' M. JAVED BUTTUR, J.--- Appellant Ashfaq Ali (35) alongwith acquitted do-accused Asif Raza (20) and Muhammad Boota (25) was tried under sections 302/307/34, P.P.C. For the murder of Jamat Ali
(35) and for the murderous assault on injured P.Ws. Akbar Ali and Ghulam Muhammad within the area of Chak No,262/RB, Police Station Dijkot, District Faisalabad, by the Additional Sessions Judge, Faisalabad. Learned trial Court vide its judgment, dated 21-1-1992 while acquitting the abovementioned Asif Raza and Muhammad Boota from all the charges giving them benefit of doubt and also acquitting appellant Ashfaq of the charge under sections 307/34, P.P.C., convicted the appellant under section 302, P.P.C. And sentenced him to death with a fine of Rs,25,000 or in case of default to suffer two years' R.I. The appellant was also directed to pay a sum of Rs,25,000 as compensation to the legal heirs of the deceased and in case of default to undergo further R.I. For six months.
2. The appellant has tiled Criminal Appeal No,127 of 1992 challenging the legality of his conviction and sentences. Learned trial Court has sought confirmation of death sentence through Murder Reference No,127 of 1992. The complainant has also instituted Criminal Revision No,167 of 1992 challenging the acquittal of Asif Raza and Muhammad Boota, acquitted co-accused. All these matters are being disposed of through this judgment.
3. A case F.I.R. No,122 of 1992 (Exh.P.E.) was registered on 24-5-1990 at 11-00 a.m. On the statement made by P.W.7 Muhammad Ashraf, brother of the deceased at the Police Station Dijkot, District Faisalabad which was recorded by Dost Muhammad, S.-I. P.W.10.
4. The prosecution case as narrated in the F.I.R. Is that on 24-5-1990, the complainant alongwith his real brother Jamat Ali, the deceased, after purchasing household articles from Dijkot Town, sat in the tonga of Akbar Ali on the front seat, alongwith them another unknown person also boarded tonga and occupied the front seat. The rear seat was occupied by the appellant and the acquitted co-accused. The tonga proceeded towards their Chak and when it reached near Pakka Rayya, Muhammad Boota accused raised a Lalkara that Jamat Ali should not be spared and should be taught a lesson for having disfiguring the face of appellant, on which the appellant fired from his .12 bore carbine at the back of the deceased who after sustaining the injuries fell' on the legs of the complainant. Thereafter, all the three accused got down from the tonga and co-accused Asif Raza fired from his carbine towards the complainant who was not injured but some of the pellets hit Akbar Ali, tonga driver and the other unknown passenger. It is also narrated that in the meanwhile Muhammad Afzal and Muhammad Irshad (P.W.8) who were coming from their village on bicycle reached the spot while witnessing the occurrence. Upon seeing them all the three accused while brandishing their weapons in the air and raising exhortations ran away. The complainant alongwith Muhammad Afzal and Muhammad Irshad P.Ws. Took Jamat Ali to the Civil Hospital, Dijkot in the same tonga. The Medical Officer after seeing Jamat Ali in dangerous condition, advised them to take him to Civil Hospital, Faisalabad. Jamat Ali died while he was being taken to Civil Hospital, Faisalabad. The motive as stated in the F.I.R. Is that the deceased and appellant had fought with each other about two years ago and the deceased had inflicted hatchet blows upon the face of the appellant and on account of said grudge, the appellant and the remaining two accused had murdered Jamat Ali. It is further narrated that after having left the dead body of the deceased in the compound of police station alongwith P.Ws. Muhammad Afzal and Muhammad Irshad, the complainant had come to police station to lodge the report.
5. Dost Muhammad, S.-I. P.W.10 after recording F.I.R. (Exh.P.E.) went to the spot, prepared injury statement (Exh.P.G.), inquest report (Exh.P.H.) and sent the dead body for post-mortem examination through Constable Muhammad Aslam P.W.9. On the same day, he visited the place of occurrence, took into possession blood-stained earth (Exh.P.D.), on 25-10-1990 Muhammad Aslam, Constable produced before him last-worn blood-stained clothes of the deceased i.e, shirt P.2 and Chaddar P.3 which were taken into possession vide memo. Exh.P.E. The said Constable also produced a phial containing pellets. On 10-6-1990, he arrested Asif Raza the acquitted co-accused who on 20-6-1990 while in police custody led to the recovery of carbine P.1 from the Dera of his maternal-uncle Ashfaq Ali appellant which was taken into possession vide recovery memo. Exh.P.C.
