IJAZ NISAR, J: -- Arshad alias Achhu son of Ibrahim, Ameen son of Shafique Akhtar, Muhammad Alam alias Bhola son of Nazir Ahmad, Muhammad Irshad alias Teddi son of Ibrahim, Nazeer Ahmad son of Mehr Elahi and Pervaiz Akhtar son of Habib Ullah were tried for the murders. Of Abdul Latif and Muhammad Hanif and for murderously assaulting Abdur Rashid P.W.7 and Abdul Majeed P.W.8 on the instigation of Shafique Akhtar son of Muhammad Shafi and Bashir Ahmad son of Akbar Din.
By judgment dated 3-8-1987 the learned Sessions Judge, Okara acquitted Nazeer Ahamd, Pervaiz Akhtar, Shafq Akhtar and Bashir Ahmad but convicted the others under section 302/307/34, P.P.C.
And awarded them the following sentences: Muhammad Arshadalias death on two counts plus Achhu son of Ibrahim anda fine of Rs.10,000 each Muhammad Ameen son of or in default to undergo Shafiq Akhtar. Six month's R.I. Under section 302/34, P.P.C. for themurders of Abdul Latif and Muhammad Hanif.
Ten years' R.I. Each on two counts under section 307/34,P.P.C. For murderously assaulting Abdur Rashid P.W.7 and Abdul Majeed P.W.8.
Muhammad Alam alias Bhola imprisonment for life on and, Muhammad Irshad alias two counts plus a fine of Teddi son of IbrahimRs.10,000each or in default to undergo six months' R.I. Each under section302/34' P.P.C.
Ten years' R.I. Each on two counts under section 307/34 P.P.C. The sentences of imprisonment were to run concurrently.
The convicted accused have filed Criminal Appeal No.439 of 1987 while Abdur Rashid complainant has filed Criminal Revision No.522 of 1987 for the enhancement of sentence of Muhammad Alam and Muhammad Irshad and for the award of independent compensation under section 544-A, Cr.P.C. The learned trial Court has made a reference under section 374, Cr.P.C. For the confirmation of death. Sentence of Muhammad Arshad alias Achhu and Muhammad Ameen. All the matters shall be disposed of by this judgment.
2. The prosecution case is that Bashir Ahmad and Shafiq Akhtar accused (since acquitted) had a dispute with the complainant party over an Ihata. The accused claimed that 2/3 Marlas of their Ihata was under the possession of the complainant party, and used to ask them to relinquish their possession over the said excess land. The complainant party was adament and stated that they would relinquish it only in case the same was found in their possession after proper demarcation by the Revenue Department.
3. On 6-9-1985 at about 4 p.m. Abdul Latif and Muhammad Hanif deceased accompanied by their brother Abdur Rashid P.W.7 were returning from Okara by a car to their village. They stopped the car in front of the shop of Bashir barber near Chak No.38/2-RA and alighted from it. They saw Arshad alias Achhu armed with .12 bore pistol, Pervaiz Akhtar armed with a hatchet, Muhammad Ameen armed with .12 bore pistol, Muhammad Alam alias Bhola armed with Sota, Nazir armed with Sota and Irshad armed with Lathi standing at the bus stand. Arshad alias Achhu fired a pistol shot at Latif deceased hitting him on the left flank. Pervaiz Akhtar dealt a hatchet blow with its wrong side to Latif deceased landing at his head. Ameen accused fired a pistol shot a Hanif hitting him on the back of his left shoulder. Muhammad Alam accused gave a Lathi blow to Abdul Majeed P.W.8.
Nazir accused gave a hatchet blow from its wrong side to him landing on his head. Muhammad Alam inflicted a Lathi blow on his left wrist joint. Irshad alias Teddi caused,, stick injury to Abdur Rashid P.W.7 on his jaw and neck. After causing the above injuries the accused fled away. The occurrence, was witnessed by Abdur Rashid P.W.7, Abdul Majeed P.W.8, Nazir P.W.9 and Abdul Aziz (not examined). Muhammad Hanif deceased died instantaneously. Latif deceased was carried to District Headquarter Hospital, Okara but he breathed his last on way to the hospital. Abdur Rashid P.W.7 reported the matter at Police Station Saddar Okara by making the F.I.R. Exh.P.M. He was also medically examined.
