Riaz Ahmed, J-- The appellants Abbas Ali son of Rehmat Ali, Muhammad Nawaz son of Ali Muhammad and Manzoor Ahmed son of Salabat were tried by Addl: Sessions Judge, Faisalabad, on charge under section 302 read with section 34 of the Pakistan Penal Code for having caused the murder of Mughla (deceased) and also on charge under section 307/34 P.P.C, for having committed murderous assauIt on Sarfraz, PW 5.
2. Vide judgment dated 30th of January, 1988, the learned Addl: Sessions Judge found the appellants guiIty on both the charges. On the charge under section 302/34 P.P.C., the appellants Abbas Ali and Muhammad Nawaz were convicted and sentenced to death and to pay a fine of Rs.20,000/- each, or in defauIt to suffer rigorous imprisonment for a term of one year each.
Manzoor appellant on this charge was sentenced to undergo life imprisonment and to pay a fine of Rs.20,000/- or in defauIt thereof, to suffer rigorous imprisonment for a term of one year.
3. On the second charge under section 307/34 P.P.C., the appellants were sentenced to suffer rigorous imprisonment for a term of five years each and to pay a fire of Rs.10,000/- each, or in defauIt to suffer, rigorous imprisonment for a term of six months each. Half of the fine imposed, on the charge under section 302/34 P.P.C., if recovered, was ordered to be paid to the legal heirs of the deceased. Similarly, half of the fine imposed, on the charge under section 307/34 P.P.C, if recovered, was ordered to be paid to Sarfraz PW 5.
4. Aggrieved by their convictions, the appellants have preferred an appeal (Criminal Appeal No.211 of 1988), while the case has also been referred to us under section 374 Cr.P.C, This judgment shall dispose of both the appeal as well as the reference.
5. The unfortunate occurrence resuIting into the death of Mughla (deceased) and murderous assauIt on Sarfraz, PW 5, commenced on 10.9.1986 at 6 p.m. In the land near Ihata of Dosa in Chak No.44/J.B, Pucca Dala. And ended in the house of Dosa situated at a distance of I6 miles from Police Station Chak Jhumra, in District Faisalabad. Sarfraz, PW 5, proceeded to Police Post Arori to report the occurrence but on his way, on a pucca road, he came across Muhammad Hayat, Sub Inspector, PW 11, who recorded his statement Ex.P.l at 7.30 p.m., near Chak No.129/R.B., situated at a distance of 1 mile from the spot and 1h miles from Police Post Arori. The statement of Sarfraz, PW 5 (Ex.P/I) was sent to the police station for registration of a case, where formal FIR Ex.P.I/1 was recorded at 9.30 p.m. By Mumtaz Hussain, Moharrir Headconstable, PW 8.
6. In brief, Sarfraz, PW 5, in his statement Ex.P.l stated that he was a resident of Chak No.44/J.B and about 8 or 9 months before the occurrence, Mst.Sughran wife of Ghulam Nabi and eloped with Majja son of Lai Din, a maternal cousin of the complainant. A Punchayat intervened and Mst.
Sughran as restored. After 1h months of the restoration of Mst. Sughran, she was murdered by Ghulam Ali and one Mehboob and both were challaned but were released on bail. After the abduction of Mst. Sughran, the relations between the complainant side and parents of Mst.
Sughran had become strained, because Ghulam Ali and his brother suspected that the complainant acted as a go between Mst.Sughran and Majja. On the fateful day at 6 p.m., the complainant and his uncle Mughla (deceased) both returned to their house from their Dhari and at that time, Mst.Zubaida wife of Mughla (deceased) and gone to flour mill (Chakki) for getting wheat ground. The complainant and Mughla (deceased) proceeded towards the flour mill for getting the key of the Kotha from Mst.Zubaida and as soon as they reached the lane near the Ihata of Dosa, the appellants armed with 12 bore guns reached raising Lalkaras to the effect that the complainant side would not be spared. The complainant and Mughla (deceased) in order to save themselves, took sheIter into the Ihata of Dosa and as they reached in front of the western Kotha in the said Ihata, they noticed all the three appellants entering the Ihata of Dosa while raising Lalkaras. The appellants Abbas Ali and Muhammad Nawaz, one after the other, fired shots hitting Mughla (deceased) in his abdomen and chest, as a consequence of which, Mughla fell down. The appellant Manzoor alias Jhoqra, also fired a shot hitting the right arm and right flank of the complainant. The occurrence attracted Muhammad Ali, PW 6 and Mst. Zubaida PW 7, widow of Mughla (deceased) at the scene of occurrence and they also noticed the assauIt on the deceased and the complainant. After having fired these shots, all the three appellants escaped from the scene of occurrence. Mughla died at the spot.
