' By this judgment I propose to dispose of the following three matters in which same questions of law and fact are involved:--
(1) Khizar Hayat v. The State Criminal Appeal No,751 of 1991.
(2) Zaigam Abbas v. Khizar Hayat and another Criminal Revision No,399 of 1991.
(3) State v. Khizar Hayat Criminal Revision No,491 of 1991.
' Vide judgment, dated 16-6-1991 learned Additional Sessions Judge, Jhang convicted Khizar Hayat accused under section 302, P.P.C. For having murdered Muhammad Nawaz deceased and sentenced him to life imprisonment and a fine of Rs,10,000 or in default to undergo four years' rigorous imprisonment. The accused-was further ordered to pay a sum of Rs,10,000 to the heirs of the deceased by way of compensation or in default to undergo six months' simple imprisonment.
Benefit of section 382-B, Cr.P.C. Was also extended to him.
2. The occurrence took place on 4-3-1991 at 5 p.m. On the road within the area of Mauza Jalalpur which was at a distance of 19 kilometres from Police Station Shorkot, District Jhang.
3.-. The occurrence was reported to the police by P.W.7 Zaigham Abbas son of Muhammad Nawaz deceased on the same day at 6-20 p.m. Through F.I.R. Exh.P.E. Recorded by P.W.9 Syed Munir Ali Shah, Inspector/S.H.O.
4. The prosecution case as narrated in the F.I.R. Exh.P.E. By Zaigham Abbas P.W.7, hereinafter called the complainant, is that on 4-3-1991 he came to Shorkot for shopping in connection with the Khatna ceremony of the son of his maternal-uncle Ahmed Nawaz which was to take place on 5-3- 1991. After doing the needful he boarded a wagon to go back to his house. The said wagon was being driven by Mumtaz Ahmed Kamlana in which Zafar Ali, Ghazanfar Abbas and Mukhtar were also sitting as passengers. When at about 5 p.m. They reached Katcha Pacca stop ahead of Darbar Malang Bokhari within the area of village Jalalpur he saw his father Muhammad Nawaz going towards his house. He was being following by Khizar Hayat accused wrapped in a Chaddar. When the wagon reached near Muhammad Nawaz aforesaid the complainant got it stopped to enable his father to board it. As soon as Muhammad Nawaz held the handle of the bus to board it Khizar Hayat accused who was close by took out a carbine from the Bukkal of his Chaddar and fired a shot at him as a result of which the complainant's father fell down. The complainant and his co- passengers challenged the accused who succeeded in running away while firing. When the complainant attended to his father he found that he had expired. The motive for the occurrence was that Khizar accused had abducted one Mst. Shamim but she was resorted to her parents on the pressure of the deceased. Sometime before the occurrence she was again abducted by the accused on which the deceased had severely reprimanded him and asked him to return the abductee. On this they had an altercation. The accused refused to return the abductee but the deceased insisted that he would get her restored to her parents at all costs. It was alleged that the accused nursed grudge against the deceased due to the said incident and subsequently murdered him.
4. The investigation in this case was conducted by P.W. Syed Munir Ali Shah, Inspector/S.H.O. Who arrested Khizar Hayat accused on 8-3-1991. On the same day while in custody the accused led to the recovery of carbine Exh.P.8 from his cattle-shed which was taken into possession vide memo.
Exh.P.C. Attested by Ghulam Shabbir P.W.5 and Zafar Ali (given up as unnecessary).
5. On 5-3-1991 at 9 a.m. P.W.6 Dr. Zafarullah Sheikh, Medical Officer, Tehsil Headquarter Hospital, Shorkot, conducted post-mortem examination on the dead body of Muhammad Nawaz deceased aged 65 years and found the following injuries on it:--
(1) An entrance fire-arm wound oval in shape, diameter 3 c.m. x 2.3 c.m. On the back right side of the lower chest, 5 c.m. From the mid line, 14 c.m. From the lower end of the scapula, margins were inverted.
(2) An exit wound, oval in shape, diameter 0.5 c.m. x 0.5 c.m. On the front of left side of the chest 2.5 c.m. Just medial to the left nipple.
(3) Another exit wound 0.5 c.m. x 0.5 c.m. Just medial to injury No,2.
6. On examination of thorax it was found that left anterior fourth intercostal space, left pleaura, medial side of the left lung were perforated. The heart and paricardium were also perforated from where three pellets were removed. The Medical Officer also found that the small intestines contained digested matter and large intestines contained faecal matter. Bladder contained 100 c.m of urine. The other organs were found healthy.