4. After recording the F.I.R. Abdul Hameed Inspector P.W.12 proceeded to the spot. He prepared the injury statements and inquest reports of the two deceased. On 13-9-1985 he arrested the accused.
5. On 21-9-1985 Pervaiz (since acquitted) led to the recovery of blood--stained hatchet P.9 vide memo. Exh. P.B. On the same day, Muhammad Amin appellant got recovered pistol P.10 from his house through memo. Exh. P.C. On the same day, Arshad got recovered pistol P.11 from his house through memo. Exh. P.D. Irshad got recovered blood-stained Sota P.12 from his house vide memo.
Exh. P.E. Nazir Ahmad led to the recovery of hatchet P.14 from his house vide memo. Exh. P.G.
Muhammad Alam got, recovered blood-stained Sota P.13 from his house vide memo. Exh. P.F. Abdul Hafeez and Sadiq (not produced) attested the recovery memos.
6. In the post-mortem examination the following injuries were found on the dead body of Abdul Latif deceased:
(1) 8 small lacerated wounds in an area of 9 c.m. x 9 c.m. Each measuring 3/4 c.m. x 1/2 c.m. Deep going on the pastor lateral aspect of left lumber region. The edges were black and inverted perforations were present on the corresponding parts, of shirt, Shalwar and vest. This was wound of entry.
(2) An abrasion 3 c.m. x 3 c.m. On the outer side of lower part of left side of chest 5 c.m. Above the injury No.1.
(3) A lacerated wound 4 c.m. x 1/2 cm. Bone deep on the right side of skull 7 c.m. Above the right ear.
Death was due to shock and haemorrhage as a result of injury No.1 caused by fire-arm. The other injuries,, were caused by blunt weapons.
The following injuries were found on the dead body of Muhammad Hanif deceased: 7 small lacerated wounds in an area of 30 c.m. x 12 c.m. On the back of left shoulder, chest and lumber region. Each measuring 1 c.m. x 3/4 c.m. Deep going, the edges were black and inverted.
Perforations were present on the corresponding parts of Kurta and vest. There was a small lacerated wound measuring 1 c.m. x 3/4 c.m. Deep going on the back of left forearm, 3 c.m. Below the elbow joint. Edges were black and inverted. These were the wounds of entry. There was a small, lacerated wound 1 c.m. x 3/4 c.m. On the front of left forearm 3 c.m. Below the elbow joint. The edges were averted. This was the wound of exit. Perforations were present on the corresponding part of shirt.
Death was due to shock and haemorrhage as a result of the above injury caused by fire-arm.
The following injuries were found on the person of Abdur Rashid P.W.7:
(1) A contusion mark 7 c.m. x 3 c.m. On the outer side of right side of face.
(2) Multiple contusion mark in an area of 7 c.m. x 4 c.m. On the right side of front of neck.
(3) A contusion mark with swelling 4 c.m. x 3 c.m. On the front of left wrist.
All the injuries were caused by blunt weapon. Injury No.1 was found grievous and the others simple in nature.
The following injuries were found on the person of Abdul Majeed, P.W.8: (1)A lacerated wound 5.5 c.m. x 1/2 c.m. Bone deep on the left side of skull9 c.m. Above and in front of left ear.
(2)A contusion mark 7 c.m. x 4 c.m. With an abrasion 2 c.m. x 1 c.m. On theback of right shoulder region.
(3)A contusion mark 21 c.m. x 1 c.m. Across the back of upper part of chest.
(4)A contusion mark 8 c.m. x 1 c.m. On the left scapular area.
(5)A contusion mark 8 c.m. x 2 c.m. On the back of lower part of left upperarm.
(6)An abrasion 4.5 c.m. x 1 c.m. On the back of left upper part of arm 1.5c.m. Above the elbow.
