Riaz Ahmad, J.-Appellants Ghulam Haider son of Dil Muhammad and Muhammad Rafique son of Noor Muhammad along with Muhammad Akbar were tried by the learned Additional Sessions Judge at Lahore on the charge under section 302/307 read with section 34 PPC for having caused the murder of Walayat Hussain Shah, and for having attempted murderous assauIt on the son of the deceased Complainant Ijazul Hassan. At the conclusion of the trial, vide judgment dated 3rd February, 1986, the appellants and co-accused Muhammad Akbar were found gulity on the said charges. On the charge under section 302/34 PPC, they were convicted and sentenced to under life imprisonment each plus a fine of Rs.5000/- each, or in defauIt whereof, to suffer another term of two years rigorous imprisonment each.
Under Section 544A Cr.P.C., each of them was directed to pay compensation amounting to Rs.Five thousand each to the legal heirs of the deceased, or to suffer simple imprisonment for a term of six months each. On the second charge under section 307/34 PPC, the appellants and co- accused Muhammad Akbar were sentenced to suffer rigorous imprisonment for a term of ten years each, and to pay a fine of Rs.Five thousand each, or in defauIt of the payment of fine, to suffer further rigorous imprisonment for a term of two years each.
2. Convict Muhammad Akbar has not chosen to file any appeal, while the appellants Ghulam Haidar and Muhammad Rafique aggrieved by their convictions have preferred Criminal Appeal No.74 of 1986. Complainant assails the judgment through Criminal Revision No.271 of 1986, praying that sentence awarded to appellants and the convict Muhammad Akbar be enhanced to death.
This judgment shall dispose of both the appeal as well as the Revision.
3. The tragic occurrence resuIting into the death of Syed Walayat Hussain and attempted murderous assauIt on his son viz the complainant PW-6 Ijaz ul Hasan took place on 20th of February, 1983 at 7.30 a.m. Near the Baithak of Munshi Ghulam Haidar in the area of village Shahpur Kanjra within the jurisdiction of police station Chung situated at a distance of three miles from the place of occurrence. On the receipt of the infomation of this occurrence, Fazal Mahmood PW-13 SHO Police Station Chuhng, who was present near the palace of Abudhabi in connection with a special duty reached the place of occurrence. At the spot the complainant Ijaz ul Hasan PW-6 got his statement Exh.PA recorded, which was sent to the police station for the registration of the case.
At the police station formal FIR Exh. PA/1 was drawn at 8.55 a.m. By Muhammad Akbar Muharrir Head Constable PW-1.
4. In brief the complainant Ijaz ul Hasan PW-6 son of the deceased in his statement Exh.PA stated that his father was an employee of Railway in the Railway Headquaters, and the complainant for the preparation of his matric examination used to go daily for tuition on his motorcycle bearing registration No.1HB 2188. On the fateful day at 7.30 am as usual the complainant along with his father proceeded towards Lahore City on the motorcycle. When the complaiant and his father reached metalled road near the Baithak of Munshi Ghulam Haider, they noticed the convict Muhammad Akbar armed with single barrel gun and appellants Ghulam Haidar armed with a single barrel gun and Muhammad Rafique empty handed wearing Chaddars were standing on the left side of the road at a short distance. Allah Ditta, Muhammad Shafi and Rehmat Ali residents of Shahpur Kanjara were also sitting on the right side of the road. Allah Ditta called the father of the deceased addressing Shah Sahib to stop. The complainant who was driving his motorcycle stopped the same. Syed Maqsood Sarwar Shah was also present nearby. As soon as the complainant stopped the motorcycle, the convict Muhammad Akbar fired a shot hitting the left side pf the head of the deceased. On the receipt of this injury, the deceased statted bleeding, and he was about to lull down, when the complainant caught hold of him. The appellant Ghulam Haidar then raised Lalkara to finish the complainant son of the deceased Walayat Hussain Shah, so that no evidence is produced against them. On hearing this Lalkara Muhammad Rafique fired a shot on the complainant, but the complainant saved himself, and the fire hit the wall. In the meanwhile, Allah Ditta, Muhammad Shafi, Rehmat Ali and Maqsood Sarwar Shah while raising hue and cry rushed towards the complainant, whereupon, the appellants and convict Akbar ran away from the scene of occurrence.
