RAJA AFRAS1AB KHAN, J.-Zafar Shah son of Noor Zaman Maqsood Shah son of Shahabal Shah Ghulam Shabhir son of Mahabalipuram son of Bhalak, Mamma son of Sultan and Mamma son of Yara were tried by Ch. Muhammad Aslam Zia learned Additional Sessions Faisalabad the charge of murder of Ghulam Ali and also for making a murderous assault on Muhammad Nazir PW. Zafar Shah (30/32),Waryam (45) and Mamma (30)son of Yara were convicted under Sections 302/307/34 PPC. Zafar Shah was sentenced to death plus a fine of Rs.5,000/- and in default thereof to suffer 2 years'R. I. Waryam and Mamma son of Yara were sentenced to life imprisonment plus a fine of Rs.5,000/- each and in default of payment they were ordered to undergo further two years'
R.I. Each. The above-named three appellants were also sentenced to undergo 7 years' R.I. Each plus a fine of Rs.3,000/- each and in default thereof to suffer one years' R.I. Each under sections 307/34 PPC. They were ordered to pay a sum of Rs.4,000/- each to the legal heirs of the deceased as compensation under section 544-A Cr.P.C, and in default thereof to suffer six months R.I. Each All the sentences of the appellants were ordered to run concurrently vide the judgment dated 21.5.1986. However Maqsood Shah Ghulam Shabhir and Mamma son of Sultan were acquitted by the learned trial Judge on the ground that no case was proved against them by the prosecution, vide the same judgment.
2. The learned trial judge has sent us a reference under section 376 Cr.P.C. (M.R.No.154/1986) for confirmation of sentence of death against Zafar Shah. Zafar Shah has appealed against his conviction and sentence vide CrA No.360 of 1986. Similarly Waryam and Mamma son of Yara have come up in separate appeals namely, CrA Nos.464/86 and 547/86, respectively challenging their conviction and sentences All these matters arise out of the impugned judgement and as such shall be disposed of together by this judgment.
3. Shortly stated, the prosecution story is that about 7 months prior to occurrence. Pehlwan son of Muhammad undertook to give the hand of his divorced daughter Mst Aisha to Sikandar, a brother of the complainant Muhammad Nazir later on, Pehlwan himself took both Sikandar and Mst Aisha to Chak No.214/R.B. Thudhiwala Police Station Saddar where he joined the couple into a wedlock. In exchange, Pehlwan demanded the hand of Mst. Pathani,a sister of Nazir PW for his own marriage with her. This demand of Pehlwan was turned down by father of Nazir PW. Zafar Shah appellant, on this matrimonial dispute, took the side of Pehlwan. On persuasion of Zafar Shah, a criminal case was also registered on the statement of Pehlwan with Police Station Sadder. Mst Aisha, the abductee was recovered by the police. She made a statement in court favourable to Sikandar. She was allowed to accompany her husband Sikandar of her own accord. Sikandar started living in Chiniot. During those days,. Sikandar had come to the village with Mst Aisha on account of harvesting season. Last night as usual he, along with Mst. Fatima Ghulam Ali his father was sleeping in an open place in front of his house. Shahabal son of Sohani. His uncle Mamma son of Allama were sleeping nearby on the same place At about 11 p.m. a pet dog barked whereupon they got up and saw that Zafar Shah Waryam Muhammad Yar and Muhammad Alisa Mamma were standing there and were also armed. The first two were armed with guns whereas the remaining two were holding hatchets. Nazir complainant shouted whereupon Ghulam Ali went towards 'his side. Muhammad Yar gave a hatchet blow on his right shoulder. Zafar Shah fired from his gun which hit Ghulam Ali on his chest. Waryam fired from his gun which hit Nazir both on his hand and neck. In the meantime,Mst. Fatima, wife of the complainant Shahabal (give up ) Mamma also got up and witnessed the occurrence. Zafar Shah, appellant, made the abduction of Mst Aisha a question of his prestige. On account of this abduction the accused committed these offences.
Ghulam Ali died at the spot on account of the injuries. Nazir injured was taken to Hospital on a trolley. It was disclosed in the FIR that Sikandar had also filed a civil suit before the civil court Chiniot against Zafar Shah. Zafaf Shah had a grudge against the complainant party on account of this civil litigation as well.
