MUHAMMAD RAFIQ TARAR, J.-----The brief facts of the prosecution case are that Manzur Hussain alias Shikari appellant was a convict under sentence of death passed against him in another murder case and was lodged in District Jail, Lyallpur. About one and a half months prior to the occurrence which took place on 12th January, 1971, he escaped from the jail alongwith five others.
On the fateful day at about 3-15 p.m. Muhammad Afzal deceased approached Sultan Mahmud Khan, Inspector Police, Kamalia, to inform him that the accused was present at his Dhari and could be arrested if a raid was conducted. The Inspector arranged a raiding party consisting of himself, Muhammad Afzal, deceased, Muhammad Mazhar S.H.O., Police Station Rajana, Karam Hussain A.S.I.
Police Station Kamalia, Muhammad Khan, Head Constable, Muhammad lqbal F.C. Deceased, Hawab Khan F.C. And some other foot-constables and started from Kamalia in a truck at 4-30 p.m.
On reaching a place at a distance of about two miles from the Dhari of Muhammad Afzal deceased, in the area of Chak No. 247/G.B., the members of the raiding party got down from the truck as it could not go further. They started on foot and when they reached a place at a distance of 3 or 4 Furlongs from the Dhari of Muhammad Afzal deceased, the Inspector divided the party into three groups and advanced forward. One group was headed by him, the other by the S.H.O.
And the third by Karam Hussain Shah A.S.I. Muhammad Afzal deceased was leading the party followed closely by Nawab Khan Constable who was armed with a .2 bore gun. Nine other constables had .303 rifles with them. When the party reached a place at a distance of one or two Furlongs from the Dhari, Muhammad Afzal deceased pointed towards his eastern side and said that Manzur (appellant) was there. The other member of the raiding party looked in that direction and saw the accused who was standing on the Banna of a Khal with a gun in his hand. As soon as Muhammad Afzal deceased pointed towards the accused, he started firing upon which the members of the raiding party also took positions and started firing. During the firing Muhammad Afzal deceased, Muhammad Iqbal deceased and Nawab Khan P.W. Received gunshot injuries. The firing continued for about 25 minutes and when it stopped the members of the raiding party advanced to the place from where the accused was firing and found that he had escaped. They searched him around but in vain. The Inspector directed Muhammad Mazhar S.H.O., Police Station Rajana to take Muhammad Afzal and Muhammad lqbal, who were then in a precarious condition, to Civil Hospital, Rajana. Then he drafted the complaint Exh. P.N. Under sections 307 &no 332, P.P.C.
At 8 p.m. And sent it to the Police Station Rajana where formal F.I.R. Exh. P.N./1 was recorded at 10-30 p.m.
When Sub-Inspector reached the tube-well of one Muhammad Aslam, Muhammad lqbal F.C.
Expired and in the meantime Nawab Khan injured also joined him. He put Muhammad Afzal and Nawab Khan as also the dead body of Muhammad lqbal in the truck and proceeded to Civil Hospital, Rajana.
2. On reaching there he prepared the injury-statement Exh. P.C. And inquest-report Exh. P.D. Of Muhammad lqbal deceased and gave his dead body in the custody of Nisar Ahmad F.C. For post- mortem examination. He also prepared the injury statements Exhs. P.F. And P.C. Of Nawab Khan P.W.
And Muhammad Afzal and produced them before the doctor who advised that Mohammad Afzal be immediately taken to D.H.Q. Hospital, Lyallpur, and his dying declaration be recorded at once because of the possibility of his expiring in the way. The Sub-Inspector vide Rucca Exh. P.R. Enquired from the doctor whether Muhammad Afzal was fit to make a statement to which the doctor replied in the affirmative through Exh. P.H./1. As no Magistrate was available at that time, Muhammad Mazhar Sub-Inspector recorded the statement of Muhammad Afzal deceased (Exh. P. H./2) in the presence of the doctor. The Sub-Inspector then sent Muhammad Afzal in a special lorry to D.H.Q.
Hospital, Lyallpur under the escort of Rehmat Ullah F.C. On the next morning Rehmat Ullah came back to Rajana with the dead body of Muhammad Afzal and reported that on reaching the D.H.Q.
Hospital, Muhammad Afzal was found dead. The Sub-Inspector prepared its injury statement Exh.
P.J. And entrusted it to Rehmat Ullah F.C. For post-mortem examination.
