' RAJA MUHAMMAD SABIR, J.---Appellants Saiful Malook (42), Zia-ur-Rehman (30), Abdul Wahab
(32) alongwith their co-accused Attiqueur-Rehman (28), Hafizur Rehman (30), Tofeequr Rehman
(26) Abdul. Haque (36) and Javed (29) were tried for the offences under sections 302/307/148/149/109, P.P.C. Registered against them at Police. Saddar Toba Tek Singh vide, F.I.R. No, 223 of 1988, dated 24-12-1988, by the learned Sessions Judge Lahore. He convicted Saiful Malook and Ziaur Rehman under sections 302/34, P.P.C. For committing murders of Abdul Waheed and Muhammad Aslam respectively and sentenced them to death plus fine of Rs,20,000 each payable to the legal heirs of the deceased and in default whereof to undergo one year R.I. Zia-ur-Rehman appellant was also convicted under section 307, P.P.C. For having caused injury to Zahid Mehmood (P.W.9) and sentenced to suffer seven years R.I. All the sentences awarded to him were directed to run concurrently.. Abdul Wahab appellant was acquitted of the charge under section 302/148/149, P.P.C. But was convicted under section 324, P.P.C. For causing brickbat simple injury to Tahir Mehmood P.W.10 and sentenced to suffer R.I. For one year. Benefit of section 382-B, Cr.P.C. Was extended to all the three convicts. The remaining accused person namely Attique-ur-Rehman, Tofeequr Rehman, Hafeezur Rehman, Abdul Haq and Javed were acquitted of the charge by giving them benefit of doubt vide the same judgment, dated 13-6-1990.
2. Learned Sessions Judge has submitted reference for the confirmation of the death sentence awarded to the Saiful Malook and Ziarur Rehman. The former has challenged his conviction and sentence through Criminal Appeal No,346 of 1990 while Ziaur Rehman and Abdul Wahad convicts have preferred Criminal Appeal No,347 of 1990 against their conviction and sentence. The complainant has also filed Criminal Revision No,652 of 1991 assailing the part of the judgment of the trial Court whereby Hafeez-urRehman, Ateeque-ur-Rehman, Abdul Wahab, Taufeequr Rehman, Abdul Haque, Javed have been acquitted of the charge with the prayer for their retrial. We propose to dispose of all these matters together through, this judgment.
3. Manzoor Hussain P.W.8 lodged, F.I.R. Exh.P.D. On 24-12-1988, at 11-30 a.m. At Police Station, Saddar, Toba Tek Singh, alleging that there was a dispute over a Ahata situated in the village between Khalid Mahmood and Saiful Malook, On 21-12-1988, Civil Judge, Toba Tek Singh decided the case in favour of Khalid Mahmood and another. On 24-12-1988, Khalid Mahmood started construction in the Ahata which was resisted by Saiful Malook whereupon Khalid Mahmood went to the house of the complainant where Muhammad Aslam, brother of the complainant, Abdul Waheed and Abdur Razzaq sons of Muhammad Siddique were also present and appraised them that Saiful Malook etc. Were not allowing him to raise construction, with a view to advise Saiful Malook in botherly manner to let him raise construction in compliance with the decision of the, Court, therefore, they all went to the Ahata. Saiful Malook, Ziaur Rehman, Ateequr Rehman, Abdul Wahab and Javed were present there and as soon as the complaint party reached near to them, the former raised a lalkara to teach a lesson to Abdul Waheed and Muhammad Aslam for prosecuting case against them: Saiful Malook and Ziaur Rehman fetched 12 bore guns from the nearby room. Saiful Malook fired from his gun at Abdul Waheed which landed on right side of his chest, whereupon he fell down. Ziaur Rahman fired from his gun and the pellets hit Aslam on his right upper arm, right shoulder near the neck and its back and on receipt of the injuries he too fell down. Meanwhile Zahid Mahmood (P.W.9), and Tahir Mahmood (P.W.10) seeing the incident came forward to save them. Ziaur Rehman fired a second shot at Zahid Mahmood which landed on the right side of his head over the ear. Abdul Wahab caused a brickbat injury on the forehead of Tahir Mahmood. The complainant alongwith Abdur Razzaq and Khalid Mahmood save saved their lives by running away from the spot. All the accused hurling abuses and raising lalkaras fled away towards South. The complainant and his companions boarded the injured Abdul Waheed, Muhammad Aslam, Tahir Mahmood and Zahid Mahmood in a tractor trolly and proceeded to Civil Hospital, Toba Tek Singh.