7. On 11.9.1986 at 2 a.m. Dr. Iqbal Ahmed Javid, (PW 1) Medical Officer, medically examined Sarfraz, PW 5 and noticed the following" injuries on his person.
1. A circular lacerated wound of fire arm of entrance on the back surface of the right fore-arm on the medial aspect 1" above the right wrist 1h x 1 h x probe passed upto wound of exit. The edges of the wound were inverted, acchymosed, scorched and blacked Injury was kept under observation and X- ray was advised.
2. A wound of fire arm of exit on the front of right fore arm 4 V above the front of the right wrist, 1" x h . The edges of the wound were everted. Injury was also kept under observation and X-ray was advised.3. Obliquely lacerated wound of fire-arm on the outer aspect of the right side of chest, 6h below the right armpit, 1h x h x skin deep super-ficially. Corresponding perforation was seen in the shirt and Bunian which were blood stained."
Injuries Nos.l and 2 being one and the same injury were declared grievous while injury No.3 was simple.8. On the same day at 6.30 p.m., the said doctor conducted the post-mortem examination on the dead of Mughla (deceased) and the following injuries were noticed.
1. A circular, lacerated, wound of fire arm of entrance on the front of the right side of the chest just below the medial line of right clavical bone, h x h x probe passed deep into chest cavity. The edges of wound were inverted, acchymosed, scorched and blackened. A corresponding perforation was seen in kurta which was blood stained.
2. A wound of fire arm of exit on the back surface of right side of chest, 1h x lateral to the midline, 5h below the top of right side of chest, 1/2 x The edges were everted.
3. Four circular lacerated wounds of fire-arm of entrance on the front of right half of the abdomen in a diameter of 6 x 6 each 1/2 x 1/2, probe passed deep into abdominal cavity. The edges of th wound were inverted acchymosed scorched and blackened. Four corresponding perforation were seen in Kurta which was blood stained.
4. A wound of fire arm of exit on back surface of right lumber region 4h lateral to midline and 1h above the right hip, 1/2 x 1/2 . The edges of wound were everted."
The right side of the chest wall was found perforated at one place below the medical end of right clavical. The right pleurae and lung were also perforated. The right half of abdominal walls was found perforated at four places.
In the opinion of the doctor, the death had occurred due to the shock and haemorrhage on account of injuries Nos.l to 4. Injuries Nos. 1 & 2 was one injury and was opined to be the resuIt of one shot while, injuries Nos.3 and 4 were opined to be the resuIt of second shot. Both shots were individually sufficient to cause death in the ordinary course of nature.
9. On 10.9.1986, during inspection of the spot, Muhammad Hayat, Sub Inspector, PW 11, recovered three empties, P.13/1-3, from the spot, which were taken into possession vide memo Ex.P.K, attested byMuhammad Ali, PW 6 and Inayat (not produced) besides the investigation officer Muhammad Hayat, S.I., PW 11.
10. On 15.9.1986, all the appellants were arrested by Muhammad Hayat, S.I.PW 11 and on the same day, the appellant Abbas Ali produced his licensed gun P.9 along with its licence PalO, it was taken into possession vide memo Ex.P.l, attested by Muhammad Ali PW 6, Suba (not produced) besides Muhammad Hayat, S.I, PW 11. On the same day, the appellant Muhammad Nawaz, led the police and got recovered gun P.11 and four cartridges P.14/1-4 from his Dhari and the same were taken into possession vide memo Ex.P.M. Attested by Muhammad Ali, PW 6, Suba (not produced) and Muhammad Hayat, S.I., PW 11. On the same day, the appellant Manzoor Ahmed also led the police and got gun P.12 along with four cartridges P.15/1-4 recovered from his Dhari and the same were taken into possession vide memo Ex.P.N. Attested by Muhammad Ali, PW 6, Suba (not produced) and Muhammad Hayat, S.L, PW 11. The empties were sent to the Forensic Science Laboratory on 17.9.1986 where they were delivered on 18.9.1986. On 21.9.1986, the guns were sent to the Forensic Scicenc Laboratory and the same were deposited on the next day i.e. 22.9.1986. Vide report of the Fire-arm Expert Ex.P.R., from each of gun, one crime empty had been fired.
