JUDGMENT M. JAVED BUTTAR, J.~ The appellant, Muhammad Younas ,(28) was tfied, alongwith the acquitted co-accused Muhammad Yousaf (52) and Sajjad Ahsan s/o Muhammad Yousaf (18) for the offences under Sections 302/34, PPC in case FIR No. 360, dated 21.8.1992 registered at Police^ Statioq, Chak Jhumra in respect of murder of Najeebullah (50/51) on 21.8.1992, at 6.15 a.m. In the fields belonging to the deceased and'his brother Karamat Ali, within the area of Chak No. 163/RB, 8 miles from Police Station, Chak Jhumra District Faisalabad, by the Additional Sessions Judge, Faisalabad. The learned Trial Court vide its judgment dated 12.5.1994 while acquitting the above said two co-accused, extending them' the benefit of doubt ./convicted the appellant under Section 302, PPC and ' sentenced him to deaih and also to pay a fine of Rs.25,000/- or to undergo R.I. For a period of six months, in case the deafh sentence is not confirmed. The Trial Court also directed the appellant to pay compensation of Rs.70,000/- to the legal heirs of the deceased under Section 544-A, Cr.P.C.
2. The appellant, Muhammad Yousaf has challenged his conviction and sentence through Cr.A. No. 297/1994. The complainant, ^Saleem AlStar, has challenged the acquittal of the iabovesaid co- accused through Cr.Rev. No. 165/1995 and the Trial Court has sought confirmation of death sentence through'Murder Reference No. 13-2/94. All these matters are being r
3. FIR TMo. 360 (Ex.PF) was registered on the statement of the complainant, Saleem Akhtar, the son of the deceased Najeebullah (PW.7), according to which, bn the fateful day at 6.15 a.m., he alongwith his brother Naeem AKhtar, his paternal uncle and brother of the'deceased, Karamaf Ali (P'yV'S) and Najeebullah, his father, reached their fields for cutting fodder" whep ail the accused armed with .12 bore guns suddenly appeared from the nearby bushes, Muhammad Younas raised 'lalkara' to teach: a lesson to his father Najeebullah for getting registered and pursuing the cases against him, his father turned towards the dirt/" kacha' road and, in the meanwhile, Muhammad Younas fired at his father which hit him on the back of his chest and-simultaneously Muhammad Younas accused'fired at the*left shoulder of his father upon which his father fell down and then Sajjad Ahsan accused fired hitting on the right leg of the deceased. He and other PWs raised '- alarm' upon which all the three accused took one shot each at the deceased and rah away towards north. The deceased died on the spot-. - 4. The motive part given in the FIR is that about llh months ago accused Muhammad Younas (the present appellant) abducted Robina Kausar, the complainant's sister, for which Muhammad Younas was arrested and was-sent' to jail and after his release on bail, he again tjied to abduct her 'forcibly but did. Not succeed and for this occurrence, a second- case was gotten registered against him and after one day of his second occurrence, during the intervening night of 3rd and 4th of August, 1992 accused Muhammad Younas caused , a fire-arrp injury to complainant's mother ,-and about this occurrence also a case was registered against Muhammad Younas at the instance of complainant's father, the deceased. The complainant has further narrated that all the cases are being pursued by -his father, the deceased. In the end, it narrated that Ejaz, real brother of the adcused Muhammad Younas tried to compel the deceased for a compromise but the deceased, did not agree aid-therefore, all the three accused with the conspiracy and help of Ejaz, if furtherance of their common intention had committed murder of his father. v ^ '
5. The abovesaid accused.Were duly charged, to which they pleaded not guilty , and thereafter the pfosecution while giving-up Naeem'Akhtar, 4fatZubaida Bibi, Muhammad Ashraf and Akbar Ali, PWs as'-unnecessary -examined 12 prosecution witnesses to prove its case.
6. PW-1; Dr. Abdul Shakoor Gill, M.O., Incharge Rural Health Center, Chak Jhumra, conducted post- nioftem examination on the dead- body of the deceased Najeebullah at 1.00 p.m. And found following injuries on it. *
1. An oval fire-arms wound of entry with- inverted margin which were blackened 5 c.m. x 3.5 c.m.s probe past through and . Through on outer side of left upper arm 8 c.m. Left shoulder top and 18 c.m. Above left elbow joint. It injured skin subcutaneous tissue muscles and biacheal-artry vein and nerve, fractured the left humerous bone on upper part and exited through on inner side of life upper arm.
2. A fire-arm wound of exit 8 c.m; x 4'A c.m. With a everted margin on inner side of left upper arm 9 c.m. Below left shoulder top.