(7)A contusion mark with skin abraded 6 c.m. x 4 c.m. On the front of upperpart of right thigh.
The injuries were caused by blunt weapons and were simple in nature.
7. The prosecution examined 12 witnesses to prove its case. Abdur Rashid P.W.7, Abdul Majeed P.W.8, and Nazir Ahmad P.W.9 furnished the ocular account. Abdul Hafeez P.W.4 proved the recoveries from the accused. Abdul Hameed, Inspector P.W.12 investigated the case. Mushtaq, the retired D.S.P.
Appeared as C.W.1. He had also partly investigated the case and found Irshad alias Teddi accused to be innocent.
The prosecution case against Bashir Ahmad and Shafiq Akhtar accused of having abetted the crime was not proved and they were acquitted. Pervaiz Akhtar and Nazir Ahmad accused were also acquitted, for the role attributed to them with regard to the hatchet injuries was considered doubtful.
8. The recoveries of the weapons of the offence were disbelieved by the trial Court for the reason that no independent witness had been examined to prove them as also for the reason that the fire- arms recovered from Arshad and Ameen appellants had not been sent to the fire-arm Expert.
9. The conviction is based on ocular testimony furnished by Abdur Rashid P.W.7, Abdul Majeed P.W.8 and Nazir Ahmad P.W.9 and the motive.
10. The appellants pleaded not guilty to the charge and denied the prosecution allegations and attributed the case to enmity. Bashir Ahmad accused denied having conspired with other accused to commit the crime. Shafiq Akhtar accused stated that he had severed connections with his son Muhammad Ameen. Muhammad Ameen appellant made the following statement: "I had been cut of by way of declaration from my legal inheritance, by my father about 2-1/2 years next before the present occurrence, and therefore, I was turned out of the house by my father.
Having no other place to live, I had been staying at Bus/Wagon Adda, Okara, in connection with my job as conductor, which I had been doing to earn my livelihood. In those days I was travelling on Koara/Gogera Route, and on the day of occurrence 1 was present with, the Wagon at the place of occurrence, when both the deceased Hanif and Latif alongwith two brothers Rashid and Majeed came there by car and came down of the car near us. Before coming down of the car, they hit the side of car to me and then looked at me with angry eyes. Thereafter, they stopped the car in front of the shop of Rashid P.W. After stopping the car there they came towards me to the place of occurrence. At that time so many other persons including one person having a muffled face, were also present there at. Both the above deceased and the P.Ws. Rashid and Majeed abused me.
Deceased Latif had a pistol in his hand, and he fired the shot at me, but the same missed the aim, and rather hit the deceased Hanif. Meanwhile, I took a small piece of wood from the shop of Bashir Barber.
That shop was open and working at that time. I started defending myself with that Danda, and in that process caused the injuries to the above P.Ws. In my self-defence with that Lathi. Still this process was going on when the person standing with muffled face thereat fired the shot with the pistol at Latif deceased, which hit him, and he fell down. That muffled faced man at that time shouted that he had taken the revenge of the death of his sister caused by illegal abortion at the hands of Rashid P.W.
About one week earlier, Majeed P.W. Had crossed his tractor from the maize crop of my father and damaged his crop. After Juma prayer in that previous week, my father complained this matter to the father of the complainant party, and feeling aggrieved, both the deceased and P.Ws. Majeed and Rashid their other relations, not only disgraced my father, but also gave him a beating. When this fact came to my notice, I felt it, and went to the complainant party to tell them that I would take revenge of their above act of disgracing my father, because in any event I could not tolerate the disgrace of my father. At this the complainant party continued attempting for compromise through Punchayat during the above one week's period, and ultimately I forgave them. But despite all that the complainant party kept the above grudge in their mind, and it was the outcome of that grudge that on the day of occurrence, they hit me with the car, then abused me, and tried to kill me by firing the shot with pistol, and I, acting in my self-defence, caused the blows only with Danda to the P.Ws. And deceased. None of the other co-accused was ever present with me at that time, but due to my relationship with them, the complainant party has falsely involved us in this case."
