Sardar Tariq Masood, J.--Irshad 'Ahmad son of Saeed Ahmad appellant was tried alongwith four co-accused by the learned Addl. Sessions Judge, Burewala in case FIR No, 256 dated 18.09.2003 registered under sections 302/34 PPC at Police Station Sadar Burewla District Sahiwal. The learned trial Judge vide judgment dated 28.02.2005 convicted the appellant u/S. 302(b) PPC and sentenced him to death. He was further directed to pay Rs, 50,000/- as compensation u/S. 544-A Cr.P.C. to the legal heirs of the deceased or in-default thereof to further undergo 6 months S.I. Co- accused Mushtaq Ahmad, Zafar, Jamshaid and Sajjad were acquitted of the charge.
The appellant has filed Crl. Appeal No, 142 of 2005 against his conviction and sentence whereas the learned trial Court has sent a reference (M.R.No, 220 of 2005) for the confirmation of death sentence of appellant or otherwise. The complainant has filed Crl. Appeal No, 211 of 2005 against the acquitted accused. We propose to dispose of all these matters by this single judgment.
2. Brief facts of the case as disclosed by PW.7 Muhammad Jaffar complainant in FIR Ex. PE/1 are that his Behnoi PW.8 Ghulam Murtaza has put his residence at Killa No, 21 Square No, 20 in the area of Chak No, 156/E.B. Irshad Ahmad accused/appellant had been demanding a passage to go to his land from said Ghulam Murtaza. On denial of said Ghulam Murtaza, a civil suit was filed by Irshad Ahmad which was decided in favour of said Ghulam Murtaza on 17.09.2003. The appellant being dissatisfied of the decision of civil Court threatened Ghulam Murtaza outside the Court that he would take the passage forcibly. On the day of occurrence at about 5.00 p.m. Muhammad Jaffar alongwith his brother Allah Ditta went to house of Ghulam Murtaza where Ghulam Murtaza was already available. The complainant just started talks about decision of civil Court that all of a sudden they heard a report of firing coming from Killa No, 1 Square No,
20. When they reached near about one Acre from Killa No, 1, they saw Irshad Ahmad appellant armed with rifle, Mushtaq Ahmad armed with gun 12 bore double barrel, Zafar, Jamshaid and Sajjad armed with pistols making; firing. Allah Ditta made the complainant and PWs to stop there and himself went near the aforesaid culprits and requested them not to quarrel and offered them to take passage of their choice, on this Mushtaq said to Irshad Ahmad that Allah Ditta had been extending help to Ghulam Murtaza, so he should be finished. Zafar, Jamshaid and Sajjad also shouted that Allah Ditta be fired at, upon which, Irshad Ahmad appellant fired at Allah Ditta which hit on front of his chest and went through and through. This occurrence was witnessed by the complainant and his companions. Allah Ditta succumbed to the injuries at the spot.
Motive behind this occurrence was that Irshad Ahmad appellant had filed a civil suit relating to passage which was dismissed. Due to this grudge, the appellant with consultation of his aforesaid co-accused committed the murder of Allah Ditta deceased.
3. After completion of investigation, challan was submitted against the accused persons. Charge was framed, to which, they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as 09 PWs in all and produced documentary evidence.
PW.1 Zakir Hussain stated that he and Muhammad Nawaz constable, escorted the dead body of Allah Ditta from the place of occurrence to the mortuary and he also identified The dead body.
PW.2 Muhammad Aslam Qanungo stated that he prepared the scaled site-plan Ex.PB, Ex.PB/1 and Ex.PB/2.
PW.3 Dr. Masood Ahmad Rana conducted the post-mortem examination upon the dead body of Allah Ditta deceased on 19.09.2003 and found tvo fire-arm wounds on his person. In his opinion, both the injuries were caused by fire-arm weapon, ante-mortem and were sufficient to cause death. Death was due to shock and haemorrhage as a result of these injuries. Probable duration between injuries and death was within few minutes and between death and autopsy was about 16 hours.
