' ALI NAWAZ CHOWHAN, J.---This judgment shall dispose of Criminal Appeal No.673 of 1999 (filed by convicts appellants Muhammad Amir and Mazhar Abbas against their conviction and sentence), Criminal Revision No.630 of 1999 (filed by complainant Muhammad Sharif asking for conviction of Muhammad Yasin acquitted accused) as well as Murder Reference No.327 of 1999..
2. The matter pertains to case F.I.R. No.273 dated 26-7-1996 registered at Police Station Kot Moman District Sargodha, under sections 302,452,324 P.P.C.
3. Vide his judgment dated 25-6-1999 Ch. Muhammad Aslam learned Additional Sessions Judge, Sargodha, convicted Muhammad. Amir, Mazhar Hussain (appellants/convicts) and Wali alias Malli (convict, now dead) under section 452 read with section 34, P.P.C. And sentenced them to 5 years'
R.I each along with a fine of Rs.2000 each or in default thereof, to undergo further 6 months' S.I.
Each. The learned trial Judge further convicted these persons (appellants and the deceased convict) under section 302(b), P.P.C. On two counts and sentenced them to death. He further directed them to pay a sum of Rs.1,00,000 each as compensation to the legal heirs of the deceased as required under section 544-A of the Cr.P.C. Or in default of payment of compensation, they were to undergo further 6 months each.
4. The criminal action in this case was initiated on the statement (Exh.PQ/1) of Muhammad Sharif, the complainant, on the basis of which the F.I.R. (Exh.PQ) was recorded by Khadim Hussain, Investigating Officer (P.W.11).
5. Four accused in this case were tried. Yasin accused was spared of conviction, whereas we have been told at the bar that Wali alias MaIli has expired after the trial and, therefore, there is no appeal on his behalf. We are, therefore, left with two appellants Muhammad Amir and Mazhar Hussain, both father and son.
6. Remaining steadfast to what he stated in Exh.PQ/1 Muhammad Sharif (complainant) narrated the following facts before the trial Court:-- "I am a Rtd. Army personnel and now I have raised cattle for living. Khadim Shah and Mulazim Shah s/o Sharif Shah all residents of Chak No.8SB and I have friendly relationship with them. Said Shah family are enemies of accused family. My sons Akhtar Hussain and Safdar Hussain were working as Bodyguards and gunmen of said Khadim Shah and Mulazim Shah aforesaid. On 25-7-1996 my sons Akhtar Hussain and Safdar Hussain had gone to the Dera of said Dera of Mulazim Shah and Khadim Shah and remained with them whole the day for their protection. On 26-7-1996 at about 6.a.m., I along with my sons Akhtar Hussain, Safdar Hussain and Muhammad Akrammy wife Sardar Bibi and one Ibrar son of Lahrasib Khan were present in our house. My sons Akhtar and Safdar were cutting wood with a Toka. Suddenly from the western door of the house Amir, Wali alias Mali and Mazhar accused entered our house all the three were armed with 12 bore guns. They raised a Lalkara that they had come to teach my sons a lesson for working as gunmen of the Shah family.
At the same time, Yaseen accused empty handed came and stood in eastern door of our house.
Yaseen also raised a Lalkara that the would not allow anybody to enter from the gate he was standing. First Amir accused fired from his 12 bore gun hitting Akhtar Hussain on his chest. Akhtar Hussain fell down and died instantly. Then Wali accused fired a shot with his gun which hit on the right thigh of Safdar Hussain my son. Then Mazhar accused fired a shot with gun which hit right flank of my son Safdar. Safdar also fell down and died instantly. Mst. Sardar Bibi mother of two deceased went near them to rescue her sons then Mazhar accused gave her Butt blows on her back. The occurrence was witnessed by myself, my wife Sardaran Bibi, my son Akram, Ibrar and Baqir P.Ws."
