SARDAR MUHAMMAD DOGAR, J.-Javed (27), his father Rehmat Khan (55), his paternal uncles Muhammad Azam (40), Lal Khan (43) and Ahmad Khan (45) were tried by the Addl. Sessions Judge, Gujrat, for having murdered Shabhir Hussain on 18-5-88 at 8-30 a.m. In the fields near the house of the complainant in village Mamzapur, at a distance of 7 miles from Police Station Sarai Alamgir, district Gujrat.
Vide judgment dated 11-7-89, Javed was convicted under Section 302/149 PPC and sentenced to death plus to pay a fine of Rs. 10,000/- in default whereof to undergo S.I. For 2 years. Half of the fine, on recovery, was directed to be paid as compensation to the heirs of the deceased. The others were acquitted of the charge under Section 302 PPC. All of them, including Javed, were held guilty under Section 148 PPC, convicted accordingly and sentenced to undergo R.I. For 3 years each, plus to pay a fine of Rs. 5, 000/- each in default whereof to undergo S.I. For one year each. The fine on this count, on recovery, was also directed to be paid as compensation to the legal heirs of the deceased.
2. The convicts have filed appeal. Learned trial Judge has made a reference for confirmation of death sentence, while the complainant has filed a revision petition, wherein prayer has been made for enhancement of sentence of fine, awarded to Javed. Prayer has also been made for enhancing the sentence of other four to death. As all the matters have arisen out of the same judgment, they are being disposed of together.
3. FIR Ex. PC/1 was registered at the Police Station at 10-40 a.m. On 18- 5-88 by Muhammad Irshad Ullah, ASI PW11 on receipt of statement Ex.PC of Mirza Ehsan Beg PW4, recorded by Muhammad Ashraf, Inspector/SHO PW10 on the same day at Qasba Sarai Alamgir, at 10-30 a.m.
According to FIR the complainant accompanied by Shabhir Hussain his cousin & Behnoi and Muhammad Shafi father of the deceased, had gone to say Eid prayers. When they came out of the mosque at 8-00 a.m. Javed, Rehmat Khan, Azam, Lal Khan and Ahmad Khan (appellants) who had also come out of the mosque after saying prayers, quarrelled with them on account of the election grievance existing between them. The people around there got them separated. They went home.
At about 8-30 a.m. They heard the noise outside their house. Shabhir Hussain went out empty handed followed by his father Muhammad Sharif and the complainant. They saw Javed and Muhammad Azam armed with guns, Ahmad Khan armed with a hatchet, Lal Khan and Rehmat Khan armed with sotas, standing in the field of Wilayat Khan abusing them. Rehmat Khan and Azam gave a lalkara that Shabhir Hussain be taught a lesson for having not voted for them, whereupon Javed fired a shot from his gun which struck Shabhir Hussain on the front of neck, slightly leftwards. He fell down and died. The accused ran to their houses raising lalkaras.
4. For motive for the occurrence, it is stated therein that Rehmat Khan had contested Local Bodies elections. The complainant party had not voted for him. He had lost the election, for which, he was feeling aggrieved.
5. Muhammad Ashraf, Inspector/SHO after despatching statement Ex. PC to the Police Station for registration of case, reached the spot and despatched the dead body for post-mortem examination after preparing injury statement Ex. PG and inquest report Ex. PH. He collected bloodstained earth also from there vide memo Ex. PE and recorded statements of the PWs.
Javed appellant was arrested by Mahmud Khan, S.I. On 26-5-88. Gun PI got recovered by him on the same day from his house, was taken into possession vide memo Ex. PB.
The other four accused were arrested by Muhammad Ashraf, SHO PW 10. Challan was submitted to Court by the S.H.O, after completion of necessary investigation.
6. Statements of eleven P.Ws, were recorded at the trial.
Dr. Zafar Iqbal Gondal, who had performed autopsy at 2-30 p.m. On 18-5-88, appeared as PW5. He had noted a firearm entry wound 6-1/2 cm x 6 cm on the base of neck including front and left side.
On wad and 11 metallic foreign bodies were recovered from the wound. The blood vessels on the front and left side of the neck were found perforated. Pharynx and oesophaghus were found damaged. Stomach contained only fluid.
Death was opined to have occurred immediately due to the firearm injury. Time between death and postmortem was opined to be 6 hours.