3. On the same morning Sultan Mahmud Khan, Inspector inspected, the spot and secured some blood-stained earth from the place where Muhammad Afzal was injured and made it into a sealed parcel vide memo. Exh. P.A. He secured two crime empties of .12 bore from the placefrom where the accused had fired at the raiding party and made them into a sealed parcel vide memo. Exh. P, B.
Earlier at night, he secured 14 empties from the constables which had been fired by the police party. After the death of Muhammad lqbal and Muhammad Afzal deceased persons, the case was converted to one under sections 302 and 307/332, P.P.C. The accused was declared a proclaimed offender. On 3-8-1973, Muhammad Muzaffar, Inspector Police, arrested him from the area of Police Station Garh Maharaja, District Jhang. After the investigation the appellant was challaned. He was tried by the learned Sessions Judge, Lyallpur under sections 302, on two counts, 307 and 332, P.P.C.
Who by his judgment, dated 28th April, 1976 found him guilty of the said charges and sentenced him to death and a fine of Rs.1,000 or in default in the payment thereof to suffer R.I. For six months under section 302, P.P.C. On two counts and to life imprisonment under section 307/332, P.P.C. The fine if realised, was ordered to be paid to the heirs of the deceased persons as compensation. The convict has appealed and the case is also before us on reference for confirmation of the death sentence awarded to him.
4. On 12th January 1971 at 9-30 p.m. Dr. Shahid Hussain Medical Officer, Primary Health Centre.
Rajana, examined Nawab F.C. And found the following injuries on his person:- (1)A lacerated wound on the 4th finger of the right hand at the terminal phalynx. The wound was bleeding.
(2)A lacerated wound having -- wound of entry and --" in diameter wound of exit on the middle terminal phalynx of the right hand.
(3)Two circular fire-arm wounds of entry --" each on the right thigh 3" above the right knee-joint.
The wounds were severely bleeding. The injuries were kept under observation and had been caused by a fire-arm.
On 13th January, 1971 the same doctor conducted the autopsy on the dead body of Muhammad Afzal deceased and found a fire-arm wound -- circular on the supra-clavicular region on the left side ova the clavicle in the root of the neck. The main blood vessels of the right side of the neck were ruptured. There was fracture of the clavicle on the left side near the sterno-clavicular joint. All other organs were healthy. The injury had been caused by a fire-arm. In the opinion of the doctor, death was due to extensive haemorrhage and shock. The injury was sufficent to cause death in the ordinary course of nature.
On the same day, the same doctor performed the post-mortem examination on the dead body of Muhammad lqbal deceased and found a circular fire-arm wound -- " in diameter 3" below the left armpit on the left side of the chest. Pleurae, left lung and right ventricle of heart were ruptured. In the opinion of the doctor, death was due to extensive haemorrhage and shock. The injury had been caused by a fire-arm and was sufficient to cause death in the ordinary course of nature.
5. In support of its case the prosecution examined four eye--witnesses, namely, Nawab Khan injured, Sultan Mahmud Khan, Muhammad Mazhar Butt and Abdul Majid, and also relied on the dying declaration allegedly made by Muhammad Afzal deceased before Muhammad Mazhar Butt, Sub-Inspector.
6. The appellant pleaded not guilty to the charge. He admitted that he was sentenced to death by the Sessions Court in another case and was lodged in District Jail, Lyallpur, but added that he was acquitted by the High Court. He further admitted that before the case was decided by the High Court he absconded from District Jail, Lyallpur, alongwith few others. He also admitted that he was subsequently arrested by Raja Muzaffar Khan (P.W. 3) in the area of Police Station Garh Maharaja, District Jhang. When asked to explain as to why he was implicated in this case, he stated that his enemies got him involved and the police out of suspicion falsely implicated him in this case. No evidence was led in defence.
7. The learned trial Judge disbelieved the dying declaration. He did not rely on the evidence of Muhammad Mazhar Butt and Abdul Majid P.Ws. On the ground that "under the circumstances and the situation prevalent at the spot, they probably did not actually see him" (the appellant).
However, relying on the evidence of Nawab Khan and Sultan Mahmud Khan P.Ws. He convicted and sentenced the appellant as mentioned above.
