BASHIR A. MUJAHID, J.----Muhammad Akmal son of Muhammad Afzal, Mujtahid son of Muhammad Rafique have challenged judgment dated 18-11-1998 passed by the learned Additional Sessions Judge, Lahore, whereby they were convicted under section 302(b), P.P.C. For committing murder of Muhammad Anwar-ul-Haq and Muhammad Siddique and sentenced to death on two counts. They were also ordered to pay compensation of. Rs.50,000 on two counts under section 544-A, Cr.P.C. If recovered to be paid to the legal heirs of both the deceased in equal shares.
2. Through the same judgment Ghulam Murtaza son of Muhammad Aslam and Muhammad Aslam son of Muhammad Sharif were acquitted of the charge.
3. Brief facts of the case are that F.I.R. No.214 of 1996 Exh. P.B./1 under sections 302, 324, 34, P.P.C. Was registered at Police Station Baghbanpura, Lahore on 29-7-1996 on the basis of statement Exh.P.B. Of Amir Sohail, complainant P. W.10 recorded by Sher Afzal. S.-I. At Chowk Shalamar at 2-45 p.m. About the occurrence which took place at 1-30 p.m. On the same day within the area of Mohallah Aziz Baig Darbar at a distance of three kilometers from the police station, alleging therein that on the day of occurrence, the complainant alongwith his brother Anwar-ul-Haq deceased and Muhammad Aslam son of Ali Ahmed were going on car LOG-431 towards Shadipura from their house via Bhani Road. At 1-30 p.m. While passing through near Mohalleh Aziz Abad Darbar, they saw Muhammad Irfan cousin of the complainant quarrelling with one person by the name of Muhammad Aslam son of Muhammad Sharif and they were grappling with each. Other. The complainant and his brother Anwar-ul-Haq came out of the car and tried to rescue Muhammad Irfan on which Muhammad Aslam accused abused the complainant and the complainant also in return abused Muhammad Aslam and they started beating Muhammad Aslam accused.
Muhammad Anwar-ul-Haq brother of the complainant tried to intervene on which Muhammad Aslam accused raised noise "save" "save" on which Ghulam Murtaza son of Muhammad Asalm armed with .12 bore gun, Mujtahid son of Muhammad Rafique armed with pistol and Akmal son of Muhammad Afzal armed with pistol arrived at the spot. Muhammad Aslam raised Lalkara to teach them lesson for beating him and no body should be spared on which Mujtahid, Akmal and Ghulam Murtaza started firing from their respective weapons. A fire made by Akmal appellant hit on left leg of Muhammad Anwar-ul-Haq while fire made by Mujtahid landed on the. Back side of Muhammad Anwar-ul-Haq deceased. Due to firing of the accused persons one Muhammad Siddique, shopkeeper, who was standing nearby was also seriously injured. The accused fled away from the place of occurrence. Muhammad Anwar-ul-Haq was being taken to the hospital when he succumbed to the injuries on the way.
4. Sher Afzal, P.W.17 after recording statement Exh.P.B. Of Aamir Sohail, complainant P.W.10 sent the same to the police station through Arshad F.C. For registration of formal F.I.R. And he himself arrived at the place of occurrence. He took two empties of .12 bore gun P-8/1-2 and three empties of .30 bore pistol P-8/1-3 into possession through memo. Exh.P.E. Therefrom. He also took into possession blood-stained earth from the place where Muhammad Anwar-ul-Haq deceased was injured through Exh.P.C. And from the place where Muhammad Siddique was injured through Exh.P.D.
Thereafter he went to Mayo Hospital and prepared the inquest report of the dead body of Muhammad Anwar-ul-Haq deceased through Exh.P.N. And handed over the dead body of Anwar- ul--Haq to Manzoor Ahmad, F.C. P.W.8 for post-mortem examination. He was still in the hospital when Muhammad Hussain P.W.15 a relative of Muhammad Siddique produced death certificate Exh. P.O. And Exh. P.O./1, who had also expired due to the injuries caused to him. He also sent the dead body of Muhammad Siddique for post-mortem examination through Manzoor Ahmad, F.C.
