' The appellant Abdul Rauf alongwith Bashir Ahmad son of Dhoonda, Khalid Mahmood alias Mooda son of Muhammad Hussain, Khalid Mahmood alias Sain son of Muhammad Ramzan and Liaquat All alias Kala son of Muhammad Ramzan were tried under section 302/148/149, P.P.C. For a case registered against them vide F.1.R. No,125, dated 20-4-1991 at Police Station, Sadar Daska, District Sialkot for the murder of Sardar Haig son of Munshi Khan at about 6-45 a.m. On the same date while he alongwith Abdul Rehman and Aslam Baig were sleeping on the top of complainant's house for guarding their cattle.
2. On the conclusion of the trial the appellant was convicted under section 302-B, P.P.C. And sentenced to imprisonment for life and a fine of Rs,10,000 or in default to undergo further S.I. For six months. He was also directed to pay an amount of Rs,20,000 as compensation under section 544- A, Cr.P.C. To the legal heirs of the deceased or in default to undergo 6 months' S.I. He was given the benefit of section 382-B, Cr.P.C. The co-accused of the appellant were, however, acquitted after recording the conviction and sentence of the appellant as aforesaid vide judgment, dated 23-4- 1995 passed by Imtiaz Ahmad, the learned Additional Sessions Judge, Sialkot.
3. The brief facts are that on the unfortunate night the deceased Sardar Baig was sleeping on the top of the house with the forenamed P.Ws. That the appellant along with the co-accused named above came there at about Fajar prayer time i,e, at about 4-00 a.m. Out of them Abdul Rauf appellant was armed with .12 bore gun whereas the remaining assailants were carrying Dandas (Sotas). Bashir Ahmad accused shouted that all three abovenamed be killed as they were pursuing the litigation against the accused. The appellant thereupon fired at the deceased hitting his left buttock. The deceased got injured due to that fire whereupon the P.Ws. Abdul Rehman and Aslam Baig ran away by jumping from the roof. All the 5 accused aforenamed chased the P.Ws. But the latter managed to escape by hiding themselves in the nearby wheat crop. The fire shot attracted Rehmat Baig and Riaz Ahmad to the spot who took the deceased in injured condition to the Civil Hospital, Daska from where he was referred to Civil Hospital Sialkot as the Medical Officer of Civil Hospital, Daska was of the view that the deceased was in serious condition and could not be adequately treated in the Tehsil Headquarter Hospital, Daska.
4. Muhammad Tufail, A.S.-I., Police Station Sadar Daska reached Allama Iqbal Memorial Hospital, Sialkot where he recorded the statement Exh.P.F. Made to him by the deceased Sardar Baig while he was in injured condition. That statement was thumb-marked by the aforesaid Sardar Baig. After registration of the case vide F.I.R. Exh.P.F./1 under section 324/148/149, P.P.C., the offence was converted under section 302/148/149, P.P.C. When the abjured Sardar Baig had expired in the hospital on the next following day i,e, 21-4-1991 on account of the injury suffered by him during the occurrence. The motive about the occurrence was that there was some litigation between the accused side and the complainant side which was protracting on. The accused party committed the assault on the unfortunate night to get rid of the P.Ws. Namely Abdul Rehman and Aslam Baig so that the litigation may come to an end. The deceased fell victim whereas the P.Ws. Namely Abdul Rehman and Aslam Baig managed to escape although it was shouted by the accused Bashir Ahmad that all three of them should be done to death.
5. The occurrence was seen by Abdul Rehman P.W.2 and Aslam Baig P.W.3. The blood-stained earth was recovered from the spot vide memo. Exh.P.A. In the presence of the aforesaid witnesses. The blood-stained Chadar was secured vide Exh.P.B. In the presence of the aforesaid witnesses. The weapon of offence was recovered from the appellant Abdul Rauf on 9-5-1991 in the presence of Muhammad Munir. P.W.5 and Waris Ali given up P.W. And Muhammad Arif P.W. Not produced. No crime-empty was collected by the police from the spot of occurrence.
6. The learned trial Court believing the ocular account of occurrence came to the conclusion that the offence under section 302-B, P.P.C. Was proved against Abdul Rauf appellant beyond any reasonable doubt whereas the remaining accused were acquitted after giving them the benefit of doubt. The recovery of the weapon of offence from Abdul Rauf appellant was, however, disbelieved by the learned trial Court.
