' RUSTAM ALI MALIK, J.--- Through this judgment we intend to dispose of Murder Reference No,325 of 1997, Criminal Appeal No,612 of 1997 and Criminal Appeal No,560 of 1997.
2. The brief facts are that Farrakh Shahzad alias Pappi and Ghulam Dastgir accused were challaned by Police Station Thikriwala, District Faisalabad in case F.I.R. No,245 of 1995, dated 1-7- 1995 under sections 302/324/34, P.P.C. The report Exh.P.E. Was lodged by one Lal Din son of Raheem Bakhsh complainant. The formal F.I.R. Exh.P./1 was registered on the basis of statement of Exh.P.E. Of Lal Din complainant who had stated therein that he is a resident of Chak No,73-GB. On the day of occurrence (i,e, on 1-7-1995) around 7-00 p.m. He alongwith his son Eid Hussain, wasproceeding to Masjid Ahl-iHadith and when they reached near Masjid Chowk, Farrakh Shahzad alias Pappi accused armed with carbine .12 bore and Ghulam Dastgir accused empty-handed reached there as a result of premeditation, As soon as they reached there, Ghulam Dastgir raised a Lalkara exhorting his co-accused to teach a lesson to Eid Hussain for insulting them whereupon Farrakh Shahzad fired with a carbine hitting Eid Hussain on his head, above the right ear and he fell down.
Muhammad 13ashir son of timer Din and Muhanunad Shafique son of Abdul Ghani who was carrying a two years' old child named Kashif moved ahead to rescue him whereupon Farrakh Shahzad fired again and the pellets of the shot fired by him hit the right shoulder and left rib of Muhammad Bashir while a pellet also hit Kashif the child on the back side of his head. On the alarm raised by the complainant, Muhammad Bashir and Muhammad Shafique, Umar Hayat son of the complainant and Yasin reached there and witnessed the occurrence and got them rescued from the accused and that the accused went away raising Lalkaras.
3. In the F.I.R. It was also stated that Farrakh Shahzad and Ghulam Dastgir used to compel Eid Hussain deceased to have illicit intercourse with them and Eid Hussain had told his elder brother Umar Hayat about the same and on 30-6-1995 at Asar prayer's time there was exchange of abuses between Eid Hussain, Umar Hayat and the accused namely Farrakh Shahzad alias Pappi and Ghulam Dastgir, near the mosque. Feeling insulted, the accused had injured Eid Hussain who was taken to Civil Hospital, Faisalabad and from where he was referred to Allied Hospital, Faisalabad and it was there that Eid Hussain succumbed to the injuries. The relatives of Muhammad Bashir and Muhammad Shafique, the injured had taken them away for treatment. The matter was reported to the police by Lal Din complainant on 1-7-1995 at 11-00 p.m. After the investigation the police challaned both the accused in this case and the case was later sent up to the Court of Session for trial.
4. Both the accused were formally charged by the learned Additional.Sessions Judge, Faisalabad on 22-10-1996.
5. The first charge against them was that on 1-7-1995 at 7-00 p.m. Within the area of Chak No,73-JB while Farrakh Shehzad accused was armed with carbine .12 bore and Ghulam Dastgir accused was empty-handed, they in furtherance of their common intention, had committed Qatl-e-Amd of Eid Hussain deceased, son of Lal Din complainant which is an offence under section 302/34, P.P.C. The second charge against them was that they in furtherance of their common intention had caused injuries to Muhammad Bashir P.W. With such intention and under such circumstances that if he, as a result of those injuries, had died, they would have been guilty of murder (Qatl-e-Amd) which is an offence punishable under section 324 read with section 34, P.P.C. The third charge against them was that both of them in furtherance of their common intention had caused injuries to kashif son of Muhammad Shafiq with such intention and under such circumstances that if he had died as a result of those injuries, they would have been liable for Qatl-e-Amd and which is an offence under section 324/34, P.P.C.