Abdul Waheed and Muhammad Aslam, succumbed to the injuries on the way. The motive alleged in the F.I.R. Is that Abdul Waheed, and Muhammad Aslam used to support Khalid Mahmood in the litigation over the said Ahata. Further, during the local bodies elections the deceased opposed Hafeezur Rehman, and on account of this grudge, Abdul Haq son of Muhammad Sharif, Hafeezur Rehman instigated, Saiful Malook etc., who in furtherance of their common intention murdered Abdul Waheed and Muhammad Aslam and caused grievous injuries to Zahid Mahmood and Tahir Mahmood.
4. Abdul Rashid S.I. P.W.13 after recording. The F.I.R. Exh.P.D. Went to the hospital, found the dead bodies of Abdul Waheed and. Muhammad Aslam lying in its courtyard, prepared the injury statements Exh.P.V. And P.W. And inquest reports Exhs.P.T. And PU respectively, despatched the bodies of the deceased for post-mortem examination under the escort of Muhammad Tariq Constable (P.W.2), then prepared injury statements of Tahir Mehmood Exh.P.Y. And of Zahid Mahmood Exh.P.Z., recorded supplementary statement of complainant Manzoor Hussain P. W.8 and the statements of the injured P.Ws. He also visited the spot, collected blood-staind earth from two venues of murder of Abdul Waheed and Aslam and secured them into two sealed parcels separately vide memo. Exh.P.J., collected empties P-11 and P-12 from the spot vide memo. Exh.P.L.
Recovered blood-stained brickbat P.10 vide memo. Exh.P.K, recorded the statements of Abdul Razzaq, Asghar, Abdul Ghafoor, Ehsan and others P.Ws. Under section 161, Cr.P.C. Tariq constable tendered last worn clothes, shirt. P-1, Bunyan P.2, Chaddar P.3 and seal phial containing pellets Exh.P.4 pertaining to Abdul Waheed deceased, shirt P.5, Bunyan P.6, Sweater P.7, Chaddar P.8, sealed Phial containing pellet P.9 of Muhammad Aslam deceased which were secured vide memo.
Exhs.P.B and P.C. Respectively. He got prepared site-plan Exhs.P.A. And P.A./1, arrested the accused, Saiful Malool, Zaiur Rehman, Javed and Abdul Wahad on 27-12-1988, Attique-ur-Rehman and Tafeeq-ur-Rehman on 1-1-1989 while Abdul Haq and Hafiz-ur-Rehman were arrested by him on 23- 1-1989. On 29-12-1988 Ziaur Rehman accused led to the recovery of gun P.13 from grotto of a Bamboo tree grown on his land which was taken into possession vide memo Exh.P.M. On the same day, Saiful Malook led to the recovery of gun P.14 hidden in the clothes in a room of his house which was secured vide memo. Exh.P.N. In presence of Shah Muhammad and Muhammad Sadiq P.Ws.
5. Dr. Farooq Raza, Medical Surgeon Incharge, Rural, Rajana, District Toba Tek Singh (P.W.12) conducted post-mortem examination on the body of Abdul Waheed deceased on 24-12-1988 and found the following injuries:--
(1) A firearm wound 6 c.m. x 3 c.m. x (D.N.P.) on the front and upper part of right chest 7 c.m. Above the right nipple. It was the wound of entry.
(2) Six firearm wounds each .5 c.m. In diameter (depth not probed) on the lateral side of chest. It was exit wound of injury No,1 .
(3) Three corresponding firearm wounds on the inner side of left upper arm, of injury No,2 (resultant injury)."
' In his opinion the causes of death was shock due to puncturing of vital organs and haemorrhage due to injuries Nos.1 and 2 which were sufficient to cause death in ordinary course of nature. All the injuries were caused by firearm and were ante-mortem. Time between injuries and death was immediate and between death and post-morten was about four hours.
6. On the same day at 2-30, p.m. P.W.12 conducted autopsy on the body of Muhammad Aslam deceased and observed as follows vide postmortem report Exh.P.E:--
(1) A firearm wound 2 c.m. x 1 c.m. x DNP on the right shoulder 5 c.m. From the route of the neck.
(2) A firearm wound 1 c.m. In diameter into DNP on the right back of shoulder.
(3) A firearm wound 1 c.m. In diameter into DNP of the back of right upper arm 6 c.m. Below the injury No,2.
(4) A firearm wound 1 c.m. x 1 c.m. x DNP on the outer back of right chest 7 c.m. From right axilla.
