' This is an appeal against the judgment dated 22-7-1987 whereby the learned Additional Sessions Judge, Sialkot, convicted Ahmad Khan appellant (aged about 16/17 years) under section 302, P.P.C.
And sentenced him to life imprisonment and a fine of Rs,5,000 or in default thereof to further undergo two years' rigorous imprisonment. Half of the fine, if recovered, was ordered to be paid to the heirs of the deceased. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. The occurrence took place on the night between 20th and 21st of June, 1986 at 1 a.m in the house of Zulfiqar deceased in Mauza Kot Buland which was at a distance of about two and a half miles from Police Station Sambrial, District Sialkot. Statement Exh.PA. Of Muhammad Aslam P.W.9, the father of the deceased, was recorded by A.S.I. Muhammad Younas P.W.11 on the same night at 1-45 a.m. At Sambrial Mor, where the said A.S.I. Was present in connection with patrol duty. Formal F.I.R.
Exh.PA./1 was recorded on the basis of the said statement by constable Ijaz Ahmad P.W.1 on the same day at 2 a.m.
3. The prosecution case as set out in the F.I.R., in brief, is that Muhammad Aslam complainant and his first cousins lived in adjacent houses in village Kot Buland. Continuous bickering was going on between the womenfolk of the families of the complainant and his cousin Muhammad Khan (acquitted accused) on trivial matters. About a month before the occurrence the complainant's son Zulfiqar deceased and Ahmad Khan appellant (son of Mohammad Khan aforesaid) quarrelled with each other but a compromise was effected through Ch. Sarwat Waqar (D.W.1) Councillor, Muhammad Boota, Chairman Ushr and Zakat Committee and other respectables. On 19-6-1986, however, the women belonging to the family of Muhammad Khan started abusing the complainant party and falsely accused them that they had thrown filth in their house. Hot words were exchanged between the deceased and the appellant. The respectables intervened and reprimanded the appellant. After the said quarrel Muhammad Khan alongwith his family members left his house and shifted to somewhere else. On the fateful night the complainant was sleeping alongwith his deceased son on the roof of his house when Ahmad Khan appellant armed with a .12 bore gun fired a shot at the deceased which hit him in his abdomen. On hearing the report of the gunshot the complainant woke up and tried to catch hold of the appellant who ran away, descended from the stairs of the house of Muhammad Nazir P.W., entered his house and shut himself in a room. The complainant's brother Muhammad Nazir P.W.10 and his son-in-law Muhammad Younas son of Barkat Ali (given up as unnecessary) also saw the accused climbing down the stairs, in the light of the electric bulbs and moon light, immediately after the occurrence.
A lot of persons from the village gathered at the spot and cordoned the house of the appellant, so that he could not escape. The deceased died at the spot. It was alleged that the father of the appellant Muhammad Khan and his friend Muhammad Nawaz alias Naja had instigated the commission of murder.
4. After recording the statement of the complainant Exh.P.A., A.S.I. Muhammad Yousaf Khan P.W.11 sent it to the Police Station for the registration of a case and proceeded towards the place of occurrence. He reached there at about 2 a.m. First of all he arrested Ahmad Khan appellant who had locked himself in a room of his house. .12 bore gun Exh.P.5 with empty cartridge P.6 in its chamber, was recovered from his possession, taken into possession and sealed into separate parcels vide memo. Exh.P.D. The A.S.I. Then prepared injury statement Exh.P.G. And inquest report Exh.P.H. Of the deceased. He took into possession and sealed into a parcel blood-stained earth from the place of occurrence vide memo Ext.P.E. He then prepared the rough site plan without scale Exh.P.I. Blood-stained cot, Chadar P.7 and a pair of slippers P.8 were also taken into possession by him through memo Exh.P.F. He then despatched the dead body to the mortuary for post-mortem examination. After the post-mortem examination Shabbir Ahmad Constable P.W. Produced before him the last-worn clothes of the deceased Shalwar P.1, underwear P.2 and vest P.3 alongwith a phial containing pellets. All these articles were taken into possession vide memo Exh.P.C. He then got prepared site plans Exhs.P.B. And P.B./1 through Akhtar Naqqash, draftsman P.W.3 and gave his notes in red ink on them. He also arrested the two acquitted accused Muhammad Khan and Muhammad Nawaz alias Naja and after the completion of the investigation challaned all three of them.
5. On 21-6-1986 at 2.30 p.m. P.W.12 Dr. Gul Nawaz, Medical Officer, Basic Health Centre, Gondal, Tehsil Sialkot performed post-mortem examination on the dead body of Zulfiqar deceased aged about 21/22 years and found the following injuries on it:-
(1) Fire-arnk wound 2-1/2 x 2 c.m abdominal cavity deep on the front and middle of upper abdomen, 5 c.m. Above from umblicus. Margins inverted. Skin around wound and margins of wound blackened and burned. Gun-powder present around the wound, in the area of 4 c.m. All around (entry wound).