11. To prove its case, the prosecution placed reliance upon the ocular testimony furnished by Sarfraz, PW 5, the nephew of the deceased and the daughter of the deceased is also married to the brother of Sarfraz, P.W.5 and Muhammad Ali PW 6, is the son-in-law of the deceased, while the second wife of the deceased is sister of the witnees. Mst.Zubaida P.W.7, Widow of the deceared is the sister of Muhammad Ali, PW 6. In addition to the ocular testiInony, the prosecution also placed reliance upon the evidence as to the motive and the recovery of guns and the report of the Fire- arm Expert as corroborative evidence.12. In their examination under section 342 Cr.P.C, the appellants denied the allegations and pleaded that they have been falsely implicated in this case, on account of enmity. They declined to appear in the witness box, in their defence. The appellant Abbas Ali tendered in evidence, a certified copy of the judgment dated 14.3.1987 of Addl: Sessions Judge, Faisalabad, in the case FIR No.59 of 1986, Police Station Chak Jhumra Ext. D.B, and a copy of the statement of Mughla (deceased) dated 4th of March, 1946 in the case State vs. Mughla and twelve others Ex.D.C.
13. With the assistance of the learned counsel for the appellants and the State, we have carefully perused the record and we have also heard the learned counsel for the parties at length.
14. It was contended by the learned counsel for the appellants that the FIR in this case is a doubtful document, inasmuch as, it was not recorded, either at the police post or at the police station and, therefore, it was drawn after preliminary investigation. It was next contended that the ocular testimony in this case was partisan in nature and there existed long standing enmity between the complainant and the appellants. In this behalf, our attention was drawn to the statement of the investigating officer, Muhammad Hayat, S.L, PW 11, who stated in cross-examination that there was a party-faction in the village.
15. We proceed to examine the background of the enmity and the motive as sought to be set up by the prosecution in this case. Sarfraz PW 5, is the only witness who has deposed about the motive in this case. According to Sarfraz, PW 5, 8/9 months before the occurrence in this case, his cousin Majja had enticed away Mst. Sughran wife of Ghulam Ali but she was restored through Punchayat and thereafter, a month and half before the occurrence, Mst. Sughran was murdered by Ghulam Ali and Mehboob who after having been challaned were released on bail after two months of the occurrence. It was further deposed by Sarfraz, PW 5, that they suspected that he was a go between Mst. Sughran and Majja and as such, they were not on visiting terms.
16. After careful examination of the entire evidence on the record, suprisingly, the prosecution has not made any effort to connect Mst. Sughran with the appellants. In cross-examination, Sarfraz, PW 5, admitted that one Mirza son of Sahu was murdered and Abdullah and his two nephews Mohri and Bhai Khan were challaned in the murder of said Mirza. Sarfraz PW 5, further admitted that to avenge the murder of Mirza, Agra murdered Mohri son of Mohabbat and in this murder, Agra and his brother Mughla and his uncle Dosa and Bakhsha were challaned but they were acquitted.
Sarfraz PW 5, also admitted in cross-examination that Ali Muhammad father of Muhammad Nawaz appellant had pursued the said case on behalf of the accused and after their acquittal Agra was murdered in 1964. Sarfraz PW 5, however, frankly conceded that he was a child at that time and his knowledge was based upon what he had heard. It was also admitted by Sarfraz, PW 5, in cross- examination that Nazira son of Babu and Bhai Khan were challaned in the murder case of Agra and Bhai is the paternal cousin of Suba. In cross- examination, Sarfraz, PW 5, however, expressed his ignorance about certain facts. The perusal of his entire statement shows that he had not suppressed any fact, but had stated what he knew. To sum up, we cannot help but to observe that no direct enmity worth the name between the complainant side and the appellant side has been elicited by the defence. Furthermore, as observed earlier, the prosecution failed to establish any link between the abduction of Mst. Sughran and her murder with the appellants. In this view of the matter, we are constrained to hold that the motive in this case as sought to be set up by the prosecution does not stand proved on the record.
17. Adverting to the ocular testimony, in this case, no doubt, that all the three eye witnesses are closely related to the deceased. Sarfraz, PW 5, is not only the nephew of the deceased but his brother is married with the daughter of the deceased. Muhammad Ali, PW 6, happens to be the son- in-law of the deceased while his own sister Mst. Zubaida PW 7, is the second wife of the deceased. However, needless to say that mere relationship is ncr ground to discard their testimony.
Sarfraz PW 5, has stamp of injuries on his person and it is not disputed that he was also injured in the occurrence. The statement of Sarfraz, PW 5, is natural and he has given consistent version of the occurrence and despite having been cross-examined at length, his credit could not be shaken.
Similarly, Muhammad Ali, PW 6, who is a resident of the village stated, thnt on the fateful day, he was going towards the shop of village black-smith l>'r the repair of the plough while Mughla deceased with Sarfraz PW 5 were going ahead of him to the Chakki of one Muslim son of Ibrahim and when they reached near the house of Dosa, the appellants armed with guns, appeared at the scene raising Lalkaras. According to this witness, the deceased and Sarfraz PW 5, rushed into the Ihata of Dosa to seek sheIter. The appellants also chased them in the Ihata where the deceased and Sarfraz PW 5, were fired at. Mst. Zubaida, PW 7, after hearing the fire shots also reached the Ihata because the Chakki of Muslim was not far off and thus all of them had seen the occurrence.
