SARDAR MUHAMMAD DOGAR, J.--- Muhammad Yar alias Muhammad was tried by the Additional Sessions Judge, Sargodha, alongwith his brother Shera and Murid, a relative, under section 302/34/109, P.P.C. For having murdered Muhammad son of Karmu, at 11-00 p.m. On 15-7-1986 in the open place on the back of house of Yara son of Mandah in Chak No.53,, at a distance of 15 K.M.
From Police Station Karrana, District Sargodha.
Learned trial Judge, vide judgment, dated 30-8-1988 convicted him under section 302, P.P.C. And sentenced him to death, plus to pay a fine of Rs.20,000 in default whereof to undergo R.I. For 3 years. He has also been directed to pay a sum of Rs.20,000 as compensation to the heirs of the deceased, which has been ordered to be recovered as arrears of land revenue. Both the co- accused were acquitted vide same judgment.
2. The convict has filed appeal. Learned trial Judge has made a reference for confirmation of death sentence, while the complainant has moved a revision petition against acquittal of Shera and Murid, and for enhanced compensation.
3. F.I.R. Exh. P.D. Was recorded at the police station by Masheer Ali, Inspector/S.H.O. (P.W.10) at 5-15 a.m. On 16-7-1986, on the statement of Muhammad son of Kamira (P.W.7).
According to F.I.R. The complainant accompanied by the deceased, was going towards his Behak.
They reached at the back of the house of Yara son of Mandah at 11-00 p.m. The appellant armed with a gun and Shera armed with a Bullam, who were already present there, raised a Lalkara. The appellant fired a shot from the gun, which struck the deceased on the right flank. He fell down.
Muhammad Nawaz P.W.8 and given up P.W. Salabat, who were present nearby, reached the spot and witnessed the occurrence. Muhammad died on the spot. Many villagers came there on the hue and cry raised by the complainant.
According to the complainant, Shera and Muhammad Yar (appellant) had committed the murder on the abetment and in conspiracy with Murid son of Malla. He gave out that Altaf and Ameer P.Ws.
Had heard them hatching conspiracy.
4. Motive for the occurrence was the suspicion of the appellant about the illicit intimacy of the deceased with his were.
5. Mashir Ahmad, S.H.O. After recording the F.I.R. Reached the spot. He despatched the dead body for post-mortem examination after preparing inquest report Exh. P.H. And injury statement Exh. P.G.
Blood-stained earth was collected by him from the spot vide memo. Exh. P.J.
The appellant was arrested on 18-7-1986. Licensed gun P.3 got recovered by him from his house on 20-7-1986 was taken into possession vide memo. Exh. P.L. The other accused were also arrested on 3-8-1.986 and the challan was submitted to Court against all of them, after completion of necessary investigation.
6. Statements of ten P.Ws. Were recorded at the trial.
Dr. Muhammad Khalid Qureshi, who had performed autopsy on 16-7-1986 at 12-30 noon, appeared as P.W.6. He had noted following injuries on the body of the deceased:-- (1)8 lacerated wounds, 1/3" x 1/3" each with blackened margins and inverted margine spread in area of 5" x 3" on anterior abdominal wall, on lower half of right side of abdomen.
(2)Contusion 1/4" x 3/4" on left side of upper 1/3rd of anterior abdominal wall.
(3)Lacerated wound 1/3" x 1/3" with everted margins on back of lumber region.
On dissection, he had found multiple injuries to small intestine, right kidney and large. Intestines, beneath injury No.2. Stomach contained lot of gas and small amount of fluid. Injury No.1 was opined to have been caused by a fire-arm while injury No.2 was opined to have been caused by a blunt weapon. Injury No.3 was declared to be exit wound of injury No.1.
Time between the injuries and death was opined to be immediate while the time between death and post-mortem was opined to be within 6 to 12 hours,
7. The ocular account was deposed to by Muhammad P.W.7 and Muhammad Nawaz P.W.8.
Muhammad complainant while repeating the facts given by him in the F.I.R. Added that before proceeding to the Behak, they were with Karmu father'" of the deceased i.e his house, alongwith Salabat and Nawaz P.Ws. And that he had identified the accused in the electric light. On confrontation with his previous statement, during cross-examination, he was not found to have stated any such thing. His claim of having joint Behak with the deceased, was also not found mentioned in the F.I.R. He expressed ignorance about the pendency of a civil suit between Karmu and Amir etc. He expressed ignorance about Karmu having murdered one Maighi of their village.
He expressed ignorance about Mst. Khan; daughter of Karmu having been married to Dosa son of Maighi, as a result of compromise in that murder case,
8. Muhammad Nawaz P.W.8 while corroborating the statement made by P.W.7, stated that he had started from the house of Karmu father of the deceased at about 11-00 p.m. Followed by the deceased and the complainant, and that he had witnessed the attack on looking back, after hearing the Lalkara. He particularly stated that Salabat (at that time) was on the roof of the house.
During cross-examination also he asserted that he had stated same about Salabat, during the investigation as well. In the latter part of cross-examination he stated that Salabat was sleeping at the roof, which was 10 Karams away from the place of the occurrence. While admitting that his father had filed a civil suit against Amir Bibi etc. He expressed inability to state whether Karmu (father of the deceased) was a marginal witness of the Iqrarnama/receipt in that case and that he had appeared in their favour in that suit. He denied the suggestion that he had not witnessed the occurrence, and had appeared due to relationship.
