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1994 P Cr
1994 P Cr. L J 1295
[Lahore]
Before Falak Sher and Sajjad Ahmed Sipra, If
QASIM and 8 others---Appellants
Versus
THE STATE---Respondent
Criminal Appeal No.258 and Murder Reference No.75 of 1989, heard on 4th May, 1992.
(a) Penal Code (XLV of 1860)---
----Ss. 302/149, 307/149 & 148---Appreciation of evidence---No evidence was available on record to link the accused with the occurrence---Accused were extended the benefit of doubt and acquitted in circumstances.
(b) Penal Code (XLV of 1860)---
----Ss. 302/149, 307/149 & 148---Appreciation of evidence---Accused was not alleged to have opened fire on the complainant party in the F.I.R., but eye witnesses making dishonest improvement at the trial had testified to that effect---Benefit of doubt was extended to the accused in circumstances in accordance with the principles of safe administration of criminal justice and he was consequently acquitted.
(c) Penal Code (XLV of 1860)---
----S. 302/34---Appreciation of evidence---Ocular testimony was consistent and confidence inspiring and the same was corroborated by medical evidence-- Participation of accused in the occurrence had been proved---Conviction of accused was upheld in circumstances.
(d) Penal Code (XLV of 1860)---
----S. 302/34---Sentence---Mitigating circumstance---It had not been established beyond doubt as to by whose fire shot the deceased had been killed---Sentence of death awarded to each accused was altered to imprisonment for life in circumstances.
Dr. Khalid Ranjha and M. Nazir Janjua for Appellants.
Muhammad Saleem Shad for the State.
Date of hearing: 4th May, 1992.
JUDGMENT
SAJJAD AHMED SIPRA, J: -- The present appeal has been preferred against the judgment, dated 25-3-1989, passed by Malik Nazir Hussain Awan, Additional Sessions Judge, Sheikhupura, whereby the appellants were convicted and sentenced as follows:--
(1) Khizar Hayat, (2) Mumtaz, (3) Yousaf and (4) Nasar Ullah each to death on two counts under sections 302/149, P.P.C.
(5) Qasim, (6) Tufail, (7) Umar Hayat, (8) Riaz and (9) Abdul Sattar each to life imprisonment on two counts under section 302/149, P.P.C. All the appellants were further sentenced to 10 years' R.I. each on two counts under section 307/149, P.P.C. with a fine of Rs.5,000 each or in default thereof to further R.I. for two years. They were further sentenced to one year's R.I. each under section 148, P.P.C. A fine of Rs.10,000 each under section 302/149, P.P.C. was also imposed on all the appellants or in default thereof to further R.I. for two years; with a further direction that the fine, if realised, shall be payable to the heirs of the deceased as compensation. All the sentences were ordered to run concurrently.
2. The appellants had been sent up for trial under the. Rrovisions bf section 302/307/148/149, P.P.C. in a case registered vide F.I.R. Exh.P.E./1, recorded by Mushtaq Ahmad, A.S.I., P.W.4, on the statement Exh.P.E. of P.W.9 Muhammad, father, of both the deceased, Akram and Asghar, whose said statement was recorded by P.W.15 Barkat Ali, Inspector/S.H.O., Police Station Mangtanwala on 29-4-1988 at 12-15 a.m. at Morh Khunda. According to the complainant P.W.9 at 9 a.m on the fateful day, he alongwith his wife, Mst. Amina Bibi, sons Akram and Asghar (both deceased) and Aslam son of Shahadat, had come to the "Dhari" of the said Aslam to tie up his bundles of wheat, when Mumtaz son of Jalla was coming on his donkey-cart carrying fodder from the south and as he came across, his son Akram asked him as to why he had given a false testimony against them in the Court at Nankana Sahib, on which the said Mumtaz replied that he did what he had to do and that he could do what he wants to do. This had resulted in exchange of abuses between the two and that on intervention of the complainant they were separated and Mumtaz went to the village with his donkey-cart; and that they started preparing ropes for tying up the bundles of wheat crop. The complainant further stated that around 10-00 a.m., Khizar