KHAN MUHAMMAD Versus THE STATE

This judgment would dispose of Criminal Appeal No.261 of 1989 and Criminal Revision No. 11 of 1990.

2. Khan Muhammad son of Muhammad Yar (27 years) was tried alongwith Isa son of Palia and Muhammad Yar son of Abdullah by a learned Additional Sessions Judge, Dera Ghazi Khan on the charges under sections 302/109/34, P.P.C.

3. Khan Muhammad was convicted under section 302, P.P.C. for causing the death of Ahmad Bakhsh and was sentenced to life imprisonment and a fine of Rs,20,000, in default thereof to further R.I. for two years. He was also directed to pay Rs.20,000 as compensation to the legal heirs of the deceased. The co‑accused were acquitted.

4. Khan Muhammad has preferred an appeal against his conviction and sentence while the complainant has filed a Criminal Revision for enhancing the sentence of Khan Muhammad and awarding death sentence to him. No appeal against acquittal of co accused was filed.

5. Muhammad Yar and Isa (acquitted co‑accused) are respectively father and friend of Khan Muhammad appellant.

6. Prosecution case was that on 30‑9‑1987 at 'Degarwela', Bashir Ahmad (complainant) went to Haji Ismail and Haji Ahmad P.Ws. at Chah Jalab Wala, Mauza Imrani, for hiring their tractor for ploughing his land in village Yaro. He alongwith aforesaid P.Ws. left Mauza Imrani for village Yaro on the tractor, when they reached near the land for Noor Muhammad Issani situated in village Yaro, they saw Ahmad Bakhsh coming on a motorcycle. Within their sight all of a sudden Khan Muhammad and Isa accused who were both armed with guns emerged from a cluster of trees. Isa raised a lalkara addressing his co‑accused to take revenge of their insult whereupon Khan Muhammad fired at Ahmad Bakhsh hitting his back; thereafter both of them fled away towards their houses.

7. On receiving the tire‑shot Ahmad Bakhsh fell down from motorcycle. Complainant and the said P.Ws. rushed towards Ahmad Bakhsh but he had died on the spot.

8. It was alleged that the said murder was committed by Khan Muhammad alongwith Isa co‑accused in furtherance of their common intention at the behest of Muhammad Yar, father of Khan Muhammad, on suspicion that the deceased was involved in the abduction of Mst. Zarina Bibi and Mst. Bashiran respectively sister and 'Bhabi' of Khan Muhammad accused.

9. Leaving Muhammad Ismail and Haji Ahmad P.Ws. with the dead body the complainant proceeded to the police station and lodged F.I.R. Exh.PD containing the above version which was recorded by Ch. Liaqat Ali S.I., who, on the same day visited the spot, prepared inquest report Exh.PK secured blood‑stained earth from the spot and after sealing it into a parcel seized it vide memo. Exh.PE. He also took into his possession motorcycle of the deceased vide memo. Exh.PF. He then despatched the dead body to the mortuary through Muhammad Ismail, FC who after autopsy, produced before the Investigating Officer last worn clothes and other articles of the deceased which were taken into possession by the Investigating Officer vide memo. Exh.PA. The Investigating Officer delivered the sealed parcel of the blood‑stained earth to Moharrir, recorded the statements of the P.Ws. and on 12‑10‑1987 he got prepared site plans of the place of occurrence Exh.PB, Exh.PB/1 and Exh.PB/2 from Patwari and gave his notes in red ink.

10. Isa accused was arrested by the Investigating Officer on 16‑10‑1987 who at the time of his arrest produced .12 bore gun P.6 which was taken into possession by the Investigating Officer vide memo. Exh.PG after sealing it into a parcel. Thereafter on the same day Khan Muhammad (appellant) was also arrested by the Investigating Officer who while in police custody led to the recovery of gun P.7 from his residential house which was made into a sealed parcel and was taken into possession by the Investigating Officer through memo. Exh.PH. Subsequently on the same day while in police custody Khan Muhammad (appellant) led to the recovery of one empty cartridge P.8 from a place near his house which was lying inside a cluster of trees and after sealing it into a parcel it was seized by the Investigating Officer vide memo. Exh.P.W.