' Giving the motive part of the story, he stated as follows:- "Motive behind the occurrence was that my both sons (deceased) were working as gunmen of Mulazim Shah and Khadim Shah and they both were seen at the Dera of said Shah family by the accused one day prior to the occurrence. All the three accused Amir, Wali alias Mali and Mazhar accused after committing the murders of my two sons ran away through the eastern door of our house taking Yaseen accused with them."
' The following excerpts from the statements are relevant:-- "It is correct that immediately after arrest Yaseen accused had taken the stand that he was innocent and had been falsely implicated in the case. It is correct that I had agreed that Yaseen accused may be declared innocent if Manak son of Langu would give oath on the Holy Quran in the Mosque. I thumb marked such an agreement on 3-9-96. It is correct that said Manak gave a Nian about the innocence of Yaseen accused by taking an oath of Holy Quran in Mosque. Volunteered, that he had been won over by the accused. It is incorrect that I had also deposed before the police on 3-9-1996 that Yaseen accused was innocent, and that he should be declared as such.
(Confronted with the copy of the statement Exh.DD of this witness recorded in the Zimni). Under objection by the D.D.A. That statement in a zimmi is not a statement under section 161, Cr.P.C."
"During investigation police/ I.O. Gave me option to state on oath that Mazhar accused was armed with rifle/gun or that he had either fired it or given a butt blow with the same to anyone. It is incorrect that I had refused to take the above oath and became answerless because of the innocence of Mazhar accused. Volunteered, that I was ready to take the oath but police did not take the same. It is correct that police came to the conclusion that Mazhar accused was not armed with gun nor did he fire at any one or caused even a butt blow to anyone. Volunteered, that police had came to this conclusion after taking illegal gratification. It is incorrect that I had falsely named the accused persons in the F.I.R."
"It is correct that Muzzafar Hussain P.W. Is maternal cousin of deceased. Sarwar P.W. Is my cousin.
' In the F.I.R. I did not give any detail of the enmity of Mazhar Hussain , Yaseen and Amir accused with Mulazim Hussain and Khadim Hussain Shah. It is correct that the above three accused persons do not own any land in Chak No.8 or Chak No.8 Alif S.B. It is correct that before the present occurrence between the above said three accused and the two Syed/Shah mentioned above there was no criminal case/civil suit or any complaint to any authority."
"It is correct that none of the eye-witnesses namely myself, Muhammad Akram, Ibrar and Baqir Khan P.Ws. Were injured during the present occurrence. It is correct that my house where the occurrence took place is the last house of the village Abadi and thereafter the cultivated fields are situated. It is incorrect that the two deceased persons used to out raged the modesty of the young girls of the villages who happened to go outside in the field to urinate/ease themselves. It is incorrect that the occurrence took place in the early dark hours of the night."
7. It has also come from the mouth of the complainant that Wali alias Mali (the deceased convict) was about 70 years of age at the relevant time.
8. Sardaran Bibi (P.W.9), wife of the complainant and mother of the two deceased, supported the prosecution case. She is said to have received blunt weapon injuries and the appellants/convicts were charged for this as well. But no punishment was imposed on any of the appellants. According to the learned counsel for the appellants, the implication is that the charge has remained un- established.
9. The injuries suffered by Mst. Sardaran Bibi and found by Dr. Akhtar Mehmood (P.W.6) were as follows:--
(1) A contusion mark 7 x 5 c.m. On back of left shoulder.
(2) Contusion mark 7 x 6 c.m. On left loin just above left hip. Note: There was complain of pain all over the body. The doctor also mentioned in cross-examination that these injuries could be caused as a result of fall.
10. The following excerpts from the statement of Mst. Sardaran Bibi are relevant to the case:- " I do not know whether Mazhar Hussain accused was granted bail by the High Court on the ground that he was a minor. It is correct that we did not move for the cancellation of bail of Mazhar Hussain in any Court.
"It is correct that Manak son of Langoo had given oath of innocence of Yasin accused on Holy Book in the mosque."