(2) Fire-arm wound 1/4 x 1/4 c.m on the back of left chest in middle 4 c.m. From vertebral command. Margins inverted (exit wound).
(3) 2 fire-arm wounds 1/4 x 1/4 c.m each margin averted on the back of left chest in middle 2 c.m. Below the angle of left scapula (exit wound).
' In the opinion of the doctor death had been caused due to shock and internal hemorrhage as a result of injury No,1 which had injured liver, aorta and lung etc. And was sufficient to cause death in the ordinary course of nature. The injury was ante-mortem and had been caused with a fire-arm.
Time between injuries and death was immediate and between death and post-mortem examination was about 12 to 16 hours. Ext. PJ is the correct carbon copy of his post-mortem examination report.
6. Ahmad Khan appellant alongwith his father Muhammad Khan and Muhammad Nawaz alias Naja (the acquitted accused) was formally charged under section 302/452/109, P.P.C. They pleaded not guilty and claimed trial.
7. In support of their case the prosecution examined 12 witnesses in all including the two eye- witnesses namely Muhammad Aslam P.W.9 and Muhammad Nazir P.W.10.
8. The prosecution also examined Rehman Khan P.W.6 and Allah Ditta P.W.8 to prove that all the three accused had hatched a conspiracy to kill the deceased. The former, however, did not support the prosecution version and therefore, was declared hostile and subjected to cross-examination by the prosecutor.
9. In their statements under section 342, Cr.P.C. The appellant and the acquitted accused denied the allegations levelled against them and pleaded innocence. In reply to a question as to why he had been implicated in the present case and why the witnesses had deposed against him Ahmad Khan appellant stated.
"Witnesses are inimical towards our family, I and my father had been involved falsely in this case. I was sleeping in my house and at about midnight (little before mid-night) I heard hue and cry and my door was being beaten and slogans were raised against us. In order to deter these people I fired the gun in the air. Thereafter, the police came and arrested me from my house. The complainant party falsely involved me in the case due to enmity and suspicion."
10. Two witnesses namely Sarwat Waqar Ahmad and Muhammad Rashid were examined in defence-. Sarwat Waqar Ahmad D.W.1 stated that on the eventful night at about 11 or 11.30 p.m.
Muhammad Aslam and Nazir Ahmad P.Ws. Had come to his house and Muhammad Aslam P.W.
Had told him that his son Zulfiqar deceased had been murdered by some one. The said P.Ws.
Requested him to telephonically inform the police about the incident but as his telephone was out of order they asked him to accompany them to the police station. However, before leaving for the police station the said two P.Ws. Expressed their suspicion that the deceased had been murdered by Mithu (appellant) son of Mohammad Khan. They requested him to visit the house of the appellant and see if he was present there. They went to the said house of the appellant and asked the persons present there to cordon the said house so that the appellant could not escape.
Thereafter, he proceeded towards the Police Station in his Suzuki Pick-up. Muhammad Aslam P.W.Informed the police that his son had been murdered by someone and he suspected that the appellant was responsible for the said murder.
11. Muhammad Rashid D.W.2 who is an Assistant Licence Clerk in the Office of District Magistrate, Sialkot deposed that gun P.5 (recovered from the appellant) was the licensed gun of his father Muhammad Khan (acquitted accused).
12. Relying on the statements of the eye-witnesses and the recoveries the learned trial Court convicted and .Sentenced the appellant as stated above. However, disbelieving the testimony of Rehman Khan P.W.6 and Allah Ditta P.W.8 on the subject of conspiracy Muhammad Khan and Muhammad Nawaz alias Naja accused were acquitted.
13. Feeling aggrieved the appellant has come up in appeal. The State has not instituted any appeal against the acquittal of Muhammad Khan and Muhammad Nawaz alias Naja.
14. I have heard the parties counsel and have gone through the record with their assistance.
15. Learned counsel for the appellant has contended that none of the eyewitneses had or could have seen the occurrence which was a blind murder committed during the thick of night by some unknown assailants but the appellant had been falsely implicated due to suspicion.
16. Elucidating his contentions learned counsel submitted that on the fateful night Muhammad Aslam complainant was not sleeping on the roof of his house as asserted in the F.I.R. And his statement before the trial Court but was sleeping in the compound of the said house along with his daughters. In such a state, the learned counsel maintained, one could not see from the compound as to what was happening on the roof. Learned counsel further submitted that there was no sufficient light near the place of occurrence in which the complainant could see and identify the appellant.