11. Further investigation was conducted by Muhammad Sharif, S.‑I. S.H.O. who recorded the statements of Fida Hussain, FC and Gul Muhammad Moharrir, A.S.I. and prepared report under section 173, Cr.P.C.

12. P.W.6 Dr. Farrukh Hussain conducted post‑mortem examination on the dead body of Ahmad Bakhsh on 1‑10‑1987 at 10‑45 a.m. and found following injuries:‑‑

1. Lacerated wound (fire‑arm) about 1‑1/4 c.m. x 1‑1/4 c.m. x sufficiently deep on the upper part of back of left chest about 1/1‑2" outside the midline at the level of middle of medial border of left scapula. There was a rim of abrasion around the main wound.

Margins of the wound were inverted. Similar type of wound was present on the back of upper part of right chest about 2‑1/2" outside the midline at the level of middle of medial border of right scapula. Similar type of wound was present about 1‑1/2" below the above injury. Similar type of wound was present on the back of right chest slightly below the inferior angle of right scapula. Similar type of wound was present on the back of right chest over the region of middle of right scapula. Similar type of wound was present on the back of right chest over the region of lower and outer part of right scapula. All the above were wounds of entrance.

2. Lacerated wound above 1‑1/4" x 1‑1/2 c.m. x sufficiently deep (fire arm) on the front of upper part of left chest over the area of inner part of left clavicle. Margins of the wound were everted. Similar type of wound was present on the front of upper part of right chest about 3/4" from the midline at a level of sternal angle. Similar type of wound was present on the fronts of upper part of right chest about 1/2" outside the above injury. Similar type of wound was present on the fronts of right chest about 1‑1/2" above and slightly inside to the right nipple.

All the above were wounds of exit.

The doctor prepared post‑mortem report Exh.PC. In his opinion all the injuries were ante‑mortem and caused by fire‑arm and were sufficient to cause death in the ordinary course of nature. Cause of death was haemorrhage and shock due to injuries to the lungs. Probable time between injuries and death was few minutes and between death and post‑mortem was 18 to 22 hours which may increase or decrease in other, direction upto three hours.

13. The accused pleaded not guilty to the charge whereupon prosecution evidence comprising of the testimony of 12 P. Ws. was recorded. P.W. Muhammad Ismail was given up by the Prosecutor as having been won over by the accused. Report of Chemical Examiner Exh. PL and that of Serologist and Forensic Science Laboratory respectively Exhs. PM and PN were also tendered in evidence.

14. During his examination under section 342. Cr.P.C. the appellant denied the charge and alleged that he was involved in this case due to enmity, party faction with the complainant party and on suspicion.

15. Case of the prosecution rested upon evidence of abetment, ocular account of the incident, medical evidence and evidence of recovery.

16. Evidence of abetment comprised of the testimony of Imam Bakhsh PW.4, according to which Muhammad Yar (acquitted co‑accused) abetted Isa (acquitted co‑accused) and Khan Muhammad (appellant) to commit the murder of Ahmad Bakhsh (deceased) and in consequence thereof the aforesaid two had murdered Ahmad Bakhsh.

17. Learned trial Court did not place reliance on the said evidence for the reasons recorded in para.22 of the impugned judgment which are convincing. Anyhow as no appeal against the acquittal of Muhammad Yar was filed, therefore, no consideration on the said evidence is required.

18. Ocular account of the incident comprised of statements of two eye‑witnesses Bashir Ahmad P.W.7 and Haji Ahmad P.W.8, who in view of the learned trial Court were consistent in their statements that Khan Muhammad (appellant) had fired at Ahmad Bakhsh with a gun hitting his back and no material contradiction or discrepancy was found by the learned trial Court in their statements.