5. Motive for the commission of crime as stated in the FIR was that the appellants Muhammad Rafique and Ghulam Haidar were litigating with the father of the deceased over a piece of land in civil courts, and on account of the said grudge, father on the complainant was killed.
6. On 20th February, 1983 at 4.30 p.m. Dr.Khalid Hussain PW-5 Medical Officer of the office of Medicolegal Surgeon, Lahore conducted the post mortem examination on the deadbody of the deceased, and the following injuries were noticed.
1) A lacerated wound circular lx 1cm margins were inverted, no blackening or burning or tatooings were seen.
2) An oval lacerated wound 1.5x 1 cm margins were inverted on the left parietal region of the skull transversing the scalp.
3) A lacerated wound 7 x 1 cm on the posterior part of the left parietal region of the skull, scalp deep margins were overted, it showed that the bullet transversed this track and did not cause any bony injury.
All the injuries were caused by firearm, and injuries No.1 and 2 caused the severe haemorrhage and brain damage, and in the opinion of the doctor, death had occurred due to internal haemorrhage.
During the postmortem examination, two pellets were found in the head of the deceased. In cross examination, the doctor also opined, that the injuries on the body of the deceased could be the resuIt of two shots.
7. The Investigating Officer Fazal Mahmood PW-13 SHO police station Chuhng who reached the spot besides taking the bloodstanied earth into possession also took into possession the motorcycle bearing registration No.1HB.2188 Yamaha vide Memo.Exh. PD The Investigating Officer also took into possession the bloodstained clothes of the complainant viz shirt P.9 and Shalwar P.10, and sealed them into a parcel vide Memo. Exh.PB. The Investigating Officer also got the wall having pellets signs photographed by Muhammad Qasim PW-12, and took the photographs into possession vide Memo.Exh.PG.
8. After their arrest, nothing was recovered from the appellants. However, convict Akbar while in police custody got recovered a gun P.13 along with 7 live cartridges Exh.P.14/1 to 7 which were taken into possession vide Memo. Exh.PJ attested by Manzoor Ali PW-11, Ghulam Jillani (not produced) besides the Investigating Officer PW-13. .
9. To bring home guiIt to the appellants, the prosecution at the trial placed reliance upon the ocular testimony furnished by Syed Maqsood Sarwar PW-4 a nephew of the deceased, Ijaz ul Hasan PW-6 son of the deceased and Muhammad Shafi PW-7 a neighbour. The eye witnesses, namely, Allah Ditta and Rehmat Ali cited in the FIR were given up. In addition to the ocular testimony, reliance was also placed upon the corroborative evidence, such as, recoveries of the bloodstained clothes of the complainant, photographs of the wall having pellets' signs.
10. The appellants did not enter the witness box to make statement under section 340 (2) Cr.P.C, but were examined under section 342 Cr.P.C., to explain the evidence adduced against them. The appellants laid emphasis upon the investigation conducted by the DSP Muhammad Ayyub who appeared as DW-1. The DSP opined that both the appellants were innocent, and thus placed their names in column No.2 of the report under section 173 Cr.P.C.
11. Both the appellants denied the charge and it was suggested in the cross examination to the witnesses that Haidar Ali Shah real brother of the deceased Walayat Hussain Shah were enemies of each other, because the formal was a Shia, while latter professed Sunni faith and the possibility of the involvement of Haidar Ali Shah in getting his brother killed on sectarian basis could not be excluded, because the deceased Walayat Hussain Shah also interfered in Zul-Jinnah on Taazia procession. Appellant Ghulam Haidar also stated that Allah Ditta and Rehmat Ali had got him involved in this case because Rehmat Ali had abducted his daughter Razia, and he had got a criminal case registered against him. Therefore, Rehmat Ali and Allah Ditta had chosen to become witnesses in this case on the condition that the appellant Ghulam Haider is involved in this case.