6. Both the accused pleaded not guilty and the prosecution was asked to produce its evidence. The prosecution has examined in this case as many as 12 P.Ws. Of them, P:W.12 is Muhammad Siddique, S.-I./Investigating Officer. As per his statement, on the receipt of information about the occurrence, he had reached the Emergency Ward of Allied Hospital, Faisalabad on 1-7-1995. Lal Din appeared before him and he recorded his statement Exh.P.E. Which was then sent to the police station for the registration of the case. He prepared the injury statement Exh.P.D. And the inquest report Exh.P.C.
And dispatched the dead body of the deceased for post-mortem examination. He visited the place of occurrence and put it under guard.. He then inspected the place of occurrence on 2-7-1995 and prepared the rough site plan, Exh P.L. He stated that during the inspection of the spot, he took into possession the blood-stained earth vide memo. Exh.P.J. And also recorded the' statements of P.Ws.
After the post-mortem examination, Liaquat Ali, Constable produced before him the last-worn cloth of the deceased i,e, shirt P.1, Shalwar P.2 and vest P.3 which he took into possession vide memo. Exh.P.A. The Constable had also produced before him the postmortem report and other relevant papers. He got prepared the site plan in duplicate Exh.P.F. And Exh.P.F./1 by Aurangzaib, Draftsman. He searched for the accused and arrested them on 29-7-1995.
7. P.W.12 stated that on 31-7-1995, Farrakh Shahzad accused while in custody made a disclosure and led to the recovery of carbine Exh.P.4. From inside the Anwaar of the Palang which was lying in the Baithak (room) and which was sealed and taken into possession vide memo. Exh.P.K. He had prepared its sketch and recovery memo. Exh.P.K. And had prepared the plan of place of recovery Exh.P.K./1. He handed over the sealed parcel to Moharrir Head Constable. After completing the investigation, he got the accused challaned.
8. The medical evidence in this case is furnished by P.W.4 Dr. Abbas Ali, P.W.8 Dr. Mian Tahir Javed and P.W.9 Dr. Muhammad Akhtar Pervez, Medical Officer, Allied Hospital, Faisalabad.
9. P.W.4 Dr. Abbas Ali stated that on 2-7-1995 while posted as C.M.O. In D.H.W. Hospital, Faisalabad he conducted the post-mortem examination on the dead body of Eid Hussain, deceased son of Lal Din and had found the following injuries on his person:--
(1) A fire-arm wound of entry with inverted margin having size 1/2 x 1/2 c.m. On right side head behind right ear pinny with wound of exit with everted margin on left cheek 1-1/2 c.m. Below left eye on exploration it injured scalp fractured the skull entered the cranial cavity damaged the menings and brain matter and exited through the wound of exit fracturing the left maxilla.
(2) A fire-arm wound of entry with inverted margin having size 1/2 x 1/2 c.m. On right side back of head (4 c.m. From midline) with wound of exit with everted margin on right temporal region size 2 c.m. x 2 c.m. On exploration it injured scalp fractured skull right paratel bone (skull bone) damaged brain matter and exited through wound of exit.
(3) A fire-arm wound of 1/2 x 1/2 c.m. Through and through on lobule of right ear.
(4) A lacerated wound 2 c.m. x 1 c.m. Into scalp deep on left side head (top of head).
' In his opinion the cause of death in this case, was brain damage due to. Injuries Nos.1 and 2 which were caused by fire-arm and which were anti-mortem in nature and were sufficient to cause death in ordinary course of nature individually and collectively. Injury No,3 which was also caused by fire-arm was also ante-mortem. Injury No,4 was caused by blunt means. He stated that the probable duration between death and post-mortem examination was 16 hours and between injuries and death 3 hours. Exh.P.B. Is the carbon copy of the post-mortem report, while sketches of injuries were also exhibited as Exh.P.B./1 and Exh.P.B./2 (due to typing mistake the record exhibit appears to have been recorded as Exh.P.B./1 instead of Exh.P.B./2). He had also signed the inquest report Exh.P.C. And the injury statement Exh.P.D.