' In the opinion of the Medical Officer death had been caused by haemorrhage and shock due to the injury which had damaged vital organs like heart and lung. All the injuries were ante-mortem.
He further opined that injury (No,1) was sufficient to cause death in the ordinary course of nature.
' The probable time between injuries and death was immediate and between death and post- mortem examination was 12 to 24 hours. Exh.P.B. Is the correct carbon copy of his post-mortem examination while Exh.P.D./1 and Exh.P.D./2 are the diagrams showing the location of injuries.
7. The accused was formally charged for Qatl-e-Amd (intentional murder) of Muhammad Nawaz deceased. He pleaded not guilty and claimed trial.
8. The prosecution examined nine witnesses in support of its case including the two eye-witnesses, namely, Zaigham Abbas complainant P.W.7 and Ghazanfar Abbas P.W.B. Zafar Ali and Mukhtar who had also been cited as eye-witnesses of the occurrence were given up as unnecessary.
9. The accused in his statement denied the allegations leveled against him and pleaded innocence. He maintained that he had been falsely implicated due to enmity with the prosecution witnesses. In defence he produced copy of the F . I . R . Exh.P.B. And the school leaving certificate Exh.D.C. He did not examine any defence witness and declined to make a statement on oath under section 340(2), Cr . P C .
10. After considering the evidence on record and hearing the parties' learned counsel the learned Additional Sessions Judge convicted and sentenced the accused as stated above.
11. Feeling aggrieved the accused has filed an appeal (Criminal Appeal No,751 of 1991) against his conviction and sentence while the complainant and the State have instituted separate Criminal Revision Petitions (Nos.399 of 1991 and 491 of 1991) for the enhancement of the sentence awarded to the accused.
12. I have heard the parties' learned counsel and have also gone thorugh the record.
13. Learned trial Court has not relied upon the prosecution evidence with regard to motive and has held that this part of the prosecution story was not proved. In support of its findings the learned trial Court has given cogent reasons which are contained in para. No,15 of the impugned judgment. I am not inclined to differ with it.
14. As regards recovery of carbine Exh.P.8 the learned trial Court has, for reasons contained in para. No,19 of the judgment, disbelieved the prosecution evidence. Since no crime empty had been recovered from the place of occurrence the recovery of the carbine in question is of no consequence. This recovery has no corroborative value.
15. Learned counsel for the accused has submitted that since the prosecution case solely rested on the testimony of the eye-witnesses who were not only chance witnesses but were also inimical towards the accused and, therefore, such an evidence could not form the basis for his conviction.
He further submitted that from the circumstances appearing on record the presence of the eyewitnesses at the time and place of occurrence was highly doubtful, that the occurrence had not taken place on 4-3-1991 at 5 p.m. As alleged by the prosecution but had taken place in the early hours of 5-3-1991, that there was a conflict between the ocular and medical evidence as a result of which no reliance on the ocular evidence could be placed, that the prosecution story was improbable and not worthy of any credence and that the deceased had other enemies who had caused his death but the accused had been falsely implicated on account of suspicion.
16. Learned counsel for the State and that of the complainant have vehemently contended that the prosecution had proved the guilt of the accused beyond reasonable doubt through the testimony of reliable witnesses and thus he had been rightly convicted by the learned trial Court. They further contended that the F.I.R. In the present case was promptly lodged wherein the accused had been nominated, the eye-witnesses had been named and the manner in which the occurrence had taken place was also shown and therefore, the possibility of substitution was entirely excluded.
17. First of all I propose to determine as to where and when the occurrence had taken place. From the F.I.R. Exh.P.E., memo. Exh.P.F., the statements of Zaigham Abbas and Ghazanfar Abbas eye- witnesses and Syed Munir Ali Shah P.W.9, the Investigating Officer it is established that the occurrence had taken place on the road in the area of Mauza Jalalpur from where the blood- stained earth was taken into possession and where the dead body was found lying on a cot.
According to the prosecution case the occurrence had taken place on 4-3-1991 at 5 p.m., whereas according to the learned counsel for the accused the occurrence had taken place sometime in the early hours of 5-3-1991. In support of his assertion learned counsel for the accused has argued that since bloodstained earth was recovered from the place of occurrence on 5-3-1991 it is strongly indicated that the occurrence had taken place on the same day and that the abdominal contents of the deceased also pointed towards the possibility that he had died in the early hours of 5-3-1991.
