IJAZ NISAR, J.--Abdul Ghafoor alias Ghafoori son of Noor Muhammad (32), Muhammad Ashraf son of Karam Din (28/29) and Muhammad Ashraf son of Sardar (30/31) were tried for the murder of Muhammad Sharif (16). Vide judgment dated 7-8-1984 the learned Addl. Sessions Judge, Kasur convicted all of them under section 302/34, P.P.C. And sentenced Abdul Ghafoor and Muhammad Ashraf son of Karam Din to death plus a fine of Rs.10,000 or in default to undergo three years' R.I.
While Muhammad Ashraf son of Sardar was sentenced to imprisonment for life plus a fine of Rs.10,000 or in default to undergo three years' R.I. Half of the fine was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Muhammad Ashraf son of Sardar was also given the benefit of section 382-B, Cr.P.C.
2. The convicted accused have filed appeal while the trial Court has made a reference for confirmation of the death sentence of Abdul Ghafoor and Muhammad Ashraf son of Karam Din.
Muhammad Siddique complainant has also filed revision for enhancement of the sentence of Muhammad Ashraf son of Sardar from imprisonment for life to death. All the matters shall be disposed of by this judgment.
3. The prosecution case is that one year prior to the occurrence Abdul Ghafoor and Muhammad Ashraf son of Karam Din appellants committed theft in the house of-Muhammad Sharif deceased.
A case was got registered against them which was pending when the occurrence in question had taken place. The aforementioned appellants pressurised Muhammad Sharif deceased to refrain from prosecuting the said case but he was not agreeable.
On 9-11-1980 at about 7 a.m. Muhammad Sharif deceased accompanied by Muhammad Siddique P.W.6, Muhammad Yousaf P.W.8 and Zulfiqar (not produced) were proceeding to their land. The deceased was ahead of them by 24/25 paces. When they reached near the Dhari of Suleman all the three appellants emerged from the side of that Dhari. Abdul Ghafoor appellant was armed with a single barrel gun, Muhammad Ashraf son of Karam Din was armed with a chhuri while Muhammad Ashraf son of Sardar carried a double barrel gun. Abdul Ghafoor raised a lalkara that Muhammad Sharif be taught a lesson for not abandoning the prosecution of the theft case and fired at him as a result of which he fell injured. Muhammad Ashraf son of Sardar gave injuries to him with the butt of his gun. Muhammad Ashraf son of Karam Din caused chhuri blows to him. The P.Ws. Tried to rescue him but the appellants threatened them with dire consequences. Thereafter the appellants fled away while firing in the air. The deceased succumbed to the injuries.
Muhammad Siddique P.W.6 left for police station to report the matter but met Shahid Farooq, Inspector (P.W.9) in village Nathey Khalisa where he was present in connection with patrol duty. He made the statement EXh.P.G. On the same day at 9-40 a.m. To him. The said statement was sent to the police station for formal registration of the case. Thereafter the S.H.O. Proceeded to the spot and prepared the inquest report Exh.P.J. Of the deceased.
He arrested the appellants on 23-11-1980. On 27-11-1980 at the instance of Abdul Ghafoor appellant he recovered single barrel gun P.6 through memo Exh.P.D. Muhammad Ashraf son of Karam Din got recovered blood-stained chhuri Exh.P.8 through memo Exh.P.F. Muhammad Ashraf son of Sardar led to the recovery of double barrel gun P.7 through memo Exh.P.E. After investigation the accused were challaned.
4. The appellants pleaded not guilty to the charge and denied the prosecution allegations. Abdul Ghafoor and Muhammad Ashraf son of Karam Din admitted the pendency of theft case against them but denied having pressurised the deceased to abandon the said case. They denied the recoveries and stated that those had been planted on titan for strengthening the prosecution case.
Except for the production of copy Exh. D. C. Of register Haqdaran pertaining to the year 1979-80 no other evidence was led by them in defence.
5. Dr. Muhammad Ashraf conducted post-mortem examination on the dead body of Muhammad Sharif deceased on 10-11-1980 at 8 a.m. And found the following injuries thereon.
(1) Lacerated gapping wound 4 c.m. x 3 c.m. Left side of face near the angle of mouth. Wounds was directed upward and to the right margins of the wound were inverted, blackened and scorched.
Wound had entered the, brain through the base of skull.
(2) Four circular wounds right posterior part of vault of skull. Margins were everted.
(3) Both right eye-lids were contused.
(4) Incised wound 1 x -- c.m. x skin deep in front of lower lip left side.
(5) There was evidence of bleeding from nose and left ear.
Both jaws and skull were fractured into pieces. Cardboard and two pellets were recovered from cranial cavity. Stomach and bladder were empty. Death was due to injury No.1 which was caused by fire-arm. In cross-examination he stated that he did not find any blunt weapon injury on the person of the deceased.
