' SARDAR MUHAMMAD DOGAR, J.--- Ata Muhammad aged 37/38 years, Pir Bakhsh aged 33/34, Muhammad Sharif aged 41/42 years and Abdur Rashid aged 57/58 years were tried by the Additional Sessions Judge, Dera Ghazi Khan for having murdered Ahmad Bakhsh on 24-1-1985 at 2- 00 p.m. Near Union Council Office Jhok Atra, at a distance of 6 miles from Police Station Kot Chhutta, District Dera Ghazi Khan. Learned trial Judge vide judgment, dated 26-1-1987; convicted all of them under section 302/34, P.P.C. And awarded sentences as follows:-- Ata Muhammad: sentenced to death plus to Pay a fine of Rs,20,000 in default whereof to undergo R.I. For one year. Half of the fine on recovery, has been ordered to be paid as compensation to the heirs of the deceased. Pir Bakhsh. Muhammad Sharif and Rashid: ' sentenced to imprisonment for life plus to pay a fine of Rs,20,000 each in default whereof to undergo R.I. For 1 year each. Half of the fine, on recovery, has been directed to be paid as compensation to the heirs of the deceased.
2. Ata Muhammad has preferred appeal (Criminal Appeal No, 28 of 1987) through jail, while the others have filed appeal (Criminal Appeal No, 72 of 1987) through counsel. The trial Court has made reference for confirmation of death sentence. As all the matters arise out of the same judgment, they are being disposed of together.
3. F.I.R. Exh.P.C. Was recorded by Khadim Hussain, Inspector/S.H.O. P.W.14, at 3-30 p.m. On 24-1-1985, on the statement of Muhammad Ramzan P.W.S. ' According to F.I.R. The complainant while going to join duty at Ghazi Mills, came to know that his brother Ahmad Bakhsh had been injured. He reached the spot and saw Ahmed Bakhsh lying in injured condition, on the eastern side of the road near office of the Union Council, Jhok Atra. P.Ws.
Khadim Hussain son of Khuda Bakhsh and Amir Bakhsh were also present there. Ahmad Bakhsh told the complainant that he had gone to Jhok Atra, after taking meals, for the purchase of Atta where Khadim Hussain and Amir Bakhsh met him. Atta was not available. All three of them started for their houses. They reached near the Union Council Office at about 2-00 p.m. A white car driven by Rashid came from the front side of Moar of Jhok Atra. The car stopped near them. Rashid and Ata Muhammad armed with guns, Pir Bakhsh armed with a pistol and Sharif armed with a Soti came out of the car. Rashid after raising a Lalkara that he (Ahmad Bakhsh) will not go alive, caught him by the arm, while Ata Muhammad fired a shot which struck him on the chest. On that, Rashid released him. He started running but fell after covering a short distance, where after he was given two Soti blows on the left arm, by Muhammad Sharif. Khadim Hussain and Amir Bakhsh did not intervene for fear and ran raising alarm. They witnessed the occurrence. Rashid etc. Went away riding their car, along with their weapons. Amir Bakhsh and Khadim Hussain came near him along with other persons.
4. Motive for the occurrence, mentioned in the F.I.R. Is that a case for abduction of Mst. Sakina sister of Pir Bakhsh Malkani and cousin as well as wife's sister of Ata Muhammad, had been registered against the complainant, Ahmad Bakhsh and their other relatives, while Rahim Bakhsh an uncle of the complainant had got a case of theft of cow registered against Rashid Khan and on account of that the four accused/appellants had launched murderous assault on Ahmad Bakhsh deceased.
Towards the end, it is stated that Khadim Hussain and Amir Bakhsh, on enquiry by the complainant, corroborated the information given to him by Ahmad Bakhsh. Ahmad Bakhsh was removed to the hospital by Khadim Hussain, Amir Bakhsh and others.
5. Khadim Hussain, S.H.O. After recording F.I.R. Went to Civil Hospital, Kot Chhutta where Ahmad Bakhsh was lying in injured condition. He recorded the statements of Ahmad Bakhsh, Amir Bakhsh and Khadim Hussain, under section 161, Cr.P.C. And sent Ahmad Bakhsh injured to D.H.Q. Hospital, Dera Ghazi Khan after preparing injury statement, under the escort of Muhammad Zamman, A.S.I.