PW.4 Muhammad Nawaz constable escorted the dead body of Allah Ditta deceased to the mortuary. The doctor handed over to him the last worn clothes of the deceased. He further stated that one sealed parcel said to contain blood-stained earth and one sealed parcel said to contain crime empty were handed over to him by the Moharrir which he delivered the same to the concerned offices intact. He brought back the parcel of empty under some objection. Again he delivered the parcel of empty and parcel of rifle to the office of F.S.L. PW.5 Muhammad Yaseen constable stated that he handed over one sealed parcel said to contain blood-stained earth and the other said to contain crime empty to Muhammad Navvaz constable for onward transmission to the concerned offices. He also kept the parcel of rifle and then delivered the same to Muhammad Nawaz constable for onward transmission to the office of F.S.L.
PW.6 Mazhar Hussain HC stated that he recorded the formal FIR Ex.PE/1.
PW.7 Muhammad Jaffar is the complainant of this case who supported the FIR Ex.PE/1.
PW.8 Ghulam Murtaza is the witness of ocular account who supported the version of the complainant. He is also the witness of motive of this case.
PW.9 Falak Sher SI is the Investigating Officer of this case who completed the investigation.
Learned DDA gave up Ghulam Mustafa PW being unnecessary and tendered report of Chemical Examiner Ex.PK, report of Serologist Ex.PK/1 and report of FSL Ex.PL and closed the prosecution case.
4. The statements of accused u/S. 342 Cr.P.C. were recorded. They denied the allegations levelled against them and professed their innocence. In answer to question, why this case against you and why the PWs have deposed against you, Muhammad Irshad appellant stated as under:-- "It is a false case. All the PWs are closely related inter-se and with the deceased. They were not present at the spot at the time of occurrence. They have made false statement against me due to enmity and their relationship with the deceased. In fact 10/12 days prior to the present occurrence, I gave shoe beating to Zakir Hussain PW because Zakir Hussain PW used to level false allegations about the girls of the village and used to quote my name in this respect for the verification of such allegations. Due to this grudge, Zakir Hussain PW got assembled Allah Ditta deceased and others for taking revenge of his insult. Allah Ditta deceased and his companions Zakir Hussain etc. were all armed with fire-arm and they resorted to firing by arriving in Killa No, 1 of Square No, 20, in the portion which was owned and possessed by me and they wanted to kill me where large number of persons arrived to desist them from firing and there was cross firing in which a stray bullet hit Allah Ditta deceased and it could not be ascertained as to whose fire hit Allah Ditta deceased. The occurrence took place much after the sun set when darkness had prevailed. The complainant party got registered a false case against me and my co-accused by twisting the facts of occurrence and fabricating a false story."
The appellant did not opt to appear u/S. 340(2) Cr.P.C. in disproof of the allegations levelled against him by the prosecution and he produced Ex.DA, Ex.DB, Ex.DC and Ex.DD in his defence.
5. Learned counsel for the appellant contended that PW. Muhammad Jaffar and PW.8 Ghulam Murtaza are closely related to Allah Ditta deceased; that no independent witnesses were produced by the prosecution; that there is no motive to commit the murder of Allah Ditta and motive asserted by the prosecution if believed then the first target was Ghulam Murtaza who was available at the spot but he did not receive any scratch. It is not alleged that any attempt was made upon Ghulam Murtaza, so the story of the prosecution is not believable. Further contended that the medical evidence does not corroborate the ocular account rather the same contradicted; that Injury No, 2 is on the back and dimension of Injury No, 2 is smaller than Injury No, 1 which was on the front side of chest, so the medical evidence contradicted the ocular account; that the occurrence took place in the area which was owned and possessed by the appellant and actually the complainant party made aggression alongwith PW. 1 Zakir Hussain and during the cross firing, one stray bullet hit Allah Ditta. Also contended that the recovery of rifle was inconsequential as the same was effected on 6.10.2003 and empty was recovered at 18.09.2003 but the same was not sent promptly to the office of FSL and both the empties and rifle remained together in the Malkhana and subsequently sent to the office of FSL and in that eventuality, there is possibility of tempering with the parcels, hence the report of FSL and the recovery are inconsequential.
