' CH. IFTIKHAR HUSSAIN, J.--- Haji, the appellant has brought Criminal Appeal No,126 of 1999 against the judgment, dated 15-3-1999 recorded by Raja Abdul Qayyum, learned Additional Sessions Judge, Burewala, whereby he has convicted him under section 302(a), P.P.C. For the Qatl-i-Amd of the deceased Ghulam Rasool and sentenced to death as Qisas subject to the confirmation by this Court as required under section 374, Cr.P.C. While acquitted his co-accused Naseer, Fareed and Mureed giving them the benefit of doubt.
2. The learned trial Court has submitted Murder Reference No,166 of 1999 under section 374, Cr.P.C.
To this Court for confirmation of his death sentence.
3. The complainant/petitioner Faqir Hussain has brought Criminal Revision No,81 of 1999 to burden him to pay adequate compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C.
4. As these three matters have arisen out of one and the same judgment and under common set of facts, hence, are being disposed of by this single judgment.
5. Briefly the facts relevant for the disposal of those are that Faqir Hussain (P.W.6) on 17-12-1993 at about 8-30 a.m. Made statement Exh.P.F. Before Ghulam Fareed, Inspector (P.W.8) to the effect that he and Manzoor Ahmad son of Hassay Khan, who is his relative had jointly rasa taken one square of agricultural land on lease in Chak No,239/EB from one Malik Jaffar. Ghulam Rasool, his another relative had also taken 15 acres of agricultural land on lease in the adjacent Square No,14 from one Talat Mehmood. On 16-12-1993, at about evening time, the son of Haji and Naseer of that village had damaged the wheat crop of Ghulam Rasool by their cattle, who admonished them and took out the cattle from the same. At about 8-00 a.m. On that day i,e, 17-12-1993, he alongwith Manzoor Ahmad and Haq Nawaz, who is servant of Ghulam Rasool was standing on the eastern "Watt" of Killa No,15 of Square No,14. Haq Nawaz had irrigated the wheat crop since the yesternight. Ghulam Rasool alongwith one Muhammad Anwar came there on a motorcycle and brought food for Haq Nawaz. They alighted down from the motorcycle. In the meantime, the accused Haji armed with .12 bore double-barrel gun, Nassera with spear, Fareed with hatchet and Mureed with Dang came there from the eastern side. Naseer and Fareed raised Lalkara that Ghulam Rasool be not spared.
Thereupon, Haji fired two straight shots with his .12 bore double-barrel gun at Ghulam Rasool hitting him on his left side of chest, left flank and left iliac region. Haq Nawaz had also received injuries on his right upper arm. Ghulam Rasool succumbed to his injuries at the spot. The accused threatened them not to come near them otherwise they would also be dealt with in the same way. They did not go near them due to fear. On their raising alarm, the accused fled away from the' place of occurrence with their weapons. He left Muhammad Anwar with the dead body and came to the police station to report the matter.
6. The said Inspector after recording his statement, read it over to him and he signed the same in token of its correctness. He thereafter, went to the spot and found the dead body of the deceased Ghulam Rasool there. He prepared its injury statement Exh.P.B. And inquest report Exh.P.C. He then sent the dead body to mortuary at Gaggo for postmortem examination under the escort of Abdul Ghaffar, Constable.
' He collected the blood-stained earth from the spot and took the same into possession vide memo. Exh.P.H. He also collected two empties P.5 and P.6 from there and sealed those into parcel and took into possession vide memo. Exh.P.G. He also took into possession the Motorcycle No,273/LOD of Ghulam Rasool deceased from there vide memo. Exh.P.I. He had prepared site plan without scale Exh.P.N. Of the spot. He recorded the statement of the concerned P.Ws. On the same day i,e, 17-12-1993, Abdul Ghaffar, Constable had produced before him the last-worn clothes blood- stained Sweater P.1, Shirt P.2, Vest P.3 and Chadar P.4 of the deceased, which he took into possession vide memo. Exh.P.A. He summoned the Halqa Revenue Patwari, who on direction had prepared the site plan Exh.P.E., Exh.P.E./1 and Exh.P.E./2.
