MUHAMMAD MUNIR KHAN, J.--- This Criminal Appeal No.7 of 1987 and connected Murder Reference No.35 of 1987 arise from the judgment of learned Additional Sessions Judge, Sahiwal, whereby he on 11-12-1986, convicted Liaqat (24) and Waryam (55) appellants under section 302/307, P.P.C. For the murder of Sultan and murderous assault on Ghulam P.W.2 and sentenced them as under:-- Liaqat Ali appellant (i)Under section 302/34, P.P.C.to death and a fine of Rs.10,000, in default thereof two years'
R.I.
(ii)Under section 307/34, P.P.C.to 5 years' R.I. and a fine of Rs.2,000, in default thereof one year's R.I.
Waryam appellant (i)Under section 302/34, P.P.C.to imprisonment for life and a fine of Rs.10,000, in default thereof further R.I. for 2 years.
(ii)Under section 307/34, P.P.C.to 5 years' R.I. and a fine of Rs.2,000, in default thereof 2 years'
R.I.
It was directed that the fine imposed under section 302, P.P.C. On the appellants, if recovered be paid to the legal heirs of the deceased.
2. The occurrence took place on 8-10-1985 at 6-00 p.m. In the house of Ghulam P.W.6 situate in Chak No.98/9-L, at a distance of 9 miles away from Police Station Dera Rahim. The F.I.R. Is the statement Exh.P.A. Of Khan P.W.5, brother of the deceased recorded on the same day at 7-00 p.m.
By Ahmad Hassan, A.S.I., P.W.9 on the spot. Formal F.I.R. Exh.P.A./1 was drawn up by Manzoor Hussain, Moharrir Head Constable, P.W.1, on the same day at 8-00 p. m
3. Liaqat appellant is son of Waryam appellant. Sultan deceased was the real brother of Waryam appellant and Khan complainant, P.W.5. Ghulam P.W.6 is the neighbourer of the appellants. Amir Ali, P.W.7 is an independent person.
4. The prosecution case is that Hamzal daughter of Waryam appellant was married to Peera son of Mst. Khanum, father's sister of Waryam appellant. About 1-1/2 months before the occurrence, Mst.
Hamzal came to the house of her parents in Chak No.89/9-L after having quarrel with her in-laws.
Mst. Khanum, mother-in-law of Mst. Hamzal alongwith her son Hakim Ali, came to the house of the appellants on the evening preceding the day of occurrence for taking Mst. Hamzal back to her house but the appellants refused to send her back to her in-laws. On this Mst. Khanum and Hakim Ali approached Khan P.W.5, brother of Waryam for help. On their request Khan P.W.5, Ghulam Muhammad P.W.6 and Sultan deceased went to the house of the appellants for the return of Mst.
Hamzal to her in-laws but Waryam not only refused to send her daughter back to in-laws but also told Khan Muhammad P.W.5 and others as to why they had accompanied Mst. Khanum and Hakim Ali for the return of his daughter to them. On the evening of the fateful day, the appellants had an altercation with Ghulam P.W.6 and his were. So Ghulam P.W.6 went to Khan Muhammad and others and narrated the incident to them. On this, Khan Muhammad and Sultan deceased came to the house of Ghulam P.W. At about 6-00 p.m. Immediately thereafter, Waryam armed with Sota, alongwith his son Liaqat Ali appellant entered the house of Ghulam P.W. Waryam appellant gave two Sota blows on the person of Ghulam P.W. And simultaneously exhorted his co-accused Liaqat Ali to fire and none should escape alive. Liaqat took out pistol from his Dub and fired at Sultan hitting on his chest, who fell down on the ground. Liaqat Ali also fired shot on Ghulam P.W. Hitting on his arm and right flank. The accused then made good their escape taking weapon with them.
Sultan succumbed to the injuries on the spot.
4-A. On 8-10-1985 Ahmad Hassan, A.S.I., P.W.9 lifted crime empties Exh.P.4 and P.5 from the spot vide memo. EXII.P.E. Attested by Amir Ali P.W.7, Ahmad (not produced) and Ahmad Hassan, A.S.1., P.W.9. On 31-10-1985, the appellants were arrested by Ahmad Hassan, A.S.I. P.W.9. At the time of his arrest, Liaqat Ali produced pistol Exh.P.7, which was taken into possession vide memo. Exh.P.G.
Waryam appellant produced Sota Exh.P.6 which was taken into possession vide memo. Exh.P.F. The memoranda were attested by Amir Ali P.W.7, Ahmad (not produced) and Ahmad Hassan, A.S.I., P.W.9.
