accused had been acquitted by High Court from the charge under S. 302 (b), P. P. C. ‑‑ Accused side had also received many serious injuries‑‑‑Both the parties had not come to the Court with whole truth‑‑‑Murder was not pre planned one‑‑‑Sentence of death of accused was reduced to imprisonment for life in circumstances.
Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502; Shahid Raza another v. The State 1992 SCMR 1647 and I had Ahmad and others v. The State and this PLD 1996 SC 138 ref.
Ijaz Hussain Batalvi for Appellants.
Kh. Sultan Ahmad for the Complainant.
Malik Muhammad Jahangir for the State.
Date of hearing: 31st May, 2001.
JUDGMENT
IJAZ AHMAD CHAUDHRY, J.‑‑ Sikandar son of Fazal Elahi, Muhammad Yaqoob son of Ghulam Hussain, Muhammad Anwar son of Sultan Ali, Muhammad Yousaf .son of Nabi Bakhsh, Munawar Hussain son of Ahmed Ali, Ata Ullah son of Ghulam Hussain, Mazhar Iqbal son of Falak Sher, Munawar Sher son of Fateh Muhammad, Fateh Muhammad son of Fazal Elahi, Talib Hussain son of Manzoor Hussain, Aman Ullah son of Umar Hayat and Bakhsha son of Ashraf were tried by the learned Sessions Judge, Hafizabad for the murder of Ghulam Mustafa deceased. Through his judgment, dated 19‑12‑1995 the learned Sessions Judge convicted Fateh Muhammad and Sikandar appellants Nos. 1 and 2 under section 302/34, P.P.C. and sentenced to death. They were directed to make payment of compensation of Rs.25,000 each to the legal heirs of the deceased, in default thereof to further undergo 6 months S.I. each. Munawar Sher appellant No.3 was convicted and sentenced to life imprisonment under section 302(b), P.P.C. He was also directed to pay compensation in the amount of Rs.25,000 to the legal heirs of the deceased under section 544‑A, Cr.P.C, In default of payment of fine he had to further undergo six months S.I. Benefit of section 382‑B, Cr.P.C. was also extended to all the three appellants. By the same judgment, the learned trial Court, however, acquitted Muhammad Yaqoob, Muhammad Anwar, Muhammad Yousaf, Munawar Hussain son of Ahmed Ali, Ata Ullah, Mazhar Iqbal, Talib Hussain and Aman Ullah co‑accused of the appellants/while giving benefit of doubt. It is to be mentioned here that Bakhsha co‑accused of the appellants died during the trial.
2. Murder Reference No. 13 of 1996 seeks confirmation of said sentence of death awarded to Fateh Muhammad and Sikandar convicts, while they have preferred Criminal Appeal No.2 of 1996, alongwith Munawar Sher who has beep convicted and sentenced to life imprisonment. Both the matters are being disposed of together through this single judgment.
3. The occurrence in this case took place on, 24‑2‑1992 at 8‑00 a.m. within the area of Kot Ghazi Kalan 7 kilometers away from Police Station Jalalpur Bhattian District Hafizabad. The matter was reported by Muhammad Yaqoob P.W.8 at 11‑30 a.m. on the same day at the Police Station which was recorded by Inspector/SHO Riaz Mahmood P.W.14 vide Exh.PN.