Thereafter, he reached the spot and collected blood-stained earth. Chappal P.7 lying there was taken into possession by him vide memo Exh.P.H. On receiving information about the death of Ahmad Bakhsh he reached D.H.Q. Hospital, Dera Ghazi Khan where Muhammad Zamman, A.S.I.
Handed over the statement of Ahmad Bakhsh (deceased), recorded by a Magistrate. The dead body was sent by him for post-mortem examination after preparing inquest report Exh.P.Q.
' Ata Muhammad, Pir Bakhsh and Muhammad Sharif appellants were arrested by him on 19-2-1985.
Muhammad Sharif produced stick P.6, at the time of arrest, which was taken into possession vide memo, Exh.P.E. Pistol P.5 produced by Pir Bakhsh at the same time, was taken into possession vide memo Exh.P.D. Rashid appellant while being on interim bail appeared before the S.H.O. And produced his licensed gun P.8, along with licence on 14-3-1985, and the same were taken into possession vide memo Exh.P.S. He was formally arrested by the S.H.O. After dismissal of the pre- arrest bail application. The challan was submitted to the Court after completion of necessary investigation.
6. Statements of fourteen P.Ws. Were recorded at the trial. Positive reports Exhs.P.U. And P.V. From the offices of the Chemical Examiner and Serologist respectively were also tendered in evidence.
7. Dr. Shabbir Hussain Shah, who had medically examined the deceased whilst alive at 4-35 p.m.
On 24-1-1985, appeared as P.W.11. He had noted following injuries on his person:--
(1) A fire-arm wound 2-1/2" x 1/2" x 1-1/2" (as it could be ascertained) on the front of left clavicular region and placed obliquely. The wound was bleeding. The margins were inverted (wound of entry).
(2) A big fire-arm wound 3" x 2" x 2-1/1" (as it could be ascertained) on the front of left clavicular region on root of the neck and the uppermost part of the chest. The wound was bleeding (wound of exit). The breathing was quick and laboured and was producing hissing noise. The patient was under severe shock. The radial pulse was absent. The blood pressure was not recordable. The shirt, Bunyan, Chaddar and Lokar were bloodstained. The collar of the shirt on the left side was lacerated through and through at the border.
(3) Four fire-arm wound 1/4" x 1/4" x skin deep on front of the left shoulder (wounds of exit).
' Injuries Nos. 1 to 3, which were opined to have been caused by fire-arm, were declared grievous and dangerous collectively. The doctor also stated that he had directed the Police for arrangement of recording of the statement of the injured from a Magistrate. He stated that a Magistrate had come to the hospital for recording statement and had asked his opinion vide Exh.P.J. About fitness of Ahmad Bakhsh to make a statement and that he had opined vide Ddi.P.J./1 that he was fit to make a statement. He further stated that he had testified during the recording of statement also in writing that Ahmad Bakhsh was fit to make a statement and that at the end he had given a certificate that he had remained conscious while making statement.
' During cross-examination he declared that the injured could speak but with difficulty and with a changed voice. He stated that the injured had been given treatment immediately after arriving in the hospital. In answer to another question he stated that a brother of the deceased had interpreted a few words uttered by the injured in Saraiky while making statement.
8. Dr. Capt. Ghulam Farid, who had performed autopsy on 25-1-1985 at 10-00 a.m. Appeared as P.W.6. He had noted following injuries on the body of the deceased:--
(1) A fire-arm injury in an area of 4" x 2" x visceral deep at the front side of upper most part of the left chest, starting just at the midline and going to the left. A large hole oval in shape and two small lacerations at the left edge of large hole, and the underlying bones left clavical first rib sternal were badly injured. The edges of the wound were inverted and rough and many small pieces of the bone were present in the wound. This was a wound of entrance.
(2) Five fire-arm wounds in an area of 8" x 6" at the upper and lateral aspect of the left shoulder, left deltoid region. Each hole was measuring 3/4 c.m. And 3/4 c.m., and separate from each other. The edges of the wound were rough, averted and torn. This was the wound of exit.
