RAJA MUHAMMAD KHURSHID, J.--The appellant namely Abdul Karim was arraigned under section 302/307, P.P.C. For committing the murder of Muhammad Gulzar deceased and murderous assault on Ishrat Abbas for an occurrence, which took place at about 9-30 p.m. On 3-5-1988 in the field owned by Muzaffar Shah and cultivated by the appellant Abdul Karim in the area of Police Station, Golra, District Islamabad.
2. On trial the appellant was convicted under section 302, P.P.C. And sentenced to death and a fine of Rs.5,000 or in default to undergo one year R.I. He was also ordered to pay compensation amounting to Rs.10.000 or in default to further undergo R.I. For 2 years. 'He was also convicted under section 307, P. P. C. For committing murderous assault upon Ishrat Abbas P. W and was sentenced to 5 years' R.I. And a fine of Rs.3,000 or in default to suffer six months' R.I. The compensation of Rs.2,000 was directed to be paid to the injured P.W. Or in default to undergo four months' R.I.
3. The conviction and sentence aforementioned were made by Mr. Abdul Hamid Khan Khatak, the then learned Additional Sessions Judge, Islamabad vide his judgment dated 29-4-1991. The learned Trial Judge has made a reference under section 374, Cr.P.C. For the confirmation of death sentence awarded to the appellant namely Abdul Karim.
4. The convict Abdul Karim has filed this appeal against his conviction and sentence. The complainant Muhammad Sadiq filed Criminal Revision No.472/94 for enhancing the sentence of fine under section 302, P.P.C. From Rs.5,000 to Rs.1,00,000 and also to enhance the sentence of imprisonment from 5 years' R.I. To 10 years' R.I.
5. The Appeal, Murder Reference and the Criminal Revision are proposed to be decided vide this judgment.
6. The brief facts are that Muhammad Sadiq made a statement Exh.PG before Khurshid A.I S.I. At 10- 30 p.m. At the spot in which he contended that he was employed at P.O.F., Wah Cantt. And was resident of village Jori. He used to attend his duty in the morning and return to home at 4-00 p.m.
After the working hours were over. On the day of occurrence he came to the house of Bashir Ahmad resident of quarter No. 15, Wah Cantt. In order to attend an Iftar Party. He attended the party and after taking his meals he reached his home at about 9-30 p.m. He reached to the Baithik of his paternal uncle Karam Buksh as there was gathering of the people from his brotherhood. On reaching there, he learnt that there was some quarrel between the people of his brotherhood with the people of ' Karal' brotherhood. He came to know that some persons were injured from both sides. His paternal uncle Sultan Ahmad went out to urinate towards southern fields. After urination he reached near the field of Muzaffar Shah which was under the cultivation of appellant Abdul Karim, who raised a Lalkara that he would teach a lesson for passing from his field. On hearing the Lalkara the complainant alongwith his maternal uncle Gulzar deceased and Ishrat Abbas injured P.W. Proceeded towards Abdul Karim appellant, who was armed with a single barrel .12 bore gun.
The appellant fired from his gun at the deceased Muhammad Gulzar thereby causing pellet injuries on his left arm and chest. Some of the pellets caused injury to Ishrat Abbas P.W. Near his scrotum. The deceased fell on the ground on receiving aforesiad injuries. The appellant made an attempt to re-load his gun, but was overpowered by Muhammad Sadiq complainant, who managed to snatch the gun from him. The complainant and other persons present there namely Abdul Rashid, Muhammad Jan, Sadaqat Mahmood, and Muhammad Hanif all residents of the village got attentive towards the deceased as the latter was seriously injured. The appellant taking advantage of the situation managed to escape.
7. The bone of contention had arisen about 35/40 years back when the paternal grandmother of the appellant Abdul Karim was murdered by the elder brother of the father of the complainant namely Raja Muhammad Akram, A.I Ahmad and Muhammad Ishaq. All the aforenamed three offenders were acquitted. Secondly there was some quarrel between the two brotherhoods in the preceding evening for passing over the fields of each other, in which some persons were injured from both sides. The appellant had murdered the deceased and committed murderous assault upon Ishrat Abbas P.W. To take revenge of the aforesaid two incidents. The police had reached the spot after learning about the quarrel whereupon statement Exh.PG was made by the complainant at 10-30 p.m. Before S.I. Khurshid A.I P.W.13. He also produced .12 bore gun which he had snatched from Abdul Karim appellant. The formal F.I.R. Exh.PG/1 was brought on record, which was registered at the police station on the same day at 11-15 p.m.
