' MIAN ABDUL KHALIQ, J.---Muhammad Yaqoob (36 years), Dilbar Hussain alias Hidayatullah (48 years) and Muhammad Yousaf (33 years) sons of Jalal Din were tried for the murder of Muhammad Khan and for making murderous assault on P.W.6 Bashir Ahmad and the learned Additional Sessions Judge, Bahawalnagar vide his judgment, dated 16-2-1991 convicted and sentenced them as under:--- {{TABLE}} Under section 302/34. P.P.C, Muhammad Yaqoob, appellantSentenced to death and a fine of Rs.10,000, in default whereof to undergo R.I. for 3 years. The tine if realized, half of it was ordered to be paid to the legal heirs of the deceased.
DilbarHussain and Muhammad Yousaf, appellants.Life imprisonment each and a fine of Rs.10,000 each, in default whereof to suffer 3 years' R.I. each. The fine if recovered, 50 per cent. thereof was ordered to be given to the legal heirs of the deceased.
Under section 307/34, P.P.C.
Dilbar Hussain, appellant.10 years' R.I. and a fine of Rs.5,000, in default whereof to suffer R.I. for 2 years. The fine, if realized, half of it was ordered to be paid to injured P.W.6 Beshir Ahmad.
Muhammad Yaqoob and Muhammad Yousaf, appellants.5 years' R.I. each and a fine of Rs.2,000 each, in default whereof to undergo R.I. for one year each.
' Benefit of section 382-B, Cr.P.C. Was also extended to them. They have appealed against their sentence. Murder Reference is also before us for confirmation of death sentence. The appeal and the Murder Reference both shall be disposed of by this judgment.
2. Briefly the prosecution case is that P.W.7 Muhammad Munir on 7-5-1990 at 7-15 p.m. Lodged F.I.R.
Exh.P.F. At Police Station Dharanwala, District Bahawalnagar situated at a distance of 13 kilometres from the place of occurrence (Chak No,202/Murad Sharqi) which was recorded by P.W.12 Khalid Masood Nasir, S.I./S.H.O. To the effect that the complainant alongwith Shabbir Hussain and Muhammad Afzal, P.Ws. (given up) were present in their land situated in Chak No,202/Murad Sharqi for harvesting the wheat crop. Muhammad Khan deceased, father of the complainant, was watering the Jawar crop nearby. At about 12-30 p.m. (noon time), Muhammad Yaqoob armed with gun .12 bore, Dilbar Hussain alias Hidayatullah armed with rifle and Muhammad Yousaf armed with Sota, sons of Jalal Din, residents of Chak No,202/Murad reached and raised Lalkara that they would take revenge of the murder of their brother Muhammad Anwar. Muhammad Yaqoob appellant fired straight with his gun on deceased Muhammad Khan, which hit on his back, who fell down. He fired another shot and the pellets of the same had hit the deceased and P.W.6 Bashir Ahmad.
Muhammad Yousaf appellant started giving Sota blows to the deceased. Dilbar Hussain alias Hidayatullah appellant fired straight towards the complainant party which had hit on the right leg of Shabbir Ahmad P.W. Who fell down. The appellants also fired at the P.Ws., but luckily they escaped. The appellants while brandishing their arms and raising Lalkaras went towards their Dera.
The deceased succumbed to his injuries at the spot. Leaving behind the dead body and P.W.6 Bashir Ahmad at the spot under the guard of Shabbir Hussain and Muhammad Afzal P.Ws. (given up), the complainant alongwith Muhammad Hanif reached the police station. As there was no proper conveyance available to him, he could not lodge report immediately. The appellants after making mutual consultations had injured P.W.6 Bashir Ahmad and murdered Muhammad Khan.
The occurrence was witnessed by the complainat himself, Shabbir Hussain and Muhammad Afzal P.Ws. (given up).
3. P.W.12 Khalid Masood Nasir, S.I./S.H.O. After drafting F.I.R. Exh.PF reached the spot in the late hours, therefore, he inspected the place of occurrence on the next day. He prepared injury statement of injured P.W.6 Bashir Ahmad. He also prepared inquest report Exh.P.E. And despatched the dead body to the mortuary. He recorded statements of the P.Ws. He had directed Muhammad Arshad constable to guard the place of occurrence and on the following morning he inspected the spot, secured blood-stained earth from the place where P.W.6 Bashir Ahmad was injured vide memo.
