SARDAR MUHAMMAD DOGAR, J---Ghulam Qasim alias Qasoo and Sahib Dad were tried by Additional Sessions Judge Shorkot, District Jhang, in case F.I.R. No,37, registered on 5-3-1993 at Police Station Ahmadpur Sial, District Jhang under section 302/34, P.P.C. and section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 for having forcibly snatched Rs,365 from Muhammad Hayat alias Haito and for having committed murdered him on 5-3-1993 at 7.00 a.m. at kajbah 1-L/3-L within the area of village Pir Abdul Rehman at a distance of 22 k.ms from Police Station Ahmadpur Sial.
Learned trial Judge vide judgment dated 7--8-1996, convicted both of them under section 302/34, P.P.C., and sentenced each of them to death plus to pay a sum of Rs,10,000 each to the heirs of deceased Muhammad Hayat as compensation.
They were also convicted under section 392, P.P.C., and each was sentenced to undergo R.I. for seven years plus to pay a fine of Rs,5,000 each, in default whereof to further undergo R.I. for three months each.
2. Appellant Sahib Dad has challenged his convictions and sentences through Criminal Appeal No,231/L of 1996. While Ghulam Qasim alias Qasoo have filed Criminal Appeal No,96/L of 1997.
Learned Additional Sessions Judge has also forwarded murder reference to this Court which was registered as Criminal Murder Reference No,3/L of 1996. As both the appeals and murder reference have arisen from the same judgment, they are being disposed of together.
3. F.I.R. Exh.PJ was recorded at the police station by Rab Nawaz, Inspector/SHO (P.W.11) on 5-3-1993 at 10.15 a.m. on the statement of Ahmad Bakhsh (P.W.9).
According to F.I.R. Muhammad Hayat deceased sister's son of the complainant used to ply Tonga.
On the day of occurrence complainant had gone to Chah Budhaywala in connection with some personal work at 5-30 p.m. in the Tonga of Muhammad Hayat deceased which was driven by him.
While returning from Chah Budhaywala, they reached Rajbah 1-L/3L Pir Abdul Rehman opposite to Chah Nusrat Wala in the area of village Kassoara at 7-00 a.ni. Sahib Dad and Ghulam Qasim armed with pistols were standing at the service road.
At pistol point they stopped the Tonga and made the complainant and deceased come down the Tonga, and told them to hand over everything they had with them. Complainant had no money with him. Sahib Dad forcibly removed a sum of Rs,365 from the pocket of Muhammad Hayat.
Ghulam Qasim told them to leave Tonga and horse, Muhammad Hayat caught therein of the horse and refused to hand over the Tonga , whereupon Sahib Dad fired a shot which struck Muhammad Hayat at the chest. Shot fired by Ghulam Qasim hit Muhammad Hayat on the left arm-pit.
Muhammad Hayat fell down and died. The accused wanted to take away Tonga but in the meantime Ghulam Shabbir and Mumtaz Hussain P.Ws. had reached the spot hearing the alarm raised by the complainant. They had witnessed the occurrence. Accused on seeing them left the Tonga and entered nearby garden from where they succeeded in running away.
4. Malik Rab Nawaz S.H.O. after registering the case, reached the spot. He despatched the dead body for post-mortem after preparing injuries statement Exh. PD and inquest report Exh. PE. Blood- stained earth was collected by him from the spot vide memo. Exh. PF. Two empty cartridges, Exh.
P.3/1-2 found lying near the dead body were taken into possession by him vide memo Exh.PG. He sealed the cartridge in a parcel. Tonga Exh. P4 was taken into possession by him vide memo Exh.PH.
Last worn clothes i,e, blood-stained shirt Exh.P1 and Chaddar Exh.P2 of the deceased produced before him by Arshad Ali constable after post-mortem were taken into possession by him vide memo Exh.PB. He deposited the parcels with MHC. Thereafter, he was transferred and investigation was taken up by Mukhtar Ahmad S.I. He arrested both the accused on 20-3-1993. Pistol Exh. 5 got recovered by Ghulam Qasim on 27-3-1993 from near a bunch of date trees in Chah Sangha Wala in the area of Pir Abdul Rehman, was taken by him into possession vide memo. Exh.PI. After completion of necessary investigation he got the challan submitted to Court through S.H.O.
5. Statement of twelve P.Ws. were recorded at the trial.
Dr. Ahmad Ali Jaffri who had performed autopsy on 5-3-1993 at 7-00 a.m. appeared as P.W.S. He had noted following injuries on the dead body:-- "1. A wound of entry of a bullet 3/4 x 3/4 c.m. x cavity deep on the front side of left part of the chest.
