' MUHAMMAD NAWAZ ABBASI, J.--- The appellants namely Noor Hussain Shah, Altaf Hussain Shah and Mukhtar Hussain Shah sons of Amir Haider Shah residents of Shahpur Saidan, Tehsil and District Cahkwal alongwith Zulfiqar Haider Shah (acquitted accused) were tried for the charge under sections 302/324/34, P.P.C. By the learned Additional Sessions Judge, Chakwal, for committing the murder of (a) Fateh Haider Shah, (b) Bahadar Shah and causing injuries to Abbas Ali Shah, the first informant. The learned trial Judge vide judgment, dated 31-1-1993 having found the appellants guilty of the charge while convicting them under section 302/34, P.P.C. Awarded them sentence of death. The appellants were also burdened with a fine of Rs,20,000 each and half of the fine, if realized, was to be paid to the legal heirs of the deceased in equal share. In default of the payment of fine, the appellants were required to undergo R.I. For two years each. Zulfiqar Haider Shah was acquitted from the charge.
2. The appellants have challenged their conviction and sentence through Criminal Appeal No,40 of 1993 against their conviction and sentence whereas the learned trial Judge has sent the Murder Reference bearing No,82 of 1993 under section 374," Cr.P.C. For confirmation of sentence of death awarded to the appellants. The State has also filed Criminal Appeal No,203 of 1993 against the acquittal of Zulfiqar Haider Shah. The murder reference and the criminal appeals are being disposed of through this single judgment.
3. The brief facts of the prosecution case as contained in the F.I.R. Exh.P.M. Are that Mst. Ghulam Batool, sister of the appellants, who was married.With Fateh Haider Shah was living in desertion.
During the night of 26/27-5-1991 at about 9-30 a.m. Abbas Ali Shah (P.W.7), Bahadar Shah alias Kazam Raza Shah, Sagheer Hussain Shah, Sabz. Ali Shah (P.W.8) and Fateh Haider Shah, husband of Mst. Ghulam Batool, were present at their house when Zulfiqar Haider Shah (acquitted accused) was found standing in front of their house. Fateh Haider Shah inquired from Zulfiqar Haider Shah the purpose of his standing in front of their house and in consequence thereto, they exchanged abuses and Zulfiqar Haider Shah while extending threats of taking revenge for the desertion of his sister left for his house. Later, Fateh Haider Shah proceeded to his wheat, crop field and at about 11- 30 a.m. On call of Fateh Haider Shah, Abbas Ali Shah, the first informant, alongwith Bahadar Shah, Sagheer Shah, Sabz Ali Shah and Baz Haider. Shah while coming out of their houses rushed towards the fields and saw in the moonlit night that Noor Hussain armed with .12 bore gun, Altaf Hussain Shah armed with 7 m.m. Rifle, Mukhtar Haider Shah with double barrel gun and Zulfiqar Haider Shah armed with .12 bore gun while raising Lalkaras encircled Fateh Haider Shah. Altaf Hussain Shah and Noor -Hussain Shah simultaneously fired at Fateh Haider Shah, who having sustained the bullet and pellet injuries on different parts of his body fell on the ground. Altaf Hussain Shah then with the Butt of his rifle inflicted blows on the forehead and face of Fateh Haider Shah. Mukhtar Haider Shah alias Altaf Haider Shah fired with 12 bore double , barrel gun at Bahadar Shah alias Kazam Raza Shah who having sustained fire-arm injuries expired at the spot. Zulfiqar Haider Shah allegedly fired a shot at Abbas Ali Shah, which hit on his bright flank. The first informant alongwith Sagheer Shah, Imtiaz Haider Shah and Sabz Ali Shah while running from the spot saved themselves from the attack of the accused. The report of the occurrence was lodged by Sabz All Shah and upon registration of the case against the accused vide F.I.R. Exh.P.M. Raja Muhammad Akram, Inspector/S.H.O., Police Station Dhuman having prepared the injury statement of Abbas Ali Shah sent him to D.H.Q. Hospital Chakwal for medical examination.
