' QURBAN SADIQ IKRAM, J.--Karam Din 90 filed Criminal Appeal No, 541 of 1984 Munir Ahmad 28 and Mansha 45 filed Criminal Appeal No, 679 of 1984 to challenge their conviction under section 302/34, P.C. 'by learned Additional Sessions Judge, Lahore, who vide judgment, 'dated 7-10-1984; 'sentenced Munir Ahmad to imprisonment for life, Mansha to R.I. For 10 years and Karam Din to R.I. For 5 years.
Their co-accused Shaukat 25 and Allah Ditta 20 were acquitted by the same judgment. Another accused Allah Rakha died during the trial.All and Allah Ditta accused to challenge their acquittal.
This appeal was not admitted. It was ordered to be heard alongwith the connected appeals.
' The State filed Criminal Revision No,167 of 1985 against Muhammad Munir, Muhammad Mansha and Karam Din seeking enhancement of their sentence under section 302/34, P.P.C. This was admitted vide order, dated 10-6-1985 by which notice was issued to the respondents to show cause why, in case their appeal fails, their sentence be not enhanced.
' Amjad Ali complainant filed Criminal .Revision No,554 of 1984 against the three convicts and two acquitted accused. This was admitted against the three convicted accused and ordered to be heard alongwith the connected appeals.
' All the above matters being directed against one judgment, will be disposed of together.
2. The occurrence in this case took place on 29-5-1983, at about 6-00 p.m. At the brick-kiln in the area of village Niaz Beg, about 4 miles from Police Station Chung, District Lahore. The formal F.I.R.
Exh. P.C./1 was recorded by M.H.C. Muhammad Akbar P.W.5 at the Police Station .On the same day at 8-30 p.m. On the basis of statement Exh. P.C. Recorded at 8-00 p.m. On 29-5-1983, at the spot by A.S.I.. Muhammad Zaman P.W.11, at the instance of Amjad Ali complainant P W .7.
' It was stated by Amjad Ali P.W. In his statement Exh. P.C. That on 29-5-1983, at about 6-00 p.m., he, his father Jalal Din deceased were getting the wheat thrashed near their brick-kiln. His father was sitting on a cot. He alongwith his brother Naeem Akhtar, Abdul Majid and Shams ud Din was working at the thrasher. Karam Din accused came there. He sat on the cot with his father and started talking with him regarding land. He told his father to settle the land dispute otherwise he would not allow the wheat to be removed from there. There was unpleasantness. Karam Din left.
Jalal Din remained sitting on the cot supervising the thrashing of wheat.
' It was stated by Amjad Ali P.W. That after about half an hour, Karam Din returned to that place alongwith his sons Munir Ahmad, Shaukat Ali, Allah Ditta, Allah Rakha and his grandson Muhammad Mansha. Out of them, Munir accused who had come from western side, fired with a carbine from a distance of few paces, hitting his father on the back of neck. He fell on the cot.
Muhammad Mansha accused who had come from the eastern side gave 2/3 kassi blows to Jalal Din. Thereafter, Allah Ditta accused took the said kassi from Muhammad Mansha and gave a blow on the cheek of Jalal Din. During this occurrence, Karam Din continued shouting lalkaras while Shaukat and Allah Rakha accused did not allow them to rescue Jalal Din deceased by aiming guns at them. The accused then left the spot.
' The motive was stated to be that about 15/16 years earlier, Jalal Din had obtained land from Nawab Qazilbash for installing a brick-kiln. The said land was under cultivation of Karam Din accused as tenant of Nawab Sahib. He, therefore, felt annoyed and about 5/6 years earlier tried to get back possession of the said land but did not succeed.