3. A fire-arm wound of exit with a everted margins 4 c.m. x 2-lh c.m. On inner side of left upper arm 2 c.m. Below on injury No. 2.
4. A fire-arm wound of entry l-'A c.m. x 'A c.m. Inverted margin x probe past x chest,cavity on outer left lateral chest 3 c.m. Below left arm pit 6 c.m. Above left nipple. It injured skin and muscles of left side of chest and centered left plural cavity, and recovered from left plural cavity.
5. A grazing fire arm wound 4 c.m. x xh c.m. x skin deep at front of left chest just above left nipple damaging areola.
6. Four fire-arm wound of exit in area 5 c.m. x 3 c.m. At front of right chest 4 c.Tn. Above right nipple with ^4 c.m. x xh c.m. x. Averted margin each.
7. Four fire-arm wound of exit x'h c.m. x lA c.m. Each in a area 7 c.m. x lh c.m. On front and lateral side of right side of chest 2 c.m. Below and lateral to right nipple. -
8. A circular fire-arms wound of entry with inverted margin 2-xh c.m. x 2 c.m x probe passed chest cavity margins were blackened on back of left side of chest 4 c.m. From midline 23 c.m. Below left shoulder top. On exploration projectile injured skin muscles fractured second and third left ribs posteriorly, left Dlura. Left lun2 was shattered ascending anrta and unner nart nf [Vol.XX Muhammad Younas V. The State Cr.C. 93 (M. Javed Buttar, J.) heart was shattered, right plura and lung also shattered. After . Fracture of third and forth ribs anteriorly on right side chest the pellets exited through exit wound already described. A wad and one pallet, and broken pallet recovered from right side plural cavity and handed over to police -in a sealed container. Plural cavity contained blood on both sides. The projectile also fractured fourth thoracic vertebra and spinal cords in this area.
'I f. A grazing fife-arm wound c.m. x lh c.m. Xskm deep on inner side of right thigh 14 c m. Above right knee joint.
10. A grazing fire-arm wound 1 c.m. x Vi c.m. x skin deep on. Back of lowest part of right thigh 3 c.m.
Above popleteal fossa.
11. A grazing fire-arm wound, 1 c.m. x 1/3 c.m. x skin deep on back of right calf 15 c.m. Below-right knee joint.
On opening abdomen, the doctor found that all the organs in the abdomen were healthy, stomach contained secretion small intestine contained chyme and large intestine contained fecal matter.
Iiy the opinion of the doctor, the cause of death was hemorrhage and shock due to injuries Nos, 1, 4 and 8 and these were sufficient to cause death in ordinary course of nature individually as well as collectively. All the injuries were ante-mortem caused by fire-arms and injuries Nos. 5 and 9 to 11 'Were declared simple in nature. In his opinion, the time between injuries and death was immediate and the time between death and postmortem was about 7 hours. After post-mortem examination carbon copy of the post-mortem report No. 12/9^, police - papers, last worn clothes-of deceased and sealed parcel containing two pellets and a wad were handed over to police Ex.PA is the carbon copy of is post-mortem examination report and PA/1 is the diagram of injuries.
7. PW-2, Khalid Akhtar, IIC/Moharrir, Police. Station, Chak Jhumra, stated that in August, 1992, Investigating Officer handed him over one sealed parcel containing blood-stained earth which was handed over by him later on to Mushtaq Ahmad, F.C. For onward transmission to the . Officer of the Chemical Examiner.
8. PW-3, Muhammad Yar Patwari, prepared the site plan under the direction of the Police, on the pointation of the PWs, which was placed by him oh record as Ex.PB and PB/1. He has also stated that he saw no sign of any struggle on the spot. * *.
9. . PW-4, Khalid Mehmood is the witness of recovery blood-stained earth from the spot Ex.PC and a pair of shoes of the deceased recovered from the spot (Ex.PD). , JO. PW-5, Abdul Hameed identified the dead-body of Najeebullah deceased at the time of post- mortem examination in the Rural Health Centre, Chak Jhumra.
11. PW-6, Tanveer Akram, is the witness of recoyefy of 12-bore gun (P. 1) which wasgotten recovered by the appellant Muhammad Younas from a box lying in his house and it was taken into possession t>y the police vide Recovery Memo. (Ex.PE), duly attested by this witnesses who is son-.
In-law of the deceased. The deceased was also husband of his mother's* sister.
