' SH. IJAZ NISAR, J.---Muhammad Ashraf (55), his brother Zulfiqar (25), their father All Hussain (80), Bashir Ahmad (35) son of Muhammad Sharif and Muhammad Sharif (80) son of Muhammad Khan were charged with the murders of Muhammad Ashraf, Sultan and Ghulam Rasool deceased. All Hussain died during the trial while Muhammad Sharif father of Bashir Ahmad was acquitted.
Muhammad Ashraf, Zulfiqar and Bashir Ahmad aforementioned were convicted by the learned Additional Sessions Judge, Gujranwala on 23-9-1990 under section 302/34, P.P.C. And were sentenced to death on three counts with a fine of Rs,10,000 each or in default to undergo 2 years'
R.I. They were further ordered to pay a compensation of Rs,10,000 to the heirs of each deceased or in default to undergo 6 months' R.I.
2. Challenging their conviction and sentences, the convicted accused have filed appeal while the learned trial Court has made a reference under section 374, Cr:P.C. For the confirmation of the death sentences awarded to them.
3. Ghulam Rasool deceased was brother of Faiz Ahmad complainant (P.W.12) while Sultan deceased was nephew of the complainant. Muhammad Ashraf deceased was son of the complainant's sister. Muhammad Ashraf and Zulfiqar accused are sons of Ali Hussain accused.
Muhammad Sharif accused (since acquitted) is brother-in-law of Ali Hussain accused. Bashir Ahmad appellant is the son of Muhammad Sharif accused (since acquitted).
4. ' The prosecution case is that the field where the occurrence had taken place was jointly owned by the complainant and the accused party. However, the complainant party was in possession thereof. The accused had been demanding the possession to which the complainant party was not agreeable. Two days before the occurrence, the accused had come to the Dera of the complainant party for the same purpose, but the latter offered to refer the matter to a Punchayat.
The accused declined the said offer and threatened to get the possession by force.
5. On 19-10-1986 at about 10 a.m., Faiz Ahmad complainant P.W.12, Ahmad P.W.13, Ihsan Ullah and Muhammad Ashiq (not produced) were grazing their cattle while Muhammad Ashraf, Sultan and Ghulam Rasool deceased were ploughing their 'field. All the five accused came there. Bashir Ahmad, All Hussain and Zulfiqar had guns, Muhammad Ashraf was armed with a rifle while Muhammad Sharif carried a Dang. Ali Hussain shouted a Lalkara whereupon Bashir Ahmad fired a shot hitting Muhammad Ashraf deceased in the chest and neck. Zulfiqar fired a shot hitting Sultan on his buttocks. Ali Hussain fired a shot hitting Ghulam Rasool deceased on his hand and right wrist. Muhammad Ashraf fired from his rifle hitting Sultan deceased on his ear. Muhammad Sharif accused gave a Dang blow to Ghulam Rasool on his head and arms. Thereafter, the accused left the spot with their respective weapons. Muhammad Ashraf, Sultan and Ghulam Rasool deceased succumbed to the injuries on the spot. Faiz Ahmad left for Police Station, Vanike Tarar which was at a distance of 7 miles from the spot and lodged report Exh.PT on the same day at 11.05 a.m.
6. The occurrence was witnessed by Faiz Ahmad P.W.12, Ahmad P.W.13, Ehsan and Muhammad Ashiq (not produced).
7. After recording the F.I.R. Muhammad Yasin Inspector P.W. 15 reached the spot and collected blood-stained earth from three different places where the dead bodies of the three deceased were lying. He prepared the injury statements and inquest reports of the deceased. He collected 7 empties of .12 bore and 2 empties of 7 mm from different places near the spot and sealed them into parcels.
8. He arrested the accused except Bashir Ahmad and Zulfiaqr on 11-11-1986. The latter were arrested on 19-11-1986. On 23-11-1986, Bashir Ahmad led to the recovery of gun P.13 vide memo Exh.PO. On the same day, Zulfiqar got recovered gun P.14 vide memo Exh.PP. Muhammad Ashraf got recovered 7 mm rifle P.15 on 16-11-1986 vide memo PQ.