After post-mortem examination, last worn clothes of Muhammad Anwar-ul-Haq were produced before the Investigating Officer by Manzoor Ahmad which were taken into possession by him through Exh.P.L. He on 21-8-1996 arrested Akmal (appellant) and Murtaza acquitted accused Akmal (appellant) while in police custody led to the recovery of pistol .30 bore P-10, which was taken into possession through memo. Exh.P.S. On 20-11-1996, he formally arrested Mujtahid appellant who was already in jail after arrest in some other case. On 20-11-1996, he obtained his physical remand in the case of Muhammad Anwar-ul-Haq deceased, who while in police custody on 26-11-1996 got recovered carbine P-11, which was taken into possession through Exh.P.J. He recorded the statements of the prosecution witnesses and completed the investigation and submitted the complete challan.
5. The trial Court framed the charge, which was denied by the appellants and they claimed trial.
6. During the trial, the prosecution examined as many as 17 witnesses to prove the guilt of the accused.
7. Medical evidence was furnished by Dr. Ejaz Ahmad, P.W.1, who on 30-7-1996 conducted the post- mortem examination on the dead body of Anwar-ul-Haq and found following injuries on his person:-- (I-A) Wound of entry four into 3 c.m. On the left side of the abdomen on interior abdominal wall. It was 9 c.m. Above the umbilicus and 12 c.m. Below the left nipple at 7-00 clock position.
(I-B) Wound of exit 1 c.m. In diameter on the back of right lower abdomen 9 c.m. From midline and 4 c.m. From posterior iliac spine.
8. On the same day he also conducted the post-mortem on the dead body of Muhammad Siddique and found the following injuries on his person:-- (1)A lacerated wound with inverted margin and collar of abrasion all around was present on left front of abdomen 12 c.m. From midline and 17 c.m. From umbilicus. It corresponded with injury No.3 of operation notes provided by Registrar, East Surgical Ward, Mayo Hospital, Lahore.
(2)A lacerated wound 0.7 c.m. In diameter with inverted margin was present on the outer part of right buttock 13 c.m. From right iliac crest and 40 c.m. From right knee joint. The injury corresponded with injury No.2 of operation provided.
(3)A lacerated wound 2.5 x 1 c.m. With everted margin was on the outer and lower part of right side of abdomen 17 c.m. From midline and 13 c.m. From anterior superior 4 iliac spine. This injury corresponded with injury No.1, of operation notes provided.
(4)23 c.m. Long surgically incised wound with four silk stitches intact just left to the mid line 18 c.m.
From left nipple and three c.m. From pubic symphesis.
Dr. Fateh Muhammad Kathia, P.W.13 had issued death certificate Exh.P.H. Of Muhammad Anwar-ul- Haq deceased while posted as C.M.O., Mayo Hospital, Lahore.
9. The ocular account was furnished by Aamir Sohail, P.W.10, who was complainant of the case. He supported the version of the F.I.R. And narrated the details of the occurrence, Muhammad Aslam son of Master Ali Ahmad was also eye-witness of the occurrence. He supported the prosecution story as P.W.11. His statement is in line with the statement of Aamir Sohail, complainant of the case.
According to him, he and Aamir Sohail started beating Muhammad Aslam accused and Anwar-ul- Haq intervened to separate them. In the meanwhile accused armed with respective weapons attracted to the spot and they made firing wherein Muhammad Anwar-ul-Haq and Muhammad Siddique were injured and they succumbed to the injuries. He also attested the recovery memos.