5 cm above the left nipple. Margins of the wound were inverted and there was blackening around the wound.
2. A wound of entry of a bullet 3/4 x 3/4 c.m. x cavity deep on the outer side of left part of the chest.
5 c.m. away from the left nipple. Margin were inverted and there was blackening around the wound.
3. A wound exit 3/4 x 3/4 c.m. on the back side of the right part of the chest just below scapula of the margins of the wound were evened.
4. A wound of exits of a bullet 1/1/2 x 1 c.m. on the outer and back side lower part of right side of the chest. The margins of the wound were evened."
Scalp, skull, vertebrea, membrance, spinal cord were healthy and intact. On opening, the pleaure and both lungs, heart and both ventricls were found injured.
According to his opinion, death had occurred due to shock and haemorrhage resulting from injuries Nos.1 and 2 which were opined to be sufficient to cause death in the ordinary course of nature. Probable duration between injuries and death was opined to be immediate while line between death and post-mortem was opined to be 8 hours and 45 minutes.
6. Ahmad Bakhsh complainant while appearing as P.W. 9 re-narrated the facts given by him in the F.I.R. Exh.PJ. During cross-examination he stated that he had to go to Chak Budhey Wala and he had told the deceased his programme preceding night. He stated that as it was 10th of Ramazan, he was keeping fast but he was unable to state whether deceased was keeping fast or not.
According to him the house of Mumtaz P.W. was at a distance of 5 Killas from the place of occurrence, while the house of Ghulam Shabbir was at a distance of one Killa from his house. While admitting that name of wife of deceased was Munni, he denied the suggestion that'she had previously been engaged to Ashraf Ali. While admitting that he knew Asif Shah and he had married in the family of Sargana Sial he denied the suggestion that Ghulam Qasim Sargana was annoyed over this marriage. He stated that he knew Mulazim a brother of Ghulam Qasim accused. He admitted that Mulazim Hussain had murdered one Zafar Pathan and his maternal uncle some time back. He stated that he had gone to Chah Budhey Wala at a distance of three miles to consult a Homeopathic doctor for treatment of his mother who was suffering from stomach cancer. He denied the suggestion that Sahib Dad was not previously known to him. He admitted that he knew Sarfraz Dubb who was a professor by profession. He expressed ignorance about the dispute of land between Sahib Dad and Sarfraz Dubb. He denied the suggestion that Muhammad Hayat deceased did not own Tonga or horse and that he was a personal servant of Maher Qasim Sargana. He denied the suggestion that Ghulam Shabbir was a bodyguard of Ghulam Qasim Sargana and Mumtaz P.W. was his personal servant. The suggestion that the deceased was murdered by some unknown persons at night and case had been registered against the accused through Ghulam Qasim Sargana by his friend Sarfraz Professor was denied by him. He stated that the garden to which the accused had run away was beyond Rajbah which had 15/16 feet width.
7. Mumtaz Hussain, P.W. 10 during Examination-in-chief corroborated the statement made by Ahmad Bakhsh, P.W.9. During cross-examination, he stated that they (himself and Ghulam Shabbir) were going to Chah Budhaywala to meet Mulazim Khan for getting labour charges from him. He stated that they had left their village at 6-7 a.m. Answering another question he stated that they had not met any person on way upto the place of occurrence. He explained that they were at distance of 20/21 Karams when they first saw the accused, complainant and the deceased.
According to him, Tonga was coming from the northern side. He stated that the police had arrived at the spot at 10.30/11.00 a.m. and recorded his statement at the spot. He explained that neither he had visited Sahib Dad nor Sahib Dad had visited him. However, he denied the suggestion that he did not know Sahib Dad accused. He denied the suggestion that he was personal servant of Ghulam Qasim Sargana. The suggestion that the deceased was murdered during night at odd hours and that he had become a false witness at the instance of Ghulam Qasim Sargana was denied by him.
8. Malik Rab Nawaz, Inspector who had registered the case, visited the spot on the day of occurrence, sent the dead body for post-mortem after preparing necessary papers, collected blood-stained earth and two empties from the spot, taken into possession last worn clothes of the deceased after post-mortem and recorded statements of the witnesses appeared as P.W.11 and deposed those facts. During cross-examination he admitted that he had not noted presence of Toga in column No,23 of the inquest report. While admitting that he had not recorded number of the F.I.R. in the inquest report he denied the suggestion that it was for the reason that by that time case had not been registered. The suggestion that he had received information about the occurrence at the police station at about 7-00 a.m. and thereafter, had gone to the place of occurrence without recording F.I.R. and had drafted the F.I.R. at the spot after preliminary investigation was denied by him. He admitted that when he had reached the spot, Mehr Ghulam Abbas Sargana was present there. He expressed inability to state that whether water was flowing in the Rajbah on his arrival at the spot or not while admitting that he had not mentioned the number of empties in column No,3 of the inquest report he explained that it was not necessary. He denied the suggestion that he had falsely involved the accused in this case at the instance of Mehr Ghulam Qasim Bharwana.