Shafiq Akhtar (since acquitted) appeared in his own defence as D.W.2. Muhammad Ali D.W.4 also appeared in his defence. Muhammad Suleman D.W.3 proved the alibi of Bashir Ahmad accused.
Muhammad Akram D.W.5, Muhammad Iqbal D.W.6 and Muhammad Yousaf D.W.7 proved the alibi of Shafiq Akhtar. Muhammad Mushtaq the retired D.S.P. Appear as C.W.1. According to him he had investigated the case and found Irshad alias Teddi accused innocent.
10-A. It is contended 'that the eye-witnesses being closely related to the deceased were inimical towards the accused and that their evidence is in conflict with the medical evidence and further that the F.I.R. Was delayed and the motive set up by the prosecution was weak and obscure.
11. Contrarily, it is argued on behalf of the State and the complainant party that it was a calculated and pre-planned murder, that the injured eye-witnesses had been examined to prove the occurrence and that the accused had a strong motive to commit the crime.
12. No doubt, Abdur Rashid P.W.7 and Abdul Majeed P.W.8 are real brothers of the deceased but their evidence cannot be discarded merely on that ground. They were accompanying the deceased when they were attacked by the accused persons. They had also suffered injuries at their hands. The duration of their injuries corresponds to that of the deceased. The nature and location of their injuries show that they could not be self-suffered. One of the injuries of Abdul Rashid P.W. Was grievous in nature having fractured his mandible. They have given a consistent and uniform account of the occurrence and are supported.) by Nazir Ahmad P.W.9 who lived near the place of occurrence.
As regards the motive, the prosecution case is that there was a dispute between the parties over the area of Ihata occupied by the complainant party. Shafiq Akhtar and Bashir Ahmad accused claimed that 2/3 Marlas of their Ihata were under the possession of the complainant party and asked them to relinquish the possession of the excess area but they were adament. Muhammad Ameen appellant is son of Shafiq Akhtar aforementioned while the other accused were related to them. The detail of the relationship has been given by Abdur Rashid P.W.7 in the opening part of his deposition. There was yet another cause of annoyance to the accused. A week before the occurrence Abdul Majeed had passed his tractor through the maize crop of Shafiq Akhtar accused and on his protest he was given beating. Muhammad Ameen appellant admitted it in his statement under section 342, Cr.P.C. Stating that the two deceased and Abdul Majeed and Rashid P.Ws. Had not only disgraced his father but also given him a beating and that he had told the complainant party that he would take revenge of the disgrace of his father. The occurrence in question had taken place at 4-00 p.m. While the matter was reported to the police at 4-30 p.m.
Thus, there was no time available to the prosecution for fabricating the story.
13. It was a day time occurrence and the parties were known to each other,' thus there was no question of any mistaken identity. Although some discrepancies have been pointed out in the statements of the. Eye-witnesses but they will have to' be ignored because in the fearful situation it might not have been possible for them to have given a complete detail of the injuries caused by each accused. The presence of Abdur Rashid P.W.7 Abdul Majeed P.W.8 at the spot cannot be doubted because of the presence of injuries on their persons.
The version given by Muhammad Ameen of the occurrence that a muffled face man had fired at Abdul Latif deceased and that Muhammad Hanif deceased was killed by the shot fired by Abdul Latif deceased does not appeal to reason and appears to be an afterthought.
For the foregoing reasons the prosecution case stands fully established against the appellants and they were, therefore, rightly convicted. Since it was a, pre planned occurrence in which two persons lost their lives and two others received injuries we do not find any extenuating circumstance and accordingly maintain the sentence. In the result the appeal fails and is dismissed.
The death sentence of Arshad alias Achhu and Muhammad Ameen is, confirmed.
As regards the revision for the enhancement of Muhammad Alam and I Muhammad Arshad we do not find any force in it. Since they did not cause fatal blows to the deceased, they were rightly awarded the lesser sentence provided for the offence of murder. Accordingly, the revision is dismissed.