' SARDAR MUHAMMAD DOGAR, J.---Muhammad Riaz (33), Manzoor Hussain (26) and ljaz (16) were tried alongwith Allah Bakhsh under section 302/307/34, P.P.C. For having murdered Ghulam Qasim and for having launched murderous assault on Ghulam Hussain P.W. At 5-00 p.m. On 18-6-1986 near the house of Ohulam Ahmed Barber in Chak No,34/10-R at a distance of 15 miles from Police Station, Khanwewal by Addl. Sessions Judge, Khanewal. The learned trial Judge vide judgment dated 19-10-1987 convicted Muhammad Riaz, Manzoor Hussain and ljaz under sections 302/34 and 307/34, P.P.C. And awarded sentences as follows:-- ' Under section 302/34.
' Muhammad Riaz.--Death and a line of Rs,5,000 or in default one year R.I.
' Manzoor Hussain and Riaz--Imprisonment for life and a fine of Rs,5,000 each, in default one year R.I. Each.
' Under section 307/34. P.P.C.
' Muhammad Riaz, Manzoor Hussain and Riaz.--Five years R.I. And a fine of Rs,5,000 each; in default one year R.I. Each.
' The sentences of imprisonment awarded to ljaz and Manzoor Hussain have been directed to run concurrently. Allah Bakhsh was acquitted.
2. The convicts have filed appeal. Learned trial Judge has also made a reference for confirmation of death sentence. Both the matters are being disposed of together.
3. F.I.R. Ex.PE/1 was registered at the police station on 18-6-1986 at 8-40 p.m. By Ghulam Murtaza M.H.C. (P.W.9) on receipt of statement Ex.PE of Muhammad Aslam (P.W.7) recorded by Faqir Muhammad A.S.I. (P.W.4) at 7-50 p.m. On the same day at Police Post Kacha Khuh.
' According to the F.I.R., the complainant was awaiting outside the house of Ghulam Muhammad Barbar for hair-dressing at 5-00 p.m. Ghulam Qasim, his brother also came there. Riaz, armed with a revolver, Ijaz, with a knife, Manzoor Hussain and Allah Bakhsh armed with guns, appeared there from the the side of the Abadi. Ghulam Qasim on seeing them started towards his house. Riaz aimed revolver at him. Ghulam Qasim caught the hand of Riaz with which he was holding the revolver. Simultaneously, Ijaz gave him a blow with the knife on the left cheek as a result of which he released the hand of Riaz. Ghulam Hussain P.W. Came there on hearing the alarm. Ghulam Qasim started running towards his house. Riaz fired a shot from the revolver which struck him on the back side of the neck. He fell down and died. When Ghulam Hussain tried to intervene he was given knife blow on the right flank by Ijaz. Manzoor Hussain and Allah Bakhsh continued firing in the air. Manzoor also gave Butt blows to Ghulam Hussain on the left cheek, abdomen and back. The accused continued raising Lalkaras that if anyone dare intervene he will be done to death.
Muhammad Hashim, another brother of the complainant, also reached the spot hearing the alarm and witnessed the occurrence. However, none dared to intervene. During the occurrence, the identity card of Riaz fell down at the spot. The accused ran away raising Lalkaras. Ghulam Hussain was removed to the hospital where he was admitted.
' For motive, for the occurrence, it is alleged that Riaz and Ijaz used to visit the house of the complainant. Ghulam Qasim used to feel ill. He stopped them from visiting the house for which Ijaz and Riaz felt aggrieved. Ghulam Qasim had come to the village only on the same day (he was serving in the army).
' Muhammad Aslam while making statement Ex.PE had produced identity card Ex.PA. Of Muhammad Riaz before the A.S.I. Who took the same into possession vide memo Ex.PB.
3. Faqir Muhammad ASI after despatching the statement Ex.PE for registration of the case, reached the spot and despatched the dead body for post-mortem after preparing the inquest report Ex.P.F.