(3) Small contusion at the left upper arm.
' During internal examination, chest wall was found badly injured. Pleura, left lung and blood vessels were found injured also. Although, he did not state specifically while making statement, yet he had recorded time between injuries and death as 2 to 4 hours and time between death and post- mortem to be within 16 hours.
' During cross-examination he stated that the shot had been fired from a distance of 2 of 4 yards. In answer to another question he stated that injury No,3 may have resulted from a fall on hard substance.
9. Muhammad Ramzan complainant who had lodged the F.I.R. Per information of the occurrence, given to him by the deceased, appeared as P.W.5 and repeated the facts given by him in the F.I.R with minor changes. He also claimed to have witnessed the recovery of pistol P.5 at the instance of Pir Bakhsh and Soti P.6 at the instance of Muhammad sharif at the time of their arrest and of having identified the dead body at the time of post-mortem examination.
' During cross-examination he admitted that he had not named hotelwala in the F.I.R. Who had informed him about the injuries to his brother.
' He admitted having been challaned alongwith others under section 307, P.P.C. Etc. Of having been convicted by a Military Court for keeping unlicensed arms and of having been convicted for keeping Charas. He also admitted that a case was registered against P.Ws. Khuda Bakhsh and Khadim Hussain for assault on the sister of Ata Muhammad appellant. While admitting that the Magistrate had come to the hospital for recording the statement of his brother in his presence, he denied that he had remained sitting near his brother at the time of recording of his statement. He admitted that the stolen cow for which his uncle had lodged an F.I.R. Was not recovered as the same was stated to have been slaughtered. He added that Rashid appellant and Faiz had paid a sum of Rs,3,000 as compensation to his uncle Rahim Bakhsh. However, he admitted that Rashid appellant had not been named in that F.I.R. As an accused. He conceded that the case of abduction of Mst. Sakina had been registered against him and others on the statement of son of Pir Bakhsh accused. He denied the suggestion that the deceased had been done to death during early hours of the morning by some unknown assailants at a deserted place and they had falsely implicated the accused for being their enemies.
10. Khadim Hussain son of Khuda Bakhsh who appeared as P.W.8 while giving the ocular account of the occurrence, corroborated the account of the occurrence, deposed to by P.W.5 on the strength of the information said to have been imparted to him (P.W.5) by the deceased.
' During cross-examination he stated that Pir Bakhsh had chased them up to 35/40 Karams. He denied the suggestion that Muhammad Sharif had not given stick blows to the deceased. He admitted that his wife had got a case registered against Ata Muhammad and others under section 307, P.P.C. And that Faiz Muhammad who was co-accused of Ata Muhammad in the case registered at the instance of his wife, had lodged a case under section 307/326, P.P.C. Etc. Against the complainant and others for murderous assault on Ata Muhammad. He explained that he had met the deceased while returning from the clinic of Dr. Jamshed where he had gone to fetch medicine for fever. He explained that since the deceased was to purchase atta in the bag, he was not carrying any chaddar and that the sum of Rs,200 that the deceased had in his pocket, was removed by Amir Bakhsh after the occurrence. He admitted that he was married to the sister of the deceased. According to him the deceased had remained in senses at the spot and had been talking to the persons who came there. He denied the suggestion that he had not witnessed the occurrence and had made a false statement.
11. Ch.Muhammad Sarwar, Magistrate who had recorded dying declaration (Exh.P.K) of the deceased on 24-1-1985, appeared as P.W.9. While giving the details about the recording of statement of the deceased in the hospital, he stated that he had reached the hospital on submission of an application by Muhammad Zamman, A.S.I. To him for recording the statement of Ahmad Bakhsh and that on reaching the hospital he had started writing statement of Ahmad Bakhsh after obtaining opinion Exh.P.J. From Dr. Shabbir Hussain that the patient was fit to make a statement. He added that even while recording the statement he had asked for the opinion of the doctor and the doctor had vide Exh.P.K/1 affirmed that the injured was fit to make a statement. He further stated that he had obtained the attestation of Dr. Shabbir Hussain on conclusion of statement that the deponent had remained fit and in senses during the recording of statement.