7. Ocular account was deposed to by Mirza Ehsan Beg PW4 and Nazeer Hussain PW6.
Mirza Ehsan Beg while repeating the facts given by him in the FIR, made an improvement, in that, he stated that all the accused had raised a lalkara that Shabhir Hussain be taught a lesson for having not voted for them, although in the FIR that part is alleged against Azam Khan and Rehmat Khan only.
During cross-examination he admitted that his father and Muhammad Shafi PW father of the deceased were uterine brothers. He also admitted that Javed appellant Was also married to a sister of the deceased. He accepted the suggestion that his father who had lived in England had died and he was receiving his gratuity from the British Government, but denied the suggestion that the same was in plenty. While admitting that Wilayat Khan was his distant relative, he expressed ignorance whether Rehmat Khan had ever got a case of theft registered against him. He stated that some villagers from the other Patti had instituted a suit against Rehmat Khan and his relatives for having taken possession of the whole Shamlat land and of the said suit having been dismissed.
While admitting that Manzur Khan PW was his maternal uncle, he explained that father of Manzur Khan was real maternal uncle of his mother. The suggestion that Muhammad Shafi PW had abducted Mst. Janat Bibi and a case of abduction was registered against him, was denied by him.
He also denied the suggestion that Sardar Khan uncle of Rehmat Khan had appeared against him as PW (Muhammad Shafi) and he was convicted and sentenced to R.I. For 6 months. According him the Nikah of his cousin Mst. Fahmida was performed with Javed appellant on 10-4-87 while the elections had been held in November, 1987. He denied the suggestion that he had been caught by Javed appellant while being in a compromising position with one Mst. Musarrat Bibi and that the matter had been reported to the Punchayat which had ruled that he should perform Nikah with Mst. Musarrat. He stated that Mst. Fahmida wife of Javed appellant was in the house of her father Muhammad Shafi on the day of occurrence. According to him the deceased was fired at by Javed appellant from a distance of 5 to 6 feet. The suggestion that he was aggrieved against Javed on account of his having reported the matter of his illicit connections with Mst. Musarrat Bibi to the Punchayat and that he had grappled with Javed appellant on the day of occurrence when the latter was going to say fateha of his elders in the graveyard, while being armed with a gun and accompanied by the deceased armed with a pistol, during which the gun had gone off accidently & hit Shabhir Hussain deceased, was denied by him. The suggestion that he had taken initiative and gone to the Police Station and lodged report against the accused, was also denied by him.
8. Nazir Hussain brother of the deceased while appearing as PW6 corroborated the statement made by PW4, insofar as it pertained to the actual occurrence. He did not corroborate the statement of PW4 about the incident which had taken place amongst the parties after they had come out of the mosque after saying Eid prayers. Actually, he stated that he had failed to perform the prayers as the Eid prayers had already been performed when he had reached there. He also claimed to have witnessed the collection of bloodstained earth from the spot. Like PW4 he also denied the suggestion during cross-examination that his father had abducted Mst. Janat Bibi and was convicted for that and sentenced to undergo R.I. For 6 months, and that an uncle of Rehmat Khan accused had appeared as a PW against him. He did not deny the suggestion that a quarrel had taken place between him and a first cousin of Azam Khan accused over the cattle and he had reported the matter to the Police. However, he added that he had not pursued the matter. The suggestion put to PW4 about his having been caught by Javed appellant, while committing rape with Mst. Musarrat Bibi and of the same fact having been reported to the Punchayat, was also put to him, which he denied. While admitting that Javed appellant was married to his sister, he gave out that she was living in their house since about a month before the occurrence on account of strained relations that, resulted due to election dispute. He admitted that Mirza Ehsan Beg PW4 was engaged to his sister. He denied the suggestion that they were living with Mirza Ehsan Beg as he was closer to them as compared to Javed appellant. He gave out that the suits thrice filed by the villagers against Rehmat Khan and his relatives for having taken possession of Shamlat Deh, were dismissed. In answer to another question he stated that he had heard the alarm from a distance of 400 yards, although the persons making noise were not visible from his house. However, he claimed that he could distinguish the voices of persons making the noise. He denied that he was present when the incident of quarrel had happened between complainant & the appellants outside+he mosque after the Eid prayers had been performed. According to him the graveyard was at a distance of 30-35 karams from the house of Ehsan Beg PW. He denied the suggestion that he had made a false statement for being brother of the deceased.
9. Manzur Hussain who had witnessed the recovery of gun PI at the pointing out of Javed appellant while being in custody of Mahmud Khan, SI, appeared as PW2 and verified that fact. He admitted his relationship with the deceased and Ehsan Beg PW.