' All the injuries were caused by firearm and were ante-mortem. The cause of death was shock due to puncturing of vital organs and massive haemorrhage due to injuries Nos.1, 2, 3 and 4 which were sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem, death was within half an hour, time between death and post-morten was within two to six hours."
7. Same Medical Officer on 24-12-1988 at 3.15 p.m., examined Zahid Mahmood and found the following injuries vide medico-legal report Exh.P.R:-- "(1) A firearm wound with scorching (2 c.m. x 1 c.m.) into scalp deep on the back and right side of head 10 c.m. Above the right ear.
(2) Complaint of pain on the left side of chest.
(3) A lacerated wound 2 c.m. x 0.5 c.m. Muscle deep on the second left toe.
' Injury No,1 was caused by firearm while the rest by blunt weapon."
8. On the same day, at 3-30 p.m. P.W.12 examined Tahir Mehmood and found the following injury on his person vide medico-legal report Exh.P.S:-- "(1) Lacerated wound 3.5 c.m. x 0.5 c.m. x bone deep on the forehead." In his opinion the injury was caused by blunt weapon.
9. The eye-witness account was furnished by Manzoor Hussain (P.W.8) reiterating the prosecution story as given in the F.I.R. He was corroborated by the injured Zahid Mahmood P.W.9 and Tahir Mehmood P. W .
10.
10. Appellant Saiful Malook while making his statement under section 342, Cr.P.C. Stated that he was in possession of the Ahata in dispute for the last 7/8 years and had built his residence over there wherein he alongwith his wife and eight daughters was residing. Aslam etc. Wanted to forcibly occupy the said Ahata, whereupon he filed a suit for permanent injunction which was decided on 21-12-1988. On 24-12-1988 at 8.00 a.m. He was taking breakfast alongwith his wife and daughters when Muhammad Aslam and Abdul Waheed came there armed with their licenced guns to forcibly occupy the Ahata and hurling filthy abuses, asked to vacate the same. They pushed out his daughters from the Ahata and started throwing the house-hold items. He apprehending danger to his life and lives of his family members in exercise of his right of self-defence and to save his property fired four shots from his carbine towards Waheed and Aslam, who fell down in front of the residential house. He further stated that at the time of occurrence no other accused was with him nor he has any liaison with them nor Zahid Mahmood, Tahir Mehmood, Khalid Mahmood, Abdur Razzaq and Manzoor Hussain (P.Ws.) were present. He denied the allegations of the prosecution by stating that complainant and his brother-in-law Ch. Abdul Ghafoor M.N.A., have implicated him in the case with the connivance of the police. Ziaur Rehman also denied the allegations levelled against him. He stated that he is innocent and has, been implicated in the case falsely by the complainant, his brother-in-law Ch. Abdul Ghafoor, M.N.A., ex-Law Minister, on account of enmity and party faction. Appellant Abdul Wahab and other acquitted accused also denied the allegations attributed to them and submitted that they are innocent and have been involved in the case due to enmity and political differences. They denied their presence at the spot. The accused besides making statements under section 340, Cr.P.C. Also produced Khadim Hussain D.W.1, Ilyas Javaid, Advocate, T.T. Singh, D.W.2, Altaf Hussain Chokidar D.W.3, Ali Muhammad Ahmad D.W.4, Masood Ahmad, Advocate, D.W.5, Mohsin Rasheed, Advocate, D.W.6 in support of their defence pleas.
11. According to the report of the Serologist, Exh.P.BB, item Nos.3286/l and 3286/2 comprising earth of Abdul Waheed and Muhammad Aslam deceased were stained with human blood. In the opinion of Superintendent of Police Technical Services, Punjab, Lahore, vide his report Exh.P.CC. Crime empty C.1 was fired from the SBBL shotgun of .12 bore alleged to have been recovered from Saiful Malook accused and crime empty C.2 was fired from the shotgun of .12 bore allegedly recovered from Ziaur Rehman accused.
12. Learned counsel for the appellants contended that the prosecution evidence qua acquitted accused was disbelieved by trial Court and same cannot be relied upon against the appellants.
The prosecution has thrown a wider net and implicated 8 persons out of which five have been acquitted. Eye-witnesses count is not trustworthy and the conviction of the appellants on their deposition is not sustainable. Appellant Saiful Malook was in possession of the Ahata in dispute.
