' This judgment will dispose of Criminal Appeal No,397 of 2000 as well as Criminal Revision No,184 of 2000 arising out of judgment dated 10-2-2000 passed by learned Additional Sessions Judge Jhang in case F.I.R. No,4 of 1998 dated 1-1-1998 under section 302/34, P.P.C. Registered at Police Station, Sadar Chiniot lodged at the statement of Asif Javed P.W.7.
2. The facts of the case are that on 1-1-1998 at about 10-00 a.m., the complainant of this case namely Asif Javed P.W.7 along with his brother Atta Ullah was going to their Dhari from their house whereas Zakir Ali son of Ghulam Haider and Nazir Ahmad son of Sher Muhammad were following them at some distance. When they reached near the middle of sugarcane crop of Mehmood son of Langah situated in Square No,20, Killa No,11, suddenly Muhammad Tufail son of Muhammad Yaqoob armed with rifle, Altaf Hussain son of Ahmad Yar and Maqsood son of Burkhurdar both armed with guns .12 bore emerged from the sugarcane crop of said Mehmood and raised lalkara that they Nice come ,to teach a lesson to the complainants party for occupying State land as 'wall as for the registration of criminal ale against them. Statedly, Muhammad iufail fired from his rifle which hit Atta Ullah on the right cheek while Altaf Hussain and Maqsood accused fired one shot each. The pellets hit Atta Ullah on his right knee as a result of which Atta Ullah fell down. Asif Javed complainant in the right of self- defence also fired with his licensed pistol as a result of which Altaf Hussain accused sustained injuries and thereafter all the accused persons while brandishing their respective weapons ran away from the scene of crime. Atta Ullah injured succumbed to the injuries at the spot.
2. Motive for this occurrence as narrated in the F.I.R. Was a dispute between the parties with regard to the State land.
3. After the occurrence the matter was reported to the police and after formal investigation challan was submitted before the trial Court.
4. During the trial, prosecution produced ten witnesses in order to prove the charge against the appellants and their co-accused.
' Dr. Mushtaq Bashir, P.W.-1, conducted the post-mortem examination on the dead body of Atta Ullah and observed following injuries on his person:-- "1. (a) Lacerated wound 3 x 1 1/2 c.m on the outer front of right cheek, margins were inverted it was wound of entry.
(b) Lacerated wound 6 x 4 c.m. On the left side of the head and left ear. Margins were averted, brain matter was coming out from the wound. It was wound of exit.
2. (a) Seven Lacerated wounds 3/4 x 3/4 c.m. In an area of 9 x 7 -c.m on the front of right knee joint.
Margins were inverted. Corresponding holes were present on the Chaddar. It was wound of entrance.
(b) Seven lacerated wounds 1 1/2 x 1 1/2 c.m. Each in an area of 12 x 10 c.m. On the back of right knee joint. Margins were averted. Corresponding holes were present on the Chaddar. It was wound of exit."
' In the opinion of the doctor, death in this case was due to haemorrhage, shock and injuries to the vital organs (brain) resulting from injury No,1 which was sufficient to cause death in the ordinary course of nature. On 16-1-1998 same doctor also medically examined Altaf Hussain and observed following injuries on his person:- "1. (a) Semi healed lacerated wound 3/4 x 3/4 c.m. On the back and outer part of left hand at the base of index finger. Margins were inverted with swelling 10 x 8 c.m. On the back of hand.
(b) Semi healed lacerated wound 2-'/2 x 3/4 c.m. On the inner side of left hand at the base of little finger. The margins were everted.
' Allah Rakha, Constable / P.W.2, took the parcels of this case to the office of Chemical Examiner and deposited the same intact. Riaz Hussain, H.C/P.W.3, kept these parcels in Malkhana for their safe custody, and later on these parcels were onward transmitted to the respective offices. Ghulam Shabbir, P.W.4, identified the dead body of Atta Ullah at the time of post-mortem examination.