Exh.PJ and made it into a sealed parcel. He also secured blood-stained earth from the place of murder of Muhammad Khan deceased and made it into a sealed parcel vide memo. Exh.P.H. He also took into possession three empties P.4/13 vide memo. Exh.P.K. He arrested appellants Dilbar Hussain and Muhammad Yousaf on 25-5-1990 and on 2-6-1990 Dilbar Hussain appellant led to the recovery of rifle P.5 from his house and an empty from its barrel was secured vide memo. Exh.P.L.
Muhammad Yousaf appellant on the same day led to the recovery of Sota P.6 from his house, which was secured by P.W.12 vide memo. Exh.P.M. He searched for Muhammad Yaqoob appellant who was absconding and on 18-6-1990 he got a proclamation issued from the Court of Magistrate.
He had directed Munawar Hussain, A.S.I. (P.W.11) to apprehend Muhammad Yaqoob, who was arrested on 20-6-1990 and led to the recovery of a gun P.7 from his house, which was secured by P.W.11 vide memo. Exh.P.N. And a sealed parcel was prepared. All the above-cited memos. Were attested by P.W.9 Muhammad Hanif and Din Muhammad (not produced). The crime empties recovered from the spot were sent to the Fire Arm Expert and according to the report, the gun recovered at the instance of Muhammad Yaqoob appellant had not matched with the empties, but the -rifle recovered on the pointation of Dilbar Hussain appellant was not sent to the Expert for opinion. Sota P.6 recovered at the instance of Muhammad Yousaf appellant was not bloodstained.
After completion of the investigation the appellants were challaned and sent up for trial. They were charged under sections 302/34 and 307/34, P.P.C. To which they denied and claimed trial.
4. The prosecution examined 12 P.Ws. In all to prove its case. Its case rests on motive, ocular account, medical evidence and the recoveries. The evidence of motive was furnished by P.W.6 Bashir Ahmad and P.W.7 Muhammad Munir, who had also furnished the ocular account. P.W.1 Dr. Muhammad Aslam Tariq and P.W 3 Dr. Muhammad Khalid Chaudhry furnished medical aspect of the case. P.W.9, P.W.11 and P.W.12 stated about the recoveries.
5. Dr. Muhammad Aslam Tariq (P.W.1) on 7-5-1990 at 10-30 p.m. Medically examined P.W.6 Bashir Ahmad and found the following injuries on his person:---
(1) An abrasion about 2 c.m. In length on the outer side of the left upper arm and vertically in direction.
(2) A massive crushing injury that crushed the skin subcutaneous tissue, muscles into pieces, bones into pieces (some pieces of bones are missing), blood vessels and nerves etc. Of the upper part of the right lower leg, leaving only a flap of skin and small pieces of muscles intact on the posterior surface of the right lower leg. The said wound of the right lower leg contains a lot of dark and clotted blood alongwith small pieces of Shalwar. The wound is stained with dirt. Moreover, the clothes corresponding the wound is torn (multiple holes present) and blood-stained.
(3) An abrasion about 2 c.m. In length on the dorsum of the little toe of the left foot.
' In his opinion, injuries Nos. 1 and 3 were simple in nature and with blunt weapon and injury No,2 was declared as grievous in nature with fire-arm.
' Dr. Muhammad Khalid Chaudhry (P.W.3) on 8-5-1990 at about 11-30 p.m. Conducted autopsy on the dead body of Muhammad Khan and found the following injuries on his person:---
(1) There is a lacerated wound 9 c.m. x 6 c.m. With inverted margins present over the back of right side of the abdomen. There is also burning and tatooing present just at the level of 4th and 5th lumber vertebrae. It is a wound of entrance and no wound of exit present. Corresponding holes present on the back of the Qameez.
(2) There are multiple bruises present on the back.
(3) There is a bruise present on the back of the right thigh 10 c.m. x 5 c.m.
(4) There is a bruise present on the back and medial aspect of the left thigh.
(5) There is a lacerated wound 3 c.m. x 2 c.m. On the medial side of the right leg. There is fracture of the lower 2/3rd of the right tibia. It might be wound of entrance. There is also burning and tatooing present.
(6) Another wound 5 c.m. x 3 c.m. Is present at the medial aspect of right ankle-joint.