Blood-stained earth was collected by him from the spot vide memo Ex.P.H. He recorded the statement of the P.Ws. Present at the spot. The investigation thereafter was taken over by Rana Taj Ali Inspector.
' Rana Taj Ali, Inspector, after taking over the investigation, went to the hospital and recorded the statement of Ghulam Hussain after obtaining opinion from the doctor about his fitness to make a statement. He had also taken into possession clothes of Ghulam Hussain. Allah Bakhsh and Ijaz were arrested by him on 25-6-1986 while Riaz and Manzoor were arrested by him on 30-6-1986.
Knife P7 got recovered by Ijaz on 7-7-1986 was taken into possession by him vide memo Ex.P.K.
While the revolver P.8 and licence P.9 got recovered by Riaz were taken into possession vide memos Exs. P.L. And P.M. Respectively. Gun P.10 got recovered by Manzoor was taken into possession vide memo Ex.P.N. Challan was submitted by him to Court after completion of the necessary investigation. Statements of 11 P.Ws. Were recorded during the trial. Bashir Ahmed Moharrir P.S. City Khanewal was examined as D.W.1.
4. Dr. Muhammad Idrees, who had performed the post-mortem on 19-6-1986 at 9-30 a.m.
Appeared as P.W.6. He had noted following injuries on the body of the deceased:--
(1) A contused wound (fire-arm) 1 cm x 1 cm going deep with inverted and slightly burnt black margin nearly circular in a shape (entrance wounds) on the back and right side of neck at its upper part 9 cm below and from lobule of right ear.
(2) A lacerted wound 2 cm x 1 cm (fire-arm exit wound) with everated margin on the anterior side of left check 2-1/2 cm below and lateral to left eye.
(3) An incised wound 2/1/2 cm x 1 cm deep on the outer side of left upper arm. There was a corresponding cut on the Kameez. All these wounds were antemortem in nature.
' Left mandible, left masillary bone and part of the fourth survical vertebrae were found fractured.
' Death was opined to have occurred due to injuries Nos.1 and 2 caused by fire-arm. Probable time between injuries and death was opined to be five to fifteen minutes while the time between post- mortem and death was opined to be 16 to 22 hours. Injury No,3 was opined to have been caused by sharp-edged weapon. During cross-examination he stated that the injuries might have been caused from a distance of 1 to 3 feet. He stated that possibility could not be ruled out of the injuries having been caused when the deceased was in lying position.
5. Dr. Muhammad Tariq Gillani, who had medically examined Ghulam Hussain on 18-6-1986 appeared as P.W.12. He had noted the following injuries on his person:--
(1) Incised wound on back of right chest 2 cm x 3/4 cm clean cut edges 3 cm deep up to lungs, wound is 3 and half cm lateral to vertebral column wound was fresh and bleeding wound was 15 cm below lower border of scapula.
(2) Abrasion 2 cm x 1 cm 4 above and lateral to 1st wound.
(3) Swelling 2 cm x 2 cm on lateral border of left eye-brow.
(4) An abrasion with swelling 3 cm x 2 cm on front of chest left side at level of lower border of sternum at about 7th rib level.
' According to his opinion, injury No,2 was caused by sharp-edged weapon while the rest had been caused by blunt weapon. The duration of injuries was opined to be between 1 to 3 hours. He had found the injured in semi-conscious condition at the time of medical examination.