4. The Investigating Officer with a police party while reaching at the place of occurrence prepared injury statement Exh.P.J. And inquest report Exh.P.I. Of Bahadar Shah deceased and dispatched his dead .Body to the autopsy for post-mortem examination. The S.H.O. Took into possession blood- stained earth at the places at which Bahadar Shah and Fateh Haider Shah were injured through separate sealed parcels vide memo. Exh.P.C. And Exh.P.F. Respectively. The S.H.O. Then proceeded to D.H.Q. Hospital, Chakwal, to record the statement of Fateh Haider Shah but could not do so as the doctor had declared that the injured did not fit to make a statement. The S.H.O. Took into possession last-worn clothes of Fateh Haider Shah which were- handed over to him by the constable who escorted the dead body to the mortuary for post-mortem examination. The S.H.O.
Also took into possession the medico-legal report and the last-worn clothes of Bahadar Shah which were handed over to him by the constable who escorted the dead body of Bahadar Shah to the mortuary. The bottle P.4 containing pellets given by the doctor to Allah Ditta constable was delivered by him to the Investigation Officer who took the same into possession through memo.
Exh.P.B. The Investigating Officer on receipt of information on 6-6-1991 that Fateh Haider Shah expired -in the hospital prepared the injury statement I Exh.P.G. And inquest report Exh.P.H. Of the deceased and dispatched his dead body to the mortuary for post-mortem examination through Muhammad Riaz Constable.
5. Dr. Javed Anjum (P.W.3), Medical Officer, D.H.Q. Hospital Chakwal medically examined Fateh Haider Shah in an injured condition on 27-5-1991 and traced the following injuries on his person:--
(1) Lacerated wound 2-1/4 x 3/4 x bone deep with the fracture of bone underneath was *sent on the left side of forehead on hairline.
(2) Fire-arm entry wound 1/2 inch x 3/8 inch with contused margins and no blackening, burning or scorching. Probe going back and outwards was present on front of right arm below the middle.
(3) Fire-arm exit wound 3/8 inch x 1/4 inch with margins contused and probe connecting it with injury No,2 present on outer side of right arm near elbow.
(4) Fire-arm entry wound 1/4 inch x 3/8 inch with margins contused but no blackening, burning or scorching. The probe going into abdominal cavity was present on the anterior abdominal wall on left side 3 inch below level and 1-3/4 inch medial to the left anterior superior iliac spine.
(5) Fire-arm entry wound 3/8 inch x 3/8 inch with margins contused and no blackening, burning or scorching.
(6) Fire-arm entry wound 3/4 inch x 1/2 inch with margins contused and no blackening, burning or scorching. The probe going posteriorly. The underline bone was fractured, was present on front of right leg in middle.
(7) Lacerated wound 1/2 inch x 1/4 inch x bone deep was present on left leg. 4 inch below knee joint.
(8) Fire-arm entry wound 1/2 inch x 1/8 inch with swelling 2 inch x 3 inch probe going inwards was present on the left side of lower jaw. Margins were contused, but no blackening, burning or scorching.
(9) Lacerated wound 3/4 inch x 1/2 inch x bone deep present on the right cheek bone.
(10) Lacerated wound 1 inch x 1/8 inch x bone deep present on the right cheekbone, anterior to injury No,9.
(11) Fire-arm wound on index and middle fingers of right hand near basis starting from outer side of index finger and going towards middle finger piercing both the fingers.
' In the opinion of the doctor, injuries Nos.!, 7, 9 and 10 were caused with blunt weapon whereas the remaining injuries were of firearm.
6. The same doctor medically examined Abbas Ali Shah the first informant and found the following injuries on his person:-- "Fire-arm entry wound 3/8 inch x 1/4 inch with margins contused but no blackening, burning or scorching. Probe going enteriorly was present on right hip 11" from naval and 4 inch from spinal cord."
7. Dr. Munir Ahmad (P.W.4) C.M.O. D.H.Q. Hospital, Chakwal, conducted the post-mortem examination on the dead body of Fateh Haider Shah on 6-6-1991 and found the following injuries:--
(1) A lepratomy stitched from Xypisternum to supra public area about 11 inch in length. Almost all wounds were infected.
(2) A stitched wound 2-1/2 inch on left side of frontal head near hair margins.
(3) An infected wound oval 3/4 inch x 1/2 inch on front of right arm below middle.
(4) An infected wound 1/2 inch x 1/3 inch oval on outer side of right arm near elbow.
