Riaz Ahmad (17) and his brother Muhammad Yar alias Yaroo (33) with 7 others (since acquitted) were tried on charges under sections 302/34, 307 and 302/109 by Additional Sessions Judge, Faisalabad. Learned trial Court, vide its judgment, dated 31-3-1987, convicted and sentence Riaz Ahmad and Muhammad Yar alias Yaroo to imprisonment for life and a fine of Rs.5,000 each or in default thereof to undergo 2 years' R.I., each under section 302/34, P.P.C. And acquitted the rest. It further directed the appellants to pay Rs.5,000 each to the heirs of the deceased by way of compensation or in default thereof to suffer further R.I., for 6 months each. Muhammad Yar alias Yaroo was additionally convicted under section 307, P.P.C. And sentenced to 2 years' R.I. And a fine of Rs.1,000 or in default of payment of fine to undergo 6 months' R.I. Both the convicts have filed the instant appeal (Criminal Appeal No.329 of 1987) jointly. The State as well as Khalil-ur-Rehman's, complainant, hay;, riled separate Revision Petitions (Criminal Revisions Nos. 484 and 371 of 1987) praying for enhancement of the sentence of the appellants to that of death. It may be mentioned that no State appeal or private revision has been filed against acquittal of 7 accused persons. The appeal and both revision petitions are being disposed of by this single judgment.
2. The occurrence took place in Street No.3, Mohalla Eidgah, Jaranwala, Town, District Faisalabad, at about 4-15 p.m., on 30-4-1985, wherein Abdul Rahman aged 60 years was killed and Jamil and Mehenga P.Ws. Were injured. Khalil-ur-Rehman's, complainant (P.W.14), nephew of Abdul Rahman (deceased), reported the incident through statement Exh. P.E., to S.I. Muhammad Salim (P.W.16) at Tenkiwala Chowk, Jaranwala, the same day, at 4-45 p.m., on the basis of which formal F.I.R.
Exh.P.E./1 was subsequently drawn at Police Station Jaranwala by H.C. Abdul Ghafoor (P.W.5).
3. The prosecution case as disclosed at the trial was that on the fateful day, Khalil-ur-Rehman's, complainant (P.W.4), alongwith his uncle Abdul Rahman (deceased) and Ahmad Aslam P.W., visited Jaranwala in connection with `Pervi' of cases. Abdul Rahman (deceased) asked Khalil-ur- Rehman's and Muhammad Aslam P.Ws. To go to the Baithak of Syed Manzoor Hussain, Advocate, in Mohalla Eidgah and wait for him there and that he would join them after visiting a tractors workshop. Khalil-ur-Rehman's, complainant (P.W.14) and Muhammad Aslam (given up P.W.) were sitting with Syed Manzoor Hussain, Advocate, in his drawing room at about 4-15 p.m., when they heard alarm in the street. They came out and saw Muhammad Yar (appellant) firing at the deceased with a carbine. His first shot missed the target but its pellets hit Jamil, an 8 years old boy, and Mehenga P.W. Who happened to be present nearby. Muhammad Yar fired second shot which hit the right flank of the deceased. The witnesses shouted at Muhammad Yar (appellant) but he threatened them, pointing his carbine towards them, to keep away, while Riaz Ahmad (appellant) showered hatchet blows on the face, head and other parts of the body of Abdul Rahman, who died on the spot. The appellants decamped from the scene carrying their weapons. Both the appellants allegedly killed the deceased at the instigation of the 7 acquitted accused because Syed Muhammad uncle of appellants, was allegedly murdered on 10-2-1983 by Khalil-ur-Rehman's (complainant) Waheed and Abdul Rahman (deceased) who were challaned by Satiana Police for that murder but they were acquitted on 5-8-198-1 by the Sessions Court. Hence this occurrence.
4. S.I. Muhammad Salim (P.W.16) partly investigated the case. He visited the spot on 30-4-1985 and collected blood-stained earth vide memo. Exh. P.J. He prepared inquest report Exh. P.L. And sent the dead body of Abdul Rahman to mortuary for post-mortem examination. He got medically examined Jamil and Mehenga P.Ws. Who were injured with firing made by Muhammad Yar (appellant). Mushir Ali Shah S.H.O. (P.W.17) arrested Riaz Ahmad (appellant) on 9-6-1985. S.I. Feroze Ali (P.W.8) recovered blood-stained hatched P.6 at the pointation of Riaz Ahmad (appellant) and secured it under memo Exh. P.G. Muhammad Yar (appellant) absconded and was declared as proclaimed offender. He was, however, arrested on 10-10-1986 by S.I. Muhammad Fayyaz (P.W.12) and carbine P.7 and three cartridges P.8/1-3 were recovered from his possession and secured under memo. Exh. P.H.