Hayat armed with .7 mm rifle, Nasrullah armed with a carbine, Umar Hayat armed with a Kulhari, Mumtaz armed with 12 bore gun, Riaz armed with a Kulhari, Qasim armed with a Dang and Abdul Sattar armed with Kulhari appeared from the direction of village, while raising Lalkaras, and that in the meanwhile from their nearby Dhari, Tufail armed with Sota and Yousaf armed with a gun also appeared and on reaching the Shaftal crop of Shahadat and while hurling abuses, Khizar Hayat accused had fired a shot with 7 mm rifle hitting on the left side of abdomen of Akram, who fell down, Yousaf accused had fired with his gun hitting Asghar on the front of his chest, Nasrullah accused fired with his carbine hitting Asghar on the muscle of his left arm, who being injured also felt on the ground; and that when he and his wife Mst. Amina Bibi came forward to rescue the deceased Asghar and Akram, Sattar accused infected a blow on his head with the wrong side of his Kulhari; and that Qasim, Riaz and Tufail accused also injured him with their Knlhari and Sotas and that therefore, he was injured on both the arms and the head; and that thereafter his wife Amina Bibi was fired upon by Nasrullah with his carbine hitting her on the right leg and foot. The complainant had further stated that on hearing noise of the firing Aslam son of Shahadat (P.W.12) and his son Aslam (not produced) appeared on the spot and witnessed the entire occurrence and that the accused had run away towards the village while raising Lalkaras; and that his sons Akram and Asghar had expired on the spot due to their injuries.
The motive, as stated by the complainant, was that accused Khizar Hayat had got registered a case under section 307/34, P.P.C. vide F.I.R. No.142/85 against him and his two sons namely, Akram and Asghar and that the hearing in the said case had taken place "a day before yesterday", whereas a counter-case under section 307/34/109, P.P.C. vide F.I.R. No.211/86 had been registered against them on behalf of the complainant party at Police Station Mangtanwala. The complainant had further stated that coming across the said Inspector P.W.15 while on his way to the police station, he had recorded the said statement and thumb-marked the same for its correctness, after it had been read over to him.
3. On being challaned, the accused had pleaded innocence and were subjected to trial. The learned trial Court had convicted and sentenced the appellants vide the impugned judgment as stated above.
4. To prove its case, the prosecution had produced 16 witnesses. P.W.1 Abdul Ghafoor, A.S.I. had stated that he had partly investigated the case and that on 29-4-1988 Mst. Amina Bibi P.W.10 had produced her blood-stained Dhoti P.1, before the Investigating Officer P.W.15, which was taken into possession vide memo. Exh.P.A. and that on the same day Muhammad P.W.9 had produced his blood-stained clothes i.e. Shirt P.2 and Dhoti P.3 before the said Investigating Officer, which were taken into possession vide memo. Exh.P.B. in his presence. P.W.2 Muhammad Sadiq F.C. had deposed that on 29-4-1988, he had escorted the dead bodies of Akram and Asghar deceased from the spot to the mortuary at Tehsil Headquarter Hospital, Nankana Sahib, and that after the post-mortem examination the doctor had handed over to him the last-worn blood-stained clothes of Asghar deceased, Kurta P.4 and Chaddar P.5, which he had produced before the Investigating Officer vide Exh.P.C. signed by him, and that on the same day he was handed over the last worn blood-stained clothes of Muhammad Akram, Chaddar P.6 and shirt P.7, which he had produced before the said Investigating Officer who had taken the same into possession vide memo,; Exh.P.D. duly attested by him. He had further stated that the doctor had handed over to him one sealed phial containing pellets in respect of Asghar deceased and another sealed phial containing pellets in respect of Muhammad Akram deceased and that both of these were taken into possession by the Investigating Officer vide memo. Exh.P.C. and