SARDAR MUHAMMAD DOGAR, J.- FIR Ex. PB/1 was registered at Police Station Jalalpur Jattan at 2-00 p.m. On 11.10.1984 by Javed Ashraf, M.H.C. On receipt of statement Ex. PB of Shabhir Hussain (PW3) recorded by Nazir Ahmad, ASI (PW11) at 1-30 P.M. At Fatehpur Chowk on the same day.
According to FIR, Ashar Hussain (deceased) was running a tea stall in the Main Bazar of Daulatnagar. Bashir Ahmad alias Ghopa (appellant) used to take tea there without making payment. When he repeated that for 7-8 days, Azhar Hussain demanded bill which resulted in exchange of hot words. Azhar Hussain abused Bashir Ahmad for not making payment. Bashir Ahmad went away throwing a challenge that he will have to pay for insulting him.
On the day of occurrence Azhar Hussain while coming from Fatehpur on motor-cycle accompanied by Manazar Hussain alias Bhola PW reached Adda Daulatnagar at 12-30 p.m. Bashir Ahmad alias Ghopa and Amanat Ali armed with guns accompanied by Nadir Ali, Muhammad Arif, Ahmad Din and Abdul Majid armed with Sotas, attacked Azhar Hussain after appearing from behind a Khokha. Bashir Ahmad fired a shot which struck Azhar Hussain on the chest near the left armpit. Azhar Hussain fell down. He was caused injuries with Sotas by Muhammad Arif, Ahmad Din, Nadir Ali and Abdul Majid, on the right knee, right hip and right arm. Muhammad Arif, Ahmad Din, Abdul Majid and Nadir Ali also caused injuries to Manazer Hussain PW on the right arm, right leg and left calf. He was fired at by Bashir Ahmad and Amanat Ali when he had started running after being beaten by the accused armed with Sotas. However, he escaped as he took a turn to a Street.
Azhar Hussain died on the spot.
It is stated in the FIR that the accused had committed the occurrence in connivance with Muhammad Khan and Khadim Hussain (accused).
The occurrence, apart from the complainant and Manazar Hussain, was also witnessed by Khadim Hussain and Khurshid Ahmad PWs.
2. Nazir Ahmad, ASI, after despatching statement Ex.PB to the Police Station for registration of case reached the spot. He sent the dead body for postmortem, after preparing injury statement and inquest report, and collected bloodstained earth from the spot vide memo Ex. PH. The investigation, thereafter was taken over by Mukhtar Ahmad, S.H.O.
3. Mukhtar Ahmad Inspector/SHO who had partly investigated the case arrested Amanat Ali, Ahmad Din, Nadir Khan, and Abdul Majid.
4. Rana Abdul Waseh DSP, who had also partly investigated the case, appeared as PW 12. He had declared Ahmad Din and Khadim Hussain innocent and directed the police to submit challan against the others.
5. Muhammad Nawaz SHO, who had also partly investigated the case, appeared as PW 10 and stated that he had arrested Muhammad Arif alias Mocha on 15.11.1985, who had been declared proclaimed offender. According to him, a loaded sten-gun in possession of the accused at the time of arrest, was also taken into possession.
6. The case was also partly investigated by Syed Arshad Hussain Shah Inspector/SHO. He appeared as PW.8. He had arrested Bashir Ahmad on 22.7.85 after he had been declared proclaimed offender. Gun P.1 got recovered by Bashir Ahmad on 1.8.1985 was taken into possession by him vide memo Ex.PE.
7. After submission of final challan to the Court, all the 8 accused named in the FIR were tried by Ch. Mazhar Hussain Minhas, Addl. Sessions Judge, Gujrat, Learned trial Judge vide judgment dated 7.1.0.1989 convicted Bashir Ahmad under section 302 PPC and sentenced him to death, plus to pay a fine of Rs.20,000/-, in default whereof to undergo R1 for two years. Half of the fine, on realisation, has been directed to be paid as compensation to the heirs of the deceased.
The other seven accused were acquitted vide the same judgment.
8. Convict has filed appeal. Learned trial Judge has made reference for confirmation of death sentence. Both the matters are being disposed of together.