8. The learned counsel for the appellant contended that the entire prosecution story is highly incredible. He submitted that no report regarding the formation of the raiding party for arresting the appellant was made in the Roznamcha and the prosecution must suffer for this serious irregularity. He further submitted that at the time the firing started, the sun had already set and darkness had prevailed, therefore, even in the brightest moonlight, it was not possible for the members of the raiding party to correctly identify the assailant from a distance of fifty to sixty yards. He further contended that on the following morning a tracker was employed by the police to trace the tracks which also indicates that no body had identified the culprits. On the other hand, the learned counsel for the State contended that the occurrence took place just after the sunset when it was not so dark as to completely impair the visibility, therefore, the members of the raiding party, particularly Muhammad Afzal deceased who was ahead of the party and those who were closely following him, were in a position to identify the assailant. He further submitted that the reasons given by the learned trial Judge for rejecting the dying declaration are not sound because it was recorded in the presence of the doctor who had certified that Muhammad Afzal deceased was fit to make the statement.
9. The prosecution version of the occurrence is supported by four eye-witnesses, namely, Nawab Khan, Sultan Mahmud Khan, Muhammad Mazhar Butt and Abdul Majid. Relying on certain portions of their statements, the learned counsel for the appellant contended that complete darkness had prevailed when they reached the place of occurrence, therefore, they were not in a position to correctly identify the culprit. On referring to their statements - we find that Nawab Khan P. W. Had stated at the trial that the sun had set when they were on their way after having alighted from the truck but he was confronted with his statement before the Committing Magistrate wherein he had stated that the sun had already set when they left the truck. Muhammad Mazhar Butt P.W. Stated that the sun had set after they had alighted from the truck and were on their way to the Dhari. He was confronted with his statement before the Committing Magistrate where he had stated that evening had fallen when they left the truck. Abdul Majid P.W. Stated that at the time of occurrence the sun had set but it was not complete dark and things were visible whereas in his, statement before the Committing Magistrate with which he was confronted he had stated that darkness had prevailed at the time of exchange of fire. Sultan Mahmud Khan P.W. In his statements before the Committing Magistrate and at the trial stated that the sun had not yet set when they alighted from the truck. The case of the prosecution is that the raiding party started from Police Station Kamalia in a truck at 4.30 p.m. And alighted from it at a place in the area of Chak No. 247/G.B. According to Nawab Khan P.W., the distance between Police Station Kamalia and Chak No. 245/G.6. Is 27 or 28 miles and in the committed Court Muhammad Mazhar P.W. Had deposed that the place where they alighted from the truck (in the area of Chak No. 247 G.B..) was at a distance of 25/26 miles from the said Police Station. In view of -the distance and the conveyance employed for the journey, it can safely be said that the raiding party would not have taken more than 30 to 45 minutes to reach the place where they had alighted from the truck. On the day of occurrence the sun set time at Lahore was 5.21 p.m. After going through the evidence, we have thus, gained the impression that the raiding party had alighted from the truck at or about the sunset time. After alighting from the truck the raiding party must be in a hurry to reach the Dhari and they would not have taken much time to reach the place of occurrence. The occurrence thus seems to have taken place shortly after the sunset time, therefore, the question of mistaken identification in the moonlight does not arise. In this view of the matter, we have no reason to disagree with the Warned trial Judge that the raiding party had reached the place of occurrence at a time when a person could be visible from a distance of 40/50 yards. A very strong circumstance in support of this view is that as soon as Muhammad Afzal deceased minted towards the eastern side and said that Manzur (appellant) was there, there was very prompt reaction from the other side in that the person standing on that side started firing on the raiding party causing fatal injuries to Muhammad Azal deceased who was a head of the party and was going to land that person in trouble. This circumstance, indeed, lends substantial support to the view that Muhammad Afzal deceased had identified the appellant and the appellant had also identified him. In cross-examination and during the arguments before us the theory sought to be propounded was that the raiding party had been organised for apprehending one Majeeda who was a co-villager of Muhammad Afzal deceased and had absconded from jail alongwith the appellant. The learned counsel for the appellant contended that since Majeeda belonged to the same village, therefore, his coming to the place of occurrence was quite natural. We do not find any substance in the contention. There is abundance of evidence on the record to show that the raiding party was conducted for arresting the appellant and Muhammad Afzal deceased had no earthly reason to name the appellant as the person standing on the easten side if actually Majeeda had been there. Sultan Mahmud Khan P.W. Stated that Muhammad Afzal deceased was ahead of his group, followed closely by Nawab Khan P.W. And that he (Sultan Mahmud P.W.) was following Nawab Khan P.W. In the circumstances, we fully agree with the learned trial Judge that Muhammad Afzal deceased, Sultan Mahmud Khan and Nawab Khan P.Ws. Had seen the appellant. The appellant was previously known to Muhammad Afzal deceased.
