JUDGMENT ABDUL HAFEEZ CHEEMA, J.- Waris Ali alias Dulli (28) son of Kamal Din Muhammad Khan (22) son of Amanullah, Khurshid (50) son of Ghulam Nabi and Umar Hayat (15) son of Khurshid Ahamd, all Jatt by case, cultivators by profession and residents of Chak No. 73/G.B. Tehsil Jaranwala, District Faisalabad, were tried by learned Additional Sessions Judge, Faisalabad, in case FIR No.286/89 dated 28.6.1989, P.S. Jaranwala, under sections 302/307/34 PPC for the murders of Ghulam Abbas and Muhammad Mushtaq at 5.15 a.m. Of 5.6.1989 within the area of Chak number :73/C.B. Jaranwala.
2. After recording the evidence, examining and evaluating it, the trial court came to the conclusion that the prosecution had established their case beyond reasonable doubt against Muhammad Khan, Waris Ali and Khurshid accused and recorded their conviction under section 302 PPC.
Muhammad Khan and Waris Ali accused were awarded death sentence. They were also fined Rs.
20,000/- each and in default thereof R.I.For two years. They were equally directed to pay compensation of Rs. 25,000/- each to the legal heirs of both the deceased, failing which they were ordered to suffer further R.I. For 6 months. Khurshid Ahmad accused was warded life imprisonment and a fine of Rs.20,000/- and in default thereof he was ordered to undergo R.I. For 6 months. Benefit of section 382(B) Cr.P.C, was, however, extended to him. Umar Hayat accused was acquitted giving him the benefit of doubt.
3. According to Ghulam Qadir, complainant, the account of occurrence, ' briefly, is that on the night intervening 4/5 June, 1989, he alongwith his son Imtiaz, Ghulam Abbas and Mushtaq, the two real brothers and sons of his sister, and one Rana Muhammad Hanif of the village went to the adjoining Chak No.76/G.B. For seeing the fair known as Maila of Baba Lai Shah. After spending the whole night there, enjoying Qawali and other programmes, they were on their way back to the village. As soon as they arrived near the house of Fazal Malik at about 5.15 a.m. Muhammad Khan and Khurshid with 12 bore guns, Waris Ali and Umar Hayat with carbines, suddenly emerged out of the bushes near the village. Seeing Ghulam Abbas and Mushtaq who were slightly ahead of others, Khurshid exclaimed that both should be despatched to death and then at once Muhammad Khan opened fire which hit Ghulam Abbas on his right eye and felled him down. Waris alias Dulli shot second fire which hit Mushtaq on his right thigh. Khurshid accused likewise, followed the suit and his fire hit the right shoulder of Mushtaq. Then fired Waris aiming at Mushtaq which hit his right hand. Umer Hayat did not remain behind. He too fired at Mushtaq which hit him on his chest. Waris accused then opened third fire aiming at Mushtaq which hit him on his neck from the front side. Khurshid also fired at the complainant with a view to kill him but it got missed. The complainant party raised hue and cry which attracted the villagers and the accused ran away with their weapons of offence.
Ghulam Abbas died at the spot while Mushtaq was taken to the Hospital in a serious condition. He, however, expired in Civil Hospital, Faisalabad, soon after his arrival there. The complainant left Sajawal Hussan son of Muhammad Tufail and his son Ilyas in the Hospital and proceeded to the police station. At Dhaisian bridge he met Wazir S.I. Who recorded his statement and sent it to the police station for formal registration of case.
4. The motive behind the occurrence is alleged to be election rivalry between the two sides.
Ghulam Qadir had contested local council election against Khurshid and had been defeated. Later a scuffle took place between the two rival groups in which Ghulam Abbas and Mushtaq deceased had caused stone injuries to Khurshid. This aggravated the situation and it was in order to avenge that grievance that Khurshid and others killed two persons and attempted on the life of the complainant.
5. Muhammad Wazir S.I. (PW9) partly investigated the case. After performing all the necessary pre- requisites he visited the spot, prepared injury statement (Ex PJ) of Ghulam Abbas deceased, his inquest report (Ex PK) and despatched his dead body to the Mortuary for postmortem examination.
He proceeded to the Hospital where Mushtaq was lying dead and likewise prepared his injury statement (Ex PL) and inquest report (Ex. PM). He again visited the place of occurrence and took into possession blood stained earth from two places separately vide different recovery memos.
After performing all essential duties relating to investigation he handed over the papers to ASP, Faisalabad whom the investigation was transferred. The ASP completed the investigation, got prepared the challan and caused it to be submitted to the court.