6. The ocular account was deposed to by Muhammad Aslam complainant (P.W.7) and Ghulam Hussain (P.W.8).
' Muhammad Aslam while repeating the facts given by him in the FIR, specifically stated that Ijaz had given first injury to the deceased with knife on the arm. During cross-examination he stated that although he had stated before the ASI who registered the case that Ijaz had inflicted a blow to the deceased with knife on the arm, yet the ASI had incorrectly written that the blow fell on the cheek and that when he had objected to that, the Thanedar had told him {{URDU TEXT}} He gave the distance of his village from Police Post Katcha Khooh as 5 miles. He explained that he did not own land in the village and was cultivating the land of Malik Ata Muhammad during the days of occurrence, while now (at the time of trial) he was cultivating the land of Maqbul Shah. He stated that he had taken Ghulam Hussain injured P.W. To the hospital in a tractor trolly, and had remained in the hospital with him before going to the Police Post, for about 20-25 minutes. He denied the suggestion that Ghulam Hussain did not bear any injury and that they had caused injuries to him by way of self-sufferance and thereafter got him medically' examined. According to him he had decided to wait for Ghulam Muhammad Hajam on the females of his house having informed him that he would be coming soon. He explained that Ghulam Hussain had been caused injuries by the accused as he had intervened to save Ghulam Qasim. While admitting that he was challaned for assaulting the daughter of Ghulam Hussain (not the P.W.) and that Riaz was a witness against him, he stated that he was acquitted in that case and that Riaz had made a statement favourable to him in the case. He admitted that Iqbal a nephew of Riaz had got a case registered against the Syeds under Section 307, P.P.C. 10 years prior to the occurrence and that Riaz might be a witness in that case. He expressed inability to state whether Riaz was a witness against the accused named for the murder of Murtaza Shah. Similarly, he expressed inability to state whether Riaz was a witness in the case of Shabbir who was murdered at Multan. He denied the suggestion that none had witnessed the occurrence and that he had involved the accused at the instance of Maqbul Shah who belonged to the opposite group of Syeds to whose party Riaz belonged. He also denied the suggestion that Ghulam Hussain was murdered when he had entered the house of somebody with bad intention.
7. Ghulam Hussain P.W.8 while corroborating the statement made by P.W.7 specifically stated that he had been given injuries with the butts of guns by Manzur and Allah Bakhsh (P.W.7 had not named Allah Bakhsh in that regard).
' During cross-examination he stated that he was maternal uncle of the deceased and was caused the injuries on having tried to save his nephew. He explained that he had fallen at a distance of 70- 80 feet from the place where Ghulam Qasim had fallen. He stated that no male member from the adjacent houses had come to the spot at the time of occurrence as the male members had gone out for doing labour. He denied the suggestion that none had witnessed the occurrence. He also denied the suggestion that the accused had been involved in the case on account of enmity between the Syeds.
8. Muhammad Aslam son of Ghulam Muhammad who had witnessed the recovery of knife P.7 at the instance of Ijaz, revolver P.8 alongwith licence P.9 at the instance of Riaz and gun P.10 at the instance of Manzur, appeared as P.W.5 and deposed those facts. During cross-examination he admitted that he was son of the sister of mother of the deceased. He gave out that there were four councillors and two Lamberdars in the village. He stated that Riaz had won the election against Yusuf Shah. He denied the suggestion that he had made a false statement.
9. Faqir Muhammad, ASI who had registered the case, despatched the dead body after preparing necessary papers i.e, inquest report etc. And recorded statements of the P.Ws. Before handing over investigation to the Inspector, appeared as P.W.4 and deposed those facts. He also deposed about the complainant having produced the identity card of Riaz before him at the time of lodging F.I.R.
And of having taken the same into possession vide memo Ex.P.H. He denied the suggestion that he had obtained the identity card of Riaz at the time of arrest and felsely shown the same to have been taken into possession on being produced by the complainant.
10. Rana Taj All, Inspector who had partly investigated the case, arrested Allah Bakhsh and Ijaz on 25-6-1986, Manzur and Riaz on 30-6-1986, appeared as P.W.11 and deposed those facts. He also stated about knife P7, revolver P.8 alongwith licence of gun P.9 and gun P.10 having been got recovered by Ijaz, Riaz and Manzur respectively, on 7-7-1986 and of his having taken the said articles into possession vide different memos. He stated that Ghulam Muhammad barber as well as his sons had appeared before the D.S.P. But they had not claimed to have witnessed the occurrence. The statements of the remaining P.Ws. Are more or less of a formal nature.
