' LEHRASAP KHAN, J.--Aulad Hussain Shah (57), Sabir Hussain Shah (43), Mosaddaq Hussain Shah
(20) and Abuzar Hussain Shah (19), have been convicted by a learned Additional Sessions Judge, Sialkot, vide his judgment, dated 2-10-1984, under section 302/34, on two counts for causing the murders of Mst. Naseem Akhtar aged 45 years and Mst. Khalida aged about 32 years and have been sentenced asunder:-
(1) Aulad Hussain Shah and Sabir Hussain Shah have been sentenced to death and a fine of Rs,10,000 or in default three years' R.I. They have also been directed to pay compensation at the rate of Rs,5,000 each to the legal heirs of the deceased or in default to suffer R.I. For six months.
(2) Mosaddaq Hussain Shah and Abuzar Hussain Shah have been sentenced to imprisonment for life and a fine of Rs,10,000 each or in default three years' R.I. They have also been directed to pay compensation at the rate of Rs,5,000 to the heirs of the deceased or in default to suffer six months'
R.I.
' It has also been directed that 2/3rd of the fine, if realized shall be paid as compensation to the legal heirs of the deceased. Vide the same judgment, a co-accused, namely, Chan Peer was acquitted. The said Chan Peer is brother of Aulad Hussain Shah and father of Sabir Hussain Shah.
He is also grandfather of Abuzar Hussain Shah. Mosaddaq Hussain Shah is son of Aulad Hussain Shah.
2. The aforementioned convicts have challenged their conviction and sentence through the present appeal, viz. Criminal Appeal No,556 of 1984, while the matter also stands referred to us for confirmation of death sentence awarded to Aulad Hussain Shah and Sabir Hussain vide Murder Reference No,214 of 1984. The complainant Muzaffar Saeed has filed Criminal Revision No,184 of 1985, challenging the acquittal of Chan Peer. All the three matters shall be disposed of by this judgment.
3. The occurrence in this case took place on 23-5-1983 at Dopehrwala in village Vaince in front of the house of Said Ahmad son of Umar Hayat (P.W.10), at a distance of about five miles from Police Station Phillora, District Sialkot.
' The occurrence was reported to the police by Muzaffar Saeed (P.W.9) son of Mst. Naseem Akhtar deceased through statement Exh. P.B. Which he made on the same day i,e, 23-5-1983 at 3-30 p.m.
At Civil Hospital Chawinda before Saeed Ahmad Sub-Inspector (P.W.20). Formal F.I.R. Exh.P.B. /1 was recorded at the police station at 4-30/4-45 p.m. By Ali Akram Shah M.H.C. (P.W.2).
4. Regarding motive it has been alleged that complainant's father Muhammad Younus had purchased four Acres of land in village Vaince from one Muhammad Khan son of Faiz Ahmad. This land is situating near the house of the accused. They wanted this land for themselves. The vendee occupied the land as tenant under the vendor. The accused got proceedings instituted through Muhammad Khan, the vendor, for obtaining correction of Khasra Girdawari entries so that the complainant and his father were not shown as tenants and the suit for pre-emption could be filed by the accused. In the said proceedings relating to correction of Khasra Girdawari entries, Aulad Hussain Shah and Sabir Hussain Shah appellants appeared as witnesses for the applicant Muhammad Khan. Another person namely Ghulam Mustafa son of Boota also gave evidence in the said proceedings against the complainant party.
5. As for the main occurrence, it has been stated that on the eventful day, the complainant and Ghulam Mustafa son of Noor Muhammad were coming back to the village Abadi after seeing off some of their guests. When they reached near the house of Said Ahmad son of Umar Hayat (P.W.10), Ghulam Mustafa son of Boota met them and it was enquired from him by the complainant and his companion as to why he falsely deposed against them in the proceedings relating to correction of Khasra Girdawari entries. He retaliated, whereupon hot words were exchanged and they grappled with- each other. Muhammad Malik, Muhammad Khan, Said Ahmad and Aamer Manzoor separated them. Ghulam Mustafa while leaving held out threat of dire consequences.
While Mst. Naseem Akhtar and Mst. Khalida heard alarm arising out of exchange of hot words between Ghulam Mustafa son of Boota on the one side and Muzaffar Saeed and Ghulam Mustafa son of Noor Muhammad on the other, they also turned up at the scene. Mst. Naseem Akhtar was the mother of Muzaffar Saeed complainant while Mst. Khalida was the wife of Sarwar, brother of Ghulam Mustafa son of Noor Muhammad. Shortly afterwards i,e, about 30/45 minutes, the five accused emerged at the scene of occurrence. They were duly armed. Chan Peer Shah was armed with a revolver and so were Aulad Hussain Shah and Sabir Hussain Shah. Mosaddaq Hussain Shah was armed with a gun while Abuzar Hussain Shah was carrying carbine. The two deceased ladies are said to have interceded and begged pardon but Chan Peer Shah fired ineffectively. The second shot was fired by Aulad Hussain Shah which hit Mst. Naseem Akhtar in the scapula at the back of her right shoulder. The third shot fired by Sabir Hussain Shah hit Mst. Khalida on her back.
