Ahmad All Shah (80), Muhammad Hussain Shah (42), Ghulam Abbas Shah (45), sons of aforementioned Ahmad Ali Shah and Amjad All Shah (16) son of Ghulam Abbas Shah, residents of village Hussain Shah, were tried by the learned Additional Sessions Judge, Sargodha, under sections 302 and 307 read with section 34, P.P.C. On the allegation that on 7th July, 1979 at 1 p.m.
They committed the murder of Fajar All deceased and made murderous assault on Sher Muhammad and Muhammad Yaqub P.Ws. In the area of village Hussain Shah, in furtherance of their common intention. By judgment, dated 8th December, 1980 they were convicted on the said charges. Under section 302/34, P.P.C. They were sentenced to imprisonment for life and a fine of Rs,5,000 each or in default of its payment to suffer simple imprisonment for three months each. The fine, if realized, was ordered to be paid to the heirs of the deceased as compensation. Under section 307/34, P.P.C. They were sentenced to rigorous imprisonment for seven years each. The sentences on both the charges were, however, ordered to run concurrently. The convicts have appealed and the complainant has filed Criminal Revision No, 153 of 1981 for enhancement of sentence. Both these matters shall be disposed of by this judgment.
2. The F.I.R. Version of the occurrence is that on 7th July, 1979 Ziledar complainant visited village Hussain Shah in order to look after the crops of his sister. On the same day at 8/9 a.m. His co- villager Fajar All deceased also came to village Hussain Shah in the company of Muhammad Yaqub, Sher Muhammad and Muhammad Irshad P.Ws. To see his sugarcane crop situate at Chah Panniwala. The complainant joined them at village Hussain Shah and then all of them went to Chah Panniwala. At about 1 p.m. All of them started back for village Hussain Shah and when they reached near the land of one Zakir, the accused, namely, Ghulam Abbas Shah armed with a .12 bore gun, Muhammad Hussain Shah and Ahmad All armed with Dangs and Amjad Ali Shah with a knife suddenly emerged from the sugarcane field. Ghulam Abbas Shah raised a Lalkara that Fajar Ali would not be allowed to go alive that day and simultaneously fired a shot hitting the left upper arm of Fajar All deceased. He fired another shot hitting Fajar All in the chest and right arm, as a result of which he fell to the ground. Muhammad Hussain Shah and Ahmad Ali Shah gave one Dang blow each to Sher Muhammad P.W. Muhammad Yaqub P.W. Stepped forward, upon which Amjad Ali Shah gave a knife blow in his chest. Sher Muhammad P.W. Snatched the Dang from Ahmad Ali Shah and gave a blow on the head of Ghulam Abbas Shah. Fajar All succumbed to his injuries at the spot.
' Motive alleged by the prosecution was that two years prior to the occurrence Fajar Ali deceased got his tenants evicted from his land. Ghulam Abbas Shah accused obstructed the ejectment process and disliked the presence of the deceased in the village.
' Leaving the dead body in the custody of the aforementioned P.WG., Ziledar complainant went to Police Station Sadar Shahpur and reported the occurrence to Manzur Ahmad, Sub-Inspector, at 3 p.m. Vide F.I.R. Exh.P.R.
3. After recording the F.I.R., Manzur Ahmad, Sub-Inspector, reached the spot. He prepared the injury statement (Exh.P.S.) and inquest report (Exh.P.T.) of the dead body and despatched it to the mortuary for post-mortem examination. He took some blood-stained earth into his possession from the spot and made it into a sealed parcel vide memo. Exh.P.H. He also took into his possession two crime empties (Exh.P.14/1-2) and made them into a sealed parcel vide memo. Exh.P.J. On 11th July, 1979 he arrested Ghulam Abbas Shah and Amjad All Shah accused from the bridge of Rajbah situate near the Abadi of village Hussain Shah. Ghulam Abbas Shah was holding .12 bore gun (Exh.P.5) and bag (Exh.P.6) containing five live cartridges and the licence of the gun. He took all these articles into his possession vide memo. Exh.P.L. The gun was made into a sealed parcel. He also recovered blood-stained knife (Exh.P.9) from the personal search of Amjad All Shah accused and made the knife into a sealed parcel vide memo. Exh.P.M. On the same day Ahmad Ali Shah and Muhammad Hussain Shah accused appeared before the Sub-Inspector and produced Lathisi Exh.P.10 and Exh.P.11 which were taken into possession vide memos. Exh.P.N. And Exh.P.O.
Respectively. After the investigation, the accused persons were challenged.