4. Ghulam Muhammad S.I. PW11 investigated the case. A statement Ex.PB of Muhammad Nazir was recorded by the witness on 28.4.1984 and on the basis thereof formal FIR Ex.PB/1 was recorded by Asmat Ullah M.H.C.1066 PW2. The witness visited the place of occurrence. Injury statement Ex.PO and inquest report Ex.PP of the deceased were prepared by him. The dead body was brought to Hospital for post-mortem examination. Blood-stained earth from the place of murder and place of hurt to Nazir was also taken into possession vide memos Ex.PD and Ex.PE respectively. Crime empties Ex. P3 and P4 were taken into possession vide recovery memo Ex.PF and Ex.PG. Lantern P5 was also taken into possession vide memo Ex.PH. All these recoveries were attested by Sikandar and Shahabal PWs. On 28.4.1984 blood-stained shirt PI, Chadar P2 with the sealed phial containing pellets were taken into possession by the witness vide memo Ex.PC. He also recorded the statements of all the witnesses. Zafar Shah, Waryam and Mamma son of Sultan and Mamma son of Yara were arrested by the Police Officer on 2.6.1984. On 7.6.1984, a double-barrel gun P6 was recovered at the instance of Zafar Shah which was taken into possession vide memo Ex.PL Maqsood Shah and Ghulam Shabhir were arrested on 22.6.1984 and got recovered carbine P7 along with one live cartridge P8 at the Pointedness of Maqsood Shah from his house which was taken into possession vide memo Ex.PQ. Shabhir led to the recovery of blood-stained hatchet P9 which was taken into possession vide memo Ex.PR. The witness stated that during the investigation conducted by him he found Waryam Mamma son of Sultan and Mamma son of Yara innocent and accordingly placed them in column No.2 of the challan. Positive reports Ex.PS PS/l,FT ,PT/1 and PU from the office of Chemical Examiner Serologist and Forensic Science Laboratory respectively were also tendered in evidence.
Dr. Iqbal Ahmad Javed PW10 on 28.4.1984 at 11 a.m. Perfomed the post mortem examination on the dead body of Ghulam Ali and found the following injuries on his person:-
1. An incised wound on the front and outer aspect of the right arm 3"above the front of the crease of right elbow joint,3"x 2\ x all muscle and blood vessels were found cut through and through and the right humerus bone was found fratured. The direction of the wound was oblique A corresponding cut was present in his shirt which is bloodstained.
2. Six circulated lacerated wounds of fire-arm of entrance on the front & outer aspect of the right side of the shest 1/2" below x lateral to right nipple each 1/4" x 1/4" into probe passed deep into the chest cavity. The edges of all the wounds were inverted and ecchymosed. The skin surrounding the six wounds was scroohed and blackened. Corresponding holes were present on the shirt which was blood stained. The shirt was burnt at that area and blackened.
3. Three circulated lacerated wounds of fire 'arm of entrance on the front of lower end of the sternum" x V into bone deep and two in front of the right side of the chest close to the sternum 3" x 1/4" x 1/4" and passed deep into the chest cavity.
4. Two incised wounds on the back surface of right thumb 1/2" x 1/4" into muscle deep and '3/4" & 1/4" ^ muscle deep. The direction was oblique.
It was opined by the Doctor feat the"-death resited on" account of shock and haemorrhage which was due to injuries No.1 to 3.Injunes No.2 and 3 appeared to be the result of one shot and independently caused death. Injuries No.1 and 4 were caused by sharp edged weapon and injuries No.2 and 3 were caused by fire- arm. These injuries were sufficient to cause death in the ordinary course of nature. Injuries No.1, 2 and 3 were grievous and injury No.4 was simple All the injuries were ante-mortcm. Lt was opined that the victim died immediately after receipt of the injuries. The probable time between death and post mortem examination was about l2 hours.
The said Doctor on 28.4.1984 at 3.00 a.m. examined Muhammad Nazir PW and found the following injuries on his person:-
1. A circular lacerated wound of fire arm of entrance at the top of the right side of the chest just above the lateral end of the right clavial bone l/4"x 1/4" x not probed the edges of the wound are inverted each emposed lacerated wound with inverted edges 1/2" x 1/4" x skin deep is also seen below the hole of above-mentioned was continued with the hold.