17. Elaborating his first submission the learned counsel maintained that had the complainant been sleeping on the roof of his house on a cot near the cot of his deceased son as alleged by him, that must have found mention in the site plan (without scale) Exh.P.I which A.S.I. Muhammad Younas Khan P.W.11, the Investigating Officer, had prepared immediately after his arrival at the place of occurrence. The omission to mention another cot than that of the deceased, according to the learned counsel for the appellant, was sufficient indication of the fact that the complainant was not sleeping there at the relevant time.
18. As regards the second submission learned counsel contended that according to the F.I.R. The complainant had seen and identified the appellant in the light of an electric bulb which was on in the compound of his house but the said bulb did not find any mention in the site plan Exh.P.I.
Prepared by the Investigating Officer, and therefore, it would be presumed that there was no such bulb and thus no source of light in which the complainant could see and identify the appellant. He also maintained that the complainant in his statement before the trial Court had admitted that he had no electricity connection in his house which precluded the possibility of the existence of any such bulb.
19. According to the prosecution case when after the infliction of the injuries to the deceased the appellant was fleeing from the place of occurrence, he had descended the stairs adjoining Muhammad Nazir P.W.'s house and while he was so alighting from the said stairs Muhammad Nazir P.W. Saw him from the compound of his house where he was sleeping. Admittedly, the two houses of the eye-witnesses adjoin each other. The house of the appellant also adjoins the house of Muhammad Nazir P.W. And there is a stair-case in the appellant's house which goes up to the roof of the said house. The roofs of all the three houses are adjacent. So, if someone wants to go to the roof of the house of the appellant from the house of the complainant he had to use the said stair- case. In fact that is the only connection between the house of the appellant and the house of the complainant. It is also an admitted fact that the said stair-case had a four feet high wall on its sides. Learned counsel for the appellant urged that from the site plan prepared by Akhtar Naqqash, draftsman Exli.P.B. It is very clear that while running away from the place of occurrence the appellant had continuously tried to keep himself to the far side of the roof so that he could not be seen from the compound and if this was his conduct on the roof he would defmitely have crouched behind the four feet high wall while descending from the stairs and thus nobody could have seen him. In these circumstances, the learned counsel contended, Muhammad Nazir P.W.
Even if he was present in his house, could not have seen the appellant.
20. Now I proceed to examine if there is some force in the contentions raised by the learned counsel for the appellant. It is correct that in the site plan Exh.P.I. Prepared by the Investigating Officer there is no mention of any electricity bulb in the house of the complainant or of any other cot than that of the deceased but in my opinion these omissions do not conclusively prove that the said articles were not actually there. The site plan Exh.P.I., has no evidentiary value. It was prepared by the Investigating Officer for his convenience and was nothing more than a note prepared by him. This site plan was not prepared on any pointing by the eye-witnesses, and therefore, the alleged omissions would not adversely affect the depositions of the two eye-witnesses. A bare reading of the F.I.R. Would show that the complainant had stated in very clear terms that at the relevant time he was sleeping on the roof of his house near his deceased son and a bulb was on in the compound. He also pointed out to the Draftsman the place where he was sleeping and also the place where the electricity bulb was lit because the Draftsman has clearly shown these places in the site plan Exh. P-B prepared by him. In his statement before the trial Court also the complainant had pointed out all these things. In this view of the matter it will not be proper to presume that the complainant was not sleeping near the deceased at the relevant time or there was no source of light in his house merely by of the fact that these things do not fmd mention rough site plan Exh.P.I prepared by the Investigating Officer.
21. It is correct that the complainant in his statement before the trial Court has admitted that previously he used to sleep in the compound of his house alongwith his daughters. He, however, explained that after the incident of 19th June he had started sleeping on the roof with his son because of the threat of death extended by the appellant to his son. This is quite a plausible explanation. Learned counsel for the appellant has maintained that in the F.I.R. The complainant had not made any mention of any such threat, and therefore, he has tried to make deliberate improvement in his statement to make it probable. Perusal of the F.I.R. Would reveal that the complainant had narrated the incident which took place on the 19th in detail and had also mentioned that the appellant and the deceased had an exchange of harsh words. It is correct that the threat alleged to have been extended by the appellant to the deceased has not been specifically mentioned therein but this omission, in my opinion, is not very material. The F.I.R. Was recorded within one an hour of the occurrence and the state of mind of the complainant whose young son had been done to death can very well be imagined and in that state of mind it is not something very strange that he had omitted to give minute details of the prosecution story.
Furthermore this explanation was given by the complainant during his cross-examination in answer to a question put by the learned defence counsel, and therefore, it cannot be said, that this is a case of deliberate improvement in his statement.
22. Now we come to the question as to whether there was sufficient light at the place of occurrence at the relevant time in which the complainant could have seen and identified the appellant.
