SH. NAJAM-UL-HASAN, J. Muhammad Ijaz, Muhammad Latif and Ahmad Khan, appellants along with Muhammad Sher alias Lal, Muhammad Zubair, Ahmad Khan, Gulsher, Zafar Iqbal, Tasawar Hussain, co-accused were tried by the learned Additional Sessions Judge, Sargodha in case F.I.R.
No,240 dated 18-6-2004 for the offences under sections. 302, 324, 148 and 149, P.P.C. registered at Police Station Jhal Chakian District Sargodha. At the conclusion of trial, the learned trial Court vide judgment dated 31-5-2005 acquitted co-accused and convicted and sentenced the appellants as under:-- MUHAMMAD IJAZ.
Under section 302(b), P.P.C. Sentenced to death. He was directed to pay Rs,2,00,000 to legal heirs of the deceased as compensation under, section 544-A, Cr.P.C. or in default thereof to suffer three years' S.I.
AHMAD KHAN.
Under section 302(b), P.P.C.
Sentenced to suffer life imprisonment. He was also directed to pay Rs,1,00,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. or in default thereof to suffer two years' R.I.
MUHAMMAD LATIF.
Under section 336, P.P.C. Sentenced to suffer rigorous imprisonment for ten years and Daman of Rs,1,00,000. In default of payment of Daman to further undergo two years' S.I.
2. Feeling aggrieved by the impugned conviction and sentences, the appellants have filed Criminal Appeal No,1092 of 2005 whereas the learned trial. Court has approached this Court by way of Murder Reference No,338 of 2005 seeking confirmation of death sentence awarded to Muhammad Ijaz, convict. The complainant has filed Criminal Revision No,621 of 2005 for enhancement of sentence awarded to Ahmad Khan, convict/appellant. All these interconnected matters are being disposed of together through this single judgment.
3. The prosecution story as unfolded in the F.I.R. (Ex.PP) was that on 18-6-2004 at about 7-00 p.m.
Muhammad Ashraf, complainant along with Ghulam Mustafa, Muhammad Khan, Ahmad Khan son of Gul Muhammad and Muhammad Saqlain were unloading clay in his courtyard from a cart.
Suddenly Ahmad Khan son of Allah Yar, Muhammad Latif, Muhammad Ijaz, appellants and Muhammad Zubair co-accused, all armed with .12 bore guns emerged on the roof of his house, whereas, Muhammad Sher alias Lal, co-accused armed with .12 bore gun, Gulsher Zafar Baloch and Bandyal, co-accused, all armed with rotas came towards his house from the northern side and raised lalkara that they would teach a lesson for blocking the drain of street by filling the same with clay. Thereafter, Muhammad Latif, appellant fired with his gun which hit Ahmad Khan brother on the left thigh who fell down. Ijaz, appellant fired with his gun at Muhammad Khan which hit on his left shoulder. Then Ahmad Khan alias Fouji fired with, his gun at Muhammad Khan which hit on his mouth who fell down and succumbed to the injuries at the spot. Ahmad Khan was taken to the hospital in injured condition.
The motive behind the occurrence was that the complainant party put clay in the street which resulted into blockage of drain of Gulsher etc. for which the accused party became annoyed and committed this occurrence.
4. On 19-4-2004 Muhammad Sarfaraz Student DPM-PGMI (P.W.6) performed autopsy on the dead body of Muhammad Khan and observed a firearm wound of entry 5 cm x 3 cm on top of left shoulder 8 cm from neck and 7 cm above from arm pit. Margins of wound were inverted, wound was oval in shape, blackening was present around wound. Blood was coining out from mouth and nose.
The doctor opined that death had accrued due to Injury No,1 which damaged big vessels of left arm and left lung leading to cardiopulmonary arrest which was sufficient to cause death of a person in ordinary course of nature. Probable time between injuries and death was within 1/2 hours and probable time between death and post mortem was within 9 hours.
