MUHAMMAD ASIF JAN, J.- Sher Khan appellant aged about 30 years, alongwith Nazar Hussain Shah appellant, aged about 36 years, who is said to have died in the Central Jail of Lahore, alongwith Noor Muhammad, Ali Muhammad, Aas Muhammad, Iftikhar Ahmad, all sons of Chahat Khan, and, brothers of Sher Khan appellant, and, Chahat Khan, their father, stood their trial in the Court of Mr. Sabah Mohy-ud-Din Khan, Additional Sessions Judge, Lahore under Sections 302/148/149/109/379 of the Pakistan Penal Code on the charge of having murdered Nazir Ahmad deceased.
Vide judgment dated the 11th of December, 1991, the learned Trial Court was pleased to convict Sher Khan appellant and Nazar Hussain Shah appellant (since dead), under Sections 302/34 PPC and they were both sentenced to death. They were also ordered to pay a fine of Rs. 50,000/- each, failing which each of them was ordered to undergo R.L, for 3 years. In the event of recovery of the amount of fine. Rs.70.000/- was ordered to the paid to the legal heirs of the deceased as compensation. The remaining accused persons were given the benefit of doubt and acquitted.
2. Sher Khan appellant alongwith Nazar Hussain Shah appellant (since dead) appealed against their conviction and sentence by way of Criminal Appeal No. 45 of 1992.
Complainant Abdul Aziz (PW-2) brother-in-law of Nazir Ahmad deceased challenged the acquittal of Ali Muhammad, Aas Muhammad, Iftikhar Ahmad, Noor Ahmad and Chahat Khan by way of Criminal Revision No. 331 of 1992, which was ordered to be heard alongwith Criminal Appeal of the convicts.
The learned Trial Court has referred the case to this Court by way of M.R.No. 72 of 1992 for the confirmation of the sentence of death awarded to Sher Khan appellant and Nazar Hussain Shah appellant (since dead).
We have heard all these matters together and are deciding them by this judgment.
3. The occurrence took place^on the 18th of January, 1989 at 4 p.m. In front of the "haveli" of one Karim Baldish in the area of Khud-Pur, which is about 14 kilometers from the Police Station Manga Mandi of District Lahore, .Where the formal FIR (Ex.PB/I) was drawn on the 18th of January, 1989 at 7.35 p.m. By Moharrir H.C. Sardar Khan (PW-5) on the basis of the statement (Ex.PB) of Abdul Aziz (PW-2), made at '6.30 p.m. In village Rangeelpur and recorded by S.I. Muhammad Yaqoob (PW-13).
4. Complainant Abdul Aziz (PW-2) stated that on the morning of the 18th of January, 1989, he alongwith his wife's brother Nazir Ahmad deceased went to the Mayo Hospital, Lahore, where, his maternal nephew Rafaqat Ali was hospitalized. They were returning home in the after-noon and on reaching the Bus/Stand known as Adda Loharanwala hired a tanga from near Yaru Wali Dhari.
However, after some time they had to get down from the tanga because it begged in the mud, and, thereafter, started proceeding on foot. When they were passing by the "haveli" of one Karim Bakhsh Meo at about 4 p.m. The accused persons were waiting in ambush.
Sher Khan appellant raised a lalkara that complainant Abdul Aziz (PW-2) and Nazir Ahmad deceased would now be taught a lesson for breaking the legs of their enemies and exhorted his companions to open fire. Sher Khan appellant was armed with a rifle. Aas Muhammad was armed with a gun. Ali Muhammad was armed with a rifle. Iftikhar Ahmad was armed with a single barrel 12-bore gun. Nazar Hussain Shah appellant (since deceased) was armed with a rifle, they started firing with their fire-arms. Nazir Ahmad deceased was also armed with a double barrel 12-bore gun and he also find in order to defend himself. Complainant Abdul Aziz (PW-2) and Nazir Ahmad deceased ran for their lives but were encircled by the accused persons in the find of one Ibrahim.
Sher Khan appellant find with his rifle and hit Nazir Ahmad deceased on the fore-head. Nazar Hussain Shah appellant (since dead) find and hit Nazir Ahmad deceased on the left flank. Aas Muhammad, Ali Muhammad and Iftikhar Ahmad also kept firing at Nazir Ahmad deceased who fell down as a result of the injuries. The accused persons then inflicted injuries upon Nazir Ahmad deceased with the butts of their fire-arms. Nazir Ahmad died at the spot. Sher Khan, appellant removed his gold ring and. Rs.6,000/- in cash from his pocket. Aas Muhammad took the gun and cartridges of Nazir Ahmad deceased.