Exhs.P.C., P.E. And P.F., whereby blood-stained earth, empties and last-worn clothes were taken into possession by the Investigating Officer, Khurshid Iqbal, S.-I., P.W.4 kept the sealed parcels containing last --worn clothes of the deceased in his safe custody in police Malkhana on 26-8- 1996 and handed over this parcel to Muhammad Naeem, F.C., P.W.6 on 6-9-1996 for transmission to the Office of Forensic Science Laboratory, Lahore. Riasat Ali, H.C., P.W.5 kept the sealed parcels in Police Malkhana containing blood-stained earth taken into possession from the spot and handed over these parcels to Muhammad Aslam, F.C. On 24-12-1996 for depositing the same in the Office of Chemical Examiner on 26-11-1996. He also kept in Police Malkhana a sealed parcel containing carbine and handed over it to Muhammad Aslam, F.C. For its deposit in the Office of Forensic Science Laboratory, Lahore. Manzoor Ahmad, F.C. P.W.8, escorted the dead bodies of Muhammad Anwar-ul-Haq and Muhammad Siddique for post-mortem and produced the last-worn clothes before the Investigating Officer and. Attested the respective recovery memos. Nisar Ahmad Head Constable, P.W.12 had attested the recovery memo. Exh.P.G. Whereby Mujtahid appellant got recovered pistol P-10 which was taken into possession by the Investigating Officer, Syed Imran Bokhari Draftsman, P.W.14 had prepared the site plan Muhammad Hussain P.W.15, produced the last-worn clothes of Muhammad Siddique before the Investigating Officer which were taken into possession through Exh.P.L, which was attested by him. Muhammad Tariq Mahmood, P.W.16 had identified the dead body of Muhammad Siddique deceased for post-mortem examination.
10. The prosecution evidence was closed by tendering in evidence the report of Chemical Examiner Exh.P.V. And Exh.P.X. And report of Serologist Exh.P.Y. And Exh.P.Z. And that of Forensic Science Laboratory, Lahore Exh.P.A.A. And Exh.P.B.
11. Statements of the accused were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement. Mujtahid appellant in reply to Question No.10 as to why this case against him and why P.Ws. Have deposed against him, he replied as under: -- "In fact admittedly, the complainant party was having murder enmity with Noora Kashmiri deceased, who is resident of the same village where I reside and therefore, I had close relations with said Noora Kashmiri, and due to relations with Noora Kashmiri, I have been falsely involved in this case by the complainant party due to suspicion, whereas, I am innocent. "
Muhammad Akmal, appellant in reply to the same question replied as under: "As admittedly, the complainant party had murder enmity with one Noora Kashmiri deceased.
Being resident of the same village, I had got close relations with said Noora Kashmiri. I have been falsely involved by the complainant party due to that grudge. In fact the occurrence was committed by some other persons as the complainant party had enmity with Noora Kashmiri and so many other groups. The appellants examined D.W.1, Asif Nazir Qureshi, in disproof of the prosecution story while the trial Court examined Muhammad Nawaz C.W.1 for just decision of the case. "
12. The trial culminated into conviction of the appellants as mentioned above. Hence this appeal.
Murder Reference No.446 of 1998 has also been sent by the learned trial Court under section 374, Cr.P.C. For confirmation of the death sentence awarded by it. Both the matters are being decided through this single judgment.
13. Learned counsel for the appellants at the very outset has stated that the legal heirs of Muhammad Siddique deceased had compromised the offence with Muhammad Akmal appellant and they have forgiven him by waiving their right of "Qisas and Diyat" and in this regard report was called from the learned Sessions Judge, Lahore, which is dated 4-12-2001 and is available on the record. According to the report of learned Sessions Judge, Lahore, Muhammad Siddique was survived by a widow six sons and 5 daughters. Out of the legal heirs Muhammad Sajid, son was minor and Defence Savings Certificates in his name of Rs.98,000 were purchased. The compromise being genuine, his appeal to the extent of murder of Muhammad Siddique deceased is allowed and he is acquitted of the charge.
14. Regarding his appeal for the murder of Anwar-ul-Haq, and appeal of Mujtahid it has been argued by the learned counsel that there is contradiction in medical evidence and the ocular account. According to the post--mortem report, Injury No.1-A was caused on Anwar-ul-Haq on the form while according to the complainant P.W.10 and Aslam P.W.11 Anwar-ul-Haq deceased received the injuries on his back which shows that the witnesses were not present at the spot and they had not seen the occurrence. As per post-mortem, injury No.1 was result of .12 bore gun on the dead body of Anwar-ul-Haq deceased while both the appellants were stated to be armed with pistols and only Ghulam Murtaza was armed with .12 bore gun, who has already been acquitted by the trial Court. It has also been argued that no injury received by Muhammad Siddique has been specifically attributed in the F.I.R., which also shows that occurrence was not witnessed by the complainant and Aslam P.W.11. It has been further argued that the dead body of Anwar--ul-Haq was received in hospital through one Waris Ali friend as per death certificate Exh. P.G./4 and not by the complainant, therefore, his presence at the spot is doubtful. Lastly it has been argued that it was a sudden fight and not pre-planned murder, therefore, it was not a case of capital punishment.
