1. ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.269 of 2000 filed by Talib appellant, who was convicted under section 302(b), P.P.C. And sentenced to death with further direction to pay Rupees Five lacs as compensation, in default six months' R.I., vide judgment dated 29-5-2000 rendered by learned Additional Sessions Judge, Pakpattan Sharif.
2. ' Murder Reference No.551 of 2000 for confirmation of death sentence or otherwise shall also be replied through this judgment.
3. ' Criminal Appeal No.209 of 2000 was filed by the complainant against the acquittal of Zakir, Munawar, Muhammad Akram, Kali, Muhammad Ahmad and Razzaq. This appeal to the extent of Muhammad Ahmad and Razzaq, respondents was, not pressed and notice was issued only to Zakir, Munawar, Muhammad Akram and Kali, respondents. This appeal having arisen from the same judgment of the trial Court, it shall also be decided along with the Criminal Appeal No.269 of 2000.
2. Occurrence in this case had taken place at 10-30 p.m. On 25-8-1994 within the revenue estate of Mauza Kund Kanjuan at a distance of 19 kilometers from Police Station, Sadar, District, Pakpattan, while the matter was reported to the police by Abdur Razzaq at 7-00 p.m. On 26-8-1994 and formal F.I.R. Exh.P.B. Was recorded by Muhammad Munir, Head Constable.
3. Briefly stated the facts of the case are that on 25-8-1994 at 10-30 p.m., Muhammad Fazal and Muhammad Munir, who was learning driving with his father were present near his bhaini where they had kept their cattle in an open place, when all of a sudden Zakir armed with hatchet, Munawar armed with hatchet, Muhammad Akram armed with Sota, Kali armed with a gun and Talib armed with a .12 bore gun along with two unknown persons who had muffled their faces, came there. Zakir accused gave a hatchet blow which landed on right side of head of Muhammad Fazal. Munawar accused also caused an injury on the right side of ear of Muhammad Fazal. The second blow given by Zakir with hatchet landed on the backside of right ear of Muhammad Fazal.
4. The Sota blow given by Muhammad Akram hit Muhammad Fazal on his right arm. Muhammad Munir intervened in order to save Muhammad Fazal but he was given a butt blow by Talib which landed on the right side of his head. The butt blow given by Kali also landed on . The right side of head of Muhammad Munir. Thereafter; the accused with muffled faces caused Sota blows on the person of Muhammad Munir, which hit on his right arm. Talib and Kali accused also fired in the air.
5. ' It was also alleged that the complainant along with Allah Yar and Sardar Ali, who were present at their bhainee also reached the place of occurrence and witnessed the same. Muhammad Sharif and Khadim Hussain were mentioned as witnesses to have seen the accused while going on a motor cycle after the occurrence.
6. ' The motive alleged was that Talib accused had suspicion that Muhammad Munir was carrying illicit relations with his cousin.
5. The investigation was carried out by Jaffar Hussain, A.S.-I. And thereafter Ghulam Qadir, S.-I.
7. During the investigation, Ghulam Qadir, S.-I. Found Zakir, Munawar, Muhammad Akram and Kali accused as innocent whereas declared Talib, Mian Muhammad lqbal, Muhammad Sarwar, Abdur Razzaq and Muhammad Ahmad as accused persons. The said investigation of Ghulam Qadir S.-I.
8. Was verified by the D.S.P. He also declared Muhammad Hussain and Abdul Sattar as accused of abetment. The police sent the challan only against those persons who were found guilty in its investigation.
9. ' Being dissatisfied with the police investigation, Abdul Razzaq, complainant filed a complaint (Exh.P.A.). After recording preliminary evidence, the accused mentioned in the complaint were summoned. Prosecution in order to prove its case produced six witnesses in all. The complainant Abdul Razzaq, himself appeared as P.W.1, Muhammad Fazal as P.W.2, Dr. Farooq Ahmed, P.W.3, Dr. Muhammad Younas as P.W.4, Manzoor Ahmad Patwari as P.W.5 and Muhammad Munir, H.C. As P.W.6. Rana Muhammad Akram, D.S.P. Appeared as C.W.1. The accused in their statements under section 342, Cr.P.C. Pleaded false implication and produced three D. Ws. In their defence. After conclusion of the trial, except Talib, all the remaining accused were acquitted by the trial Court.
6. Learned counsel for convict appellant Talib in Criminal Appeal No.269 of 2000 submitted that F.I.R. Was recorded after 19 hours of the occurrence despite the fact that police station was at a distance of one square from hospital where both the injured were firstly taken. According to learned counsel, this delay in lodging the F.I.R. Casts serious doubts on the veracity of the prosecution case.
10. ' Further submitted that admittedly it was night time occurrence, so it was not possible for the P.Ws.
