BASHIRUDDIN AHMADJ.---For causing the death of Muhammad Ahmad and injuries to Abdul Majid and Jalal Din, six persons, namely, Ahmad Din (70), his elder brother Allah Dad (80), Muhammad Aslam (25), Muhammad Ismail (27) sons of Barkat Ali.. Latif (30) and Younis (30) were placed before the Sessions Judge, Lyallpur, for trial on charges under section 148, 302/149 and '307/149 (two counts) of the Pakistan Penal Code. He acquitted Allah Dad, Muhammad Ismail and Muhammad Aslam of all the charges. Ahmad Din. Younis and Latif were convicted under section 302;34, P. P. C. To suffer death.
They were also convicted under section 307,%34, P. P. C. And sentenced to undergo rigorous imprisonment for a period of seven years plus a fine of Rs. 2,000.00 each or in default of payment thereof to undergo R. T. For a further period of two years. Younis and Latif were also tried separately under section 13 of the West Pakistan Arms Ordinance XX of 1965 and sentenced to undergo rigorous imprisonment for a period of two years each. The sentences of imprisonment were ordered to take effect in the event of the death sentences being not confirmed by this Court.
2. The convicted persons filed Criminal Appeal No. 639 of 1968 against their convictions for the murder of Muhammad Ahmad and attempted murder of Jalal Din and Abdul Majid P. Ws.
Muhammad Younis and Muhammad Latif separately appealed against their convictions under section 13 of the West Pakistan Arms Ordinance XX of 1965. The case is also before us on reference under section 374 of the Code of Criminal Procedure for confirmation of the death sentences. This judgment will dispose of the appeals and the reference.
3. The case for the prosecution, briefly narrated, is that some time before the occurrence, which is the subject-matter of this case, Muhammad Sarwar, a brother of the deceased, closed the drain which passed in front of the house of the accused, as the water of the drain flowed into the field of Nur Ahmad, father of the deceased and caused considerable damage to the land. AS a sequal to it, Allahditta, Younis and Latif accused had attacked Muhammad Sarwar and caused hint injuries.
Nur Ahmad lodged a report and a case under section 307, P. P. C. Was registered against the three accused, but they were acquitted in that case.
4. On March 22, 1967, at degarwela, the deceased was proceeding towards the village Chauk accompanied by Abdul Majid and Jalal Din P. Ws. When Muhammad Ahmad reached at a distance of about 12 karams from his house, the appellants and their co-accused attacked him. Latif was armed with a pistol. Ahmad Din and Younis carried shot-guns and the remaining three accused had sticks. Ahmad Din fired the first shot, which hit the deceased in front of the chest. Younis fired and it hit the deceased near the umbilicus. The deceased also received gun-shot injuries oil his hands. Ahmad Din fired a shot resulting in injuries to Jalal Din P. W. Near the chin. Latif fired and it hit Abdul Majid on the right thigh. The victims fell down on receipt of gun fires. Nur Ahmad and Mushtaq also witnessed the occurrence had taken place. There is a Civil Dispensary close to the bus-stand, but there was no doctor in the dispensary as it was Eid holiday. The deceased was taken to Lyallpur by a bus, but he expired in the way.
4. The doctor informed the police about the death of Muhammad Ahmad by means of ruqqa Exh. P.
O. On receipt of the ruqqa, A.S.I. Sajjad Husain Shah (P. W. 17) reached the District Headquarters Hospital, Lyallpur. He took down the statement Exh. P. F. Of Nur Ahmad at about 11-30 p. m. And prepared the injury-sheet and the inquest report relating to the deceased and then despatched the dead body to the mortuary for post-mortem a Lamination. He endorsed the statement Exh. P. F.
To Police Station Thikriwala for the registration of a case, as the occurrence had taken place within the jurisdiction of that police.
5. On March 23, 1967 at 6-15 a. m., S. T. Muhammad Yaqub Shah (P. W. 18) I registered the case. He reached the District Headquarters Hospital at about 8-45 a. m., recorded the state--ments of Abdul Majid and Jalal Din P. W. Who were lying injured in the hospital. Thereafter, he visited the spot, took into posses--sion blood-stained earth and scaled it into a parcel. He arrested all the accused except Latif on March 26, 1967. Latif, however, came to be apprehended by the police on March 31, 1967. Islam Din Lambardar (P. W. 15) and Muhammad Aslam Ex-Zaildar (P. W. 16) were associated with the investigation. In their presence. Ahmad Din produced his licensed gun, Exh. P. 1, together with the license receipt Exh. P. D. Which were taken into possession by the police. On April 1, 1967, Latif led to the recovery of revolver, Exh. P. 2, from a box inside his house. . The revolver contained two empty cartridges; Exhs. P. 9 and P. 10 and two live rounds Exhs. P. 11 and P. 12 in its chamber. The same were taken into possession,. Rule memo. 'Exh. P. G. Younis led to the recovery of .12 bore gun, Exh. P. 3, from a big iron box lying inside his kotha. The gun contained empty cartridge Exh. P.
8. The same was taken into possession and sealed into a parcel by the police. It may here be stated that for reasons best known to the police, the empties and the weapons recovered, were not sub-- mitted to the Ballistic Expert for opinion by the police and as such the recoveries in no way advance the prosecution case.
6. Dr. Ahmad Ghulam Muhammad (P. W. 1) perforated post-mortem examination on the dead body of Muhammad Ahmad on March 23. 1968 at 11:00 a. m. And found the following injuries
(l) A gun shot wound. 3/'8" x 3/8" going inside the neck situated on the front aspect of the right side of the neck, from the middle line and l " from the middle line and 1 " above the right clavicle bone.
(2-A) A guts shat wound 3/8" x 3/8" going inside the abdo--men situated oil the left side of the abdomen, in its lower part, just above the groin being 1/2" above it.
(2-B) A gun shot wound which was the wound of exit 3/8" x. 3/8" situated on the right buttock.
(3) A gun shot wound 3/8" x 3/8" going inside the thigh situated on the front aspect of the left thigh in with upper part, 2" below the groin.
(4-A) A gun shot wound 3/8" x 3/8" going inside the thigh, situated oil the front aspect of the left thigh in its upper part, below injury No. 3 and 11/2" to its inner side.
(5-A) A gull shot wound which was the wound of entry, 3/8" x 3/8", going inside the hand situated oil the dorsum of the left hand in its inner aspect. The fifth metacarpal bone was fractured.
(5-B) A gunshot wound which was the wound of exit 1/2" x 3/8" situated on the front and inner aspect of the left hand.
(6-A) A gun shot wound which was the wound of exit 1/2" x 3/8" going inside the wrist situated at the back of the left wrist. The wrist bones were fractured.
(6-B) A gun shot wound was the wound of exit 1/2" x 3/8" situated oil the front and inner aspect of the left forearm, 1 --"above the wrist joint.
(4-A) A gun shot wound which was the wound of exit 1/2 " x 3/8" at the back and inner side of the left thigh.
Death, in the opinion of the doctor, was due to shock, haemorrhage and injury to the spinal cord and blood vessels on the right side of the neck on account of fracture of the first thoracic vertebra resulting from injury No. 1. Injury No. 1 according to the doctor was fatal and sufficient to cause death in the ordinary course of nature. The rest of the injuries were also caused by fire-arms.
7. On 22-3-1967 at 9-35 p. m. The doctor examined Jalal Din (P. W. 12) and found the following fire- arms injuries on his persons :-- (1-A) A pellet wound 1/6" x 1/6" going inside the mouth, situated oil the left side of the face, 1/4" from the left angle of the mouth. It was the wound of entry.
(1-B) A pellet wound 1/2" x 1/2" situated oil the inner side of the left side of the face. It was the wound of the exit and was 1" oil the lateral side of injury No. 1-A.
8. The same also examined Abdul Majid P. W. On the same night at 10-00 p. m. And found the following injuries on his person:- (1-A) A gun shot wound 3/8" x 1/4" going inside the thigh, situated on inner aspect of the right thigh, 9" above the knee joint. It was the wound of entry.
(1-B) A gun shot wound which was the wound of exit, 1/2" x 1/2", situated on the inner aspect of the right thigh 2 -- " external to injury No. I-A.
9. The appellants pleaded not guilty to the charge and denied tile prosecution allegations against them. They ascribed the case to enmity. No evidence was produced in defence.
10. At the trial, Nur Ahmad (P. W. 11), Jalal Din (P. W. 12), Abdul Majid (P. W. 13) and Muhammad Mushtaq (P. W. 14) furnished direct evidence. Nur Ahmad is the father of the deceased. He was at his house when he heard gun-fire and rushed to the scene of the crime. He claimed to have witnessed the assault on the deceased by the appellants. He also claimed to have seen. Jalal Din and Abdul Majid being injured with fire-arms at the hands of the appellants. The story narrated by Nur Ahmad in the first information report was amply corroborated by him in his statement in Court.
He named Jalal Din, Abdul Majid and Muhammad Mushtaq as witnesses to the occurrence. Jalal Din and Abdul Majid bear gun shot injuries on their persons. Jalal Din and Abdul Majid had left the house of Nur Ahmad with the deceased person. The deceased was proceeding to the village Chauk for setting right the time of his watch. Jalal Din was going to his fields. Abdul Majid was also going into his lands. Their evidence is consistent that when they reached at a distance of eight or ten paces from the house of the deceased, the appellants and their co-accused attached them.
Ahmed Din appellant opened fire. The shot hit the deceased in front of the chest near the neck.
Younis appellant fired and the deceased was hit near the umbilicus. The deceased Cell down. Latif fired a shot at Abdul Majid and it resulted in injury on his right thigh. Ahmad Din appellant fired at Jalal Din and he was injured on the chin. Muhammad Mushtaq claimed to have seen the occurrence while on the way to the house of his uncle Ghulam Qadir for Eid, greet--ings. Nur Ahmad is interested being the father of the deceased. It is also oil the record that four or five years before the occurrence, under consideration, his son Muhammad Sarwar was assaulted by Allahdad, Younis and Latif accused, who caused him injuries. Nur Ahmad lodged the report and a case under section 307, P. P. C. Was registered against them, but they were acquitted in that case.
In the circumstances, it is not possible to place implicit reliance on the evidence of Nur Ahmad alone, but his statement as regards the actual occurrence finds ample corrobora--tion from the evidence of Jalal Din, Abdul Majid and Muhammad Mushtaq P. Ws. Two of the witnesses, namely; Jalat Din and Abdul Majid, bear gun-shot injuries on their persons and, there--fore, their presence oil the spot at the time of the occurrence is established beyond all mariner of doubt.
11. We arc not prepared to subscribe to the view that the occurrence took place late in the evening and not at degarwala as alleged by the prosecution. The fact that the injured persons were examined by the doctor in the District Headquarters Hospital, Lyallpur, at about 9-30 p. m.
Completely negatives the argument that the occurrence took place not at degarwala, but late in the evening. The presence of undigested food in the stomach of the deceased could very well be explained by the circumstance that it was the Eid day when the deceased was assaulted and the possibility about his having taken food a short time before the occurrence could not be ruled out.
No question was put to the father of the deceased as to when Muhammad Ahmad had taken his last meal. We, therefore, hold in agreement with the learned trial Judge that the Occurrence took place as alleged by the prose--cution at degarwela and not late in the evening as submitted by the learned counsel for the appellants.
12. Neither Jalal Din nor Abdul Majid have enmity with the appellants. The mere fact that they are also Rajputs and hailed from village Khokhar Tehsil Batala District Gurdaspur a Ntir Ahmad, father of the deceased is not sufficient, by itself, t discredit their testimony. The father of Muhammad Mushtaq P. W. Was a prosecution witness against Younis, Allahdad and Latif accused in the previous-case and out of abundant caution we decide to eliminate his evidence from our consideration.
13. The medical witness, who examined the deceased as well as the injured P. Ws. Did not find any bullet injury on their persons. There were gun shot injuries only. The part assigned to Ahmad Din and Younis appellants by the ocular witnesses, therefore, finds ample corroboration from the medical evidence. None of the victims received any bullet injury. Abdul Majid (P. W. 13) stated, at the trial, that Latif accused fired at him with the pistol and he was hit on his right thigh. He did not say so before the Committing Magistrate. He stated to the Committing Magistrate that the third shot was also fired by Younis which, hit him oil tile right thigh. In the absence of any corroboration of the part assigned to Latif accused, we do, not consider it safe to hold that lie also participated in the occurrence. In so far as the remaining two appellants, namely, Ahmad Din ally Yunis are concerned, we are satisfied that they were present at the time of the occurrence and caused injuries to the victims including the deceased by means of shot guns.
14. We are not impressed with the argument that the report to the police in this case was belated.
Tile victims were attacked on an Eid day. They were first removed from their Chak to the bus-stand where there is dispensary and efforts were made if first-- aid could be given by the incharge of the dispensary to the victims. It, however, transpired on enquiry that there was nobody in the dispensary to administer first-aid. It was thereafter that a bus was arranged for taking tile deceased to the District Headquarters Hospital at Lyallpur. The deceased, however, succumbed to the injuries before any medical aid could be given to him. In fact, he died near the District Courts which is not very far away from the District Headquarters Hospital.
15. The admission on the part of Nur Ahmad that his statement was recorded oil tile day following tile occurrence by the Thanedar apparently looks it be the result of misunderstand--ing on his part.
He either referred to tile supplementary statement which was recorded by the Thanedar in tile hospital on tile day following the occurrence or is the result of sonic confusion oil his part, because we find it from tile statement of the Sub-Inspector that he finished recording the statement of Nur Ahmad at 11-30 p.m. On March 2. 1967. He had come to the hospital in response to the ruqqa, Exh.
P.O. Sent by the doctor and was posted as A. S. I. Police Station, Civil Lines, Lyallpur, at the material tinge. We, therefore, flu not share tile view that the occurrence took place late in the evening or that there was undue delay in making a report to tile police in this case.
16. The plea of sell-defence wits not specifically taken at any stage in this case. The contention that the complainant party tried to attack Younis accused, who was present near the carts in front of tile door of Aslam accused, as they had decided out of fear of the complainant party to leave for their land at Khairpur in Sind, is not borne out by any evidence worth the name. Similarly, there is not a title of evidence that certain persons collected oil hearing the noise and they fired shots which hit the deceased and two others, namely, Abdul Majid and Jalal Din. The story of self- defence is neither lure nor there. We have no hesitation in coming to the conclusion that there was no question of self-defence in this case the occurrence was completely one-- sided.
17. In desperation, learned counsel for the appellants argued that it was a case of false implication inasmuch as three out of tile six accused were acquitted by tile trial Judge and on that ground alone the prosecution case against the appellants should be thrown out. We do not agree, the trial Judge did not find that Muhammad Aslam, Ismail and Allah Dad had been implicated in tile case falsely. Since no injury was caused by Muhammad Aslam, Ismail and Allahdad who were credited with sticks, the trial Judge decided out of abundant caution, to give them benefit of doubt and proceeded to acquit them oil all the charge. The case against Ahmad Din and Younis, however, stands on a different footing altogether.
18. For all these reasons, we find that the case against Ahmad Din and Muhammad Younis for offences under sec--tions 302/34 and 307; 34, P. P. C. Is proved. We maintain their convictions and sentences passed oil them by the trial Court. In so far as Latif appellant is concerned, we do not find any corro--boration of the ocular evidence from any confirmatory circumstance or the medical evidence. The trial sludge came to the conclusion that the injuries sustained by Abdul Majid on the inner aspect of the right thigh 9" from the knee joint, which was the wound of entry, and the wound of exit on the. Inner aspect of the right thigh, 2--" external to injury No.1, were caused with a pistol. No question was put to the doctor as to whether these injuries, were caused by means of a bullet fired from tile revolver alleged to have been recovered at the instance of Latif. The mere fact that these injuries were comparatively of greater dimensions as compared to the other injuries is not sufficient to come to the finding that the same were caused with a bullet. A bigger pellet could also cause these injuries. The trial Judge overlooked the fact that Abdul Majid in his examination-in-chief ascribed the injury on the thigh of Latif, but was confronted with his state-- ment before the Committing Magistrate, which he made on the 8th of January 1968. Wherein he stated that the third shot was also fired by Younis which hit the victim on the right thigh. In view of his, earlier statement, it is not possible to hold that the injury caused to him tail the thigh was by Latif with a revolver. In the circumstances, we consider it not safe to maintain his con--viction and the sentences passed on him for offences under section 302/34 and 307/34. P. P. C. We give him benefit of doubt. His convictions and sentences under sections 302/34 and 307/34. P.P.C. Are hereby set aside and he is ordered to ho acquitted on both these charges.
19. We now proceed to examine the convictions of Latif and Younis for offence under section 13 of the West Pakistan Arms Ordinance of 1965. The recovery of gun Exh. P.1 (on the file of the case under the Arms Ordinance) containing empty Exh. P. 2 at the instance of Younis from his house was supported by Muhammad Aslam Ex-Zaildar besides the investigating officer. It was Pitt to Muhammad Aslam P. W. If he volunteered evidence at the instance of Nur Ahmad to whom lie is related, but he repelled the suggestion. Tile recovery of the gun at the instance of Younis from his house is amply proved from the testimony of Muhammad Aslam. Which is further corroborated from the state--ment of the investigating officer. Similarly, the recovery of revolver, Exh. P. I. (on the file of the case tinder the Arms Ordinance) containing two empties and a similar number of live rounds in its chambers from the house of Latif is sufficiently established by the evidence of Muhammad Aslam and S.I. Muhammad Yaqub. We are not prepared to believe that the Ex-7aildar furnished weapons as well as live and empty cartridges to he planted by the police on Latif and Younis. They simply contented themselves by denying the recoveries. They attributed the case to enmity, but did not produce any evidence in defence. We, therefore, uphold the convictions of Muhammad Younis and Muhammad Latif for offences under section 13 of the. West Pakistan Arms Ordinance XX of 1965 and maintain the sentences of two years R. I. Passed on each of them by the.
Learned trial Judge.
20. The anneals of Ahmad Din and Muhammad Younis are dismissed in toto. The appeal of Latif for offence; under sec--tions 302/14 and 307/34. P. P. C. Is accepted and he is acquitted of both these charges, but his Appeal No, 641 of' 1968 against his conviction anti sentence under the Arms Ordinance having been dismissed he shall undergo R.
1. Passed on him by the trial Judge. The death sentence in his case is not confirmed and his sentence of seven years R. I. Plus a fine of Rs.
2,000.00 for offence under section 307/34, P. P. C. Is also set aside. The sentences of death passed on Ahmad Din and Younis are confirmed.