12. PW-7, Saleem Akhtar, supported the FIR version and in cross- examination he denied the suggestion that the had not seert the occurrence and that he had deposed falsely due to enmity. He further stated that Robina Kausar was daughter of his father's brother and denied the suggestion that appellant was allowed bail in view of the statement of Robina Kausar under Section' 164,-Cr.P.C. He further stated that it is not correct that in the. Year 1965 a murder case was registered against the deceased and his brother Hidayatullah for the murder of one Muhammad Ishaq and denied any knowledge about the involvement of his paternal aunt Rashida Bibi as an accused in the said case and also denied the Suggestion that his father had built a wall of his house covering part of the street over which one Rana Tanveer, a proclaimed offender;, was aggrieved. He admitted that at the time of occurrence he prd the PW Naeem were having 'chadars' and sickles and these were got produced before the police. In answer to a question, he stated that the .Deceased had taken the last meal, last night before going to bed. He denied the suggestion that the deceased was shot at up the dark hours of the morning.
13. PW-8, Karamat All, has given the eye-witness account ami has supported the prosecution version and in the cross-examination he has admitted that Robina Kausar was his real daughter and he got registered a case against Muhammad Younas appellant about hef abduction and denied the suggestion that he gave an affidavit on 6.2.1992 to the effect that the accused of abduction case, namely, Muhammad Shall, Mst, Hanifan, Tasneem Akhtar, Naziran Bibi and Asia Parveen were falsely implicated by him due to anger, he admitted that in the investigation only Younas appellant was found gustily by tj)e police in the abduction case and further admitted that at the time of occurrence he was carrying one 'chadar' and on '[Vol.XX Muhammad Younas V. The State #tbs Cr.C. 95 #the , (M. Laved Buttar, J.) sickle and these items were not shown by'him to the police.'He has denied the suggestion'that it was a blind murder and the accused have been implicated due to previous enmity.
14. PW-9 stated that 4/5 days prior' to the occurrence while he was. Present at his. 'dera' alongwith Tanveer PW, the appellant, Muhammad Younas and his brother Ejaz came to him and Ejaz requested for a compromise between Muhammad Younas and. The deceased which was turned down and-Ejaz then said that compromise can only be effected if Najeebullah is murdered. In the cross-examination he has admitted that he is son-in-law of the deceased Najeebullah.
15. PW-10, Ghulam Abbas, stated that on 11.6.1993 while-he was posted as SHO, Police Station' Chak Jhumra, he arrested the proclaimed offender Muhammad Younas, the present appellant, and during interrogation and on-his pointation, in the presence of Tanveer Akram and Tariq Mehmood, PW, he led to the recovery of a gun 12 bore, (P-1) alongwith one license from his possession which, was taken into possession vide Recovery Memo. Ex.PE and the plan of recovery site prepared by him in Ex.PG. He also recorded the statements, of PWs under Section 161, CrP.C. And the supplementary challan was submitted against the appellant by him. -
16. PW-11, Mehr Khan, stated that on 21.8.1992 he was posted as SHO, Police Station, ChaktJhumra and on the.Same day on the basis of a statement of Saleem Akhtar, corfiplainant, he entered the FIR (Ex.PF) which was recorded at Police, Station knd was read- over to S&leem Akhtar and Saleem Akhtar signed it in token of its correctness and the FIR in his hand and bears his signatures. He has further stated that thereafter, he reached the spot, saw the dead-body, prepared the inquest report (Ex.PH), injuries statement (Ex.PI) and handed over the dead-body to Mushtaq Ahmed, FC fon post-mortem examination. He thereafter inspectec^the spot, took into possession blood-stained earth vide. Recovery memo. Ex.PC, a pair pfshoes (P-2/1- 2) of the deceased Vide Recovery Memo. Ex.PD. He then prepared site plan Ex.PJ Vmd recorded the statements of the PWs. The accused Muhammad Yousaf and Sajjad Ahsan were arrested by him.
He also got prepared site plan from Muhammad Yar Patwari. He carried out the proceedings under Sections 87 and 88 of the Cr.P.C. Against-Muhammad Youiias, appellant. In the investigation, he found the accused Sajjad Ahsan and Muhammad Younas as innocent as according to his findings they were not present at the place of occurrence at the time of Occurrence. He also found Ejaz Ahmad accused as innocent of the offence of abetment. After the-: post-mortem examination last worn clothes of the deceased, shirt (P-3), 'chaddar' (P-4), 'Safa' (P-5) and an amulet' (P-6) and a sealed filed containing pellets (P-7.) were produced before him Mushtaq, FC and the same were taken into possession by him vide Recovery Memo. Ex.PL. The parcel containing blood-stained earth was delivered by him to the Moharrir of the Police Station. On. 14.2.1993, he completed the investigation and prepared the challan papers.1
17. PW-12, Mushtaq Ahmad, FC, went to the place of occurrence, on the day of occurrence with the SHO and he' escorted the dead-body of the deceased to Civil Hospital, Chak Jhumra and. After - post-mortem examination, the Medical Officer handed him over the'last worn clothes of the deceased and' these articles'were produced by him before the Investigating Officer. He has further stated that on 24.8.1992, Khalid Akhtar, PW-2, handed him over a sealed parcel containing blood- stained earth which was deposited by him in the office of the chemical examiner, Punjab, Lahore on 25.8.1992.