"It is correct that Mali accused present in Court is son of Fateh Khan. Akhtar Hussain and Safdar Hussain deceased were not licensee of any weapon. The said Syeds are owners of 2/3 Killas each i.e. That two Syed brothers did not own more than 8 acres of land. The said Syed brothers do not have any enmity with any person."
"It is incorrect to suggest that the occurrence took place in the dark hours of the evening. It is also incorrect that my two sons deceased were desperadoes."
11. The post-mortem examination on the dead-bodies of the two deceased Muhammad Safdar and Muhammad Akhtar sons of Muhammad Sharif were conducted by Dr. Akhtar Mehmood (P.W.6). In respect of deceased Muhammad Safdar, he found the following injuries:-
(1) 7 holes each measuring 1 c.m. x 1 c.m. x going deep into chest cavity, it was a wound of entry in an area of 6 c.m. x 6 c.m. On outer aspect and middle of right side of chest.
(2) Fire-arm wound of entry 4 c.m. x 4 c.m. x communicating with wounds of exit on outer aspect and middle of right thigh.
(3) Wound of exit 6 c.m. x 6 c.m. On front and middle of right thigh, slightly above injury No.2.
' And his opinion with respect to these injuries was as follows:-- "Death in this case was caused by shock and haemorrhage caused by above mentioned injuries.
Injury No.1 was of fatal nature and could cause death in ordinary course of nature. Injury No.2 was Jurrah Ghair Jafiah Badiah. Both injuries were ante-mortem and inflicted by fire-arm. Injury No.2 had assisted death due to excessive bleeding caused by it. Probable time, elapsed between injuries and death was immediate and that between death and p.m. Was within 18 hours."
' Exh.PD is the carbon copy of the post-mortem report, while Exh.PD/1 is the diagram showing the location of injuries.
12. In respect of Muhammad Akhtar deceased, he found the following injuries on his person:--
(1) A fire-arm wound of entry 1-1/2 c.m. x 1-1/2 c.m. Going deep x chest cavity on front and middle of chest just above, xyphysternum.
(2) 3 wounds of exit each 1/2 c.m. x 1/2 c.m. On back and middle of left chest.
' His opinion was as follows in connection with these injuries:- "Death in the case was due to shock and haemorrhage caused by above mentioned injury, which was of fatal nature and could cause death in ordinary course of nature and was inflicted by fire- arm and was ante-mortem."
' Exh.PG is the copy of the post-mortem report, whereas Exh.PG/1 is the diagram of the injuries.
13. The report of the Chemical Examiner was in the positive and that of the Forensic Science Laboratory was in positive in respect of the crime empty which was picked from the spot and was wadded with the gun recovered from Muhammad Amir appellant.
14. Amongst the formal witnesses, we have Muhammad Hafeez, Draftsman, who prepared the site plan (Exh.PA) and its copy (Exh.PA/1). Ghulam Jilani had identified the dead-bodies of both the deceased. Muhammad Hayat received the sealed parcel containing blood stained earth and another parcel containing blood stained Toka which was found next to the dead-bodies which he kept in the Malkhana safely. On 14-8-1996 he received two parcels containing 12 bore gun and another sealed parcel said to contain yet another gun. These weapons he handed over to Muhammad Afzal for transmission to the office of the Forensic Science Laboratory. Muhammad Afzal affirms taking these to Lahore. Muhammad Sharif escorted the dead-bodies to the mortuary at Kot Moman. He received the last worn clothes of both the deceased and handed these over to the Investigating Officer. He took the case property to the office of the Chemical Examiner on 31-7- 1996.
15. Shahid Mehmood (P.W.10) witnessed the securing of the blood stained earth from the spot where the two deceased were done to death. The following excerpt from his testimony with respect to further recovery is relevant:-- "On the same day police also recovered one crime empty P-7, made the same into a sealed parcel and took it into possession vide memo Exh.PT attested by and Muhammad Akram P.W. On the same day police also recovered one live cartridge P-8 from the place of occurrence, made the same into a sealed parcel and took the same into possession vide memo Exh.PU attested by me and Muhammad Akram P.W. On the same day police had also collected blood stained Toka P-9 made the same into a sealed parcel and took into possession vide memo Exh.PV attested by me and Muhammad Akram P.W."