5. On 18-6-2004, Dr. Zafar Iqbal (P.W.13) medically examined Ahmad Khan PW.9 and found the following injuries:--
(i) Seven fire arm wounds of entry each circular in shape by one cm in size margins inverted and irregular. On front of left thigh at junction of lower 1/3 and upper 2/3. Corresponding holes were present on shift and Chaddar.
(ii) Three gun shots wounds of exit at' the level of wounds of entry, each one cm with margin irregular and averted, circular in shape. Corresponding holes present on the Chaddar and Shirt.
Injuries were caused by fire arm weapons within six hours of examination. Injuries were declared as Ghayr jaifah Munaqqilah after going through operation notes.
6. After registration of F.I.R. on the day of occurrence Muhammad Ramzan, Sub-Inspector / Investigating Officer (P.W.12) inspected the spot and conducted formal investigation. On 30-7-2004 he arrested Ahmad. Khan, Muhammad Ijaz, Muhammad Latif, appellants, Muhammad Zubair and Muhammad Sher alias Lal, co-accused. On 8-8-2004 Muhammad Ijaz, Ahmad Khan and Muhammad Latif, appellants while in custody led to the recoveries of .12 bore guns (P-4, P.6 and P.10) which were taken into possession vide recovery memos. (Exh.PG, Exh.PH and Exh.PK) respectively. On the same day, Muhammad Zubair, co-accused also led to the recovery of .12 bore gun (P.9) which was taken into possession vide recovery memo. (Exh.PJ). After the completion of investigation, he challaned the accused to Court to face trial.
7. At trial charge was framed against the accused persons to which they pleaded not guilty and claimed to be tried. After framing of charge, the prosecution produced as many as 14 witnesses to prove the charge against the accused persons. Out of them Ahmed Khan P.W.9, Muhammad Ashraf P.W.10 and Muhammad Saglain P.W.l1 provided ocular account whereas Dr. Zafar Iqbal P.W.13 and Dr. Muhammad Ameen Cheema P.W.14 provided medical evidence. Muhammad Ramzan, Sub-Inspector proved his investigation.
8. After the prosecution evidence the appellants were examined under section 342, Cr.P.C. They denied and dismissed each piece of prosecution evidence and pleaded their false implication by the police to show efficiency.
9. At the end of trial, the learned trial Court convicted and sentenced the appellants as noted above.
10.Learned counsel for the appellants contends that the P.Ws. are closely related and no independent witness was produced; that eight persons were nominated in the F.I.R. with specific roles but only two fire arm injuries were found by the doctor on the person of the deceased. This situation leads to only one inference that the complainant has tried to widen the net to involve maximum number of accused; that the number of accused have been exaggerated; that after trial most of the accused have been acquitted by the learned trial; that appeal against acquittal of Gulsher and Muhammad Zubair, co-accused was filed and the same was dismissed by this court whereas acquittal earned by remaining accused was not even challenged; that specific injury on the face of the , deceased was attributed to Ahmed Khan, appellant but no such injury was found by the doctor who conducted the postmortem examination on the body of the deceased and this fact shows that the eye-witnesses were not present at the spot. By referring to postmortem report learned counsel contends that the ocular account is belied by the medical evidence. He argues that prosecution story is that fire on the shoulder of the deceased was made by Ijaz, appellant while standing on the roof whereas the doctor during postmortem examination recovered a plastic wad underneath the injury and also observed blackening around the wound meaning thereby that the injury had been caused from a distance of less than four feet such a circumstance belies the prosecution case; that no empty was recovered from the place of occurrence and such a circumstance leads to one inference that the occurrence has taken place in other way; that Muhammad Saleem, draftsman (P.W.4) admitted that witnesses did not inform him about the place from-where Ijaz, appellant had fired at the deceased; that Latif, appellant was attributed injury on the left thigh of Ahmed Khan P.W. He was not convicted under section 302 P.P.C. and was only convicted under section 336, P.P.C. and sentenced to 10-years' RI. Learned counsel contends that there is no evidence to indicate that the injured was permanently incapacitated because of this injury as such his conviction under section 336, P.P.C. is not maintainable; that remaining accused nominated in the F.I.R. were acquitted by the learned trial Court and evidence of the eye- witnesses qua involvement of these accused has been found false as such the appellants cannot be convicted while relying on the statements of the said witnesses who have been found false by the Court. Learned counsel further contends that motive has not been proved by the prosecution as at one stage, it was alleged that clay was spread in the street whereas it has come in evidence that clay was spread inside the courtyard; that such improvement has been made just to make the case in line with the prosecution version. Such improvement is dishonest and the same makes the whole prosecution evidence not worth reliance and as such the appellants are entitled to clean acquittal.
11. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant stated that there was no independent street and the street in front of the house was part of the courtyard; that deceased received injuries out side the room; that fire was made from the roof but height of the roof has not been shown on record; that so far, as injury attributed to Muhammad Ijaz, appellant is concerned, it is contended that the injury present on the person of the deceased was described by the doctor to be of oval shape and it was having direction from up downwards which corroborates the ocular account; that version of the appellant is in form of cross-version but nothing has been brought on record in this respect and in absence of any record the arguments of learned counsel for the appellants is not sustainable; that even the Investigating Officer while appearing in the witness box has stated that there was no cross-version brought on record by any person or inhabitants of the area; that there was an injury on the person of the deceased on his face but the same has been concealed; that so far as Ijaz, appellant is concerned, he was named in the F.I.R. and specific role of firing on the deceased is attributed to him the said injury was found present by the doctor who conducted the postmortem examination; that Muhammad Ijaz, appellant is a man of 25 years of age, he has all the intention to kill the deceased and as such he is not entitled to any exception.
12. We have heard the arguments of learned counsel for the parties and have also gone through the record.
13. The occurrence took place inside the house of the Muhammad Khan, deceased at 7-00 p.m. in the month of June, 2004 in which Muhammad Khan, deceased received injuries and died at the spot whereas Ahmed Khan (P.W.9) received a fire ,arm injury on his left thigh. Eight persons were nominated in the F.I.R. as accused persons and out of them three were assigned specific role of firing at the deceased and injured P.W. The injury on the left shoulder of the deceased was specifically attributed to Muhammad Ijaz, appellant whereas Ahmad Khan, appellant was assigned the role of firing with his .12 bore gun on the face of the deceased. Muhammad Latif, appellant was assigned the role of tiring with his .12 bore gun at Ahmad Khan injured P.W. on his left thigh. No overt act was attributed to any of the remaining accused. At trial, Muhammad Ashraf, complainant (P.W.10), Ahmad Khan injured (P.W.9) and one Muhammad Saqlain (P.W.11.) appeared as eye witnesses to state ocular account. All these three witnesses remained consistent while appearing in the Court and assigned the same role to all the three appellants as mentioned in the F.I.R. by the complainant.
14. Postmortem report of the deceased indicates that there was only one fire arm injury present on the left shoulder of the deceased. The doctor also observed blackening around the same injury which was of oval shape. Pieces of Wad were recovered underneath the injury. Such a circumstance clearly shows that fire on the deceased had been made from a very close range. The doctor also observed that dimension of injury indicates that the fire was made from up-downward meaning thereby that the fire was not made while the assailant was standing in front of the deceased because in that event the wound would have been circular. So far as Ahmad. Khan, appellant is concerned, it is clear that the injury on the face of the deceased attributed to him was not found by the doctor who conducted post mortem on the body of the deceased. The doctor, however, observed bleeding oozing from nose of the deceased. Although in the inquest report it is mentioned that the deceased was having two injuries one on the shoulder and the other on his face but the doctor categorically denied existence of any injury on the face of the deceased.
