' DR. KHALID RANJHA, J.--- Muhammad Rafique alias Kukoo, Muhammad Ayub alias Kala, and Muhammad Aslam were tried alongwith Maqbool Hussain and Abdul Ghafoor by the Judge, Punjab Special Court for Speedy Trials No, VIII, Sargodha. The learned Judge vide his judgment dated 11-10- 1988 acquitted Maqbool Hussain and Abdul Ghafoor. However, Muhammad Rafique, Muhammad Ayub and Muhammad Aslam were found guilty under section 302/34, P.P.C. And sentenced to death with a fine of Rs,30,000 each or in default to suffer three years' R.I. Each. Muhammad Aslam was also found guilty under section 404, P.P.C. Sentenced to two years' R.I. And a fine of Rs,5,000 or four months' R.I. In default. Out of fine, if recovered, Rs,50,000 was to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
2. Muhammad Aslam, appellant, died on 17-7-1996 due to Cardio Pulmonary Arrest while lodged in Central Jail, Faisalabad. His death certificate has been produced by the learned counsel and the same has been placed on record. His appeal, therefore, stands abated.
3. Javed Hassan Shah (P.W.1) lodged a report at Police Station, Shahpur City on 26-4-1988 at 7-30 a.m. Alleging therein that he and his father Syed Murtaza Shah had gone to their Dera in the morning to have a look at the animals. Latter was carrying his licensed gun with him. At about 6-30 a.m. He along with his father were coming back. When they reached near Hassan Shah's land, Muhammad Rafique alias Kukoo, Muhammad Ayub alias Kala and Muhammad Aslam emerged from the vegetable field of Hassan Shah armed with .12 bore guns. All the three, accused raised Lalkara and Muhammad Rafique fired at his father Syed Murtaza Shah hitting him on the left side of his chest.
' Thereafter, all the three came close to Murtaza Shah lying fallen and gave fire shots hitting him on his face and arms. As a result of these injuries Murtaza Shah died. Thereafter, the accused ran away and also took away the licensed gun of the deceased.
' The motive behind the occurrence was that the accused were inimically deposed towards the deceased. Muhammad Rafique etc. Were in illegal possession of the land belonging to Umar Hayat. The deceased had opted to take that land in exchange with his land and had also executed the requisite documents in this behalf. To pre-empt the deceased from doing so, the accused had murdered him.
4. After recording the F.I.R. (Exh.P.A.) Muhammad Pervaiz Iqbal, Inspector (P.W.16) reached the spot.
He prepared the inquest report and injury statement of the deceased and took into possession the blood-stained earth vide memo. Exh.P.K. From the spot he also recovered one empty P.1 vide memo. Exh.P.F. From a distance of two Karams from the deceased and three empties-P.2/1-3 from near the dead body vide recovery memo. Exh.P.G. In aid of the story of motive, he collected, documents Exh.P.B., Exh.P.B./1, Exh.P.C. And Exh.P.D. Vide memo. Exh.P.E. The last worn clothes of the deceased were taken into possession vide memo. Exh.P.J. And the site plan Exh.P.L. Was also got prepared through Abid Ali, Patwari (P.W.9).
5. The empties recovered at the spot were sent to the office of Technical Services on 2-5-1988. On being arrested both Muhammad Rafique and Muhammad Ayub led to the recoveries of their guns which were taken into possession on 24-5-1988 vide memo. Exh.P.N. And Exfi.P.O. Muhammad Aslam, was apprehended on 28-5-1988 alongwith gun Exh.P.8 which was taken into possession vide memo. Exh.P.M. He also led to the recovery of gun P.15 belonging to the deceased. The same was taken into possession vide' tnemo. Exh.P.Q. Whereas this gun was kept in Malkhana and the other three were sent to the Forensic Science Laboratory through Muhammad Nawaz (P.W.12).
According to the test carried out by the Technical Services empty C.1 which had been recovered from a distance of two Karams from the deceased matched with the gun of Muhammad Rafique, appellant, whereas the remaining three empties which were found lying close to the dead body matched with the guns of Muhammad Ayub, Muhammad Rafique and Muhammad Aslam, accused.
6. In the event of completion of investigation, the case against the appellants and two others was sent up for trial before the Speedy Trials Court.