In this view of the matter, after anxious consideration, we are of the view that the statements of all the three eye witnesses ring true and particularly so, when nothing has been brought on the record to show that they are trying to implicate the appellants falsely.
18. Much emphasis was laid by the learned counsel for the appellants to a portion of the statement of Mst. Zubaida PW 7, in her cross- examination when she stated that the Thanedar had visited the spot and had told her to get a case registered against the culprits and on her assurance, the investigating officer had registered the case. In our view, no significance can be attached to this portion of the cross-examination because Mst. Zubaida PW 7, is a rustic villager and she could have misunderstood the situation under a misconception because the investigating officer had visited the spot to inspect it and of course, he must have elicited certain facts from Mst. Zubaida, PW 7, and, therefore, wi are not convinced of the fact that the FIR in this case was registered after preliminary investigation. This brings us to examine the defence plea.
19. A suggestion was given to Sarfraz, PW 5, that the deceased had a number of enemies in the village and, therefore, one of such enemies had murdered Mughla. It was admitted by Sarfraz, PW .5, that a leg of Mughla was broken before the present occurrence and in that case, Muhammad Ali PW 6, brother of Arif and other relations were challaned and convicted. It was also admitted that Sarfraz, PW 5, and the relations of Mughla deceased were involved in the murder because of Umaid son of Waga. However, the witness denied the suggestion that the deceased had illicit liaison with Mst. Sardaran wife of Dosa and her sons used to tell the deceased not to visit their house. Sarfraz PW 5, further denied that the deceased used to visit Mst. Sardaran in her house, while armed with his licensed gun and that on the night of occurrence at about Esha Wela, the deceased was found present with Mst. Sardaran in her Kotha in an objectionable condition and thus, the son of Mst.
Sardaran namely Yaqoob who came from outside and having seen Mst. Sardaran with the deceased in an objectionable posture had killed Mughla. Sarfraz, PW 5, also denied that he had gone inside the Kotha while armed with a gun and after having heard the alarm had indulged into indiscriminate firing in defence. He denied that the deceased was injured during the cross-firing.
Similar, suggestions were given to Muhammad Ali, PW 6, and it was contended that Muhammad Hayat, S.L, PW 11, had admitted that on 12.9.1986, Ali Muhammad father of Muhammad Nawaz, appellant, had appeared before him and had disclosed that Mughla deceased was armed with gun at the time of occurrence and he was the first to have fired a shot. Unfortunately, all these suggestions do not lead us any where because there is a wide gap of facts to arrive at the logical deduction of such suggestions, therefore, we cannot attach any weight or significance to it.
Furthermore, there is nothing on the record to show that in fact, the deceased had illicit liaison with Mst. Sardaran and hence we are not prepared to believe it. Had it been so, the fate of the case would have been different and such an affair could not have remained concealed. Hence the plea has no basis and legs to stand and, therefore, the same is hereby repelled. Besides the ocular testimony, being above board in this case, the same also stands corroborated by the recovery of guns and the report of the Fire-arm Expert, according to which, one empty each had been fired from three guns. Hence, the ocular testimony in this case, stands fully corroborated and we have no doubt in our mind, about the participation of the appellants in the occurrence. In this view of the matter, this appeal must fail.
20. The upshot of the above discussion is that the prosecution has brought home guiIt to the appellants beyond any shadow of doubt. However, the question of sentence of death awarded to the appellants Abbas Ali and Muhammad Nawaz requires consideration on account of the failure of the prosecution to prove the motive in this case and particularly so, when the same was sought to be set up by the prosecution. It is now well settled that if the prosecution fails to establish the motive, as sought to be set up, then in the said event, it must suffer. Accordingly, we are of the view, that sentence of death to the two appellants namely Abbas Ali and Muhammad Nawaz needs revision and thus we would aIter it into life imprisonment because the motive is shrouded in mystery. In this view of the matter, the appeal preferred by the appellants is hereby dismissed, with the modification in the sentence as indicated above. The appellants shall be entitled to the benefit of section 382-B Cr.P.C.
21. The conviction of the appellants under section 307/34 P.P.C, is also maintained. The sentence of fine on both the charges is also maintained. However, we direct that the sentence of life imprisonment and the sentence on the charge under section 307/34 P.P.C, shall run concurrently.
We further direct that the appellants shall also be entitled to the benefit under section 382 (b)
Cr.P.C.
Accordingly, the appeal is dismissed. The death sentence is not confirmed and the reference is answered accordingly.