8. The prosecution had examined the complainant Muhammad Sadiq as P.W.7. He is related to the deceased being a son of his sister. He had lodged the report as an eye-witness. The other eye- witness namely Abdul Rashid, a real nephew of the deceased being his brother's son, was put in the witness-box as P.W.8. The injured P.W. Namely Ishrat Abbas was examined as P.W.9 in support of the prosecution case. The remaining eye-witnesses namely Muhammad Jan, Sadaqat Mahmood and Muhammad Hanif were given up.
9. Apart from the ocular account of occurrence, the police had collected the blood-stained earth from the spot on 4-5-1988 vide memo. Exh.PF. The crime empty P.8 was taken into possession on the same day vide memo. Exh.PM in the presence of Khyzar Hayat Constable P.W.5 and Khurshid A.I S. I. P.W.13. The third witness namely Muhammad Razzaq was however, given up. The .12 bore gun P.7 snatched from the accused by the complainant was produced by him before Khurshid A.I, S.I.
Aforesaid who took it into possession vide memo. Exh. PL attested by Muhammad Sadiq complainant and Muhammad Gulistan given up P.W. The gun P.7 was a licensed gun of appellant Abdul Karim and its licence P9 was taken into possession vide memo. Exh.PJ on 6-5-1988.
10. The crime empty and the gun were sent for examination to Forensic Expert through Khyzar Hayat P.W.5. The report of Forensic Expert Exh.PR showed that the crime empty matched with the weapon of offence i.e. 12 bore gun used by the appellant to commit the occurrence. The report of the Chemical Examiner and Serologist indicated that blood-stained earth was stained with human blood.
11. The accused was examined under section 342, Cr.P.C. And he took up the plea that the complainant side was aggressor as they had caused injuries to Muhammad Azim and others.
During melee Abdul Rashid from the complainant side fired at Muhammad Azim, and others which hit Muhammad Gulzar deceased and Ishrat Abbas injured P.W. The police party arrived at spot and joined hands with the complainant party. The injured persons from the accused side were also got examined, but their case was not registered as the police had colluded with the complainant party.
The accused party had therefore, instituted a complaint Exh.DE through Muhammad Azim against Sultan Ahmad, Karam Buksh, Abdul Rashid, Muhammad Jan, Sadaqat Mahmood, Nasib Akhtar, Noor Elahi and Muhammad Hanif under section 307/325/148/149, P.P.C., which was also pending in the same Court. It was, therefore, contended that in fact the complainant party was the aggressor and due to their own firing the deceased was killed whereas Ishrat Abbas was injured.
12. We have heard the arguments of the learned counsel for the parties. It is to be seen if the prosecution has been able to prove its case beyond any reasonable doubt.
13. The prosecution has examined eye-witnesses, medical evidence and witnesses of recovery relating to the weapon of offence. First we discuss the ocular account of occurrence which consists of three witnesses namely Muhammad Sadiq complainant (P.W.7), Abdul Rashid (P.W.8) and Ishrat Abbas (P.W.9) injured witness. The first objection taken by the appellant is that these witnesses are related to the deceased and as such would be considered as interested witnesses. Similarly it was alleged that they were inimical to the accused party because of the reasons, given in the motive. It was, therefore, urged that the evidence of these witnesses was of no use to the prosecution. The learned counsel from the other side contended that though the witnesses were related, but their evidence could not be discarded as they were also natural to see the occurrence. It was further, contended that they were supported by the recovery of weapon of offence i.e. .12 bore gun P.7, which was found wedded with the crime empty picked up from the spot: The medical evidence also supported the occurrence narrated by the eye-witnesses and therefore, there could be no reason to condemn them only because they were related to the deceased.
14. It is true that Muhammad Sadiq P.W. 7 was the sister's son of the deceased and Abdul Rashid P.W.8 was a nephew being brother's son of the deceased. As such they were closely related to him.
However, it is to be seen if they would like to implicate the accused falsely in this case and would leave the actual killer to escape unpunished. The natural instinct on their part would be that real culprit, who had killed the deceased should be brought to book. Therefore, there is no chance for substitution of the accused in this case. Hence the testimony of these witnesses cannot be discarded only because they are closely related to the deceased. A point was raised that Muhammad Sadiq P.W.7 was chance witness as he was employed in P.O.F., Wah Cantt. And could not be present in the village to see the occurrence. The witness has given his explanation for his presence in the village as he usually returns every day at 4-00 p.m. By bus. On the day of occurrence he returned from the place of his duty to his village at about 9-30 p.m. Because his friend Bashir Ahmad P.W. Had invited him to ' Iftari' at his house in Wah. This apart of his statement is corroborated by Bashir Ahmad P.W.15, who stated that Muhammad Sadiq P. W. Had attended Iftari at his house and remained with him till 8-15 p.m. And then returned to his village by a wagon.