9. Mukhtar Ahmad, S.I., who had been entrusted the investigation of the case on 13-3-1993 after transfer of Malik Rab Nawaz, Inspector, appeared as P.W.
12. He stated that he had arrested both the accused on 20-3-1993. According to him, Ghulam Qasim had got recovered pistol P.5 wrapped in a plastic cover from near the roots of a date tree in the area of village Pir Abdul Rehman which he took into possession vide memo Exh.PI. During cross-examination he stated that both the accused were residents of two adjacent villages in the area of Police Station, Mochiwala which was at a distance of about 100 miles from the place of occurrence. He denied the suggestion that no recovery had been effected at the instance of Ghulam Qasim. According to him there was no Abadi near the place of recovery. He denied the suggestion that the place of recovery was a thoroughfare.
10.Ghulam Fareed, Constable who had been entrusted sealed parcels containing blood-stained earth and crime empties on 15-3-1993 and who had deposited the same in the office of the Chemical Examiner and the Forensic Science Laboratory on 16-3-1993 and had also delivered sealed parcel containing pistol in the office of Forensic Science Laboratory on 13-4-1993 on being given to him by M.H.C. on 12-3-1993 appeared as P.Ws. 3 and stated so. He stated that so long the parcels remained with him, they remained in tact. He was not cross-examined.
Statements of remaining P.Ws. are more or less of a formal nature. Positive report Exh. PL from the office of Forensic Science Laboratory was also tendered in evidence.
11.Appellants during statement under section 342, Cr.P.C. denied the prosecution case and pleaded innocence.
Ghulam Qasim stated as follows in answer to the question "why this case against you and why the P.Ws., had deposed against you"-- "All the P.Ws., are under the influence of Mehr Ghulam Qasim Sargana and they have deposed against me on his instance."
Sahib Dad, appellant stated as follows in answer to the same question:-- "I reside in Chak No,170/JB, Police Station Mochiwala, which is at a distance of 100 miles from the place of occurrence. I had nothing to do in Mouza Pir Abdul Rehman and its surrounding areas but one Sarfraz residence of Dubb Kala, which is at a distance of 4/5 miles from the place of occurrence owns some agricultural land in my village. I had a dispute with him over land. Said Sarfraz Khan is a personal friend of Mehr Ghulam Qasim Sargana, a big landlord of the locality, Mehr Sarfraz manoeuvred to get me involve in this case falsely through Mehr Ghulam Qasim Sargana. It was a blind murder, committed at night and I have been roped in as stated above. All the P.Ws., are his personal servants and are under the influence of said Mehr Ghulam Qasim Sargana".
Both of them declined to make statements on oath under section 340(2), Cr.P.C. Although Ghulam Qasim initially had stated that he will produce evidence in defence but on 10-4-1996 he made statement that he does not want to produce. evidence in defence.
12. Learned counsel for Ghulam Qasim, appellant after taking us through the evidence criticised the impugned judgment and contended that the occurrence in this case, appears to have taken place during early hours of the morning without being witnessed by any one, that the ocular account furnished by P.W.9 and P.W.10 does not inspire confidence, that both of them do not appear to have witnessed the occurrence, that according to the prosecution motive for the occurrence was commission of dacoity, if that was so, the appellants would not have committed this occurrence as they would not have travelled to the place of occurrence all the way from their villages which were at a distance of about 100 miles from the place of occurrence just to rob a tongaywala, that the stance of eye-witnesses that the accused after commission of the occurrence had entered the garden cannot be safely relied upon as according to P.W. 9 (during cross-examination) the garden was across the Rajbah which had a width of 15/16 feet and the accused could not have crossed easily and quickly. The learned counsel contended that as nobody had joined to witness the recovery proceedings of the pistol at the instance of Ghulam Qasim from the vicinity, the statements of recovery witnesses should not be relied upon because they appear to have been falsely set up as P. Ws.
