QURBAN SADIQ IKRAM, J.- This is an appeal by Yaseen 26 and Hakim Ali 55 against the judgment dated 14.10.1985 by learned Additional Sessions Judge-II Okara by which they were sentenced to death and fine of Rs.5000/- or in defauIt one year R.I. Each under section 302/34 PPC. For the murder of Muhammad Idrees and to three years R.I. Plus fine of Rs.2000/- or in defauIt six month R.I.
U/s 307/34 PPC on two counts for murderous assauIt on PWA Noor Muhammad and PW.6 Muhammad Ramzan.
Munir Ahmad 20 and Sha'aban 60, two co-accused of the appellants were acquitted by the same judgment.
The appellants having been sentenced to death, proceedings are also before us for confirmation of their sentences. This judgment will dispose of both the matters together.
2. The occurrence in this case took place an 17,4.1983 at 6.45 A.M. In the area of village Bhagwanpura about 8 miles from Police Station Depalpur District Okara. The FIR Ex.PE was recorded at the Police Station by S.I. Baqir Hussain PW.Ll on the same day at 7.45 A.M. On the statement of PW-3 Jan Muhammad.
It was stated by Jan Muhammad complainant in his FIR that his brother Muhammad Ramzan had secured five acres of land from Ghafoor Khan on lease for two years. On 16.4.1983 at about peshi- wela Yaseen accused started digging sand from the said land which was objected to by Muhammad Idrees deceased. This resuIted in exchange of abuses and quarrel between the two.
Yaseen accused left the spot threatening to take revenge.
It was stated by Jan Muhammad that on 17.4.1983 at about 6.45 A.M. Muhammad Idrees was fixing pegs in the said land to tether cattle on account of rain. Muhammad Ramzan and Noor Muhammad PWs were tethering cattle there and he himself was cutting fodder nearby.
Muhammad Ali and Qasim Ali PWs were smoking huqqa near him. In the meanwile Yaseen and Hakim Ali accused armed with pistols, Shaban accused armed with hatchet and Munir accused armed with stick came there. They shouted lalkara. Shaban accused exhorted his son Yaseen accused to fire. Yaseesn fired hiting left flank of Muhammad Idrees who fell down. Muhammad Ramzan and Noor Muhammad PWs tried to save Idrees. At this Hakim Ali accused fired on the left flank of Muhammad Ramzan. In the meanwhile Yaseen fired a second shot hitting right leg of Noor Muhammad. Thereafter Hakim Ali fired hitting left palm of Noor Muhammad. During this Shaban and Munir accused also shouted lalkara. The occurrence was witnessed by Muhammad Ali and Qasim Ali besides him. The accused left the spot. Muhammad Idrees complainant leaving his son Muhammad Idrees and Muhammad Ramzan PWs. At the place of occurrence went to Police Station to report the matter.
3. The dead body of Muhammad Idrees aged about 18/19 years, after necessary formalities, was sent for post mortem examination which was conducted by PW.l Dr. Nawab Din at 4.P.M. On 17.4.1983. The Medical Officer on external examination of the dead body found "nine firearm wounds, with inverted margins, going deep, in an area 17 cm x 15 cm on the outer side of left chest, each wound measuring 1 cm x 3/4 cm. There was no blacking or burning of skin. Shirt corresponds alone."
On dis-section, 7th rib was found fractured. Pleurae was puntured and the left plaurel cavity was full of blood. Right lung was puntured at one place. One pellet was taken out. Left lung was puntured at 9 place. Five pellets were taken out. The heart was punctured at three places on left side. One pellet was removed. Diaphragm was punctured at left side. All injuries were anti mortem and caused by firearm. The death was due to shock and haemorrhage caused by the injuries which were sufficient in ordinary course of nature to cause death. The time between injuries and death was instantaneous and the post mortem was conducted within 12 to 24 hours. Seven pellets taken out of the body were handed over to police.
On the same date, time and place, the same Medical Officer examined Noor Muhammad PW and found six fire-arm injuries of various dimensions on different parts of his body. Injury No.2 on back of left ring finger was declared grievous after observation. The remaining injures were simple in nature. On X-ray of right knee, two big pellets and one broken piece of pellet was found imbedded there.
At about same time, the same Medical Officer examined Muhammad Ramzan PW and found a lacerated wound 2 CM x 1 CM on left side of chest and an abrasion on outer side of left chest. Both injuries had been caused by fire-arm and later declared simple. The injuries of Noor Muhammad and Muhammad Ramzan were of 10 to 12 hours duration.