' On 2-1-1994, he arrested Haji, Naseera, Fareed and Mureed. Haji in custody led to the recovery of .12 bore double-barrel gun P.7 from his residential house. He sealed the same into parcel and took into possession vide memo. Exh.P.J. He had also produced the licence of said gun, which he took into possession vide memo. Exh.P.J./1.
' Naseera accused had led to the recovery of spear P.8 from his residential house, which he took into possession vide memo. Exh.P.K. He also prepared the site plan Exh.P.K./1 of the place of recovery of spear.
' Mureed accused in custody, led to the recovery of Dang P.10 from his residential house, which he took into possession vide memo. Exh.P.M. He also prepared the site plan Exh.P.M./1 of the place of recovery of Dang.
' On the same day, Fareed, accused had led to the recovery of hatchet P.9 from his residential house, which he took into possession vide memo. Exh.P.L. He prepared the site plan Exh.P.K./1 of the recovery of hatchet.
' He handed over the parcel of gun to Ahmad Din, Moharrar of police station for safe custody and sending onward to the Forensic Science Laboratory.
' He (Investigating Officer) completed the investigation and thereafter was transferred from there.
The challan was submitted in Court by his successor.
7. The accused were formally charged under section 302;34, P.P.C. For committing Qatl-i-Amd of Ghulam Rasool deceased on 17-12-1993 in the area of Chak No,239/EB, Police Station Gaggo, Tehsil Burewala and under section 324 read with section 34, P.P.C. Attempting Qatl-i-Amd of Haq Nawaz P.W. In furtherance of their common intention on the said date, time and place and also under section 337-F read with section 34, P.P.C. For causing him (Haq Nawaz) injury with that common intention at that occasion. They pleaded not guilty.
8. The prosecution at their trial examined in all its 8 witnesses. They are Abdul Ghaffar, Constable (P.W.1), Dr. Fayyaz Mahmood (P.W.2), Ghulam Fakhar-ud-Din, Patwari (P.W.3), Ahmad Din, Head Constable (P.W.4), Muhammad Anwar (P.W.5), Faqir Hussain (P.W.6), Manzoor Ahmed (P.W.7) and Ghulam Fareed, Inspector (P.W.8).
9. Dr. Fayyaz Mahmood on 17-12-1993 at 4-00 p.m. Had conducted the post-mortem examination on the dead body of the deceased Ghulam Rasool and found the following injuries on the same:--
(1) A punctured wound 1 c.m. x 1 c.m. x going deep with inverted margins on the front of chest on left side, 9 c.m. Below the nipple and 2 c.m. Medial to the mid memory line.
(2) A punctured wound 1 c.m. x 1 c.m. x going deep with inverted margins on the left side of abdomen, 13 c.m. Transversely away towards the left side.
(3) A punctured wound 1 c.m. x 1 c.m. x going deep with inverted margins on the left anterior superior iliac spine.
(4) A punctured wound 1 c.m. x 1 c.m. x going deep with inverted margins on the lateral side of left buttock, 5 c.m. Below the anterior superior iliac spine.
(5) A punctured wound 1 c.m. x 1 c.m. x going deep with inverted margins on the lateral side of left buttock 1 c.m. Below the injury No,4.
(6) A punctured wound 1 c.m. x 1 c.m. x going deep with inverted margins on the lateral side of left buttock below the injury No,5.
(7) A punctured wound 1 c.m. x 1 c.m. x going deep with inverted margins, 5 c.m. Vertically below the lateral edge of left inguinal ligament on the buttock.
(8) A punctured wound 1 c.m. x 1 c.m. x going deep with inverted margins on the lateral side of left buttock 14 c.m. Below the anterior superior iliac spine.
(9) A punctured wound 1 c.m. x 1 c.m. x going deep inverted margins on the lateral side of left buttock 8 c.m. Below the injury No,8.
(10) A punctured wound 1 c.m. x 1/2 c.m x with inverted margins on the scrotum 3 c.m. Below the penis.
(11) A bluish swelling 4 c.m. x 4 c.m. On the lateral side of right chest, 20 c.m. Below the right axilla.
(12) A bluish swelling 10 c.m. x 8 c.m. On the right side of right abdomen, 13 c.m. Above the anterior superior iliac spine.