10. P.W.8 Dr. Mian Tahir Javed, C.M.0., stated that on 6-7-1995 while posted in D.H.W. Hospital, Faisalabad he had medically examined Muhammad Bashir son"of Umar Din aged about 80 years and had found the following injuries on his person:--
(1) A scabbed wound 1/4 x 1/4 c.m. On front of right chest upper part craps were palpable on the anterior wall of chest (surgical emphyscimia).
(2) A scabbed wound 1/4 x 1/4 c.m. On front of right shoulder. On X-ray of right shoulder a small radio opaque body was present. Injury No,1 was declared Jaifa and injury No,2 Ghair Jaifa Damiyah.
According to him, injuries were homiciden and probable duration was 5/7 days between the injuries and medical examination. The weapon was described as fire-arm. Exh.P.G. Is the carbon copy of the medico-legal report while Exh.P.G./1 is the diagram of the injuries.
11. On the same day i,e, 6-7-1995 at 10-05 a.m.. P.W.8 had medically examined Kashif son of Muhammad Shafique, aged 2 years and had found the following injury on his person:-- ' A scabbed wound 1/3 x 1/3 c.m. On back of head a hard foreign body was palpable under the scalp at the sight of injury.
' The injury was declared as Shajjah-i-Khafifah and homicidal in nature. The probable duration was 5 to 7 days while the weapon was a fire-arm. Exh.P.H. Is the carbon copy of the medico-legal report whereas Exh.P.H./1 is the diagram of injury.
12. P.W.9 Dr. Muhammad Akhtar Pervez on 1-7-1995 while posted as Medical Officer at D.H.W.
Hospital, Faisalabad had medically examined Eid Hussain son of Lal Din, aged 20 years and had found the following injuries on his person:--
(1) A fire-arm wound of entry 1/2 x 1/2 c.m. With inverted margin. On right side of head behind right ear pinna.
(2) A fire-arm wound of exit 2 c.m. x 2 c.m. With inverted margin on right side front of head.
(3) A fire-arm wound of entry 1/2 c.m. x 1/2 c.m. With inverted margin on right side back of head 4 c.m. From midline.
(4) A fire-arm wound of exit 3/4 c.m. x 3/4 c.m. With inverted margin on left cheek just below eye.'
(5) A fire-arm wound 1/2 c.m. x 1/2 c.m. Into through and through on right ear lobule.
(6) A lacerated wound 2 c.m. x 1 c.m. Into scalp on left side top of head.
' He stated that injuries Nos.1 to 4 were kept under observation while injuries Nos.5 and 6 were Shajjah-i-Khafifah. The duration of injuries was fresh on arrival. Injuries Nos.1 to 5 were caused by fire-arm and injury No,6 by blunt weapon. All the injuries were homicidal. Medico-legal Report No,2011 of 1995 Exh.P.I. Was issued to Arshad Ali and that Exh.P.I./1 is the sketch of injuries..
13. P.W.1 Muhammad Yar, Moharrir Head Constable No,3285 had received the sealed parcel of blood-stained earth from Muhammad Sadiq, S.-I. On 2-7-1995 and on 12-7-1995 he had handed over the same parcel to Muhammad Sarwar, Constable No,2913 intact for onward delivery in the office of Chemical Examiner.
14. P.W.2 Liaquat Ali, Constable No,3668 had escorted the dead body of Eid Hussain, deceased to D.H.Q. Hospital, Faisalabad on 1-7-1995 and had got the post-mortem examination conducted on the dead body on 2-7-1995. After the post-mortem examination the Medical Officer handed over to him the last-worn clothes of the deceased shirt P.1, Shalwar P.2 and vest P.3 alongwith the post- mortem report and which he had then handed over to the Investigating Officer.
15. P.W.3 Muhammad Yasin had identified the dead body of Eid Hussain deceased at the time of its post-mortem examination.
16. P.W.5 is Mehmood Ahmed, Constable No,31 who on 1-7-1995 while posted as Naib-Muharrar had recorded the formal F.I.R. Exh.P.E./1 on the receipt of the complaint Exh.P.E., sent by Muhammad Siddiq, S.-I.