' In the opinion of the Doctor, the cause of death was due to haemorrhage and shock on account of injury No,1 which caused the crushing of abdominal aorta and inferior venacava. So injury No,1 was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and were caused by a fire-arm. The time between the injuries and death was instantaneous and between death and post-mortem was within 24 houRs, Exh.P.D. Is the carbon copy of post-mortem report.
6. The appellants when examined under section 342, Cr.P.C. Denied the charge against them and recoveries of incriminating articles made at their instance. Dilbar Hussain alias Hidayatullah and Muhammad Yaqoob appellants stated that they were innocent and relied on the statement of Muhammad Yousaf appellant. They neither produced evidence in defence nor made statements on oath as envisaged under section 340(2), Cr.P.C. Appellant Muhammad Yousaf when examined under section 342, Cr.P.C. In answer to a question "have you anything else to say" stated:--- "In fact Muhammad Munir complainant had a dispute with his father Muhammad Khan deceased regarding the land which the deceased had transferred in the name of his other son Muhammad Siddique and Muhammad Munir complainant wanted that he should be given equal share from the remaining land of the deceased, but the deceased refused to do so, as a result of which a quarrel took place between the complainant and Muhammad Munir and his father Muhammad Khan deceased on the day of occurrence before noon. The mother of the complainant Muhammad Munir confined him inside the room and bolted the door from outside. Muhammad Khan deceased in the meantime went out to the fields alongwith Bashir Ahmad P.W. His servant. At about noon time when Muhammad Munir complainant was released from the room he followed his father while armed with .12 bore gun and went to the fields where Muhammad Khan deceased was present alongwith Bashir Ahmad P.W. He fired at his father and Bashir Ahmad P.W. Intervened to save him' as a result of which both were injured and then Muhammad Munir complainant made another fire and gave beating with the butt of the gun and then disappeared. In the evening people came to know about the occurrence and Muhammad Hanif, son-in-law of Muhammad Khan deceased (P.W.9) alongwith his wife went to the place of occurrence alongwith Habib Councillor and Muhammad Rafique Lamberdar. They sent for the police and police came at the spot at about Esha Wela. Muhammad Munir complainant, in connivance with Khalid Masood Nasir I.O. (P.W.12) after preliminary investigation at the spot falsely involved us in this case in order to, save Muhammad Munir complainant. Muhammad Hanif (P.W.9) two months after the abovementioned murder case of Muhammad Khan deceased on 9-7-1990 in connivance with the same I.O. Got another murder case F.I.R. No,95/90 registered against Mukhtar Ahmad, our real brother Khadim Hussain and Abid Hussain, real sons of Dilbar Hussain, my co-accused which was later on during the investigation proved to be false and as a result of which all the accused in that case were discharged, but as P.W.12 Khalid Masood Nasir, S.I. Had already challaned us before his transfer from the police station, therefore, nobody considered our defence version."
' He further stated that they were all innocent. He also made statement on oath as D.W.1 and had stated that he and his co-accused had nGt murdered Muhammad Khan deceased. They were innocent and complainant Muhammad Munir (P.W.7) and Muhammad Hanif (P.W.9) had got registered this false case against them with the connivance of the police in order to save Muhammad Munir complainant himself. He further stated that in fact Muhammad Khan deceased was murdered by his son Muhammad Munir complainant. They had no enmity with Muhammad Khan deceased and P.W.6 Bashir Ahmad. The plea raised by the accused is not substantiated from the evidence on record and the circumstances appearing in the case.
7. It was argued by the learned counsel for the appellants that the prosecution had failed to establish its case and the witnesses examined by it were interested and the motive also does not stand proved.
8. Muhammad Munir (P.W.7) complainant was the son of the deceased, while Bashir Ahmad (P.W.6) was their servant. P.Ws.6 and 7 have unanimously stated that on the day of occurrence at the relevant time appellants Muhammad Yaqoob armed with .12 bore gun, Dilbar Hussain armed with rifle and Muhammad Yousaf armed with Sota reached the place of occurrence and raised Lalkara that they would take revenge of the murder of their brother Muhammad Anwar. Muhammad Yaqoob appellant fired with his gun, which hit Muhammad Khan deceased on his back, who fell on the ground and Muhammad Yaqoob then fired second shot, which hit on the legs of Muhammad Khan deceased. P.W.6 also received injuries by the fire. Then thereafter Muhammad Yousaf appellant started inflicting Sota blows to Muhammad Khan deceased. After that Dilbar Hussain appellant fired with his rifle which hit on the right leg of P.W.6 Bashir Ahmad. At that time the P.Ws.