Dr. Muhammad Riaz Ali (P.W.1) conducted autopsy on the dead body of Abdul Rahman (deceased) on 30-4-1985 at 6 p.m., and noted 11 injuries of different dimensions spread over his chest, head, face, arms and legs. Of them, one injury (on the chest) was the result of fire-arm, six injuries on head, etc., were the result of sharp-edged weapon and the remaining were caused with blunt weapon. On dissection, head bone was found cut, brain was injured and the ribs underneath the fire-arm injury were found fractured. In the opinion of the doctor the deceased had died instantaneously due to shock and haemorrhage caused by injuries to vital organs and the time elapsed between death and post-mortem examination was about two hours.
6. The same doctor, on the same day, examined Mehenga P.W. And noted two lacerated wounds, 1/3" x 1/3" x muscles deep each on back of his right thigh at middle third and on back of right thigh outward at lower half with no blackening, charring and burning around them; and a lacerated wound 1/3" x 1/3" x muscles deep on back of left leg with inverted margins of Muhammad Jamil P.W., aged 8 years. Injuries of both the injured were X-Rayed and the pellets were extracted from underneath the injuries. These were found as caused with fire-arm within duration of two hours and were declared as simple in nature.
7. After completing the investigations Muhammad Yar and Riaz Ahmad (appellants) were challaned to Court whereas the names of the other 7 accused were placed in column No.4 of the challan as they had been found innocent during the investigation,, by S.H.O. Mushir Ali Shah (P.W.17) but they were tried by order of the Court.
8. At the trial the prosecution produced 17 witnesses in support of its case. Muhammad Jamil (P.W.13), Khalil-ur-Rahman (P.W.14) and Syed Manzoor Hussain, Advocate (P.W.15) narrated the occurrence. Muhammad Shari (P.W.9) and Muhammad Hussain (P.W.10) claimed to have overheard the 7 accused (since acquitted) instigating the appellants that they should kill the deceased. Abdul Jabbar (P.W.7) stated that Riaz Ahmad (appellant) got recovered blood--stained hatchet P.6 from the bushes while Muhammad Hanif (P.W.11) stated that he witnessed the arrest of Muhammad Yar (appellant) by Muhammad Riaz, Police Inspector, and also the recovery of carbine P.7 with cartridges P.8/1-3 effected from him. When examined under section 342, Cr.P.C. The appellants denied the allegations but produced no evidence in defence.
9. Learned trial Court on consideration of the material on record disbelieved the evidence of Muhammad Shari (P.W.9) and Muhammad Hussain (P.W.10) and acquitted 7 co-accused of the appellants finding allegation of abetment, as doubtful, against them. As for Muhammad Yar alias Yaroo, appellant, learned trial Court observed that the recovery of carbine (P.7) said to have been made from him, was of no consequence sinc6 no empty was recovered from the spot to get it matched with the said carbine to establish that it was used in committing the crime. However, it believed the recovery of blood-stained hatchet (P.6) from Riaz Ahmad, appellant. Besides this, learned trial Court believed the evidence of motive as well as the ocular testimony and held the appellants guilty under section 302/34 and Muhammad Yar alias Yaroo was further convicted under section 307, P.P.C. As indicated above. Learned trial Court awarded lesser penalty to the appellants for the reason that it was not ascertainable with any amount of certitude as to which injury was individually sufficient to cause death of the deceased and furthermore, Riaz Ahmad, applicant, being younger was under the influence of his elder brother Muhammad Yar alias Yaroo.
Feeling aggrieved thereby the convicts have filed the instant appeal and complainant filed revision.