4. S.I. Baqir Hussain on 17.4.1983 during inspection of the place of occurrence collected blood stained earth vide Memo Ex.PH from the place where the dead body of Idrees was lying. He took in possession blood stained earth vide Memo Ex. PL from the place where Noor Muhammad had been injured. He took in possession crime empty P.6 from near the place of murder of Muhammad Idrees vide Memo Ex.PJ attested by PW.5 Qasim Ali and Muhammad Ali PW(not examined). In presence of same witnesses, he took in possession crime empty P.7 from near the place of injuries to Noor Muhammad PW. Vide Memo Ex.PK.
Yaseen accused was arrested on 18.4.1983. Hakim Ali, Munir Ahmad and Shaban accused were arrested on 20.4.1983.
Yaseen accused on 22.4.1983 while in police custody led to the recovery of unlicensed pistal P.8 from his house which was taken in possession vide Memo Ex.PM by S.I. Zia U1 Haq PW.12 in presence of Qasim Ali PW.5 and Muhammad Ali PW (not examined).
According to report Ex.PU of Examiner of Fire Arms, crime empties P.6 and P.7 were found to have been fired from pistol P.8.
The accused were challaned after completion of investigation.
5. In support of its case, prosecution examined 12 witnesses in all. PW-3 Jan Muhammad, PWA Noor Muhammad, PW.5 Qasim Ali and PW.6 Ramzan are eye-witnesses of the occurrence. Mahammad Ali an eye witness named in the FIR was given up. The incriminating recoveries from the spot and Yaseen accused were witnessed by PW.5 Qasim Ali. The medical evidence was furnished by PW.l Dr. Nawab Din as given in detail above. The case was investigated by S.I. Baqir Hussain PW-11, and partly by Inspector Zia ul Haq PW.12. The evidence of the rest of the witnesses was of formal nature.
Yaseen accused when examined after close of prosecution evidence denied the charge and pleaded innocence. He stated that Idrees deceased caught hold of the arm of his wife Mst. Sarwar Bibi who had gone out to ease herself in early hours of the morning; that Idrees tried to commit rape with her and that on hearing alarm of his wife, he acted under grave and sudden provocation.
The other accused denied their presence at the spot. Mst. Sarwar DW.l, wife of Yaseen accused appeared in support of the defence version. She stated that she had gone out to answer the call of nature at morning prayer time; that Idrees deceased pounced upon her; that she raised alarm which attracted her husband Yaseen; that he picked up the pistol of Idrees which had fallen down from his fold and that he fired at Idrees to save her honour losing self control.
The learned trial Judge did not accept the recovery of crime weapon from the accused. He placed reliance on the evidence of the eye witnesses and motive and convicted the two appellants as stated above.
6. We have heard the learned counsel appearing on behalf of the parties and have carefully gone through the evidence on record.
The learned counsil for the appellants did not adopt the defence version of grave and sudden provocation set up by the accused and Mst. Sarwar Jan DW.l. It was contended on behalf of the appellants firstly that the prosecution has failed to prove motive against the appellants; secondly that the eye-witnesses were interested and finally that in any case, it was not a case justifying capital sentence to the appellants. The learned counsel for the State controverted these contentions.
7. Jan Muhammad PW.3 is brother of Noor Muhammad PWA and Muhammad Ramzan PW.6. Qasim Ali PW.5 is not related to the deceased. PW.6 Muhammad Ramzan is father of Idrees deceased. The parties did not have any enmity before the present occurrence. The dispute for the first time arose when a day earlier to the present occurrence, Yaseen accused tried to remove sand from the land of Ghafoor Khan under lease, of Muhammad Ramzan PW.6. It was stated by Muhammad Ramzan PW that a day earlier at peshi-wela, Idrees deceased went to prevent Yaseen deceased from digging out sand from his leased land. There was exchange of abuses between them. He separated them whereafter Yaseen accused went away saying that he would take revenge.
Muhammad Ramzan is an eye witness of the occurrence that took place a day earlier between Yaseen accused and Idrees deceased. As held above, Muhammad Ramzan though father of the deceased had no enmity to falsely depose against the accused. The occurrence took place at 6.45 A.M. And the FIR was recorded within one hour at the Police Station, about 8 miles from the spot.
This motive was mentioned in the FIR. There was hardly any time for the complainant to fabricate motive against the accused. It was contended on behalf of the appellants that Ghafoor Khan owner of the land or any other villager was not examined to support the motive set up by the prosecution. In our view, this was not necessary because there is no evidence that Ghafoor Khan or any other villager was present when the fight took place a day earlier to the present occurrence.