19. On the point of motive, testimony of Bashir Ahmad (complainant) P.W.7 was believed by the learned trial Court as he had mentioned in the F.I.R. that prior to the occurrence Mst. Zarina Bibi and Mst. Bashiran Bibi respectively sister and "Bhabi' of Khan Muhammad accused/appellant were abducted and the accused suspected that the deceased was involved in their abduction. While appearing as P.W.7 the complainant had deposed that the accused party had got registered a case against several persons including deceased regarding the aforesaid abduction. The accused/appellant had also admitted enmity with the complainant party during his examination under section 342, Cr. P. C.

20. According to the learned trial Court eye‑witness account of P.W.7 and P.W.8 was corroborated by the medical evidence regarding locale of injuries and time of occurrence. The learned trial Court also believed the testimony of Haji Ahmad P.W.8 and Liaqat Ali, S.I. P.W.9 in respect of recovery of gun P.7 and crime empty P.8 from the appellant as according to the learned trial Court both the said P.Ws. were independent and nothing was brought on record to show that they were inimical towards the appellant; according to report of Forensic Science Laboratory Exh. PN crime empty P.8, recovered at the instance of the accused, was found to have been fired from gun P.7.

21. The defence version set up by the accused/appellant that it was an unseen occurrence which took place at night and accused were roped in due to previous enmity was disbelieved by the learned trial Court as that plea was merely a bald version which was not supported by any evidence and was belied by the fact that the F.I.R. was lodged promptly at 5‑30 p.m. The time of occurrence was corroborated by the medical evidence.

22. Isa accused was acquitted by the learned trial Court by giving him benefit of doubt for the following reasons:‑‑

(i) He did not cause any injury to the deceased.

(ii) He did not use the gun during the occurrence therefore, recovery of the said weapon from him did not furnish any evidence of corroboration.

(iii) He had no motive to kill the deceased, neither any motive was alleged against him.

(iv) He was not related to the co‑accused; and

(v) Corroborative evidence was missing against him.

23. To the extent of appellant the learned trial Court was of the view that case against him was proved beyond shadow of doubt and as murder was' apparently committed by way of retaliation over the suspected abduction of two women belonging to accused party, it was not thought a fit case for awarding extreme penalty. The appellant was accordingly convicted under section 302, P. P. C. and was sentenced to life imprisonment with fine etc.

24. The impugned judgment is assailed by Sardar Muhammad Latif Khan Khosa, Advocate on behalf of the appellant on a number of grounds which are stated hereinafter. He had prayed for the acquittal of the appellant.

25. The appeal was strongly opposed by the learned State counsel who during his arguments had fully supported the impugned judgment.

26. Syed Murtaza Ali Zaidi, Advocate appearing on behalf of the complainant in the Criminal Revision, during his arguments had fully supported the impugned judgment to the extent of conviction of the appellant but has assailed the sentence. He urged that the appellant could not be given the concession of mitigation due to the motive viz., family honour and prestige. It was urged that offence was brutal and intended act due to which the appellant did not deserve extraordinary concession of mitigation and deserved to be awarded maximum sentence provided under the law for an offence punishable under section 302, P.P.C. It was prayed that the appellant be awarded death sentence.

27. I have heard the learned counsel. Record has also been perused.

27‑A. Sardar Muhammad Latif Khan Khosa, Advocate appearing on behalf of the appellant argued that according to the motive set up in this case i.e., dishonour caused to the family of the accused by the abduction of Mst. Zarina Bibi and Mst. Bashiran Bibi respectively sister and 'Bhabi' of the appellant, prime target should have been Bashir Ahmad complainant as he had admitted that he remained in jail four about 8/9 months in connection with that abduction case. It was argued that had Bashir Ahmad P.W.7 (complainant) been present at the time of occurrence, he would have been shot instead of the deceased. It, therefore, implies that Bashir Ahmad could not have been present at the time of occurrence.