4. The brief facts of the prosecution case as narrated by P.W.8 Muhammad Yaqoob are that the land of Fazal etc. and his land falls adjacement to each other and a day prior to the present occurrence a dispute had taken place in between the abovesaid Fazal Elahi and him about a common." Watt" which was being claimed by Fazal Elahi as his ownership. Although factually it was a joint "Watt" but Fazal Elahi etc. wanted to occupy an area of 5/6 Karams belonging to the complainant party in this manner and in pursuance of this on 24‑2‑1992 he in the company of Atta Ullah S/o Yar Muhammad, Ghulam Mustafa, Muhammad Aslam S/o Muhammad Hussain and Khizar Hayat S/o Ahmad was sitting at the Dhari when Sikandar S/o Fazal Elahi alongwith plough and in the company of his co‑accused Bakhsha S/o Ashraf armed with hatchet, Yaqoob S/o Ghulam Hussain armed with Sota, Anwar S/o Sultan armed with hatchet, Yousaf S/o Nabi Bakhsh, Manwar S/o Ahmad and Atta Ullah S/o Ghulam Hussain all armed with Balams, Mazhar S/o Falak Sher armed with Sota, Fateh Muhammad S/o Fazal Elahi and Munawar S/o Fateh Muhammad empty handed came there and started to demolish "Watt" forcibly and they Were asked by Ghulam Mustafa, Muhammad Aslam, Atta Ullah S/o Muhammad Yar and Khizar Hayat not to do so upon which exchange of hot words and abuses took place where upon he also came towards Ghulam Mustafa and others but when he was at few paces from them, upon raising of Lalkara by Sikandar, Yaqub son of Ghulam Hussain inflicted sota blow upon Ghulam Mustafa hitting on his head. Munawar inflicted Balam blow hitting 9hulam Mustafa on his head near his right ear. Anwar son of Ghulam inflicted hatchet blow upon Atta Ullah son of Yar Muhammad hitting him on his heads, Yousaf inflicted Balam blow upon Khizar Hayat hitting him on right clavicle. Munawar S/o Ahmad inflicted Balam blow hitting Khiiar‑ Hayat on the right side of his head. Yaqub S/o Ghulam Hussain inflicted Sota blow upon Ata Ullah S/o Yar Muhammad hitting him on his left hand upon which Ata Ullah S/o Yar Muhammad snatched sota. Ata Ullah S/o Ghulam Hussain accused inflicted balam blow upon Ata Ullah S/o Yar Muhammad, when Ghulam Mustafa had snatched sota from Mazhar and he alongwith Ata Ullah S/o Yar Muhammad both injured, in their defence inflicted injuries upon Munawar S/o Fateh Muhammad, Sikandar and Fateh Muhammad, upon which Sikandar and others went nearby wheat field from where they brought guns and Sikandar fired with 12 bore gun at Ghulam Mustafa which hit him on his chest. Munawar S/o Fateh Muhammad fired with his gun upon Ghulam Mustafa hitting him on left arm. In the meantime Talib, Aman Ullah and Umar Hayat armed with guns came from the Dhari of Sikandar, Fateh Muhammad fired with gun at Ghulam Mustafa hitting him on the right flank. He fell down and the accused managed to escape. Ghulam Mustafa was placed on a cot in injured condition but he succumbed to his injuries and expired Ata Ullah S/o Yar Muhammad and Khizar Hayat were injured in the occurrence.
5. The motive of the occurrence is the dispute over the "Watt" intervening between the land of Fazal Elahi and the land of the complainant though the watercourse was joint but Fazal Elahi etc. wanted to occupy an area of 5/6 Karams belonging to the complainant party in this manner and due to this reason this occurrence had taken place.
6. Riaz Mahmood Inspector. P.W.14 visited the spot, examined the deceased and injured P.Ws. and prepared their injury statement, got prepared the site‑plan of the occurrence and sent the dead body to the Mortuary alongwith the injured P.Ws. for their medical examination.
7. Capt. Dr. Muhammad Zubair conducted the post‑mortem examination and also medically examined Ata Ullah on 24‑2‑1992 at 7‑10 p.m. and found the following injuries on his person:‑‑
(1) Incised wound 3‑1/2 c.m. x 1/2 c.m. bone deep on right side in front of head 1 c.m. from forehead hairline.
(2) Incised wound 3/4 c.m. x 1/2 c.m. muscle deep on the back of left ring finger over proximal inter pharyngeal joint.
(3) Incised wound 3/3 c.m. x 1/2 c.m. x muscle deep on the back of left ring finger over distal inter phlayngeal joint.
(4) Superficial incised wound 4 c.m. x 1/4 c.m. x skin deep on the back of left fore‑arm near wrist joint.
(5) Contusion 7 c.m. x 2 c.m. on back of left chest upper part, 4 c.m. from mid line.
(6) Contusion 3 c.m. x 1‑1/2 c.m. on the top of left shoulder.
(7) Contusion 4 c.m. x 2 c.m. on outer part of left upper arm.
(8) Contusion 4 c.m. x 2‑1/2 c.m. the back of right chest upper part.
(9) Contusion 5 c.m. x 2 c.m. on the front of left thing middle part.
(10) Contusion 4‑1/2 c.m. x 2 c.m. on outer side of left eye upper part.
(11) Contusion 4 c.m. x 2 c.m. on the front of left thigh.
8. On the same day the same doctor medically examined Khaizar Hayat injured and found the following injuries on his person:
(1) Incised wound 1‑1/2 c.m. x 3/4 c.m. x ‑bone deep on the right side of his head 7 c.m. from right ear.