6. Dr. Munir Ahmad Naz (PW.10) M.O.DHQ Hospital Faisalabad, had conducted postmortem examination of Mushtaq deceased and Ghulam Abbas deceased. He noted following injuries on the dead body of Mushtaq deceased:
1. There was blueness of the left eye with swelling 3 cm x 3 cm. A small wound of entry about 1 cm from the nose on the left cheek was present.
2. There were number of small wounds of entry in the area of 11 cm x 5 1/2 cm. On the right side of the neck.
3. The small wounds of entry as mentioned above were, also seen on the right shoulder area measuring 22 cm x 14 cm.
4. There were small wounds of entry and few abrasions on the front of chest on an area 22 cm x 14 cm.
5. There was a crushing wound of the left plam area 12 cm x 8 cm. There was wound of entry on the palm between middle and index finger which was continuous, with that of the exit. The metacarpal bones (bones of whole hand) were fractured.
6. There was wound of entry 3 cm x 3 cm on the back of right thing inner portion 8 cm above the knee. There were 6 wounds of exit on the front, the main wound was 3 cm x 3 cm on the inner side 8 cm above the knee and the rest 5 were on the lateral (outer) side of the main wound area covering 8 cm x 5 cm. Two pieces of wad were recovered from the track of the wound.
7. There was a wound of entry 1/2 cm x 1/2 cm on the inner front of left thigh 5 cm above the knee.
The wound of exit was 1/2 cm x 1/2 cm 6 cm away from the wound of entry with an abrasion 3 cm on the inner side of the thigh.
All other organs were healthy.. Left chamber of the heart was empty and there were few ML of blood in the right chamber. Stomach contained semi solid dirty colour digested food. The bladder contained 3 ounces of urine.
In his opinion death was the result of haemorrhage and shock due to injuries Nos. 5 and 6 individually and collectively. These wounds were caused by fire-arm and were ante mortem.
According to the Doctor they were sufficient to cause death in the ordinary course of nature.
Probable time between the injuries and death,, according to him, was two hours and between the death and postmortem was about 8 to 12 hours.
7. Likewise he conducted autopsy on the dead body of Ghulam Abbas deceased and noted the following injuries on his person:
1. There was wound of fire arm on and around the right eye on an area 9 cm x 7 cm. There were 7 wounds of entry in this area, each measuring 3/4 cm x 3/4 cm as shown in the diagram, in the description of the injury given in the postmortem report Ex.PP.
2. There was a fire arm wound of entry on the top of left shoulder.
3. There was an abrasion 3/4'c.m. x 3/4 c.m. On the back of left shoulder.
In his opinion the cause of death was shock and haemorrhage due to injury No. 1 which was ante mortem and sufficient to cause death in the ordinary course of nature. The probable time between the injury and death, according to him, was a few minutes and the postmortem had taken place after about 12 hours.
8. The accused pleaded NOT guilty to the charge and claimed trial.
9. In order to establish their case, prosecution had examined as many as 11 PWs whereas Dr. Shahid jamil who had examined Waris Ali, injured accused, was produced as CW.1. The accused, however, examined in their defence Tariq Mehmood FC of P.S. Kirana District Sargodha as DW. 1.
Muhammad Afzal (PW.l) Moharrir of P.S. Jananwala had received certain parcels pertaining to this case and had forwarded them to the office of chemical examiner and forensic science laboratory for analysis. Akbar Ali (PW.2) FC had despatched the dead body of Ghulam Abbas from the place of occurrence to the Mortuary and had done other allied duties. Atfrangzeb Draftsman(PW.3) prepared the' site-plans at the instance of the police. Muhammad Nawaz, Constable.(PWA) had escorted the dead body of Mushtaq from the place of occurrence to the-Hospital and had performed other duties assigned to him by his senior officer. Sajjawal (PW.5) had identified the dead body of Mushtaq at the time of his autopsy whereas Muhammad Abbas (PW-6) had ,indentifiers the dead body of Ghulam Abbas at the time of his postmortem. Ghulam Qadir complainant whose sister's sons had been murdered had appeared as (PW.7) and he is the star witness of the prosecution. Muhammad Hanif (PW.8),a Rajput of the village was accompanying Ghulam Qadir and others at the Maila in the nearby Chak and both have provided the ocular account of the occurrence. Muhammad Wazir SI/IO appeared as (PW.9) whereas Dr. Munir Ahmed was examined as (PW.10). Muhammad Amlish Addl. S.P. Faisalabad who had subsequently finalized the investigation and had ordered the submission of the challan, had appeared as (PW. 11).
10. The accused when examined under section 342 Cr.P.C, denied their participation in the occurrence and claimed that they had been falsely implicated in the case. In answer to the question as to why this case was made against them, none of them took specific defence plea.