9. Muhammad Amir P.W.9 deposed about the conspiracy entered into between the appellant, Shera and Murid. Although he denied, during cross---examination that he had not stated before the Investigating Officer that he did not know anything about the conspiracy, yet he was found to have stated so in his statement Exh. D.C. Before the Investigating Officer on 27-7-1986. He denied that he had made a false statement.
10. Mushir Ali Shah, S.H.O. Who had recorded the F.I.R. Arrested the accused and submitted the challan to Court after recovery of gun P.3 from the appellant, appeared as P.W.10. After giving the account of investigation, he stated during cross-examination that he had found Shera and Murid innocent during the investigation and that his investigation was verified by the. D.S.P. He admitted that none had appeared before him during the investigation to state that he had seen illicit intimacy: between were of the accused and the deceased. He conceded that he had not verified that allegation. He denied the suggestion that he had lodged the F.I.R. At the spot after consultations and preliminary investigation.
11. Rehman's P.W.2, a brother of the complainant during cross-examination categorically stated that the police after arrival at the spot had recorded the F.I.R. After making enquiries.
12. The appellant, during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He stated as follows in answer to the question, why this case against you and why the P.Ws. Have deposed against you?':-- "Before the present occurrence, Karmu father of the deceased had murdered one Maighi of our village and was challaned to Court. During the pendency of the trial he married his daughter Mst.
Khanoo with Dossa son of Maighi aforementioned as Khoon Baha'. After some time Mst. Khanoo mentioned above left the house of her husband and came to the house of the fathor of the deceased and the relations between the spouses became strained and due to it the deceased wanted to get divorce of Mst. Khanoo from Dossa, which he declined. Due to this enmity Dossa and his brother Mauloo committed the murder of deceased during the dark hours of the night with which I have no concern. I have been involved in this case falsely due to party faction in the village on suspicion."
The acquitted accused also denied their participation in the occurrence and pleaded innocence.
13. We have gone through the evidence with the assistance of learned counsel for the appellant and have examined the contentions raised by learned counsel for the parties.
Only two P.Ws. Deposed the ocular account. According to one of them, i.e. P.W.7, who was a cousin of the deceased, he alongwith the deceased and P.Ws. Salabat and Nawaz, were with Karmu father of the deceased, and had started from there at 11-00 p.m. For Behak. P.W.8 on the other hand, while stating that he was with the father of the deceased before the occurrence, and had started from there shortly before the deceased and the complainant had followed him, categorically stated that Salabat P.W. Was sleeping on the roof of house, at a distance of 10 Karams from the place of occurrence. He gave a clear impression that Salabat P.W. Had wintessed the occurrence from there. The contradiction between the two P.Ws. About the presence of the third P.W., lends a considerable support to the argument of learned counsel for the appellant that both of them do not appear to have made truthful statement and the deceased appeared to have been murdered some time in the later hours of the night, unwitnessed by anyone, particularly so when the ocular account furnished by both of them is also contradictory to the medical evidence. In that, the doctor who had performed autopsy had found only `lot of gas and small amount of fluid in the stomach'.
Had the deceased been done to death at 11-00 p.m., the state of contents of the stomach could not have been the one found by the doctor. If it was to be believed that he had left his house at I1-00 p.m. For being at the Behak for the night, it will have to be granted that he must have taken his food prior to that.
It was the month of July. Even if he had taken food soon after the sunset, he would have taken that some time after 7-00 p.m. Food taken some time after 7-00 p.m. Would not have been digested to an extent, leaving behind only small fluid and gases. The clear inference in the circumstances that can be drawn, is, that the deceased was done to death some time in the later hours of the night, i.e. About 3-00 a.m., unwitnessed by anybody.
14. There is another contradiction between the ocular account and the medical evidence; in that, injury No.1, which had proved fatal, was found having blackened and inverted margins. Blackened and inverted margins could not have occurred from a distance of more than 5 to 6 feet in any case. According to site plan Exh. P.A. Prepared on the instructions of the P.Ws. The shot had been fired from a distance of 14 feet. That being so, the medical evidence cannot be taken to be in line with the ocular account:
15. The untruthfulness of the eye-witnesses finds support from other material on record also, in that, neither the complainant nor anybody else moved out of the village for lodging the F.I.R. It is on record that village of occurrence was connected with the police station by a Pacca road. The distance was only 13 K.M. i.e. About 9 miles. Even if there was no public transport, someone of them could have gone to the police station on a tonga, or on a bicycle or at least on a mare or horse, but the complainant and other relatives of the deceased stayed on in the village till morning. The explanation given by the complainant that he could not go to lodge the report because of non- availability of conveyance, in the circumstances, appears to be a cooked up story.
The contention of learned counsel for the appellant that the F.I.R. Seemed to have been recorded at the spot after consultations and deliberations, finds support from the admission of P.W.2 who was a cousin of the deceased and brother of the complainant. As noted above, he categorically stated that the F.I.R. Was recorded at the spot after consultations and deliberations.
16. As a result of the above discussion, considerable doubts have arisen in our mind about the occurrence having been witnessed by the eye-witnesses, and of the F.I.R. Having been lodged, as claimed by the prosecution.
17. The fact has also weighed with us that there was no evidence corroboratory to the ocular account. The licensed gun alleged to have been taken into possession from the appellant was not sent to the Forensic Science Laboratory even to know whether it was in a fit condition to fire.
18. Since we have not believed the ocular version of the occurrence, question of setting aside the acquittal of respondents Shera and Murid, does not arise. So also the question of awarding enhanced compensation does not arise, as the appellant has been acquitted. The revision petition is, therefore, dismissed.