10. Learned counsel appearing on behalf of the appellants has argued that the eye-witnesses' testimony is not believable as being interested and of partisan character. He pointed out that Dr. Muhammad Riaz Ali (P.W.1) found undigested food in the stomach of the deceased which indicates that the occurrence had taken piece at about mid day and not at 4 p.m., as alleged by the prosecution-witnesses which further suggests that the F.I.R. Was recorded on the spot after preliminary investigations. He next argued that Khalil-ur-Rehman's presence at the spot is highly doubtful because if the appellants had killed the deceased for taking revenge of murder of their uncle Syed Muhammad then they would have not spared Khalil-ur-Rehman's (P.W.14) as well who was also acquitted by the Court from murder case of Syed Muhammad. As far the evidence of recovery of blood-stained hatchet (P.6) from Riaz Ahmad, appellant, it is argued, that it is doubtful since it was made 1-1/2 months after the occurrence. Lastly, learned counsel submitted that the deceased had many contains. e.g. He contested for the Lambardari with Muhammad Sharif; he also contested for Zakat Committee's membership; and with many villagers he had dispute of distribution of canal water and, therefore, it is just possible, he argued, that he was done to death by any of his antagonists but the complainant party chose the appellants for being roped in this case according to their convenience.
Replying, learned counsel for the State assisted by learned counsel for the complainant, submitted that the F.I.R. Was lodged promptly, the occurrence look place in broad daylight, the appellants have motive to kill the deceased, and that among the eye-witnesses Muhammad Jamil (P.W.13) and Syed Manzoor Hussain, Advocate (P.W.15) are quite independent witnesses who have fully implicated the accused/convicts. Further argued that the medical evidence lends strength to the eye-witnesses' statements. Evidence of Khalil-ur-Rehman's, complainant (P.W,14), too, is consistent and convincing being free from any infirmity, therefore, the conviction recorded by the learned trial Court calls for no interference and that the sentence of the appellants deserves to be enhanced.
11. The conviction of the appellants, as indicated above, is based on the evidence of motive; incriminating recoveries; and the ocular testimony. I would vi proceed to analyse the prosecution evidence in the light of the contentions of learned counsel for the parties, to sec if it provides safe basis for recording the conviction of the appellants or not. I would at once agree with the learned trial Court that because of non-recovery of any empty from the spot it couldn't be proved have doubt that the carbine (P.7) recovered from Muhammad Yar alias Yaroo (appellant) was used in the occurrence hence is inconsequential. So far blood-stained hatchet (P.6) is concerned, it was recovered at the pointation of Riaz Ahmad, appellant, from Sarkanda bushes in Killa 18, Square No.9 of Chak No.34/GB on 9-6-1985, i.e. About 1-1/2 months after the occurrence. I do not think, if blood stains on the hatchet lying open under the sky can remain intact for 1-1/2 months. Again, the only public witness, namely, Abdul Jabbar (P.W.7) who testified to the recovery of this hatchet, stated that it was recovered 15/16 days after the occurrence. His statement is in sharp contrast with the prosecution case according to which this recovery had taken place after 1-1/2 months of the occurrence. I would, therefore, hold that recovery of hatchet allegedly made from Riaz Ahmad, appellant, is not worth reliance and must be discarded.
11-A. The motive for the offence in this case was that Syed Muhammad, uncle of the appellants, was murdered in the year 1983 for which Abdul Rahman (deceased) and Khalil-ur-Rehman's, complainant in this case, were challaned but were acquitted by the Sessions Judge on 5-8-1984.
Naturally the appellants felt annoyed over the acquittal of the murderers of their uncle, therefore, they seem to have taken it upon themselves to take revenge from the deceased, hence the appellants were the most likely persons to have attacked and killed the deceased. No doubt the deceased had contested for Lambardari against his own brother and for membership of Zakat Committee against a co-villager and had also filed a suit for distribution of canal water against certain villagers, but I do not agree with learned counsel for the appellants that his opponents in the aforementioned litigations might have murdered the deceased for the reason that the water -- distribution matter is pending decision and the other party would be expecting that the decision might turn out in their favour and in other matters the deceased has been defeated, so they were not having any grouse against him.