4. On 7th July, 1979 at 3-30 p.m. Dr. Ghulam Haider Shah, Medical Officer, Civil Hospital, Shahpur Sadar, examined Muhammad Yaqub P.W. And found an incised wound 1" x 1" x chest deep on the upper part of right chest. Air was coming out of it with respiration. There was air in the surrounding subcutaneous tissues. There was blood in the sputum. The injury was caused by a sharp-edged weapon within three hours and was dangerous to life.
' On 8th July, 1979 at 9-15 a.m. The same doctor medically examined Sher Muhammad P.W. He found a lacerated wound 1" x 3/4" x scalp deep on the right parietal region of the head and contusion 2" x 3/4" on the back of right forearm. Both the injuries were simple in nature caused by blunt weapon within 24 houRs, ' On the same day, the same doctor performed the post-mortem examination on the dead body - of Fajar All deceased and found the following injuries on it:-
(1) A fire-arm wound circular in shape with inverted and blackened edges 1" in circumference, present in the right side of chest, inner/upper part.
(2) A fire-arm wound 1" in circumference with inverted and blackened edges on the anterior middle part of right upper arm. It was a wound of entrance, a lacerated wound 1" in circumference, circular in shape on the outer middle of the back of right upper arm. This was a wound of exit.
(3) A lacerated wound 11" x 1" x 1" on the upper outer part of the back of right forearm.
(4) A fire-arm wound 1" in diameter on the back of left little finger. It was a wound of entrance, with a lacerated wound 1" in diameter on the tip of the left little finger. This was a wound of exit.
' In the opinion of the doctor, death was due to shock and hemorrhage resulting from injury to the right lung and heart under injury No, 1, which was sufficient to cause death in the ordinary course of nature. Injuries Nos. 1, 2 and 4 were caused by fire-arm and No, 3 by blunt weapon.
' On 12th July, 1979 the same doctor examined Ghulam Abbas Shah accused and found the following injuries on his person:-
(1) An abrasion 1/3" x t" on left parietal region of head.
(2) A contusion 3" x 11" on the upper part of left side of back.
(3) A contusion 31" x 11" on the upper part of right side of back.
(4) A contusion 2" x 11" on the middle of left side of back.
(5) A contusion 31" x 11" on the back of right forearm.
(6) A contusion 3" x 2" on the outer lower part of left side of abdomen.
(7) A contusion 8" x 4" on the right buttock.
(8) A swelling i" x 4" on the back of right middle finger.
(9) A contusion i" on the inner aspect of right knee joint.
' All the injuries were simple in nature caused by blunt weapon within a duration of five to six days.
5. In support of its case the prosecution examined three eye- witnesses, namely, Ziledar, Muhammad Yaqub and Sher Muhammad, and it also relied on the evidence relating to recoveries and the report of fire-arms expert according to which the crime empties recovered from the spot, had been fired from the gun recovered from Ghulam Abbas Shah accused.
6. The accused persons pleaded not guilty to the charge. Ghulam Abbas Shah accused when asked to explain his injuries, stated: "The complainant party was the aggressor. They attacked and injured me." He admitted that gun P.5, bag P.6 containing cartridges P.7/1-5 and licence P.8 belonged to him, but added that he had produced all these articles at the police station on 7-7- 1979 soon after the occurrence. When asked to explain why this case against him, he made the following statement: - "Fajar All deceased was inimical towards me and my family members because pre-emption suit instituted by my father against Bashir P.W. a partisan of the deceased was decreed in favour of my father. Moreover, I had helped Muhammad Hayat, Bus Driver against Bashir Ahmad P.W. By taking him to the police station and submitting an application against Bashir P.W. And Aslam and Akram and in those proceedings Fajar Ali deceased was helping Bashir P.W. And had got annoyed with me for my help to the said driver. On the day of occurrence Fajar Ali deceased, Yaqoob and Sher Muhammad P.W. Accompanied by Sardar Shah, Gul Shah, Amir Shah who are my enemies were going to my house in the village Abadi to attack me when on the way I happen to come across them by chance on my way to our land. They attacked and injured me. I used the Butt of my gun in defending myself but even then the aforementioned persons continued causing injuries to me including injuries on my head and in desperation I fired one shot at random to save myself. I immediately went to the police station and reported the matter to S.I. Manzoor Ahmad. But he was related to the complainant party and, therefore, he distorted the facts and after summoning Ziledar P.W. From his village registered a false case against us. The S.I. Got me medically examined after 4/5 days so that the marks of numerous injuries on my person may disappear."