Waris accused stated that case was made against him due to enmity and because he had been injured during the occurrence. He neither liked to examine any witness in his defence nor opted to appear himself as his own witness. Muhammad Khan accused made almost a similar statement.
Khurshid accused, however, took up a different stand claiming that he was not present at "the time of occurrence and had been involved due to enmity. Umar Hayat accused stated that his involvement was also due to enmity and he was not present at the time of accurrence and was in District Sargodha on his lands.
11. Waris Ali and Muhammad Khari accused have filed Crl. Appeal No. 866 of 1991 against their conviction and sentence whereas Khurshid has filed separate Appeal No. 934 of 1991 against his conviction and sentence. The State has filed Crl.A.No. 85 of 1992 under section 417 Cr. P.C.Against the acquittal of Umar Hayat and Crl. Rev. No.132 of 1993 against the imposition of lesser penalty to Khurshid Ahmed convict whereas the learned Addl. Sessions Judge has made reference in terms of section 374 Cr. P.C. For the confirmation of death sentences. All these matters are being disposed of through this judgment.
12. Arguments have been heard and record perused with the assistance of learned counsel for the appellants and the State.
13. It is contended by the learned counsel for the appellants that enmity between the parties on account of election rivalry is undisputed as such, there was every possibility of their false implication. In this view of the matter, it was all the more essential that prosecution should have examined independent witnesses whereas they had produced highly interested witnesses, namely, Ghulam Qadir who was opponent of Khurshid in the local council elections and so also was Rana Muhammad Hanif who was party-man of Ghulam Qadir. It was highly improper to place reliance on their interested testimony in the background of acknowledged and admitted enmity. On the other hand, it was pointed out by the learned State counsel that prosecution had examined the natural witnesses of the occurrence who had gone to watch the Maila in the adjoining village and while returning to the village and witnessed the attack launched by the appellants and Umar Hayat, the acquitted accused. It was a day time occurrence and according to the official jantri of this court the sun had risen at 4.56 a.m. On 5.6.1989 while the occurrence took place at 5.15 a.m.
Thus, there was no chance of their mistaken identity. As for relationship of the witnesses, inter se\ it was submitted by the learned counsel for the state that Ghulam Qadir was Mamoon of both the deceased and was returning with them from the Maila, as such, his testimony was natural and trustworthy.
14. Rana Muhammad Hanif is not Jatt by case rather a Rajput (although this distinction is without .Any difference yet is being mentioned as it is being maintained) and being resident of the same village had accompanied the complainant party to the Malia. He too had rendered unflinching support to the prosecution. Ghulam Qadir had been subjected to searching questions in the cross examination but he had withstood the test quite successfully. Likewise, Rana Hanif had remained unshaken throughout his cross examination. No substantial weakness or infirmity could be brought to surface by the defence through their cross examination. There was, thus no bar on placing reliance on their testimony.
15. It was next contended that if it was day time occurrence as claimed by the prosecution, then having taken place in the close vicinity of the village Abadi, lot of persons would have been around and in these circumstances, inability of the prosecution to produce independent witnesses, casts doubt on the veracity of the version. Elaborating his stand-point, it was submitted by the learned counsel for the appellants that the occurrence having taken place at least a quarter hour after sun rise, there would be very many persons available in that area. So pinking-up of only complainant's party men displayed that it was a cooked up version. It \Vas however, argued by the learned State counsel that the court can legitimately take notice of the trend of the people to avoid joining wrangles/brattles of others and incurring risk to their lives, as such, it was but natural that only those who had actually been subjected to the attack had appeared as PWs. We have given our anxious thought to this aspect of the matter and it appears to us that in these days of rather increasing moral decay and degeneration in the society when people are afraid of giving testimonty in such cases the prosecution has successfully established their version through reliable and confidence inspiring evidence.
16. It was next submitted by the learned counsel for the appellants that although there was a motive against Khurshid and Umar Hayat but none against Waris and Muhammad Khan; as such, there was no fun for them to have taken such an active part to settle accounts of Khurshid. It is in evidence that Rana Hanif had been siding with Ghulam Qadir whereas Muhammad Khan and Waris were the party men of Khurshid. It is not something uncommon in the villages that Lumbaradars and Chaudharies would have lot of their associates who would live and thrive on their money and come forward whenever a situation demanded to defend them. It is not always essential for all of the participants to have a direct motive against them. If the main accused happens to be the head of the party and has motive against his opponent, his associates plunge into the fight unmindful of the consequences. This is exactly what appears to have been happened in this case. Waris and Muhammad Khan are Jatt by case and there was nothing on the record to show that they had not been siding with Khurshid accused in the village affairs. Even otherwise, there is consistent and persistent evidence on the record that it was the appellants who had launched attack and had inflicted successive injuries to both the deceased. The evidence qua their part in the occurrence is flawless and believable, as such, it was not essential in this case that a direct motive should have been available to them also.