Learned counsel for Sahib Dad appellant while reiterating the arguments advanced by the learned counsel for Ghulma Qasim submitted that case of Sahib Dad have distinct features, in that, he contended that no weapon had been recovered from Sahib Dad, that both the empties recovered from the spot were found to have been fired from the pistol allegedly recovered from Ghulam Qasim and that since prosecution case was that only two shots had been fired at the deceased and two empties were recovered from the spot, the shot assigned to Sahib Dad appears to be fabrication. Lastly learned counsel reiterated the stand of Sabib Dad that Sarfraz Khan with whom he had land dispute had got him involved in this case in connivance with Mehr Ghulam Qasim Sargana, a big landlord of the area.
13.Prosecution case rests on ocular account, medical evidence, evidence of recovery of empties from the spot, evidence of recovery of pistol at the instance of Ghulam Qasim and the positive report from the office of Forensic Science Laboratory i,e, that two empties found from the spot were fired from the pistol recovered at the instance of Ghulam Qasim.
14.Ocular account has been deposed to by Ahmad Bakhsh, complainant, P.W.9 and Mumtaz Hussain, P.W.10 Ahmad Bakhsh made convincing statement. He gave reasonable and plausible explanation for being with the deceased at the time of occurrence. His claim of being with the deceased at the time of occurrence finds sound support from the fact that the occurrence was reported at the police station which was at a distance of 22 k.m. within about three hours. Had the complainant not been with the deceased and had he not witnessed the occurrence, the occurrence could not have been reported so promptly. The suggestion from the defence that he was not accompanying the deceased and that the deceased was done to death in the early hours of the morning and the police came to the spot hearing about the occurrence, sent for the complainant and then reported the F.I.R. stands contradicted not only from the fact that the occurrence was reported within the shortest possible time but also from the fact that the medical evidence lends full support to that.
Dr. Ahmad Ali Jafri who had performed autopsy on 5-3-1993 at 3.45 p.m. gave probable duration of injuries as eight hours and forty five minutes. This is almost in line with the time of occurrence stated by the complainant and recorded in the F.I.R. The opinion of the doctor who was an independent witness and had nothing common with the deceased or the complainant clinches the matter of time of occurrence.
The complainant had not previous enmity whatsoever with any of the appellants. Of course he knew them. Even the appellants did not suggest that any of them had any direct enmity with the complainant. He had rejected the suggestion with emphasis that he had got the case registered under the influence of Mehr Ghulam Abbas who had been approached in that regard by Sarfraz, his friend who was a Professor.
15.Mumtaz Hussain, P.W.10, the other eye-witness used to earn his livelihood as a labourer. Had he not witnessed the occurrence he would not have consented to become a false witness in a murder case where the accused were alleged to have murdered a man only for the reason that he resisted robbery of his Tonga. After all why should Mumtaz Hussain had entered an arena which could land him in trouble in future by creating enmity with such like people? The suggestion that he was perosnal servant of Mehr Ghulam Qasim Sargana and had become a false witness at his instance was categorically denied by him. He had no enmity whatsoever with any of the appellants. In fact no suggestion even was put to him in that regard.
Both the witnesses made cogent and unbiased statements and they appeared to be trust worthy.
16.The statements of the eye witnesses that the deceased was fired at on the chest and left arm pit find complete corroboration from the medical evidence. Exh.P.C/1 diagram of injuries prepared by Dr. Ahmad Ali Jafri is quite clear on the point.
17.The evidence of recovery of two empties from the spot, was deposed to by Manzoor Hussain, P.W.7 and Rab Nawaz, Inspector. Manzoor Hussain although was a maternal cousin of the deceased but he had no enmity whatsoever with the appellants. He had come to the spot after learning about the occurrence at about 8.00 a.m. The empties were not 'recovered at the instance of anybody and were found lying at the spot near the dead body. At that time it was not known to the witnesses as against whom the empties will play a role of incriminating nature. Rab Nawaz, Inspector was also not a biased person. His statement about collection of empties from the spot was in sequence with the steps he had taken during spot inspection. --- The contention of the learned counsel that he had not mentioned the presence of empties in Column No,3 of the inquest report stands repelled by the statement of Inspector that it was not necessary. Omission of the Inspector to note that fact cannot be read to mean that he had fabricated the evidence of recovery of empties.
18.The evidence of recovery of pistol at the instance of Ghulam Qasim was deposed to by Abdul Majeed, P.W.8 and Mukhtar Ahmad, S.I. P.W.12. Abdul Majeed was not related to the deceased or the complainant. He had no bias against Ghulam Qasim. Perhaps they did not even know each other prior to the recovery of pistol. His statement finds corroboration from the testimony of Mukhtar Ahmad, S.I., P.W.10. Testimony of both of them inspires confidence and as such reliance can be safely placed upon on their statements.