Exh.P.D., respectively, duly signed by him. P.W.3 Fazal Hussain, F.C. had deposed that on 2-5-1988 as he could not get the docket in time in respect of four sealed parcels containing blood-stained earth and crime empties handed over to him by the Moharrir, therefore, he had returned to the police station and delivered the parcels back to Moharrir, who had again handed over the same-to him on the following day and that he had delivered the same in the relevant office intact, but as the parcels containing empties were objected to by the Laboratory, he had taken the same back to the police station and again took them to the Laboratory on 4-5-1988 and handed over in the said office. He had further deposed that on 21-5-1988, the Moharrir had handed over to him three sealed parcels containing, a gun, a rifle and a carbine, to be delivered in the Forensic Science Laboratory, but as he could not get the docket on that day, therefore, he had taken them back to the police station and delivered them to the Moharrir, who had given the same to him on the following day and that he had delivered these parcels to the concerned office on 22-5-1988 intact. P.W.4 Mushtaq Ahmad, A.S.I. testified that on 29-4-1988 he had drafted the F.I.R. Exh.P.E./1 on the receipt of statement Exh.P.E. without any addition or omission. P.W.5 Iqbal Hussain M.H.C. had testified to the effect that on 1-5-1988 he had been handed over four sealed parcels by the Investigating Officer containing blood stained earth and crime empties, which he had kept in Malkhana till 4-5-1988, when the same were entrusted to Fazal Hussain, F.C. P.W.3 for onward transmission to the office of Chemical Examiner and Forensic Science Laboratory. P.W.6 Muhammad Akram is one of the witnesses of the recovery of carbine P.8 from Nasrullah accused and had testified to the effect that he had led to its recovery from his residential house while in custody and the same had been taken into possession vide memo. Exh.P.F./2. He had further stated that Riaz accused had not got anything recovered in his presence. P.W.8 Haji Muhammad Sabir, Patwari had testified that he had prepared the site plan Exh.P.G. and Exh.P.G./1 on 30-4-1988 on the pointing out of the witnesses and at the instance of the police. During his cross-examination, he had stated that no witness had pointed out the direction from where the accused had come to the spot and that nor they pointed out to him the place from where the accused had fired at the deceased; and that they had only pointed out their own places.
5. P.W.7 Dr. Naveed Ahmad, had conducted the post-mortem examination on the dead bodies of both the deceased and had testified as follows:-
On 30-4-1988, he had conducted the post-mortem examination on the dead body of Asghar Ali brought to him by Muhammad Sadiq and Fazal Hussain, Constables and identified by Muhammad Adam and Liaqat. It was the dead body of a young man, aged about 20 years, wearing
light pink Kurta and white Dhoti, both blood-stained. Mouth was semi-open and eyes were closed. Rigor mortis was present all over the dead body. Post-mortem staining was present on its back. The following injuries were observed by him:--
(1) Five lacerated wounds each 1 c.m. x 1 c.m. in front of left side of chest in an area of 14 c.m. x 6 c.m. just below the left clavicle up to 2 c.m. below the left nipple.
(2) Three lacerated wounds 1 cm. x 1 c.m. each on the lateral side, left upper arm in an area of 6.5 c.m. x 5 c.m.
(3) Three lacerated wounds 1 c.m. x 1 c.m. each on the lateral side of the back of the left side of hand (wound of entry).
(4) Three lacerated wounds 2 c.m. x 2 c.m. on the lateral side of the palm of left hand (exit wound).
(5) Lacerated wound 1-1/2 c.m. x 1 cm. on the back of the left little finger with fracture of the phalanx of the finger (wound of entry).
(6) Lacerated wound 2 c.m. x 2 c.m. on the palmer aspect of the left little finger (wound of exit).
(7) One lacerated wound 1 c.m. x 1 c.m. on lateral side of lower part of left forearm about 6 c.m. above the left wrist (wound of entry).
