Sultan Ahmad (70) and his son Imtiaz Ahmad (18), were tried by Additional Sessions Judge, Sialkot, for having murdered Muhammad ldrees and for having launched murderous assault on Abdur Rehman's (P.W.12), alongwith Iftikhar alias Khara (absconder) at 6 a.m. On 26-8-1985, near the garage of Nazir, in village Begowala, at a distance of four miles from Police Station Sambrial, District Sialkot.
The learned trial Judge vide judgment, dated 29-11-1986, convicted Sultan Ahmad and Imtiaz Ahmad under sections 302/34 and 307/34, P.P.C. And awarded sentences as follows: Under section 302/34, P.P.C Imprisonment for life to each, plus to pay a fine of Rs.5,000 each, in default whereof to undergo R.I. For two years each.
Under section 307/34, P.P.C Three years' R.I. Each The sentences on both the counts have been ordered to run concurrently.
2. The convicts have filed appeal. The complainant has preferred Criminal Revision No.250 of 1988, wherein prayer has been made for enhancement of sentence of Imtiaz from life imprisonment to death. He has also challenged the acquittal of Hanif vide Criminal Revision No.488 of 1987. As all the matters arise from the same judgment, they are being disposed of together.
3. F.I.R. (Exh.P.K./1) was registered at the police station by Rehmatullah, M.H.C. At 12-30 p.m. On 26-8- 1985, on receipt of statement (Exh. P.K.) of Nazar Muhammad, recorded by Abdul Majeed, A.S.I.
(P.W.14), at Civil Hospital, Sialkot. (The case was originally registered under section 307, P.P.C.
Offence under section 302, P.P.C. Was added on the expiry of Idrees on 31-8-1985).
According to F.I.R., some unknown persons had committed theft in the shop of the complainant 9/10 months prior to the occurrence. 9/10 days prior to the occurrence, the complainant had expressed suspicion against Ijaz Ahmad son' of Sultan Ahmad. Sultan Ahmad and his son Imtiaz had threatened that they will teach .a lesson for having suspected Ijaz Ahmad.
On the day of occurrence, the complainant alongwith his brother Idress (deceased) and P.W.12 Abdur Rehman's were going to their Dera. They reached near the garage of Nazir Ahmad at 6 a.m.
Imtiaz, armed with a carbine, Iftikhar alias Khara (absconder) armed with a pistol, accompanied by Sultan and Hanif, empty-handed, who were ambushing got up. Sultan and Hanif gave a Lalkara that they should be taught a lesson for levelling allegations of theft. Whereupon Imtia7 fired twice at Muhammad ldrees, hitting him on the abdomen. He fell down, The shot fired by Iftikhar alias Khara struck Abdur Rehman's P.W. On the abdomen, He also fell down. Sultan and Hanif said that if anyone dared to intervene. He will also be murdered. The occurrence,, was also witnessed by P.Ws.
Sanaullah and Iftikhar Ahmad son of Pir Muhammad. Some other villagers also came there on hearing Firing. The. Accused ran away raising Lalkarars.
3-A. Abdul Majeed,, A.S.1. After, despatching 'statement (Exh. P.K.) to the police station for registration of case, made applications (Exhs. P.O. And P.P.) to the Medical Officer, to solicit opinion if Idrees and Abdul Rehman's were fit to make statements. The doctor opined that they were not fit to make statements Thereafter, he went to the spot, wherefrom he collected blood-stained earth vide memo. Exh. P.Q. The efforts made by him to record the statement of Idrees on 27th, 28th and 29th of August, 1985, failed as the doctor opined on each date that he was unfit to make statement.
Statement of Abdur Rehman's, was, however, recorded by him on 30-8-1985. Idrees, who had been shifted to Mayo Hospital, Lahore, died on 31-8-1985. The A.S.I. Went there and despatched the dead body for post-mortem, after preparing inquest report (Exh. P.I.) and injury statement (Exh. P.W.). The investigation thereafter was taken over by Muhammad Idrees, S.H.O. Who appeared as P.W.15.
Imtiaz, Sultan and Hanif were arrested by the S.H.O. On 18-9-1985. Carbine (P.W.6) alongwith two empties (P.7 and P.8) got recovered by Imtiaz from his Kurh (cattle shed) were taken into possession vide memo. Exh. P.M., on 1-10-1985., Iftikhar alias Khara could not be arrested. The S.H.O.