' Muhammad Yaseen Inspector also took into possession copy of the Khasra Girdawari Exh.PU produced before him by Faiz Ahmad P.W. The crime empties of the firearms .Were sent to the Forensic Science Laboratory and vide report Exh.PLL (page 37 of the paper book), the crime empties of .12 bore were found to have been fired from the guns allegedly recovered from All Hassan, Bashir and Zulfiqar appellants. However, he expressed inability to state whether the crime empties of rifle had been fired from the rifle P.15 allegedly recovered from Muhammad Ashraf appellant.
9. Dr. Capt. Muhammad Arif P.W.S conducted the post-mortem examination on the dead body of Sultan Ahmad deceased and found the following injuries thereon:---
(1) Firearm wound of inlet 4 c.m. x 2 c.m. With irregular blackened, tattooed, scorched and inverted margins on the left ear with the firearm wound of outlet 7 c.m. x 4 c.m. On the right side of head posterior part 4-1/2 c.m. Behind the right ear with everted margins only.
(2) Abrasion 3/4 c.m. x 1/2 c.m. On front chest left part 6 c.m. Below and outer to the left nipple.
(3) Contusion 3 c.m. x 1-1/4 c.m. On left cheek lower part.
(4) 6 firearm wounds of inlet in an area of 10 c.m. x 8 c.m. On left buttock upper part each about 3/4 c.m. x 3/4 c.m. In diameter with inverted and tattooed margins only without any blackening or scorching.
(5) Firearm wound of inlet with inverted and tattooed margins only 1 c.m. x 1 c.m. In diameter on right buttock upper and inner part 3 c.m. Away from the mid-rib.
(6) Firearm wound of inlet 1 c.m. x 1 c.m. In diameter with inverted and tattooed margins only on the outer part left buttock with the firearm wound of outlet 1-1/2 c.m. x 1-1/2 c.m. x 2 c.m. Away from the wound of inlet at the same level with everted margins only. The track was traced subcutaneously from the wound of inlet to the wound of outlet.
(7) Firearm wound of outlet with everted margins 1 c.m. x 1 c.m. On front abdomen left iliac fossa near anterior superior iliac spine.
' There was fracture of the left ear region bones, temporal bones, left frontal bone on both sides, right temporal bone, oxpital bone were found to be fractured. Two metalic foreign bodies (pellets) were removed from the injuries small intestines while two pellets were removed from subcutaneous region on front abdomen left iliac fossa large and small intestines loops were injured. A plastic piece was removed from within the skull. All the injuries except injuries Nos.2 and 3 were caused by fire-arms while injuries Nos.2 and 3 were the result of blunt weapon.
10. He also conducted autopsy on the dead body of Muhammad Ashraf deceased and found the following injuries thereon:---
(1) Firearm wound of inlet 1 c.m. x 1 c.m. With inverted and tattooed margins only on front of neck middle part 6 c.m. Above from the supra sternal margin.
(2) Firearm wound of inlet with inverted and tattooed margins only on front of neck middle part 3 c.m. Below from wound No,l.
(3) 5 firearm wounds of inlet with inverted and tattooed margins only in an area of 13 c.m. x 6 c.m.
On front chest right part each about 1 c.m. x 1 c.m. In diameter. 6 c.m. Above from right nipple and 3 c.m. Away from the middle line.
(4) Faint contusion 3 c.m. x 1 c.m. On back chest right part on inferiod scapular angle. Under injury No,3 2nd and 3rd ribs were fractured on the front chest right part, 4th and 7th ribs were fractured on the back right part of the chest. Seven pellets were removed from back chest. Stomach was healthy and full of liquid diet. Small intestines contained liquid digested food. Bladder contained urine. Injury to the right lung was fatal which was caused by firearm. He also conducted post- mortem examination on the dead body of Ghulam Rasool deceased and found the following injuries thereon:---
(1) Lacerated would 3 c.m. x 1/2 c.m. x bone deep on the top head, right part, 1-1/2 c.m. Away from middle line and 8 c.m. Behind the forehead hair line.
(2) A firearm wound of inlet 4 c.m. x 2 c.m. In diameter with inverted tattooed blackened scorched margins on lower part of the sternum just above epigastrium.
(3) Firearm wound inlet with inverted scorched blackened and tattooed margins 1/2 c.m. x 1/2 c.m.
In diameter on sternum lower part 1 c.m. Above and to the left of injury No,2.
(4) 7 firearm wounds of outlet in an area of 5 c.m. x 7 c.m. On right side chest 14 c.m. Below from the right axilla.