(8) Lacerated wound 2 c.m. x 2 c.m. on the medial aspect of left wrist (wound of exit)
(9) Six lacerated wounds 1 c.m: x 1 c.m. each in front and lateral side of the left thigh 14 c.m. x 13 c.m. in area.
On dissection, he had found a fracture of third rib anteriorly on left side. There was one lacerated wound like a hole in the left ventricle of the heart and one pellet was found in the aortic orific. One lacerated wound through and through on the upper lobe of the left lung. One through and through on the lower lobe of right lung. Both chest, cavities contained about 2 litres of blood. One pellet found from the right chest cavity. A post-mortem cut was made on the lateral side of the right chest and one pellet was found from there. These were under injury No.1. Post-mortem cut was made on the back of left upper arm and one pellet was found from there. This was under injury No.2. A post-mortem cut was made on the left thigh under injury No.9. The muscles were damaged and pellets were embedded in the bone. All the other organs were healthy. Stomach contained about two ounces of digested food. Small intestines contained gases and digested food. Large intestines contained gases and faecal matter.
The death in his opinion was due to haemorrhage and shock as a result of injury No.1. caused by a fire-arm. All the injuries were caused by fire arm and were ante-mortem. The death occurred within few minutes of the injuries. Probable time between death and post-mortem examination was between 20 to 24 hours.
After the post-mortem, he had entrusted the dead body, last-worn clothes, police papers and sealed phial containing pellets and post-mortem report to the accompanying constables. The correct carbon copy of post- mortem report Exh. P.E. was in his hand and signed by him.
On the same day, he had conducted the post-mortem on the dead body of Muhammad Akram, brought to him by Muhammad Sadiq and Fazal Hussain, Constables and identified by Muhammad Aslam and Liaqat. The dead body was wearing gray shirt and white Dhoti. Mouth and eyes were closed. Rigor mortis was present all over the body and post-mortem staining was present on its back. He Iliad found the following injuries on the dead body:--
(1) Four lacerated wounds 1 c.m. x 1 c.m. in an area of about 6 c.m. x 3 c.m. on the right side of upper abdomen.
(2) Five lacerated wounds 1 c.m. x 1 c.m. each in an area of 7 c.m. x 5 c.m. on the upper part of left abdomen.
(3) One lacerated wound 1 c.m. x 1 c.m. on the back of left forearm.
On dissection, he found damage to the liver, right kidney. The abdominal cavity contained clotted blood. Three pellets were found in the abdominal cavity. This was under injury No.1. There was a fracture of 11th rib of the right side anteriorly. The pellets were found under injury No-2 in the abdominal wall. Post-mortem cut was made on the back of the left forearm and one pellet was found from there. All the other organs were healthy. Stomach contained about four ounces of digested food. Small intestines contained gases and faecal matter. The diaphragm was injured due to injury No.1.
In his opinion the death had occurred due to haemorrhage and shock as a result of injury No.l. All the injuries were caused by fire-arm and were ante-mortem. The duration between injuries and death was probable 5 to 10 minutes and that between death and post-mortem examination was between 20 to 24 hours. After the post-mortem, he had handed over the stitched dead body, police papers, copy of post-mortem report, last-worn clothes and a sealed phial containing pellets to the accompanying constables. Exh.P.F. the post-mortem report was in his hand -and signed by him.
In his cross-examination, this witness had deposed that the injuries of Asghar Ali deceased were caused by .12 bore gun and that the possibility of his injuries Nos.1 to 3 having been caused by one shot cannot be ruled out and that injuries Nos.5 and 7 also could be the result of one shot. However, in the case of Muhammad Akram, deceased, injuries Nos.2 and 3 were certainly the result of one fire-shot; and that all of the injuries of Akram deceased were also caused by .12 bore gun.
6. P.W.11 Dr. Sardar Muhammad, Medical Officer, had medically examined injured P.W.9 Muhammad and injured P.W.10 Mst. Amina Bibi and had testified as follows:--
On 29-4-1988 he had medically examined Muhammad son of Farid, and had found the following injuries on his body:--
(1) Lacerated wound 4.5 c.m. x 0.6 c.m. x scalp deep on the top of head, 15 c.m. above right ear. Advised X-ray skull.
(2) Lacerated wound 2.5 c.m. x 1.5 c.m. x scalp deep on top of head 8 c.m, above left eyebrow. Advised X-ray Skull.
(3)Lacerated wound 3 c.m. x 1 c.m. x skin deep on forehead, 3 c.m. above upper end of nose. Advised X-ray skull.
(4) Swelling 9 c.m. x 5 c.m. on back of left forearm over its lower 1/3rd Advised X-ray of left forearm.
(5) Swelling 8 c.m. x 7 c.m. on postero medial aspect of right forearm over its lower 1/3rd. Advised X-ray of right forearm.
All the injuries were kept under observation and all were inflicted with blunt weapon and were fresh of duration about 2 to 4 hours.
On 11-5-1988 X-ray Nos.3433 to 3436, dated 4-5-1988 alongwith report from Radiologist D.H.Q. Hospital, Sheikhupura, were received through Khushi Muhammad, A.S.I. The report reads as follows:--
"Fracture of left radius. No bony lain seen in other X-ray.'
On this report injury No.4 was declared grievous and injuries Nos.1 to 3 and 5 were declared simple on 11-5-1988. X-ray and reports were handed over to the said A.S.I. Exh.P.H. the correct carbon copy of medico-legal report was in his hand and signed by him.
On the same day, on medically examining Mst. Amina Bibi wife of Muhammad, he had found the following injuries on her body:--
(1) Fire-arm wound 1.5 c.m. x 0.6 c.m. x depth not probed on front of right leg 5 c.m. below lower edge of right patella. The lower edge of the wound was slightly blackish. All the edges of the wound were inverted. No foreign body was palpable. Advised X-ray of right leg. Any foreign body if located on X-ray and removed was to be sent to the police.
Dark blue colour cotton cloth Chaddar worn by the patient at the tim6 of examination was blood-stained but had no hole etc. corresponding to this injury. The Chaddar after signing and stamping was handed over to the police alongwith a carbon copy of M.L.C.
(2) Fire-arm wound 0.6 c.m. x 0.6 c.m. x depth not probed on supero medal aspect of right foot, dose to root of right big toe. The edges of the wound were inverted. There was no burning or tatooing. Advised X-ray of right foot. Any foreign body if located and removed after X -ray examination was to be sent to the police.
(3) A fire-arm wound with inverted edges 1.5 c.m. x 0.4 c.m. x skin deep on medial side of right leg over its lower end. There was no foreign body or burning or tatooing.
(4) Fire-arm wound with inverted edges 1.5 c.m. x 0.6 c.m. x skin deep on medial side of lower end of right leg close to and just behind injury No.3. There was no burning or tatooing or foreign body.
Injuries Nos.1 and 2 were kept under observation and injuries Nos.3 and 4 were simple. All the injuries were infected with fire-arm and duration of the injuries was 4 to 6 hours. On 11-5-1988 X-ray No.3437-38, dated 4-5-1988 alongwith report from Radiologist was received through Khushi Muhammad, A.S.I. The report reads as under:--
Multiple metallic foreign bodies seen in right leg. One metallic foreign body seen in heel of right foot, multiple particles of metallic foreign body were seen in right foot. Hence injuries Nos.1 and 2 were declared simple on 11-5-1988."
Exh.PJ. the correct carbon copy of the medico-legal report was in his hand and signed by him. Exh.P.H./1 and Exh.P.J./1 the respective diagrams showing seats of injuries of both the respective injured, were also in his hand and signed by him. The report of Radiologist in respect of Muhammad injured and that of Mst. Amina Bibi injured were Exh.P.H./2 and Exh.P.J./2 respectively.