' During cross-examination he admitted that the application for recording of statement of Ahmad Bakhsh had been submitted to him directly and it was not marked to him by any higher officer. He stated that some persons and the Police were present in the hopital but he had asked all of them to go away and had recorded the statement of Ahmad Bakhsh only in the presence of Dr. Shabbir Hussain. He admitted that Ahmad Bakhsh had died only within 5 to 10 minutes after the recording of his statement.
12. Muhammad Zamman, A.S.I. Who had moved for the recording of dying declaration of Ahmad Bakhsh and approached the Magistrate, verified the said fact while deposing as P.W.10.
13. Muhammad Ashiq Sukhera, D.S.P. Who had partly investigated the case, appeared as P.W.13.
During cross-examination he stated that he had come to the conclusion after investigation that Rashid appellant was not present at the time of occurrence.
14. Khadim Hussain Niazi, S.H.O. Who had registered the case, arrested the accused and submitted the challan after completion of necessary investigation, appeared as P.W.14 and deposed those facts.
' During cross-examination he stated that at one stage Mr. Zia Bokhari, D.S.P. Had also investigated the case under the orders of the Superintendent of Police and had expressed opinion that Rashid accused was not present at the time of occurrrence. In answer to another question he stated that on checking the antecedents of the deceased and that of the P.Ws. As well, he had found that the complainant had been involved in as many as four cases while Khadim Hussain and Khuda Bakhsh P.Ws. Had remained involved in five cases each. Ahmad Bakhsh, according to him was found to have been involved in one case. He denied the suggestion that he had conducted the investigation dishonestly and falsely challaned the accused at the instance of the Lahgaris and the complainant.
15. The appellants during their statements under section 342, Criminal Procedure Code denied the prosecution case as a whole. Ata Muhammad appellant produced certain F.I.Rs, in defence to show that the witnesses had remained involved in those cases either as accused or as P.Ws.
16. Learned counsel for the appellants, apart from Ata Muhammad, after taking us through the evidence criticised the impugned judgment and contended that the evidence of recoveries of gun, pistol and Soti, at the instance of Rashid, Pir Bakhsh and Muhammad Sharif appellants respectively, even if believed, was of no consequence as neither the stick was found stained with blood nor the firearms had been sent for Expert opinion, to the Forensic Science Laboratory; that the ocular account furnished by the only eye-witness, i,e, Khadim Hussain P.W.8 was not worth reliance as he was not only inimical to the appellants but was closely related to the deceased as well; that the claim made by Muhammad Ramzan complainant P.W.5 that he had been narrated the occurrence by the deceased himself, appeared to be totally incorrect and that no reliance can be placed on the dying declaration of the deceased, said to have been recorded by Muhammad Sarwar, Migistrate as it was apparent from the condition of the deceased that he would not have been able to make such a statement.
' Learned counsel contended that even if it be believed that the deceased was physically fit to make a statement, it will have to be conceded that the said statement must have been made by him under the influence of his brother and by way of tutoring. Lastly, learned counsel submitted that the F.I.R. Does not appear to have been recorded in the manner claimed.
17. Learned counsel appearing for Ata Muhammad, while owning the arguments advanced by learned counsel for the other appellants, contended that there was enough material on record to believe that Ata Muhammad had longstanding enmity with the complainant party and so he must have been involved on that account.
' Learned counsel in the end, prayed that if the conviction of the appellant (Ata Muhammad) under section 302, P.P.C. Is maintained, his sentence of death be altered to imprisonment for life, as per prosecution's own version, he seemed to have acted under the impulse of saving the family honour.
18. Learned counsel for the State defended the judgment of the trial Court.
19. Before proceeding to adjudicate upon the contentions raised by learned counsel for the parties, we deem it proper to note down the statement make by the deceased, to Muhammad Sarwar, Magistrate on 24-1-1985, which was recorded as a dying declaration. The statement reads as follows:--{{URDU TEXT}} ' During statement remained conscious.