Thereafter, the accused persons left the place of occurrence.
This occurrence was witnessed by complainant Abdul Aziz (PW-2), Muhammad Ashiq (PW-3) and one Muhammad Anwar (not produced by the prosecution).
5. The motive for this occurrence was that about 1 1/2 years' prior to the occurrence Nazir Ahmad deceased had broken the legs of Noor Muhammad accused.
6. After recording the statement (Ex.PB) of complainant Abdul Aziz (PW- 2), ASI Muhammad Yaqoob (PW-13) proceeded to the place of occurrence where he found the dead-body of Nazir Ahmad deceased and sent it to the mortuary under the escort of Constables Sakhawat Ali (PW-6) and Muhammad Mansha (not produced by the prosecution). He took into possession blood-stained each vide recovery memo. (Ex. P.C.) He also took into the possession & empties of 12 bore (Ex. P-1/1- 8), two empties of 7 MM rifle (Ex. P-2/1-2) and one live cartridge of 7 MM rifle (Ex. P-3) vide recovery memo. (Ex.PD).
7. Dr. Muhammad Faruq Bhatti (PW-11) conducted the post-mortem examination on the dead- body of Nazir Ahmad deceased aged about 35 years' on the 19th of January, 1989 at 9.45 a.m. And found the following injuries on the dead-body:-
(1) Fire-arm wound of entry 0.5 x 0.5 cm in size on right side of forehead, 2 cm above right eye- brow, 6.5 cm to the right of mid-line.
On exploration, under-line skull was fractured and brain was damaged. The projectile, after damaging the brain, had made exit through injury No. 1-A.
(1-A) A fire-arm wound of exit 2.5 x 1. Cm on back of head, 18 cm above nape of neck and 1 cm left to mid-line. Skull bone, Surrounding the hole, was fractured.
(2) Fire-arm wound of entry oval in shape 6 x 3.5 cm size and 6.5. Cm left to mid line of abdomen, 1 cm inner to iliaccrest.
On exploration, bullet No. 1, after entering injury No. 2, passed through large intestine, stomach, left dome of diaghram, left lung and entered posterior chest wall where it was found at the level of 9th inter costal space. Cavity contained about 2000 cc of blood. Bullet No. 2, after passing through injury No. 2, passed through large intestine, stomach and pierced last two coastal cartilages and, after grazing apex of heart, entered left lung and was found left to the 5th dorsal vertebra.
(3) An abrasion 2 x 2 cm in size on back of left side of chest, 4 cm left to mid-line and 8 cm below nape of neck.
In the opinion of the doctor, all the injuries were ante-mortem. Injuries Nos.I and 2 were caused by a fire-arm while injury No. 3 was caused by a blunt weapon. The cause of death was injury No. 1 which had damaged the brain and injury No. 2 which had damaged the large intestines, Stomach, left lung and heart. These injuries were sufficient to cause death individually as well as collectively in the ordinary course of nature.
8. Inspector Wajid Ali (PW-14) arrested Ali Muhammad and Noor Muhammad accused on the 31st of January, 1989, Aas Muhammad and Iftikhar Ahmad accused on the 2nd of February, 1989.
Iftikhar Ahmad accused while in police custody led to the recovery of an unlicenced 12 bore gun (Ex. P-7) from his dera, which was taken into possession vide recovery memo. (Ex.PJ).
Ali Muhammad accused while in police custody, led to the recovery of an unlicenced 7 MM rifle (Ex.
P-6) from another room of the same dera, which was taken into possession vide recovery memo.
(Ex.PK). Both recoveries were witnessed by Muhammad Sarwar (PW-8) and Muhammad Boota (not produced).
The same police officer arrested Sher Khan appellant and slanen Hussain appellant (since dead) on the 2nd of April 1989.
On the 4th of April 1988, Sher Khan appellant while in police custody led to the recovery of 7 MM rifle (Ex. P-4) from a room of his dera. which was taken into possession vide recovery memo. (Ex.PE).