5. To prove its case, prosecution examined 9 witnesses. Khan P.W.5, Ghulam P.W.6 and Amir Ali, P.W.7 have given the ocular account of the occurrence. They claim to have seen Liaqat Ali appellant taking out pistol from the Dub of his Chadar and firing at Sultan hitting on his chest and Waryam giving Sota blows to Ghulam P.W.6. Khan P.W.5 and Ghulam P.W.6 have also deposed about the motive and the immediate cause of attack by the appellants on the deceased and Ghulam P.W.6. Amir Ali P.W.7 and Ahmad Hassan, P.W.9 have supported the recovery of crime empties from the spot and of pistol Exh.P.7 and Sota Exh.P.6 from Liaqat Ali and Waryam, respectively. Forensic Science Laboratory Report Exh.P.N. Reveals that the crime empties were fired from the pistol recovered from Liaqat Ali appellant. Dr. Muhammad Naeem Aslam, P.W.8 had conducted post-mortem examination on the dead body of Sultan on 9-10-1985 at about 10-00 a.m. And found following injuries:-- "A fire-arm lacerated wound 4 x 4 C.m. x deep going on front upper part of left chest just near the mid-line. A piece of lung was protruding out of wound. There was blackening and tatooing around the edge of wound upto 1-2 c.m. Around. On dissection, second rib was fractured. Skin and wall of chest were also injured as described in injury No.1."
(1) Multiple fire-arm wound in an area of 23 x 10 c.m. Each of 1/4 x 1/4 c.m. x deep going over the back of right forearm.
(2) Multiple fire-arm wound of 6 x 4 c.m. Each of 1/4 x 1/4 c.m. Over the right lower side of chest.
(3) A fire-arm wound of 1 /4 x 1 /4 c.m. x skin deep over the right flank of abdomen, just below the ribs.
(4) Abrasion of 3 x 1/4 c.m. Over the front middle abdomen in upper side.
(5) Multiple fire-arm wound each of 1/4 x 1/4 c.m. x deep going over the front inner middle of left fore-arm in an area of 14 x 10 c.m.
(6) Contusion of 6 x 8 c.m. Over the back middle left chest Injuries Nos. 1, 2, 3 and 5 were caused by fire-arm and injuries Nos.4 and 6 by blunt weapon. All the injuries were declared simple. The rest of the evidence is more or less of formal nature.
6. When examined under section 342, Cr.P.C., Waryam appellant denied his participation and presence at the time of occurrence. Liaqat Ali, however, pleaded right of self-defence. In reply to question No.11, he stated:-- "The in-laws of my sister Mst. Hamzal used to maltreat her and, as such, she had come over to our house after having quarrelled with her in-laws. One day prior to this occurrence, the mother-in-law and brother of her husband had come to our house to take back Mst. Hamzal with them, but my mother and I refused and said that let her husband himself come, so that there may be a compromise between the spouses. Her mother-in-- law and her Dewar insisted to take her with them and they also sought the support of Sultan deceased and Ghulam P.W., but we did not accede to their demand, upon which they gave threats that they would forcibly take my sister to Faisalabad in case she was not sent amicably. My father was not in the house and on his arrival, I narrated the incident to him, who tried to impress upon the deceased, Ghulam P.W. Hakim Ali and Mst. Khanun and requested them not to create troublsome situation. On the following day again the deceased alongwith Mst. Khanan, Hakim Ali and Ghulam P.W. Came over to our house at about Ishawela time. At that time my father was not in the house. One of our relatives, Khan son of Sammu was also present in our house. The deceased and Ghulam P.W. Held my sister to take her away forcibly with them. I, and Khan intervened to rescue my sister. There was a scuffle. Hakim Ali was armed with pistol and due to the scuffle, the pistol fell down. In spite of this, the deceased and Ghulam P.W. Continued dragging my sister out of our house and during the scuffle, Khan, my sister and Ghulam received injuries. I, in order to rescue my sister from the clutches of Sultan deceased and Ghulam P.W., picked up the same pistol which had been brought by Hakim Ali and was already loaded by him fired the same at the deceased and Ghulam P.W. Were injured. I threw the pistol on the spot. The deceased fell down outside our house to the lane. My father was not present at the time of occurrence. I myself informed the village elders about the occurrence, who called the police. 1, my sister, Khan son of Sammu were apprehended by the police on the same night. My father returned to the house after the occurrence. He was also made to sit with us and we were wrongfully detained by the police for about three weeks and our arrests were shown dishonestly by the police on 31-10-1985. The case wits registered after preliminary investigation by the police in collusion with the complainant party."
He failed to give evidence on oath in disproof of the charge against him. No witness was produced in defence.
7. Believing the ocular evidence and the incriminating recoveries and disbelieving the defence version, the trial Court has convicted and sentenced the appellant as stated above.
8. Learned counsel for the appellant argued that the prosecution has failed to prove its case beyond reasonable doubts; that the eve-witnesses are not reliable; that the medical evidence does not support the prosecution case; that the prosecution evidence suffers from contradictions and that there is a reasonable possibility of the defence version being true. Learned counsel for the State has supported the judgment of the trial Court.
9. We have anxiously attended to the arguments addressed by the learned counsel for the parties and have: also carefully reviewed the entire evidence produced by the prosecution, statements made by the appellants under section 342, Cr.P.C. And the circumstances appearing in the case.