Got him declared as proclaimed offender after obtaining his warrants of arrest and issuing of proclamation under section 87/88, Cr.P.C. Challan was submitted to Court, after completion of necessary investigation.
4. Statements of 17 P.W s. Were recorded at the trial. Positive reports (Exhs. P.Z., P.AA. And P.BB.) from the offices of the Chemical Examiner, Serologist and the Forensic Science Laboratory were also tendered in evidence.
5. Dr. Imran ldrees Butt, who had medically examined Muhammad Idrees on 26-8-1985 at 7-25 a.m.
Whilst alive appeared as P.W.2. He had noted following injuries on his person:
(1) A circular wound 1 /4 c.m. In diameter, depth not probed, with blackish inverted niargins on the front of left lower zone of chest.
(2) Two circular wounds about 1/4 c.m. In diameter, depth not probed, with blackish inverted margins on the lower one of the front of left side of chest.
(3) A circular wound about 1/4 c.m. Diameter, depth not probed, with inverted margins on the left hypochondria region.
(4) Two circular wounds about 1/4 c.m. In diameter, depth not probed, with inverted margins on the umbilicus region of abdomen on the left side.
(5) Complains of pain in the whole of chest in front.
(6) Complains of pain with tenderness on the abdomen.
The injuries; which were opined to have been caused by fire-arm, within the duration of 1 to 3 hours, were kept under observation. E The same doctor had medically examined Abdur Rehman's P.W., on the same day at 8-15 a.m. And had noted following injuries on his person:
(1) A circular wound about 1/4 c.m. In diameter, depth not probed, with blackish inverted margins on the right lower zone of front of chest.
(2) Complains of pain in the front of whole zones of chest: The injury, which was caused by fire-arm, with the duration of 1 to 3 hours, was kept under observation.
He stated that the police officer had asked for his opinion vide applications (Exhs. P.D., P.E. And P.F.) on 27th, 28th and 29th of August, 1985, about the fitness of Idrees to make a statement and that he had opined each time that he was unfit to make a statement. He also added that Idrees was operated upon on 26-8-1985 but as his condition had deteriorated, he was sent to Mayo Hospital, Lahore, for further treatment.
6. Dr. Saeed Ahmad, who had performed autopsy on the dead body of Idrees on 1-9-1985, at Lahore, appeared as P.W.3. He had noted following injuries on the body of the deceased:
(1) Eleven stitches long vertical wound left paramecia of abdomen, 21 c.m. Long, 2 c.m. Left to umbilicus upper end of the wound was 16 c.m. Below and medial to left nipple, lower end 10 c.m.
Above left pubic tubercle.
(2) Oval wound, with lacerated margins right iliac fossa 10 c.m. From umbilicus 7 c.m. Above and medial to right iliac crest. Margins were contused.
(3) Five circular wounds, with lacerated margins in the area of 15 x 10 c.m. Left chest, lower part and left hypochondria each sized .75 x 0.75 c.m.
(4) Four stitched wounds 9.5 c.m. Long left chest back lower part with rubber tube inside.
(5) Two stitched wounds, 3 c.m. Long left lumber area 11 c.m. Front midline.
(6) Scabbed wound 8.05 c.m., on left leg, front and middle.
According, to his opinion, death had occurred due to damage done by injuries Nos.2 and 3, to the left lung, small and large intestines and left kidney. He stated that injuries ,2 and 3 were caused by fire-arm, No.6 had resulted from blunt weapon and the remaining were surgical interventions.
7. During cross-examination, he admitted that injury No.6, noted by him, did not exist in the medical report of the deceased, prepared whilst alive. In answer to another question, he stated that the said injury could have resulted due to fall on hard object.
8. The ocular,, account was deposed to by Nazar Muhammad (P.W.13) and Abdur Rehman's (P.W.12)
Nazar Muhammad (P.W.13) while repeating the facts given by him in the F.I.R. Also stated that a Punchayat was convened about the suspicion of theft committed by Ijaz; in which Sultan and Imtiaz had taken part and threatened them. During cross-examination, he admitted that he had not informed the police about the convening of the Punchayat nor had produced any member of the said Punchayat before the police during investigation. He claimed that he had got the case of theft registered but admitted that no one was named therein. According to him, no effort was made by them to catch the accused, who were empty --handed. He stated that Nazir, a brother of Hanif accused was murdered after this occurrence, for which a case stood registered against him, Muhammad Aslam, Muhammad Ishaq and Sanaullah P.Ws. After giving the details of some cases registered inter se them and the accused party, he stated candidly that a large number of criminal cases were got registered by both sides vice versa and there was a long-standing enmity between them. He denied that the occurrence had taken place in darkness in early hours of morning and that he had lodged a false F.I.R.