6. Relying on the ocular testimony furnished by Muhammad Siddique P.W.6 and Muhammad Yousaf P.W.8, the motive and the recoveries of guns P.6 and P.7 and chhuri P.8, the trial Court convicted and sentenced the appellants as described above.
7. Assailing the judgment it is argued that it was an unseen occurrence and the 'eye-witnesses were interested being closely related to the deceased. The ocular evidence is in conflict with the medical evidence. The recoveries are fake and the recovery witnesses are related to the complainant party, it is added.
8. Muhammad Siddique P. W.6 and Muhammad Yousaf P. W.8 examined as eye-witnesses were brother and cousin of the deceased respectively. Zulfiqar P.W. Son of the deceased named as an eye-witness in the F.I.R. Was not examined. No doubt Muhammad Siddique and Muhammad Yousaf are closely related to the deceased but they cannot be termed as interested witnesses because they had no motive to falsely implicate the appellants. They were accompanying the deceased at the relevant time and had given a satisfactory explanation of their presence at the spot. They were cross-examined at length but their evidence could not be shattered. As regards the argument that ocular testimony is in conflict with the medical evidence, learned counsel for the appellants has referred to the cross-examination of Muhammad Siddique P. W.6 wherein he stated that the deceased was fired at from behind but in the post-mortem examination no injury was found on the back of the deceased. In the post-mortem report the following firearm injuries were found on the body of the deceased: "lacerated gapping wound on the left side of face near the angle of mouth. The wound directed upward and to the right entering the brain through the base of skull. Four circular wounds right posterior part vault of skull. Margins were everted. "
The prosecution case is that the appellants had raised lalkara from behind before firing shots at him. Placed in that situation the natural conduct on the part of the deceased would have been to turn back to find out as to what was the matter and who had challenged him and what was his intention. In such circumstances it was not necessary that he must have suffered injuries on the back and their absence would not make the ocular account doubtful. It is difficult to expect from witnesses to give the exact position of the assailants and the deceased in such a situation.
According to them the deceased was given firearm and chhuri injuries by the accused and they stand corroborated by the medical evidence in this behalf as an incised wound and firearm injuries were found on the body of the deceased in the post-mortem examination.
9. The motive set up by the prosecution i.e. Pendency of theft case against Abdul Ghafoor and Muhammad Ashraf son of Karam Din appellants is not disputed by them. They admitted its registration though according to them it was a false case.
10. The recoveries of guns and chhuri at the instance of the appellants do not stand proved.
Muhammad Hanif P.W.4 who was examined to prove them stated in the course of cross- examination. That guns P.6 and P.7 were brought out by the police and that,; chhuri P 8 had not been shown to him in Court. He is nephew of the deceased and the other recovery witness Muhammad Ashiq who could corroborate him was not examined by the prosecution. Furthermore the guns are not connected with the offence because no empty was recovered from the spot with which it could match. Even if the recoveries are discarded the prosecution case stands fully established against Abdul Ghafoor and Muhammad Ashraf son of Karam Din appellants because of the motive attributed to them and the part assigned to them in the occurrence. The fatal firearm injuries to the deceased are attributed to Abdul Ghafoor while chhuri blow is attributed to Muhammad Ashraf son of Karam Din. So far as Muhammad Ashraf son of Sardar .Is concerned his participation in the occurrence does not appear to be free from doubt. He is alleged to have given butt' blows to the deceased but according to the doctor no blunt weapon injury was found on the person of the deceased. If he had been armed with a gun and had been accompanying the other co-accused he would not have lagged behind and just caused butt blows to the deceased. He could have also fired at him. No motive is attributed to: him. He was not a co-accused with Abdul Ghafoor and Muhammad Ashraf son of Karam Din in the theft case got registered by Muhammad Siddique complainant. His participation in the occurrence, therefore, appears to be doubtful.
Accordingly we accept his appeal, set aside his conviction and sentence and acquit him of the charge by giving) him the benefit of doubt. He shall be discharged of the bail bonds.
However, for the reasons discussed above, the prosecution has succeeded in bringing home guilt to Abdul Ghafoor and Muhammad Ashraf son of Karam Din beyond all shadow of doubt. They were, therefore, rightly convicted. The conviction and sentence of Abdul Ghafoor who gave the fatal firearm injury to the deceased is maintained but the sentence of Muhammad Ashraf is altered from death to imprisonment for life because only a simple chhuri injury is attributed to him. The fine awarded to him is maintained.
The appeal is dismissed with the above modification.
For the reasons discussed above the revision filed by Muhammad Siddique complainant for enhancement of the sentence of Muhammad Ashraf son of Sardar fails and is dismissed accordingly.
The death sentence of Abdul Ghafoor alias Ghafoori is confirmed.