MUMTAZ ULLAH KHAN Versus STATE
IJAZ NISAR, J.‑‑ Mumtaz Ullah son of Hamid Ullah Khan, Imtiaz Ullah, Saif Ullah, Sana Ullah and Aziz Ullah were tried for the murder of Fateh Khan deceased. By judgment dated 11‑5‑1987 the learned Sessions Judge, Bhakkar convicted Mumtaz 11llah under section 302, P.P.C. and sentenced him to death and to pay fine of Rs. 20,000 or in default to undergo 5 years R.I. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased. The other accused were given the benefit of doubt and acquitted.
Mumtaz Ullah has appealed against his conviction and sentence while the learned trial Court has made a reference for confirmation of the death sentence. Muhammad Ashraf complainant has filed an appeal challenging the acquittal of Imtiaz Ullah and Saif Ullah.
All the matters shall be disposed of by this judgment.
2. The prosecution case is that Fateh Muhammad deceased was an accused in a dacoity case. On 4‑1-1986 he alongwith Muhammad Ashraf P.W.1, Dost Muhammad P.W.2 and Rab Nawaz (not examined) was proceeding towards his house after attending the Court of Ch. Muhammad Nawaz, MIC, Bhakkar. At about 10‑30 a.m. when he reached near the petrol pump of Pirachas', Mumtaz Ullah Khan appellant, his brothers Imtiaz Ullah and Saif Ullah carrying .12 bore pistols came there. Saif Ullah challenged him that they had come to avenge the murder of their father and fired a shot hitting the deceased on the front of the left shoulder. Mumtaz Ullah appellant fired the second shot hitting the deceased on the face and neck as a result of which he fell down. Imtiaz Ullah Khan then fired a pistol shot at his back. Saif Ullah fired another shot on the deceased hitting on his left flank. The accused then ran away with their weapons. Muhammad Ashraf and Dost Muhammad P. Ws pried the deceased to the Civil Hospital, Bhakkar in an injured condition but before any medical aid could be given to him, he expired. Muhammad Ashraf P.W. left for the police station but met Malik Sultan Sikandar S.I. (since dead) on the way. He reported the matter to him by making statement Exh. PA. Formal F.I.R. Exh. C.W.3/A was recorded by Malik Muhammad Zareef Head Constable C.W.3. According to Muhammad Ashraf his brother had been murdered at the behest of Mumtaz Ullah and Aziz Ullah (acquitted accused).
The motive for the offence was that Hamid Ullah Khan, father of the accused, was murdered in 1983 for which Fateh Khan deceased, his brother Muhammad Ashraf P.W, and their father were challaned and acquitted.
The police recovered three empties of .12 bore from the spot and picked up a mould on 4‑1‑1986. They arrested Mumtaz Ullah appellant on 14‑1‑1986 and recovered 12 bore pistol CW.6/A at his instance from the reeds. It was sent to the Forensic Science Laboratory for comparison with the crime empties but it did not match with them. The report of the Firearm Expert is CW.12/B (page 21 of the paper book). No recovery was made from the other accused.
As a result of the investigation the police found only Mumtaz Ullah appellant guilty and the other accused to be innocent and did not arrest them. Consequently, Muhammad Ashraf P.W. filed a complaint Exh. P.D. The learned Court summoned Imtiaz Ullah, Saif Ullah, Sana Ullah and Aziz Ullah accused besides the appellant to face trial.
3. Dr. Inam‑ul‑Haq P.W.5 conducted the post‑mortem examination on the dead-body of Fateh Khan deceased and found the following injuries thereon:‑‑
(1) Lacerated wound on the middle of the head on the front 2 x 1 c.m. deep to the muscle.
(2) ??????? A gun shot firearm wound on the left angle of the mouth ? c.m. x ? c.m. deep to the mouth cavity, on the nose 1 x 2 c.m. abrasion on the left side of the nostril, there were multiple abrasions, near the nose 2 x 1 c.m. wound of entrance on the left cheek 2 x 1‑ ? c.m. and also near the nose and also another wound of entrance at the left cheek near the nose ? x ? c.m. Wounds of the exit at the left lower jaw towards neck. Three in number in the area of 7 c.m. near the neck, these were the pellet wounds on the neck side.
(3) Three wounds of gun shot firearm on the left side of the front of the chest parallel to left clavicle 2 c.m. below the clavicle in the area of 7 c.m., two inches below the three round pellet wounds in the area of 4 c.m., and two in the area of armpit near the shoulder., These were eight wounds of entrance on the chest cavity, in the front. Two of them were through and through in the chest cavity and 3rd rib was fractured.
(4) A wound on the chest cavity at the back of left side. There were 4 wounds of entrance ? x ? & 2/3 x 2/3 c.m. deep into chest cavity and 4 ribs were fractured there. Three of these wounds were deep to the chest cavity.
(5) Wound of entrance at the iliac crest 3 x 3 c.m. deep to the abdomen. Direction of the wound was upward and intestines were protruding out.
All the injuries were ante mortem. The death was due to shock and haemorrhage consequent upon firearm injuries.
4. The accused denied the prosecution allegations and stated that the deceased had many enemies and that some unknown person had killed him while he was alone.
