QURBAN SADIQ IKRAM, J.--This is an appeal by Feroze Din 27 against his conviction under section 302, P . P . C . By learned Additional Sessions Judge, Sheikhupura, who, vide judgment, dated 16-11- 1983 sentenced him to death for the murder of Nishan Ali 45.
The accused Feroze Din having been sentenced to death, the proceedings are also before us for confirmation of sentence.
Akhtar Ali 21 and, Lashkar Ali 32, two co-accused of Feroze Din appellant were acquitted by the same judgment.
Shahbaz complainant filed Criminal Revision No. 389 of 1984 against Akhtar and Lashkar Ali accused seeking setting aside of their acquittal and conviction under section 302, P.P.C. This revision was not admitted but only directed to be heard along with the connected appeal.
Feroze Din accused-appellant was not awarded sentence of fine by the learned Additional Sessions Judge. We, therefore, before commencement of hearing of appeal gave notice to his learned counsel that in case the appeal is dismissed, Feroze Din appellant may be awarded sentence of fine. This notice has been accepted on behalf of Feroze Din appellant.
All the above matters will be disposed of together by this judgment.
2. The occurrence in this case took place at Deegarwela on 16-9-1981 in village Bahuman, about 7 miles from Police Station Sadar Sheikhupura. The formal F.I.R. Exh.P.A./1 was recorded by M.H.C.
Abdur Rehman P.W.5 at the police station on 16-9-1981 at 7-10 p.m. On the basis of statement Exh. P . A . Recorded by A . S . I . Muhammad Yousaf Shah P . W . 9 at Adda Bhikkhi at 6-30 p.m. On the same day at the instance of Muhammad Shahbaz P.W.1.
3. It was stated by Muhammad Shahbaz complainant in his statement Exh . P . A . That he lived at Dera Baba Sukha and was a cultivator. Feroze Din, Akhtar and Lashkar accused were his close relatives and also lived at the same Dera. About 15/20 days earlier, his father Nishan Ali had a quarrel with Feroze Din, Akhtar and Lashkar accused over damage to his crop. There was a compromise on the intervention of the brotherhood. However, Feroze Din etc. Had threatened that they would take revenge.
On 16-9-1981, at about Deegarwela, he along with his father Nishan Ali was returning to his Dera after repairing the watercourse (Khal). His father was proceeding about 25/30 yards ahead of him.
When they reached near their Dera, all of a sudden, Feroze Din armed with .12 bore gun, Akhtar armed with carbine and Lashkar empty handed came there. Lashkar challenged that they would take revenge of their insult. Feroze Din fired with his gun which hit on the front of the chest and abdomen of his father Nishan Ali who fell down. Akhtar accused fired from carbine at the flank of his father. The occurrence was witnessed by his mother Mst. Irshad Bibi and his sister Mst. Nasreen who were washing clothes at the nearby tube-well. The alarm attracted Ali Daulat P.W. The accused left the place of occurrence shouting Lalkaras and firing in the air. Nishan died at the spot on account of the injuries.
Muhammad Shahbaz complainant leaving the dead body in the care of the witnesses, proceeded towards the police station. He met A.S.I. Muhammad Yousaf P.W.9 at Adda Bhikkhi and made statement Exh.P.A.
4. The police after registration of the case undertook investigation. The dead body of Nishan Ali aged about 45 years was sent for post-mortem examination which was conducted by Dr. Rafiq Hussain P.W.10 on 1.7-9-1981, at 12-30 p.m. On external examination, the Medical Officer found the following injuries on the dead body:--
(1) 7 lacerated circular wounds each 1 c.m. x 1 c.m. In an area of 13 c. m. x 10 c. m. On the left side of upper part of abdomen and lower part of chest, 12 c.m. Below the nipple.
(2) 5 lacerated circular wounds each 1 --c.m. x 1-- c.m. In an area of 8 c. m. x 7 c. m. On the outer side of right chest lower part.
(3) A lacerated wound 1 c.m. x 1 c.m. On the inner side of right elbow joint.
(4) An abrasion 2 c.m. x 1 c.m. On the back of right wrist joint thumb side.
On dissection, lower part of the left lung at three places and stomach at four places were found punctured. The right side of liver was punctured. The lower part of the right lung was also punctured at its lateral angles. Two pellets were lying buried in the 2nd and 3rd lumbar vertebrae which had to be cut to bring them out. One pellet was removed from injury No.3. The abdominal cavity was full of blood. In the thorax, the ribs and pleura were injured under injuries 1 and 2.