(5) 7 firearm wounds of inlet with inverted margins only in an area 7 c.m. x 5 c.m. On inner side of right upper arm middle third each about 3/4 c.m. x 3/4 cm. In diameter with 6 wounds of outlet in an area of 16 c.m. x 6 c.m. On outer part right upper arm middle 3rd each about 11 c.m. x 1 c.m. In diameter with everted margins.
(6) Abrasion 1 cm. x 1/4 c.m. On back right near ulnar border.
(7) Abrasion 1-1/2 c.m. x 1/2 c.m. On back right wrist joint near ulnar border.
' 7th and 8th ribs on right lateral side of chest which were traced to the wound of outlet as under injury No,4 were fractured. A pellet was removed lying subcontaneously on the outer side of right upper arm. Stomach contained liquid diet. Small intestines contained liquid digested food. Bladder contained urine. Death was due to injuries Nos.2 and 3. Injuries Nos.1, 6 and 7 were caused by blunt weapon. Injuries Nos.1 and 5 were grievous while 6 and 7 simple. According to the doctor injuries Nos.4, 5 and 6 of Sultan deceased could have been the result of one shot. Injury No,1 would have been caused from a range of 3 to 4 feet, he stated.
' According to him, injuries Nos.1, 2 and 3 on the person of Muhammad Ashraf deceased could have been the result of single shot and would have been caused from distance of about12 feet. Injuries Nos.2, 3 and 5 on the dead body of Ghulam Rasool could possibly be the result of one shot.
' The accused pleaded not guilty to the charge and denied the prosecution allegations. According to the accused there was no dispute over land between the parties. A river had been flowing in the said land which was in their joint possession.
' According to Ali Husain accused (since dead) the deceased persons had many enemies. They had a dispute with the accused party over the possession of a Khola on which score they were proceeded against. According to him, the deceased were done to death in the small hours of the night and that they had been roped in on account of enmity. He tendered in evidence an attested copy of F.I.R. No,87 Exh.DA dated 5-7-1960 under sections307/147/148/149, P.P.C. PS, Vanike Tarar and copy of F.I.R. No,81 dated 6-8-1979 under sections 307/325, P.P.C. Read with section 13 of the Arms Ordinance, P.S. Vanike Tarar Exh.DB.
' No defence evidence was led by the accused.
' The prosecution case rests on the evidence of Faiz Ahmad P.W.12 and Ahmad P.W.13 who furnished the ocular account. Muhammad Nazir P.W.9 and Muhammad Yasin Inspector P.W.15 proved recoveries of blood-stained earth and crime empties from the spot. Ansar P.W.10, Ashiq Hussain P.W.11 and Muhammad Yasin Inspector P.W.15 proved the recoveries of firearms from the accused.
13. Faiz Ahmad P.W.12 and Ahmad P.W.13 claimed to have seen the occurrence while grazing cattle near the place of occurrence. According to them, the field in which the occurrence had taken place was in their possession and the accused had attempted many a time to get the possession of the same and that both the parties were bound down by the police under. Sections 107/151, Cr.P.C. Two days before the occurrence the accused visited them and demanded possession of the land whereupon they asked to get the matter decided by the brotherhood but they stated that they would get possession by force. Both of them are closely related to each other and the deceased.
Muhammad Nazir P.W.9 proved recoveries of crime empties from the spot. Ansar P.W.10 proved the recovery of gun P.13 at the instance of Bashir Ahmad and Zulfiqar. Ashiq Hussain P.W.11 testified to the recovery of rifle P.15 at the instance of Muhammad Ashraf, gun P.16 by Ali Hussain and Dang P.17 at the instance of Muhammad Sharif accused.
14. Relying upon the ocular testimony, motive and recoveries, the learned trial Court convicted and sentenced Muhammad Ashraf, Zulfiqar and Bashir Ahmad appellants as described above.
Muhammad Sharif was given the benefit of doubt and acquitted. In the opinion of the learned trial Court, being an old aged person of 80 years of age he would have been a liability on his co- accused instead of their helper in committing the crime.
15. It is contended by the learned counsel for the appellants that the eyewitnesses examined by the prosecution were interested against the accused and had a motive to falsely implicate them. The motive does not stand established, no evidence was led to show the exact place of occurrence.
The land in dispute was admittedly jointly owned by the parties and no suit or cause was brought by any of the parties regarding its possession. The prosecution has failed to disclose the exact nature of dispute between the parties. There is no material on record to show as to when and for what reasons they were bound down for keeping the peace and further that the eye-witnesses were disbelieved qua Muhammad Sharif who was also alleged to have taken an active part in the occurrence. The time of occurrence is also disputed. It is stated that the complainant party had many enemies and the occurrence had taken place in the small hours of the morning and was not witnessed by anybody.
16. Khasra No,1353, in which the occurrence in question is said to have taken place, is shown by copy Exh.PU of Khasra Girdawari to be in the cultivating possession of Ghulam Rasool deceased.
Even if it was a joint property, the accused party had no right to forcibly dispossess the complainant party and obtain possession thereof. According to the prosecution, Ghulam Rasool deceased was ploughing the land in question when the accused attacked him and the other deceased persons. The stomach contents of the deceased belie the defence plea that the occurrence had taken place in the small hours of the morning. According to the doctor who conducted the post-mortem examination, Ghulam Rasool deceased might have taken his last meals about 10 minutes before his death. Faiz Ahmad and Ahmad P.Ws., although closely related to the deceased, have given cogent and convincing reasons for their presence at the spot at the relevant time. They were grazing cattle in their land when the occurrence had taken place. The argument that the complainant party had many enemies and the deceased might have been killed by any of them is not convincing. In that case, they would not have allowed them to go scot free and instead falsely implicated- the present appellants. Substitution in such type of cases is a rare phenomena.
17. The matter was reported to the police without any loss of time with all the necessary details.
Acquittal of Muhammad Sharif co-accused will not help the appellants because the principle of Falsus in Uno Falsus in Omnibus is not applicable and the Courts are required to sift grain from the chaff. Muhammad Sharif was given the benefitof doubt because of his old age and acquitted.
18. The recoveries of crime empties from the spot on the occurrence and their matching with the guns of Zulfiqar and Bashir Ahmad recovered subsequently provide good corroboration to the testimony of the eye-witnesses. The recovery witnesses of the weapons of offence have given a consistent account of the manner and mode of recoveries. The medical evidence also corroborates the ocular testimony. The rifle shot fired by Muhammad Sharif appellant on Sultan deceased had caused an inlet wound of 4 c.m. x 2 c.m. With blackening, tattooing, scorching and inverted margins on the left ear. Since the fire was made from a close range with a heavy weapon like rifle on a delicate part of the body like head, the damage was greater than it would have been on any fleshy part of the body. It was an inlet wound of 4 c.m. x 2 c.m. With an outlet 7 c.m. x 4 c.m.
On the left ear.
19. The guns of Zulfiqar and Bashir Ahmad had tallied with the crime empties recovered from the spot although the rifle alleged to have been recovered at the instance of Muhammad Ashraf appellant did not match with the empties of rifle recovered from the spot but this fact alone will not be sufficient to belie his presence at the spot because he led to the recovery of rifle on 16-11-1986 whereas the occurrence in question had taken place on 19-10-1986. He might have produced some other rifle before the police after concealing or disposing of the one used in the occurrence.
20. The motive set up by the prosecution also stands established. Ali Hussain father of Muhammad Ashraf and Zulfiqar appellants admitted that they had a dispute with the complainant party on the possession of a Khola and were proceeded against on that account.
21. Considering all the pros and cons of the case, we are of the opinion that the prosecution has succeeded in proving its case against the appellants beyond all reasonable doubts. They were, therefore, rightly convicted. As regards sentence, we consider Zulfiqar son of All Hussain entitled to some leniency because he might have acted under the influence of his father and elder brother, namely, Muhammad Ashraf appellant. Accordingly, we reduce his sentence from death to imprisonment for life. However, his sentence of fine is maintained. Benefit of section 382-B, Cr.P.C.
Shall be given to him.
22. As regards the sentence of Muhammad Ashraf and Bashir Ahmad appellants, no extenuating circumstances are found in their case, therefore, their conviction and sentences are maintained and the appeal filed by them is dismissed.
' The appeal filed by Zulfiqar Ali appellant is disposed of with the above modification in the sentence.
23. The death sentence of Zulfiqar Ali appellant is not confirmed while that of Muhammad Ashraf and Bashir Ahmad is confirmed.
24. The murder reference is disposed of accordingly.