28. The above argument is misconceived because according to the F.I.R. motive for the murder was that the accused had suspected that the deceased was involved in the abduction of Mst. Zarina Bibi and Mst. Bashiran Bibi. Although while appearing as P.W.7 the complainant admitted that in the said case of abduction he had remained in jail for 8/9 months but from the said statement it cannot be inferred that according to the accused he was the principal accused and therefore, he should have been the prime target. According to the F.I.R., the facts and circumstances, prime target was the deceased because that abduction case was eventually cancelled by the police and the deceased was admittedly not even arrested in that case. The appellant, therefore, had stronger cause of grievance against the deceased as compared to the complainant who had been confined in the jail in connection with the abduction case for about 8 or 9 months. Apart from that, by the murder of the deceased, cause of grievance was over as the insult and dishonour was avenged and it was not, therefore, necessary to have murdered all the accused nominated in the abduction case.

29. It was next argued by the learned defence counsel that post‑mortem examination was conducted on 1‑10‑1987 at 10‑45 a.m. which shows that the complainant party had taken time and had lodged fabricated F.I.R. after premeditation and deliberation due to enmity.

30. I am not impressed by this argument of the learned defence counsel. Mere fact that autopsy was conducted on 1‑10‑1987 does not imply that the complainant party had taken time and had lodged fabricated F.I.R. after premeditation and deliberation.

31. It was next submitted by the learned defence counsel that the complainant had remained in jail in connection with the abduction case, therefore, he had the motive for falsely involving the accused. I do not see eye to eye with learned defence counsel because the other eye‑witness P.W.8 Haji Ahmad also witnessed the occurrence who is an independent witness and who had no motive for falsely implicating the appellant in a criminal case entailing capital punishment.

32. It was urged by the learned defence counsel that both the eye‑witnesses P.W.7 and P.W.8 are not residents of the place of occurrence; P.W.7 admitted that he resides at a distance of one square from the place of occurrence while abode of P.W.8 is 2‑1/2 K.Ms. from the place of occurrence, therefore, they were chance witnesses. He placed reliance in this behalf on Zafar Hayat v. The State (1995 SCMR 897) and Yaqub Shah v. The State (1995 SCMR 1293).

33. The above arguments is without force inasmuch as P.W.7 Bashir Ahmad is resident of the same village Mauza Yaro where the occurrence had taken place and this witness had also given reasonable and convincing account of his presence at the spot at the time of occurrence. Similarly the other eye‑witness Haji Ahmad P.W.8 had also given a plausible and convincing account of his presence at the scene of occurrence at the time when the offence was committed.

34. The authority referred by the learned defence counsel viz. 1995 SCMR 896 does not apply to the facts and circumstances of the instant case because in the said reported case the witness had not convincingly explained his presence at the place of occurrence at the odd hours of the night and his testimony was also not corroborated and motive was also discarded by the High Court.

35. The other authority relied upon by the learned defence counsel viz. 1995 SCMR 1293, is also distinguishable. In the said precedent case the eye‑witnesses had failed to reasonably explain their presence at the spot and possibility of their presence was also ruled out because in case of their presence they would not have been spared by the accused who were armed and were twenty in number; the eye‑witnesses were closely related to the deceased and the case of the accused was not distinguishable from that of already acquitted co‑accused.

36. In the instant case presence of the eye‑witnesses at the place of occurrence is reasonably explained and case of acquitted co accused is distinguishable.

37. Sardar Muhammad Latif Khan Khosa, Advocate further argued that P. W .8 Haji Ahmad admitted during cross examination that father of the deceased had sold land which was pre‑empted by his (this P.W's.) brother Jan Muhammad and in that case father of deceased had deposed from the side of Jan Muhammad that the sale price received by him was less than what was stated in the mutation of sale. It was urged that this not only shows that P.W.8 Haji Ahmad had got good relations with the father of the deceased but also established that he was repaying the favour shows by the father of the deceased. Thus P. W.8 could not be deemed as independent but he was rather an interested witness.