He also recorded the statements of P.Ws. Muhammad Afzal and Muhammad Irshad on 24-5-1990.
Subsequently, the case was investigated by S.H.O. Inspector Naseer Ahmad Lodhi who was not produced. Afterwards, Muhammad Aslam D.S.P., Jaranwala also investigated the case. Complete challan was submitted against all the accused. The appellant and co-accused Muhammad Boota were placed in column No,2 whereas Asif Raza accused was placed in column No,3 of report under section 173, Cr.P.C.
6. Dr. Zia-ur-Rehman, Medical Officer, Primary Health Centre, Dijkot, Faisalabad (P.W.1) conducted post-mortem examination on the dead body of the deceased Jamat Ali on 25-5-1990 at 9-00 a.m.
And found the following:-- "(1) A fire-arm wound of entrance 2.5 c.m. x 2.5 c.m. x D.N.P. Margins were inverted on the back of chest. 13 c.m. Below the base of neck in the mid line, 1/2 c.m. On the right side from spinal cord, 7 c.m. Medial to the medial border of right scapula. Blackening was present, 4 c.m. x 4 c.m. Around the wound of entrance, 6 fire-arm wounds of exit with everted margins in an area of 5 c.m. x 5.5. c.m. Starting from mid of right clavical exiending lateral just below the level of right clavical. Each wound of 1/2 c.m. x 1/2 c.m. Oval in shape. One wound was on the mid of right clavical and fracture of the mid clavical was also present. Second wound was 2 c.m. Lateral to the first wound and next 3rd and 4th were lateral to the second, each of 1/2 c.m. Apart. 5th wound was present 2.25 c.m .
Below and medially from the 4th wound and 6th wound was present medially 1 c.m. Apart from the 5th wound.
(2) A contusion 1/2 c.m. x 1/2 c.m. Was present between the 4th and 5th wound of exit. Below this contusion, pellet was felt and removed."
' On exploration, it was found that 5th and 6th ribs were fractured below the wound of entrance, upper part of right lung was crushed, a pellet and cardwad was removed from it, 2nd rib was fractured medially at front of chest, medial side of clavical was also fractured, one pellet was removed from subeutaneous tissue at front of chest and walls, ribs and cartiliages were found fractured on opening the thorax. On opening the abdomen, to 2 to 3 ounces of dirty coloured material was found in the stomach. In his opinion, death was caused due to haemorrhage and shock as a result of injury No,1, probable time between injuries and death was few minutes and between death and post-mortem was about 24 hours. Copies of the post-mortem report and the description of the injuries were tendered in evidence as Exh.P.A. And Exh.P.A./1.
7. The charge was framed by the trial Court against all the accused including the appellant as mentioned above, to which they pleaded not guilty and claimed to be tried.
8. The prosecution in order to prove its case produced 10 witnesses, gave up Muhammad Afzal, Muhammad Rafiq, Iftikhar Ahmad, Akbar Ali, Ghulam Muhammad, Manzoor Shah, Muhammad Aslam, Muhammad Aslam Khan, D.S.P. And Dr. Naseer Ahmad. Akbar Ali and Ghulam Muhammad injured P.Ws. Were given up as won-over while the remaining P.Ws. As unnecessary. It also tendered in evidence report of Chemical Examiner (Exh.P.J.) and that of Serologist (Exh.P.K.), certified copy of order, dated 28-5-1989 of Judicial Magistrate (Exh.P.L.), certified copy of order- sheet of case F.I.R. No,82, dated 18-3-1989 pertaining to Police Station Dijkot pending in the Court of Judicial Magistrate, Faisalabad (Exh.P.M.) and closed its case.
9. The complainant Muhammad Ashraf P.W.7 while reiterating the prosecution story as narrated by him in the F.I.R. (Exh.P.E.) further stated that when they boarded the tonga, it proceeded, and at a distance of 10 paces, all the accused signalled the tonga to stop and thereafter they boarded the same on its rear seat. This part of his statement was duly controverted by Exh.P.E. Where it is not so recorded. In the cross-examination, he explained that later on he came to know that the 3rd passenger on the front seat of the tonga was Ghullam Muhammad son of Shafi and denied the suggestions that no case against the deceased was registered for causing injuries to the appellant, that only Faryad Ali was implicated in the said case, that Iftikhar Ahmad son of Muhammad Ali and one Irfan was sitting on the rear seat of the said tonga, that only one shot was fired that hit the deceased and that the accused have been involved in this case to create pressure in the aforementioned case wherein the appellant was injured. He also stated that Afzal P.W. Is not a brother of the wife of Jamat Ali deceased and that a case under section 307, P.P.C.