Abdur Rehman's (P.W.12), corroborated the statement made by P.W.13. During cross-examination, he stated that he was taken to the hospital,, by his father and that he was present with him when the police had recorded his statement. He denied that the complainant and other P.W s. Were with him when he made the statement before the police on fourth day, on regaining consciousness. He denied that the occurrence had taken place in the darkness and that he had made a false statement.
9. Ishaq, who appeared as P.W.11, claimed 'to have witnessed the recovery of carbine (P.6) alongwith empties (P.7 and 8) at the instance of Imtiaz from his Dera. During cross-examination, he denied the suggestion of having made a false statement.
10. Abdul Majeed, A.S.I., who had recorded the statement (Exh. P.K.), on the basis of which formal F.I.R. (Exh.P.K./1) was recorded, appeared as P.W.14 and deposed those facts. He stated that while being in the hospital, he had taken into possession blood-stained clothes of the injured, i.e. The deceased and Abdur Rehman's P.W. HA-stated that during spot inspection, he had collected blood--stained earth from there and had also recorded the statements of the P.W s. He also deposed about having approached the doctor about the fitness of the deceased and the injured P.W. To make statements. He stated that the dead body was sent,, by him for post-mortem, after preparing necessary papers on arrival in the Mayo Hospital, on receipt of information. He stated that the case of theft was investigated,, by him, but he did not remember if he had arrested anybody in that case or not. He denied the suggestion that he had conducted the investigation of this case in a partial manner.
Muhammad Idrees, S.I., who had arrested the appellants on 18-9-1985 and during whose custody Imitaz had got recovered carbine (P.6) alongwith empties (P.7 and 8) from his Dera appeared as P.W.15 and deposed those facts. He denied the suggestion that he had planted the weapon in order to strengthen the prosecution case.
The statements of the remaining witnesses are more or less of a formal nature. Positive reports (Exhs. P.Z., P.AA and P.BB) from the offices of the Chemical Examiner, Serologist and the Forensic Science Laboratory were also tendered in evidence.
11. The appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. Imtiaz denied to have led to the recovery of carbine.
12. I have gone through the record with the assistance of the learned counsel for the appellants and considered the contentions raised by the counsel for the parties.
13. The contention of the learned counsel for the appellants that the evidence of motive alleged for the occurrence did not inspire confidence and so it cannot be accepted that the occurrence had taken place on account of that alone, appears to possess substance. In that, it came candidly on record during trial that nobody had been named in the F.I.R. Lodged for the theft. Abdul Majeed, A.S.I. (P.W.14) had investigated that case, also. He did not state anything about the suspicion of the complainant against Ijaz son of Sultan, brother of Imtiaz.
The stance of the complainant at the trial that a Punchayat was convened about their suspicion against Ijaz of having committed the theft, does not appear to possess substance, as neither the complainant had mentioned that fact in the F.I.R. Nor did he produce any member of the said Punchayat before the Investigating Officers during investigation. The different police officers had been coming to the village in connection with the investigation of this case. Had such a Punchayat been held, wherein the appellants are alleged to have given threats, some one member of Punchayat could have been produced before the police to prove the factum of threats. Moreover, in view of the categorical statement made by the complainant about the strained relations between them and the accused party, it is impossible to believe that the accused party would have accepted to participate in the Punchayat at their Dera. The finding of the trial Judge, in the circumstances, that the prosecution had failed to prove the motive for the occurrence, in my view, is based on correct appreciation of the evidence.
14. The argument of the learned counsel for the appellants that the occurrence had taken place during dark hours, does not find support from anything on record. The first injured was examined at 7-25 a.m. The duration of injuries opined by the doctor was between 1 to 3 hours. That being so, the stance of the complainant that the occurrence had taken place at 6 a.m. Cannot be doubted, as the time of occurrence cannot be stretched to dark hours of the night.