Muhammad Atta Patwari/P.W.5 prepared scaled site plan, Exh.P.G and Exh.P.G/1 of the place of occurrence. Muhammad Riaz, Constable P.W.6, took the dead body to the mortuary and after autopsy delivered last worn clothes of the deceased namely Atta Ullah to the Investigating Officer which were taken into possession vide recovery memo., Exh.P.H. Asif Javed, P.W.7, and Zakir Ali, P.W.8, were the eye-witnesses of this occurrence who had supported the prosecution case in verbatim and had narrated the circumstances under which Atta Ullah deceased was done to death by the accused persons. Ahmad Khan A.S.I/ P.W.9 partially investigated this case. This witness arrested Muhammad Tufail and Maqsood Ahmad accused on 14-1-1998 and on the same day, he recovered .12 bore gun (P.7) along with three live cartridges (P.8/1-3) from the possession of Maqsood Ahmad which was taken into possession vide recovery memo,. Exh.P.L. One rifle 7 MM P.9 along with five bullets (P.10/1-5) were recovered from the possession of Muhammad Tufail appellant which were taken into possession vide recovery memo. Exh.P.M. Muhammad Khalid, Inspector P.W.10, also conducted the investigation of this case and submitted the challan before the trial Court.
5. Learned DDA tendered in evidence report of Chemical Examiner Exh.P.P and that of Serologist Exh.P.Q and closed the case for the prosecution.
6. After recording the entire prosecution evidence learned trial Court examined both the appellants along with their co-accused under section 342 Cr.P.C. wherein Muhammad Tufail accused while answering to the question "Why this case against you and why P.Ws. Have deposed against you" ? Replied as under:- "Atta Ullah deceased had strained relations with his wife and turned her out of his house. He wanted to marry Mst. Taj Bibi daughter of Zakir son of Sher Muhammad and sister of Zafar Abbas and they had been meeting each other. A sister of Mst. Taj Bibi namely Mst. Shamim was married to Gulzar son of Mehmood whose sugarcane field is near his Dhari. On the day of occurrence, Mst. Taj Bibi came at the Dhari of said Mehmood and she and Ata Ullah were present in the sugarcane field.
Her brother Zafar Abbas came to know about this fact. He alongwith four unknown persons came there and murdered Atta Ullah. The P.Ws. Are related inter se and Zafar Abbas above mentioned.
None of them was present there. In order to save their relative. Zafar Abbas, they falsely concocted this case against me and has given false evidence."
' Neither the appellants nor their co-accused made any statement under section 340(2) Cr. P. C .
However Muhammad Tufail accused/appellant tendered in evidence certified copy of plaint in suit titled "Haji Dost Muhammad v. Sher Muhammad" (Exh.D.B), certified copy of order dated 6-10-1997 (Exh.D.C), certified copy of decree sheet (Exh.DD) certified copy of report of local commission (Exh.DE) and certified copy of Khasra Girdavari (Exh.DF) in respect of land of Muhammad Zakir son of Ghulam Haider in Chak No,155/JB and. cL'sed the defence evidence.
7. Learned Trial Court after appraisal of evidence available on record vide judgment dated 10-2- 2000 acquitted Maqsood Ahmad co-accused of the appellants whereas Muhamad Tufail and Altaf .,Hussain accused / appellants were convicted under section 302-B/34, P.P.C. And sentenced to imprisonment for life each and to pay Rs,50,000 each as compensation to the legal heirs of the deceased or in default of payment whereof to further undergo, R.I for six months.
' Being aggrieved by the impugned judgment, appellants filed instant criminal appeal whereas complainant of this case namely Asif Javed also filed a criminal revision bearing Criminal Revision No,184 of 2000 for the enhancement of sentence awarded to both the appellants.
8. Learned Counsel for the appellant submitted that F.I.R. Was lodged after preliminary investigation at the spot; that the medical evidence contradicted ocular account; that this occurrence took place during the early hours of the day and the circumstances create doubts about the presence of eye-witnesses at the spot; that the ocular account as narrated by Asif Javed P.W.7 and Zakir Ali P.W.8 would be of no value in the absence of any corroborative piece of evidence; that the motive for this occurrence was never proved before the trial Court and that in the circumstances of this case both the appellants were entitled to get the benefit of doubt.