(5) A stitched infected wound 1/4 inch x linear on anterior abdominal wall on left side 3-1/4 inch below umbilicus and 2-3/4 inch medial to left anterior superior iliac supine.
(6) An infected wound round 1/2 inch x 1/2 inch on front of right thigh near knee joint.
(7) An infected wound 1 x 3/4 inch oval on middle of front of right leg.
(8) An infected wound oval 1/2 x 1/4 inch on left side of lower jaw.
8. Raja Muhammad Akram '(P.W.17) arrested the appellants and the acquitted accused on 17-6- 1991. The Investigating Officer having recovered .12 bore gun P.11 from Zulfigar Haider Shah, .12 bore gun P.10 from Noor Hussain Shah, double barrel .12 bore gun P.8 from Mukhtar Hussain Shah and 7 m.m. Rifle P.9 from Altaf Hussain Shah from their residential houses on 20-6-1991 took the same into possession through separate sealed parcels vide memo. Exh.P.T., Exh.P.S. And Exh.P.R. Respectively.
9. The accused while denying the charge pleaded innocence and false implication. Altaf Hussain Shah and Mukhtar Hussain Shah while taking the plea of alibi produced Madad Hussain son of Jalil Khan (D.W.1) in their defence. According to this witness, Altaf Hussain Shah and Mukhtar Hussain Shah having gore to his threshing floor for his help before the occurrence remained present there till 5-00 a.m. In the next morning. Khalil Ahmad D.W.2 stated that 7 m.m. Rifle of Altaf Hussain was damaged while he was hunting with him and the rifle was taken to Haider & Sons, Arms Dealer Chakwal, for repair which was in the custody of Arms Dealer on the day of occurrence and was produced before the police after collecting from the Arms Dealer.
10. Abbas Ali Shah P.W.7 and Sabz Ali Shah P.W.8 being the eyewitnesses have narrated the occurrence as contained in the F.I.R. The substance of their evidence is that on 26-5-1991 at 9-30 p.m. Zulfiqar Haider Shah accused was found standing in the street in front of the house of the complainant party and on objection of Fateh Haider Shah deceased, the said accused while exchanging abuses with the deceased extended threats for teaching lesson to the complainant party for desertion of her sister namely Mst. Ghulam Batool. Fateh Haider Shah deceased went to the field at about 10/10-30 p.m. When the witnesses namely Kazim Raza, Imtiaz Haidet Shah, Sagheer Hussain Shah and Sabz Ali Shah having heard the fire reports and cries of Fateh Haider Shah rushed towards the spot and saw in the moonlit-night that Noor Hussain Shah armed with .12 bore gun, Altaf Hussain armed with .7 m.m. Rifle Mukhtar Haider Shah armed with double barrel gun and Zulfiqar Haider Shah armed with .12 bore gun were encircling. Fateh Haider Shah. Noor Hussain Shah and Altaf Hussain Shah fired at Fateh Haider Shah with their respective weapons, whereas Mukhtar Haider Shah fired at Kazam Raza and Zulfiqar Haider Shah while extending threats of life to the witnesses fired a shot, which hit on the right flank of P.W.7. They stated that Imtiaz Haider Shah, Sagheer Hussain Shah and Sabz Ali Shah having taken shelter saved themselves from the firing of the accused. Kazoo Raza breathed his last at the spot whereas Fateh Haider Shah was removed to the hospital in an injured condition. The witnesses having corroborated each other while supporting the story of F.I.R. Stated that Altaf Hussain Shah accused having opened attack fired 4/5 shots at Fateh Haider Shah deceased with .7 m.m. Rifle and Noor Hussain Shah who was holding single barrel gun also fired 4/5 shots at Fateh Haider Shah deceased. Altaf Hussain Shah and Noor Hussain Shah inflicted blows with the butts of their guns to the deceased Fateh Haider Shah who having sustained the injures fell on the ground. It is in the statements of the witnesses that Mukhtar Hussain Shah with his double barrel gun fired at Bahadar Shah alias Kazam Raza who succumbed to the injuries at the spot. Zulfiqar Haider Shah accused fired at Abbas All Shah who sustained injury on his right buttock. The witnesses have also corroborated each other in respect of motive part of the prosecution story. In addition to the ocular account and motive, the prosecution also placed reliance on the medical evidence and the recoveries of the weapons of offence from the accused.