18. It is an admitted fact that the blood-stained earth was taken into possession by the Investating Officer on 5-3-1991. The Investigating Officer has explained that immediately alter the recording of the F.I.R. He had reached the place of occurrence and had seen in the gas-light the blood on the place of occurrence i,e, the road but did not immediately take it into possession because at that time he had no container with him wherein to preserve the said blood/blood-stained earth. He has further stated that he had stationed a Constable at the place of occurrence after his initial visit to the place of occurrence to guard it and on the following day he had again visited the said place and had taken the blood-stained earth into possession. I have no reason to disbelieve the Investigating Officer on this point. He might have acted in an indolent manner by not going fully equipped to the place of occurrence for the purpose of investigation but this indolence on his part would not destroy other evidence on record to the effect that the occurrence had taken place on 4-3-1991. As regard the abdominal contents these could not accurately determine the time of the death of a person because digestive system varies from person to person. In the present case the presence of faecal matter in the large intestines and the presence of digested food in the small intestines do not necessarily mean that the occurrence had taken place in the morning. An early lunch or a usual breakfast which the people living in rural areas take would also have resulted in the same abdominal position. Even otherwise when there is direct and reasonably authentic evidence on the point that the occurrence had taken place at 5 p.m. On 4-3-1991 it is not safe to determine the time of occurrence on the basis of indirect evidence of an unsure nature. It is established beyond reasonable doubt that the F.I.R. In the present case was lodged on 4-3-1991 at 6-20 p.m. `at Police Station Shorkot City which was at a distance of 19 kilometers from the place of occurrence. How could the F.I.R. Be recorded prior to the occurrence is a question which does not get any satisfactory answer from the record. It is, therefore, held that the occurrence had taken place on 4-3-1991 at 5 p.m. As asserted by the prosecution.
19. The prosecution has examined two eye-witnesses i,e, Zaigham Abbas P.W.7 the son of the deceased and Ghazanfar Abbas P.W.8 the brother of the (husband of the sister of the wife) of the complainant to prove the occurrence. The complainant being the son of the deceased could be described as a related witness but this cannot be said of Ghazanfar Abbas P.W.8. He had no direct relationship either with the deceased or the complainant. A brother of the husband of the sister of one's wife can hardly be called a relative. It is a well-recognized principle of law that mere relationship of a witness with a party is not enough to brush aside' his testimony. The evidence of the complainant therefore, cannot be rejected on this score. As regards Ghazanfar Abbas P.W. He is quite an independent and disinterested witness.
20. The next question which requires consideration is as to whether the two eye-witnesses are interested or inimical witnesses. It is alleged by the accused and admitted by Zaigham Abbas complainant that the latter's paternal-aunt {{URDU TEXT}}was abducted by Mehr Amir the paternal-grandfather and Wali Dad maternal-grandfather of the accused and that one Mehr Waryam and the paternal-grandfather of the accused were murdered. The complainant expressed his ignorance that the said persons had been murdered by his relatives. The abduction of Mst. Jannat Bibi and the murder of the aforesaid persons had taken place more than 60 years ago (F.I.R. Exh.D.B. In connection with the said murder was lodged on 29-1-1929) when the complainant was not yet born. Exh.D.B. Does not show, nor there is any other authentic evidence on record to establish that the complainant's ancestors were in any way involved in the said murder.
No untoward incident took place during all this long period between the parties on account of the said two incidents. I, therefore, am not persuaded to agree with the learned counsel for the accused that the eye-witnesses in any way were inimical to the accused. The alleged enmity is too farfetched. It goes without saying that against Ghazanfar Abbas P.W. No such enmity with the c accused has been brought on record. Both the eye-witnesses, therefore, are neither inimical nor interested witnesses.
21. Now another question arises as to whether the eye-witnesses in the present case were chance witnesses and whether reliance could be placed on their testimony. The occurrence had taken place on the road connecting Shorkot with Mauza Jalalpur. The prosecution case is that the two eye-witnesses alongwith other passengers and relatives were coming from Shorkot to their houses in Jalalpur in a wagon after making purchases for the Khatna ceremony of complainant's maternal-uncle's son which was to be held on the following day. On their way the complainant saw his father going towards the village after attending a Janaza followed by the accused. He got the wagon stopped to take his father along to the village and when the latter was about to board the wagon the accused fired the fatal shot at him. It is true that normally the eye-witnesses could not be expected to be present at the time and place of occurrence but if it is established from the record and the attending circumstances that this story was true then one should not have any hesitation to believe their presence. In this connection the most important circumstance in favour of the prosecution case is the promptitude with which the F.I.R. Was lodged. The occurrence took place at 5 p.m. On 4-3-1991 and on the same day at 6-20 p.m. The report was made and recorded.