16. Khadim Hussain, the Investigating Officer (P.W.11), went to the place of occurrence on 26-7-1996 and after recording the statement of the complainant, he inspected the spot, prepared the injury statements of both the deceased as well as their inquest reports. He sent the dead-bodies for post-mortem examinations and prepared the rough site plans. He secured the blood stained earth from the places where the dead-bodies were lying and got the recovery memos attested from Muhammad Akram and Shahid Mahmood, P.Ws. From the spot, he also collected an empty (P7) and a live cartridge (P8). Mst. Sardaran Bibi's injuries statement was also prepared by him. He then recorded her statement under section 161 of the Cr.P.C. And sent her for medical examination. Later he was the recipient of the last worn clothes of both the deceased and a phial containing pellets, taken into possession vide memo Exh.PC. He got the site plans prepared and also received the MLR pertaining, to Sardaran Bibi. On 14-8-1996 he arrested Muhammad Amir and the deceased convict Wali alias Mali.
' They got recovered single barrel guns (P4 and P5). The later pertained to Muhammad Amir which was taken into possession vide memo Exh.PN, attested by Sarwar and Muzaffar Hussain P.Ws. Both were un-licensed weapons and a separate case under the Arms Ordinance was, therefore, registered against them. Mazhar appellant was arrested on 15-8-1996 and who got recovered a 12 bore double barrel gun (P-6) which was taken into possession vide memo Exh.PP, attested by Sarwar and Muzaffar Hussain, P.Ws. He received the site plans from the Draftsman and scribed his notes in red ink. The following excerpts from his statement are relevant:-- "It is correct that Muhammad Aslam Ghori D.S.P./SDPO investigated this case and had come to the conclusion that Mazhar accused was not armed with a gun nor did he cause any injury during the occurrence. Volunteered, this observation was made by the D.S.P. When I had already prepared challan but had not yet been submitted before the Court. It is correct that Aslam Ghori had investigated this case in his capacity as SDPO, Bhalwal. Yaseen accused pleaded before me that he was innocent, he had produced large number of persons in his defence, therefore, I did not arrest him holding him innocent. My superiors also held Yaseen accused to be innocent, and therefore, he was not challaned to Court."
"I did not investigate the truth of the motive assertion that the deceased persons were murdered because they were gunmen of Mulazim Shah and Khadim Shah. I did not join Mulazim Shah or Khadim Shah mentioned above in police investigation. I do not know, if Mulazim Hussain and Khadim Shah are owners of few acres of land and had no necessity to keep gunmen."
"The place of occurrence is a big village. I did not record the statements of respectables of the village in support of the prosecution version. Volunteered, many persons appeared on both sides and made conflicting claims."
17. The case of the appellants and of their co-accused as well as the deceased convict Wali alias Mali was one of denial. They pleaded their innocence and both the appellants denied any recovery from them. Mazhar Hussain appellant took the plea that he was a minor at the relevant time and there was sufficient evidence in his favour leading to his acquittal and referred to the conclusion of Muhammad Aslam Ghauri, SDPO in this connection. None produced their defence.
18. While referring to the facts which have, come in evidence, learned counsel for the appellants pointed out that the prosecution side had miserably failed to establish the motive part of the story and argued that this failure would definitely recoil on the prosecution case. It was further argued that it was possible for one assailant to cause the death of the two deceased through his fire-arm and that this fact finds- support from the recovery of a single crime empty from the spot. Which further suggested that reloading was done only once in a single barrel gun.
19. Learned counsel for the appellants was of the view that the prosecution side has suppressed the facts. He pointed out to the recovery of a blood stained Toka from a deceased and said that although it was blood stained, but no explanation has come forth on the record as to how it got blood stains. That Toka normally is not used for chopping wood, which according to the prosecution had engaged the two deceased.