11. Learned counsel for the appellants has raised the following contentions in support of this appeal:--
(a) That it is in the statements of the eye-witnesses that they on hearing the fire-shots and cries of Fateh Haider Shah deceased reached at the spot which was at a distance of 500 yards from their residential houses and thus, from such a distance the witnesses in the moonlit night neither could identify the assailants nor the weapon of offence being carried by the accused.
(b) That as per case of the prosecution, Fateh Haider Shah used to sleep at his threshing floor but the place of occurrence was the field of Murid Hussain Shah which was at a reasonable distance from the threshing floor of the deceased and the presence of the deceased in the field of Murid Hussain Shah would negate the prosecution story and the claim of the witnesses to have seen the occurrence.
(c) The presence of the deceased at the place of occurrence during the night without any.
Explanation would suggest that he was present there for immoral purpose and the members of the family of the concerned female having noticed his activities attacked on him as a result of which the occurrence happened.
12. There was no evidence direct or circumstantial to support the contentions of the learned counsel for the appellant. Nothing was brought in evidence to suggest either it was not a moonlit night or the witnesses could not identify the accused at the place of occurrence while rushing towards the accused from their residence which was at a distance of about 500 yards. The witnesses having described the role of firing by the each accused have also stated that the manner of sustaining the injuries by the deceased and the first informant at the hands of the accused and their statements were supported by the medical evidence. The defence has not brought any evidence on record to establish that it was dark in the night of occurrence or it being a cloudy night, the feasibility was poor to identify the accused from such a distance. The deceased was brother-in-law of the accused and the parties being related to each other and resident of same place could conveniently identify each in the moonlit night. However, the identification of weapons of offence from such distance in moonlit night would be difficult. In the present case, the witnesses claimed that the accused fired at the deceased within their sight and thus the accused while carrying fire-arms could conveniently be identified. This is correct that Fateh Haider Shah sustained injuries at some distance from his threshing floor but it was natural for the deceased with a view to save his life to run out of the range of the accused in the fields on noticing their presence around him. Therefore, the suggestion of defence that the deceased was killed by some unknown assailants in the field because of his immoral activities would be based only on imagination. The occurrence took place at about 11-30 in the night whereas the report was lodged at 12-30 mid night i,e, within an hour of the occurrence at the police station situated at a distance of about 10 kilometers from the place of occurrence. In the given facts and circumstances, there would be no possibility of substitution and misidentification of the accused. The witnesses were closely related to the accused and had no enmity against them to involve them falsely in the murder case whereas the accused having nursed a grudge against the complainant party due to the desertion of Mst. Ghulam Batool would be revengeful.
13. The motive behind the occurrence as was disclosed was the desertion of Mst. Ghulam Batool, the real sister of the accused, who was married with Fateh Haider Shah, deceased and the relations between the parties were strained. The immediate cause of the, fateful occurrence as narrated in the F.I.R. Was the altercation between Zulfiqar Haider Shah and Fateh Haider Shah deceased on the same day before the occurrence. The incident of altercation between Fateh Haider Shah and Zulfiqar Haider Shah was not witnessed by any the eye-witnesses and the same being not supported by any evidence was not proved and consequently the immediate cause of fateful occurrence was not known. The grudge between the parties due to strained relations of Mst.
Ghulam Batool with her husband Fateh Haider Shah deceased was not deniable but what prompted the accused to attack on the deceased on the night of occurrence was shrouded in mystery. The strained relations and hatred of parties against each other in the background was admitted which probably was not the immediate reason for the fateful occurrence.