(2) Incised wound 2 c.m. x 1/4 c.m. x muscle deep on right clavicular area.
On the same day the doctor medically examined Sikandar appellant and found the following injuries on his person:‑‑‑
(1) Incised wound 2‑3/4 c.m. x 3/4 c.m. x bone deep on back of right side of his head near midline.
(2) Incised wound 1‑1/2 c.m. x 3/4 c.m. x D.N.P. on front and outer part of left shoulder in its upper most part, corresponding cut in the shirt was present.
(3) Superficial fire‑arm grazing along wound 1 c.m. x 1 c.m. x skin deep on the back of left hand middle part. No blackening was present.
On the same day the doctor also medically examined Fateh Muhammad appellant and found the following injuries on his person:‑‑‑
(1) Incised wound 2‑1/2 c.m. x 1/2 c.m. x bone deep on the back of left side of the head 9 c.m. from left ear.
(2) Incised wound 1‑1/2 c.m. x 1/2 c.m. x D.N.P. on front and outer part of left side of the chest in its upper most part. 3 c.m. below clavical. Corresponding cut makes in the sweater and shirt were present.
On the same day the doctor also medically examined Muhammad Yaqub co-accused and found the following injuries on his person:‑‑‑
(1) Incised wound 1‑3/4 c.m. x 3/4 c.m. x bone deep on inner side of right fore‑arm 5 c.m. above the right wrist joint.
(2) Abrasion 1/2 c.m. x 1/2 c.m. on right cheek.
Out of the total seven injuries received by the accused parties during occurrence, five were found with sharp‑edged weapons, one with fire‑arm and the other with blunt weapon.
9. On a same day the said doctor also conducted the post‑mortem examination of Ghulam Mustafa deceased and found the following injuries on his person:‑‑‑
(1) Fire‑arm inlet wound with inverted margins 4 c.m. x 4.5 c.m. x D.N.P. on the back of right side of the trunk at the junction of right side of abdomen and chest, 10.5 c.m. from midline.
Blackening and tattooing around the edges of wound were present. There fire‑arm outlet wounds seven in number in an area of 8 c.m. x 3 c.m. on the front of trunk, over right and lower part of sternum and adjacent ribs. The margins of the wounds were everted. On protuberance measuring about 1‑1/2 c.m. x 1‑1/2 c.m. was present on the trunk of left side of chest, 2.5 c.m. inner and below left nipple.
(2) Superficial fire‑arm burn 1‑1/2 c.m. 3/4 c.m., on outer and back part of right arm, lower most part. This injury was Ghair Jafiah Daima and was due to fire of injury No. 1, as a result that part of skin was burnt.
(3) Five fire‑arm superficial burns in an area of 8 c.m. x 5 c.m. on inner and front of left forearm, upper 1/3rd. Those were simple injuries and ‑were due to the pellets coming out of the outlet wounds, on the front of chest and causing burns over left forearm.
(4) Incised wound 1‑1/2 c.m. x 1 c.m. x bone deep on right side of head, 3 c.m. from midline and 5 c.m. being forehead hairline.
(5) Incised wound 3‑1/2 c.m. x 3/4 c.m. x bone deep on left side of head, 3 c.m. from midline end 5 c.m. behind fore‑head hairline.
(6) Contusion 10 c.m. x 2 c.m., vertical in direction, on outer side of right arm middle part. No fracture of right arm bone was present.
In the opinion of the doctor the cause of death in this case was due to excessive haemorrhage and shock as a result of injury No. 1 which was fatal and was sufficient to cause death in ordinary course of nature. Rest of the injuries were simple in nature. All the injuries were ante‑mortem. Injuries Nos.1, 2 and 3 were caused by fire‑arm weapon while Nos.4 and 5 by sharp pointed weapon and injury No.6 was caused by blunt weapon. Probable time that elapsed between injury and death was instantaneous and between death and post‑mortem was within 30 hours. After post‑mortem examination he handed over the well‑stitched dead body with last worn clothes of the deceased, police papers, copy of the post‑mortem report and a sealed phial containing crook and pellets to Maqsood Hussain C. P.W. Exh. P.L is the correct carbon copy of the post‑mortem report and Exhs. P. L/1, P. L.2 are the sketch of injuries which are in his hands and bear his signatures.