17. P.W.6 is Muhammad Sarwar, Constable No,2913. On 1-12-1995 Muhammad Yar, Head Constable had handed over to him one sealed parcel of blood-stained earth and which he had then delivered in the office of Chemical Examiner, Lahore on the next date.
18. P.W.7 is Aurangzeb, Draftsman who on 7-7-1995 inspected the spot and took rough notes (of the place of occurrence) on the pointing out of the P. Ws. And instructions of the police and on the basis of these rough notes he prepared the site plan on 9-7-1995 in duplicate in the scale of 1 inch equal to 6 feet and the said site plan is Exh.P.F. And Exh.P.F./1.
19. The ocular account of the occurrence in this case and also the evidence regarding the motive is furnished by P.W.10 Lal Din, complainant and also by P.W.11 Umar Hayat. P.W.10 Lal Din stated that about two years and three months ago around 7-00 p.m., he alongwith his son Eid Hussain was proceeding towards the mosque of Ahl-e-Hadith in their village and when they reached in the Chowk near the mosque, Farrakh Shehzad and Ghulam Dastgir accused emerged there from the road side. Farrakh Shahzad accused was armed with a carbine .12 bore whereas Ghulam Dastgir accused was empty-handed.
Seeing Eid Hussain, Ghulam Dastgir exhorted his co-accused that Eid Hussain be taught a lesson for insult whereupon Farrakh Shahzad alias Pappi fired with carbine, hitting Eid Hussain on the right side of his head above the ear and who fell down. Bashir Buddon and Shafique moved ahead to rescue Eid Hussain from the assailants whereupon Farrakh Shahzad fired on Bashir Buddon hitting him on his right shoulder and right rib and the pellets also struck the child on the back of his head and he was lifted by Shafique P.W. On commotion, Umar Hayat and Yasin P.Ws. Were also attracted to the spot and who witnessed the occurrence and the accused fled away from there while raising Lalkaras. Eid Hussain .Was removed by them to Civil Hospital, Faisalabad and from there he was referred to Allied Hospital where he succumbed to the injuries. The other injured were removed from the scene by their respective relatives. But he i,e, the complainant was about to leave the hospital when police reached there and recorded his statement Exh.P.E. And he thumb-marked the same. P.W.11 Umar Hayat deposed on the same lines. He further stated that the police then reached the spot and collected the blood-stained earth from the spot and took the same into possession vide memo. Exh.P.J. P.W.11 further stated that after one month he had joined the investigation and that in his presence Farrakh Shahzad accused made a disclosure about the weapon of offence i,e, carbine and then while in police custody led to the recovery of carbine P.4 from his Baithak (room) hidden in the Nawaar of the cot- and which was taken into possession vide memo. Exh.P.K.
20. Both P.W.10 Lal Din and P.W.11 Umar Hayat also deposed about the motive. They deposed that Farrakh Shahzad and Ghulam Dastgir accused used to compel Eid Hussain deceased to submit to their unnatural lust but Eid Hussain had refused to do so and a day earlier had narrated the story to his elder brother Umar Hayat P.W. And as a day prior to the occurrence a quarrel had taken place between the accused and Eid Hussain and Umar Hayat and that the accused had injured the deceased (who had subsequently expired).
21. The learned prosecutor gave up Yasin, Muhammad Shafique, Muhammad Bashir and Haji Farzand Ali, P.Ws. As having been won-over. He tendered in evidence the report of ' Chemical Examiner Exh.P.M. And report of Serologist Exh.P.N. And closed the prosecution evidence.
22. On the conclusion of the prosecution evidence the statements. Of the accused under section 342, Cr.P.C. Were recorded. Both the accused denied all the incriminating circumstances. In answer to question No,8 Farrakh Shahzad accused denied the recovery of carbine P.4 from the Baithak of his house and claimed that the carbine aforesaid had been planted on him. In answer to question No,9 he stated that P. Ws. Had deposed against him due to enmity and party faction in the village.