14. Learned counsel for the appellant has contended that out of eleven injuries on the person of Fateh Haider Shah deceased, four were caused with blunt weapon whereas the fire-arm injuries as per opinion of the doctor could be the result of one and the same weapon and thus, the size and dimension of the injuries would show that the same were caused with pellets as a result of shot fired with .12 bore gun and were not caused with .7 m.m. Rifle. The contention in the light of the observation of the doctor who conducted the post-mortem examination that it was not determinable that with which weapon the injuries were caused has no substance. The next contention of the learned counsel in the light of the statement of Munir Ahmad P.W.4 that since Fateh Haider Shah died in the hospital, therefore, possibly the death was due -to not providing proper treatment to the deceased was also without any foundation. It is in the evidence that the deceased was immediately removed to the hospital and was provided medical aid at Chakwal and then he was shifted to Rawalpindi but he could not survive. This may be observed that nothing Was brought on record to suggest that Fateh Haider Shah died in the hospital due to negligence of medical or para-medical staff and the death was not the direct result of fire-arm injuries. The mere putting such suggestion to the doctor with the answer that it could be possible would not be an evidence of death due to negligence of the staff. Injury No,1 on the person of Fateh Haider Shah was a pellet would which caused extensive damage to the deceased and the size and dimension of entry wounds would clearly establish that the same were caused with different weapons and thus the medical evidence would support the ocular account to the extent of using two types of weapons in the occurrence. It is to be noticed that the doctor found four lacerated wounds on the person of the Fateh Haider Shah deceased which were caused with blunt weapon and according to the eye-witnesses, Altaf Hussain with the Butt of his rifle caused injuries on the person of the said deceased. Abbas Ali Shah sustained fire-arm injury in the occurrence, therefore, his presence at the spot was established beyond doubt and his statement was seeking full support from the medical evidence and was corrobotated with prosecution to version given in the F.I.R. The non- availability- of blackening, burning and scorching on the injury would not be suggestive of fact that the same was caused with stray pellets as a result of the shot fired with a .12 bore gun as contended by the learned counsel for the appellants. The eyewitnesses with full affirmation and in a straightforward manner have stated that the shots were fired from some distance and thus it was understandable that there would be no blackening, burning or scorching on the injury. The contention of the learned counsel for the appellants that the injuries on the person of Fateh Haider Shah as well as Bahadar Shah alias Kazam Raza being the result of .12 bore gun, would be attributable to Mukhtar Haider Shah was not supported by the medical evidence. Dr. Muhammad lqbal (P.W.5) who conducted the post-mortem examination on the dead body of Bahadar Shah opined that the injuries on the person of the deceased were caused with pellet and were without blackening and scorching and that corresponding holes on the Shalwar were present. Injury No,1 caused fracture of right femur, which was attributed to Mukhtar Hussain Shah who was armed with double barrel gun. This wound as per opinion of the doctor was a group of seven pellets injures in the area of 4 inch x 2 inch and each injury was of size of 1/4 inch x 1/4 inch. This injury was the result of single shot, which was caused from a close distance, and thus the argument that Fateh Haider Shah sustained injuries with stray pellets as a result of shot' fired by .12 bore gun was without any substance. This may be noticed that there was no blackening and burning around the injury on the person of Fateh Haider Shah whereas there was blackening around the injuries on the person of Kazam Raza. The examination of the medical evidence would show that Kazam Raza sustained injuries from the close distance and Fateh Haider Shah was hit from some distance. The net result of the analyses of medical evidence would be that the two deceased sustained injuries with different weapons and in this way the medical evidence would not be in conflict to the ocular account. The recovery of the double barrel gun P.8 from Mukhtar Hussain Shah and 7 m.m. Rifle P.9 from Altaf Hussain Shah was witnessed by Zamin Hussain Shah P.W.15 and similarly Bashir Hussain P.W.16 witnessed the recovery of .12 bore gun P.10 from Noor Hussain Shah. Zakar Hussain Shah P.W.13 has witnessed the recovery of .12 bore gun P.11 from Zulfiqar Hussain Shah. Learned counsel for the appellants on the basis of ignorable discrepancies in the statements of the recovery witnesses contended that the recoveries were doubtful and the same being not reliable were of no use to the prosecution. There is no need to discuss the recoveries as neither any I empty was recovered from the spot nor the weapons of offence were sent to the Fire-antis Expert and thus notwithstanding the view taken by the learned trial Judge regarding the use of different type of weapons in the occurrence, the recovery of weapons from the accused would not be an incriminating evidence to be used against them.
15. The plea of alibi taken by Altaf Hussain Shah and Mukhtar Hussain Shah that during the night of occurrence they having gone to village Dhoke Bhagwal to the threshing floor of Madad Hussain D.W.1 were not available in the village is not established. The occurrence took place at 11-00 in the night and the evidence relating to the plea of alibi would not suggest that the appellants after paying visit at the said Dhoke could not return to their home during the night. The general statement of IK Madad Hussain D.W.1 in support of the plea of alibi was not enough to accept the said plea of the said appellants.