9. Statements of 13 PWs were recorded at the trial.
10. Dr. Muhammad Aslam Chaudhry who had performed autopsy at 11.00 A.M. On 12.10.1984 appeared as PW 5. He had noted following injuries on the body of the deceased:
1. A firearm wound of entry with inverted margins 2.5 cm x 2.5 cm over anterolateral aspect of left chest below and anterior to left axilla, surrounded by five small wounds (firearm) of entry each about 0.7 x 0. 7 cm over an area of about 7 x 7.5 cm. These wounds were about 2.8 cm below the level of nipple. There were corresponding holes in shirt and Banyan which were soaked with blood.
2. Bruise 7 x 2.5 cm back of right forearm.
3. Abrasion 3 x 2 cm over the right hip.
4. Abrasion right knee 2x2 cm.
As a result of injury No. 1 third rib was factured and both lungs and heart were pierced. Pericardium was also torn and pierced.
Three pellets were found lodged in right chest cavity were removed.
Injury No.1 was opined to have been caused by a firearm while the rest were opined to have been caused by a blunt weapon. Death was opined to have occurred due to injury No.1. Probable time between injuries and death and postmortem was opined to be about a day. During cross- examination, he stated that exact distance of the assailant from the victim cannot be given, but in this case it could not be beyond 20 feet.
11. Dr. Syed Tallat Iqbal who had medically examined Munazar Hussain PW at 8.00 PM on 11.10.84 appeared as PW 13. He had noted following injuries on his person:
1. Contused swelling 6 x 4 cm on outer side of lower part of right leg and right ankle joint. Area was tender to touch. The movements of the ankle joint were restricted.
2. Lenier contusion 6 x 2 cm on front of upper part of left leg.
3. Lenier contusion 3 x 2 cm on back of upper part of right forearm.
4. Contusion 4 x 2 cm on outer side of right elbow joint.
All the injuries except No. 1 were declared simple. The said injury was kept under observation. The injuries were opined to have been caused with a blunt weapon within a duration of six to twelve hours. During cross-examination he stated that possibility of injuries No.1,2 and 3 by a fall could not be ruled out.
12. Ocular account was deposed to by Shabhir Hussain (PW 3) and Manazar Hussain (PW 4).
Shabhir Hussain while repeating the facts given by him in the FIR added that Amanat Ali, Muhammad Khan and Khadim Hussain accused also used to take tea from the hotel of the deceased alongwith Bashir and they all used not to make payment. During cross-examination he was not found to have stated so with regard to Amanat Muhammad Khan and Khadim Hussain.................................................................. He admitted that PW Khurshid was his brother while the deceased was his maternal uncle. He admitted relationship with P.Ws. Rashid and Nazir Ahmad also. In answer to a question, he stated that P.Ws. Lal Khan, Khadim Hussain, Manazar Hussain, Sarwar alongwith others were challaned for the murder of Lal Khan brother of Muhammad Khan (acquitted accused) and in that Muhammad Khan, Khadim Hussain, Talib Hussain and Rehmat Khan (acquitted accused) were P.Ws. He added that it was false Case and Bashir, Amanat and Khadim Hussain accused alongwith one other were tried for the same murder. He also accepted ,the suggestion that Azhar Hussain was challaned for the murder of Mst. Sakina but added that he was acquitted of the charge. He admitted, that there were quite a number of shops and Khokhas around the place of occurrence. He explained that the motor-cycle which belonged to Manazar Hussain was being driven by the deceased at the time of occurrence. According to him the Police officer had reached the spot at 2-00/2-30 p.m. The dead body, according to him, was sent for post-mortem at 3-30/4-00 p.m. On the day of occurrence. He denied the suggestion that he had not witnessed the occurrence.
13. Manazar Hussain PW4 corroborated the statement made by Shabhir Hussain insofar as it pertained to the actual occurrence. The facts admitted by Shabhir Hussain about the murder of Lal Khan brother of Muhammad Khan (accused) were also admitted by him. While admitting that some of the shopkeepers were present at the time of occurrence he gave their names as well. He stated that after having run from the spot for escape he had gone to his house and informed his relatives about the murder of Azhar Hussain and then returned to the place of occurrence. Like PW3 he also admitted his relationship with other P.Ws, but denied the suggestion that he had made a false statement.