Deceased Muhammad Aslam alongwith his pet goonda Abdul Waheed attacked him to forcibly eject him therefrom. He, in exercise of his right of defence of the property and self-defence, alone fired at the deceased, Ziar-ur-Rehman and Abdul Wahab appellants were not present at the spot.
The defence plea of appellants examined in juxtaposition with that of the prosecution appears to be reasonable and believable. The prosecution has not produced the judgment of the Civil Court whereby the case was decided in favour of the Mst. Bashiran mother of Khalid Mahmood, who was also withheld by the prosecution and was given up as unnecessary, hitting upon the veracity of the prosecution. The investigation of the case was tainted with malice and remote controlled. Ziaur Rehman and Abdul Wahab appellants have no motive to participate in the occurrence and have been falsely implicated on account of enmity and party faction. The recoveries are fake, and the prosecution evidence as a whole does not inspires confidence and the appellants are entitled to acquittal.
13. Learned counsel for the complainant as well as the State, on the other hand, submits that the appellants have fired at the deceased Muhammad Aslam and Abdul Hameed who came there for reconciliation purposes regarding the possession of the Ahata. They were emtpy handed, and have been fired at by Saiful Malook and Ziaur Rehman. He further stated that Ziaur Rehman' second shot caused grievously hurt to Zahid Mahmood while Abdul Wahab caused brickbat injury to Tahir Mahmood. The prosecution evidence inspires confidence and has proved the case against the appellants. The claim of appellant Saiful Malook that he alone has fired at both the deceased is belied by the nature of injuries received by the deceased and the weapon of offence used by the accused during the occurrence. Further, he has not raised this plea before the Investigating Officer.
During trial no such suggestion was put to the P. Ws. By the defence. This is an afterthought plea raised for the first time by the said appellant while appearing as his own witness which absolutely does not ring any truth. The report of the Firearm Expert that the empties recovered from the spot wedded with the weapons recovered from Saiful Malook and Ziaur Rehman, medical evidence, recoveries corroborate the ocular account. The prosecution has established the case against the appellants beyond any shadow of doubt, and the benefit of doubt extended to acquitted accused in no way affects the case of the prosecution qua the formers. Two of the eye-witnesses namely Zahid Mahmood P.W.9 and Tahir Mahmood P.W.10 are injured and their presence at the spot cannot be denied. The motive as set up by the prosecution has also been proved, therefore, the appellants Saiful Malook and Ziaur Rehman were rightly convicted and sentenced by the trial Court while judgment of acquittal of their co-accused is erroneous and is liable to be set aside.
14. We have heard the learned counsel for the parties and gone through the evidence with their assistance. Two of the acquitted accused namely, Abdul Haq and Hafeezur Rehman were involved on the charge of conspiracy whereas the remaining were empty handed at the place of occurrence Learned trial Court disbelieved the prosecution evidence qua them as no overt act was attributed to them. The evidence of conspiracy was disbelieved. In every case the Court has to sift the grains from the chaff and especially in such like cases where the number of accused disproportionate with the injuries received by the victims. We are of the view that they were rightly acquitted of the charge against them by the trial Court which does not affect the prosecution case qua the convicts.
15. P.W.8 Manzoor Hussain complainant is brother of Muhammad Aslam deceased. He is councilor and was requested by Khalid Mahmood for advising Saiful Malook not to interfere in the construction to be raised by him in the Ahata in dispute. Local representatives in such-like situation can exercise their influence for patching up the petty disputes in their Halqa. He came over the place of occurrence on the request of Khalid Mahmood. Zahid Mahmood P.W.9 and Tahir Mahmood P.W.10 received injuries during the occurrence; therefore, presence of P.Ws.8, 9 and 10 at the spot is established. They supported the prosecution case as narrated in the F.I.R. Their evidence is supported by the medical evidence and recoveries. The Investigating Officer recovered the empties from the spot P.I1 and P.12 on 24-12-1988. The weapons of offence, guns, were recovered from Saiful Malook and Ziaur Rehman on 29-12-1988. Muhammad Tariq Constable delivered the parcel containing empty cartridges to the Forensic Science Laboratory on 26-12-1988 and he delivered the parcels containing guns on 4-1-1989. The possibility of tampering with the weapons or cartridges stands excluded as they were delivered intact separately by the said P.W. To the Forensic Science Laboratory, which reported vide Exh.P.C.C. The empties recovered from the spot wedded with the weapons recovered from the appellants.