In the course of trial, eye-witness account was furnished by the first informant---Syed Javad Hussain Shah (P.W.1). He is son of the deceased. He gave a consistent account of the occurrence and stood the test of prolonged cross-examination. The version put forth by the accused was that at about 5 a.m. When the deceased was coming alone towards his Dera from Khushab City, he had fired at Muhammad Aslam, accused, injuring his left foot. In turn, Muhammad Aslam, in exercise of right of private defence, had fired 2/3 shots at the deceased, and that it was an unwitnessed occurrence. Rana Muhammad Hayat, who was not related to the deceased in any manner, appeared as (P.W.2). He deposed that on the day of occurrence he had gone out in the fields to ease himself and he had seen the occurrence. He fully supported P.W.1 and also confirmed the recoveries of empties from the spot i,e, crime-empty P.1(C.1) was recovered from the place where Muhammad Rafique had fired at the deceased whereas three empties P.2/1-3 (C.2, C.3 and C.4) were recovered from near the dead body where from all the three accused/appellants had fired at the deceased. According to the defence, this witness was a political ally of, the deceased and on that account was deposing falsely:
7. Dr. Zulfiqar Aziz, Medical Officer (P.W.3) proved the post-mortem examination report Exh.P.H. And explaining the blackening around some of the wounds stated that it could occur as a result of fire shots from the distance of one foot. The pattern of injuries found by him on the person of the deceased was as under:--
(1) A fire-arm wound 8 c.m. x 6 c.m. On the area of right eye and the right eye ball was wasted.
Orbital bones were fractured. Blackening and tattooing was present around the margins of the wound. The edges were inverted. It was the wound of the entry.
(2) A wound of exit, lacerated 8 c.m. x 8 c.m. On the left cheek, all the underlying structures was wasted. The face bones of left side was wasted. Between injuries Nos.1 and 2 only a piece of skin was present over the bridge of the nose.
(3) Six fire-arm wounds of entrances circular in shape, each 1 c.m. x 1 c.m. In an area of 8 c.m. x 6 c.m. On front of left side of chest, just above the cardial area.
(4) A fire-arm wound 6.5. c.m. x. 5 c.m. On back of right elbow-joint. There were balckening and tattooing around the wound. This was wound of entry. All the orbital fossa was wasted. Bones of right elbow-joint were wasted. There was an exit wound of 10 c.m. x 6 c.m. On the other side of the wound.
(5) A gun shot wound in an area of 8 c.m. x 6 c.m. Which (caused tissue damage on front of the left elbow-joint. Margins were inverted front inner side and everted from outer side.
(6) Two gun shot wounds on front of the left upper arm 1 c.m. x 1 c.m. Each.
(7) Three fire-arm wounds in area of 6 c.m. x 6 c.m. On the outer and lower side of right chest.
' In the opinion of the doctor, death had occurred due to haemorrhage and shock. Injuries Nos.1, 2 and 3 were sufficient to cause death in the ordinary course of nature. All the injuries were ante- mortem and had been caused by firearm.
8. The recoveries of the fire-arms from the accused were established through P.Ws.12, 13, 14 and 15 read with statement made by the Investigating Officer.
The motive was sought to be proved through Umar Hayat (P.W.10) who deposed that he owned 250 Kanals of land in Shahpur City. Muhammad Rafique and Muhammad Ayub alongwith his father Fateh Muhammad and Muhammad Aslam had illegally taken the possession of his land. He wanted to transfer his land but Fateh Muhammad father of Muhammad Rafique, accused/appellant had filed a suit against him and obtained stay order to prevent him from transferring the land. This stay order was vacated on 16-3-1988 and he made arrangement for exchange of his land with the deceased. In this behalf agreement had also been executed between them a day before the occurrence. He proved the agreement Exh.P.B. And for which he had obtained Jamabandi/Fard Exhs.P.C. And P.D. a couple of days earlier. He also deposed about the preexisting rancour between the parties. Muhammad Pervaiz Iqbal (P.W.16) deposed about all the steps taken by him in the course of investigation.
9. The accused pleaded false implication except for Muhammad Aslam. As far as the possession of the land is concerned, it was stated by the accused that their possession was not illegal. It was rather warranted by a Court order, obtained by them, against Umar Hayat (P.W.10). The recovery of empties from the spot was denied being fabricated. According to Muhammad Rafique, accused/appellant, the police had taken his licensed gun on 26-4-1988 and procured empties by firing the same. Muhammad Aslam had taken the plea of self-defence in the following terms:- "Due to enmity and political rivalry with the complainant and the P.Ws., as I belonged to their opposite faction. The case against me has been wrongfully planted.
' As a matter of fact I fired in my self-defence and the relevant police arrested me from my Dera after about three days of the occurrence and kept me at different places and continued treating me there from some doctors to heal the injury sustained by me."
10. It has been argued on behalf of the appellants that it was Muhammad Aslam (now dead) who had caused injuries to the deceased in exercise of his right of self-defence and that the accused party was not in illegal possession of the land of Umar Hayat, it was rather sanctioned by a Court order.
11. The plea of self-defence taken by the accused---Muhammad Aslam does not appeal to reason at all. Defence has not even cared to produce the doctor to prove the alleged injuries on the person of Muhammad Aslam. The prosecution, on the contrary, has brought on record the report of Technical Services to prove that the injury alleged to be found on the heal of Muhammad Aslam at the time of his arrest was fake. The plea of defence put up by Muhammad Aslam is not very plausible. It is, thus, ruled out of consideration as an afterthought measure to meet the prosecution case.
12. As far as the other appellants are concerned, they have taken the plea of denial. It becomes necessary, therefore, to examine the evidence to see whether the prosecution, has been able to establish its case beyond reasonable doubt.
The eye-witnesses account has been furnished by the first informant supported by an independent witness namely Muhammad Hayat (P.W.2). Account given by both the witnesses is consistent. They have stood the test of lengthy and gruelling cross-examination. The crime-empties recovered from the spot had been promptly despatched to the Forensic Science Laboratory long before the arrest of the accused. The guns had been recovered from the accused almost a month thereafter. The prosecution has led evidence that the empties from the spot had been secured in properly sealed parcels and had been retained safely in the Malkhana. Nobody had interfered with the parcels before their despatch to Forensic Science Laboratory. These empties matched with the guns in recovered from the accused. The empty which was recovered from the place where Muhammad Rafique fired matched with his gun and the empties which had been recovered from near dead body wedded with the guns of all the three appellants. This is a strong incriminating evidence against the accused and duly corroborates the ocular account given by the eye-witnesses. The fact that injuries sustained by the deceased after having fallen down carry blackening also speaks for the veracity of the eye-witnesses narration of the incident. The motive set up by the prosecution also stands fully proved. In short, the eye-witnesses are fully corroborated by the evidence of incriminating recoveries as well as the medical and motive evidence. The occurrence took place in early morning at about 6-30 a.m. In April when every one would be up and around in the town.
Presence of witnesses at the place of occurrence has been proved and defence has been unable to point out a single factor which would warrant a contrary view to be taken. There is no serious background of enmity between the eye-witnesses and the accused/convicts, and no reason has been shown as to why the prosecution a witnesses would have deposed against the accused.
Defence had tried to set up a plea that the incident was rooted in political rivalry. Neither the convicts nor anyone of their close relatives were shown to have political clout or to have actively damaged the deceased or the complainant in the achievement of their political ambitions. The defence plea in this regard found to be without foundations.
13. The upshot of the above discussion is that the prosecution has proved the case against the appellants beyond reasonable doubt. As Muhammad Aslam, appellant had died, his appeal, of course, stands bated. However, as far as Muhammad Rafique, appellant is concerned, first shot is attributed to him. His role stands fully established from the prosecution evidence. His death sentence, therefore, is confirmed.
14. Regarding Muhammad Ayub, appellant, he fired shots with other, two accused when the deceased lay injured by the shot fired by Muhammad Rafique. It is difficult to ascertain whether fatal shot was fired by him or not? He is, therefore, entitled to lesser sentence. Consequently, sentence of death imposed on him is converted to life imprisonment and fine also is reduced to Rs,20,000 or one year's R.I. In default. He is also given benefit of section 382-B, Cr.P.C. The entire fine, if recovered, shall be paid to the legal heirs of the deceased by way of compensation under section 544-A, Cr.P.C.
15. With above modification in sentence imposed on Muhammad Ayub, the appeal is dismissed.