Muhammad Latif, appellant was assigned the role of making a fire on Ahmad Khan injured P.W. which landed on his left thigh. As per medico-legal-report of the injured P.W. Seven similar circular wounds were found on his left thigh- which shows that the fire was made from a distance and was the result of a gun shot.
15. The appellants were arrested on 30-7-2004. They made disclosure and got recovered .12 bore gun on 8-8-2004. Muhammad Ramzan, Sub-Inspector/ Investigating Officer inspected the spot on the very day of occurrence and collected block stained earth from the place where the deceased had received injury but no crime empty was found there. It was the claim of prosecution that guns were recovered from the appellants but the same were not sent to the Fire Arms Expert to verify whether the same were in working conditions or not. Thus, recoveries of guns from the appellants are of no help to the prosecution. The same cannot be considered as sufficient corroboration to the ocular. account.
16. As regards motive, it was stated that the accused party took it ill as to why deceased had blocked the drain by throwing clay. In the F.I.R. it was alleged that clay was spread in the street.
However, at trial the witnesses have stated that clay was thrown in the courtyard. We have seen the site plan prepared by the draftsman. The street leading to the house of the deceased is a blind alley and ends at his house as such it was not in use of public and was in exclusive use of the deceased so the same can be treated as part of the house of the deceased. It has come on record that there was no previous dispute between the parties and the situation got aggravated at the time when the clay was being thrown, hence, this is not a case in which any proper planning was made to commit the occurrence. Therefore, it can be said that the occurrence started suddenly because of the situation which arose when clay was thrown. The motive alleged by the prosecution was not of such nature which could lead to infer that the appellants I had earlier planned to commit this occurrence.
17. As mentioned above, the injury assigned to Ahmad Khan, appellant was not found by the doctor on the body of the deceased. The only fire arm injury is attributed to Muhammad Ijaz, appellant.
Similarly the fire arm injury on the left thigh of Ahmad Khan, injured P.W. is specifically attributed to Muhammad Latif, appellant. In these circumstances, ocular account to the extent of Ahmad Khan, appellant is contradicted by the medical evidence. The complainant has implicated eight persons whereas the deceased and the injured P.W. received only one fire arm injury each. This leads to only one inference that the complainant side has widened the net to involve the Maximum number of persons. Remaining five accused persons were acquitted by the learned trial Court as no specific injury to the deceased or the injured was attributed to any of them. The complainant filed an appeal against the acquittal of Gulsher and Zubair, co-accused but the same was dismissed by this Court so the matter regarding the acquittal of ' the five co-accused has attained finality meaning thereby that what was deposed by the witnesses was not the whole truth: This being the situation the Court which decides the matters involving capital punishment should be more than careful while analyzing and evaluating worth of evidence of such witnesses. While examining the evidence of the prosecution it can be said with certainty that the prosecution has failed to prove its case against Ahmad Khan, appellant and as such he is entitled to clean acquittal. The conviction and sentence of Ahmad Khan appellant is set-aside and he is acquitted of the charge. He shall be set at liberty forthwith if not required to be detained in any other case. Resultantly Criminal Appeal No, 1092 of 2005 to the extent of Ahmad Khan, appellant is accepted. Since, he is acquitted, his surety stands discharged from the liability of bail bonds.