(Sd.)
24-1-1985 {{URDU TEXT}} ' The deceased explicitly stated that he had been fired at by Atto son of Khairan (Ata Muhammad son of Khair Muhammad) when he was going home and the accused had come on a car and had got down on seeing him and said, we have come'. He added that Rashid had caught him by the right arm, where after Attu had fired. He also stated that Pir Bakhsh and Muhammad Sharif had also come out of the car along with Rashid but they had not caught him. He also stated that Khadim Hussain and Amir Bakhsh were walking with him.
20. We have no hesitation in accepting the argument of learned counsel for the appellants that evidence of recovery of gun, pistol and Soti from three of the appellants, was of no consequence, as neither the Soti was stained with blood nor is there any evidence that the pistol and gun produced by the two appellants, were the same which had been used for the commission of murder of Ahmad Bakhsh. The same, therefore, stands excluded from consideration against the appellants.
21. There is no doubt that the complainant as well as Khadim Hussain P.W.8 were involved in four or five cases each. In some cases both of them were accused. There is also evidence on record that some cases had been registered at their instance against some of the appellants too. The appellants or their relatives, according to the record had also lodged certain cases against the complainant party, while in some cases they were named as P.Ws. We are, however, not inclined to accept the argument of learned counsel for the appellants that the whole prosecution case can be thrown away merely on that account. The impact of each piece of evidence shall, therefore, have to be taken at its face value.
22. The argument of learned counsel for the appellants that P.W.8 does not appear to have witnessed the occurrence and seems to have been set up as a false witness, has not impressed us for the reason that if the complainant had to set up a person, as eye-witness who actually had not witnessed the occurrence,hc could well have himself come up as an eye-witness. There could have been no difficulty in doing that as by the time he had learnt about the occurrence and reached the spot where the deceased was lying injured, no report had been made to the authorities. In the circumstances if he was only to report the occurrence by twisting facts, by naming false witnesses, he could himself have done that more conveniently and easily.
23. We are conscious that mere acceptance of presence of Khadim Hussain P.W. At the time of occurrence cannot be guarantee of the fact that all what he stated was true and singularly enough also to maintain the conviction of the appellants. Safe reliance can only be placed on his statement to the extent that the same is corroborated by other independent and reliable material.
In that, we have examined the evidentiary value of the dying declaration made by the deceased, to a Magistrate. While considering the worth of the statement of the deceased, we considered the objections raised by learned counsel for the appellants in that regard. The argument of learned counsel that according to Dr. Shabbir Hussain the deceased was in a pretty bad shape and so could not have made that statement, in our view, is not correct appreciation of deposition of the doctor. It is worth noticing that although Dr. Shabbir Hussain stated that the deceased was not in a good condition when admitted to hospital, yet the same doctor attested fitness of the deceased to make a statement. He had not only furnished that opinion before the Magistrate proceeded to record the statement, but had reiterated the same view in the midst of recording of statement and had verified the fact of the deceased having remained conscious while making statement, on the end of making of statement. The contention of learned counsel that the deceased appeared to have made the statement under influence of the complainant and other relatives, again has not impressed our mind. In that, the reference made by him to the deposition of Dr. Shabbir Hussain that brother of the deceased had once interpreted certain words uttered by the deceased in Saraiky, to the Magistrate, in our view was not the correct position. In, that the Magistrate clearly stated during cross-examination that he had recorded the statement of the deceased only in the presence of Dr. Shabbir Hussain. In fact, Muhammad Ramzan complainant brother of the deceased also during cross-examination stated clearly that he had not remained present near his brother when the Magistrate had recorded his statement.
24. We feel no hesitation in saying that there is absolutely nothing on record to support, that the Magistrate had recorded the statement of the deceased in any incorrect or unlawful manner, or that he had incorporated anything which the B deceased had not uttered. We are of the clear view that reliance can be placed on the dying declaration in its positive perspective.