Mosaddaq Hussain Shah and Abuzar Hussain Shah fired from their respective weapons ineffectively. The occurrence was witnessed by Muhammad Malik, Muhammad Khan, Said Ahmad, Aamer Manzoor, Ghulam Mustafa son of Noor Muhammad, in addition to Muzaffar Saeed, the complainant. After the ladies were hit and fell down, the accused continued firing and went away.
Both the injured were removed on a tractor trolley to Chowinda Hospital. Mst.Naseem Akhtar succumbed to the injuries on the way while Mst. Khalida died subsequently on 23-8-1983.
6. Dr. Iftikhar Ali Mirza, (P.W.14), who was then posted as Medical Officer, Incharge Civil Hospital, Pasrur, performed the autopsy on the dead body of Mst. Naseem Akhtar on 24-5-1983 at 6-00 a.m.
Vide post-mortem report carbon copy whereof is Exh. P.O. He noticed the following injuries on her body: -- "(1) An entry wound (round) 4 c.m. With blackened edges and with inverted margins. Bleeding on pressure and swelling of neighbouring area present. On the right scapular region (back) about 4 c.m. Right to mid line, on the 3rd rib posteriorly coinsiding hole on the Kameez present.
(2) Area contused about 3" x 2" on anterior part of the upper portion of the chest on right side and about one inch from mid sternal line and about one inch below right stern clavicular joint is feeling of conical object in the center of it and crepitus felt on pressing this area (surgical emphysema):"
' On opening the affected area, a bullet was found in the subcutaneous tissue and intercostal muscle on the right side of chest, about one inch from mid sternal line, and one inch from right sterno clavicular joint with fracture of medial end of first rib on the right side. This bullet was preserved and handed over to the police. He opined that the cause of death in this case was aforementioned fatal injury caused by fire-arm which was sufficient to cause death in the ordinary course of nature.
' Mst. Khalida Begum while alive was medically examined in injured condition on 23-5-1983 by P.W.15 Dr. Muhammad Abbas Qari, the then Incharge Rural Health Centre Chowinda vide medico- legal report Exh.P.P. He noticed the following injury on her person:-- "A wound of entry 4 m.m. In diameter with blackened margin and inverted margin with swelling 3" x 2", wound profusely bleeding on the back of chest opposite to level of 4th to 5th thoracic vertebrae about one inch on the right side of chest, i,e, about 2" above the line of interior angle of right scapular line."
' He opined that the injury was dangerous and fatal to life and was caused by fire-arm. He referred the patient to General Hospital, Lahore, on the same day at 5-30 p.m. Subsequently Mst. Khalida died on 23-8-1983.
Autopsy on the dead body of Mst. Khalida was performed by P.W .1 Dr. Syed Sajjad Ali, Medical Officer, Allama Iqbal Memorial Hospital, Sialkot on 24-8-1983 at 1-00/1-30 p.m., vide post-mortem report, carbon copy whereof is Exh .P . A. He noticed the following injuries on the body of the deceased:-
(1) Infected wound 6" x 6" with foul smell and posy discharge along with maggots coming out from the wounds on right hip.
(2) Infected wound with punched out edges 6" x 6" on left hip foul smelling and maggots coming out from the wound.
(3) Infected wound with punched out edges, 3" x 4" on lumbo-sacral region over back, foul smell and pusy discharge was coming out from the wound.
(4) Healed circular wound 1/4" diameter over back of right side of chest opposite to the level of 4-5 thoracic vertebra right to the vertebral column.
(5) Infected wound with foul smell and pusy discharge coming out from the wound, 3" x 3" over lateral maleolus of right ankle."
He opined that injuries Nos. 1 to 3 and 5 were due to bedsores while injury No,4 which was grievous and dangerous to life was caused by fire-arm. In his opinion the death occurred due to septicaemia by bedsore leading to cardiorespiratory failure resulting from prolonged confinement in bed because of injury No,4, which was sufficient to cause death in the ordinary course of nature.