Had not the complainant been present at the time and place of occurrence it was impossible to report the incident so promptly when the police station was at a distance of 19 kilometres from the spot. The complainant being the son of the deceased must be in a state of shock and immense grief at that time and it could not be expected that within an hour he had concocted a false story.
In that promptly lodged F.I.R. The names of the witnesses including Ghazanfar Abbas P.W. Have been mentioned. The manner in which the occurrence had taken place is also narrated in sufficient detail. The story narrated therein does not appear to be improbable. Ghazanfar Abbas P.W. Is a lawyer by profession and had no axe to grind against the accused. He has also supported the story contained in the F.I.R. And, therefore, I am convinced that the eye-witnesses had acttially seen the occurrence and were present when it took place. I have no reason to disbelieve them. Their presence at the time and place of occurrence appears to be quite genuine and natural and therefore, they could not be dubbed as chance witnesses.
22. Learned counsel for the accused has submitted that a number of relatives of the complainant were present in the wagon who could have easily apprehended the accused after the incident and since the said persons including the eye-witnesses did not make any efferft in that regard their presence would be considered to be doubtful. Admittedly none of the P.Ws. Was armed. The accused, who was armed with a carbine had started running away from the scene of occurrence.
Naturally it would have taken sometime for the witnesses to come out of the wagon and give a chase to the accused which had helped him to escape. Even otherwise when the accused was armed with a fire-arm it was not easy for the P.Ws. To give him a chase and try to apprehend him, as such this circumstance does not discredit the eye-witnesses.
23. Learned counsel for the accused has further contended that the ocular evidence was in conflict with the medical evidence and, therefore, in the presence of such a conflict the ocular evidence is to be rejected. According to him the deceased was tired at from a close distance and therefore, the entry wound on his body should have blackening on the edges and as there was no such blackening the prosecution story would stand falsified. Secondly it was contended that since the accused had fired straight at the deceased the entry wound on the latter's body should have been round in shape and not oval as described by the Medical Officer in the post-mortem examination report. The aforesaid contentions have no force. Blackening on a wound caused by a firearm is caused when the shot is fired from a distance of 4 feet or less. In the present case the material on record does not show that the accused had fired at the deceased from such a distance. Even otherwise blackening on the wound could not have been caused because the deceased was wearing so many clothes at the time of the occurrence. Exh.P.A. Shows that the deceased was.
Wearing a vest, a shirt, a woollen sweater, a Jarsi, a woollen Shawl and a loin cloth. In this state blackening on the wound was well-nigh impossible even if the shot had been fired from a close range. As regards the shape of the wound, since the deceased at the relevant time was climbing the wagon he was at a higher level than the accused and, therefore, due to this fact it could not be said that he (F had been fired at straight from even height. I; therefore, find that there is noll serious conflict between the ocular and medical evidence.
24. Last of all learned counsel for the accused submitted that the deceased had a lot of other enemies and therefore, possibility could not be ruled out that he had been done to death by one of those enemies. It is true that during the trial when the complainant was cross-examined it was brought on record that the deceased had other enmities also but I am not persuaded to believe this version because the occurrence in the present case had been witnessed by reliable witnesses who have clearly deposed that it was the accused who was responsible for causing the death of the deceased. In the presence of such an evidence the contention of the learned counsel is rendered untenable. Even otherwise why the complainant and. The other eye-witness should have falsely implicated the accused letting off the real culprit. The ocular evidence on G record and the attending circumstances rule out the possibility of substitution in this case.
25. In view of the above discussion I am of the opinion that the prosecution had established the guilt of Khizar Hayat accused and, therefore, he was rightly convicted by the learned trial Court under section 302, P.P.C. His conviction is upheld.
26. As regards the sentence, in the circumstances of the case when the motive had not been proved and it remained shrouded in mystery and when the accused had fired a single shot, I am of the opinion, that the learned trial Court I had properly exercised its discretion to award lesser penalty. I am not persuaded to hold that the sentence in the present case requires enhancement and, therefore, the same is also upheld.
27. The upshot of the above discussion is that the appeal of the accused and j the revision petitions by the complainant and the State are dismissed.