12. I have heard the learned counsel for the appellants, and I have also gone through the evidence on the record. It was vehemently argued that the ocular testimony led by the prosecution consists of statements of interested and related witnesses, and therefore, the same could not be relied upon without corroborative evidence, which had not been led by the prosecution, thus, it was unsafe to sustain the conviction of the appellants.
13. It was further argued that the motive as set up by the prosecution was vague and unreliable because no documentary evidence had been led to prove the pendency of litigation between the deceased and the appellants.
14. It was also contended that the ocular testimony in this case was belied by the medical evidence, inasmuch as, injuries received by the deceased are a resuIt of two shots and not one as asserted by the prosecution.
15. It was also argued that, in fact, at the instance of Allah Ditta and not the appellants, son of the deceased Ijaz ul Hasan PW-6 had stopped the motorcycle, and the fatal shot was attributed to convict Akbar, and nofo the appellants, therefore, the appellants had not planned to kill the deceased.
According to the learned defence counsel, the appellants were falsely implicated.
16. It was also contended by the learned counsel for the appellants, that convict Akbar had a dispute with the appellants, therefore, they could not have joined hands to kill the deceased.
Furthermore, there was nothing common between the appellants to launch an attack on the deceased and the complainant.
17. It was further argued, that the convict Akbar belonged to a different village Khaliq abad, and there could be no community of purpose between him and the appellants. It was further argued that there could be no basis to believe that the convict Akbar was a hired assassin, and if at all he was so, then there was hardly any occasion for the appellants to join him to launch an attack.
18. It was also argued that the appellant Ghulam Haidar was 71 years old while appellant Muhammad Rafiqug was 40 years old if they were present at the spot, it is strange that as to why they could not be apprehended at the spot.
19. FIR in this case was also brought under criticism. It was argued that there was no obstacle in the way of the complainant to proceed to police station to lodge the FIR on motorcycle. Circumstances in which the Investigating Officer PW-13 had reached the spot arc suspicious. Prosecution has not produced any witness who had informed the Investigating Officer about the occurrence, and the SHO has also not clarified this aspect of the case. It was thus argued that the FIR was lodged after preliminary investigation and the appellants were implicated in this case after due deliberations.
20. I have carefully considered all the aspects of the case highlighted by the learned counsel for the appellants in the light of the evidence on the record. As far as eye-witnesses are concerned, it is true, that the complainant is the son of the deceased, while Syed Maqsood Sarwar PW- 4 is the nephew of the deceased, and his sister is also married to one of the sons of the deceased. As far as Muhammad Shafi PW-7 is concerned, he is an independent witness, and has no axe of his own to grind. Presence of the complainant at the scene of occurrence cannot be doubted, because when the deceased was about to fall down, he had held him, and in this process, his clothes became stained with blood. Record shows that the bloodstained clothes of the complainant were taken into possession. This circumstance alone is sufficient to establish his presence, and therefore, his testimony cannot be doubted. Nothing has been brought on the record to suggest that Ijaz ul Hasan complainant PW-6 would be falsely deposing, or had any motive to do so as to implicate the appellants. Mere relationship is no ground to discard the testimony of a seemingly reliable witness. Furthermore, it is not -necessary that in every case corroborative evidence must be brought on the record. In my view it is 1101 an iflexible rule and depends upon the facts and circumstances of- each case." However, as far as corroboration is concerned, the same is avialable in the form of recoversion of bloodstained clothes of the complainant and also the photographs of the wall indicating the marks of pellets on it.