3. The dead body of Jalal Din aged 55/60 years was sent for post-mortem examination which was conducted by Dr. Muhammad Farooq Akmal P.W.2, at 11-30 a.m. On 30-5-1983. On external examination, the Medical Officer found seven incised wounds of various dimensions on right cheek cutting through muscles and right maxillary bone above the alueolar margin; on outer side of right angle of mouth which extended to the right side of neck crossing over the angle of right jaw cutting the underlying muscle and bone; on right side of lower lip extending to the right side of neck on the face parallel to injury No,2, on right ramus cutting the mandible bone parallel to injury No,3; below the chin extending to the right side of the neck cutting the mandible; on right side of neck below the lobe of right ear; and top of right shoulder extending to the right side of the neck. He also found a gun fire entry wound with irregular edges, lightly tattoot all around with tags of tissues attached in line with occipital proturberance. On exploration, two wads, one of plastic and one of cardboard, were recovered from the wound. The area of the back of shirt was torn and burnt. There was intensive tearing of skin and muscle tissues. 1st, 2nd and 3rd ribs were fractured. The right lung had collapsed, adherent to the chest wall, contused at its upper and hilar surface and lacerated at the upper lobe area. Pieces of bone were embedded in the apex of right lung. There were multiple oral exit wounds with everted edges in an area of 18 c.m. x 1 c.m. Above and to the right of right nipple fracturing the right clavicle and piercing the inter costal muscle. There were also multiple irregular contusions at the front and right chest area. Three pellets were recovered from the subcutaneous tissues. The 2nd, 3rd and 5th ribs at the front of right chest were fractured.
' On internal examination, cerebral vessels were found congested. The tongue was contused.
' Injury No,8 was la linear abrasion at the top of right shoulder extending to right side of the neck.
Injuries 1 to 7 were by sharp-edged weapon. Injury No,8 was by blunt weapon. Injuries 9-A, 9-B and 9-C were caused by a fire-arm. Injuries 5 and 9 were individually sufficient to cause death in ordinary course of nature. The death was due to shock and haemorrhage. The time between injuries and death was within minutes and post-mortem was conducted in about 12 to 24 hours of death.
4. A.S.I. Muhammad Zaman, P.W.11, after registration of the case undertook investigation. On 29-5- 1983, during investigation on spot of the occurrence, he collected blood-stained earth vide memo Exh. P.D. He also took in possession crime empty P.3 from the place of occurrence vide memo Exh.
P.E. In presence of Shamsud Din P.W.6 and Abdul Majid P.W.8. Cot P.6 and pillow P.5 were taken in possession from the spot vide memo Exh. P.F. In presence of same witnesses.
' The investigation was then taken over by S.I. Abdul Hayee Niazi P.W.12. The accused were arrested on 30-5-1983.
' Munir Ahmad accused on 3-6-1983, led to the recovery of carbine P.6 and live cartridge P.7 from his house vide memo Exh. P.J. These were taken in possession by S.I. Abdul. Hayee P.W.12, in presence of Nazar Hussain P.W.9 and Riasat Ali P.W., not examined. Muhammad Mansha accused on the same day led to the recovery of blood-stained Kassi P.8, vide memo Exh. P.R. In presence of same witnesses.
' Allah Rakha accused on 5-6-1983, led to the recovery of gun P.9 alongwith live cartridge P.10 which were taken in possession by SA, Abdul Hayee P.W.12 vide memo Exh. P.L. In presence of Lal Din P.W.10 and Muhammad Anwar P.W., not examined. Shaukat accused on the same day led to the recovery of gun P.11 and live cartridge P.12 vide memo. Exh.P.M. In presence of same witnesses.
' Kassi P.8 was found stained with human blood vide report of Chemical Examiner Exh. P.V. And that of Serologist Exh.P.X.
' Carbine P.6 recovered at the instance of Munir Ahmad accused was found wedded to crime emtpy P.3 vide report of Forensic Science Laboratory ' ' Exh. P.Y.
' The accused were challaned after completion of investigation.
5. In support of its case prosecution examined 12 witnesses in all. Shamsud Din P.W.6, Amjad Ali P.W.7 and Abdul Majid P.W.8 were examined as eye-witnesses of the occurrence. Naeem Akhtar, another eye-witness named in the F.I.R. Was given up as unnecessary. The medical evidence was furnished by Dr. Muhammad Farooq Akmal P.W.2 as given in detail above. The incriminating recoveries from the place of occurrence were witnessed by Shamsud Din P.W.6 and Abdul Majid P.W.8. The recoveries of crime weapons from Munir Ahmad and Muhammad Mansha appellants were witnessed by Nazar Hussain P.W.9. The recoveries of crime weapons from the two acquitted accused were witnessed by Lal Din P.W.10. The case was initially investigated by A.S.I. Muhammad Zaman P.W.11 and then by S.I. Abdul Hayee Niazi P.W.12. The evidence of the rest of witnesses was of formal nature.
' The accused when examined after close of prosecution evidence denied their involvement in this occurrence. They pleaded innocence. It was stated by Karam Din accused that Jalal Din was killed by some unknown person after sun set when no one of the witnesses was present; that he and his children have been falsely implicated in this case because Ch. Hashmat Ali, a Munshi of the late Nawab Muzaffar Ali Qazilbash wanted him to vacate the, land. The accused did not produce any evidence in defence.