Injuries 1, 2 and 3 had been caused by fire-arm. Injury No.4 was simple and had been caused by blunt weapon. Injuries 1 and 2 were grievous and dangerous to life. The death had occurred due to shock and haemorrhage as a result of injuries 1 and 2 which were sufficient in ordinary course of nature to cause death. The probable time between injuries and death was within few minutes and post-mortem had been conducted within 24 hours of death.
5. A.S.I. Muhammad Yousaf Shah P.W.9 during inspection of spot on 16-9-1981, collected blood- stained earth, vide memo. Exh.P.D. From the vacant uncultivated land of Chuhar Kharal. He also took in possession crime empty P.6, vide memo. Exh.P.E. From a place about 51 Karams from the dead body of Nishan Ali deceased in presence of Shah Muhammad P.W.4 and Ahmad P.W. (not examined). The accused were arrested on 23-9-1981.
Feroze Din accused on 30-9-1981 while in police custody led to the recovery of unlicensed gun P.4 from his- house which was taken in possession: by A.S.I. Muhammad Yousaf Shah P.W.9, vide memo. Exh.P.F. Attested by Khan Muhammad P.W.6 and Niamat P.W. (not examined).
On the same day, Akhtar acquitted accused, while in police custody led to the recovery of carbine P.5 from his house which was taken in possession by A.S.I. Muhammad Yousaf Shah P.W.9, vide memo. Exh . P . G . In presence of same witnesses.
Crime empty P.6 was found to have been fired from gun P.4 by the Fire-arms Expert, vide report Exh.P.O. The Fire-arms Expert in his report Exh.P.N. Opined that no opinion regarding carbine P.5 could be given.
The appellant and his co-accused were challaned after completion of investigation.
6. The prosecution, in support of its case, examined ten witnesses in all. Muhammad Shahbaz P.W.1, Mst. Irshad Bibi P.W.7 and Ali Daulat P.W.8 were examined as eye-witnesses. The incriminating recoveries were witnessed by Shah Muhammad P.W.4 and Khan Muhammad P.W.6. The post- mortem on the dead body was conducted by Dr. Rafiq Hussain P.W.10 as given in detail above. The case was investigated by A.S.I. Muhammad Yousaf P.W.9. The evidence of the rest of the witnesses was of formal nature.
The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. The recoveries of crime weapons were also denied. They did not produce any evidence in defence.
The learned trial Judge did not place reliance on the evidence of motive and recoveries of crime weapons. He also did not believe Muhammad Shahbaz P.W.1 and Ali Daulat P.W.8. He relied on the evidence of Mst. Irshad Bibi P.W ? And convicted Feroze Din appellant as stated above.
7. We have carefully gone through the evidence on record and have heard the learned counsel for the parties at some length.
The learned counsel for the appellant has raised the following five contentions:-
(i) Firstly, the prosecution has failed to prove motive against the accused;
(ii) secondly, the evidence of recoveries of incriminating articles is not reliable and be excluded from consideration; ,
(iii) thirdly, the ocular account furnished by the eye-witnesses is in conflict with the medical evidence;
(iv) fourthly, the eye-witnesses did not witness the occurrence and should, therefore, not be relied upon for conviction of appellant; and
(v) fifthly, even if prosecution evidence is accepted, it was not a case of capital sentence.
The learned counsel for the State and complainant have both controverted the contentions.
8. We have considered the respective contentions of the parties. The motive in this case is stated to be that Nishan Ali deceased and Feroze Din etc. Accused lived at one Dera and cultivated separate fields. The cattle of Feroze Din etc. Damaged the vegetable crop of Nishan Ali deceased about 10/15 days earlier to this occurrence which emanated a quarrel between them. The matter was settled by the brotherhood of the parties but it is alleged that the accused nursed grudge against the deceased on account of which they murdered Nishan Ali. The evidence on motive has been furnished by Shahbaz P.W.1, son of the deceased and Mst. Irshad Bibi P.W.7, widow of the deceased.
The learned trial Judge did not rely on the evidence of motive furnished by these two witnesses because it was admitted by them that they had not seen the quarrel which took place about 10/15 days prior to the present occurrence. This finding of the learned trial Judge is borne out from the record of this case. In our view, prosecution has failed to prove motive against the accused.