2. A circular lacerated wound of fire-arm of entrance on the right side of the neck, 1" above the injury No.1/4 x 1/4 x probed passed through and through upon the wound of the exit situated 2h" posterior to wound of entrance on the back surface of the right side of the chcst. The edges of the wound are inverted x each emposed lacerated wound 1" x 3/4" x skin deep adjoining and below the hole of wound of entrance.
3. A fire-arm wound of exit with irregular and inverted edges situtated 2 V posterior to injury No.2, on the back surface of right side of the chest, 1/6" x 1/6".
4. A fire-arm wound of exit with ragged and evated edges situated 2" below the injury No.3 1/6" x 1/6".
5. An irregular lacerated wound of fire-arm of entrancer on the right side of the neck below the right mendibuiar angles 1" x 1 /4" into not probed. The edges of the wound was inverted and eccphymosed.
6. An irregular lacerated wound of fire-arm entrance with inverted and eccphymosed edges situated 1" below injury No.5V x h" into not probed.
7. An extensive, irregular, lacerated wound of fire-arm entrance with inverted and ecciphymosed edges on the back surface of right hand on the area in between the right middle and right index finger extending up to the palmar surface of the right hand. The wound was also extending to the back and medial side of the both right midle and index finger involving the middle and proximal phalani of both fingers 4" x 2" into bone deep. The edges were scorched blackened and contused.
All the injuries were caused by fire-arm within a probable duration of four hours. In cross- examination the witness stated that the injuries on the person of Nazir PW could be caused with fire-arm within a distance of four feet approximately. He, however, stated that he could not give the exact distance. Regarding injury No.7 he observed that the distance could be four feet whereas the other injuries could have been caused within a distance of l2 feet approximately.
5. The eye-witness account in the case was provided by Nazir Ahmad PW6 and Mst. Fatima PW7.
Nazir Ahmad PW6 is the son of the deceased Ghulam Ali whereas Mst. Fatima PW7 is the wife of Nazir Ahmad PW6. Muhammad Nazir PW6 testifies that on the day of occurrence all the appellants were seen by him while armed with a double barrel gun,single barrel gun and hatchcts. Ln cross- examination Muhammad Nazir deposed that Zafar Shah was the resident of his village and that he owned a pacca house there. He further stated that he saw the accused persons from a distance of 4/5 karams. He conceded that Waryam appellant and Mamma son of Yara appellants and Mamma son of Sultan acquitted co-accused were found innocent during the investigation conducted by different Police Officers Almost to the same effect is the statement made by Mst.
Fatima PW7. She states that Zafar Shah and Waryam appellants were armed with double-barrel and single barrel guns respectively whereas the appellant Mamma son of Yara held a hatchet. She also deposed in cross-examination that Mamma son of Yara appellant and Mamma son of Sultan acquitted co-accused and Waryam were found innocent by the investigating officer.
6. The appellants while making statements under section 342 Cr.P.C. Denied the allegations levelled against them. Zafar Shah appellant took the plea that he was innocent and was implicated in the case on account of enmity. The recovery of gun from him was also denied by him. Waryam appellant pleaded his innocence and took the plea that he was not present at the time of occurrence and that he was sleeping in his house. He further stated that he had been implicated in the case on account of enmity. Mamma son of Yara appellant also pleaded his innocence and stated that he had been implicated in the case on account of enmity. He stated that he was not present at the time and place of occurrence. The appellants produced Talib Hussain DW1 Ameer DW2, Imdad Ali DW3, Javed Feroze Inspector FIA DW4 in their defence. Talib Hussain DW1 states that on the day of occurrence there was a Mehfil-e-Qawali being held in his village at the residential place of Ashiq Hussain. Mamma son of Sultan acquitted co- accused, was present in the said Mehfil-e-Qawali. He stated that the Qawali continued from evening till morning of the night of occurrence Ameer DW2 deposed in his evidence that on the night of the occurrence a puppet show was arranged in his house by him on the birth of a son to him. He stated that Mamma son of Yara appellant was present there and joined the show referred to above. He said that the show started at about 8 p.m.And continued till 2.00 a.m. The next day. He further deposed that the appellant being a menial of the village was present and was serving water etc. to his guests.