17. The learned counsel for the appellants next brings us to the criticism that the injury of Waris accused was suppressed by the prosecution, as such, it casted doubt on the whole prosecution version. Learned State counsel has invited our attention, in this respect, to the statement of Dr. Shahid Jamil (CW.l) who had medically examined Waris Ali. The injury on the left upper arm of Waris Ali is a lacerated wound 11 x 5 cm with skin burnt out margins which were irregular and black and underlying muscles were crushed. According to the Doctor, the injury had been caused with fire armed weapon and the probable duration was 10 hours. The patient was examined by him at 8.00 p.m. This showed that the injury was caused to him at about 9/10 a.m. According to the Doctor, the injury had been caused from a close distance. He did not rule out the possibility of this injury having been self suffered but stated it was less likely to be so. The seat of injury was upper part of the left arm and this could surely be done by holding a pistol or carbine in the right hand causing superficial injury. Close range of the injury, seat of the injury and the cursory damage done to the body excluding the main trunk of the body, clearly showed that this was an injury suffered by Waris himself. We, therefore, agree with the line of arguments adopted by the learned State counsel that this injury was surely self suffered with a view to create defence. According to the prosecution, Waris had suffered this injury in his own house and fire shot report was heard by the persons present at the time of investigation of the case after arrival of the Investigating Officer. According to the doctor, the time of infliction of the injury was 9/10 a.m. The same day and this, had also been so claimed by the police officer, as such, it is very obvious that it was caused to set up a defence and could not been mentioned in the FIR by the complainant. So, this objection of the learned counsel for the appellants stands repelled.
18. It was further contended by the learned counsel for the appellants, with great emphasis, that since the eye witnesses remained unhurt, their very presence is , therefore, doubtful. It is in prosecution evidence that the situation was already tense between the parties due to election rivalry but it became more tense from the day when Mushtaq and Abbas deceased injured Khurshid, the elected candidate with brick-bats. These two persons were, therefore, the eye-sore of Khurshid and his associates. Even otherwise he was (50) and comparatively young whereas Ghulam Qadir was an old man of 60. When the accused had focused their attention towards the two deceased and had resorted to firing, in that mele others got secured in the bushy area which had provided them safe haven. Although Khurshid had attempted at the life of Ghulam Qadir, nevertheless, luck appeared to have saved him. The eye witnesses have given a clear and fair account of the occurrence. The mere fact that all of the for and five persons had not suffered injuries does not show that they were not present at the spot. The objection has no force and is hereby rejected.
19. Lastly it was contended on behalf of the appellants that in this case when enmity between the two sides is not disputed, the partisan evidence led by the prosecution should have been assessed and weighed with more care and caution. As discussed above, Ghulam Qadir had gone to see the Maila of Baba Lai Shah alongwith his son nephews and a friend Rana Hanif. He was returning to the village alongwith his mates when attacked by the accused. The recovery of the blood stained earth from the alleged place of occurrence, lifting of dead bodies as claimed by the prosecution from the spot, earlier enmity and the motive having been established, let us see whether the defence plea fits in the circumstances and negates the prosecution version. Muhammad Khan and Waris, both had virtually taken no defence plea had stated that since they were the party-men of Khurshid, they had been falsely implicated due to enmity. They stated that it was nocturnal occurrence and some enemy of Ghulam Qadir had attacked and killed Ghulam Abbas and Mushtaq. Since they were already inimical to them, the complainant falsely - roped them in. The occurrence as alleged and proved by the prosecution had taken place during the sum light, therefore, there was no question of mistaken identity. This defence plea appears to be merely hollow. The prosecution has proved their case beyond reasonable doubt.
20. For the aforegoing reasons, we see no infirmity or flaw in the prosecution case and find no ground or justification warranting our interference in the sentences passed by the trial court nor we have been able to find any reasonable ground for enhancement of the sentence awarded to Khurshid accused because the fatal injuries had been attributed to Muhammad Khan and Waris appellants.
As for the acquittal of Umar Hayat, we have not been able to persuade ourselves, in the circumstances of the case to alter the decision of the trial court. Consequently we up-hold the judgment of the learned trial court and dismiss the appeals as well as the revision petition. The death sentences awarded to Muhammad Khan and Waris Ali appellants are hereby confirmed.