21. As far the conflict between the medical and the ocular testimony is concerned, nothing turns upon it. It is just the opinion of the doctor, who was not the eye witness. Shot was fired from a distance of 10 feet, and it must have been spread hitting the various parts of the body. From such a distance, the spread of pellets has to be wider, therefore, there is no conflict between the ocular and the medical evidence, therefore, this argument is repelled.
22. I have also carefully considered the evidence of the DSP Muhammad Ayyub who appeared as DW-1 according to whom, the appellants were innocent. He had formed his opinion on the basis, that he had examined more than forty witnesses who had pleaded the innocence of the appellants before him. It may be noted here, that nbt only the defence, but the prosecution had also produced number of witnesses before the said DSP, hence, it was nothing but deposition of defence against the prosecution and vice versa. There was no substantial material before the said DSP to form the said opinion, and even though, he had formed such an opinion, the same is not binding on this Court, because the most crucial question arising for determination is the presence of the eye- witnesses. As already stated above, I believe that the eye witnesses were present, and had seen the occurrence, and were not deposing falsely, therefore, the opinion of the DSP is insignificant.
23. As far as the FIR in this case is concerned, the same was lodged with promptitude, inasmuch as, the occurrence had taken place at 7.30 a.m. While the. Statement of the complainant PW-6 was recorded at the spot at 8.25 a.m. The Investigating Officer realizing the sense of his duty had reached the spot from the Abudhabi Palace to ascertain the facts of the case, and there was hardly any time to deliberate. There is nothing on the record to show that the complainant was prompted to involve the appellants falsely in this case. Complainant is a young boy, and is a student of matric, and he cannot be suspected to go to the extent of involving the innocent persons on a capital charge.
24. I have also considered the defence pleas raised by the appellants. Plea that Haidar Ali Shah a brother of the deceased who was Shia got his brother killed in far fetched, and there is nothing on the record to substantiate it. It is improbable, that a real brother on sectarian basis would be a party to the death of his brother, hence, there is no substance in the aforesaid plea.
25. Adverting to the question as to the motive, even though, no documentary evidence has been brought on the record, yet there is seemingly reliable ocular account with regard to the overt act and participation in the crime by the appellants, and even though, assuming that the motive has not been proved, even then, the prosecution succeeded to establish its case. In this context, I am fortified in my view by the judgment of the Supreme Court reported as State Vs Rab Nawaz PLD 1974 SC 84.
26. As already observed earlier, the crucial question in this case is whether the eye-witnesses were present, and are deposing truth. After careful appraisal of the evidence on the record, I am of the view, that statements of the eye-witnesses inspire confidence, therefore, they cannot be disbelieved.27. It was further argued, that the appellants would not have joined Akbar convict, because he belonged to a different village, and there was no community of interest between the three. It was further argued, that appellants Ghulam Haidar and Rafique were residents of Shahpur Kanjra, while Akbar comes of a different village. It was further argued that preventive proceedings under section 107/151 Cr.P.C, had been initiated between Akbar and Ghulam Haidar, hence, Akbar could not have joined them. The argument is far fetched, even the devil does not know, what is in the mind of a man. I do not find any enmity on the record to infer that this is a case of false implication. Appellant Rafique had also*fired a shot, but the complainant was lucky to have survived. Undoubtedly, this is a case in which all the assailants are vicariously liable for having acted in furtherance of the common intention to kill the deceased and his son. In this view of the matter, I am of the view that the prosecution has brought guiIt home to the appellants. Hence, I do not find any substance in this appeal, which is hereby dismissed. Conviction and sentences of the appellants are maintained.
28. In support of the Criminal Revision, the learned counsel has been heard and the reasons advanced by the learned Additional Sessions Judge for awarding lesser penaIty have also been perused. The appellants were awarded lesser penaIty on account of their advanced age. There is nothing on the record to depart from the view of the matter taken by the learned trial judge on the quantum of sentence. Hence, I do not find any substance in this revision petition and the same is hereby dismissed.