' He examined Muhammad Sadiq, S.D.P.O., Shahpur, in defence who stated that he re-investigated the case under the orders of the I.-G. Police, Punjab, and submitted the final report to him after completing re-investigation. He further stated that he recorded the result of his investigation in the case diary as well as in his report to the I.-G. A question put to the witness about the result of re- investigation was, however, disallowed on the ground that it appeared "to be concerning the opinion" of the Investigating Officer.
' Amjad All accused stated that in fact his younger brother Saglain had given a knife blow to Yaqub P.W. To save Ghulam Abbas Shah but as he was a minor, the complainant party falsely implicated him in this case.
' Muhammad Hussain Shah and Ahmad Ali Shah stated that at the time of occurrence they were planting paddy in their field and were falsely implicated due to enmity.
7. The learned trial Judge accepted the prosecution evidence and convicted and sentenced the appellants as mentioned above.
8. The learned counsel for the appellants submitted that during the investigation the plea put forward by Ghulam Abbas appellant was found correct but a question put to the Investigating Officer to that effect was disallowed and the accused were prejudiced. The contention is without any substance. Muhammad Sadiq, Inspector Police, appearing as D.W.1 stated that under orders of the 1.-G. Police he re-investigated this case from 13th May, 1980 to 16th May, 1980 and submitted his final report to the I.-G. After completing the re-investigation. It appears that a question was put to him about the result of re-investigation but the same was disallowed on the ground that the opinion of the police officer is inadmissible. The view taken by the learned trial Judge is not open to exception. The opinion of D.W.1 regarding correctness of the plea of Ghulam Abbas appellant, if any, was not admissible in evidence.
9. The learned counsel next contended that the presence of Ziledar complainant at the spot is not established the defence plea is plausible and the prosecution version, that Ghulam Abbas appellant fired second shot (after reloading the single barrel gun) while sitting in ambush, does not ring true because in a situation like that no unarmed person could go near him to cause him injuries. He further argued that the broken Butt of the gun and the blackening around the fire-arm wounds of the deceased were indicative of the fact that the complainant party had come very close to Ghulam Abbas appellant so as to hit him with Lathis and during the course he firstly used the Butt of gun and then fired a solitary shot to defend himself.
10. At the trial Ziledar (P.W.10), Muhammad Yaqub (P.W.11) and Sher Muhammad (P.W.12) supported the prosecution version of the occurrence. Sher Muhammad P.W. Is the first-cousin of the deceased. Ziledar P.W. Is from his brotherhood and Muhammad Yaqub P.W. Is nephew of aforesaid Ziledar. The occurrence took place in the area of village Hussain Shah. The aforementioned three eye-witnesses are residents of village Dholer situated at a distance of one mile from village Hussain Shah. Ziledar P.W. Stated that he used to manage the land of his sister Mst. Naziran in village Hussain Shah and he saw the occurrence when he was coming towards village Hussain Shah from Chah Panniwala in the company of Fajar All deceased, Muhammad Irshad P.W. (not produced), Muhammad Yaqub and Sher Muhammad P.Ws. In cross-examination he stated that Fajar All and his companions were present at Chah Panniwala and he met them there on returning from the land of his sister. He denied having stated in the F.I.R. That on the day of occurrence Fajar All deceased and his companions took him along from village Hussain Shah to the land situated at Chah Panniwala. He was confronted with the F.I.R. Where it was so recorded. Thus, he made divergent statements regarding the place where he joined the deceased and his companions. He admitted that Ramzan Khan is the husband of his sister Mat. Naziran and she has also a grown up son, namely, Yunus. In his statement before the police (copy Exh. D.A.) with which he was duly confronted he had stated that his brother-in-law and nephew used to get Batai from the tenants.
In the presence of the husband and son of Mst. Naziran there was no occasion for the complainant who is a resident of village Droller to manage or look after her lands situated in village Hussain Shah. Thus, the explanation given by the complainant for his presence at the spot is unconvincing and in A that view of the matter his evidence is kept out of consideration.
11. Muhammad Yaqub and Sher Muhammad P.Ws. Had injuries on their persons and their presence is admitted even by Ghulam Abbas B appellant. The gist of their evidence is that on the fateful day they along with Fajar Ali deceased and Irshad (not produced) went to village Hussain Shah to look after the land. At about 12 noon they started back and when they reached near Chah Panniwala, Ziledar P.W. Also joined them. From there they started for village Dholer and when they reached near the land of one Zakir, Ghulam Abbas armed with gun, Amjad All armed with knife, Ahmad Ali and Muhammad Hussain armed with Lathis emerged from the sugarcane field of aforementioned Zakir. Ghulam Abbas appellant fired two shots at Fajar All deceased hitting his right shoulder and chest, as a result of which he fell down. Muhammad Hussain Shah and Ahmad Ali Shah accused gave one Lathi blow each to Sher Muhammad P.W. Muhammad Yaqub P.W. Stepped forward, upon which Amjad Ali Shah accused gave him a knife blow. Sher Muhammad P.W. Snatched the Dang from Ahmad Ali accused and gave blows to Ghulam Abbas accused.