(13) A bluish swelling 4 c.m. x 4 c.m. On the right lateral abdomen 7 c.m. Below the right upper lateral edge of inguinal ligament.
10. In his opinion the death had occurred due to shock and severe haemorrhage as a result of injuries Nos.1, 2 and 3, which were sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem and with fire-arm. The time between the injuries and death was about 5-15 minutes and between death and post-mortem examination about 8-10 hours. Exh.P.B. Is the correct carbon copy of the postmortem examination report and Exh.P.B./1 is the diagram of the injuries of the deceased. These were in his hand and bore his signatures. He also signed inquest report and injury statement of the deceased.
11. On the same day at 10-45 a.m. He examined Haq Nawaz son of Sajwara and found the following injuries on his person:--
(1) A lacerated wound with flapping skin and blackened margins at some places, wound measuring 9 c.m. x 5 c.m. x muscle deep at some places going deep on the outer side of right arm 11 c.m. Below right shoulder.
(2) A punctured wound 0.5 c.m. x 0.5 c.m. Back to injuries Nos.1 and 12 c.m. Below the top of shoulder.
12. He kept injuries Nos.1 and 2 under observation for X-Ray. The probable duration of the injuries was about 4 hours. The injuries had been caused by fire-arm. Exh.P.E. Is photostat copy of M.L.C. 198, which is true copy of the original and the same was attested by him.
13. Abdul Ghaffar, Constable has escorted the dead body of the deceased to the mortuary at Gaggo Hospital. After the post-mortem examination, the doctor handed over to him the blood- stained Sweater P.1, Shirt P.2, Vest P.3 and Chadar P.4 of the deceased and a sealed phial containing pellets. He handed over these clothes and phial to the Investigating Officer, who took the clothes into possession vide memo. Exh.P.A.
14. Ghulam Fakhar-ud-Din, Patwari had prepared site plan in triplicate Exh.P.E., Exh.P.E./1 and Exh.P.E./2.
15. Ahmad Din, Head Constable has stated that he received 2 sealed parcels containing blood- stained earth and empty cartridge on 17-12-1993, which he deposited in the Malkhana for safe custody and handed over these parcels to Manzoor Hussain, Constable on 18-12-1993 for onward transmission to the office of the Chemical Examiner and to the Forensic Science Laboratory and nobody tampered with them while these remained in his custody.
16. Muhammad Anwar had identified the dead body of the deceased at the time of post-mortem.
He is also attesting witness of memo. Exh.P.A. Of the taking into possession of the aforementioned bloodstained clothes of the deceased.
17. Faqir Hussain has narrated the incident, motive and lodging of the F.I.R. Exh.P.F. At Police Station Gaggo. He is also witness of recovery of two crime-empties P.5 and P.6 from the spot as well as securing of blood-stained earth and motorcycle of the deceased from there.
18. Manzoor Ahmad has narrated the incident, motive as well as recovery of crime weapons from the accused. He is also attesting witness of respective recovery memos of these weapons.
19. Ghulam Fareed, Inspector has deposed about his investigation, the details whereof have been mentioned above. The same therefore, are not repeated here.
20. The report of Chemical Examiner Exh.P.O; that of Serologist Exh.P.Q. And of the Forensic Science Laboratory Exh.P.R. Were tendered in evidence.
21. Appellant Haji, and his acquitted co-accused have denied the allegation appearing against them in the prosecution evidence. According to them, the occurrence took place during night time and it was unseen. The complainant and other P.Ws. Learnt about the same and came to the spot on the next morning. The police summoned tracers to the spot to find out the culprits by their footprints. They hauld up many persons as suspects for the murder of Ghulam Rasool deceased but those were let off and instead they were falsely challaned in this case, only Haji appellant had produced copy of Khasra Girdawari Exh.D.A. In his defence. The acquitted accused did not produce evidence in their defence. They all did not depose on oath in disproof the allegation appearing against them in the prosecution evidence as required under section 340(2), Cr.P.C.
22. The learned trial Court after hearing the parties has convicted and sentenced Haji Appellant while acquitted his co-accused as mentioned above.