The aforesaid witness has no animus against the accused so as to state falsely against him.
Though he is employed in the same office, but that would not make him interested witness nor it will be unusual if he had given Iftar Party to the complainant as colleague. So there can be no possibility to support the allegation that the complainant was a chance witness.
15. Likewise the presence of Abdul Rashid P.W.8 cannot be doubted as he was also present at the Baithak of Karim Buksh after Iftari. He was also involved in the occurrence relating to the motive, which took place at 6-30 p. m. In which both sides had used Sotis and resorted to brick batting against each other whereby some persons from both sides sustained injuries. Some persons from the complainant side were waiting for a Suzuki van for removing the injured to the hospital and informing the police. In the meantime at about 9-30 p.m. The present occurrence took place when the uncle of the complainant Sultan went out for urination and was confronted by the accused at the place of occurrence. The witness was also attracted to the spot and had seen the occurrence as deposed by him, in his statement as P.W.8. His presence therefore, cannot be doubted under the situation. The next witness namely Ishrat Abbas P.W.9 sustained injuries during the main occurrence at the hands of the appellant/convict and therefore, his physical presence cannot be excluded. The injuries on his person fired from the gun P.7 used by the accused/convict is sufficient corroboration to his ocular account of occurrence and also to the remaining two witnesses In the situation, the mere relationship of the eye-witnesses with the deceased cannot be considered sufficient to discredit their testimony particularly when they are corroborated by an injured witness and also by the recovery of weapon of offence which has been found wedded with the crime empty by the ballistic expert. The injuries on the person of the deceased were noticed by Dr. Hamid--ud-Din P.W.-1 as under: External injuries:
(1) Six wounds of entry each measuring (i) c.m. In diameter in an area of 10 x 8 c.m. In anterior and outer upper aspect of chest 3 c.m. Outer to nipple. There was blackening around the wound margins, which was due to blood clot.
(2) Two wounds of entry in front of left upper arm measuring 1 c.m. In diameter adjacent-to each other about 15 c.m. From tip of acromian.
(3) Three wounds of entry in front of left arm 6 c.m. Below injury No.2 measuring 1 c.m. In diameter around the wound margin.
Wound of exit:
(1) 2 c.m. x 1 c.m. Situated superiorly about 12 c.m. From the inferior angle of scapula.
(2) 1 x 8 c.m. Inferior to injury No. l about 13 c.m. From inferior angle of scapula.
(3) 1 x 8 c.m. Still inferior and lateral about 15 c.m. From inferior angle of scapula.
(4) 1 c.m. x 3.8 c.m. Situated to above wound 6 c.m. From inferior angle of scapula.
According to the opinion of the Medical Officer the deceased succumbed to the injury chest resulting in massive haemorrhage and instant shock causing damage to vital organs (lungs). This injury was sufficient to cause death in the ordinary course of nature. All the injuries were ante- mortem and caused by fire-arm. The time which elapsed between the injury and death was about half an hour and between death and post-mortem 12 to 24 hours. The post mortem report was Exh.PA and sketch of the injuries was Exh.P.A./1.
16. The injured P.W. Was examined by Dr. Muhammad Aslam Khan P.W.11 who had observed the following injuries on his person: "Circular wound left scrotum upper part with moderate swelling of scrotum. No surrounding tattooing or burning seen. There was related tear of Shalwar multiple holes. No exit wound seen."
Since the doctor could not found exit wound, therefore, he referred the matter to Radiologist, and Surgeon. The Radiologist was examined as P.W. 14, as he prepared the X-Ray film Exh.PQ pertaining to Ishrat Abbas. The doctor found a solitary bullet in the right ingunal region.
17. It is clear from the medical evidence that Ishrat Abbas was present and had received pellet injury during the occurrence. A perusal of injury No. l on the person of the deceased shows blackening around the wound margins, due to blood clot. It shows that injury was caused from the close range. Therefore, the objection from the defence side would be of no avail regarding the identity of the assailant. If the fire was made from such a close range, then in a moonlit night the assailant could be easily identified not only from his physical appearance, but also from his voice as he was shouting Lalkara. In such a situation, the plea regarding the identity of the assailant is of no use to the appellant/convict who was present at the spot to commit the occurrence by causing Lalkara and using his licensed gun P7. F.I.R. Was also promptly lodged, which is a further corroborative circumstance in favour of prosecution story.