11. To have identified the assailants and that identification by the P.W. Through voice is alien to law and that this is a weak type of evidence and could not be replied upon. For this proposition of law, learned counsel relied upon 1972 PCr.LJ 478; 1977 PCr.LJ 136; 1994 PCr.LJ 1057 and PLJ 1995 FSC 1090.
12. ' Learned counsel submitted that out of five accused, four having been acquitted by the trial Court, the story of the prosecution is falsified. Elaborating his argument, learned counsel submitted that even the nominated accused were found to be innocent by the police.
13. ' As to medical evidence, learned counsel submitted that the same is not in line with the ocular account furnished by P.Ws. 1 and 2 in as much as Dr. Farooq Ahmad P.W.3 had categorically deposed that there was no visible injury or fracture of bone under injury No.2 which was attributed to Talib appellant. According to learned counsel, in fact Injury No.2 is continuation of Injury No. 1.
14. ' It was maintained by learned counsel that prosecution has failed to prove the motive in as much as even the name of the girl with whom, the appellant Talib suspected to have illicit relation with deceased was not told.
15. ' Learned counsel also submitted that on the same set of evidence, the accused to whom even injuries were attributed on the person of the deceased were acquitted except the present appellant namely Talib.
16. ' In the last learned counsel submitted that if the submissions made by him did not find favour with the Court, then it is not a case of death but of lesser penalty for the reason that firstly the prosecution has failed to prove the motive and secondly that only the butt of the gun was used and had the appellant intention to kill the deceased, he must have fired straight at the deceased.
7. Mian Muhammad Afzal Watoo, Advocate for respondents in Criminal Appeal No.209 of 2000 submitted that no motive whatsoever was ascribed to the respondents, motive laid with Talib convict, the respondents being distantly related to Talib were involved in the case, in fact the respondents were involved on the initiative of one Nizam Chisti, who was politically inimical towards the respondents, he was present at the time of lodging the F.I.R., role of Zakir respondent was that he caused tow injuries with hatchet, one on the head and other on the ear of Muhammad Fazal, while Injury No.1 was with blunt weapon and Injury No.2 was also attributed to Munawar, respondent, the Sota blow attributed to Muhammad Akram, respondent on the person of Muhammad Fazal, according to doctor, could be suffered due to fall on the ground, a reference has also been made to dimension of injuries 1 and 2 and that all the injuries on the person of the deceased were declared simple in nature. According to learned counsel, so far as injuries on the person of Munir deceased is concerned, Injuries 1 and 2 are continuation of each other but those have been attributed to Talib convict and Kali, the acquitted respondent. It was further submitted that one A.-S.-I., one Sub-Insepctor and a D.S.P. Found the respondents as innocent and in the report under section 173, Cr.P.C. The names of Razzaq, Muhammad Iqbal, Muhammad Sarwar, Talib and Muhammad Ahmad were placed in Column No.3 of the report. Learned counsel submitted that opinion of the police is not binding upon the Courts but it carried weight in the facts and circumstances of the case in hand.
17. ' It was argued by learned counsel that the complainant was not present at the spot, had he been present at the spot, he must have been injured. Much emphasis was laid upon the fact that in the F.I.R., Allah Yar and Sardar Ali were stated as eye-witnesses but they were not produced before the trial Court and similarly, Muhammad Sharif and Khadim Hussain though mentioned in the F.I.R. To have seen the accused after the occurrence were not produced by the prosecution.
18. ' As far as testimony of Muhammad Fazal, the injured witness is concerned, learned counsel submitted that the witness never appeared before the police and only appeared before the trial Court so his conduct itself shows that his evidence cannot be believed.
19. ' In the end, learned counsel submitted that the reasons given by the trial Court for acquittal of the respondents are cogent and the same cannot be upset in an appeal against acquittal until the same are perverse, arbitrary or fanciful. He relied upon 2003 SCM R 477 and 538 and 2004 SCM R 262.
8. Mr. Muhammad Yar Khan Daha, Advocate for the complainant submitted that occurrence having taken place in the land of the complainant, the complainant was natural witness of the occurrence, both the parties were known to each other so there was no question of mistaken identity, specific injuries were attributed to Talib, convict and all the acquitted respondents, the motive laid with all the accused because they were related to each other, they had a common object and intention, the injury attributed to Kali, respondent also proved fatal, Muhammad Fazal P.W.2 was injured witness, he remained in the hospital for 16 days and that the prosecution has proved its case against all the accused.
9. Mrs. Eram Sajjad Gul, Advocate for the State adopted the arguments advanced by learned counsel for the complainant.
10. We have heard learned counsel for the parties and have gone through the evidence on record.
20. In the instant case, the occurrence had taken place in the lands of Abdul Razzaq, complainant at 10-30 p.m. On 25-8-1994 and the matter was reported to the police at 7-00 p.m. On 26-8-1994 though the distance between the place of occurrence and police station was 19 kilometers. Both Muhammad Munir and Muhammad Fazal injured were taken to hospital at Pakpattan where they were examined by Dr. Muhammad Younas Khan (P.W.4) in between 4 and 4-30 p.m. On 26-8-1994.