10. However, from the spot only blood stained earth was taken into possession in the presence of‑the witnesses by the Investigating Officer. During investigation the accused led to the recoveries of weapons of offence: On 2‑4‑1992 Munawar Sher led to the recovery of 12 bore gun single barrel P.6 from the Dera of his father which was sealed into a parcel and taken into possession vide memo. Exh. PP. On the same day Sikandar appellant also led to the recovery of 12 bore gun single barrel P.4 which was also taken into possession vide memo. Exh.PX. On the same day Fateh Muhammad appellant also led to the recovery of single barrel 12 bore licence gun P.5 and his licence P.17 which was taken into possession vide memo. Exh.P.O. The other accused also led to the recoveries of their respective weapons of offence which need not to be mentioned here as their case is not before us. After, completion of the investigation the challan was submitted in the trial Court. The statements of the witnesses were supplied to the accused under section 265‑C, Cr.P.C. and the learned trial Court framed the charges which were denied, by the appellants alongwith their co7accused and they claimed to be tried. The prosecution in order to prove the guilt of the accused produced 14 witnesses. Out of the, said 14 witnesses the ocular account has been furnished through the statements of Muhammad Yaqoob P.W.8, Ata Ullah P.W.9 and Khizar Hayat P.W.10. P.W.13 Muhammad Khan has witnessed the recoveries from the appellant and their co -accused. P.W.14 is the Investigation Officer. Rest of the evidence produced by the prosecution is of formal nature and need not to be discussed here. After completion of the prosecution evidence, the report of Chemical Examiner and that of Serologist about the blood‑stained earth and the report of Forensic Science Laboratory were exhibited and the case of the prosecution was closed. The accused in their statements under section 342, Cr.P.C. denied the allegations and also denied the recoveries from them. However, Fateh Muhammad appellant when asked that why this case is against him and why P. Ws. have deposed against him he made the following statement:‑‑
"On 24‑2‑1992 at 8‑00 a.m. I was ploughing my field when Muhammad Yaqub complainant armed with hatchet, Atta Ullah P.W.9 armed with Balam, Khizar Hayat, P.W.10 armed with hatchet, Ghulam Mustafa deceased armed with a gun, Muhammad Aslam son of Muhammad Hussain armed with a balam, Shahabaz son of Ahmad, armed with a balam, Ghulam son of Shana armed with a Kassi, Fateh Sher son of Shera armed with a sota came there and trespassed into my field where I was ploughing and started raising a watt in my land in order to take its forcible possession. I forbade them and asked them to contact Patwari, if they wanted any demarcation but they stated that they would raise the watt themselves. On hearing the noise my brother Sikandar reached there and try to make them understand, but they did not come to reason and Manshah raised a lalkara that we should be caught and killed. My brother Sikandar in order to save his life tried to snatch gun from Ghulam Mustafa deceased with which he was armed when Muhammad Manshah tired at my brother Sikandar, but which hit Ghulam Mustafa deceased instead of Skindar and some pellets hit the left hand of Sikandar. Ghulam Mustafa fell down. In the meantime Muhammad Yaqoob son of Ghulam Hussain, accused also reached the spot. Atta Ullah gave me balam below on the left side of my chest. Muhammad Aslam gave a balam blow to Sikandar on his left shoulder. Shahbaz gave a balam blow to Yaqoob son of Ghulam Hussain, accused hitting him on his right arm. Yaqoob son of Ghulam Murtaza gave 'a hatchet blow to Sikandar accused on the right side of his head. Khizar Hayat gave me a hatchet blow hitting me on the back side of my head. Fateh Sher gave sota blow to Yaqoob accused hitting on his right cheek. In the meantime Allah Bakhsh Faqir armed with a gun came firing and Sikandar son of Akbar armed with a hatchet joined the complainant party. During the occurrence I had a stick fitted with an iron sham in my hand with which I remained defending myself and my two companions, Sikandar and Yaqoob, accused. This occurrence was also witnessed by Zalifqar and Muhammad Walayat. We went to our Dhari from where myself, Muhammad Yaqoob and Sikandar, were taken to T.H.Q. Hospital, Hafizabad after being referred from R.H.C., Jalapur Bhatian. We were medically examined at Civil Hospital, Hafizabad. The P.Ws. were related to the deceased and inimical to us and in order to conceal the aggression of the complainant party they have falsely involved us in this case."
The accused neither appeared in their defence nor produced any defence evidence. The learned Sessions Judge after hearing the arguments of both the parties passed the above said judgment.