7. It is contended by the learned counsel for the appellant that the learned trial Court was misled to rely on the statement of the deceased recorded by the A.S.-I. While he was stated to be in injured condition. In this respect, it was submitted that in fact no such statement was made by the deceased while in injured condition, but was prepared by the police at the instance of the complainant party as they wanted to rope the accused party to take revenge from them for the litigation pending between the two sides. In this regard, the learned counsel for the appellant further contended that the deceased was in a serious condition when he was brought to the Civil Hospital, Daska and on account of his deteriorating condition he was shifted to Allama Iqbal Memorial Hospital, Sialkot for further treatment. It was, therefore, submitted that it would have not been possible in the ordinary course of events that on the same day the deceased would have been fit enough to make the statement as relied upon by the prosecution. Normally while in deteriorating health due to the alleged injury the deceased would not have been in a position to make a well-thought out statement to implicate all the accused by naming them clearly with specific parts attributed to them. In fact the deceased was allegedly not in such a health so as to make the statement. But to create a supporting evidence the A.S.-I. While in league with the complainant side had written out the statement Exh.P.F., which later on was converted into a dying declaration without producing any medical evidence that the deceased while in injured condition was fit enough to make the statement. Hence it was alleged that the statement Exh.P.F. Had no evidentiary value.
8. Secondly it was contended that admittedly the motive was between Abdul Rehman P.W. And Aslam Baig P.W. And as such if the prosecution version was true, then they would have been first victim instead of deceased who had no litigation whatsoever with the accused party; that since there was no motive against the deceased, therefore, it was not understandable as to why he was chosen as a prime victim instead of P.Ws. Forenamed. This allegedly showed that the prosecution case was not only fishy but based on conjectures and riddled with serious doubts. It has not been explained as to why Abdul Rehman and Aslam Baig had not become the complainant although they were present to see the occurrence. It is also not explained as to why the deceased had come to sleep with the aforesaid P.Ws. On the fateful night and why did he leave his own Dera and preferred to be with the P.Ws. At the time of tragedy.
9. Lastly it was contended that one of the, D.S.Ps. Namely Ghulam Sarwar had come to a conclusion during the investigation that all the accused were innocent. He was examined as C.W.1 in the Court below and had stated so up on oath. However, it was submitted by the same D.S.P. That Rana Bashir, D.S.P. Had found all the accused except Bashir Ahmad, guilty for the murder of the deceased. Finally it was contended that the appellant was with his in-laws on the day of occurrence for which he had led evidence during the trial and as such the case against him, was also doubtful particularly when on the same evidence his co-accused were acquitted by the learned trial Court. The same evidence could not be utilized to pass conviction of the appellant against whom the case was fairly doubtful.
10. The learned counsel appearing for the State contended that the prosecution had proved his case beyond any reasonable doubt. The mere fact that the accused party had no motive against the deceased would not make the prosecution case doubtful because Bashir Ahmad accused was shouting at the time of attack that all three of them may be finished. It is in that situation that the appellant fired at the deceased hitting him on his buttock.
11. The learned counsel for the State- also contended that presence of the deceased with Abdul Rehman and Aslam Baig P.Ws. On the night of occurrence could not be considered too he unusual because Abdul Rehman was his father-in-law and as' such the deceased might have come there at his request to guard their cattle.. Although there was no motive against the deceased but he was closely related to Abdul Rehman with whom the accused party had to settle the accounts. It is for that reason that a cry was made before the attack that all three of them be finished. The two witnesses namely Abdul Rehman and Aslam Baig, however, managed to escape by jumping from the roof and taking refuge in the nearby wheat crop. Meanwhile the other people came whereupon the assailants took to their heels. It is, however, submitted that although the doctor who had held on a petition Exh.P.G., that the deceased was fit for making the statement, has not been examined nor his name given in the list of P.Ws. But that would not make the statement of the deceased Exh.P.F. Doubtful particularly when it has been thumb-marked by him. As such the conviction and sentence passed upon the appellant by the learned trial Court was defended by the learned counsel for the State.