In his cross-examination he had deposed that there was no sharp edged injury on the person of Muhammad P.W. He further deposed that he did not known the name of Radiologist nor did he ever work with him. He had further deposed that the possibility of injuries Nos.4 and 5 on the person of Muhammad by falling on a hard object with a great force, cannot be ruled out. He had further deposed that the injury No.1 on the person of Mst. Amina Bibi was caused within the range of two yards, whereas all other injuries were caused from beyond that range; as if a fire-arm is discharged from a distance of more than two yards by a person in standing position may be hit on foot near big toe; and that injury No.4 on the person of Mst. Amina Bibi could have been fired from behind her. According to him injuries Nos.1, 2 and 4 were independent injuries and as a result of three different shots.
7. P.W.9 Muhammad P.W.10 Mst. Amina Bibi and P.W.12 Muhammad Adam claimed to be the eye-witnesses of the occurrence. P.W.9 Muhammad is also complainant in the instant case. He had testified in support of the contents of the F.I.R. Exh.P.E./1 lodged on his statement Exh.P.E. However, during his cross-examination, he had conceded that he could not distinguish between a gun and .7 mm rifle and had further stated that both the deceased i.e. Akram and Asghar, were sitting close to him when all the accused had fired at them almost from the same distance. He had further stated that Khizar Hayat accused had fired from a distance of one Killa. He had further stated that Nasrullah had fired at Mst. Amina Bibi from a distance of 20 Karams. He had further stated, during the cross-examination, that he had seen the accused for the first time when they were at the distance of four Kanals and that they were raising Lalkaras; and that they could see the guns in their hands but they did not try to run away.
8. P.W.10, Mst. Amina Bibi, the wife of the complainant Muhammad P.W.9 and the mother of the deceased, had supported the version advanced by the complainant P.W.9, in her testimony. She had also conceded that she could not differentiate between a .7 mm rifle and a gun. Further stated, during the cross-examination, that all the accused had fired simultaneously and that they had received injuries during that process and that the accused had fired from a distance of six Karams, while she alongwith her husband P.W.9 and the deceased sons, was sitting under the shade of a mango tree.
9. P.W.12, Muhammad Aslam son of Shahadat, had also substantially supported the version of the case, as stated by the complainant P.W.9. However, he had further stated that in his presence the police had taken into possession 4/5/6 empties from the spot vide memo. Exh.P.K; and that he had attested the said memo by thumb-marking it. He had further stated that he had also thumb-marked the memos. Exh.P.L. and Exh.P.M. in respect of the blood-stained earth taken into possession thereby from the two places, where the deceased had fallen. During his cross-examination, he had conceded that in case under section 325, P.P.C., the brother of Khizar Hayat was a witness against him and the other accused, who are his family members. He had further conceded that he had seen the accused for the first time from a distance of one or two Kanals and that he had not run away to take protection. He had further stated that he cannot distinguish between a rifle and a gun. This witness had further stated in his cross-examination, that the accused had fired from the distance of two Kanals and denied that the police had picked up an empty of bullet or any broken piece of rifle from the spot and had taken the same into possession.
10. P.W.15 Barkat Ali, Inspector/S.H.O. was the Investigating Officer of the present case. He had deposed at the trial that on 29-4-1988 he was present at Morh Khunda and that 12-15 p.m. P.W.9 Muhammad, complainant had recorded a statement Exh.P.E. before him, which was read out to the complainant, who had thumb-marked it in token of its correctness; and that he had sent the said Exh.P.E. to the police station for registration of case by Abdul Ghafoor, A.S.I. P.W.1. He had stated that he had prepared the injury statement Exh.P.R. of the complainant and sent him to the Hospital for medical examination through Muhammad Jaafar, F.C. whereafter on reaching the spot he had prepared the injury statement of Muhammad Akram deceased EARS. and his inquest report Exh.P.S./1 and had also prepared injury statement of Exh.P.T. of Muhammad Asghar deceased and his inquest report Exh.P.T./1; and that thereafter he had despatched the dead bodies under the escort of Muhammad Sadiq F.C. P.W.2 and Fazal Hussain F.C. P.W.3 to the mortuary…
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