On the same day Nazar Hussian Shah appellant (since dead) while in police custody led to the recovery of a 7 MM rifle (Ex. P-5) from his dera which was taken into possession vide recovery memo. (Ex.PF). Both the recoveries were witnessed by Muhammad Anwar (PW-4) and Nazar Hussain (not produced by the prosecution).
9. The blood-stained earth which was. Taken into possession from the place of occurrence vide recovery memo. (Ex.PU) was sent for analysis to the Chemical Examiner for the Punjab, Lahore, who gave the opinion vide his report (Ex.PV) that the earth is stained with blood and sent scrapping to the Serologist, who reported vide his reports (Exs. PX & PY) that the blood was human origin.
10. The crime empties recovered from the spot were sent to the Office of the Technical Services, of the Crimes Branch, Punjab, Lahore, on the 14th of February, 1989 and the weapons of offence were sent on the-30th of April, 1989. The Examiner of Firearms opined that the empties of 12-bore marked as Cl to C-8 had not been find from double barrel 12-bore shot gun and that the crime empty of 7 MM marked as C-9 had not been find from the rifles of & MM bore marked as R.I to R-3 while the crime empties of 7 MM bore marked as C-10 bears multiple hits due to which the marks identification have been intermingled hence nothing can be said as to whether or not it was find from the rifles of 7 MM bore marked as R- 1 to R-3.
This practice of not expressing any opinion on the ground of multiple hits is a rather obvious device of diminishing the evidentiary value of the recoveries in question. Be that as it may, nothing really turns around it because the recoveries have been made in the presence of independent witnesses.
11. The accused persons pleaded total denial and false implication due to enmity.
Sher Khan appellant while answering the question that do your want to say anything else; replied:- "I am innocent. On the day and at the time of the occurrence, I was present with Muhammad Mansha Councillor at his dera in the company of Esa Khan, Jumma Khan, Saleem Khan, Allah Ditta, Tariq, Muhammad Shafiq and Ali Sher etc. In connection with a Panchayat, which continued from 2.00 p.m. To 5 p.m. To settle the dispute of one Mst. Pori wife of Muamla. I had produced all these persons before the I.O. In my defence."
12. The prosecution has proved its case beyond all doubts through the evidence of Abdul Aziz (PW- 2) and Muhammad Ashiq (PW-3). Abdul Aziz (PW-2) had accompanied Nazir Ahmad, deceased, who was a brother of his wife to the Mayo Hospital of Lahore and were returning home together when the occurrence took place.
Muhammad Ashiq (PW-3) knew both the accused as well as the deceased and was present at his land when the occurrence took place which he witnessed.
Both these eye-witnesses have been given truthful and consistent account of the murderous assault and nothing has diminished or furnished their evidence notwithstanding the lengthy cross- examination. Muhammad Anwar, (PW-4) gave evidence regarding the recover)' of a licenced 7 MM rifle from the possession of Sher Muhammad appellant which was taken into possession vide recovery memo. Ex.PE) corroborating the ocular account.
13. Learned counsel for the appellants submitted that the motive had not been proved; that both the eye-witnesses were related, interested and inimical; that there was no corroboration; that the recovery was of no avail; that there was contradiction between ocular account and the medical evidence and in the alternative prayed that the sentence of death may not be confirmed but may be reduced to a sentence of imprisonment for life.
14. Learned counsel for the complainant as also learned counsel for the State submit that the motive was admitted; that the eye-witnesses were natural witnesses; that the recovery from Sher Khan appellant was of a licenced weapon; that there was no contradiction between ocular account and the medical evidence that the role of Sher Khan appellant was proved beyond all doubts and that there was no mitigating or extenuating circumstance to justify the reduction of sentence from death to imprisonment for life.
15. We are satisfied that the prosecution has proved its case beyond all reasonable doubts through the evidence of the eye-witnesses who had no reason to let of the real culprits and falsely implicate the accused persons. Considering the back ground of blood-feud, the motive is admitted. The presence of eye-witnesses is natural and they have given a consistent account of the occurrence which is corroborated by the recovery of the licenced weapon of Sher Khan, appellant. There is no contradicting between the ocular account and the medical evidence which is in line with and consistent with the ocular account. The role of Sher Khan, appellant is proved beyond all doubts and there is no mitigation in his case.
I6. Resultantly, the appeal is dismissed. The sentence of death awarded to Sher Khan appellant is hereby confirmed.
7. The appeal abates qua Naizar Hussain Shah. The appellant who died a natural death in the Central Jail of Lahore.