12. I have considered the arguments addressed from both sides. There is direct ocular evidence in this case. The parties are known to each other. The occurrence took place at about Fajar prayer time. The accused party came to the spot by raising Lalkaras that all three of them may be finished and out of them the appellant fired at the deceased which ultimately proved fatal. All this was seen by the eye-witnesses namely Abdul Rehman P.W.2 and Aslam Baig P.W.3, who managed to escape from the spot although they were chased by the accused party, but had hidden themselves in the Wheat crop and the accused had to take to their heels after the villagers were attracted to the spot. All the eye-witnesses have 'given consistent statements that the deceased was fired at by the appellant/convict. The seat of injury is corroborated by the medical evidence. In this respect statement of P.W.7 Dr. Sajjad Nabi Sian and Dr. Syed Sajid Ali Tirmizi P. W.10 would be relevant. The former had conducted the medico-legal examination, when the deceased was brought at Civil Hospital, Daska in injured condition on 20-4-1991. According to the medico-legal report the injury was found at the left buttock. The Tehband was marked and handed over to the party for producing before the police. The wound was bleeding profusely. The general condition of the patient was not satisfactory as he was in shock and semiconscious with cold sweating. The injury was caused with a fire-arm and was fresh in duration. The medico-legal report Exh.P.E. And the diagram of the injuries Exh.P.E./1 was prepared by the doctor and signed by him. This shows that the time of injury, the seat of injury and the weapon used for causing that injury corroborated the ocular evidence which was collected immediately after the occurrence. Likewise post-mortem report prepared by P.W.10 also corroborated the ocular account of occurrence regarding the injury suffered by the deceased. It is, thus, obvious that the medical evidence corroborates the I A ocular account of occurrence rendered by Abdul Rehman and Aslam Baig P.Ws. i,e, the eye-witnesses. It is true that there are some civil as well as criminal litigation between Abdul Rehman and the accused party. It has not been brought on record as to what was its magnitude and the time when it started between them. Any way there is evidence that there was a civil and criminal litigation between the accused party and Abdul Rehman, P.W., but not with the deceased. Anyhow as pointed out above the accused party had come while shouting that all the three namely the deceased, Abdul Rehman and Aslam Baig be finished, Unfortunately the deceased fell first victim whereas the P.Ws.
Aforesaid escaped from-the scene. It cannot be, therefore, said that since there was motive against Abdul Rehman P.W., therefore, he should have been the first victim. As already stated above the deceased was the'son-in-law of Abdul Rehman P.W., therefore, he was also privy to his relative and as such was made the victim because the accused had come with the intention to finish all three of them. Similarly the objection raised by the learned counsel for the appellant is not valid that since the remaining accused have been acquitted; therefore, the appellant cannot be convicted on the basis of the same evidence. The principle of sifting the grain out of chaff has been well-recognized to separate the innocent from the guilty for promoting the safer administration of criminal justice. The deceased was closely related to the P.Ws. And as such it is not expected of them that they will make him a victim in order to falsely implicate the accused party being their enemies. The defense plea in that respect does not appeal to the common sense, that to implicate the accused party the P.W. Abdul Rehman will get the deceased injured to cook up a case. On the contrary it would be a natural urge on his part to bring the real culprits to book. Even otherwise, there could be no misunderstanding regarding the identity of the assailants because they had come shouting to the spot and were well-recognized by the complainant side and the eye- witnesses. There is nothing on record to show that the statement Exh.P.F. Made by the deceased at 6-45 a.m. Was either cooked up or prepared falsely by the police. There is, however, a lapse on the part of the police that they could not produce the Medical Officer who had examined the deceased while he was lying in injured condition and was declared fit to make the statement. However, an endorsement to that effect exists on the application Exh.P.G. Moved by the police for getting the opinion of the doctor whether or not the patient was fit to make the statement. That endorsement in the hand of the doctor is on record, but there is nothing on file that the same was either bogus or maneuvered. In such a situation, the learned trial Court had rightly taken into account the aforesaid statement of the deceased in which the appellant/convict has been assigned a specific role of firing at the deceased with .12 bore gun. That statement is further corroborated by the eye- witnesses who have no reason to depose falsely in order to implicate the appellant/convict if he was not the actual person, who had made fire at the deceased. The finding of the D.S.P. (C.W.1) is of no avail as it is based on the evidence of such persons who were not the eye-witnesses. As such the opinion of the D.S.P. (C.W.1) was only ipse dixit and not to be a genuine finding on the matter in issue. On the contrary, the rest of the Investigating Officers had linked the appellant/convict persistently with the occurrence to have fired at the deceased as deposed by the eye-witnesses.
The mere fact that the deceased was present with the eye-witnesses on the fateful night would not appear to be unusual because of the close relationship between the two sides. It cannot be improbable or unnatural that a son-in-law would come to his father-in-law and sleep in his house on its top along with other family members i,e, Aslam Baig etc. Rather his presence would look to be very natural in the given situation as all three of them were present there to guard their cattle. In the rural areas such type of presence is a matter of routine and not to be an unusual affair. It is, thus, obvious that the learned Trial Court had right the appellant/convict with the murder of the deceased.
13. In view of my above discussion, I do not find any merit in this appeal, which is dismissed. The conviction and sentence passed by the learned trial Court is accordingly upheld, except the sentence of fine of Rs,10,000 and in case of default its consequential sentence of six months' S.I.
Which cannot be awarded under the existing provisions of section 302(b), P.P.C. However, the said sentence of fine is converted into the compensation in addition to Rs,20,000 already awarded by the learned trial Court as compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased.