JUDGMENT CH. GHULAM SARWAR, J.- Allah Ditta, Ghulam Rasool alias Ghulam Muhammad Alias Ghamun and Bashir Ahmad appellants along with Abdul Sattar, Allah Bakhsh, Allah Yar, Hafiz Khuda Bakhsh, Haji Ghulam Qadir and Obaidullah had been tried by the learned Sessions Judge, Vehari under sections 302/148/149 PPC for the murder of Sher Muhammad on 21.5.1987 at about 2.00 p.m.
In the area of Basti Mehran Wali Dakhli, Mauza Fadda, P.S. City Mailsi District Vehari.
2. Vide judgment dated 18.11.1990 Bashir Ahmad, Ghulam Rasool alias. Ghulam Muhammad and Allah Ditta were convicted under section 302/34 PPC and all the three were sentenced to death with a fine of Rs. 5000/- each, in default whereof they were to undergo imprisonment for two years each. Each of the appellants was directed to pay a sum of Rs.5000/-as compensation to the legal heirs of the deceased person as envisaged under section 544-A Cr.P.C. In default of payment of compensation each appellant was to undergo imprisonment for a period of six months. However, all the remaining above named six accused were acquitted of the charge of murder.
2. The appeal filed by the convicts and the Reference made by the learned Sessions Judge for confirmation of death sentences are being disposed of together.
3. F.I.R. Ex. PI in this case was lodged by Bahadur Khan complainant P.W. 7 on the same day at about 3 p.m. At Police Station City Mailsi which was recorded by Mansab Khan S.I. P.W.9.
4. Succinctly stated the case of the prosecution according to the F.I.R, as stated by Bahadur Khan, complainant is that his deceased brother Sher Muhammad and his brothers Khawaja and Ghulam Haider used to cultivate one square of land owned by Ghulam Mustafa Deendar for the last 30 years as tenant. About fifteen years before the alleged occurrence, half a square of land owned by one Fazal Jahanian was purchased by Allah Bakhsh, Abdul Sattar and Bashir Ahmed accused. It is also stated in the F.I.R that these three accused wanted to eject the complainant and his brothers from the land owned by Ghulam Mustafa Deendar and Wanted to by the same. In this regard a fight took place between the two parties on 8.11. 1985. Both the parties were challaned in cross cases registered against them under sections 325/148 read with Section 149 PPC. These cases were pending adjudication against both the parties at the time of the registration of this case.
Another fact stated in the F.I.R is that Sher Muhammad deceased cultivated wheat in for acres of land owned by Allah Bakhsh, Abdul Sattar and Bashir Ahmed accused as this land was lying vacant. No one objected to the cultivation of wheat by Sher Muhammad at the time of its cultivation of wheat but when. The wheat crop was cut by Sher Muhammad, these three accused claimed that they would harvest the same. This dispute, between the parties was to be decided by Khan Dilawar Khan Khitchi, a respectable of the area.
The complainant further stated that he along with his brother Khawaja, his deceased brother Sher Muhammad and his nephew Sohnay Khan we&t to Khan Dilawar Khan Khitchi aforesaid. The latter was about to leave his village for some other place. He told the complainant and his companions to come to him the following day. When the complainant, his deceased brother Sher Muhammad, his brother Khawaja, and his nephew Sohney Khan were coming back from the village of Khan Dilawar Khan Khitchi to their on village and reached a point a little ahead of Basti Mehran Wali at about 2.00 p.m. Sher Muhammad deceased sat down to urinate, the complainant and his other companions, however continued walking. In the meanwhile Allah Bakhsh appellant armed with a 12 hore shot gun. Bashir Ahmed appellant armed with a 12 bore pistol, Abdul Sattar accused also armed with a 12 hore pistol, Ghulam Muhammad alias Gamun appellant armed with a 12 bore shot gun, Ghulam Qadir, Khuda Bakhsh, Allah Yar, Allah Ditta and Obaid Ullah all armed with sticks came there. All the for accused who were armed with firearms raised lalkaras and fired at Sher Muhammad, deceased with their respective weapons. These shots hit Sher Muhammad on the left side of the back of his chest, left elbow, right elbow and left knee. Sher Muhammad fell on the ground after receiving these injuries. All the five accused mentioned above who were armed with sticks then started giving blows with their respective sticks to Sher Muhammad who had already fallen. Sher Muhammad received injuries on his nose and his left and right legs. Both the legs of Sher Muhammad were fractured as a result of these injuries.
Sher Muhammad succumbed to these injuries at the spot. It is also stated in the F.I.R that all the accused had caused the above injuries to Sher Muhammad deceased in the execution of a pre- meditated plan to kill him. It is also claimed that the occurrence was witnesses by the complainant, Khawaja and Sohney Khan PWs but they could not intervene because of the fear of the accused.
5. Mansab Khan S.I.P.W.9 after recording the F.I.R visited the spot, the same afternoon. He prepared the injury statement Ex.P.C and Inquest report Ex.P.D of the deceased and secured the blood- stained earth from the spot vide recovery memo ex.P.G. It was sent to the Chemical Examiner and the report of the Chemical Examiner is Ex.P.M. Which goes to show that earth was stained with blood, the report of the Serologist Ex.P.P. Was obtained to prove the origin of the blood as that of human. Any empty; P.4 was recovered from the spot vide memo Ex.P.H. Which was sent to Forensic Science Laboratory which wedded with pistol 12 bore recovered vide memo Ex. P.1 from Bashir Ahmad appellant and the report of the Forensic Science Laboratory is Ex.P.O. Bashir Ahmad appellant was arrested on 17.6.1987 and pistol P.5 was recovered from his possession which was secured vide memo Ex. P.1 One live cartridge P.6 was also taken out from it secured through the same recovery memo. Ghulam Rasool appellant was also arrested on the same day and he led to the recovery of 12 bore shot gun P.7 which was seemed vide memo Ex.PJ. It was a licenced gun and its licence P.8 was seemed vide the same recovery memo. Allah Ditta appellant was arrested on the same day and he led to the recovery of blood-stained sota P.9 from his residential quothas which was secured vide memo Ex. P.K. Sota P.9 was made into a sealed parcel being blood-stained and was sent to the Chemical Examiner. The report of the Chemical Examiner P.N. Shows that it was stained with blood and report of the Serologist Ex.P.Q supports this, the rest of the accused were arrested on different dates. After~ 'he investigation except Obaid Ullah accused all were challaned.
6. Dr. Riaz Hussain Khan, Senior Medical Officer, THQ, Hospital, Mailsi P.W.2 did the postmortem examination on the dead body of Sher Muhammad on 21, 5.1987 at 5.30 p.m. And found the following injuries on his person:-
1. A fire arm wound 7 cm x 4 cm on the back and left side of the chest going deep into the chest cavity, directed upwards and to the right, the edges of the wound were burnt and there was blackening a round the wound.
2. A contused wound 6 cm x 1/3 cm on the lower part of the nose cutting the cartilages of the nose.
It was two centimeter deeps.
3. Two fire arms wounds 1 cm x 3/4 cm each, oval in shape on the inner side of the left elbow, the edges were inverted and burnt. Two exit wounds on the back of forearm, near elbow. There was fracture of left ulna bone at the upper part.
4. A fire arm wound 1 cm x 3/4 cm on the 'inner side of right elbow. The edges were inverted and exit wound was on the outer side.
5. A contused wound 3 cm x 1 cm x bone deep on the middle of right calf with a fracture of right tibia and fibula.
6. A contused wound 3 cm x 1 cm x bend deep on the lower and. Front part of right calf with fracture of the right tibia and fibula.
7. A contused wound 3 cm x 1 cm on the inner side of lower part of left calf which was bone deep.
There was fracture of left tibia and fibula.