7. All the accused were arrested on 11-6-1983 by P.W.20 Saeed Ahmad SA. On 22-6-1983, Sabir Hussain Shah while in custody ted to the recovery of revolver P.12 from his residential house, which was taken into possession vide memo. Exh.P.J. On the same day at the instance of Mosaddaq Hussain Shah gun P.13 was recovered through memo. Exh.P.K. It is noteworthy that some lead pieces were recovered at the time of spot inspection from the spot. The doctor who performed the autopsy on the dead body of Mst. Naseem Akhtar also recovered a bullet stuck in her body which he claimed to have handed over to the police. As admitted by Saeed Ahmad S.I. (P.W.20), the lead pieces and bullet were not sent- for comparison along with the revolver and, gun to the Forensic Science Laboratory. Admittedly the revolver recovered from Sabir Hussain Shah was a licensed revolver of his father Chan Peer Shah, while the gun recovered from Mosaddaq Hussain Shah was the licensed gun of his father Aulad Hussain Shah. Since the lead bullets recovered from the spot and from the dead body of one of the deceased, were not sent for comparison to the Forensic Science Laboratory, therefore, the recovery of the alleged crime weapons is not of any consequences as the recoveries are not connected with the crime. The learned trial Judge was, therefore, justified in holding that the evidence regarding recoveries was not of any corroboratory worth.
8. P.W.9 Muzaffar Saeed complainant, P.W.10 Said Ahmad and P.W.12 Muhammad Khan have testified at the trial as eye-witnesses to furnish the ocular account of the prosecution case. By and large these witnesses have supported the prosecution version as disclosed in the statements Exh.P.B. Statement of Mst. Khalida deceased was recorded under section 161, Cr.P.C. By Saeed Ahmad S.I. (P.W.20), copy of the statement is Exh. P.Y. Her statement under section 164, Cr.P.C. Was also recorded by Mr. Abdul Rashid, Magistrate First Class, Lahore P.W.
16. Copy of the statement is Exh. P.R.. The learned trial Court while did not place any credence on the statement Exh. P.Y. Recorded under section 161, Cr.P.C., accepted the statement Exh. P.R. As dying declaration.
9. The plea of the appellant at the trial has been that of total denial. They also denied the recoveries and maintained that the dying declarations Exhs.P.Y. And P.R. Were fabricated ones and that they were falsely involved on account of party faction and enmity. Muhammad Latif, Assistant Licence Clerk, D.C. Office, Sialkot has been examined in defence as D.W.1. He brought the record to show that the gun recovered from Mosaddaq Hussain Shah was the licensed gun of his father Aulad Hussain Shah while the revolver recovered from Sabir Hussain Shah was the licensed arm of his father Chan Peer Shah.
10. It has been contended on behalf of the appellants that the motive, as alleged, has not been proved. No documentary evidence has been produced to show that Aulad Hussain Shah and Sabir Hussain Shah appellants as also Ghulam Mustafa son of Boota appeared as witnesses in the proceedings relating to correction of Khasra Girdawari entries initiated by Muhammad Khan against the complainant and his father. It has further been urged that Saeed Ahmad S.I. (P.W.20) in his statement has disclosed that he found the body of Mst. Naseem Akhtar deceased in the compound of Said Ahmad P.W.10. In column No,5 of the post-mortem report also it has been shown that the dead body of the said deceased was brought from village Waince. The F.I.R., viz. The statement Exh. P.B. Is to the effect that the dead body of Mst. Naseem Akhtar was still in Chawinda hospital when the statement was made by Muzaffar Saeed complainant P.W.9 before Saeed Ahmad S.I. P.W.20. It has thus been maintained that in fact the F.I.R. Was not a prompt one and Fard Biaan was recorded after preliminary investigation and deliberations.
' It has also been argued that the prosecution version was not believable inasmuch as the ladies were not the object of indignation of the accused but the males against whom they bore grudge were very much present at the scene of occurrence, but they were not fired at. It has further been urged that quality of prosecution evidence, particularly the ocular one, was not impressive.
11. We have closely considered and minutely analyzed the contentions raised on behalf of the appellants in the light of the evidence available on the records. It is true that direct documentary evidence available with regard to motive has not been produced. Adverse presumption, therefore, can be drawn against the prosecution. We have, however, noticed that the appellants in their statements recorded under section 342, Cr.P.C., have admitted that the complainant party entertained suspicion that proceedings relating to correction of Khasra Girdawar" entries were initiated against the complainant party at the behest of the accused. The fact, however, remains that there is nothing on the record to suggest that the accused had any motive to kill the .Two deceased ladies.