' As against this, the defence put forward by Ghulam Abbas appellant is that on the fateful day Fajar Ali deceased, Muhammad Yaqub and Sher Muhammad P.Ws., Sardar Shah, Gul Shah and Amir Shah were going to his house in the village Abadi to attack him but he came across them by chance while on way to his land. They attacked him and he used the Butt of his gun to defend himself but they continued causing injuries to him, upon which he fired only one shot at random to save himself.
12. Having junta-posed both the versions, I feel inclined to the view that prosecution version is plausible and there is no possibility of defence plea being true. The deceased had four injuries, out of which injury No, 3 was the result of blunt weapon and the rest were caused by fire-arm. Injury No, 1 was on the right side of chest and No, 2 on the interior middle part of right upper arm. Both these injuries had blackening around them and the doctor stated that these could be caused by a single shot. The blackening indicates that these injuries were the result of a shot fired from a close range.
Injury No, 4 was on the back of the left little finger with a lacerated wound of exit on its tip. There is no mention of any blackening around this injury which indicates that it was the result of a separate shot fired from some distance. The above view finds further support from the fact that two crime empties were recovered from the spot and both matched with the gun subsequently recovered from Ghulam Abbas appellant. The recovery of crime-empties and the gun are supported by Abdul Wahid, P.W.9. He is an independent and disinterested witness. No enmity or ill-will was suggested to him. The empties were recovered on 7th July 1979 and were deposited in the Malkhana on the same day. The parcel containing empties was delivered to the Forensic Science Laboratory on 9th July, 1979. The gun was recovered from Ghulam Abbas on 11-7-1979 and was delivered at the laboratory on 15-7-1979. In the circumstances, the prosecution version that Ghulam Abbas appellant fired two shots, rings true. The presence of blackening on two wounds and its absence on injury No, 4 further indicates that one shot was fired from close range and the other from some distance.
' The argument of the learned defence counsel that the complainant party injured Ghulam Abbas appellant with Lathis and he firstly used the Butt of gun and then fired a solitary shot, does not fit in with the aforementioned circumstances. The injuries on the person of Ghulam Abbas appellant who was armed with a gun, would suggest that probably he suffered the said injuries after he had exhausted the cartridges available with him.
' Moreover, Ghulam Abbas appellant has not explained the sharp weapon injury on the person of Muhammad Yaqub which was of a very serious nature. It was, however, suggested to the eye- witnesses that in fact Saqlain Shah, minor son of Ghulam Abbas accused, had given a knife blow to Muhammad Yaqub P.W. And since he was a minor, his elder brother Amjad Ali Shah was substituted. If Saqlain Shah had been the author of aforesaid injury, there was no earthly reason for the eye-witnesses to spare him and substitute his brother Amjad All Shah.
13. The nature of injuries on the deceased and the injured P.Ws. Unmistakably shows that three types of weapons, i.e,, fire-arm, blunt and sharp weapons, were used during the occurrence.
Ghulam Abbas, Amjad All Shah and Muhammad Hussain Shah were armed with a gun, knife and Lathi, respectively, and their participation in the occurrence is fully established. However, so far as Ahmad All accused is concerned, the complainant admitted that he is 75/80 years of age. He was not in a position to render any help to his co-accused and was rat a liability. The total number of blunt weapon injuries on the complainant side was three which could be caused by Muhammad Hussain accused alone.
14. Having given my careful consideration to the arguments addressed by the learned counsel for the parties, I am of the view that Ghulam Abbas Shah, Muhammad Hussain Shah and Amjad Ali Shah appellants were rightly convicted and their conviction is maintained. The learned counsel for the complainant conceded that the motive alleged by the prosecution is of a petty nature and the real motive is shrouded o mystery. In the circumstances, the sentence awarded by the trial Court to the aforesaid appellants is appropriate and calls for no interference.
' The case of Ahmad All Shah appellant is, however, not free from doubt and he is entitled to acquittal.
15. For the foregoing reasons, the appeal of Ghulam Abbas Shah, Amjad All Shah and Muhammad Hussain Shah is dismissed while that of Ahmad Ali Shah appellant is allowed. The conviction and sentence of Ahmad Ali Shah 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.
' Criminal Revision No, 153 of 1981 automatically fails- and is dismissed.