We find that the occurrence took place at 6-00 p.m. And the F.I.R. Was registered after one hour at 7-00 p.m. There is nothing in evidence to show that the F.I.R. Is not a genuine document or it was recorded after consultation or spot inspection. The occurrence took place in the house of Ghulam P.W.6. Blood-stained earth and crime empties were recovered therefrom. By the fact of injuries on his person, presence of Ghulam P.W.6 is very much established. It has also not been denied by Liaqat appellant. Khan P.W.5 is the real brother of Waryam appellant and the real paternal-uncle of Liaqat Ali appellant. Amir Ali P.W.7 is an independent witness. The eye-witnesses have successfully faced the test of cross-examination. The learned counsel has not been able to point out any material contradiction, major discre pancy or dishonest improvements in their statements. The medical evidence does not contradict the ocular evidence in any manner. The statements made by the eye-witnesses do not suffer from any legal infirmity. The recoveries of pistol Exh.P.7 from Liaqat Ali appellant and Sota Exh.P.6 from Waryam appellant is proved by an honest person namely Amir Ali P.W.7, who has no animosity against the appellants. Ahmad Hassan, A.S.I. P.W.9 has also supported the incriminating recoveries from the appellant and the recovery of the crime empties from the spot. His statement cannot and should not be disbelieved on account of the office he holds. Forensic Science Laboratory Report Exh.P.N. Has confirmed that the crime empties lifted from the spot were fired from pistol Exh.P.7. We are fully convinced that the eye-witnesses produced by the prosecution are genuine witnesses and have deposed honestly. We do not see any reason to exclude their statements from consideration.
10. Adverting to the defence version, we proceed to examine as to whether or not the defence plea has been established or there is any reasonable possibility of its being true. We find that although Liaqat Ali appellant could give evidence on oath in disproof of the charge against him, yet he has not appeared as witness in defence. Furthermore, there is no evidence in support of defence version. The place of occurrence, i.e. The house of Ghulam P.W.6 wherefrom the blood-stained earth and crime empties were taken into possession falsifies the entire defence story. Had the occurrence taken place in a manner as pleaded by Liaqat Ali appellant, then the blood would have been found in the house of Waryam or just outside his house and not in the house of Ghulam P.W.6.
Mst. Hamzal could be produced as defence witness but she has been withheld for reasons best known to the appellants. In his statement under section 342, Cr.P.C., Liaqat Ali appellant has stated that during the scuffle Mst. Hamzal had received injuries. Strangely enough neither she nor medico-legal report with regard to her injuries had been produced in defence. Sultan had received fire-arm injury whereas Ghulam received injuries with blunt weapon. This shows that there were at least two assailants; one carrying fire-arm and the other blunt weapon. The nature of the injuries found on the person of the deceased and Ghulam P.W. Also goes against the defence version. For all these reasons, we are of the view that the prosecution version rings true and the defence version is not only false but there is also no reasonable possibility of its being true. So we are convinced that Sultan died as a result of fire-arm wound caused by Liaqat Ali appellant and Ghulam Hussain P.W. Suffered injury at the hands of Waryam and Liaqat Ali appellants.
11. Since Waryam has not caused any injury to the deceased, therefore, the question of his vicarious liability for the murder of Sultan deceased needs utmost care on our part. We rind that according to the prosecution case, Liaqat Ali appellant had concealed pistol in the Dub of his Chadar when he came to the place of occurrence. It was after the start of attack by Waryam on Ghulam P.W. That he took out pistol from his Dub and fired at Sultan deceased. There is no evidence of pre- consultation between the appellants except proverbial Lalkara attributed to Waryam. There is nothing on record to show that he knew that Liaqat Ali was having pistol in his Dub. We are convinced that the act of Liaqat Ali of killing Sultan was individual act and in the circumstances of the case, Waryam appellant cannot be held criminally liable for the murder of Sultan although he was/is guilty of causing hurt to Ghulam P.W.
12. Pursuant to the above discussion, the convictions of Liaqat Ali under section 302, P.P.C. For the murder of Sultan and under section 307, P.P.C. For murderous assault on Ghulam P.W.G are sustained. The conviction of Waryam under section 302, P.P.C. For murder of Waryam and under section 307, P.P.C. For murderous assault on Ghulam P.W. Is set aside. Instead he is convicted under section 323, P.P.C. For causing hurt to Ghulam P.W. He has remained in jail for more than a year. So the sentence already undergone by him would meet the case.
13. This brings us to the question of sentence of Liaqat Ali. We find that there are mitigating circumstances for lesser penalty in his favour. The legal heirs of the deceased have riled an application stating that they have compromised with him. Needless to say that compromise between the legal heirs of the deceased and the accused is a recognised ground for the reduction of sentence. So the sentence of death awarded to him is reduced to imprisonment for life. The fine imposed by the trial Court under section 302, P.P.C. Or sentence in lieu thereof is maintained. The fine, if recovered, shall be paid to the legal heirs of the deceased. The sentence awarded to Liaqat Ali under section 307, P.P.C. By the trial Court being not excessive does not warrant interference.
However, the sentences awarded to Liaqat Ali under section 302, P.P.C. And section 307, P.P.C. Shall run concurrently and he will also get the benefit of section 382-B, Cr.P.C.
Death sentence is not confirmed.
N.H.Q./L-107/L