23. Haji feeling aggrieved of the impugned judgment of his conviction and sentence has brought the aforesaid appeal.
24. His learned counsel has submitted that the prosecution by its evidence on record could not prove the charge against him and so the learned trial Court has wrongly convicted and sentenced him; that the eye-witnesses are inter se related to each other and to the deceased and so were not reliable; that motive as set up by the prosecution was weak and the same was not sufficient to furnish corroboration to the ocular account; that the occurrence was unseen and the witnesses were not present at the spot; that the witnesses were inimical towards to him (appellant) while no independent person has supported their story; that Haq Nawaz P.W. Has not been produced at the trial and so the presumption would be that had he been produced he would not have supported the prosecution; that no utensil was found from the spot, therefore, the story of coming of the deceased alongwith Anwar P.W. At the spot with food for Haq Nawaz P.W. Seems not correct; that doctor had found semi-digested food in the stomach of the deceased and so if the story of the prosecution is admitted to be correct then he might have taken his last meal about 2 hours before his death and hence the ocular account becomes untrue that the occurrence had taken place at 8-00 a.m. On the relevant day; that there was no hole on the clothes of the deceased while it ought to have been so and hence all these facts belies the version of the eye-witnesses and so the prosecution case against him (appellant) becomes doubtful; and that in any case the sentence awarded to him is harsh.
25. As against the same, the learned State Counsel assisted by the counsel for the complainant has contended that the eye-witnesses were independent inasmuch as they had no enmity with the appellant; and that there is lot of evidence on record to connect him (appellant) with the charge against him convincingly and so the conviction and sentence awarded to him is justified and proper.
26. However, the learned "counselfor the complainant (petitioner) in Criminal Revision No,81 of 1999) has contended that the conviction of Haji appellant should have been under section 302(b), P.P.C.
Instead of 302(a), ,P.P.C.; and that he also was liable to pay compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C.
27. We have carefully considered the submissions made from both sides with the help of available record.
28. The prosecution in support of its case has relied upon different pieces of evidence. These were ocular, medical, motive, recovery of crime weapon from the appellant, report of Experts and the evidence of the Investigating Officer.
29. The ocular account of the prosecution has been furnished by the complainant Faqir Hussain (P.W.6) and Manzoor Ahmad (P.W.7). Though they are related inter se and to the deceased but they had no enmity with the appellant-accused prior to the occurrence. There is nothing in their evidence to say that they in any way were inimical towards him (appellant) prior to the occurrence. So, their mere relationships inter se or with the deceased is no ground to discard their testimony. The appellant's side has not at all shown that they had any enmity with him prior to the occurrence. They, therefore, were independent witnesses in every sense of term and so were reliable.
30. They were consistent to each other with regard all the material particulars of the prosecution i,e, the date, time, venue and mode of the occurrence. There is no major discrepancy in them as regards these major details of the prosecution case.
31. The occurrence had taken place at day time. They have given the explanation of their presence at the spot at the relevant time. According to them, they were present on the eastern side of Killa No,15 Square No,14, which was on lease with them. The same was adjacent to the land on lease with the deceased. Their presence there thus, could be probable. There is no reason to doubt them in this regard. The contention of the appellant's side that the occurrence was unwitnessed, thus, is without force and the same is repelled.
32. The two eye-witnesses when had land on lease adjacent to that of the deceased and their evidence inspire confidence, then non-production of any other witness from that place is of no adverse or material effect to the prosecution case. Thus, the contention raised by the appellant's side that no independent person from the surroundings of the place of occurrence has supported their story is devoid of force and the same is repelled.
33. The reason for the non-production of Haq Nawaz P.W. Has been assigned. It was because of the fact that he is related to the appellant's side. He is nephew of acquitted accused Naseer and also to other accused. The same has not been disputed by his side. In these circumstances, his giving up by jhe prosecution as having been won-over by the accused is not an abnormal thing. So no adverse inference against the prosecution can be drawn in this regard due to his non-production at the trial. The contention in this regard is without force and the same is repelled.
34. The medical evidence has fully corroborated the ocular account. Dr. Fayyaz Mehmood has given account of the injuries of the deceased. According to him, the injuries were ante-mortem and caused by fire-arm and out of these injuries Nos.1 to 3 were sufficient to cause death in ordinary course of nature. He had given probable time between injuries and death as about 5-15 minutes and between death and post-mortem examination about 8-10 hours.