11. The appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. Muhammad Riaz stated as follows in answer to the question, 'why this case against you'?:-- "I had contested election against Yusuf Shah and had won the same. Because of that Yusuf Shah was inimical towards me. The complainant is tenant of Maqbool Shah a relative of said Yusuf Shah.
At the instance of Yusuf Shah and Maqbool Shah the complainant and the P.Ws. Have falsely involved me in this case. I do not know who had committed the murder of the deceased. I was not present in the village on the day of occurrence. I had appeared as a witness against the complainant in a case under section 307/354, P.P.C. Because of that the complainant had enmity against me. Said Maqbool Shah and others had attacked me is order to kill me but however, I was saved. I had registered a case against them. I had also appeared as a witness against a relative of Iqbal Shah and Maqbbol and Yusuf Shah in a murder case."
' Ijaz stated as follows in answer to the same question:-- "Since I am servant of co-accused Riaz, therefore, because of enmity I have been falsely invloved in this case with him."
Manzur Hussain stated as follows in answer to the same question:-- ' Because I had supported my co-accused Riaz in election, therefore, his enemies Yusuf Shah, Maqbool Shah and Iqbal have falsely involved me in this case. When the occurrence had taken place I was at my duty at Army Amunition Store Perowal."
' All denied to have led to recovery of weapons.
12. Bashir Ahmed, Moharrir, A.S.I. Of Police Station, City, Khanewal was examined in defence. He had produced Ex. D.G. Photostat copy of F.I.R. Registered under Section 324/354, P.P.C. Against Muhammad Aslam on 23-9-1981, Ex.D.H. Photo copy of F.I.R. Which was lodged by Muhammad Riaz under section 301, P.P.C. On 20-5-1985 and Ex. D.F. Copy of F.I.R. Which was lodged by Malik Muhammad Khan under section 307/148/149, P.P.C. On 21-4-1987.
13. Learned counsel for the appellants after having taken us through the evidence, criticised the impugned judgment and contended that the prosecution had failed to prove the motive; that the recovery of knife P7 at the instance of Ijaz and revolver and Fun at the instance of Riaz and Manzur Hussain respectively, was of no consequence as the knife was not found bloodstained and none of the fire-arms was sent to the Forensic Science Laboratory as no empties had been recovered from the spot. Learned counsel contended that the ocular account cannot be relied upon unflinchingly as both the eye-witnesses were not ony closely related to the deceased but were inimical to the appellants as well. Learned counsel vehemently argued that the presence of Muhammad Aslam (P.W.7) complainant at the spot seems to he doubtful, in that, he pointed out that had he been present, he would not have alleged in the F.I.R. That the deceased had been inflicted a blow with a knife, on the cheek and nor would have failed to mention the injury on the arm of the deceased.
' Lastly, learned counsel submitted that even if it be believed that the deceased was done to death by the appellants, no case for confirmation of sentence of death awarded to Riaz, is made out as it appears that the occurrence had taken place due to something which suddenly happened for which none of the parties took the Courts into confidence.
14. Learned counsel for the State/complainant defended the judgment of the trial Court.
15. We find hardly any merit in the argument of learned counsel for the appellants about prosecution's failure to have proved the motive for the occurrence. In that, it is worth noticing that in spite of lengthy cross-examination conducted on the complainant no question was put to him about the motive for the occurrence. We are of the view that if the complainant party had to set up a false motive, they could have, by way of fabrication narrated any incident of more serious nature to have happened between them and the accused. The straightaway assertion of the complainant that the accused were annoyed on deceased's having disliked and disapproved the visits of Riaz and Ijaz to their house and so they were stopped from doing that, in our view, speaks of the bona fides of the prosecution in that regard.
16. The knife recoverd at the instance of Ijaz was not stained with blood. The fire-arms recovered at the instance of the other two, were not sent to the Forensic Science Laboratory for opinion, whether they had been fired or not, as no empties were recovered from the spot. The recoveries of the fire- arms, therefore, even if believed, in our view, cannot lend corroboration to the ocular account. As such the argument of learned counsel for the appellants that the evidence of recovery of weapons was of no consequence in determining the guilt of the appellants, prevails.