In answer to question No,10 he stated that the case has been made against him only on the party basis and which is a false one. In answer to question No,11 he stated that the complainant owed Rs,20,000 to his father and in order to digest the money and to pressurize his father he had been falsely implicated in this case at the instance of the complainant.
23. Ghulam Dastgir, in answer to question No,8, stated that the P. Ws. Had deposed against him due to enmity and party faction in the village. Similar was his answer to Question No,9. Both the accused neither produced any evidence in defence nor did they make a statement on oath under section 340(2), Cr.P.C.
24. After conclusion of the trial, the learned Additional Sessions Judge convicted both the accused under section 302/34, P.P.C. Farrakh Shahzad accused was sentenced to death under section 302/34, P.P.C. While Ghulam Dastgir accused was sentenced to imprisonment for life. Both of them were also sentenced to pay a fine of Rs,50,000 each. It was directed that in case of default in payment of fine, the accused will suffer simple imprisonment for six months and on recovery, half of the amount shall be paid to the heirs of the deceased. The learned trial Court also convicted both the accused under section 324/34, P.P.C. And sentenced them to seven years' R.I. And also to pay a fine of Rs,10,000 each. It was directed that in case of default in payment of fine, the accused will suffer S.1. For one month.
25. Aggrieved of the impugned judgment, Farrakh Shahzad alias Pappi accused filed an appeal (Criminal Appeal No,612 of 1997) before this Court while Ghulam Dastgir filed a separate appeal (Criminal Appeal No,560 of 1997). The learned trial Court also sent reference for confirmation of sentence of death awarded to Farrakh Shahzad alias Pappi accused. Through this judgment the aforesaid criminal appeals and the murder reference will stand disposed of.
26. We have heard the learned counsel from both the sides at length and have also perused the record. The learned counsel for the appellants have argued that P.W.10 who is father of the deceased and P.W.11 who is brother of the deceased were not present at the spot nor had witnessed the occurrence and that not a single independent witness from the locality had been cited or examined as eye-witness in this case although the occurrence had taken place in the village near the mosque. They have argued that actually the occurrence was unseen and that the eye-witnesses had been introduced subsequently as a result of premeditation so as to strengthen the prosecution story. They have argued that the eyewitnesses of the occurrence i,e, P.W.10 Lal Din and P.W.11 Umar Hayat who was father and brother Of the deceased respectively are interested witnesses and, therefore, it is not safe to put reliance on their statements and that Muhammad Bashir, the injured P.W. And also Muhammad Shafique who were the important witnesses in this case were given up by the prosecution without any reason. They have argued that the presumption of law of evidence in this case would go against the prosecution i,e, if the said P.Ws.
Had been examined, they would not have supported the prosecution story. The learned counsel for the appellants have further argued that the medical evidence in this case does not support the ocular account and that no overt act had been attributed to Ghulam Dastigir accused, beyond a proverbial Lalkara and that he had not caused any injury to the deceased or to any of the P.Ws. He had been convicted by the learned trial Court on the charge under section 302/34, P.P.C. It was argued that actually the motive in this case did not exist at all and that it is a fabricated story that both the accused used to compel Eid Hussain deceased to have illicit relations with them. It was further argued that no crime-empty was sent to Forensic Science Laboratory for comparison and as such the alleged recovery of carbine P.4 becomes inconsequential. He has also argued that Muhammad Bashir, injured P.W. Was given up by the prosecution and that conviction could not be recorded merely on the basis of the statements of P.W.10 and P.W.11 who are not only related inter se but are father and brother respectively of the deceased and as such are interested witnesses. It has been argued on behalf of the appellants that the prosecution had failed to establish its case beyond the reasonable doubt against any of the appellants and as such the conviction recorded by the learned trial Court as well as the sentences awarded to the appellants were liable to be set aside.