9. A.S.I. Muhammad Yousaf Shah P.W.9 during inspection of the spot took in possession a crime empty P.6 from the place of occurrence. It was sealed in a parcel and delivered intact in the office of Forensic Science Laboratory, Lahore on 23-9-1981. The learned trial Judge doubted the recovery of crime empty P.6 for the reason, firstly, that it was not mentioned in the F.I.R.; secondly, that the recovery witness Shah Muhammad P.W.4 was not able to identify the said crime empty in Court; and finally that the sealed parcel which was produced before the Court during trial contained two empties instead of one. The learned trial Judge was of the view that there is no explanation of the presence of second empty in the sealed parcel. We are not prepared to agree with these findings of the learned trial Judge. It was not necessary for the complainant to mention in F.I.R. The presence of crime empty at the place of occurrence. If there was any such omission, it did not materially affect the prosecution case regarding its recovery. Shahbaz complainant, no doubt, remained at the spot after the occurrence for sometime but might not have noticed the presence of crime empty at a distance of about 51 Karams. Even if he had noticed the presence of this crime empty at the spot before leaving the place of occurrence, he might have thought it unnecessary to state its presence while making statement Exh.P.A. Similarly, the statement of Shah Muhammad P.W.4, that 'since it was night I cannot say whether the empty present in the Court and shown to him is the same', was a natural statement. Shah Muhammad P.W. Had not put any specific mark of his own on the crime empty. It was, therefore, not possible nor necessary for him to identify in Court empty P .6. It was argued by the learned counsel that the recovery of crime empty was doubtful because it was not mentioned in column No.23 of inquest report Exh.P.H. This argument is without any basis because according to the recovery memo. Exh.P.E. As well as the site plan the crime empty was found lying at a distance of 5 -- Karams from the dead body. This was sufficient distance and as explained bye the Investigating Officer, he did not mention its presence 'as it was not found close to the dead body'. It was next held by the learned trial Judge that prosecution has failed to explain the presence of second empty in the sealed parcel. It appears to us that the learned trial Judge has given this finding by omitting to examine the report of the Froensic Science Expert. The crime empty P.6 was recovered from the place of occurrence. It was sealed in a parcel and sent to the laboratory for examination /comparison. Another live cartridge was also sent along with the gun to the laboratory to be used as test cartridge. The Fire-arms Expert after using the test cartridge sealed both i.e. The crime empty and the test cartridge in one packet. The sealed packet which was produced in Court was not the same as was prepared by the Investigating Officer at the place of occurrence during spot inspection. In view of these circumstances, we are not inclined to agree with the finding of learned trial Judge that the recovery of crime empty P.6 was doubtful.
Shah Muhammad P.W. Was, no doubt, related to the deceased but had absolutely no enmity to falsely depose against the accused in this case.
The accused were arrested on 23-9-1981. They were on police remand for interrogation. Feroze Din appellant on 30-9-1981 while in police custody led to the recovery of unlicensed gun P.4 from a room of his house, vide memo. Exh.P.F. The learned trial Judge did not place reliance on this recovery on account of the statement of Khan Muhammad P.W.6 that 'I and the police party remained outside whereas one of the policemen along with the accused went into the room and brought gun P.4 which was taken in possession, vide memo. Exh.P.E. He had brought out the gun from his room'. The learned trial Judge opined that Khan Muhammad P.W.6 did not himself witness the recovery of gun P.4. We find ourselves unable to agree with this finding of the trial Court. Khan Muhammad P.W. And the police party were present outside the room from where the gun P.4 was brought by the accused. The accused along with a policeman entered the room in their presence and 'had brought out gun from his room'. This clearly indicated that the accused who was in police custody brought the gun from his room in presence of the witnesses. The argument of the learned counsel for the appellant was that Khan Muhammad P.W. And other members of police party should also have entered the room at that time. In our view, it was not necessary because they were standing outside the room and the accused went inside the said room in police custody and himself brought out the gun which was taken in possession, vide memo. Exh.P.E. Khan Muhammad P.W.6 is distantly related to the deceased. He had no enmity with the accused. It was argued by the learned counsel that Feroze accused had five brothers and they lived jointly in the same house which would mean that the recovery of gun P.4 was not from the exclusive possession of Feroze Din.
We have considered this contention. In the examination-in-chief of Khan Muhammad P.W.6, it is clear that the gun P.4 had been recovered from a room. This witness did not admit that all the five brothers lived jointly in the said room. He only admitted that Feroze accused and. His five brothers lived jointly in the same house. There is nothing to show that there were no other rooms of the said house. We are satisfied that Feroze Din accused got recovered unlicensed gun P.4 from a room of the house.
According to the report of Fire-arms Expert Exh.P.O., the crime empty P.6 was found to have been fired from gun P.4. It was contended on behalf of the appellant that the crime empty P.6 and gun P.4 were received by the Director Forensic Science Laboratory, Lahore together on 4-10-1981 and, therefore, no reliance can be placed on the said report. This argument is without any basis.