18. As discussed above, Muhammad Latif, appellant was convicted only for causing injury to Ahmad Khan injured P.W. He was attributed to have caused one fire arm injury on the thigh of the injured P.W. The injured was taken to the hospital and was operated upon. The doctor P.W.14 who operated the injured was Orthopedic Surgeon who observed a fracture in the femur which was managed and was stabilized with interlock nail. It is clear that femur of the injured was fractured because of the injuries inflicted by Muhammad Latif, appellant. The doctor declared the injury to be one falling under section 337-F(vi), P.P.C. There is nothing on record to show that after receiving the injury the injured has become permanent incapacitated of revascularization of limb. In the absence of such evidence conviction of appellant under section 336, P.P.C. is not maintainable. So the allegation against Muhammad Latif, appellant can be said to have been proved only to the extent of causing injury to Ahmad Khan, P.W.9 and he can be convicted in the given circumstance under section 337-F(vi), P.P.C. His conviction under section 336 P.P.C. is not sustainable and the same is set aside and instead he is convicted for an offence under section 337-F (vi), P.P.C. and sentenced to suffer five years R.I. and Daman of Rs,50,000 payable by him to the injured within the period of six months. If Daman is not paid in accordance with law within prescribed time the appellant shall be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment till recovery of total amount of Daman. Benefit of section 382-B, Cr.P.C. is also granted to him. Muhammad Latif, appellant is on bail, he be taken into custody to serve out his remaining sentence if any.
19. So far as, Muhammad Ijaz, appellant is concerned, he fired a shot with his .12 bore gun which hit the deceased on his shoulder. This fire was made from a close range. Nothing has been brought on record to indicate the height of the roof where Muhammad Ijaz, appellant was standing at the time of occurrence. The site plan indicates that the deceased was standing just near the place where Muhammad Ijaz, appellant was standing on the roof. So to his extent ocular account is corroborated by the medical evidence and as specific injury to the deceased was assigned to him and the same was on the vital part of the body of the deceased and the fire was made from a close range. knowing well that such a fire could cause death of the deceased, therefore, involvement of Muhammad Ijaz, appellant in the occurrence is more than established beyond any doubt. He was armed with .12 bore gun which was recovered from him and recovery of pallet and wad underneath the injury also corroborates the ocular account. The prosecution has proved its case to the extent of Muhammad Ijaz, appellant from the ocular account, motive, recovery and even from the medical evidence. In these circumstances, we do not find any reason to differ with the findings of learned trial Court to the extent of Muhammad Ijaz, appellant regarding his conviction.
20. This leads us to the quantum of sentence. The prosecution has involved so many persons for only two injuries on the deceased and the injured P.W. which shows their intention to involve maximum number of people. Only single fire to the deceased was attributed to Muhammad Ijaz, appellant. He has not repeated the same. It has been held by the Hon'ble Supreme Court in case reported as Muhammad Arshad and 2 others v. The State (PLD 1996 Supreme Court 122) that a single fire can be considered as extenuating circumstance for awarding the lesser sentence. As the occurrence has taken place at spur of moment so such a circumstance provides some exception to the appellant. The occurrence started on the lalkara of elders even according to the prosecution case. In our society the instructions of the senior have got much importance. It has been held by the Hon'ble Supreme Court in case reported as Faqir Hussain v. The State (2003 SCM R 1565) that if the murder is committed under the influence of the elders then the appellant is entitled to lesser penalty. So keeping in view special circumstances of this case and as there are two sentences provided under section .302(b), Cr.P.C. the appellant has made out a case of mitigation in sentence. We are of the view that. Muhammad Ijaz, appellant is entitled to some exception. We, therefore, hold that the extreme penalty of death awarded to him was not called for in the present case and the lesser sentence of life imprisonment would meet the ends of justice. Consequently, while upholding the conviction of Muhammad Ijaz, appellant under section 302(b), P.P.C., we convert the sentence of the appellant to imprisonment for life with the benefit of section 382-B, Cr.P.C. However, the appellant shall pay Rs,1,00,000 as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased. In default of payment of compensation he will have to suffer six months S.I. With this modification, Criminal Appeal No,1092 of 2005 to the extent of Muhammad Ijaz and Muhammad Latif, appellants stands dismissed and to the extent of Ahmad Khan, appellant is accepted as noted above.
21. Resultantly, death sentence awarded to Muhammad Ijaz, appellant is not confirmed and Murder Reference No,338 of 2006 is answered in the Negative.
22.Since Ahmad Khan, appellant has been acquitted, as such there is no question of enhancement of his sentence Criminal Revision No,621 of 2005 is therefore dismissed.