' Haq Nawaz aged 33 years was tried by the Additional Sessions Judge, Faisalabad, alongwith Abdur Rehman, Asghar, Abdul Hafeez and Altaf, for having murdered Daulat Khan at 6-00 a.m. On 13-9-1987, in the street in front of the house of Haq Nawaz (appellant) in Chak No,214/R.B. At a distance of 2 miles from Police Station Sadar, Faisalabad.
' Learned trial Judge, vide judgment dated 9-1-1989 convicted Haq Nawaz under section 304, Part I, P.P.C., and sentenced him to undergo R.I. For 7 years, plus to pay a fine of Rs,10,000 in default whereof to suffer R.I. For six months. Half of the fine, on realization, has been directed to be paid as compensation to the heirs of the deceased.
' The other four, tried alongwith him, were acquitted vide same judgment.
2. The convict has filed appeal. The complainant has preferred revision petition, wherein prayer has been made against the acquittal of Haq Nawaz as well as of his co-accused, under section 302/148/149, P.P.C. Both the matters are being disposed of together.
3. F.I.R. Exh.P.E. Was recorded by Muhammad Sadiq, Inspector/S.H.O. P.W.10 at 6-30 a.m. At Police Station Sadar, Faisalabad, on the statement of Salat Khan P.W.6.
' According to F.I.R. Daulat Khan left for the Dera of his father-in-law early in the morning, on the day of occurrence, to milk the buffalo tethered there. A few minutes after his departure, the complainant heard fireshots. He ran out of the house. Pehlwan P.W. Came running to him and told him that Daulat Khan has been fired at by Haq Nawaz and his relatives Abdur Rehman, Asghar, Abdul Hafiz and Altaf and that he (Daulat Khan) is lying in front of the house of Haq Nawaz. The complainant ran to the spot. P.Ws. Sarfraz, Zulfiqar and some other persons were present there.
Daulat Khan died in his presence. He had noted an injury on his back. The P.Ws. Present there told the complainant that when Daulat Khan was passing from in front of the door of Haq Nawaz's house, he (Haq Nawaz) had come out of his house armed with a gun, accompanied by his co- accused also armed with guns, raising Lalkaras and that when Daulat Khan had tried to run back, he was fired at by Haq Nawaz, as a result of which he fell down. He was also informed that the other accused had also opened fire.
4. About motive for the occurrence, it is stated in the F.I.R. That Haq Nawaz appellant suspected the deceased of having illicit relations with his wife Mst. Meraj.
5. Muhammad Sadiq, S.H.O. After recording the F.I.R. Reached the spot, wherefrom he collected blood-stained earth and 3 empties vide memos. Exhs.P.F. And P.G. Respectively. Prior to that he had despatched the dead body for post-mortem examination, after preparing the necessary papers.
6. Haq Nawaz appellant was arrested by him (the S.H.O.) on 23-9-1987. Altaf was arrested on 27-9- 1987 while the other three were taken into custody on 18-9-1987. Licensed gun P.8 produced by Haq Nawaz appellant, licensed revolver P.2 produced by Abdur Rehman, licensed gun P.4 produced by Abdul Hafiz, licensed gun P.6 produced by Asghar and gun P.10 got recovered by Altaf during the investigation, were taken into possession by him vide memos Exhs.P.K., P.H., P.I., P.J. And P.M.
Respectively. The challan was submitted to Court after completion of necessary investigation.
7. Statements of eleven P.Ws. Were recorded at the trial. Dr. Abdul Sattar who had performed autopsy at 9-00 a.m. On 17-9-1987, appeared as P.W.S. He had noted six fire-arm wounds of inlet, in an area of 10 c.m. x 5 c.m. Each measuring 1/2 c.m. x 1/2 c.m. On outer side of right chest and three fire-arm wounds of inlet, each measuring 1/2 c.m. x 1/2 c.m., in an area of 6 c.m. x 5 c.m. On the back of right side of chest.
' Death was opined to have occurred due to the above-noted injuries, which according to him had been caused by a fire-arm.