' Learned trial Judge placed reliance on the evidence of the eye-witnesses, motive, incriminating recoveries and convicted the appellants under section 302/34, P.P.C. As stated above.
6. It is contended on behalf of the appellants firstly, that prosecution has failed to prove motive against the accused; secondly, that the eye-witnesses were interested. They were not present at the spot at the time of occurrence and, therefore, not reliable; thirdly, that the recoveries of incriminating articles were doubtful.; fourthly, that the medical evidence did not corroborate the ocular account of the case; and finally, that the F.I.R. Seems to have been recorded at the spot after some preliminary enquiry which makes the prosecution case doubtful. The learned counsel for the appellants, however, conceded that the learned trial Judge erred in law by awarding 5 years R.I. To Karam Din and 10 years R.I. To Mansha appellant after finding them guilty under section 302/34, P.P.C. He vehemently argued that the prosecution has failed to prove its case against the appellants who be, therefore, acquitted. The learned counsel appearing on behalf of the State and complainant controverted the above contentions.
7. The motive was stated to be that about 15/16 years earlier, Jalal Din deceased got some land on lease from Nawab Muzaffpr Ali Qazilbash for installation of brick-kiln. Was said land was under cultivation of Karam Din as tenant. He was dispossessed. He tried to get back possession of the land. He failed and, therefore, felt annoyed. In order to prove motive there is evidence of Shamsud Din P.W.6, a Munshi of Jalal Din deceased. He stated in cross-examination that "during my period of service with the deceased, a quarrel did take place about 3/4 months prior to the occurrence between the accused and the deceased." He further admitted that Karam Din accused owned agricultural land near the place of occurrence. Amjad Ali, P.W.7 stated that his deceased father and Karam Din accused while talking exchanged hot words before this occurrence and that Karam Din accused said that he would not allow the removal of wheat without decision about the land. Karam Din accused in his statement after close of prosecution evidence, stated that he had land surrounding the land of brick-kiln of Jalal Din deceased; that the land in possession of Jalal Din was previously under, his possession as tenant and that they got that land in the Land Reforms. He further stated that Ch. Hashmat Ali, a Munshi of Nawab Muzaffar Ali Qazilbash wanted to get back that land at every cost and, therefore, falsely implicated in this case. It is, therefore, apparent not only from the statements of the prosecution witnesses but also from the statement of Karam Din accused that there was some dispute over land between the parties. The complainant party had no enmity or motive to falsely involve the accused in this case nor the accused had any motive excepting the land dispute to launch an assault on Jalal Din deceased. There was no previous enmity between the parties. We are satisfied that the accused had grudge against Jalal Din deceased because he had installed a brick-kiln on the land previously in their possession as tenants of Nawab Muzaffar Ali Qazilbash.
8. The Investigating Officer during inspection of the spot on 29-5-1983, took in possession crime empty P.3, in presence of Shamsud Din' P.W.6 and Abdul Majid P.W.8. The accused were arrested next day of the occurrence on 30-5-1983. Munir Ahmad appellant on 3-6-1983, while in pblice custody led to the recovery of carbine P.6 alongwith live cartridge P.7 vide memo Exh. P.J. This recovery was effected in presence of Nazar Hussain P.W.9 and S.I. Abdul Hayee Niazi P.W.12. On that very day, blood-stained kassi P.8 was recovered at the instance of Muhammad Mansha accused in presence of same witnesses. Nazar Hussain P.W.9 is Dogar by caste and is not related to the deceased. He was, in no way, connected with the complainant party. He had no enmity whatsoever with the accused. He was an independent witness and we do not find any reason to exclude his evidence from consideration. It was pointed by the learned counsel that according to A.S.I.
Muhammad Zaman P.W.11, sealed parcels containing blood-stained kassi, blood-stained earth and empty cartridge alongwith cot were deposited in the Malkhana for Police Station on 29-5-1983 vide entry No,379 in register No,19. It was, therefore, argued by the learned counsel that the recovery of Kassi P.8 on 3-6-1983, becomes doubtful because according to the eye-witnesses, only one kassi was used firstly by Muhammad Mansha and then by Allah Ditta accused. It was argued that the prosecution has failed to explain as to whom kassi deposited in Malkhana on 29-5-1983 belonged.