' It is also not understandable that when the accused allegedly harboured grudge against Muzaffar Saeed and his companion Ghulam Mustafa son of Noor Muhammad who abused Ghulam Mustafa son of Boota and grappled with him why did they shoot at the two deceased ladies, who did not give any occasion of offence to the accused, but are alleged to have asked for pardon. So far as the ocular evidence is concerned, there are minor contradictions which are quite natural but some improvements have also been made by Muzaffar Saeed and Said Ahmad. P.W.12 Muhammad Khan, however, is quite an independentB witness. His testimony rings true. The occurrence took place quite close to his residence. He is the most natural witness of the incident. He disclosed that he did not know on whom Chan Peer Shah accused had opened first fire. According to him he, Muhammad Malik, Ghulam Mustafa and Muzaffar Saeed were sitting under the Keekar tree when Chan Peer Shah opened the first fire at which Muzaffar Saeed and Ghulam Mustafa ran towards the wall of the house of Ashraf, but the accused did not run after them. He further stated that the accused did not fire towards the Keekar tree where they were all sitting. He also stated that the accused did not straightaway open fire at Ghulam Mustafa and Muzaffar Saeed. According to him the two women viz. Mst. Naseem Akhtar and Mst. Khalida did not abuse or grapple with the accused and they did not give any provocation to them. He categorically stated that he did not know at whom, Abuzar Hussain and Mosaddaq Hussain had fired. According to him he only heard the noise of the fire and he had guessed from the sound of the firing that the shots had been fired by these two accused persons. He further disclosed that he did not see Abuzar Hussain and Mosaddaq Hussain accused persons firing from their weapons but had guessed so keeping in view the report of their weapons.
12. We are conscious of the fact that apart from the ocular evidence, the learned trial Court has taken into consideration, the dying declaration Exh.P.R of Mst. Khalida deceased recorded by. Mr. Abdul Rashid Magistrate First Class, Lahore P.W.16. In regard to this statement it has been, urged on behalf of the appellants that its copy was not provided to the appellants as required under section 265-C, Cr.P.C., and, therefore, it could not be utilized against them.
' This contention according to us lacks merits, because under section 265-C, ibid, copies of the following documents are required to be supplied to the accused, not later than seven days before the commencement of the trial:--
(a) the first information report;
(b) the police report;
(c) the statements of all witnesses recorded under sections 161 and 164; and
(d) the inspection note recorded by an Investigation Officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any.
' In ease of statement Exh.P.R. It lost the character of a statement of a witness recorded under section 164, because after the death of Mst. Khalida she could not be regarded as a witness and her statement recorded under section 164, Cr.P.C, after her death adopted the character of a dying declaration and thereafter ceased to remain a statement as envisaged in section 265-C, Cr.P.C.
The learned Magistrate who recorded the statement appeared as P.W.16. He did not obtain the opinion of the medical officer as to whether Mst. Khalida was medically fit to make her statement.
There is nothing on the record that she was identified before this learned Magistrate as Mst. Khalida wife of Sarwar. This statement was recorded more than two months prior to the death of Mst.
Khalida. Later she died on account of bedsore which caused septicemia. The Magistrate admittedly did not ensure that the statement was not a tutored one. Two months prior to her death Mst. Khalida had no apprehension of her death and, therefore, this statement cannot be termed as a dying declaration of a person made some time before death when he was under the imminent, danger of death. In such circumstances, the possibility of involving innocent persons along with the real culprits cannot be excluded. As a matter of fact, the arguments which found favour with the learned trial Court in case of Chan Peer Shah, the acquitted accused, equally apply to Mosaddaq Hussain Shah and Abuzar Hussain Shah appellants.
13. In the light of the foregoing discussion we have come to the conclusion that in this case net has been thrown wide and efforts have been made by the prosecution to involve male members of the family of Chan Peer Shah in this case. In the light of the ocular evidence supported by statement Exh. P.R., we find that Aulad Hussain Shah and Sabir Hussain Shah appellants are liable for the murders of Mst. Nasim Akhtar and Mst. Khalida deceased, but the guilt in this behalf has not been brought home to Mosaddaq Hussain Shah and Abuzar Hussain Shah beyond doubt and so is the case of Chan Peer Shah who has already been acquitted by the learned trial Court.
' We have already found that apparently the accused had no motive to kill the two deceased ladies and in this regard it is still shrouded in mystery as to under what circumstances the two ladies were done to death by Aulad Hussain Shah and Shabir Hussain Shah.
14. For the foregoing conclusions we allow the appeal of Mosaddaq Hussain Shah and Abuzar Hussain Shah Appellants and acquit them. They shall be set at liberty forthwith if not required to be detained in any other case. We maintain the conviction of Aulad Hussain Shah and Sabir Hussain Shah under section 302/34, P.P.C., but alter their sentence from death to imprisonment for life. The sentence of fine as also the direction regarding compensation as ordered by the learned trial Court in case of these two appellants are maintained. Benefit being claimed under section 382-B, Cr.P.C., for Aulad Hussain Shah and Sabir Hussain Shah is refused. Their sentence of death is not confirmed.
' The revision filed by Muzaffar Saeed complainant challenging the acquittal of Chan Peer Shah respondent is dismissed in limine.