Both the P.Ws, admitted that there was a Police Post near the place of occurrence which was headed by a Head Constable. They failed to explain as to why the occurrence had not been reported at the Police Post.
14. Arshad Hussain Shah, Inspector who had arrested the appellant on 22-7-85 and had taken into possession gun. P.1, recovered at his instance on 1-8-85 appeared as PWS. He stated that he had arrested Bashir (appellant) for being a proclaimed offender. He admitted that fie did not have warrants of arrest of Bashir, in his possession. According to him, Bashir was already under-arrest in some other case registered at Police Station Ferozewala, District Sheikhupura. While admitting that the wife and mother of Bashir had filed a writ petition against him, he explained that the writ petition had been dismissed as Bashir was not found detained at the Police Station.
15. Ch. Mukhtar Ahmad, Inspector, who had arrested Amanat Ali, Ahmad Din, Nadir Ali and Abdul Majid appeared as PW9 and stated so. During cross-examination he stated that he had interrogated the owners of the Khokhas around the place of occurrence but had not recorded their statements under Section 161 Cr.P.C. He gave out that those persons had not contradicted the prosecution allegations against Bashir Ahmad, Amanat and Muhammad Arif.
16. Muhammad Nawaz, S.H.O, who had arrested Muhammad Arif, appeared as PW10 and stated about that.
17. Nazir Ahmad, A.S.I, who had recorded statement Ex.PB, on the basis of which formal FIR Ex. PB/1 was registered at the Police Station, appeared as PW11. He stated that after recording Ex.PB he had gone to the spot and despatched the dead body for post-mortem, after preparing necessary papers. He stated that he was investigating case FIR No.326 under Section 302/307/452/148/149 PPC at Chowk Fatehpur when the complainant had contacted him. While denying the suggestion that he had sent the dead body for post-mortem of the following day, he asserted that he had despatched the same on the first day at 3 p.m.
18. Rana Abdul Wasay, D.S.P, who had also partly investigated the case, appeared as PW12 and stated that according to his investigation, Ahmad Din and Khadim Hussain were innocent.
19. The appellant during his statement under Section 342 Cr.P.C, denied the prosecution case as a whole and pleaded innocence. He neither adduced evidence in defence nor made statement on oath under Section 340 (2) Cr.P.C.
20. Learned counsel for the appellant after having taken us through the evidence, criticised the impugned judgment and contended that the eye-witnesses do not appear to have witnessed the occurrence; that they were inimical and so no reliance can be placed on their testimony, that wide discrepancies in their statements also show that they had not witnessed the occurrence; & that it is on record in the statement of PW5 that the deceased had died before 8-00 a.m., which in turn shows that it was an unwitnessed occurrence.
Learned counsel contended that since no empty was recovered from the spot, mere recovery of gun at the instance of the appellant, even if believed, cannot lend corroboration to the ocular account. Learned counsel submitted that no reliance can be placed on the evidence of abscondence as the same was not proved in accordance with law. Lastly, learned counsel submitted that no person stated at the trial that he was a witness of the fact that the appellant used to take tea without making payment and that a quarrel had taken place between him and the deceased, and so the prosecution cannot be deemed to have proved the motive for the occurrence. Learned counsel prayed for awarding lesser sentence of imprisonment for life, on that account, if the conviction was not set aside.
21. Learned counsel for the State defended the judgment of the trial Court.
22. The occurrence had taken place at noon in broad day light, in a population area. The question of the occurrence being unwitnessed, therefore, does not arise. The argument that PW3 and PW4 do not appear to have witnessed the occurrence, has not impressed us. They have given plausible explanation for being at the place of occurrence. The statement made by PW4 that the deceased while leaving his hotel had left behind his brother Zafar and Shabhir Hussain PW, does not prove that Shabhir Hussain PW and continued staying at the hotel and had not moved around the place of occurrence which was only at a distance of 7-8 shops.