Imdad Ali DW3 stated that Waryam appellant was sleeping in his house at the time of occurrence.
He disclosed that he was a member of the Union Council Javed Feroze Inspector FIA stated in his evidence that Waryam and Mamma son of Yara appellants and Mamma son of Sultan acquitted co-accused were found innocent by him and were placed by him in column No.2 of the challan. He stated that he prepared a report under section 173 Cr.P.C. On 27.6.1984 vide Ex.DD and the said report was forwarded by him to the Assistant Superintendent of Police. He continued to say that on the basis of the evidence deposed by the witnesses he came to the conclusion that the above said appellants were innocent. He mentioned that the witnesses took oath on Holy Quran regarding the innocence of the said appellants as well.
7. The learned counsel contends that the motive as set up by the prosecution has not at all been proved beyond doubt and that at any rate Zafar Shah appellant has got nothing to do with the motive for commission of the crime. Lt is argued that the evidence of Nazir Ahmad PW6 and Mst.
Fatima PW7 being interested cannot at all be relied upon in the peculiar facts and circumstances of the case for convicting and sentencing the appellants. Learned counsel maintains that considerable improvement has been made by the witnesses in the case of the prosecution during trial inasmuch as lantern has been introduced in the case later in order to establish the identity of the appellants with its light. Even otherwise the learned counsel urges that it is established beyond doubt that it was dark night and as such the witnesses were not at all in a position to identify the assailants because of darkness. In these circumstances the learned counsel forcefully argues that in order to register conviction against the appellants, some corroboration from unimpeachable source should be available which is certainly missing from this case. The learned counsel appearing on behalf of Mamma son of Yara and Waryam appellants submits that the prosecution has miserably failed to prove any case whatsoever against them and that the two appellants had no motive to participate in the commission of the crime. He says that no weapons of offence were recovered from the appellants. He,therefore,pleads for their acquittal forth-with.
8. We have heard the learned counsel for the parties and have read the whole record very carefully. To begin with so far as Waryam and Mamma son of Yara appellants are concerned .There is absolutely no evidence available on record to connect them with the commission of the crime. Muhammad Nazir PW6 admitted in his evidence that Waryam and Mamma son of Yara and Mamma son of Sultan acquitted co-accused were found innocent by three different Police Officers at different stages of the investigations of the case. In this behalf our attention has been drawn to the admission made by the witness in his cross- examination saying that Ghulam Muhammad Sayyed Feroze Inspector and Javed Noor Inspector conducted intensive investigation in the case and that they all unanimously came to the conclusion that these appellants were innocent. The witness also stated that Mamma son of Yara and Mamma son of Sultan are not the residents of his village.Mst. Fatima PW7 also endorsed the deposition having been made by Nazir Ahmad PW6 inasmuch as she states that Mamma son of Yara and Mamma son of Sultan are not the residents of their village and that they along with Waryam were found innocent by the investigating officers.
Ghulam Muhammad PW11 also stated in his evidence that Javed Feroze and Javed Noor Inspectors found these three persons as innocent. He further deposed that this fact was mentioned in the case diary and that he had been joining and associating with their investigation of the caseAdmittedly no weapons of offence were recovered from the possession of these two appellants and they had also no direct or indirect motive to participate in the commission of the offence with their co-accused. The learned trial court in its judgment gave benefit of doubt to Mamma son of Sultan and acquitted him almost under similar facts and circumstances. In our considered veiw in absence of any reliable corroborative evidence it is not at all possible for us to maintain the conviction and sentences of these two appellants. Muhammad Nazir PW6 and Mst.
Fatima PW7 although implicated the appellants in their evidence but their evidence is not at all corroborated by some other independent evidence. As observed earlier they are related and interested witnesses and as such cannot be believed unless their evidence is corroborated by other credible evidence. Lt is needless to observe that it is the duty of the prosecution to prove its case against accused beyond reasonable doubt. There are inherent doubts in the case regarding participation of Waryam and Mamma son of Yara in the commission of the crime. Further,the same set of evidence has specifically been disbelieved for acquittal of Mamma son of Sultan and as such we do not find any justification to maintain the conviction and sentence of these two appellants on the basis of the same set of evidence. This being so we find considerable force in the arguments of the learned counsel for the appellants and feel inclined to agree with him.