21. Due to seriousness of condition of Muhammamd Fazal who was also semiconscious, the doctor directed the injured to be removed to General Hospital, Lahore. Similarly, Muhammad Munir was referred to General. Hospital, Lahore, so the delay in getting recorded the F.I.R. Was not fatal to the case of the prosecution.
22. ' The prosecution introduced two eye-witnesses namely Abdul Razaq (complainant) and Muhammad Fazal. He being, injured, is star witness of the prosecution. Muhammad Fazal was medically examined at 4-25 p.m. On 26.-8-1994 by Dr. Muhammad Younas Khan (P.W.4). The duration given by the doctor between the injuries and medical examination was 8 hours which time fits in with the time of occurrence given by the prosecution.
23. ' There are two types of injuries on the person of the deceased Muhammad Munir and Muhammad Fazal, the injured P.W. It means that two types of weapons were used in the occurrence. Injuries Nos.1 and 2 are specifically attributed to Talib convict appellant. Zakir, Munawar, Muhammad Akram and Kali, respondents in Criminal Appeal No.209 of 2000 are closely related to each other.
24. Specific roles were attributed to them by the complainant and the injured witness Muhammad Fazal. His statement was recorded on 30-8-1994 when he was brought in hospital for treatment. He was semi-conscious and injuries on his person were dangerous to life.
25. No evidence whatsoever was brought on record that the two eyewitnesses had any enmity with the convict and the acquitted respondents so there was no question of false implication. The number of injuries on the persons of the deceased and the injured Muhammad Fazal coincide with the number of accused.
26. ' During the course of investigation, the police arrested Iqbal, Razzaq and Sarwar but the complainant stated before the police that they were not their accused. It was only when the complainant failed to get the real accused arrested in this case, he filed a private complaint. It is said to note that in the instant case, one person lost his life and one was seriously injured but the police did not arrest anyone. It is common in our country that whenever an F.I.R. Is recorded though for a minor offence, the police not only arrest the actual culprit, but their relatives are also arrested.
27. The reasons given by the trial Court for acquittal of respondents in Criminal Appeal No.209 of 2000 are not in consonance with the evidence brought on record by the prosecution specially the testimony of Abdul Razzaq, the complainant and Muhammad Fazal, the injured P.W.
28. It is a case in which all the accused after forming an unlawful assembly with common object committed the murder of Muhammad Munir deceased and seriously injured Muhammad Fazal.
29. So, the judgment of the trial Court to the extent of acquittal of respondents 1 to 4 in Criminal Appeal No.209 of 2000 is set aside and we convict Zakir, Munawar, Muhammad Akram and Kali, respondents as under:-- So, the judgment of the trial Court to the extent of acquittal of respondents 1 to 4 in Criminal Appeal No.209 of 2000 is set aside and we convict Zakir, Munawar, Muhammad Akram and Kali, respondents as under:- ' Imprisonment for life with further direction to pay Rs.50,000 each as compensation, in default three months S.-I. Under section 302(b) read with section 149, P.P.C. Seven years R.I. Each under section 324 read with section 149, P.P.C, for causing injuries on the person of Muhammad Fazal.
30. ' Three years R.I. Each as Tazir as also to pay Daman of Rs.10,000 each under section 337-F(ii), P.P.C.
31. ' Two years R.I. Each under section 148, P.P.C.
32. ' All the sentences shall run concurrently with the benefit of section 382-B, Cr.P.C. All the four respondents shall be taken into custody and sent to jail to serve out their sentences.
33. ' Now, we take up the case of Talib, convict appellant as far as quantum of sentence is concerned.
34. According to case of the prosecution itself, Talib had suspicion that Munir deceased was having illicit relations with his cousin. He caused a single injury and that too with butt of the gun on the person of the deceased. Taking these two factors as extenuating circumstances, we though maintain his conviction under section 302(b), P.P.C, but reduce his sentence from death to imprisonment for life. The appellant Talib was a member of unlawful assembly and with common object committed murder of Muhammad Munir deceased as also caused serious injuries on the person of Muhammad Fazal so he is also convicted as under:- ' Seven Years' R.I. Under section 324 read with section 149, P.P.C., Two Years' R.I. 148, P.P.C, and Three Years' R.I. As Tazir as also to pay Daman of Rs.10,000 under section 337-F(ii), P.P.C.
35. ' All the sentences shall run concurrently with the benefit of section 382-B, Cr.P.C.
36. ' The death sentence of Talib appellant is not confirmed and murder reference is replied in the negative.
37. ' Both criminal appeal nos.209 and 269 of 2000 are disposed of in the above terms.