38. I am not inclined to agree with the above argument because there is a general tendency on the part of the vendee to get incorporated exaggerated sale price in the mutation of sale or registered sale‑deed with the object of warding off the prospective pre emptors. Hence if the father of the deceased (vendor) had made statement in the Court, in a pre‑emption suit disclosing the actual sale price received by him from the vendee which was less than that stated in the mutation of sale, it did not imply that he had shown favour to the pre‑emptor Jan Muhammad by making that statement. It was not suggested that the said statement was incorrect and sale consideration received by the father of the deceased was in fact that which was mentioned in the mutation of sale. It was also not suggested that father of the deceased was not summoned by the civil Court and had voluntarily accompanied Jan Muhammad to give evidence in his favour. A person summoned by the Court is bound to appear before it and is bound to state the truth. Nothing was brought on record to suggest or to show that false testimony regarding receipt of less sale consideration was given by the father of the deceased in order to oblige Jan Muhammad, brother of P. W.8 and that it was for the said reason that P.W.8 was repaying that undue favour shown to his brother by the father of the deceased. P.W.8 cannot be, therefore, deemed as an interested witness and the reason alleged by the learned defence counsel was hardly a sound reason for P.W.8 to have falsely involved the appellant in a criminal case involving capital punishment.

39. The learned defence counsel had drawn my attention to page No.3 of the cross examination of P.W. Haji Ahmad and had pointed out that the said witness could not tell tire model of his tractor, admitted that Haji Ismail (who is alleged to be driver of the tractor) had no driving licence, was challaned many times under the Motor Vehicles Ordinance and he (this witness) used to pay the fine on behalf of his said driver; when questioned further this witness could not give the dates of a payment of fine, could not tell the names or designation of the Presiding Officer before whom line was paid by him and he admitted that he did not possess any receipt for the payment of said fines.

40. The learned defence counsel had drawn my attention to further cross examination on P.W.8 at page .5 where the witness said that said tractor was got repaired from different workshops on various occasions but admitted that he does not possess any receipt regarding the said repair nor he has got any receipt for the diesel and lubricant oil purchased for that tractor.

41. According to the learned defence counsel, from the said cross‑examination it was evident that Haji Ahmad P.W.8 neither had any tractor nor Ismail P.W. was the driver of any tractor and the version of coming on tractor was introduced to justify the presence of the P. Ws. at the spot; it was a tailored story because if the existence of the tractor is excluded, presence of the eye witnesses is not proved at the spot.

42. I have gone through the cross examination pointed out by the learned defence counsel. P.W.8 Haji Ahmad is admittedly an illiterate villager and such persons are not expected to know or remember the make, model or number of their tractor. They are also not likely to know the names and designation of the Presiding Officer before whom they had been paying fines. Admission of the said P.W. that he does not possess any receipt for the payment of fine and cannot produce the receipts for the repair of the tractor or the receipts for the purchase of diesel and lubricant oils is of no legal consequence for such receipts were useless for a villager he was not entitled to claim refund of such expenses for which he should have kept the receipts with him. On the basis of said cross‑examination it cannot be radially inferred, as was argued by the learned defence counsel, that the said P.W. neither owned any tractor nor Haji Ismail P.W. was a driver and the story of tractor was a tailored version.

43. It was also argued by the learned, defence counsel that Bashir Ahmad P.W.7 (complainant) was closely related to the deceased, was a chance witness, his enmity with the accused was admitted. Therefore, it was not safe to rely on his testimony without strong and independent corroboration. It was further urged that P.W.8 was also not only a chance witness but was an interested witness as well. Therefore, he could not be deemed a an independent witness. Hence his corroboration was of no effect.

44. I partly agree with the learned defence counsel to the extent that P.W., Bashir Ahmad complainant was closely related to the deceased and enmity between the complainant and accused party was admitted. Therefore, it was not safe to rely on, his testimony without strong and independent corroboration. However, in this case testimony of the said witness was corroborated by the evidence of Haji Ahmad P.W.8 who was admittedly not related to the deceased and had admittedly no enmity with the accused party. He also admittedly had no motive for falsely implicating the accused. I also do not agree with the learned defence counsel that the complainant P.W.7 and Hajji Ahmad P.W.8 were chance witnesses because their presence at the spot was plausibly, reasonably and convincingly explained during their statements. The testimony of the complainant was corroborated by that of P.W.8 Haji Ahmad who was an independent witness.