Against the appellant was registered in the year 1989 by co-accused Muhammad Boota, in which the parties compromised.
10. Muhammad Irshad P.W.8 corroborated the prosecution case on all material particulars; however, admitted in cross-examination that Afzal P.W. Is the brother of the wife of deceased Jamat Ali. He also stated that his statement was not recorded by the police and denied the suggestion that on account of brotherhood, he had made a false statement.
11. The Investigating Officer, Dost Muhammad P.W.10 conducted the investigation, details of which have been narrated above, admitted in the cross-examination that he did not verify that the deceased had caused injuries on the face of the appellant and at that stage requisitioned the record of F.I.R. Registers for the years 1988 and 1990 and Roznamcha for the same years pertaining to Police Station Dijkot and after seeing them he stated that F.I.R. No,82, dated 18-3-1988 shows that it was Faryad Ali (the brother of the deceased) who inflicted first blow of hatchet on the forehead and right cheek of the appellant and the name of Jamat Ali deceased is not mentioned as accused in it. The abovesaid F.I.R. No,82 was admitted in evidence as Exh.D.B. Subject to objection by the prosecution. He further admitted that the other two injured passengers in the tonga were Akbar Ali and Ghulam Muhammad and he also recorded their statements and prepared their injury statements. He denied the suggestion that Iftikhar Ali son of Muhammad Ali and Irfan of Chak No,261 were sitting in the same tonga and also stated that it is in the statement of Akbar Ali injured that Iftikhar Ali son of Muhammad Ali was also sitting in the tonga and that the statement of said Akbar Ali injured was recorded on 8-6-1990; admitted that according to his investigation and from the statements of injured persons, only one shot was fired during the occurrence which hit all the three and no second shot was fired. He also admitted that during the investigation of this case conducted by Muhammad Aslam D.S.P., it was proved that Ashfaq appellant was not present in the tonga at the time of occurrence and in his report, dated 18-6-1990, he found the appellant and Boota accused as innocent.
12. P.W.2 Munir Hussain, Head Constable, after having received the sealed parcel containing blood- stained earth on 26-5-1990, handed over the same to Constable Muhammad Aslam P.W.9 on 9-6- 1990 for onward transmission to the office of Chemical Examiner, who delivered this parcel to the said office. P.W.3 Sarfraz Ali, Patwari prepared the site plan Exhs.P.B. And P.B./1. P.W.4 Muhammad Hafeez identified the dead body of the deceased. P.W.5 Shaukat Ali, the brother of the deceased, is the witness of recovery of carbine P.1 from the courtyard of the appellant while P.W.6 Muhammad Amin attested the recovery memo. Of blood-stained earth having been secured from the place of occurrence.
13. The statements of the appellant and the acquitted co-accused were recorded under section 342, Cr.P.C. They denied the prosecution allegations. Muhammad Boota pleaded false implication due to connivance of Amin P.W. With the complainant and also stated that the appellant Ashfaq was having cross-cases and he had inimical relations with him. He also produced photo copy of F.I.R. No,13, dated 24-1-1989 as Mark "A". The appellant pleaded false implication due to enmity and also stated that the deceased never injured him. Asif Raza accused also pleaded false involvement due to enmity and also stated that the deceased had never injured Ashfaq, the appellant.
14. The trial Court had pronounced the abovementioned verdict, legality whereof has been assailed by the learned counsel for the appellant. It is contended by the learned counsel for the appellant that it is a case of two versions put forward by the prosecution, one given by the complainant and the other given by the Investigating Officer that the injured P.Ws. Were not produced and were given up allegedly as having been won-over because they would not have supported the prosecution version, that the statement of the complainant is not trustworthy as he is the real brother of the deceased, that both the eye-witnesses were disbelieved qua the number of shots fired, therefore, cogent and reliable corroborative evidence is required which is lacking, that no recovery was effected from the appellant, that no empty was found at the place of occurrence, that the medical evidence can be used for confirmation of ocular testimony as regards injuries to the deceased and it cannot provide corroboration qua the accused for proving their involvement (relies on Muhammad Sharif and another v. The State 1997 SCM R 866, that the acquitted co- accused Asif Raza was also involved in the alleged motive occurrence in which the face of the appellant was disfigured and, therefore, he also had a motive against the deceased, that he was also found guilty by the various Investigating Officers, carbine was also recovered from him and in these circumstances while acquitting him the trial Court has wrongly held that he was an unconcerned person, that the doctor who examined the injured P.Ws. Was wrongly given up as unnecessary because according to the prosecution, the deceased was first taken to him and he had allegedly advised them to take him to District Hospital and he was a witness of this aspect and as he has not been produced, the delay in lodging the F.I.R. Remains unexplained, that the manner in which the investigation was conducted, the witnesses were given up and the statement of Irshad Ullah alleged eyewitness was not recorded, make the prosecution case highly doubtful and it is a case in which there is a doubt on every point. Learned counsel has also placed his reliance on Shah Nawaz v. Lal Khan and 2 others 1972 SCM R 286, wherein it has been held that if the circumstances show that the eyewitnesses mentioned in the F.I.R. Who were not examined should have been examined, inference adverse to the prosecution in such case could and should be drawn.