The said occurrence took place in the land under lease with Muhammad Ramzan PW-6. He was therefore, a natural witness. There is nothing in evidence to indicate as to why the accused were named as culprits of present crime by the complainant party. The prosecution has proved motive against the accused.
8. The occurrence took place near the land in possession of the complainant party. PW. Noor Muhammad and PW.6 Muhammad Ramzan were injured at the spot at the time of occurrence.
Their presence could therefore, not be doubted. Even the learned counsel for the appellants had to admit their presence at the spot at the time of occurrence. Yaseen accused appellant in his statement after close of prosecution evidence under section 342 Cr.P.C, stated.
"The fact of the matter is that much before the day light, my wife had gone out for easing herself and Muhammad Idrees deceased had criminally assauIted her and my house is at a distance of one killa from the occurrence and I had hurt the deceased in a state of grave and sudden provocation and also in self defence. I further state that PWs. Ramzan and Noor Muhammad had followed me with hatchet after knowing about the injuries of the deceased and I had purely acted in self defence of my person."
This statement indicates that Yaseen accused admitted firstly the presence of Idrees deceased, Muhammad Ramzan and Noor Muhammad PWs at the spot and secondly that the deceased and the two witnesses were injured by him. This means that Noor Muhammad and Muhammad Ramzan PWs were present at the spot and witnessed the occurrence which is admitted by Yaseen accused though he has given his own version of the occurrence. Qasim Ali PW.5 is an independent witness. It was stated by him that he was smoking huqqa in the company of Jan Muhammad and Muhammad Ali PWs when this occurrence took place. He was subjected to lengthy cross examination but nothing came out to justify exclusion of his evidence from consideration against the accused. Jan Muhammad PW-3 was present in his fields cutting fodder. All the four eye witnesses were natural witnesses. They made consistent statements to support the prosecution case. They were independent witnesses.
We have gone through the impugned judgment and find that the learned trial Judge rightly came to the conclusion that the evidence of incriminating recoveries was of no consequence in the instant case.
9. According to the prosecution evidence, Muhammad Idrees deceased received nine fire-arm wounds on his bodynsn resuIt of one fire by Yaseen accused. Each wound measured 1 C.M. x 4 C.M.
Injuries Nos.l and 4 on the person of Noor Muhammad PW respectively ascribed to Hakim Ali and Yaseen accused, measure 1 C.M. x 4 C.M. The injuries on the person of Muhammad Ramzan PW appear to be graze wounds ascribed to Hakim Ali accused. The dimensions of the injuries on the person of Muhammad Idrees deceased and Noor Muhammad PW indicate that these were fired by one kind of weapon. It is correct that other injuries on the person of Noor Muhammad and Muhammad Ramzan PWs had varying dimensions but even according to the prosecution witnesses, injuries Nos.l to 3 on the person of Noor Muhammad had been caused by one fire. We are, therefore, of the view that the deceased and the two injured witnesses received injuries by weapon of one origin.
AIthogh the evidence with respect to incriminating recoveries has been found to be of no consequence but the fact remains that the two crime empties recovered from the place of occurrence were found to have been fired from one pistal Ex.P.8 recovered at the instance of Yaseen accused. No crime weapon was recovered during investigation from Hakim Ali accused, who had no direct motive against the complainant party. It was stated by PW.12 Inspector Zia U1 Haq that:- "Munir, Hakim Ali and Shaban accused present in court appeared before me on 20.4.1983. Since there was no evidence involving them in the case, I did not arrest them. During his interrogation, Yaseen present in the court, disclosed that he alone was present at the time of occurrence. As per my investigation, the involvement of Munir, Hakim Ali and Shaban accused was doubtful."
This means that there was no independent corroborating evidence to connect Hakim Ali accused with the present crime. Even the Investigating Officer found the case against him to be not free from doubt. In view of the above discussion, we give benefit of doubt to Hakim Ali accused and acquit him from all charge. This appeal on his behalf is accepted. He shall be released from prison forthwith, if not required in any other case. The sentence of death awarded to Hakim Ali accused is not confirmed.
So far as Yaseen accused appellant is concerned, we find that the prosecution has successfully proved its case against him. It was submitted by the learned counsil for the appellants that death sentence awarded to Yaseen appellant was uncalled for. We have examined this aspect of the case. We find no mitigating circumstance to award lesser punishment to Yaseen accused. This appeal on his behalf is dismissed. The conviction and sentences awarded to Yaseen appellant are maintained. The sentence of death awarded to Yaseen is confirmed.