16. The fatal injury to Fateh Haider Shah deceased is attributed to Altaf Hussain Shah appellant which as per opinion of the doctor was sufficient to cause death in the ordinary course of nature. In addition to the fire-arm injuries, the said appellant also caused injuries to Fateh Haider Shah deceased with blunt weapon and the role assigned to him by the eye-witnesses is fully supported by the medical evidence, therefore, the conviction of Altaf Hussain Shah recorded by the learned Judge is not interferable. Except injuries Nos.2 and 8, the remaining fire-arm injuries on the person of Fateh Haider Shah were the result of stray pellets and as per opinion of the doctor, the same individually were not sufficient to cause death. The eye-witnesses have consistently stated that Altaf Hussain Shah and Noor Hussain Shah fired successive shots with their respective weapons, and thus, the participation of Noor Hussain Shah appellant in the occurrence and firing with .12 bore gun was established beyond doubt. The injuries on the person of Bahadar Shah alias Kazam Raza were caused from the close range as the same was the result of group of pellets and blackening was found around the injuries and according to the eye-witnesses, Noor Hussain Shah being armed with .12 bore gun while participating in the occurrence fired from some distance within their sight and thus, the injuries on the person of Bahadar Shah alias Kazam Raza were the result of independent shot and could not be the result of shot as a result of which Fateh Haider Shah sustained injuries. Thus, the conviction of Noor Hussain Shah was also unexceptionable.
17. Having scrutinized the evidence, we find that the appellants were rightly convicted by the learned trial Judge for the murder charge but taking notice of the circumstances under which the occurrence took place, we are of the view that the question of sentence qua individual accused would need consideration.
18. Syed Bahadar Shah alias Kazim Shah deceased was fired by Mukhtar Hussain Shah who was armed with double barrel gun from a close range and the pellets wound on the right thigh was found fatal. The exit wound of the said injury was also traced by the doctor and as per his opinion the said injury was ante-mortem and was sufficient to cause death in the ordinary course of nature. There being no extenuating or mitigating circumstance in favour of Mukhtar Hussain Shah appellant, he would not deserve any leniency in the matter of sentence and the sentence of death awarded to him by the learned trial Court is confirmed.
19. Altaf Hussain Shah appellant caused the injuries with fire-arm as well as with blunt weapon to Fateh Haider Shah deceased. The doctor has traced four injuries with blunt weapon on the person of Fateh Haider Shah in addition to the fire-arm injuries. The lacerated wound on the forehead of the deceased, which caused fracture of forehead was declared fatal to life. The blunt weapon injuries including the one fatal injury is attributed to Altaf Hussain Shah and the fire-arm injuries on the person of Fateh Haidej Shah deceased were attributed to both Altaf Hussain Shah and Noor Hussain. The perusal of the medical evidence would show that deceased sustained pellet as well bullet injuries. Since Altaf Hussain Shah was found responsible for causing the fatal injury to Fateh Haider Shah deceased, therefore, the said appellant also would not deserve any leniency in the matter of sentence. We having found no mitigating or extenuating circumstances in his favour confirm the death sentence awarded to him by the learned trial Judge.
20. The case of Noor Hussain Shah appellant stands on different footing as he being armed with .12 bore gun was attributed causing of fire-arm injury to Fateh Haider Shah and the injury attributed to him although was declared grievous but was not fatal to life. We, therefore, of the view that the - extreme penalty of death to Noor Hussain Shah appellant was not proper and the sentence of imprisonment for life would sufficiently meet the ends of justice and accordingly we reduce his sentence from death to imprisonment for life. With the above N modification in sentence of Noor Hussain Shah, we dismiss this appeal and while confirming the death sentence of Altaf Hussain Shah and Mukhtar Hussain Shah awarded to them by the learned trial Court answer the murder reference accordingly. Noor Hussain Shah appellant shall be entitled to the benefit of section 382- B, Cr.P.C. The compensation awarded by the trial Court shall be paid to the legal heirs of the deceased without any change. /Order accordingly.