Argued that in Column No, 22 and 23 of the inquest report Ex.PD, there is no mention of any empty.
Further argued that it is alleged that the appellant made solitary fire shot upon Allah Ditta and he did not repeat the same, so there is mitigating circumstance in this case. Ultimately also argued that on the same evidence, four co-accused Mushtaq Ahmad, Zafar, Jamshaid and Sajjad were acquitted by the learned trial Court meaning thereby that the ocular account was disbelieved by the trial Court qua the said acquitted accused. Lastly contended that the witnesses were specifically suggested that the parcels of empty were subsequently tempered and the empties were fabricated with the rifle.
6. On the other hand, learned Addl. Prosecutor General for the State assisted by the learned counsel for the complainant has vehemently opposed the appeal by submitting that the matter was promptly reported to the police within one hour and 15 minutes in which the appellant was specifically nominated for causing fatal injuries to the deceased. Further submitted that the empties were recovered from the spot and the rifle was subsequently recovered, although the same- remained together in the Malkhana; that initially the parcel of empty was sent to the "office of FSL on 3.10.2003 but the same was returned under some objection thereafter the same was subsequently sent on 16.10.2003 and the defence had not made any objection or suggestion to the witnesses i,e, Moharrir and relevant constable that they have made any tempering with the parcels. Also submitted that the motive asserted by the prosecution was proved as on special oath the same was decided against the appellant; that it is a broad day light occurrence and there is no mistaken of any identity. Lastly submitted that falsus in uno, falsus in omnibus is not applicable in this country as the role attributed to the co-accused is minor one whereas the role of the appellant is that he caused fatal injury to the deceased and that the witnesses were not having any motive to falsely implicate the appellant and that the medical evidence fully corroborated the ocular account as the doctor had categorically stated that Injury No, 1 was entry wound and Injury No, 2 was an exit wound.
7. We have heard the arguments of learned counsel for the parties at length and perused the record with their able assistance.
8. In this case, the motive put forward by the prosecution was that Irshad Ahmad appellant claimed a passage from the land of PW.8 Ghulam Murtaza and for that purpose, the appellant had filed a civil suit in the Civil. Court Burewala which was decided on 17.09.2003 against the appellant and in that context, the appellant had threatened Ghulam Murtaza that he will take the passage forcibly. The filing of the civil suit is admitted by the appellant. However, he claimed that as he had offered in the Court that if Aslam Jat took special oath in the Court on behalf of Ghulam Murtaza that there is no passage then the suit may be dismissed. The appellant also admitted that Aslam Jat took special oath in the Court. This fact indicates that actually the appellant was intended to get passage from the land of Ghulam Murtaza and the suit filed by him was dismissed just a day prior to the occurrence; hence the motive stood proved on the record.
The contention of the learned counsel for the appellant that first target should be Ghulam Murtaza is not helpful to the defence. It is mentioned in the FIR that the appellant alongwith his co-accused came at the place of occurrence and resorted to firing. It is mentioned in the FIR that Allah Ditta deceased restrained Ghulam Murtaza and Muhammad Jaffar complainant etc. to go ahead. He went himself to the assailants and made a request to the appellant to have a passage of their own choice, upon which, it was Mushtaq Ahmad who raised lalkara that Allah Ditta was helping Ghulam Murtaza in litigation whereupon the appellant made a straight fire shot on the deceased hitting on his chest. Although, the appellant had a motive against Ghulam Murtaza but as Allah Ditta deceased who is the cousin of said Ghulam Murtaza went ahead to stop the appellant, and his companions from quarrelling, then he was assaulted by the appellant and his companions. It has come in the evidence that the witnesses and Ghulam Murtaza were present at a distance of '98 feet from the place of occurrence and they had not gone ahead towards the appellant and only Allah Ditta went ahead to stop the appellant; hence the contention of the learned counsel for the appellant that the appellant had not fired upon Ghulam Murtaza is without any basis. Immediate cause of committing the murder of Allah Ditta was that he simply went ahead empty handed to stop the appellant for quarrelling, due to which, he was assaulted by the appellant and was done to death as he was supposed by the appellant to be the helper of his opponent Ghulam Murtaza.