Conversely, learned counsel for the complainant as well as learned State counsel had vehemently opposed the contentions raised by the learned counsel for the appellants. In support of criminal revision for enhancement of sentence awarded to the appellants, it was argued that the instant case was lodged with the police promptly and all the minute details of the occurrence were given; that the ocular account stood corroborated by the medical evidence, the motive for this occurrence as well as recoveries of crime weapons at the instance of the appellants and that in the circumstances learned trial Court had wrongly taken lenient view while awarding sentence to both the appellants.
9. Arguments heard. Record perused.
10. It is a case of daylight murder which took place in the area of Chak No,133/GB about 13 miles away from the police station. The report was lodged with the police at about .1-10 p.m, keeping in view the distance between the place of occurrence and the police station F.I.R. Can be said to have been lodged without any unnecessary delay. This occurrence was witnessed by Asif Javed P.W.7 and Zakir P.W.8. Asif Javed P.W.7 was real brother of Atta Ullah deceased who along with the deceased was going towards his fields whereas Zakir Ali and Nazir Ahmed P.Ws. We're following them when this occurrence took place. The statement of Zakir Ali P.W.8 shows that he was owner of agricultural land situated about six squares away from the place of occurrence and was a resident of the place about 13/14 acres away from, the place of occurrence. He was also named as an accused person in a case under sections 440/148/149/297/ 379, P.P.C. Registered at the instance of one Falaksher, a close relative of. Muhammad Tufail accused. Admittedly, this witness had no piece of work with the complainant nor there was any occasion for this witness to visit the place of occurrence. Muhammad Khalid Inspector P.W.10 during cross-examination has admitted that the name of Zakir Ali P.W.8 and Nazir Ahmad as eye-witnesses are not mentioned in the inquest report.
The statement of this witness before the trial Court also shows that he is capable of making improvements and introducing new facts. All these factors cumulatively create doubt about the presence of this witness at the time of occurrence and in my view learned trial Court in para No,18 of the judgment has rightly observed that the claim of Zakir Ali P.W.8 being an eye-witness of the occurrence is quite suspicious. As for the statement of Asif Javed P.W.7 is concerned, the presence of this witness at the time of occurrence was very natural as the statement of this witness depicts true picture of the occurrence and explains the circumstances in which Atta Ullah was B done to death by the accused persons. The ocular account narrated by Asif Javed P.W.7 stands corroborated by the medical evidence. The time, weapon used during the occurrence and location of injuries are all confirmed by this piece of evidence as narrated by Asif Javed P.W.7.
' The motive for this occurrence about a dispute over the possession/ ownership of State land between- the parties also stands established from the record of this case which shows that criminal cases from both the sides were got registered against each other in which the subject- matter was the land in dispute.
11. As far the defence plea that Atta Ullah deceased was done to death by one Zafar Abbas and two unknown persons inside the sugarcane crop when he was seen by them with Mst. Taj 'Bibi (sister of said Zafar Abbas) in an objectionable condition, seems to be a later innovation. As shown in the site plans dead body of the deceased was lying few paces from the Watt (passage) near the sugarcane crop. It is repellent to common sense that two lovers would select a spot so closed to the path as meeting point. Similarly, there is no explanation as to .How, Mst. Taj Bibi managed her escape when attack was launched by said Zafar and two unknown persons. It is not understandable as to why complainant party would involve appellants in this case ignoring the real culprits; substitution in such-like cases is a rare phenomenon.
12. It is settled proposition of criminal jurisprudence that for deciding a criminal case it is the quality and not quantity of evidence which matters. In the instant case as discussed above, statement of Asif Javed P.W.7 which has depicted a true picture of this incident coupled with other attending circumstances of this incident coupled with other attending circumstances of this case is sufficient to uphold the conviction of both the appellants. Accordingly, while dismissing this appeal, conviction of both the appellants is upheld. However, the appellants shall get the -benefit of section 382-B, Cr.P.C.
13. Since, as observed by the learned trial Court, the immediate cause for the commission of this murder is shrouded in mystery, I see no force in Criminal Revision No,184 of 2000 which is also dismissed.