ATTA MUHAMMAD Versus THE STATE

RIAZ AHMED, J.‑‑ Appellants Atta Muhammad aged 45 years, Muhammad Abdullah aged 55 years, Muhammad Azeem aged 42 years, brothers inter se ..and sons of Ghulam Muhammad and Muhammad Akram son of Muhammad Abdullah aged 24 years, all Zargars by caste, were tried by the learned Sessions Judge, Mianwali on a charge under section 302 read with section 34, P.P.C. for having committed the murder of Ghulam Rasool deceased. Vide his judgment dated 10‑4‑1982, the learned Sessions Judge found ‑all the appellants guilty on the said charge. Accordingly appellants Atta Muhammad and Muhammad Akram were sentenced to death and to pay a fine of Rs. 2,000 each, or in default to suffer rigorous imprisonment for a period of two years. The appellants Muhammad Azeem and Muhammad Abdullah were sentenced to suffer life imprisonment and to pay a fine of Rs. 2,000 each, or, in default of the payment of fine to suffer rigorous imprisonment for a period of two years. It was further directed that in the event of the recovery of fine the same shall be paid to the heirs of the deceased as compensation under section 544‑A, Cr. P.C.

2. Aggrieved by their conviction and sentences the appellants have preferred this appeal and the case has also been referred to us under section 374, Cr.P.C. This judgment shall dispose of both the appeals as well as the Reference.

3. The unfortunate occurrence resulting into the death of Ghulam Rasool deceased took place on 8‑8‑1980 at about 1.00 p.m. in the shop of Muhammad Aslam P.W. 13 in Chowk Main Bazar in the town of Mianwali situated at a distance of one mile from Police Station Saddar Mianwali.

4. The deceased who succumbed to his injuries in the shop of Muhammad Aslam was taken to the police post where the statement of Ghulam Qadir P.W. real brother of the deceased Ex. PD was recorded by Altaf Hussain Shah, Sub -Inspector at 1.30 p.m. The said statement was sent to the police station where on the basis thereof formal FIR Ex. PD/1 was drawn by Manzoor Ahmed, Head Constable P.W. 6 at 1.40 p.m.

5. The case of the prosecution as narrated in the FIR is that on the fateful day at about 1.00 p.m., the complainant Haji Ghulam Qadir alongwith Muhammad Shari, Muhammad Yousaf and Atta Ullah reached the Chowk of the Main Bazar, Mianwali, when suddenly in their view appellants Abdullah and Muhammad Azeem armed with .12 bore guns, appellant Atta Muhammad armed with a pistol and the appellant Muhammad Akram empty handed also reached there. The deceased Ghulam Rasool at that time was sitting in the shop of Muhammad Aslam P.W.

13. Appellant Abdullah raised a Lalkara that the deceased would not go alive and we would just pay him money. According to the complainant after the Lalkaras Muhammad Akram appellant picked up a brick and hurled the same towards the deceased hitting the head of the deceased. Thereafter, appellant Atta Muhammad in succession fired two shots from his pistol hitting the waist of the deceased. Abdullah appellant also fired a shot followed by another shot fired by Muhammad Azeem. Both these shots did not hit the deceased. The deceased became unconscious and all the appellants ran away from the scene of occurrence. According to the complainant, he and the eye‑witnesses did not intervene on account of fear and reached the shop of Muhammad Aslam after the departure of the appellants. The deceased was being brought to the police post when on the way he succumbed to his injuries.

The motive for the commission of crime as stated in the FIR is that the appellants owed a sum of Rs. 22,000 to the deceased and on the morning of the fateful day, the complainant and the deceased both had gone to Main Bazar at the shop of Atta Muhammad and demanded the said amount in presence of the appellant Abdullah. Atta Muhammad appellant refused to pay money and tried to assault the complainant and the deceased, but on account of the intervention of other persons no harm was caused to the complainant and the deceased. According to the complainant on account of the grudge borne by the appellants due to the demand of the money by the deceased, the appellants had killed the deceased.

4. Dr. Inam‑ul‑Haq Khan P.W. 2, Surgeon in the District Headquarters Hospital Mianwali performed the post‑mortem examination on the dead body of the deceased and the following injuries were observed:‑‑

(1) A lacerated wound 41/2 cm x 2 cm into bone deep on the back of head, right side of head 5 cm behind the ear.

(2) A fire‑arm wound 3/4 x 3/4 cm x chest cavity deep on the back central line at 7th rib.

(3) A gun shot wound on the back near second lumber vertebra, 1 cm from the central line, measuring 3/4 cm x 3/4 cm deep on the abdomen and spinal cord.

On internal dissection, right pleura, right lung and pericardium were injured. A pellet was removed from the pericardium. Another pellet was recovered from the spinal cord. In the opinion of the doctor, injury No. 1 was caused by blunt object, while injuries Nos. 2 and 3 by a fire‑arm. The death in the opinion of the doctor took place due to internal haemorrhage and shock. All the injuries were declared to be sufficient in the ordinary course of nature to cause death.