' Probable time between the injuries and death was opined to be a few minutes while the time between death and post-mortem was opined to be within 3 hours.
8. The ocular account was deposed to by Pehlwan P.W.7 uncle of the deceased and Zulfiqar P.W.8 cousin of the deceased. Both of them stated that they had seen Haq Nawaz appellant armed with a gun, coming out of his house alongwith the acquitted accused also armed with guns, raising Lalkaras that Daulat Khan would not escape alive and that Haq Nawaz had fired a shot at him when he turned back and started running. They stated that Daulat Khan fell there and died on the spot. According to them one Sarfraz had also witnessed the occurrence. Pehlwan P.W. Claimed that he had run to the house of Salat Khan brother of the deceased and informed him whereupon he had also arrived at the spot.
' Pehlwan P.W. Also claimed to have witnessed the collection of blood-stained earth and 3 empties P.1/1-3 by the Investigating Officer from the spot. He also claimed to have witnessed the taking into possession of licensed weapons from all the accused except Altaf, and of having attested the recovery memos.
9. Salat Khan complainant appeared as P.W.6 and repeated the facts given by him in the F.I.R.
During cross-examination he stated that his brother had not taken silver utensils with him for bringing milk. He stated that Haq Nawaz appellant had developed the suspicion about illicit intimacy of the deceased with his wife 6 months prior to the occurrence. He admitted that during those six months, nobody had launched attack on his brother on account of that suspicion. He admitted that Akram Khan Niazi, D.S.P. Had declared all the acquitted accused to be innocent, during the investigation and that Muhammad Yunas Bhatti, D.S.P. To whom the investigation was transferred on his application, had also come to the same conclusion. He also admitted that Haji Ghulam Dastgir, D.S.P. Of Crime Branch to whom the investigation was entrusted on his application, had also declared them innocent. However, he denied the suggestion that the above-named three officers had submitted report that the occurrence had taken place at 3-00 a.m.
' Pehlwan P.W.7 while admitting that the deceased was his nephew, denied to have made a false statement. He stated during cross-examination that the shirt of the deceased had been taken away by someone after the occurrence while the Parna had been placed on his dead body. It may be mentioned here that according to him the deceased was carrying his shirt and Parna on his shoulders before he was attacked. During cross-examination he was not found to have stated that the deceased was carrying his shirt and Parna on the shoulders.
10. Zulfiqar P.W.8 made a different statement than P.W.7 about the shirt, in that, he stated that the deceased was wearing a shirt.
11. Muhammad Sadiq, Inspector/S.H.O. Who appeared as P.W.10, gave the account of the investigation which included the collection of blood-stained earth and empties from the spot, the arrest of the accused and the recoveries at their instance.
' During cross-examination he admitted that he had not mentioned the presence of empties at the spot in the inquest report (Exh.P.D.). He admitted that the dead body was covered with a Chaddar when he had reached the spot. He made it clear that the deceased was not wearing any shirt etc. And was only clad in a Tehband (Chaddar). He stated that he had not recorded the statement of father-in-law of the deceased to verify the fact whether buffalo of the deceased was tethered at his Dera or not.
12. Except Haq Nawaz appellant, all the accused in their statements under section 342, Cr.P.C.
Denied the prosecution as a whole and pleaded innocence.
' Haq Nawaz appellant stated as follows in answer to the question, 'Have you anything else to say?':-- "At 3-00 a.m. On the morning of occurrence I woke up due to the barking of my dog and saw Daulat deceased standing by the bed of my wife. I called out whereon he ran. I shoot at him when he was going to jump over the wall. He was hit and fell on the other side of the wall in the street. My mother also woke up. I sent her to the police station and remained sitting with the gun in hand till the arrival of the police which I offered to the Police Officer alongwith my licence. The gun contained the empty shell of the fired cartridge. Later on I came to know that in collusion with the complainant party a wrong version was made and my arrest was also shown at a later date. The complainant party has got changed investigation with several officers but all the senior police officers held my version to be true."
' Neither the appellant nor the respondents in the revision petition made statements on oath, under section 340(2) of the Code of Criminal Procedure.