20. The Investigating Officer failed in his duty not to investigate the motive part of the story and he has admitted in his cross-examination, relevant portion of which has been re-produced above, that he did not investigate this fact nor did he raise any question to the Shahs of that village to check whether the deceased were their gunmen or not?
21. It was further argued that Mst. Sardaran Bibi could have received the injuries on her person through her fall on a hard surface and these injuries did not suggest her presence at the spot.
22. It has also been argued that if the appellants were very desperate persons, they should have gone against the Shah brothers, their real enemies, instead of the deceased, said to be gunmen of said Shahs. That there is no enmity established against the Shahs with the complainant side. That Mazhar was a juvenile at the relevant time and this is an established fact. That it is also established that he had no motive and he has been involved in this case with the intention of including maximum number of the accused to render the defence helpless.
23. It was also argued that once a witness admits that he agreed to the holding of the Nian, the necessary inference is that he is not sure about the occurrence and this was so because he may not have seen it, otherwise he would not have agreed to the Nian.
24. As a rule in general, contracting parties are bound to their contract and if they failed to adhere then the Courts have to enforce afterThe gun recovered from Muhammad Amir appellant is found Wedded with the crime empties recovered from the place of occurrence and this connects him with the offence. As a rule in general, contracting parties are bound to their contract and if they failed to adhere then the Courts have to enforce afterThe allegation of the prosecution is that the appellants were equipped with single barrel guns. Therefore, the argument of the learned counsel for the appellants that having shot a fire, an empty was ejected for reloading of the same gun for reuse and, therefore, an empty was found, which according to the Laboratory's report was wedded with the gun of Muhammad Amir., is cogent.
25. It is also borne on record that a Nian had taken place and the complainant had agreed to it although later he had to cast aspersions.
26. The ocular account showing four assailants were examined by the trial Court and the Investigating Officer and we ultimately found that Yasin accused was held innocent and was not challaned. Which means that the prosecution side as such may have included persons who were not even participants in the occurrence, and consequently we have to tread a careful path for locating the real assailants. The recoveries and the ocular account goes alongside to establish the guilt of Muhammad Amir appellant who did not produce any defence against his innocence before the police.
27. Whereas, we find that Mazhar Hussain appellant was, declared innocent by an Investigating Officer. He was not an adult at the relevant time. The gun recovered from him did not match with any empty recovered firm the spot. He had been advancing his pleas of innocence. The probability that a single assailant may have caused the death of both the deceased also being there, the possibility is that in the occurrence only one assailant i.e. Muhammad Amir may have been involved. And when we think of this probability, a doubt arises in favour of Mazhar Hussain appellant.
28. We, therefore, feel that the prosecution has been able to make a foolproof case against Muhammad Amir appellant, while its case against Mazhar Hussain appellant is ridden with doubts.
Therefore, giving the benefit of doubt to Mazhar Hussain appellant/convict, we acquit him from the charge, while we maintain the death sentence of Muhammad Amir appellant/convict who had shown great cruelty against the complainant side by killing two of his young sons for apparently no rhyme or reason and deserves no leniency. The case property be destroyed after any further appeal/revision.
29. The Criminal Appeal bearing No.673/1999 to the extent of Muhammad Amir appellant is dismissed, while to the extent of Mazhar appellant is accepted. Consequently, the death sentence awarded to Muhammad Amir convict/appellant is confirmed and to his extent the Murder reference is answered in the positive. The Murder reference to the extent of Mazhar Hussain appellant is answered in the negative because of his acquittal by this Court. The murder reference with respect to Wali alias Malli, convict deceased, will abate.
30. After having come to the conclusion as aforementioned and having heard and appraised the case fully, this Court is of the view that the criminal revision bearing No.630/1999 asking for conviction of Yasin accused has no basis and it is dismissed.