Mumtaz Ullah appellant stated that he was found as a Constable at Police Station, Isa Khel and was entrusted with summons for service and that after effecting the service of the P. Ws he delivered them back in the Thara.
Imtiaz Ullah Khan stated that he was not present at the spot but had gone to attend the Qul ceremony of Dr. Amir Abdullah Khan in village Bittian, District Mianwali and that he had produced 37 persons before the police who had sworn on the Holy Quran about his innocence.
Saif Ullah Khan who was also a Police Constable pleaded alibi stating that he was present on duty in Afghan Camp, Kot Chandna.
Sana Ullah Khan and Aziz Ullah Khan accused also pleaded innocence. Aziz Ullah Khan who is an ASI of Police stated that he was posted at P.S. Ichhra, Lahore and that he remained present on duty from 1‑12‑1985 to 5‑1‑1986. Sana Ullah Khan was also a police employee who stated that he alongwith other police officials was deputed on special duty on the visit of Chief Minister of Punjab at Talib Wala Pattan, .District Sargodha and that he returned from there on 6‑1?1986.
Haji Muhammad Amir Khan D.W.1 stated that Imtiaz Ullah Khan accused was present with him at the Qul ceremony of Dr. Amir Abdullah Khan on the day of occurrence. Imtiaz Ullah Khan accused produced the death entry of Dr. Amir Abdullah Khan, copy of the F.I.R. No. 193 dated 7‑7‑1978 under section 302, P.P.C. Exh. DJ, copy of F.I.R. No. 174 dated 20‑6‑1976 Exh. DK and certified copy of the interim order dated 4‑1‑1986.
5. To prove its case, the prosecution examined Muhammad Ashraf P.W.1 and Dost Muhammad P.W.2 as ocular witnesses. According to them they were accompanying the deceased at the time of occurrence. Muhammad Khan P.W.3 and Mani Khan were examined to prove conspiracy among the accused to murder Fateh Khan deceased. Abid Hussain Shah ASI C W6 and Sher Rasool F.C.CW. 7 were examined to prove the recovery of .12 bore pistol from Mumtaz Ullah Khan appellant. Isab CW.4 and Faiz Ullah Khan CW.5 proved recoveries from the spot.
6. Relying on the motive, the ocular testimony of Muhammad Ashraf and Dost Muhammad the learned trial Court convicted Mumtaz Ullah appellant as described above. Saif Ullah Khan was acquitted on the basis of the documents Exhs. DH and DI. It was observed that it was not possible for him to have come to the spot from Kot Chandna which was about 150 miles from there. Imtiaz Ullah Khan was acquitted on the basis of the evidence of Haji Muhammad Amir Khan D.W.1 and Daood Butt CW.13. The conspiracy of Sana Ullah and Aziz Ullah with the other accused for the murder of Fateh Khan deceased was no, proved and as such Sana Ullah and Aziz Ullah were acquitted.
It will not be out of place to mention here that the learned counsel for the complainant concedes that the prosecution has not been able to prove its case and it was for this reason that appeal against their acquittal was not pressed.
7. It is contended that the eye‑witnesses examined by the prosecution were interested and inimical and there is absolutely no corroboration of their testimony. The recovery of pistol from the appellant is of no consequence as it had not matched with the crime empties recovered from the spot. Independent persons running business near the spot were examined as Court witnesses but they did not support the prosecution.
8. Muhammad Ashraf P.W.1 is real brother of Fateh Khan deceased while Dost Muhammad P.W. is their uncle. The former was an accused with the deceased in the murder case of the appellant's father. Both Muhammad Ashraf and Dost Muhammad were chance witnesses. They were not accused in the dacoity case with the deceased making it necessary for them to have accompanied him. If Muhammad Ashraf had been accompanying the deceased the accused would not have spared him because they were equally motivated against him. No witness of the locality has supported the ocular version. Ghulam Abbas, Muhammad Bakhsh, Muhammad lqbal and Alain Sher who run business near Piracha Petrol Pump were examined as Court witnesses but none of them supported the prosecution version. The deceased was involved in criminal cases of serious nature. Besides dacoity case he was also an accused in an abduction case which was also pending when the occurrence in question had taken place. Thus the possibility of his having been done to death by other persons cannot be altogether ruled out. The complainant has tried to throw the net too wide by implicating the appellant and his four real brothers in the occurrence. Except for the appellant the others were found innocent by the police in the investigation. After having been disbelieved in respect of majority of the accused strong independent corroboration was required of the testimony of Muhammad Ashraf P.W.1 and Dost Muhammad P.W.2 but the same is not available. As already stated above, the recovery of pistol which could furnish the necessary corroboration failed to help the prosecution for its non‑matching with the crime empties recovered from .the spot. The motive is a double‑edged weapon. If the appellant and his brothers had a motive against the deceased, they were equally interested against them.
9. For the foregoing reasons, the prosecution has failed to bring home guilt to the accused beyond all reasonable doubt. Accordingly, we accept the appeal, set aside the conviction and sentence of Mumtaz Ullah Khan appellant and acquit him of the charge. He shall be released forthwith if not required in any other case.
10. The death sentence is not confirmed.
11. The appeal against the acquittal of Imtiaz Ullah and Saif Ullah also fails and is dismissed.
N.Q.H./M‑2070/L ?????????????????????????????????????????????????????????????????????????????? Appeal accepted.