This argument does not, in any way, effect the veracity of Nazar Hussain P.W.9 who stated that kassi P.8 was recovered on 3-6-1983 at the instance of Muhammad Mansha. The fact that the prosecution has failed to explain the blood-stained kassi taken in possession by the Investigating Officer during inspection of the spot would not mean that the kassi P.8 was not recovered from Muhammad Mansha accused. It is in evidence that accused left the spot alongwith their respective weapons. It is nobody's case that the complainant party used any kassi at the time of occurrence or that the accused used two different kassis at that time. The omission to explain the presence of blood-stained kassi does not affect the merits of the case. We have carefully examined the evidence. It was stated by H.C. Muhammad Akbar P.W.5 that on 30-5-1983, he was Moharrir Police Station Chung and that on the same day, Muhammad Zaman, A.S.I. Handed over to him one sealed parcel containing blood-stained earth and one empty cartridge for keeping the same in Malkhana.
He further stated that on 3-6-1983, S.H.O. Abdul Hayee gave him one sealed parcel containing kassi and a sealed parcel of carbine for keeping in the Malkhana. This witness was the person who kept the articles of this case in Malkhana and must have, therefore, made entries in register No,19.
However, no question in cross-examination was put to him regarding entries in register No,19: He stated in cross-examination that according to report No,19 of daily diary dated 29-5-1983, he did not specifically mention that parcel containing blood-stained earth and cartridge were handed over to him. He stated that it is mentioned that the property according to memos had been handed over to him. He further stated that he had received blood-stained cot on 29-5-1983, through A.S.I. Muhammad Zaman but the blood-stained pillow was not given to him.This witness was not cross-examined regarding the receipt of blood-stained kassi for deposit in Malkhana on 29-5-1983. He was the best witness to be cross-examined on this point. A.S.I. Muhammad Zaman was still investigating the case on the day of occurrence when at about 9-30 p.m., S.I. Abdul Hayee Niazi reached the place of occurrence and took over investigation. It was stated by A.S.I.
Muhammad Zaman in cross-examination that "I had not taken in possession any kassi from the place of occurrence." He further stated that "it is correct that according to entry No,379, dated 29- 5-1983 of register No,19, a sealed parcel containing blood-stained earth, sealed parcel containing blood-stained kassi and a cot was deposited in the Malkhana of Police Station." There is no recovery memo dated 29-5-1983 showing recovery of any blood-stained kassi from the place of occurrence. Secondly, the record of the evidence of A.S.I. Muhammad Zaman P.W.11 does not show that original register No,19 was before the witness when he was making statement in Court; and thirdly in only one line above this admission, he clearly stated that he had not taken in possession any kassi from the place of occurrence. It is, therefore, clear firstly, that no kassi was taken in possession from the place of occurrence on 29-5-1983; secondly, no kassi was deposited in Malkhana on 29-5-1983; and thirdly, A.S.I. Muhammad Zaman seems to have made statement in Court under some wrong impression or by not following the question. Kassi P.8 was stained with human blood. Its recovery lends corroboration to the eye-witness account of the case. The crime empty P.3 and the carbine P.6 were sent to the Forensic Science Laboratory for comparison and examination. According to the report of Fire-arms Expert Exh. P.Y., the crime empty P.3 had been fired from carbine P.6. It is correct that the crime empty P.3 and the carbine P.6 were sent together to the Forensic Science Laboratory on 18-6-1983 but this would not mean that the evidence was fabricated by the Investigating Officer. The sealed parcel of crime empty was deposited in Malkhana on 30-5-1983 and the sealed parcel of the carbine was deposited in the Malkhana on 3- 6-1983. There is no circumstance to indicate that the parcels were ever taken out of the Malkhana to fabricate evidence against the accused. The Director Forensic Science Laboratory received the two parcels with seals intact. As such, keeping in view the evidence on record in this case, we do not find any substance in the contention on behalf of the appellants that mere fact that the two parcels were sent together to the laboratory makes the prosecution case doubtful. The incriminating recoveries and the report of the Fire-arms Expert fully corroborate the ocular account of this case.