17. Except the fact that Riaz was a witness against the complainant in the case registered against him under Section 324/354, P.P.C. 5 years prior to the occurrence, at the instance of Ghulam Hussain son of Muhammad Nawaz (not the P.W.) no other incident of enmity or differences between the parties, prior to the occurrence in question was even suggested to the P.Ws. The said case had resulted in acquittal and the complainant claimed that Riaz had made a statement favourable to him in the case. Apart from that assertion, the other important aspect is, that according to Ex.D.G. Copy of the F.I.R. Of that case, Riaz was not a witness of the occurrence. His evidence might be of a formal nature.
18. The suggestions put to the eye-witnesses that they had involved the appellants as Riaz had earned the enmity of a group of Syeds, to which Maqbul Hussain Shah landlord of the complainant also belonged, and that it was Maqbul Shah and others who had got a case registered against him and others by exercising influence on the complainant, were vehemently denied by both the witnesses. Barring denial of such suggestions by the P.Ws., the other fact worth taking notice of in this regard is that the complainant did not state he was cultivating the land of Maqbul Shah or any other Sycd, at the time of occurrence, he had given out that during the days of the occurrence he was cultivating the land of Malik Ata Muhammad. He was cultivating the land of Syed Maqbul Hussain Shah at the time of trial which had taken place a year after the occurrence.
19. Still the other aspect worth consideration is that it was only the complainant who was cultivating the land. The deceased had four other brothers also apart from the complainant. They were not the tenants of anyone in the village. His father was alive and he was earning his livelihood by sellig grocery. We are not impressed by the argument, because we do not visualise that the complainant would have left off the real culprits and named the appellants only to wreck the vengeance of the some Syeds against Riaz appellant.
20. There is no doubt that it is recorded in the first information report that the deceased had been inflicted a blow on the left cheek with a knife, and it is also a fact that the injury on the cheek was an exit wound resulting from a fire-shot, but the complainant did not state at the trial that the deceased had been inflicted injury with a knife by Ijaz appellant on the cheek. Instead, he clearly stated that Ijaz appellant had given an injury on the arm of the deceased. He categorically stated that he had noted the mistake committed by the A.S.I. In that regard, there and then, but when he asked him to correct that, he, in stead of correcting had taunted him. The explanation, in our view, can be safely accepted, as the statement by the complainant that the deceased had been inflicted an injury by a fire-arm and an injury with a sharp-edged weapon, does find mention in the F.I.R. The only difference is, that in stead of a blow of knife having struck the deceased on the arm, it is recorded that the blow was given on the cheek. The statement made by the complainant in the F.I.R. That it was due to receipt of injury with a knife that the deceased had released the hand of Riaz appellant with which he was holding a revolver, also, in our view, fits in with the explanation given by the complainant, because the immediate release of hand of the assailant i.e, Riaz appellant, would only have resulted if the deceased had been hit on the arm. Had he received injury on some other part of the body, he might have borne that and nor released the hand, which had provided him security for being fired at.
21. It is also worth noticing that the A.S.I. Who had recorded statement Ex. P.E., while, preparing the inquest report (Ex.P.F.) had noted 3 injuries on the body of the deceased, in column No,10 of the said report, which is a proof of the fact that the A.S.I. Had not recorded the statement of the complainant after having seen the dead body and examining the injuries. Had he recorded the statement (Ex.P.E.) after examining the dead body, he would definitely have suggested to the complainant to explain the third injury as well.