8. Three fire arm wounds on the back of left knee, the edges were inverted and burnt. There was fracture of left femur bone. Three fire arm exit wounds were on the front.
9. A contused wound 3 cm x 2 cm on the middle of left calf with fracture of left tibia and fibula.
In the opinion of the doctor, the death was caused due to shock and haemorrhage as collective result of injuries No.1 to 9 Injury No. 1, in his opinion, alone was sufficient to cause death in the ordinary course of nature. Injuries No. 1,3,4 and 8 were inflicted by firearm and the rest of the injuries were caused by blunt weapon. Injuries No. 1,3,5 to 9 were grievous in nature. The probable time between injuries and death was about five minutes and the time between death and postmortem examination was about for hours. Ex.P.B is the postmortem report. Ex.P.B/1 and Ex.P.B/2 are the diagrams showing the locale of the injuries.
7. All the accused pleaded not guilty to the charge and claimed the trial.
8. The prosecution in order to substantiate the charge against .The accused examined as many as nine P.Ws, including Dr. Riaz Hussain Khan, P.W.2, the Medical officer; Bahadur Khan P.W.7 and Khawaja P.W-8 as the eye witnesses: Mansab Khan P.W.9 as the Investigating Officer when Ghulam Hussain but in case of inimical evidence, it is this aspect of the ocular evidence which required corroboration, because danger in relying on ocular evidence in such cases is that the witnesses may falsely implicate their enemies. Similary it was held in Shamsherwan Vs. State (1985 SCM R 34) that medical evidence is merely corroborative evidence but conviction cannot be recorded merely on basis of presence of injuries on deadbody without there being any evidence on record that the accused had caused the same.
15. Legal position is settled that in a criminal trial, where it is found that a witness was falsely implicated one accused ordinarily he would not be relied upon with regard to the other co- accused in the same transaction unless his testimony is corroborated by very strong and independent circumstances, regarding each one of the other accused.
16. In the instant case three appellants have been convicted that they were armed with weapons and the crime empties but we find that a crime empty recovered from the spot matched with the pistol of Bashir Ahmad appellant alone who had also a strong motive to kill the deceased. Crime empty P.4 was sent to the Ballistic Science Expert which was fired from pistol P.5 recovered from this appellant and the report is in the positive so this can be considered an independent corroboration connecting this appellant with the commission of the crime.
We do not find any distinct evidence against Ghulam Rasool and Allah Ditta appellants than that of the acquitted accused. Even otherwise sota was recovered from Alib ditta which was sent to the Chemical Examiner for examination after more than one month. In our considered view only Bashir appellant is responsible to kill the deceased. The implication of Ghulam Rasool alias Ghamun and Allah Ditta is also doubtful their case being at par with the acquitted accused. Ghulam Rasool alias Ghamun and Allah Ditta appellants are therefore, acquitted. They shall be released forthwith if not required in any other case.
17. Now the last question to be 'determined in this case is that what punishment should be awarded to Bashir appellant in view of the fact that Sher Muhammad deceased was the person of the type that he was committing excesses as he forcibly took for acres land of the appellant and started cultivating the same without his permission or the permission of his other brothers. The question of reduction of sentence depends upon the circumstances of each case. To determine the very delicate balance between whether family honour and duties overtook the human thoughts and actions and whether the private revenge predominately overtook such thought and action the Judge has to go through the process of rationalization and psychological analysis. It is now a settled proposition of law as laid down in the judgment of the Supreme Court reported as Ghulam Abbas Vs. Mazher Abbas and another (P.L.D. 1991 S.C. 1059) that wherever private revenge forms and element in the crime the same by itself should not prevent the court from doing justice in matter of sentence.
18. In view of the facts and circumstances of this case and taking into view the principles of Quran and Sunnah that justice should be administered with mercy so we reduce the sentence of Bashir Ahmad appellant from death to imprisonment for life. However, his other sentences regarding fine and compensation to be paid to the legal heirs are maintained. The death sentences are however, not confirmed and the Murder reference is answered accordingly.