13. Learned counsel for the appellant did not challenge the conclusion arrived at by learned trial Judge against the appellant of having committed the offence under section 304 Part I, P.P.C. The only grievance, he expressed, was that learned trial Judge after having accepted the defence version awarded sentences not proportionate to the liability with which the appellant could have been burdened.
14. Learned counsel for the petitioner in the revision petition while not pressing the petition against the respondents, other than Haq Nawaz, strenuously argued that learned trial Judge arrived at an erroneous conclusion that the prosecution had failed to prove the case and that the eye-witnesses had not witnessed the occurrence. In that, learned counsel submitted that it is impossible to believe that the deceased would have gone to the house of Haq Nawaz to visit his fiance when her husband and mother-in-law both were also sleeping near her in the same courtyard, and that, had the deceased, been fired at while scaling over the wall, stains of blood would have been found on the wall as well. Learned counsel contended that the duration given by the doctor between the death and post-mortem, as within 3 hours, was clearly corroboratory to the ocular account about the occurrence having taken place at 6-00 a.m. And certainly belied the version put forth by the defence that the occurrence had taken place at 3-00 a.m. Learned counsel also challenged the finding of the trial Judge about the injuries having resulted from two shots.
15. The Judge who was trying the case, had not to see whether the version put forth by the defence was false or not. He in fact, had to weigh and assess whether the prosecution version of the occurrence put forth in Court was true and that, could reliance he placed on the evidence against the accused. In that, the factum of the deceased having been found without a shirt and the factum of non-recovery of utensils from the spot, was enough material to disbelieve the version of the complainant that the deceased was attacked by the accused when he was going to milk his buffalo which was tethered at the Dera of his father-in-law. It is not believable that a person as old as 35 years, would have started from his house for the Dera of his in-laws without wearing a shirt, what to say of being properly dressed. He should also not have been without utensils, if the purpose of his departure from his house was to milk a buffalo. The effort made by the eye- witnesses to explain the situation at the trial did not improve the prosecution case by any means because both the eye-witnesses i.e, P.W.7 and P.W.8 made contradictory statements for that.
Pehlwan P.W.7 stated that the deceased was carrying a shirt and Parna on his shoulders while P.W.8 stated that the deceased was wearing the shirt. The attempt made by P.W.7 about the shirt having not been found at the spot by stating that it had been taken away by someone, was to say the least was shelly ridiculous.
16. The fact of the dead body of the deceased having been found close to the wall of the house of Haq Nawaz was rather in line with his stance that the deceased had fallen in the street while scaling over the wall. The argument of learned counsel for the petitioner that if he had been fired at while scaling over the wall, there would have been stains of blood on the wall, in my view, does not bear much force, as the blood does not start oozing out momentously and certainly he would not have taken more than a few seconds to fall over the wall in the street.
17. The contention of learned counsel that the duration given by the doctor who performed autopsy tallied with the time of occurrence given by the eye-witnesses, again does not conclude the matter because the opinion expressed about the duration between the death and post-mortem is always probable. In fact the word 'probable' is written in the column. As such the stretching of the same on either side by two hours, is to be allowed. It is also worth noticing that there was evidence before learned trial Judge that four other accused named in the F.I.R. Had been found to have been falsely implicated, during investigation, conducted by three different gazetted officers, two of whom had been deputed for investigation on the application of the complainant.
' After having gone through the record and the impugned judgment, I am convinced that the contentions raised by learned counsel for the petitioner for setting aside the acquittal of the respondents under section 302/149/148, P do not bear force. The revision petition is, therefore, dismissed.
18. The prayer of learned counsel for the appellant that the sentence of 7 years' R.I. Awarded to the appellant was absolutely disproportionate, in my view, does not carry weight, requiring substantial reduction in the sentence of imprisonment.
However, I feel inclined to reduce the sentence of imprisonment from 7 years' R.I. To 6 (six) years' R.I.
The sentence of fine is maintained. The appellant shall be given benefit of the provisions of section 382-B, Cr.P.C.
Sentence reduced. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.