9. As stated above, Shamsud Din P.W.6, Amjad Ali, P.W.7 and Abdul Majid P.W.8 were examined as eye-witnesses of the occurrence. Shamsud Din P.W.6 was Munshi of the deceased, Amjad Ali a son of the deceased and Abdul Majid was the car driver of the deceased. The witnesses are, therefore, interested in Jalal Din deceased. They, specially Shamsud Din and Abdul Majid had absolutely no enmity to make false statements against the accused. The three eye-witnesses made consistent statements during the trial. In our view, they were independent independent witnesses. It was contended by the learned counsel that the F.I.R. Was recorded admittedly at the place of occurrence which fact indicates that it was recorded after some preliminary enquiry. The learned counsel in support of this contention drew our attention to the statement of ' Muhammad Akbar P.W.5 who stated that it is correct that according to report No,17, dated 29-5-1983, A.S.I. Muhammad Zaman after receiving telephonic information left the Police Station for brick-kiln under instructions from the S.H.O. It was stated by A.S.I. Muhammad Zaman that he was present at the Police Post on 29-5-1983. He received information of the occurrence and therefore, proceeded to the place of occurrence. He admitted that in the Karwai Police he stated that he got information while on patrol duty. He further admitted that according to Roznamcha report No,17, he informed H.C. Muhammad Ajmal on telephone about the firing. He admitted that he had been told-by S.I. Abdul Hayee to proceed to the place of occurrence. Similar statement was made by S.I. Abdul. Hayee Niazi P.W.12.
We have carefully gone through this evidence according to which only this fact can be inferred that the police had received some information about the occurrence before recording of the F.I.R. It was after receipt of the information that A.S.I. Muhammad Zaman proceeded to the place of occurrence. He met Amjad Ali complainant near the spot and recorded his statement Exh. P.C.
There is nothing in these statements that the police got details of the occurrence at the Police Post or at the Police Station before recording of the statement Exh. P.C. We are, therefore, of the view that Shamsud Din and Abdul Majid P.Ws. Only were present at the spot at the time of occurrence being servants of Jalal Din deceased. There was no occasion or necessity for Amjad Ali P.W. To be present there at that time. Shamsud Din or Abdul Majid must have sent information to the sons of Jalal Din about the occurrence. It is generally noticed that in such like serious cases first information report is not lodged by witnesses without first informing the relatives of the deceased. The two eye- witnesses were present at the place of occurrence. They saw the accused murdering Jalal Din deceased. It appears that they both being servants did not consider it proper to report the matter to police of their own. Both of them were independent witnesses and we do not find any circumstance to exclude their evidence from consideration. It was pointed out by the learned counsel that the sharp edged weapon injuries 1 to 7 on the person of the deceased were found to have clean cuts which could not be the result of kassi blows. The learned counsel, therefdre, argued that the medical evidence was not in line with the statements of the eye-witnesses.
This'argument was without any merits. Kassi is a sharp-edged weapon. The sharp side of Kassi becomes sharper by constant use. It could, therefore, not be said that injuries 1 to 7 on the person of the deceased were not the result of kassi blows.
10. Karam Din accused was aged about 90 years. He was empty-handed at the time of occurrence.
Only lalkara has been attribute to him. It could, therefore, not be said with certainty that he shared common intention with his co-accused to murder Jalal Din deceased. We, therefore, as an abundant causion, give him benefit of -doub and acquit him from the charge. Criminal Appeal No,541 of 1984 I accepted and his conviction and sentence is set aside. He is on bail. His bail and surety bonds shall stand discharged.
' Mr. Nazir Hussain Awan, Additional Sessions Judge, Lahore held Munir Ahmad and Mansha accused guilty under section 302/34, P.P.C. He awarded sentence of imprisonment for life to Munir Ahmad. No order regarding sentence of fine was recorded. Mansha accuse was awarded R.I. For 10 years. This sentence was illegal as onl B death or imprisonment for life could be awarded to an accused hel guilty under section 302, P.P.C. The learned trial Judge, therefore, erred in law in awarding 10 years R.I. To Muhammad Mansha accuse under section 302/34, P.P.C.
11. In view of the above discussion, Criminal Appeal No,679 o 1984 is dismissed. The conviction of Munir Ahmad and Mansha accused under section 302/34, P.P.C. Is maintained. Criminal Revision No,55 of 1984 and Criminal Revision No, 167 of 1985 are accepted.. Muni Ahmad and Mansha accused are sentenced to imprisonment for lif plus fine of Rs,20,000 or in default two years R.I. Each under section 302/34; P.P.C. For murder of Jalal Din.
12. In view of the above discussion, the connected Criminal Appeal No,192 of 1985 is dismissed in limine.