19.The parcel pertaining to the empties which had been deposited in the Malkhana of the police station was delivered in the office of the Forensic 'Science Laboratory on 16-3-1993 by Ghulam Farid, Constable. Ghulam Farid appeared as P.W.3. Irshad Hussain, Moharrir H.C. with whom the parcels were deposited by the Investigating Officer appeared as P.W.2. Both of them stated, that so long the parcels remained with them nobody had tampered with them. Parcel containing pistol, recovered at the instance of Ghulam Qasim, was also deposited with Irshad Hussain, H.C. Ghulam Farid, Constable P.W.3 who had been entrusted the said parcel by Irshad Hussain. H.C. had delivered the said parcel in the Forensic Science Laboratory on 13-4-1993. Both of them had attested that so long the parcel remained with them it had remained in tact. The statements of both the witnesses were not challenged. None of them was cross-examined in spite of opportunity.
Report from the Forensic Science Laboratory was tendered in evidence as Exh.P.L. According to the report both the empties were found to have been fired from the pistol recovered from Ghulam Qasim.
20. The argument of the learned counsel for the appellants that the eye-witnesses do not appear to have witnessed the occurrence and that the occurrence appears to have taken place some time in the early hours of the morning during darkness and the F.I.R. was lodged after preliminary investigation stand repelled in view of the observations made in the earlier part of the judgment.
Their stance that if the appellants at all had to commit dacotiy of a Tonga they would not have travelled all the way from a distance of about 100 miles to the place of occurrence to commit such a dacotiy, has not impressed us at all. The dacoits and the bandits do not leave their houses or huts to commit dacotiy of a particular item unless of course they have a plan to loot a bank. It is common knowledge, and deep insight is not required to say that the thieves and dacoits normally avoid committing dacoities and looting people around their own areas, if not out of regard for the people living around them at least due to fear of easy identification. There is a saying in this part of the country that even the devil spares hundred houses around their abode.
21.Notwithstanding the fact that we have held that eye-witnesses in this case had made cogent statements and were trustworthy, still we are of the view that for safe administration of justice, in cases of capital sentence, corroboration of the ocular account by related P.Ws. other than the medical evidence should also be looked for. We have examined the evidence keeping that fact in view.
22.Pistol alleged to have been used by Sahib Dad was not recovered from him nor was any other incriminating article or thing recovered from him. Mumtaz Hussain, P.W.10 during cross- examination had stated that he did not know where Sahib Dad resided. He also stated that Sahib Dad had never visited his house nor had he visited him. Although he denied the suggestion that he did not know Sahib Dad but the fact remains that possibility of his having not known Sahib Dad before the occurrence cannot be ruled out in view of the above noted statement made by him.
According to the eye-witnesses only two shots had been fired at the deceased. The doctor who had conducted autopsy had found only two entry wounds on the body of the deceased. Both the empties collected from near the dead body were found by the Forensic Science Laboratory to have been fired from the pistol recovered from Ghulam Qasim. In the circumstances, inculpability of Sahib Dad in the occurrence does not appear to be beyond reasonable doubts. The appeal filed by him is, therefore, allowed by way of abundant caution. He is in jail. He shall be released forthwith if not required in any other case.
23. Statements of the eye-witnesses qua Ghulam Qasim appellant are fully corroborated by the evidence of recovery of pistol at his instance and opinion of the Forensic Science Laboratory expert.
Both the empties found from the spot were found wedded with the pistol recovered from him. In the circumstances, we are fully convinced that the prosecution has been able to prove the case against Ghulam Qasim, appellant beyond any reasonable shadows of doubt. The appeal filed by him is, therefore, dismissed and the sentence of death awarded to him is confirmed.
We may mention here that before placing reliance on the statements of eye-witnesses in the case of Ghulam Qasim, we were conscious that the same have not been unequivocally relied upon in the case of Sahib Dad. Our reasoning for that is that the maxim "falsus in uno falsus in omni bus" was not of universal application and the Court can sift grain from chaff. The principle of 'falsus in uno falsus in omni bus" has all along been discarded by the Superior Courts of this country.
The net result is that Criminal Appeal No,231/L of 1996 filed by Sahib Dad is allowed and he is acquitted. Criminal Appeal No,96/L of 1997 filed by Ghulam Qasim alias Qasoo is dismissed and the sentence of death awarded to him is confirmed. Murder Reference No,3/L of 1996 filed by the learned trial Judge stands disposed of in above terms.