According to Abdur Rehman P.W.5, he first sent the sealed parcel of crime empty on 22-9-1981 through F.C. Muhammad Hussain. The said parcel was brought back from Lahore with objection. He got removed the said objection and sent it again on 23-9-1981. According to the report Exh.P.O., the crime empty was received, vide Lab. No.1100/81. Gun P.4 was recovered on 30-9-1981. It was sent to the laboratory on 4-10-1981 which was received there, vide Lab. No. 1162/81. If the gun and the crime empty had been delivered on one date, there would not have been a difference of 62 Lab.
Numbers. In cross-examination, Abdur Rehman P.W.5 stated that he had made entry regarding despatch of parcel on 23-9-1981 in the relevant register No.19.
In our view, the recovery of gun P.4, crime empty P.6 and the Expert's report Exh.P.O. Fully corroborate the eye-witness account of this occurrence.
10. It was contended by the learned counsel that the medical evidence was in conflict with the ocular account furnished by the three eye--witnesses. It was argued by him that injury No.1 on the left side was a wound of entry which made a wound of exit at injury No.2 which were in one straight-line. One of the pellets after coming out of injury No.2 caused injury No.3 on the right elbow joint of the deceased. The learned counsel, therefore, argued that the story 'put forth by the eye- witnesses that it was a case of two independent shots was not supported by the medical evidence which make their testimony unworthy of reliance. We have carefully considered this argument on behalf of the appellant and find the same as without any merit. The basis of arguments of the learned counsel was that a .12 bore gun normally contains 8 pellets. According to the learned counsel, one pellet did not enter the body and seven pellets entered the left side of the body of the deceased causing injury No.1 and that five pellets went out of the body one of which struck the right elbow joint and two were found lying buried in the 2nd and 3rd lumbar vertebrae. A perusal of the evidence would show that injuries 1 and 2 are nearly at one level. These two injuries are on front part of the body. Two pellets were found in 2nd and 3rd lumbar vertebrae, which was the back part of the body. It, therefore, appears that the pellets travelled from front to left middle back and not to right side as suggested by the learned counsel. The dimension of each wound under injury No.1 was 1 c. m. x 1 c.m. While the dimension of each wound under injury No.2 was 11 c.m. x 1 -- c.m. The difference of dimension on wounds under these injuries would also show that these were the result of two independent fires. Secondly, the Medical Officer did not state that the margins of one injury were inverted and the margins of injury No.2 were everted. Thirdly, the Medical Officer in his report clearly stated that both injuries 1 and 2 were grievous and dangerous to life. If injury No.2 had been an exit wound, he would have stated only injury No.1 to be of grievous /dangerous nature. Fourthly, in cross-examination, the Medical Officer admitted that injury No.1 appeared to have been caused from a distance of 8 to 10 feet and injury No.2 from a distance of 5 to 6 feet. He opined that it was not possible to cause injury No.2 from a distance of 8/10 Karams. The difference of distance of causing of these two injuries also would show that these were two independent fires. It was argued by the learned counsel that if all the pellets had entered the body of Nishan Ali deceased, all those must have been taken out by the Medical Officer who was able to locate only two pellets in the dead body. According to the post-mortem report, the Medical Officer found left lung injured at three places and stomach was found punctured at four places. Abdominal cavity was full of blood.
The Medical Officer did not try to search the pellets from the abdomen or abdominal cavity. No question was asked from the Medical Officer in cross-examination about the presence of other pellets in the dead body. It was contended by the learned counsel that the pellets after striking the right ribs must have deflected towards lumbar vertebrae. This argument is without any basis. If the ribs were injured by the pellets, there was no question of deflection of pellets which must have lost their force. Secondly, the angles of 2nd and 3rd lumbar vertebrae were such where the pellets could not have been buried after deflection. The learned trial Judge came to the conclusion that it was a case of one fire and not of two fires as stated by the eye-witnesses. We are not inclined to agree with this finding of the learned trial Judge. It was a case of two fires and the reasoning advanced by the lower Court is neither supported from the evidence on record nor appears probable. The reasoning of the learned trial Judge is conjectural. In our view, the medical evidence is, in no way conflict with that of ocular account of this case.
11. The prosecution, in support of its case examined three eye--witnesses. Shahbaz P.W.1 is son of Nishan Ali deceased. Mst. Irshad Bibi is widow of the deceased. Mst. Nasreen, a sister of Shahbaz P.W. Is married to Khalid, a brother of Ali Daulat P.W. The three accused were cousins of Nishan deceased. Both the parties lived at one Dera known as Dera Baba Sukha which also is the place of present occurrence. The learned trial Judge excluded the evidence of Ali Daulat P.W.8 and Muhammad Shahbaz P.W.1 from consideration against the accused. Ali Daulat was not relied upon because according to F.I.R., he came to the spot after hearing noise but according to the evidence during trial, he was following the deceased at the time of occurrence. Secondly, he was resident of village Bahuman, about 1 -- miles from the place of occurrence. Thirdly, he was related to the accused and fourthly, that after the occurrence, he did not get the required seed from any other place. We have considered this reasoning. In our view, the lower Court rightly did not rely upon the evidence of Ali Daulat P.W.