Consequeutly,we proceed to set aside the conviction and sentences of the appellants Waryam and Mamma son of Yara and acquit them. They are on bail and shall be discharged from their bail bonds. Resultantly CrA.No.464/86 and Cr.A.No.547/86 succeed and are allowed.
9. So far as the appellant Zafar Shah is concerned the prosecution has been able to prove its case quo him. Nazir Ahmad PW6 and Mst. Fatima PW7 have specifically stated in their evidence that Zafar Shah was armed with a double barrel gun with which he fired at Ghulam Ali deceased. These witnesses had demonstrated in their evidence that Zafar Shah had throughtout been siding with Pehlwan in the abduction case of his daughter Mst.Aisha. The medical evidence deposed by Dr .Iqbal Ahmad Javed PW10 is wholly in line with the ocular account provided by Nazir Ahmad PW6 and Mst. Fatima PW7. Injuries No.2 and 3 on the person of the deceased were inflicted with fire-arm and have been found on his chest. These injuries were attributed specifically to Zafar Shah appellant. Double barrel gun P6 was recovered at the instance of Zafar Shah on 7.6.1984 vide memo Ex.PI and this recovery was witnessed by Sikandar PW8 and Ghulam Muhammad S.I. Pwll.
Ghulam Muhammad SI PW11 took into possession empties P3 and P4 vide memo Ex.PF and Ex.PG on 24.6.1984 from the place of occurrence. This recovery was witnessed by Sikandar PW9 and Ghulam Muhammad SI PW.1. The report of the forensic Science Laboratory Punjab regarding the use of gun is also positive. Lt was opined vide Ex.PU that the crime empties P3 and P4 were fired from the weapon in question which was recovered at the instance of the appellant Zafar Shah. These recoveries provide sufficient corroboration to the evidence of Nazir Ahmad PW6 and Mst. Fatima Upwreathe medical evidence as observed earlier does provide corroboration to the ocular account. Thus,there is overwhelming evidence available on record to connect the appellant Zafar Shah with the commission of the crime. Zafar Shah is the co-villager of Nazir Ahmad. And Mst.
Fatima and it was not at all difficult for them to identify him at the time of occurrence. The medical evidence demonstrates that the fire made by the appellant Zafar Shah was from a very close range inasmuch as the Doctor says that the injuries would have been caused within a distance of four feet approximately. From such a close distance the witnesses were certainly in a position to identify the appellant who was also their co-villager .Therefore, there is no force in the contentions of the leamed counsel that the night being dark it was not possible for the witnesses to have identified the assailant At any rate from the ocular account it is established that lantern was burning at the time of occurrence. This was so mentioned in the site-plan Ex.PA. The investigating officer also recovered the lantern from the place of occurrence it is correct that in the FIR and the inquest report there is no mention of the lantern P5. Howevcr,in our view, this is just a very minor discrepancy which can certainly be ignored. It may also be noted that the FIR was lodged with the Police promptly inasmuch as the occurrence took place at about 11 p.m. On 27.4.1984 and the report was lodged at 4.45 a.m. On 28.4.1984 although the distance between the place of occurrence and the Police Station was about two miles. Lt may also be noted that Muhammad Nazir PW6 was seriously injured and he was brought to the hospital for treatment wherein his statement was recorded by the investigating officer therefore it is established that the information was conveyed to the Police Officer about the commission of the offence without delay. Thus,there is absolutely no scope that the complainant would have falsely implicated the appellant Zafar Shah in the case.
The prosecution has been able to prove its case against Zafar Shah appellant beyond reasonable doubt. However, regarding the quantum of sentence, we are of the view that the motive as alleged in the case is shrouded in mystery qua Zafar Shah appellant Admittedly the appellant Zafar Shah is not directly linked with the motive of abduction of Mst Aisha.We are therefore persuaded to refrain from confirming his death sentence. The sentence of death of Zafar Shah is altered to life imprisonment. However,the sentence of fine and compensation is maintained. The death sentence is not confirmed. The murder reference is answered according A.No.360 of 1986 is partly allowed.