35. According to the ocular account, the deceased succumbed to his injuries at the spot. The time of occurrence according to them was at about 8-00 a.m. And according to the doctor the post- mortem examination of the deceased was conducted on 17-12-1993 at about 4-00 p.m. So this comes within 8 to 10 hours after his death. This, thus, tallies with the time of occurrence and death of deceased having taken soon thereafter. G There had been found nothing in this piece of evidence, which may be in contradiction to the ocular account.
36. As regards the observation of the doctor that there was some digested food in the stomach of the deceased, the same was in no way in negation to the ocular account. No convincing argument in this regard was advanced by appellant's side to show that it was in fact so. The contention in this regard is without substance and the same is repelled.
37. The two eye-witnesses have also narrated the motive. The same was that the sons of the appellant and acquitted accused Naseer had damaged the wheat crop of the deceased in the evening proceeding to the day of occurrence by their cattle and he (deceased) had ousted the cattle from his crop and the same was felt by the appellant and his co-accused Naseer and others and they on account of the same had committed his murder and during the same Haq Nawaz P.W.
Had also received fire-arm injuries. These two witnesses have been found independent witnesses.
The motive part of the story furnished by them also inspires confidence. There is no evidence to say that it was not true. This rather has been proved on record by their evidence.
38. The recovery of crime weapon gun P.7 from the appellant and two empties from the spot is also a strong circumstance in corroboration to the ocular account. The evidence in this regard was furnished by P.W. Manzoor Ahmad and Ghulam Fareed, Investigating Officer (P.W.8).
39. Manzoor Ahmad has been found independent witness as stated above. There is no reason to disbelieve him on this aspect of the case too.
40. Ghulam Fareed, Inspector seems to have no motive to plant recovery upon him or to depose against him falsely. He too has supported the story of recovery of gun P.7 from him and empties P.5 and P.6 from the spot. His investigation also seems to be lair. There is nothing in the same to say that he had any motive to falsely challan him (appellant).
41. The investigation, thus, is also a supporting circumstance to the prosecution case.
42. The report of Forensic Science Laboratory has also confirmed that gun P.7 was used and crime- empties P.5 and P.6 were fired from the same. This report is a further corroborative piece of evidence to the ocular account as regard the charge against Haji appellant.
43. The evidence of Patwari and collection of blood-stained earth from the spot has ensured that the venue of the occurrence, as has come in the evidence of the eye-witnesses, was the same.
44. The report of Chemical Examiner and that of Serologist have also further confirmed this belief.
The blood-stained clothes of the deceased have also strengthened the prosecution case by furnishing corroboration to its' ocular version.
45. The non-recovery of utensils from the spot is of no material effect to the prosecution case. The same might have been overlooked by the Investigation Officer. However, this was not such a thing that due to the same the confidence-inspiring testimony of the reliable witnesses may be thrown away. The contention in this regard by the appellant's side is without force and the same is repelled.
46. From the above discussion, we are fully satisfied that the prosecution has fully proved the charge of Qatl-e-Amd of the deceased Ghulam Rasool against Haji appellant beyond any shadow of reasonable doubt. However, we find that his conviction under section 302(a), P.P.C. Was not proper as the proof required for that was not available. We, therefore, alter his conviction to one under section 302(b), P.P.C. From section 302(a), P.P.C.
47. As he has repeated shots with fire-arm to the deceased and those hit on his vital part of the body, so he deserved no lesser punishment than death.
48. The sentence of death awarded to him was adequate and not at all harsh in the circumstances of the case. The same is confirmed.
49. He shall also pay Rs,1, 00,000 as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. And in case of default thereof, he shall further suffer six months' S.I.
With the same, we dismiss his Criminal Appeal No,126 of 1999 being without force.
50. The Criminal Revision No,81 of 1999 brought by the petitioner-complainant succeeds and the same is accepted with the above direction of payment of compensation to the legal heirs of the deceased.
51. Murder Reference No,166 of 1999 is answered in affirmative. The death sentence is confirmed.