Muhammad Shahbaz P.W.1 was disbelieved by the lower Court firstly because he did not go to the police station immediately after the occurrence; secondly, that he was not able to describe the manner in which injury No.2 had been caused; and thirdly, that he did not mention presence of the crime empty at the spot in the F.I.R. In our view, the evidence of Shahbaz P.W. Was excluded from consideration on flimsy grounds. As held above, it was not necessary for Shahbaz complainant to make mention of the presence of crime empty at the place of occurrence in the F.I.R. He left the place of occurrence for police station after some time. He was son of the deceased and as such, was naturally under shock and if he took some time to proceed towards the police station, it would not mean that he was not present at the spot at the time of occurrence. We have, above, not agreed with the finding of the learned trial Judge that Ni6han Ali deceased received only one injury.
Shahbaz P.W.1 fully described injury No.2 on the person of the deceased. It was argued by the learned counsel that the conduct of Shahbaz P.W.1 was unnatural because if he had been present at the place of occurrence, he would have gone to his father in an effort to save his life. He did not do that. His clothes were not stained with blood. It was, therefore, argued that Shahbaz P.W. Was not present at the spot at the time of occurrence. In our view, Shahbaz P.W. Did witness the occurrence. He had gone with his father to the fields and was returning with him when this occurrence took place. He was resident of the Dera where the accused murdered Nishan Ali. He was, therefore, a natural witness. He was son of the) deceased but was also related to the accused.
The parties did not have any other enmity other than the one stated by this witness. There is nothing to suggest as to why Shahbaz P.W.1 would falsely implicate the accused in this case. There is also no suggestion that the deceased had any other enemy. As such, the evidence of Shahbaz P.W. Could not have been excluded. It was argued by the learned counsel that the Kassi of the deceased or of this witness was not taken in possession) by the police which were stated to be lying at the spot when the police arrived there. In our view, it was not necessary to take the Kassis in possession because those were not incriminating articles. Mst. Irshad Bibi P.W.7 was wife of the deceased. She was washing clothes along with her daughter at the tubewell when this occurrence took place. It was argued by the learned counsel that the police did not note the presence of clothes being washed by this witness. In our view, it was not necessary to record the existence of those clothes in any document during investigation. She is, no doubt, wife of the deceased but had no direct or indirect enmity with the accused to falsely depose against them. It was argued that she was disbelieved as against two accused and as such, no reliance should be placed on her statement to record conviction of the appellant. Lashkar Ali accused was acquitted because he was empty handed and had not caused any injury to the deceased. In our view, the acquittal of Akhtar accused was not justified. We would have given him a notice in Criminal Revision No. 389 of 1984 but as the occurrence took place about five years earlier and the two accused were acquitted, vide impugned judgment, dated 16-11-1983, we refrained from issuing notice to him only to order his re-trial. There is no Government appeal against his acquittal. In our view, Mst. Irshad Bibi was a truthful witness and has rightly been relied upon by the lower Court. The two eye- witnesses namely, Shahbaz and Mst. Irshad Bibi have fully been corroborated by the medical evidence as well as the incriminating recoveries.
12. The learned counsel finally argued that in the facts and circumstances of this case, Feroze Din should not have been awarded the sentence of death. We have considered this contention. As held above, the prosecution has failed to prove motive in this case against the accused. The evidence does not indicate any immediate motive for an assault on the deceased. It is not known as to how the present occurrence started and what happened immediately before this occurrence. The motive is, therefore, shrouded in mystery.
13. In view of the above discussion, the conviction of Feroze Din accused-appellant under section 302, P.P.C. Is maintained. However, his sentence of death is reduced to imprisonment for life. The sentence of death of Feroze Din is not confirmed. Feroze Din appellant is sentences to imprisonment for life plus fine of Rs.10,000 (Rupees ten thousand) or in default one year's R.I. Under section 302, P.P.C. The entire amount of fine, if recovered, will be paid as compensation to heirs of the deceased. The appellant will be given benefit of section 382-B, Cr.P.C. This appeal is dismissed subject to above modification.
14. In view of the above decision in appeal, the connected criminal revision is dismissed in limine.