23. The presence of Manazar Hussain PW stands proved from the fact that he was found to have suffered injuries during the occurrence. Even if it is accepted for the sake of argument that the injuries found on his person had resulted from a fall, that does not advance the case of defence in any manner, because sufferance of injuries by a fall from motor-cycle, again would prove that he was with the deceased at the time of occurrence whether he suffered injuries at the hands of somebody or suffered those as a result of fall from motor-cycle when the deceased was attacked, does not effect the claim of his being with the deceased at the time of occurrence.
24. Although there is evidence on record that the parties had faced each other in the case of murder of Lal Khan brother of Muhammad Khan (acquitted accused) but that, in our view, is not enough to hold that both the eye-witnesses must have made false statements. Learned trial Judge after thorough scrutiny eliminated those portions of the statements of both which could be assumed as exaggeration.
25. The contention of learned counsel for the appellant that the occurrence had not taken place at 12-30 p.m. Is based on the statement made by Muhammad Nawaz (PW6) during cross- examination that they had learnt about the murder at 7-00 a.m. At Police Post Daulatnagar and had found the dead body lying at the spot on reaching there at 8-00 a.m.
It is obvious that this was a concessional statement because if the Police Officers of the Police Post had come to know about the murder at 7-00 a.m. They would not have failed to register the case.
They could have done so even if no relative was available. Moreover, they could not have taken full one hour to reach the spot which was only at a distance of 1-1/2 furlongs.
The fact of the deceased having been murdered sometimes around 7-00 a.m. Also stands disproved by the testimony of Dr. Muhammad Aslam PW5 who had performed autopsy. According to his opinion a period of about a day had elapsed between death and post-mortem. The post- mortem had been performed at 11-00 a.m. On 12-10-84, which means that the occurrence would have taken place around 11-00 a.m. On 11-10-84. That almost is the case of the prosecution. In the circumstances the statement made by PW6 during cross-examination, instead, of advancing the case of the defence, explains the riddle as to why the complainant had not got the case registered at the Police Post. It appears that officers of the Police Post were not sympathetically inclined towards the complainant side, and were out to have the culprits saved even by making incorrect statements.
26. The contention of learned counsel for the appellant that performance of autopsy on the following day showed that the FIR was not lodged at the time stated by the complainant, is also, not sound, for the reason that it is in evidence that the dead body was sent for post-mortem around 3-00/4-00 p.m. Although the distance of the hospital was only 10-11 miles, but it is known that the post-mortem cannot be performed after sunset. The occurrence had taken place on 11th October, The sunset those days would be around 6-00 p.m. The doctor may not have been available in the evening. Late, performance of post-mortem, in the circumstances of this case does show that the occurrence had not been reported in lime and the dead body had been despatched for post-mortem on the following day.
27. Although it is a fact that the prosecution did not bring on record relevant material to prove the abscondence of the appellant but the fact remains that he had been arrested by an Inspector during the time when he had been declared proclaimed offender. Even if that be not taken note of, there is conclusive evidence that he was arrested after about nine months of the occurrence. There is no explanation as to where he had been all this time?
28. The ocular account finds corroboration not only from the medical evidence but also from disappearance of the accused for such a long time, from the scene of occurrence.
In the circumstances, we have no doubt that the prosecution has succeeded in proving the case against the appellant. His conviction under Section 302 PPC is, therefore, maintained.
29. We however, find force in the argument of learned counsel for the appellant that the prosecution had failed to prove the alleged motive conclusively. In fact, none of the witnesses stated with any amount emphasis that he was himself a witness of the fact that the appellant used to go to the tea stall of the deceased and take lea without making payment or that a quarrel had taken place amongst them due to that. We doubt that in view of the previous history amongst them, the appellant could have been visiting the tea stall of the deceased and taking tea there without making payment.
That being so, a case for awarding lesser sentence of imprisonment for life stands made out. The sentence of death awarded to the appellant is, therefore, not confirmed. The same is altered to imprisonment for life. The sentence of fine is, however, maintained. He shall also be given benefit of the provisions of Sec. 382- B Cr.P.C.