15. Nazar Muhammad complainant (P.W.13) candidly admitted that there was long-standing enmity between them and the accused party and a large number of criminal cases stood registered inter se. As such, the contention of the learned counsel for the appellants that the complainant was an inimical and interested witness possesses weight. His statement, however, cannot be outrightly rejected unless the same appears to be devoid of truth wholly. However, the same cannot be acted upon safely without independent corroboration. The argument of the learned counsel for the appellants that his testimony apparently appears to be false, as his claim of having accompanied the deceased and Abdur Rehman's P.W. To the hospital stood negated from the entries in the medico-legal report of the deceased and the P.W., does not clinch the matter, to declare him a liar, as he had given explanation during cross-examination, that after the injured were placed in the hospital, he had gone to Bazar to fetch medicines, which he was asked to procure, before the preparation of medico-legal reports. The name of his real brother finds mention in the relevant column of the medico-legal report of the deceased. If a false witness was to be set up, then the said brother could have been made the complainant. Moreover, it will not be too much to expect that both the brothers would have accompanied the deceased, as he had been grievously wounded. The argument of the learned counsel for the appellants that, had he been at the spot, he would also have been done to death, also does not prove that he was not at the spot, as it cannot be assumed that the accused had run amuck and so would have murdered everybody present there. The prompt manner, in which the injured were removed to the hospital and the claim of his having accompanied the injured to the hospital and the statement made by him to the Investigating Officer, on the basis of which the case was registered, does not leave any room to doubt that he was present at the spot. However, as noted above, his testimony unless finds corroboration from independent source, cannot be accepted safely, for being inimically disposed towards the appellants. In this regard the testimony of Abdur Rehman's (P.W.12) is available. He was not related to the deceased and the complainant. There is nothing on record from which it can be assumed that he was inimical towards the appellants. He was injured during the occurrence and had suffered serious and grievous injuries. His presence at the spot, therefore, cannot be doubted.
Neither any fault can be found in his testimony., In fact, the same inspires confidence. His independent posture is undoubtful. His testimony, therefore, lends sound corroboration to the statement of P.W.13.
16. The carbine recovered at the instance of Imtiaz appellant alongwith empties, were found wedded by the Fire-arm Expert, vide his report (EXh. P.BB.), which is on the file. The statements of the witnesses, who had deposed about the recovery of said items is not only corroboratory but inspires confidence too.
17. As a result of the above discussion and enunciation of evidence, it is proved beyond doubt that the occurrence had taken place at 6 a.m., as stated by the P.W s., in which Abdur Rehman's (P.W.12) suffered injuries and the deceased was done to death by Imtiaz appellant. The appeal qua him (Imtiaz), therefore, stands dismissed, being without merit. He shall be given the benefit of the provisions of secti6n 382-B, Cr.P.C. Imtiaz, whose appeal stands dismissed, is on bail. He shall be caused to be arrested through non-bailable warrants and lod ed in 'ail to undergo the sentence.
18. However, the participation of Sultan in the occurrence does not appear beyond reasonable shadows of doubt. Even, according to the prosecution, he was empty-handed. His young son, i.e. His co-appellant Imtiaz was there, armed with carbine and was accompanied by others too. Except the proverbial Lalkara, he was not alleged to have done anything else. The story of his having threatened the complainant in a Punchayat has not been proved. He was about 70 years old at the time of occurrence. In the circumstances, possibility of his having been involved in the occurrence due to enmity cannot be ruled out. He is, therefore, acquitted by way of abundant caution. He is on bail. He shall be discharged of his bail bonds.
19. Muhammad Hanif, respondent in Criminal Revision No.488 of 1987 was acquitted by the trial Judge, as, according to the prosecution, he was not armed with anything and had not done any overt act. No motive for the occurrence had been alleged against him. He was not related or connected with Ijaz, who was suspected of having committed theft. In fact, he was Taili by caste.
The appeal filed by his co-accused Sultan, who was also empty-handed, and had not done any overt act has been allowed as the story of motive for the occurrence has not been believed. The case of Hanif is certainly on better footings than Sultan. In the circumstances,, no case for interference in the judgment of acquittal qua him, i.e. Hanif. Is made out. The revision petition stands dismissed.
20. As noted above, the prosecution stance about the motive for the occurrence has not been considered worth reliance. Therefore, the question of enhancement of sentence of Imtiaz respondent in Criminal Revision No.250 of 1988 does not arise. He was 18 years old at the time of trial, which took place 1-1/4 years after the occurrence. He would thus be less than 17 at the time of occurrence. The reasons given by the trial Judge for awarding him lesser penalty of life imprisonment, in my view, do not call for any interference. The revision petition,, which is still at motion stage, is therefore, dismissed.