5. From the spot a blood‑stained brick P.11 was secured and the same was taken into possession vide Memo. Ex. PL dated 8‑8‑1980 attested by Ghulam Qadir P.W. 11, Muhammad Shafi (not produced) besides Altaf Hussain Sub -Inspector P.W.

14. A .12 bore crime empty P. 9 was also secured from the spot and was taken into possession vide Memo. Ex. PQ attested by Ghulam Qadir

P.W. 11, Muhammad Shari (not produced) and Altaf Hussain, Sub‑Inspector P.W. 14.

6. On 18‑8‑1980, the appellants were produced before the. Investigating officer, who arrested them on the said day. On 23‑8‑1980, Atta Muhammad appellant while in police custody led to the recovery of A .12 bore pistol carbine P. 5 from the Chubara of his house, and the same was taken into possession vide Memo. Ex.PF attested by Hadayet Muhammad PW.8 and Atta Muhammad (not produced) besides Altaf Hussain, Sub‑Inspector P.W.

14. A licensed .12 bore gun P. 6 and its licence P. 7 in the name of Muhammad Azim appellant was also produced before the Investigating Officer and the same was taken into possession vide Memo. Ex.PJ attested by Hadayet Muhammad P.W. 8 and Atta Muhammad (not produced) besides Altaf Hussain, Sub‑Inspector P.W.

14. On 31‑8‑1980, appellant Abdullah while in police custody led to the recovery of gun P. 8 from his house and the same was taken into possession vide Memo. Ex. PH attested by Muhammad Suleman P.W. 9, Haji Ahmed Din (not produced) and Altaf Hussain Sub‑Inspector P.W. 14.

On 18‑8‑1980 crime empty was sent to the Forensic Science Laboratory through Said Qasim P.W.

1. On 24‑8‑1980 carbine P. 3 was sent to the Forensic Science Laboratory. Vide report of the Ballistic Expert Ex. PJ, it was opined that the said empty was fired from the said carbine.

7. At the trial the prosecution sought to establish its case through ocular testimony furnished by Ghulam' Qadir P.W. 12, complainant, brother of the deceased and Muhammad Aslam P.W. 13, in whose shop the occurrence had taken place. Three more eye‑witnesses were cited in the FIR but they were not produced. Besides the ocular testimony the prosecution also relied upon the evidence as to the motive and the recoveries.

8. When examined under section 342, Cr.P.C. all the appellants denied the charges against them and stated that they have been falsely implicated. Atta Muhammad appellant however, made the following statement:‑‑

"Mst. Amiran is the wife of Ghulam Qadir complainant. The complainant family is engaged in smuggling gold, silver and weapons.

There were applications to the higher authorities about their nefarious activities, and the complainant suspected that Mst. Amiran was leaking out the family secrets to me, and I was responsible for the moving of applications. Furthermore, my uncle had divorced a cousin of the complainant and so for these grudges we have been falsely involved."

9. With the assistance of the learned counsel, we have carefully gone through the record of this case and we have also heard the contentions raised by the learned counsel for the appellants and the State.

10. The perusal of the ocular account furnished by P.W. 12 Ghulam Qadir and Muhammad Aslam. Khan P.W. 13 is consistent. The claim of Ghulam Qadir P.W. 12 is that he alongwith three given up eye‑witnesses had reached the corner of the Chowk from Gali Kalurian and had witnessed the occurrence, while Muhammad Aslam P.W. 13 stated that he was present in his shop and was busy in talking with the deceased when the appellants appeared on the scene and killed the deceased. The eye‑witnesses had further stated that according to them a Lalkara was raised by Abdullah appellant, whereupon, Muhammad Akram appellant had picked up a brick and had hurled the same at the deceased which had hit him on the back. It was after hurling of the brick bat that Atta Muhammad appellant fired two shots hitting the deceased' on his back, whereas Abdullah and Muhammad Azeem had fired one shot each in the air and thereafter the appellants disappeared. A careful scrutiny of the evidence reveals that Muhammad Aslam P.W. 13 is at least a disinterested, independent and natural witness, because the occurrence had taken place in his shop. The blood stained earth was also collected from the shop of P.W. 13 Muhammd Aslam, therefore, his presence in his own shop is not open to doubt. Nothing was brought on the record to show that P.W. 13 Muhammad Aslam Khan had a motive to falsely implicate the appellants. It was, however, suggested that since the day of occurrence fell on a Friday, therefore, shop of Muhammad Aslam Khan was not open and the case has been fabricated. We have considered this aspect, but we repel this contention, because it is not unusual for a shopkeeper to open his shop for sometime on a holiday and particularly the recovery of blood‑stained earth from the said shop establishes that the shop was open and the occurrence had taken place therein. Ghulam Qadir P.W. 12 was cross‑examined at length with regard to the route adopted to reach the place of occurrence from his house and its location and the witness satisfactorily explained these features. It was strenuously argued that since Ghulam Qadir P.W. 12 had not stated in the FIR that Muhammad Aslam P.W. 13 was present in his shop and witnessed the occurrence, therefore, his testimony should be discarded. We have carefully considered this aspect of the case, and we do not find any merit in it, because the omission to state the name of P.W. 13 Muhammad Aslam in his shop is insignificant and immaterial in this case, because without the presence of Muhammad Aslam P.W. 13, the shop could not have been opened and the blood stained earth could not have been collected if shop had been closed.