18. The Public Prosecutor closed the case of prosecution after tendering in evidence the report of the Chemical Examiner as Ex.PM and that jof Serologist Ex.PN.
19. We have heard the learned counsel for the appellant, the' State, the complainant and have also seen the record.
20. It is contended by the learned counsel for the appellant that both the eye-witnesses produced by the prosecution are related to the deceased, they made material and dishonest improvements at the trial, they had not witnessed the occurrence wliich was-a blind murder, the occurrence did not take place at the given time and the ocular account is belied by the medical evidence qua the time of occurrence because in the rural areas when the farmers leavp their house for going in crops they take their breakfast but no food .Either digested or semi-digested was found in the stomach, of the deceased by the doctor who conducted the post-mortem examination, the medical evidence does not support the ocular account even qua the number of shots fired at the deceased, both the witnesses at the time of trial, to bring their evidence in the line of medical evidence purposely omitted 3 shots allegedly fired by the accused, mentioned by the complainant in the FIR, the eye-witnesses were allegedly carrying 'chadars' and sickles at the .Time of occurrence and none of these items were produced by them before the police which shows that they were not present at that time at the place of occurrence, on the same evidence two accused, who are alleged to have caused fire-arm injuries on the shoulder and leg of the deceased, have been acquitted, therefore, it is highly unsafe to place the reliance on the testimony |Vol.XX Muhammad Younas V. The State Cr.C. 97 (M. Javed Butlar, J.) of these witnesses, mere abscondence of, the appellant cannot be used as a corroborative piece of evidence as the same is equally sustained with the innocence of the accused, the Patwari, PW-3.
Did not see any sign of struggle in the fields, the place of oqcurrence, where admittedly the crops were standing and this fact coupled with the fact that no crime empty was recovered' from the spot supports the defence version that it was an unwitnessed occurrence having taken place during the dark hours of the morning, the recovery of double barrel gun (P-1) is immaterial and inconsequential as no crime empty was recovered to match With the gun, the witnesses are belied from.The defence documents as they have denied certain happenings. Learned counsel for the appellants has thus concluded that these facts and circumstances shows that chances of the appellant's false implication cannot be ruled out and .The benefit of doubt must be extended to the appellant and he is entitled tc be acquitted. .21. Learned counsel for the complainant while asking for the conviction of co-accused and while opposing the appeal has submitted that Muhammad Y'ousaf caused injury on the left. Shoulder of the deceased and Sajjad Ahsan caused injury on the right left of the deceased and, therefore, the Trial Court acted illegally in acquitting them.
22. There is no motive qua the acquitted accused and there is no material on the record to suggest "that Yousaf and Sajjad Ahsan had any grudge against the deceased. Similarly no recovery has been affected,from them. The possibility cannot be ruled out that they might have, been roped in just to widen the net. In our opinion, the Trial Court correctly gave therm benefit of doubt and acquitted them of the charge. The. Revision petition seeking conviction Of the acquitted co- accused, therefore, in our .Opinion, has no merit. *
23. On the other hand, the prosecution has fully proved .Its^case beyond the shadow of doubt against the appellant. Muhammad Younas. The FIR was promptly lodged, it was a broad day light occurrence, no possibility of 'miss-identity, the . Appellant had the motive to remove the deceased from his way. He was abducting the same lady again and again and the PWs have no motive to falsely-implicate or to substitute him with'the real culprit, the medical evidence supports the prosecution case against the appellant, the appellant's absconsion for a period of about 10 months also points towards his guilt, his explanation given by him in his statement under Section 342. Cr P C is neither reasonable or satisfactory and the documents Ex.DA to Ex.DD produced by the defence in np way have weakened the case of prosecution and, therefore, in our opinion, he has been rightly and correctly convicted and sentenced by the .Trial Court. We have given our anxious consideration to the quantum'Sf the sentence but we have not been able to find any mitigating circumstance in favour of the appellant to award him lesser punishment.
24. In view of.The above discussion, Cr.A. No. 297/1994 of the appellant, Muhammad Younas as well as Cr.Revision No. 165/1995 of the complainant, Saleem Akhtar, have nolorce and are dismissed.
The Murder Reference is accordingly answered in affirmative and the death sentence awarded to the appellant, Muhammad Younas is confirmed.