15. Learned counsel for the State while opposing the appeal and while supporting the impugned conviction and sentences, has submitted that the defence has failed to impeach the trustworthy, confidence inspiring ocular account of Muhammad Irshad P.W.8 who is totally an independent witness. He has also submitted that as the injured P.Ws. Were won over, adverse inference should not be drawn against the prosecution due to their non-product ion .
16. After having gone through the record and after having heard the arguments of the learned counsel for the appellant as well as of the State, we are of the opinion that the motive in this case stands fully proved against the appellant as besides ocular account, the bare perusal of Exh.D.B., F.I.R. No,82, dated 18-3-1988 lodged by Mukhtar Hussain Shah, father of the appellant, shows that Faryad Ali and Muhammad Hayat, brothers of the deceased and Kaka father of the deceased were involved in the occurrence in which the face of the appellant was disfigured due to the injuries caused on his face by them and for this reason the appellant bore a grudge and although the deceased was not one of the accused in the said occurrence, yet the appellant killed him out of revenge because of his immediate relationship with those accused who had disfigured him. The F.I.R. Was promptly lodged in this case and has been corroborated by the statements of P.W.7 and P.W.8. The discrepancy in their statements regarding relationship of Afzal with the wife of the deceased is minor and does not damage the prosecution case against the appellant. P.W.8, Muhammad Irshad, is totally an independent witness and had no motive to falsely implicate the appellant and he has fully corroborated the statement of the complainant and nothing has come out in the cross-examination to create a doubt regarding the involvement of the appellant. The ocular account is also corroborated by the medical evidence which proves the presence of injury upon the person of the deceased as explained by the eye-witnesses. The recovery of carbine from the "Baithak" of the appellant also shows his involvement. The injured P.Ws. Were won over and, therefore, their non-production cannot lead to an adverse inference against the prosecution. The opinion of the police in regard to the innocence of the appellant is not binding on the Court, the motive, the ocular account and the medical evidence have proved his guilt. The appellant cannot get any benefit merely because the eye-witnesses have been disbelieved qua the number of shots fired because the grain has to be sifted from the chaff and in view of the abovementioned, we are of the opinion that trial Court correctly recorded the abovementioned conviction and sentence of the appellant. We are also of the opinion that the co-accused Muhammad Boota and Asif Raza were correctly acquitted by the trial Court, giving them the benefit of doubt. Muhammad Boota, co-accused, has absolutely no motive to commit the murder of the deceased Jamat Ali. He had no connection with the accused party. As regards Asif Raza accused, according to the prosecution case, Akbar Ali, tronga driver, and the other unknown passengers were injured on account of shot fired by him but they were not produced, therefore, it has not been established that Asif Raza caused any injuries and as the P.W.10 in his cross-examination admitted that it was proved during investigation that only one shot was fired, thus, the case of the prosecution against Asif Raza accused became doubtful. Furthermore, as Asif Raza is a witness against the complainant party of the previous occurrence in which the face of the appellant was disfigured, the possibility cannot be ruled out that he may have been falsely implicated. The complainant's revision petition against the acquittal of the co-accused which was ordered to be heard alongwith the appeal has, thus, no force. .None turned up on behalf of the complainant in support of the revision petition, may be due to the fact that the complainant has lost interest against the acquitted co-accused.
17. Resultantly, maintaining the appellant's conviction under section 302, P.P.C. For the murder of Jamat Ali deceased, his appeal is dismissed and death sentence awarded to him is confirmed. The sentence of fine and compensation as recorded by the trial Court is also maintained. However, in case of default in the payment of compensation, the sentence of six (6) months' R.I. Is converted into (6) six months' S.I. The revision petition is also dismissed and the murder reference is answered in the affirmative.