10. Mahmud Khan, SI who had arrested Javed appellant and had taken into possession gun PI recovered at his instance, appeared as PW8 and deposed that fact. He denied the suggestion that no gun had been recovered at the pointing out of Javed appellant and he had planted the same.
However, he stated that nobody was present in the house at the time of recovery.
11. Muhammad Ashraf, SHO who had recorded complaint Ex. PC, arrested the appellants other than Javed, and submitted the challan to Court after completion of investigation, appeared as PW10 and deposed those facts. According to him the dead body of Shabhir Hussain was lying at a distance of 30- 32 karams towards the East of his house. While admitting that Azam appellant had given an application against him and the same was marked for enquiry to D. S.P., he denied the suggestion that on account of that grievance he had not recorded the defence of the accused and twisted the prosecution story as desired by the complainant party. He gave out that the application had been submitted against him by Azam appellant two months after he had been bailed out in this case. The suggestion that actually Ehsan Beg P.W. Had attacked Javed appellant who had grappled with him to snatch the gun and that the gun had gone off during the scuffle and the shot had struck Shabhir Hussain as a result of which the later died, was denied by him. The suggestion that he had suppressed the real facts to falsely implicate the accused, was also denied by him. The statements of the remaining P.Ws, are more or less of a formal nature.
12. The appellants during their statements under Section 342 Cr.P.C, denied the prosecution case as a whole and pleaded innocence. None of them admitted the motive set up for the occurrence.
Javed appellant while denying the recovery of gun, stated as follows in answer to the question, 'why this case against you?'
Ehsan Beg PW was found by me in compromising position with Mst. Mussarat Yasmeen in our village two or three days earlier to Eid in .The month of Ramzan. The matter came known to the Punchayat of the village to the annoyance of Ehsan Beg. Ehsan Beg took it to heart and he in collaboration with Shabhir deceased to avenge this insult. On the day of occurrence after saying my Eid prayer I was proceeding towards the village graveyard and to the Mizar of Baba Ji to offer my Fateha prayer. Shabhir Baig deceased armed with pistol and Ehsan Baig with gun armed lying in ambush and they raising a lalkara attacked upon me. I in order to save myself grappled with Ehsan Baig who was holding a loaded gun and during the struggle to snatch the . Same the gun went off. The deceased Shabhir Baig who was standing nearby was hit. Though I was married to the sister of Shabhir Baig still Ehsan Baig was and close in blood and relation to Muhammad Shafi and Mohammad Nazir Baig PW therefore they had planned a story to involve me and my relatives. I am innocent. I had no weapon of offence with me at the time of occurrence.
Although, initially he opted to adduce evidence in defence yet later declined to do so. None of the appellants including Javed, made statement on oath under Section. 340(2) Cr.P.C.
13. We have gone through the evidence with the assistance of learned counsel for the appellants and considered the contentions raised by learned counsel for the parties.
Javed, the only appellant who stands convicted under Section 302 PPC of having murdered the deceased did not deny his presence at the spot. The version he put at the trial, was, that because of the previous animosity, Ehsan Beg PW while armed with a gun accompanied by the deceased armed with a pistol, had intended to launch attack on him and he had grappled with him to snatch the gun, during which the gun had gone off and struck the deceased. He, however, neither adduced any evidence in support of the plea raised by him nor even chose to make statement on oath. None of the members of the Punchayat who had held Ehsan Beg PW guilty of misconduct for having been found in a compromising position with a lady of the village, by Javed appellant, was produced at the trial, in support of the plea, in spite of the fact that he could have easily done so.
He did not state that he had made an attempt and that those persons had refused to do that.
Actually it was not suggested on his behalf during the trial to the Investigating Officer that he had advanced-that plea during the investigation. He did not even claim that his clothes or the clothes of Ehsan Beg PW were torn urging the scuffle that allegedly had taken place between him and Ehsan Beg PW.
14. Apart from all that, the plea even otherwise does not appear to possess any substance for the reason that if Ehsan Beg PW had come out armed with a gun, accompanied by the deceased armed with a pistol to launch attack on Javed appellant, they would not have allowed him (appellant Javed) to come so close to them so that he could indulge in grappling with Ehsan Beg.
Someone of them, particularly Ehsan Beg PW would have certainly fired at him before he could have reached him.