Admittedly, the complainant has no regular electricity connection in his house. He, however, has stated that he had got an extension wire from the adjacent hotise of his brother Muhammad Nazir P.W. And had installed a bulb in the compound of his house. This fact remains unrebutted. The Draftsman (P.W.3) in his site plan Exh.P.B. Has also shown the said bulb at the place of occurrence.
Unauthorised installation of electricity bulb in the house of the complainant may constitute an offence but the fact remains that the said bulb was there. I do not think that the said bulb was installed after the occurrence merely to show that there was sufficient light at the time and place of occurrence. Apart from the said bulb I am of the view that the moon was another source of light.
It was the 12th of the lunar month, and therefore, there was sufficient moonlight wherein one could easily see and identify a person with whom the witnesses were very well-acquainted.
23. This brings us to the question as to whether Muhammad Nazir P.W. Had also witnessed the occurrence. He has clearly stated that immediately after the occurrence he had seen the appellant descending from the stairs with a gun in his hand going to his baithak and bolting the door from inside. It was never suggested to the witness during cross-examination that the appellant had crouched while alighting from the stairs. There, therefore, is no material on record to show that while descending from the stairs the appellant assailant had crouched behind the wall. The argument of the learned counsel for the appellant in this regard, thus does not seem to be convincing. I, consequently, have no doubt in my mind that Muhammad Nazir P.W. Had also seen the occurrence.
24. Both the eye-witnesses, namely, Muhammad Aslam and Muhammad Nazir are natural witnesses of the occurrence. Their presence in their houses at the relevant time is not denied. There was sufficient light at the relevant time wherein they could see and identify the appellant who was very well-known to them. There is no material discrepancy or contradiction in their statements and I, therefore, have no reason to disbelieve them.
25. The appellant in his statement under section 342, Cr.P.C. Does not deny the recovery of gun Exh.
P.5 along with empty cartridge Exh.P.6 from him. He admits that he had produced the said gun and the empty to the police. According to him after the occurrence a mob had gathered outside his house when he was all alone and had started raising slogans and knocking at his door and that in order to scare the said persons he had fired a shot in the air from the said gun. This explanation in view of the ocular evidence does not appeal to reason. The recovery of the gun Exh.P.5 and empty cartridge P.6, therefore, provides D sufficient corroboration to the testimony of the eye-witnesses.
26. Learned counsel for the appellant has further maintained that actually the occurrence had taken place at about 10 or 10-30 p.m. But the time in the F.I.R. Has been shown to be 1 a.m. Mid-night to cover the delay in reporting the matter to the police. According to P.W.12 Dr.Gul Nawaz, who performed the post-mortem examination on the dead body of the deceased on 21-6-1986 at 2-30 p.m. The time between injuries and death was immediate and between death and post-mortem examination was about 12 to 16 hours. In other words the occurrence, approximately, too took place between 10-30 p.m. And 2-30 a.m. During the night between 20 and 21 June, 1986. Learned counsel submitted that according to Muhammad Aslam complainant he had his dinner on 20-6-1986 in the evening and presumably the deceased had also taken his meals at that time. He further submitted that as semi-digested food was found in the stomach of the deceased at the time of the post-mortem examination it would be presumed that he had taken his meals a couple of hours before his death. In other words, learned counsel maintained, if the deceased had taken his meals at about 8 p.m. The occurrence had taken place at about 10 p.m. I am afraid these presumptions have no foundation. Muhammad Aslam complainant in his statement has clearly stated that on the fateful night the deceased had taken his meals at about 10 p.m and not with him in the evening. I have no reasons to disbelieve the complainant on this point as young men of today are not in the habit of taking their meals early in the evening. Further, the inquest report which was prepared within a short time of the arrival of the Investigating Officer shows that even at the time of the preparation of the said report thick blood was oozing out of the wounds of the deceased. This indicates that the occurrence had taken place only a short while before the arrival of the Investigating Officer at the spot. All these circumstances collectively tend to show that the occurrence had taken place at about 1 a.m. On 21-6-1986 and not at 10-30 p.m. On 20-6-1986 as alleged on behalf of the appellant. In these circumstances the F.I.R. Was lodged very promptly and there was no delay. It was, therefore, impossible to concoct a false story within such a E short time.
Statement of Sarwat Waqar Ahmad D.W.1 to the effect that the complainant had only expressed his suspicion against the appellant before the police does not appear to be true. It is beyond my comprehension as to how within such a short time the Investigating Officer had concocted a fasle story with so many details if the complainant had only mentioned the name of the appellant out of suspicion. Sarwat Waqar Ahmad D.W. Does not appear to be an independent witness. Admittedly, he had been trying to effect a compromise between the parties so that the appellant was acquitted. In these circumstances when he was interested in the acquittal of the appellant he could not be termed as F an independent witness. I am, therefore, not persuaded to place any reliance on his statement.
27. Upshot of the above discussion is that there is no merit in this appeal which is dismissed.