11-B. The important evidence in this case against the appellants is the ocular evidence furnished by Muhammad Jamil (P.W.13), Khalil-ur-Rehman's (P.W.14) and Syed Manzoor Hussain, Advocate (P.W.15). I have carefully gone through their statements. They have fully supported the prosecution case. The occurrence took place in Street No.3, Mohalla Eidgah of Jaranwala. Muhammad Jamil (P.W.13) and Syed Manzoor Hussain, Advocate (P.W.15) are the residents of the Mohalla and are, therefore, the natural witnesses. The very fact that the occurrence took place near the house of Syed Manzoor Hussain Shah, Advocate, proves the prosecution story that the deceased came to Jaranwala in the company of Khalil-ur-Rehman's (P.W.14) for Pervi of their cases in which Syed Manzoor Hussain Shah P.W, was their counsel. Therefore, Khalil-ur-Rehman's presence at the relevant time is also probable. The presence of Khalil-ur-Rehman's, complainant, is further established by the fact that he lodged F.I.R. With S.I. Muhammad Salim (P.W.16) at 4-45 p.m. i.e., within half an, hour of the occurrence. There is nothing on record to suggest that the F.I.R. Was not recorded at the time and place as it purports. It contains the names of the witnesses, names of the accused and the weapons wielded by them besides the full details -about the manner in which the occurrence had taken place. Their testimony finds support from the evidence of the medical witness who says that the injuries of the deceased were result of sharp-edged weapon and a fire- arm. Again, the occurrence took place in broad daylight, therefore, there was no chance of mistaken identity of the assailants particularly when Khalil-ur-Rehman's (P.W.14) and Syed Manzoor Hussain, Advocate (P.W.15) already knew the appellants. Muhammad Jamil P.W. Is resident of the street where occurrence took place. He was playing near the place of occurrence and was hit by stray pellets fired by Muhammad Yar alias Yaroo, appellant. He no doubt identified the appellants in Court stated by pointing towards Muhammad Yar appellant that he fired at the deceased and Riaz appellant gave hatchet injuries to the old man (he meant the deceased). He had not named the accused or the deceased in his statement before the police either. He did not know them earlier. He was not made to identify the appellants in any test identification, therefore, while believing that he was present on the spot and was injured during the transaction, I do not consider it safe to accept his claim to have remembered the facial features of the assailants whom he saw for a while in a highly charged situation. Therefore, I would keep his statement out of consideration.
But as far as the testimony of Khalil-ur-Rahman and Syed Manzoor Hussain Shah, Advocate,, P.W s. Is concerned, it inspires confidence. It is true that Khalil-ur-Rahman P.W. Had enmity with the accused party and is a close relation of the deceased. So, corroboration is required for accepting his evidence, which is available in the evidence of Syed Manzoor Hussain Shah (P.W.15), who is independent and lives close to the place of occurrence. He had no enmity with the appellants.
Although, he is counsel of the deceased in few cases but it would not make him a partisan witness as he stated that he had conducted some of cases of the accused parts also. It is not expected of this witness that he would tell lie for getting an innocent person punished on murder charge.
Therefore, his evidence remains undamaged. I am equally impressed by the evidence of Khalil-ur- Rehman's P.W. By the fact that he had not thrown the net wider to implicate the innocent persons although he could do it easily by naming more assailants than the two appellants as the deceased had suffered 11 injuries of which one was caused with the fire-arm and seven with sharp-edged weapon. Why the appellants spared Khalil-ur-Rahman depends upon the thinking of the appellants. It might be that they had little time at their disposal for they wanted to escape safely after the crime or that Muhammad Yar alias Yaroo had run short of ammunition. Presence of undigested food in the stomach of the deceased is explainable as the villagers do not have fixed schedule to take their lunch at noon, therefore, he would have taken food in the town for change of taste. The blunt weapon injuries on the person of the deceased appear to be result of fall. Thus, there is no conflict between ocular and medical evidence. For the above reasons, I am satisfied that there exists safe and sufficient basis for recording the conviction of the appellant under section 302%34, P.P.C. And the learned trial Court has rightly done so Consequently, the conviction of the appellant under section 302/34, P.P.C. Is maintained.
12. This brings me to the question of sentence. It is clear from the medical evidence that the fire- arm injury as well as the incised injuries which are specifically attributed to the two appellants have resulted in death of the deceased, therefore, learned trial Court was not right in saying that it was not ascertainable with an amount of certainty as to which injury caused the death of the deceased hence it awarded lesser penalty. It is, however, admitted that the deceased was challaned for the murder of Said Muhammad, uncle of the appellants, and had been tried and acquitted. The prosecution case also is that because of this grouse the appellants had killed the deceased. It is a tradition with the agriculturist tribes that if a person of their family is murdered then his near dears feel it as their duty to take revenge of the deceased from his murderers, which is recognized by the Superior Courts as a mitigating circumstance. Therefore, I am of the view that extreme penalty of death was not called for in the circumstances of the case. The sentence for imprisonment for life and the fine imposed on the appellants under section 302/34, P.P.C. In this case being appropriate is maintained.
13. In the result, the appeal filed by the appellants is dismissed and both criminal revisions, one filed by the State and the other by the complainant, for enhancement of sentence also stand dismissed.