At that time, the appellant was having grudge against the complainant party due to the dismissal of his civil suit just a day prior to the occurrence.
This occurrence took place at 5.00 p.m. and the matter was reported to the police within One hour and 15 minutes i,e, 6.15 p.m. However, the formal FIR was chalked out at 6.55 p.m. There was hardly any chance of consultation and deliberation. Promptitude of the FIR eliminates the chance of consultation and deliberation. The appellant is specifically nominated in the said FIR for causing fatal injury to the deceased with rifle. The names of the eye-witnesses are also mentioned therein.
Although, PW.7 Muhammad Jaffar is the brother of Allah Ditta deceased and PW.8 Ghulam Murtaza is the husband of sister of Allah Ditta deceased but these two witnesses had no motive to falsely implicate the appellant except the motive mentioned above. Mere relationship of these witnesses with the deceased does not make them interested and the defence could not point out any reason to falsely implicate the appellant. The complainant was having no dispute or enmity with the appellant. The appellant had filed a civil suit against Ghulam Murtaza which was decided in favour of Ghulam Murtaza and there remained nothing for Ghulam Murtaza to depose falsely against the appellant.
The ocular account furnished by these two witnesses is consistent on each and every important point. They are natural witnesses being residents of the same locality. They cannot be termed as a chance witnesses. The deceased and the complainant were sitting on the Dera of PW.8 Ghulam Murtaza which was just at a distance of 3% acres from the place of occurrence. On hearing the reports of fire shot, they went to the place of occurrence, so their presence at the spot could not be doubted. Even otherwise, the residents of the complainant is at a distance of 3 squares from the place of occurrence. They being residents of the same locality are most natural witnesses. It is not believable that they will substitute the appellant with someone else. It cannot be expected from the close relatives of the deceased that they will attribute the fatal injury by substituting the appellant with someone else, so we observe that the ocular account furnished by the prosecution is confidence inspiring and truthful and there is no reason on the record to disbelieve these witnesses.
PW.3 Dr. Masood Ahmad Rana conducted the post-mortem examination upon the dead body of Allah Ditta deceased. He found two fire-arm wounds on the person of the deceased, one on the left side of chest on front and the other on the back and lower part of left side of chest. He declared both the wounds to be a fire-arm and were ante mortem and caused the death in the ordinary course of nature. It is mentioned in the FIR that fire shot made by the appellant after hitting the chest of Allah Ditta went through and through. Although the firearm wound on the back of the deceased was measuring 2.5 cm x 1 cm whereas the fire shot on the front of chest was 2.5 cm 'x 1.5 cm. Although the measurement of the wound on the back is a bit smaller and the doctor had not categorically stated in his examination-in-chief that which wound was entry and which was exit wound but during cross-examination, he stated that most probably Injury No, 1 is the entry and not the exit wound, meaning thereby Injury No, 1 which was on the front of the chest was entry wound.
Thereafter, the defence had suggested that Injury No, 2 was an entry wound of Injury No, 1 but the doctor plainly refuted the said suggestion. So, the doctor during cross-examination confirmed that injury on the front of chest of deceased was an entry wound which made exit from the back of the chest. Medical evidence fully supported the ocular account qua the seat of injury and weapon used by the appellant. It is mentioned in the FIR that the deceased died at the spot after receiving the fire shot. The doctor confirmed this assertion mentioned in the FIR, as according to the doctor, duration between injury and death was. few minutes likewise, duration given by the doctor between death and post-mortem also confirmed the time of occurrence given in the FIR. In this case, medical evidence fully supported the ocular account furnished by PW.7 and PW.8.