' The argument of learned counsel for the appellants, therefore, that Muhammad Aslam complainant does not appear to have witnessed the occurrence, in our view, does not possess any weight. We would like to add here that the presence of Muhammad Aslam is noted in the column, 'relative or friend', of the medico-legal examination (Ex.P.W.) of Ghulam Hussain P.W.8. The medical examination was done at 7-30 p.m. At a distance of 5 miles from the place of occurrence. Had the complainant not been at the spot, he could not have been with Ghulam Hussain P.W. In the hospital. It may be mentioned here that the complainant clearly stated in the F.I.R. As well that he had taken the injured from the spot in a tractor trolly and got him medically examined and admitted there. The presence of Ghulam Hussain P.W.8 cannot be doubted for having been found injured. One of the injuires on his person with a sharp-edged weapon was of a serious nature. It could not have been self-suffered. Such a suggestion put to P.W.7 was denied by him categorically.
Apart from that no suggestion of that nature was put to Ghulam Hussain when he appeared at the trial and claimed to have been caused injuries.
22. The ocular account in the circumstances, in our view, inspires confidence and is worth acting upon. The same also finds corroboration from the evidence of motive for the occurrence and from the fact of identity card of Riaz having been found at the spot and produced before the ASI at the time of lodging the F.I.R. The claim made by Riaz appellant that the identity card had been obtained from him and planted as evidence, is without any weight as the complainant could not have mentioned that fact in the F.I.R. Hoping that the police will obtain the identity card from Riaz appellant after arrest.
23. We are, however, not convinced about the participation of Manzur Hussain appellant in the occurrence.
' He is not related to Ijaz or Riaz. As such he had nothing to do with the a motive for the occurrence.
Although he is alleged to have been armed with a gun at the time of occurence yet no allegation has been levelled against him of having fired or attempted even, to fire at the deceased or any of the P.Ws. The allegation against him of having fired shots in the air did not find corroboration from the recovery of empties from the spot. He is alleged to have inflicted injuries with the butt of his gun to Ghulam Hussain P.W., alongwith Allah Bakhsh. He (Ghulam Hussain) was found to have suffered two abrasions and a swelling, apart from incised injury on the back of right chest, specifically assigned to Ijaz appellant. Thus, two abrasions and the swelling at the best can be assumed to have resulted from the blows given with butts of guns by Manzur Hussain appellant and Allah Bakhsh. The doctor during cross-examination admitted that two injuries out of them, i.e, Nos.2 and 4 (both abrasions) could have resulted due to fall on the ground. Allah Bakhsh who also according to Ghulam Hussain had inflicted blows with butt of the gun, was acquitted by the trial Court. Neither any appeal against his acquittal was filed by the State nor the complainant preferred any revision petition. In the circumstances the part of infliction of injuries assigned to Manzur Hussain appellant, to Ghulam Hussain P.W., appears to be highly doubtful.
For the foregoing reasons we do not think it safe to maintain his conviction as in our view there are sufficient reasons to doubt that he might have been involved by way of exaggeration. He is, therefore, acquitted by way of grant of benefit of doubt. He is on bail. His sureties shall stand discharged.
24. The conviction of Riaz and Ijaz appellants is maintained, as in our view, the prosecution has been able to prove the case against them beyond reasonable shadows of doubt. We are not convinced that there is any mitigating factor warranting alteration of sentence of death awarded to Riaz appellant to imprisonment for life. He had done to death a young unmarried person servingin the Army who had come to see his parents and brothers the same day. The sentence of death awarded to Riaz appellant is, therefore, confirmed. The other_ sentences awarded to both the appellants are also maintained.
25. The learned trial Judge had failed to pass any order of payment of compensation to the heirs of the deceased. We had given a verbal notice to learned counsel for the appellants to show cause as to why the appellants be not burdened to pay compensation in case their appeal fails, which he had accepted. It is directed that Riaz appellant shall pay a sum of Rs, ten thousand to the heirs of the deceased. Ijaz appellants is, however, directed to pay a sum of Rs, two thousand as compensation to the heirs of the deceased for the reason that apart from the fact that he was very young at the time of occurrence, he was only a servant of Riaz, and obviously was not a man of means.
' The amount of compensation shall be recovered as arrears of land revenue. The Collector of the District shall be directed to effect recovery of the amount and make payment to the heirs of the deceased.
' Death sentence confirmed.