In the circumstances we find no substance in the plea advanced by him. As against that the prosecution placed reliance for his indictment on the statement of Nazir Hussain PW also, apart from that of PW Ehsan Beg.
15. Muhammad Shafi father of the wife of Javed appellant was also alive. In fact he was an eye- witness of the occurrence and was not examined at the trial as un-necessary. Had the case been wholly false, he would not have chosen to get his son-in-law hanged, after having already lost his son. The only animosity which according to the appellants, Ehsan Beg PW had against them, was the alleged incident of his having been found in a compromising position with a lady of the village by Javed appellant, was denied by him. That being so he also cannot be dubbed as inimical witness.
16. The prosecution evidence that it was Javed appellant who had fired at the deceased with a gun, examined in a Juxta-position with the version put forth by Javed that the deceased had died as a result of the gun having accidently gone off, appears to be more probable and nearer the truth.
17. However, we are not impressed regarding certain details of the occurrence deposed by the PWs.
In that, the incident which according to- the complainant had taken place amongst the parties, just outside the mosque was not corroborated by PW6. We are of the view that if such an incident had taken place early in the morning, the deceased and the PWs would not have come out empty handed after hearing the abuses being hurled by the appellants. Liven if they had come out innocently, they would have run back to their house after seeing accused fully aimed, either for safety or to lay hands on some weapons for defence.
18. The statement of the doctor that he had found the wads and 11 foreign metallic bodies in the body of the deceased, shows that the shot had entered the body enmass, which in turn is a proof of the fact that the shot was fired from quite a close range. In fact the witnesses also stated that the shot had been fired from a distance of 5 to '6 feet. If all the appellants, as alleged by the eye- witnesses had come prepared to launch attack on the complainants, they would not have kept on waiting to fire a shot till they reached the witnesses so close. Actually as noted in the earlier part of the judgment, the witnesses and the deceased would also not have stayed on waiting for the assailants to reach them and suffer the consequences standing there mute empty-handed.
In the circumstances, we are of the view that the occurrence had not taken place exactly in the manner stated by the eye-witnesses. What appears is, that there was some annoyance between the parties due to which Mst. Fahmida wife of Javed had returned to her parental home & was living there since a month before the occurrence. May be, the annoyance was due to election dispute or something else, and the appellant on the day of occurrence met the deceased, and there something happened as a result of which he was fired at by Javed appellant which resulted in his death. Participation of the remaining appellants, one of whom is father of Javed appellant, while other 3 are his paternal uncles neither appears to be probable nor worth believing. It is worth noticing that no recovery was either effected from anyone of them during the investigation.
Learned trial Judge had also not believed the prosecution version that the other four appellants had shared common intention with Javed for committing the murder of Shabhir (deceased).
19. In the circumstances, we do not consider it safe to believe that the appellants other than Javed, had either participated in the occurrence or had even accompanied him to the spot as members of unlawful assembly. Their convictions and sentences under Sec. 148 PPC, are therefore, set aside & they are acquitted. Consequently the conviction and sentence of Javed appellant under section 348 PPC also cannot be maintained on that count. The same is set aside.
20. However, we have absolutely no doubt that it was Javed who had fired at the deceased which resulted in his death. His conviction under section 302 PPC is, therefore, maintained.
As the prosecution has not taken the Court into confidence about the origin of the fight, we do not consider it safe to confirm the sentence of death awarded to Javed appellant. The same is, therefore, altered to imprisonment for life.
21. As no separate order for awarding compensation to the heirs of the deceased was passed by learned trial Judge, we issued notice to learned counsel for the appellants which he had accepted.
Consequently we direct that Javed. Appellant shall pay a sum of Rs. 10, 000/- (Rs. Ten thousand only) as compensation u/s 544-A Cr.P.C, to the heirs of the deceased. The said amount shall be recovered as arrears of land revenue. In default of payment of compensation he shall suffer S.I. For six- months. The sentence of fine is also maintained. However, the whole of fine, on recovery, also is directed to be paid as compensation to the heirs of the deceased. The appellant shall be given benefit of ,the provisions of Section 382-B Cr.P.C, as well.-
22. As the appellants other than Javed, have been acquitted of the charges, the question of enhancement of their sentences does not arise. Since a specific order for payment of Rs. 10,000/- as compensation by Javed appellant to the heirs of the deceased, has been passed, there remains no justification for enhancement of sentence of fine. The revision petition, which is still at motion stage, therefore, stands dismissed.