11. A suggestion was given which was admitted by the complainant P.W. 12 that his first cousin Mst. Aisha was married to Sher Muhammad, uncle of Atta Muhammad in 1940 and she was divorced. It was further suggested that on account of enmity and grudge over the divorce, the appellants have been falsely involved. The said suggestion was denied, and furthermore, nothing was brought on the record to show any untoward or unpleasant incident between the families since 1944 till. 1980, hence, this suggestion which has also been elaborated by appellant Atta Muhammad in his statement under section 342, Cr. P.C. has no substratum of truth and is a farsighted plea.

12. It was further argued that the deceased was a smuggler and bad character and had employed two sons of one Muhammad Shat to overawe and terrorise the people. Through F.I.R., Exs. DH and DJ produced in his defence and from a report submitted under section 173, Cr.P.C. it appears that the sons and a few other family members of Muhammad Shafi were bad characters and they were not being used by the deceased as his tools. This circumstance alone is not sufficient to infer that the appellants had been falsely implicated on a capital charge. In fact, no previous enmity has been shown to exist directly between the complainant and the appellants. Another suggestion was given to the complainant I that his wife Mst. Amiran was proceeded against by him on the charge of theft. I The complainant admitted it, but stated that subsequently reconciliation had taken place between him and Mst. Amiran. It was also suggested that Mst. Amiran had been leaking out the secrets of the complainant to Atta Muhammad appellant, and therefore, the complainant suspected Mst. Amiran and Atta Muhammad for the applications moved against him for the smuggling of gold. The complainant categorically stated that he did not suspect Atta Muhammad. It was further suggested to P.W. 13 Muhammad Aslam that he was a party man of Amir Abdullah Rokhri whereas the appellants belonged to the party of Sher Afgun and since both the groups were inimically disposed towards each other, therefore, at the behest of Amir Abdullah Rokhri, this false case has been planted. The suggestion was refuted, and we are not prepared to believe that in such like party factions, a false case of murder would be registered to implicate I the appellants through substitution.

13. As far as the recoveries in this case are concerned, the recovery of carbine (pistol) P. 5 at the instance of Atta Muhammad is proved from the statement of Hadayet Muhammad PW. 8 and Altaf Hussain Sub‑Inspector PW.14. The testimony of Hadayet Ullah has impressed us, though he is a relative, but that by itself is not sufficient to discard his evidence. This pistol was sent to Forensic Science Laboratory, and according to the report Ex. PJ the empty recovered from the spot was opined to have been fired from this pistol. It is further pertinent to mention that the empty was sent to the Laboratory before the despatch of carbine, therefore, the participation of Atta Muhammad appellant stands proved beyond any shadow of doubt. As far as Akram appellant is concerned, he had initiated the attack by hurling a brick bat at the deceased, which hit the back of the deceased followed by attack with lethal weapons. Akram appellant after having hurled the brick bat had also fired two shots at the deceased. The injury with the brick bat is proved by the medical evidence. The two fire‑arm injuries received by the deceased have been consistently proved to have been fired by Atta Muhammad. As far as Abdullah and Azeem are concerned, they were alleged to have fired shots in the air. No empty fired from their guns was recovered from the spot. For the safe administration and dispensation of justice, we are of the view that the appellants Atta Muhammad and Akram had participated and had attacked the deceased in furtherance of their common intention. As far as Abdullah and Azeem appellants are concerned, their participation is not free from doubt, and accordingly by giving benefit of doubt to Abdullah and Azeem we acquit them of the charge and set aside their conviction and sentences.

14. As far as Atta Muhammad appellant is concerned, in our view he had fired two fatal shots and, therefore, he deserves no leniency. Accordingly, we dismiss the appeal of Atta Muhammad appellant, and confirm the death sentence awarded to him by the trial Court. The sentence of fine awarded to him is also maintained. Coming to the case of Muhammad Akram appellant he had acted in furtherance of the common intention in committing the murder of the deceased. He does not deserve the extreme penalty of death. Accordingly, we dismiss the appeal preferred by him, but alter his sentence from death to life imprisonment. The sentence of fine awarded to him is also maintained.

15. The upshot of the above discussion is that the appeal to the extent of Atta Muhammad and Muhammad Akram appellants is rejected. The appeal to the extent of Abdullah and Azeem appellants is allowed. They shall be set at liberty forthwith if not required in any other case. The death sentence of Atta Muhammad appellant is confirmed, while the sentence of death awarded to Akram appellant is altered into life imprisonment, and his sentence of death is not confirmed.

SA./A‑277/L

Appeal partly accepted.