The contention of the learned counsel for the appellant that the occurrence had not taken in a manner as claimed by the prosecution and actually the complainant party had attacked upon the appellant and there was cross firing is without any basis. Although, I.O. had admitted that during investigation, certain people appeared in the defence of the appellant and stated that actually the complainant party went to the place of occurrence while armed and there was cross firing and bullet hit the deceased. The statement of any person before the I.O. is inadmissible until and unless the said witnesses appeared in the Court and made statement to that effect. No such person was produced by the defence during the trial. So their statements before the police remained hearsay and are inadmissible in evidence. I.O. himself had not come to a positive conclusion that the complainant party had gone there armed and attacked upon the appellant party. Even otherwise, it is not believable that the complainant party alongwith many others while armed with deadly weapons went there but none from the defence side received a single scratch and one person died on the side of the complainant party. The story is absurd. The defence of the accused is bald one having no legs to stand upon. No one appeared during the trial to support this bald version of the defence.
As already discussed, the eye-witnesses i,e, PW.7 and PW.8 had no enmity with the appellant and they could not be termed as interested one; hence in that eventuality, there is no need for any corroboration to the said ocular account but in this case, motive asserted by the prosecution and the medical evidence fully supported/corroborated the ocular account.
The contention of the learned counsel for the appellant that the recovery of rifle is inconsequential is a legal contention. In this case, empty was recovered on 18.09.2003 but the same was not sent promptly. Although, it was sent to the concerned office on 03.10.2003 but the same was returned due to some objection. The prosecution could not explain that what objection was made by the office of FSL. Thereafter, on 6.10.2003 rifle was recovered from the appellant and both empties and rifle were sent to the office of FSL on 16.10.2003, meaning thereby that empty and the gun remained together in the Malkhana. In that eventuality, there is every possibility of tempering with the parcel of empty; hence the recovery of gun and the report of FSL is inconsequential.
The argument of learned counsel for the appellant that co-accused have been acquitted; hence the appellant is also liable to be acquitted is without force as the principle falsus in uno, falsus in omnibus is not applicable in this country. Even otherwise, role attributed to those co-accused is minor in nature of raising lalkara etc. they had not caused any injury to the deceased. There is no corroboration or supporting evidence to the role of the said accused persons. Whereas as already discussed above, ocular account furnished against the appellant is corroborated by the motive and the medical evidence.
So for the argument of the learned counsel for the appellant that there is mitigating circumstance as the appellant had not repeated the fire shot is concerned, suffice it to say that in the FIR, the weapon used by the appellant and the seat of injury is quite indicative the intention of the appellant for causing death of the deceased. The bullet fired by the appellant perforated thorax cavity fractured 4th and 5th rib. Pleura was also fractured. Left lung was perforated. Heart was injured and arteries were damaged. The damaged caused try the fire shot to the deceased is sufficient to infer that the appellant had no other intention but to commit the murder of the. deceased who died then and there after receiving fire shot and there is no mitigating circumstance in this case.
9. After deep re-appraisal of the evidence, we are convinced that the prosecution has successfully established its case, therefore, we do not find any reason to interfere in the conviction and sentence recorded against the appellant. Therefore, Crl. Appeal No, 142 of 2005 filed by the appellant is dismissed. His conviction and sentence recorded by the learned trial Court is maintained. The death sentence of Irshad Ahmad appellant is confirmed.
10.Murder Reference is answered in the affirmative.
11.As already discussed, the role attributed to the co-accused is minor of raising lalkara, although, they were allegedly armed with deadly weapons, they did not cause any injury to the deceased or any of the PW, no recovery of weapon was effected from them. If they were sharing any common intention with the appellant, they should have definitely used the weapon of offence and the learned trial Court had rightly extended the benefit of doubt to them.
In view of the above discussion, Crl. Appeal No, 211 of 2005 against the acquittal of remaining accused is also dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.