It is in evidence that on seeing the appellant Muhammad Afzal deceased at once pointed out towards him and said that "Manzur was there". This statement is directly related to the occasion of his death and has a proximate relation with the actual occurrence therefore, it is admissible under section 32(1) of the Evidence Act.
10. The learned counsel for the appellant next contended that there was cotton crop between the raiding party and the person who fired at them, therefore, members of the party could not have seen that person. It is in evidence that the height of the cotton plants was four and a half feet.
There is nothing on the- record to show that the height of the cotton crop was more than the height of the appellant and it is in the statement of Sultan Mahmud Khan P.W. That Muhammad Afzal deceased spotted the appellant when the latter was standing on the Banna of a Khaal, therefore, we do not find any substance in this contention.
11. The mere fact that a tracker was called on the following morning to trace the tracks is also no ground for holding that the assailant could not be identified. The raiding party was organised for arresting the appellant, Muhammad Afzal deceased had pointed out towards him and said that Manzur was there, therefore, there was no doubt about the identity of the culprit. It is a matter of common knowledge that even in cases where the culprits are known, the trackers are called to locate the direction of their escape and here an absconder under the sentence of death was to be arrested.
12. In cross-examination Muhammad Mazhar Butt Sub-Inspector admitted that he did not make any entry in Roznamchas of Kamalia or Rajana Police Stations with regard to the formation of the raiding party. Relying on this admission it was submitted that this serious irregularity is fatal to the prosecution case. The proper person to be asked about this aspect was Sultan Mahmud Inspector and not Muhammad Mazhar Butt Sub-Inspector because Muhammad Afzal deceased had approached the Inspector with the information that the appellant was staging at his Dhari and could be arrested if the raid was conducted. Muhammad Mazhar Butt Sub-Inspector went to the Inspector when Muhammad Afzal deceased was already with him. No such question was, however, put to the Inspector and we do not attach any importance to this contention as well. In this case an informer and a police official lost their lives and another sustained a serious injury, therefore, we have no doubt in our mind that Sultan Mahmud Khan Inspector did arrange a raiding party for arresting the accused.
13. The learned State counsel submitted that the dying declaration of Muhammad Afzal deceased was discarded by the learned trial Judge for insufficient reasons. He stated that there was no injury to any vital organ of Muhammad Afzal deceased and his statement was recorded in the presence of the doctor who had earlier certified that he was in a fit condition to make a statement. In pares.
17 to 26 of the impugned judgment the learned trial Judge has detailed the reasons for rejecting the dying declaration. The medical evidence shows that there was no injury to any vital organ of the deceased and this fact was not taken notice of by the learned trial Judge. In any case, the dying declaration, if accepted, would at best tend to show that Muhammad Afzal deceased had identified the assailant. It has already been observed that his statement to that effect made before the members of the raiding party is admissible under section 32(1) of the Evidence Act. Although there is answer to each reason mentioned by the learned trial Judge, we do not consider it necessary to make any further comment.
14. After giving our careful consideration to the evidence and the circumstances of the case, we are fully convinced that the evidence of Sultan Mahmud Khan and Nawab Khan P.Ws. Was rightly relied upon by the learned Judge. Accordingly, we maintain the conviction of the appellant on all the charges. He was already under sentence of death when he committed these murders, therefore, capital punishment is the only appropriate sentence in this case. Accordingly, we confirm the death sentence on each count of murder.
15. Regarding sentence for offence under section 307 of the Pakistan Penal Code, we are of the view that a combination of rigorous imprison--ment and fine would meet the ends of justice.
Accordingly, while reducing the sentence of rigorous imprisonment to ten years we impose fine of Rs.4.500 under section 307, P.P.C. In default the appellant would suffer further R.I. For two and a half years. When recovered this fine shall be paid to the heirs of the two deceased persons and Nawab P.W. In three equal shares. It is not necessary to impose separate sentence under section 332, P.P.C.
Thus, with the above modification in the sentence for offences under sections 307 and 332, P.P.C.
We dismiss the appeal.