Reached the place of occurrence and the appellants fled away.
9. No doubt P.W.7 Muhammad Munir is the son of the deceased and Muhammad Anwar, brother of the accused was murdered about 7 years ago and in the said case he alongwith his brother Shabbir was challaned who was convicted and sentenced to imprisonment for life, whereas P.W.7 was acquitted and on appeal the sentence of Shabbir was reduced, who was released one year earlier to the present occurrence. P.W.6 stated during cross-examination that the accused had no enmity with him. P.W.6 was injured during the occurrence and his presence at the spot is proved on record. The Court has to see whether P.W.6 is a witness of truth or not. He had no enmity with the accused/appellants. He was injured during the occurrence and was medically examined.
10. P.Ws. 6 and 7 stood the test of cross-examination. No doubt the brother of the appellant Muhammad Anwar was murdered about 7 years ago and in the said case the complainant (P.W.7) alongwith his brother was challaned, but was acquitted. The accused had the motive to kill Muhammad Khan, as he was father of the accused who had done to death their brother Muhammad Anwar and as the deceased was the head of the family, the appellant in order to take revenge preferred to murder him. Learned counsel also urged before us that P.W.7 Muhammad Munir in spite of the fact that he was present at the spot, had not intervened or tried to rescue his father and P.W.6 Bahsir Ahmad. It is pertinent to mention here that the appellants were armed with awful weapons i,e. .12 bore gun, rifle and Dang and P.W.7 and other P.Ws. Preferred to save themselves while standing away and also not to rescue the deceased. It was also urged vehemently before us that Muhammad Anwar, brother of the appellants was done to death about?
Years earlier to the present occurrence, while the appellants, the deceased and P.W.7 were residents of the same village, no untoward incident had happened during the intervening period. It is not necessary that the accused should take revenge immediately and there are cases in which the appellants waited for years to take revenge. The ocular testimony furnished on record by the statements of P.W.1 and P.W.3 is in consonance with the ocular testimony furnished by the statements of P.W.6 and P.W.7. No doubt the recovery of incriminating articles at the instance of the appellants and the recovery of empties at the spot are not wedded with the rifle and the report of the Forensic Science Laboratory was not positive i,e. The recovery of gun at the instance of Muhammad Yaqoob appellant had not matched with the three empties P.4/1-3. The recovery is only a corroborative piece of evidence. It was lastly argued on behalf of the defence counsel that there is inordinate delay in lodging the F.I.R. As the same was recorded after preliminary investigation and deliberations. The occurrence took place at 12-30 p.m. On 7-5-1990 and the F.I.R.
Exh.P.F. Was lodged at 7-15 p.m. At the police station. The distance between the police station and the place of occurrence is 13 kilometres. P.W.7 had stated in Exh.P.F. That there was no suitable arrangement of conveyance, therefore, he could not lodge the report earlier and at the trial he had stated that he searched for a trolly or motorcycle to proceed to the police station, but finding no vehicle he went to Pacca road on foot for going to the police station. The said Pacca road is at a distance of about one mile from his Chak. From the Pacca road he boarded in a bus and reached Dharanwala Police Station where he lodged F.I.R. Exh.P.F. P.W.7 has given plausible explanation of delay in lodging the F.I.R. And nothing was brought on record by the defence that the same was lodged after preliminary investigation and deliberations.
11. F.I.R. Exh.P.F. Contains the names of the witnesses, the accused/appellants, the weapons carried by them and the role played by each of the appellants as well as the manner in which the occurrence took place, all are given in it. The motive behind the occurrence has been proved on record.
' The ocular testimony furnished on record by the statements of P.Ws. 6 and 7 is in consonance with the medical evidence furnished by the statements of P.Ws. 1 and 3 and excepting minor discrepancies here and there, the learned counsel appearing for the appellants has not been able to point out material discrepancies or dishonest improvements in the instatements of P.Ws.6 and 7.
The statement of P.W.7 cannot be brushed aside on account of his being son of the deceased when his statement is corroborated by an injured witness i,e. P.W.6 Bashir Ahmad.
12. For the foregoing reasons we are of the view that the prosecution had succeeded in establishing its case beyond any shadow of doubt against the appellants. No exception can be taken to the impugned judgment. Resultantly the appeal fails and is dismissed. The death sentence of Muhammad Yaqoob is confirmed.