27. From the other side the learned counsel for the State has argued that the prosecution has fully established its case against the appellants and that P.W.10 and P.W.11 were the natural witnesses of the occurrence and that their statements cannot be discarded merely on the ground that they were related inter se or were father and brother of the deceased. It has been argued that the medical evidence in this case fully corroborates the ocular account and which is further corroborated by the recovery evidence. He has argued that P.W.10 and P.W.11 have also deposed about the motive and there is no reason to disbelieve them in that respect. He has argued that the version of the accused is improbable as it is unbelievable that the complainant owed Rs,20,000 to the father of Farrakh Shahzad accused and it was on account of the said reason that he implicated Farrakh Shahzad accused in this case so as to pressurize his father. He has argued that it cannot be imagined that a father would like to allow the real murderers of his son to escape and to involve an innocent person. He has argued that the accused have neither produced any evidence in defence nor have made statements under section 340(2), Cr.P.C. And that the prosecution has fully proved the charges against the appellants and that the learned trial Court had rightly convicted and sentenced them and the judgment of the learned trial Court should be upheld in the circumstances of the case.
28. We have carefully considered the arguments. So far as Ghulam Dastgir accused is concerned, the only allegation against him is that he had raised Lalkara exhorting his co-accused to teach a lesson to Eid Hussain, deceased. Even according to the prosecution story, Ghulam Dastgir was empty-handed at the time of occurrence. There is no allegation that he had caused any injury to the deceased or to any of the P.Ws. Had he the common intention with his co-accused, he could have tried to cause any injury to the deceased or to any of the P.Ws. But there is no allegation to that effect. Admittedly he did not cause any injury to any of the eye-witnesses nor there is any allegation that he had grappled with any of them. Sufficient evidence does not exist on record to connect Ghulam Dastgir accused with the offence. None of the charges in this case is proved against him beyond reasonable doubt. There is no convincing evidence on record to the effect that he had the common intention with Farrakh Shahzad co-accused to cause the death of the deceased or to cause injuries to the P.Ws., with intent to kill them. As such, the judgment of the learned trial Court to the extent of Ghulam Dastagir appellant cannot be upheld and under the circumstances he is entitled to the benefit of doubt.
29. So far as Farrakh Shahzad accused is concerned, the prosecution has fully established its cases. P.W.10 and P.W.11 who were the eye-witnesses of the occurrence have fully established that it was Farrakh Shahzad alias Pappi who had fired and killed Eid Hussain, deceased. They have also proved the existence of motive. Since there was a quarrel between the deceased and his brother i,e, P.W.11 with the accused, a day before the occurrence, it is not improbable that the accused was aggrieved of his insult and in consequence of which he could attack the deceased any time thereafter. The medical evidence fully corroborates the ocular account. It has already been stated in the preceding lines that so far as Farrakh Shahzad accused is concerned, the charge under section 302, P.P.C. Was fully established. As such he was rightly convicted under section 302, P.P.C.
(obviously the sentence had been awarded under section 302(b), P.P.C.). Since Bashir Ahmed and Shafique P.Ws. Were not examined, the charges under section 324, P.P.C. Are not proved beyond reasonable doubt and so Farrakh Shahzad accused is entitled to be acquitted of the charges under section 324, P.P.C. And he is accordingly acquitted of the two charges under section 324, P.P.C. However, since the charge under section 302, P.P.C. Is proved to the hilt against Farrakh Shahzad, accused/appellant, we uphold the conviction and sentence of death awarded to him by the learned trial Court and in consequence his appeal (Criminal Appeal No,612 of 1997) is dismissed in that respect. However, the sentence of fine awarded to him is converted to compensation under section 544-A, Cr.P.C. Which on realization shall be paid to the heirs of the deceased. In case of default Farrakh Shahzad, accused will suffer simple imprisonment for another six months.
30. So far as Ghulam Dastgir, accused is concerned, since none of the charges against him is proved beyond reasonable doubt, therefore, we extend to him the benefit of doubt and acquit him of all the charges in this case by accepting the appeal filed by him i,e, Criminal Appeal No,560 of 1997. If not requited in any other case, he be set at liberty forthwith.
The sentence of death awarded to Farrakh Shahzad accused is confirmed. Murder Reference No,325 of 1997 is answered accordingly in affirmative.