45. It was finally argued by the learned defence counsel that the learned trial Court did not believe the testimony of the eye witnesses in respect of Isa (acquitted co accused) hence appellant could not have been convicted on the same evidence which was disbelieved to the extent of his said co accused.

46. I do not agree with the above argument. A perusal of the evidence reveals that the learned trial Court had acquitted Muhammad Yar co‑accused for reasons recorded by it in para. No.22 of the impugned judgment. Witnesses who had deposed against the said accused and who were rightly disbelieved by the learned trial Court were Imam Bakhsh P.W.4 and Khan Muhammad P.W.5.

47. The eye‑witnesses vis P.W.7 and f.W.8 had said nothing about the said co accused, neither he was acquitted by disbelieving the testimony of the eye witnesses.

48. So far as the acquittal of co‑accused Isa is concerned, a perusal of evidence reveals that he was acquitted by the learned trial Court on the principle of safe administration of justice by applying the principle of doubt. Reasons for giving benefit of doubt to the said acquitted co‑accused Isa are mentioned hereinbefore as well as in para.24 of the impugned judgment which are in my view correct.

49. It is now well‑settled that maxim "fulsus in uno fulsus in omnibus" has no universal application and grain has to be sifted from the chaff. The said maxim was, therefore, not applicable for discarding the evidence of a witness as a whole and the evidence which was credible was to be accepted.

50. Eye‑witnesses P.W.7 and P.W.8 were consistent in their testimony that the appellant had fired at Ahmad Bakhsh with a gun hitting his back. No material contradiction or discrepancy could be pointed out in their statements. Motive stood proved from the F.I.R., statement of P.W.7 Bashir Ahmad and appellant's own admission of enmity during his statement under section 342, Cr.P.C. Although in the said statement party faction with the complainant party was also alleged but nothing was brought on record to show that besides the enmity regarding abduction of two women, there was any other enmity or party faction. Ocular account given by the eye‑witnesses regarding locale of injuries and time of occurrence was corroborated by the medical evidence. Recovery of gun P.7 and crime empty P.8 from the appellant was proved C from the statement of Haji Ahmad P.W.8 and Liaqat Ali, S.I. P.W.9. According to the report of Forensic Science Laboratory, empty P.8 was fired from the gun P.7.

51. The defence version set up by the appellant that it was unseen occurrence which took place at night and the appellant was roped in due to previous enmity was not established but was rather belied by the fact that the F. I. R. was promptly lodged just after the occurrence at 5‑30 p.m. on the same day. According to the medical evidence probable time between death and autopsy was 18 hours. Post‑mortem was conducted on 1‑10‑1987 at 10‑45 a.m. Approximate time of death and occurrence was 4‑30 p.m. on 30‑9‑1987. F.I.R. was lodged at 5‑30 p.m.

52. For the reasons stated above, I am of the considered view that the learned trial Court had rightly held that the prosecution had proved its case beyond reasonable doubt against the appellant.

53. Reverting to the arguments of the learned counsel for the revision petitioner complainant, it may be observed that on record no enmity other than that regarding abduction of two ladies of the accused party by the complainant party could be shown. The sole enmity and motive for the murder was, therefore, the disgrace and dishonour caused to the accused party by the complainant party by abducting their two women, one of whom was real sister and the other was 'Bhabhi' of the appellant. Only a single fire was shot by the appellant and it was not repeated. Case of abduction was discharged by the police and the deceased who was nominated therein was not even arrested. Hence motive was retaliation and vindication for the damage caused by the deceased to the family honour which was mitigating circumstance and was rightly considered so by the learned trial Court.

54. For the foregoing reasons the impugned judgment is hereby upheld. Resultantly the appeal as well as the criminal revision are hereby dismissed.

55. The appellant Khan Muhammad son of Muhammad Yar is on bail, his bail bonds are cancelled. He be arrested and be sent to jail to serve out un expired portion of his sentence.

N. H. Q./K‑167/L Appeal dismissed.