15. Conversely the appeal has been opposed by the learned counsel for the complainant and for the State.
16. Heard. Record perused
17. The occurrence took place at 1-30 p.m. And according to the prosecution Muhammad Anwar- ul-Haq deceased succumbed to the injuries when he was being removed to the hospital so his dead body was received at the hospital at 2-15 p.m. As per death certificate Exh.P.H./1. Statement Exh.P.B. Of the complainant Aamir Sohail P.W.10 was recorded by the Investigating Officer at 2-45 p.m. And both the appellants have been specifically nominated in the F.I.R. Both Aamir Sohail P.W.10 and Muhammad Aslam P.W.11 narrated the story and events in very natural manner and their testimony has been fully corroborated by medical evidence. Their presence at the spot was natural and has been fully explained. We do not find any contradiction in medical evidence or the ocular account furnished by both these witnesses. Injuries attributed to both the appellants were found on Muhammad Anwar-ul-Haq deceased. The microscopic detail is neither expected nor it is possible for the witnesses. It has been specifically stated in the F. I. R. That Muhammad Siddique deceased, shopkeeper was also injured in the same occurrence, who died subsequently. The crime empties of .30 bore pistol taken into possession from the spot fired by Muhammad Akmal (appellant) duly tallied with the pistol used by him vide Forensic Science Laboratory Report Exh.P.A.A. Mujtahid (appellant) remained proclaimed offender for some time and was arrested in some other case.
Crime empties of .12 bore gun taken into possession from the spot were found having not been fired from the said carbine which means that the carbine recovered from his possession was not used in the said occurrence. He has failed to explain why he remained absconder and failed to surrender himself before the police and his absconsion is sufficient corroboration to the ocular account. He has been attributed specific injuries and after deep reappraisal of I the evidence, we are convinced that the prosecution case has been established against both the appellants beyond any shadow of doubt by ocular account, medical evidence and recovery of weapon of offence from their possession and we do not find any ground to interfere in the conviction recorded against them by the trial Court. So, conviction of Mujtahid is maintained on two counts while of Muhammad Akmal appellant on one count of murder of Muhammad Anwar-ul-Haq deceased.
18. As far as the sentence is concerned, admittedly, it was a sudden occurrence. The complainant Aamir Sohail, P.W.10 and Muhammad Aslam, P. W.11, both have stated that the complainant had abused Muhammad Aslant (accused) and they were beating Muhammad Aslam accused when Muhammad Anwar-ul-Haq, deceased intervened to rescue Muhammad Aslam, who raised hue and cry which attracted the appellants to the spot, therefore, clearly it is a sudden occurrence and is not a pre-planned, premediated murder. It is not clear what happened at the spot which led to the original occurrence. The prosecution story itself is that initially quarrel was between Irfan from complainant side and Muhammad Aslam son of Muhammad Shaft from accused side. The deceased Anwar-ul---Haq and accused reached there later in aid/to rescue their respective men.
It is also admitted that Muhammad Aslam was being beaten by the complainant party when he called for help and the accused reached there and opened fire without aiming any body just to save Muhammad Aslant from the clutches of the complainant party and in this process their fires hit Muhammad Anwar-ul-Haq deceased and one neutral person Muhammad Siddique, a nearby shopkeeper and the P.Ws. Were not caused any injuries/hurt. Occurrence took place at the spur of the moment therefore, it is not a case of capital-- punishment. So, we alter the sentence of both the appellants from death to imprisonment for life, Muhammad Akmal (appellant) on one count for causing death of Muhammad Anwar-ul-Haq while of Mujtahid (appellant) on both the counts.
However, sentences of both the counts will run concurrently. The sentence of compensation is maintained. Benefit of section 382-B, Cr.P.C. Will also be available to the appellants. Appeal of both the appellants is dismissed with the above modification.
19. Murder Reference is answered in the negative.
H.B.T./M-2087/L