11. Mr. Ijaz Hussain Bataliv, Advocate, learned, counsel for the appellant has contended that the prosecution witnesses are not trustworthy. Their version is belied by the medical evidence and they are not worthy of reliance. All the three witnesses have stated that they caused injuries to the accused persons which were simple in nature and were caused by Sotas. P.W.8 Muhammad Yaqub complainant has stated that Ghulam Mustafa and Ata Muhammad gave simple injuries to Fateh Muhammad and Munawar son of Fateh Muhammad accused in their defence. Similarly during the cross‑examination this witness has stated that he did not remember the number of blows with Sotas given by Ghulam Mustafa deceased and Ata Muhammad injured P.W. to Sikandar, Fateh Muhammad and Munawar appellants.
Similarly he stated that he cannot give the details of injuries sustained by the above mentioned three accused persons. Ata Ullah injured P.W. during cross‑examination also stated that they had caused injuries to Sikandar and Fateh Muhammad appellants with Sotas. On the other hand the medical evidence consisting of statement of Capt. 'Dr. Muhammad Zubair has found Incised wounds and tire‑arm injuries on the persons of Sikandar appellant and Incised wound on the person of Muhammad Yaqoob accused and Fateh Muhammad appellant. Hence the medical evidence is in conflict with the ocular account. He has further contended that according to the eye‑witnesses the injury attributed to Sikandar appellant on the front of chest of deceased but according to P.W.5 Dr. Muhammad Zubair, this was an exit wound. He has further contended that according to the doctor the death was instantaneous but P.W. 9 Ata Ullah has stated that the deceased after the receipt of first fire did not change his position and he had fallen down after the receipt of third shot: Due to this reason also the learned counsel for the appellants contends that the medical evidence is in conflict with the ocular testimony and the appellants are entitled to acquittal in this case as the persons have not proved themselves to be truthful witnesses. He has further contended that this is a case of two versions. It has been proved that the prosecution witnesses have not spoken the truth and they have minimized their role of causing injuries on the persons of accused during the occurrence by not giving its details. He has further contended that the version given by the accused/appellants is more plausible and worthy of reliance which finds support from the medical evidence and other material produced by the prosecution. He has referred to the statement of P.W.2 Muhammad Hussain and has contended that the blood stained earth was taken from the field owned by the accused side which shows that the occurrence took place in the fields of the appellants and the complainant party was the aggressor. He also argues that this fact is supported by the nature of injuries and number of injuries received by the appellants that the complainant party was the aggressor. He has further contended that the recoveries does not corroborate the ocular account as the recoveries were effected with a delay of one month and 10 days. The crime empties and the gun were sent together to Forensic Science Laboratory hence the report of the said Laboratory cannot be read in favour of the prosecution. Even then the crime empty did not match with the gun allegedly recovered from Fateh Muhammad appellant. He has further contended that the defence version is more reasonable and it should be relied upon. He has further contended that the ocular account has been disbelieved regarding co‑accused. The same evidence is available against the appellants, who are also entitled to acquittal as no other evidence except the evidence produced against the acquitted accused was available on the record against the appellants as well. He has further contended that the prosecution has miserably failed to prove the case against the appellants and they are entitled to acquittal.
12. Learned counsel for the complainant Kh. Sultan Ahmad has supported the judgment and has contended that the two eye witnesses received injuries during the occurrence hence their presence at the spot cannot be doubted. They are truthful witnesses and they are worthy of reliance and minor discrepancies in their statements cannot be made the basis for discarding their statements. All the three eye‑witnesses have no enmity or grudge to falsely implicate the appellants in this case. All the three eye witnesses are consistent on the material point and their statements are worthy of reliance as they are not inimical to the appellants hence the ocular account is sufficient to connect the appellants with the commission of the crime. He has further contended that P.W.5 Capt. Dr. Muhammad Zubair has examined the deceased and the P. Ws. in a careless manner and no importance should be given to this P.W. as he seems to be an inexperienced person and could not describe the nature of injuries in the true sense. The version put forth by the accused is not convincing and does not find any support from the evidence on the record. He has further contended that the recoveries from the spot has corroborated the statements of the ocular account which is otherwise independent and natural. He has further contended that the accused have admitted their presence at the spot and the factum of their receiving injuries during the occurrence. The complainant party reported the matter prior in time and has taken the consistent stand throughout in the investigation and at the trial. Their statements cannot be brushed aside merely on conjectures and surmises and the judgment of the learned trial Court being on the evidence on the record is sustainable and the appeal is liable to be dismissed.
13. Learned counsel for the State has also supported the judgment.
14. We have considered the respective submissions of the…
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