16. The plea of appellant Saiful Malook that he alone fired at the deceased and his co-convicts and others were not present at the spot appears to be an afterthought. The nature of injuries on the person of Abdul Waheed and Muhammad Aslam deceased indicates that two different type of weapons were used during the occurrence. Injury No,1 on the person of Abdul Waheed was firearm wound of 6 c.m. x 3 c.m. x DNP on the front and upper part of right chest. It was entry wound while injury No,2 was exit wound of injury No,
1. The injury was caused from short range. Third and fourth ribs of the deceased were fractured. Said injuries were, in the opinion of P.W.12 sufficient to cause death in the ordinary course of nature. While injury No,1 on the body of other deceased was of 2 c.m. x 1 c.m. x DNP, injury No,2 was of the dimension of I c.m. In diamter DNP on the right back of the shoulder. Injuries Nos.3 and 4 were also of similar dimensions. The medical evidence, and rsi recoveries is consistent with the ocular account furnished by the eye-witnesses P.W.8, P.W.9 and P.W.10. The plea of Saiful Malook that the other accused did not participate in the occurrence is not worth reliance. He has not taken this plea before the Investigating Officer. For the first time he raised this plea while making his statement under section 342, Cr.P.C. On 5-3-1990. No such suggestion was put to the P.Ws. During the trial and as such this plea of the appellant is discarded.
17. The contention of the learned counsel that the prosecution has not produced Khalid Mahmood P.W. Who is originator of the incident, tending the inference against the prosecution is of not much significance. Khalid Mahmood given up P.Ws. Real brother of Zahid Mahmood and Tahir Mahmood P.Ws. Who have fully supported the prosecution case. Probably he was given up as he did not receive any injury and his evidence was not considered necessary in presence of the said two injured witnesses and his non-examination by the prosecution has not affected its case in any manner and no adverse inference against it can be drawn therefrom. The occurrence has been admitted by the principal accused Saiful Malook although denied by other accused, who raised the plea that they were not present at the spot and have been falsely implicated in the case. The version of Saiful Malook has been disbelieved by us for the reason stated above. The prosecution evidence inspires confidence. Ocular account is corroborated by the medical evidence as well as evidence of recoveries. The prosecution has succeeded to prove the case against the appellants and they were rightly convicted by the learned Trial Judge under sections 302/34 and 324, P.P.C.
18. Now coming to the motive part of the prosecution, the prosecution has alleged that Khalid Mahmood wanted to raise construction in the plot in dispute after the case was decided in his favour by the Civil Court which was obstructed by Saiful Malook appellant and in order to resolve the dispute amicably he approached Manzoor Hussain P.W.8 Councillor to prevail upon Saiful Malook so that the construction could be raised whereas plea of Saiful Malook appellant is that he was in possession of the Ahata and Khalid Mahmood or his mother was not in possession thereof.
They were interfering in his possession and he was forced to file a civil suit for declaration and permanent injunction, which was decided on 21-12-1988. Copy of the said decision has not been placed on record by the prosecution or the appellants. However, report of the Local Commissioner has been placed on record by the defence as Exh.D.O./1, which is, dated 15-10-1985, and shows that Ahata in question was in possession of Siaful Malook for the last 4/4-1/2 years. There is nothing on the record to establish possession of Khalid Mahmood or his mother over the plot. Similarly assertion of Saiful Malook that he was in possession of the Ahata in dispute and complainant party in order to forcibly eject him, launched an attack on him and he, in exercise of right of defence of his property and himself, fired at the deceased alone also does not inspire confidence. If the complainant party really wanted to dispossess Saiful Malook as alleged by him, they would have come there with full force duly equipped and could have caused many injuries to him, without suffering any such even Saiful Malook appellant could not go safely. Both the prosecution as well as defence have suppressed the immediate cause of incident, which is shrouded in mystery. In this view of the matter we are not inclined to confirm the death sentence awarded to appellants Saiful Malook and Zia-ur-Rehman.
19. For the foregoing reasons while partly allowing the appeals and maintaining the conviction of appellants Saiful Malook and Ziaur Rehman under section 302/34, P.P.C.- convert the sentence from death penalty into imprisonment for life. The conviction and sentence of Ziaur Rehman under section 307, P.P.C. Is maintained. The conviction and sentence of appellant under section 324, P.P.C.
Is also maintained. Both the sentences awarded to Ziaur Rehman shall run concurrently. All the convicts shall be entitled to benefit as contemplated by section 382-B, Cr.P.C.
20. Criminal Revision No,652 of 1991 is without any substance and is dismissed.
21. Murder Reference No,126 of 1990 is answered in the negative and the death sentence is not confirmed.