25. The common and corroborative factor between the statements of Khadim Hussain eye-witness and the dying declaration made by the deceased is that Ata Muhammad appellant had fired a shot at the deceased, which proved fatal. Ata Muhammad appellant while making statement under section 342, Criminal Procedure Code did not deny that Mst. Sakina Bibi sister of his wife who was his first cousin as well, had been abducted 4/5 months prior to the occurrence, by the deceased and others and that they stood challaned for her abduction. The ocular version qua him, therefore, finds support from the evidence of motive as well . The medical evidence in a way, also is corroborative of the account, as the deceased was found to have suffered only one inlet injury, as put forth by the prosecution. The case under section 302, P.P.C. Against him, as such, in our view, stands proved. His conviction under section 302, P.P.C. Is, therefore, maintained.
26. The part assigned to Pir Bakhsh and Muhammad Sharif appellants, by Khadim Hussain P.W.8, does not find corroboration from the dying declaration. The deceased while making statement to the Magistrate although named both of them, yet neither alleged that they were armed with any weapon nor stated that they had played any part in inflicting him injuries. In fact the statement made by P.W.8 that Muhammad Sharif appellant had inflicted Soti injury on the arm of the deceased, also stands contradicted in the sense that while Dr. Shabbir Hussain had not noted such injuries on the body of the deceased, Dr. Capt. Ghulam Farid stated that the said injury might have resulted from a fall on hard substance. The prosecution case against them, therefore, in our view, becomes highly doubtful. As such, it would he unsafe to maintain their conviction under section 302, P.P.C. The appeal filed by them is, therefore, allowed and they are acquitted of the charges.
27. Coming to the appeal filed by Rashid appellant it is worth noticing that learned trial Judge did not believe the evidence of motive against him. In that, the prosecution had failed to prove that Rashid appellant was named as accused in the case of theft of cow lodged by an uncle of the complainant and the deceased. The claim made by the complainant during cross-examination that Rashid appellant was not challaned or prosecuted in the theft case, as he (Rashid) and Faiz Muhammad had paid a sum of Rs,3,000 as compensation of cow, to his uncle Rahim Bakhah, clearly seems to be an afterthought. The reasons given by the trial Judge for the rejection of evidence of motive qua him, in our view, possesses weight, and we arc prone to agree with him.
Although, like P.W.8, the deceased also stated Rashid aappellant had caught his arm before he was fired at, yet we are of the view that the part assigned to him, is absolutely incompatible with the happcining of the occurrence, in that Rashid appellant could not have taken the risk of holding the deceased, before being fired at, as he could well have also been hit when the shot was to he fired, from a distance of more than six feet. He allegedly was carrying a licensed gun. If at all he had the intention of playing any significant role in the commission of murder, he could well have used the gun.
' The car alleged to have been recovered from him, was not found registered in his name. In fact, during his statement under section 342, Cr.P.C. He not only denied to have produced the car but also refused to own the same. He was found innocent during two successive investigations conducted by gazetted officer, i,e, Deputy Superintendents of Police. The case against him, in the circumstances, appears to be shrouded in doubts. The appeal filed by him is, therefore, also allowed and he is acquitted of the charges.
28. Although, we have maintained the conviction of Ata Muhammad appellant under section 302, P.P.C, yet we are not inclined to confirm the sentence of death awarded to him.
It is prosecution's own case that his wife's sister who was his cousin too, being daughter of his uncle, had been abducted by the deceased, only 4/5 months prior to the occurrence. He must, therefore, be surging under the impulse of having been insulted and degraded, and as such might have committed the offence in vindication of the honour of his family. The said facts, in our assessm ent, are enough mitigating factors. The sentence of death awarded to him is, therefore, altered to imprisonment for life.
29. It appears that he was a man of low means. The same is borne out from the fact that in spite of having been sentenced to death, he did not engage his own counsel and had preferred appeal through jail.
' In the circumstances, the sentence of fine of Rs,20,000 appears to be not only excessive but disproportionate too. The same is, therefore, also reduced to a sum of Rs,5,000 (Rs, five thousand), for non-payment of which he will undergo further R.I. For one year, Whole of the fine, on recovery, shall be paid as compensation to the heirs of the deceased. The appellant shall also be given benefit of the provisions of section 382-B, Criminal Procedure Code.