18. After discussing the ocular account of occurrence in the light of medical evidence, we consider the question of motive in this case. The motive has also two parts. The first part relates to the murder of Mst. Irm Noor alias Ram Noor about 40 years ago. She was the paternal grandmother of the appellant/convict. Muhammad Akram, A.I Ahmad and Muhammad Ishaq were challaned and acquitted. They were the relatives of the complainant side. The second part of the motive was that on 3-5-1988 Abdul Rashid P.W. Objected to the passing of niece of the accused from his fields while she was on her way to fetch the water. This objection led to the quarrel in the evening on 3-5-1988 at 6-00 p.m. Due to which the persons from both sides were injured.
19. The first part of the motive relates to an occurrence, which took place about four decades back and thereafter nothing substantial happened, till 3-5-1988 i.e. Till the unfortunate night had fallen.
The trouble started towards the evening time, which ultimately resulted into the murder at about 9- 30 p.m. According to the defence there was single occurrence which had taken place at '
Taravehwela' in which the complainant side had committed aggression and had caused injuries to the appellant/accused and his party men for which criminal complaint Exh.DE was lodged by Muhammad Azim under section 307/325/148/149, P.P.C. Against Sultan Ahmad and 7 others. It was therefore, submitted that during the melee Abdul Rashid fired a shot at the aforesaid complainant namely Muhammad Azim and others which hit Muhammad Gulzar deceased and Ishrat Abbas who sustained injuries.
20. A question would arise whether there could be possibility of one or two occurrences. In this regard, the prosecution has led a specific and positive evidence that the first occurrence had taken place at 6-30 p.m. Followed by the second occurrence at 9-30 p.m. The plea of the defence that there was only one occurrence stands negated because the gun used for killing the deceased and causing injuries to Ishrat Abbas P.W. Belonged to the appellant/convict for which he holds the licence. It was snatched from him as he wanted to re-load it but he could not do so being overpowered. The same was produced before the police by Muhammad Sadiq complainant after snatching the same from the accused at the time of occurrence: It was not probable that Abdul Rashid would spare the other side of fatal injuries, but would kill his own man and will cause injury to the other fellow by making shot from his gun. The complainant was not in a position to produce any such gun used by Abdul Rashid, but the prosecution produced the gun belonging to the appellant/convict which also matched the crime empty thereby providing scientific corroboration that it was used during the occurrence. In such a way it can be safely said that the story of aggression advanced by the defence is neither probable nor convincing so as to create any doubt in the prosecution case.
21. In view of our above discussion, we come to the ultimate conclusion that the prosecution has been successful to prove its case beyond any reasonable doubt against the appellant/accused.
The conviction under section 302, P.P.C. For committing the murder of Muhammad Gulzar and under section 307, P.P.C. For committing murderous assault upon Ishrat Abbas is upheld.
22. The question of sentence needs consideration. The first part of the motive appears to be far- fetched because nothing had happened for about 3-1/2 decades. Hence it could not be treated as an immediate cause for the present occurrence. The second part of the motive is similarly shrouded in mystery as the immediate cause of the occurrence remains uncovered, and un- revealed. The sentence of death under section 302, P.P.C. Awarded to the appellant/convict is therefore, converted to sentence of imprisonment for life. The sentence under section 307, P.P.C.
Awarded to the appellant/convict for' injuring Ishrat Abbas P.W. Is maintained. The death sentence is accordingly not confirmed. Murder Reference No.209/91 is decided accordingly.
23. The appeal is dismissed with the above modification in sentence. The sentence of imprisonment for life under section 302, P.P.C. And sentence of 5 years' R.I. Under section 307, P.P.C.
Shall run concurrently. The benefit of section 382-B, Cr.P.C. Is extended to the appellant.
24. Criminal Revision No.472/94 was flied by the complainant for enhancing the fine from Rs.5,000 to rupees one lac. It was also to be heard alongwith the present appeal. We called upon the learned counsel for the appellant, who accepted the notice in that Revision. Keeping in view the circumstances of the case, it would be just and proper if the fine is enhanced from Rs.5,000 to Rs.25,000. We order accordingly. In default of payment of fine, the appellant shall suffer further R.I.
For six months as the sentence of two years is not warranted by law. The fine of Rs.25,000 if realized shall be paid as compensation to the heirs of the deceased in addition to the compensation of Rs.10.000 already awarded by the trial Court. The revision, petition is accepted partly to the extent of enhancement of fine from Rs.5,000 to Rs.25,000 for sentence under section 302, P.P.C., but is dismissed in respect of prayer for enhancement of sentence from 5 years' R.I. To 10 years' R.I. Upon conviction of appellant under section 307, P.P.C. The revision petition is accordingly decided.