ATTA MUHAMMAD Versus GHULAM MUHAMMAD

1. USMAN ALI SHAH, J.‑‑ These two connected appeals, one bearing criminal appeal No.205 of 1980, filed by Atta Muhammad appellant and the other bearing criminal appeal No.206 of 1980 filed by appellant Mukhtar, arise by special leave, from the judgment of the Lahore High Court dated 17‑4‑1979, whereby the death sentence of Mukhtar appellant awarded to him by the learned Sessions Judge Sargodha, was confirmed and his appeal was dismissed while the appeal of his co‑accused, Ghulam Muhammad against his death sentence was accepted and he was acquitted. The revision of the complainant filed against the acquittal of Dossa and Ali was also dismissed by the High Court by the same judgment.

2. The prosecution story, briefly stated, is that on 3‑11‑1974 at about 1100 hours Ahmad Khan deceased, his son Atta Muhammad (P.W.12) and his son‑in‑law Bashir deceased, were sitting on the benches at the platform of Railway Station Hazoorpur and waiting for a train for Bhera, where they have to offer condolences to one Fazal Ilahi Piracha on the death of his, wife. ‑Meanwhile, appellant Mukhtar and Ghulam Muhammad and their companions cane over there. Mukhtar appellant and Ghulam Muhammad and Ali were armed with shotguns while Dossa with a rifle. They were seen by Atta Muhammad (P.W.12). Mukhtar appellant shouted telling Bashir deceased that he had come, whereupon Bashir deceased got up. Mukhtar appellant then went close to the benches and fired at Bashir deceased hitting him on the left side while Ali accused fired at Ahmad Khan deceased hitting him on his right thigh. Ghulam Muhammad alias Gulla also fired at the deceased Ahmad Khan hitting him in his chest. Ahmad Khan fell down and Dossa then went to him and placed the barrel of his gun in his left ear and fired. Atta Muhammad (P.W.12) ran away and took shelter behind a tree. Mukhtar appellant fired at him. He was hit in the left knee. After the incident, the accused decamped from the scene of occurrence. Bashir and Ahmad Khan deceased both died on the spot.

3. Atta Muhammad (P.W.12) went to the Police, Post (Railway) Malakwal and lodged a report of the occurrence at 2.15 p.m. The case was registered in the Police Station (Railway) Lala Musa on the same evening at 7.15 p.m.

4. S.I. Muhammad Hussain. (P.W.15) Incharge of (Railway) P.P.Malakwal visited the spot. The S.I. collected 5 empties (Exs.P 3/1‑3, P.4 and P.5) from different places at the platform. Accused Mukhtar was arrested by the police on 8‑11‑1974 while Ghulam Muhammad, Ali and Dossa accused were arrested on 10‑11‑1974. Mukhtar and Ghulam Muhammad accused led the police to their houses and produced gun (EX.P.1) from the house of Mukhtar accused and (EX.P.2) from the house of Ghulam Muhammad accused. Five empties and the guns were sent to the Forensic Science Laboratory Lahore for opinion and the opinion returned was that 3 cartridges were fired from the gun recovered from Mukhtar and one cartridge case matched with the gun recovered from Ghulam Muhammad. No opinion was given as regards the fifth cartridge.

5. Dr. Muhammad Iqbal (PW.18) conducted autopsy on the dead bodies of the two deceased. He found 5 fire‑arm injuries on the dead body of Ahmad Khan deceased and two fire‑arm injuries on the dead body of Bashir deceased. In his opinion death of both the deceased was the result of fire‑arm injuries and that the injuries suffered by them were sufficient in the ordinary course of nature to cause their deaths. He further opined that deaths of the deceased were instantaneous due to injuries suffered by them.

6. The same Dr. also examined Atta Muhammad for his fire‑arm injuries and found the same simple in nature.

7. The learned trial Judge found Mukhtar and Ghulam Muhammad accused guilty of the offence and sentenced them to death He also found the two accused responsible for the fire‑arm injuries suffered by Atta Muhammad and sentenced each one of them to 2 years' R.I. and‑ a fine of Rs.300 or in default 2 months' R.I. Ali and Dossa were acquitted.

8. As stated above on appeal filed by the two accused, the High Court acquitted accused Ghulam Muhammad and maintained the death sentence of Mukhtar appellant by the impugned judgment.,

9. The learned Judges of the High Court believed only the evidence of Atta Muhammad (PW.12) observing that the other witnesses were chance witnesses residents of remote places. They also disbelieved the evidence of P.W. Atta Muhammad against accused Ghulam Muhammad and in this behalf observed that Ghulam Muhammad had no enmity whatsoever with the deceased party, nor was he related to either party, therefore, it was unlikely for him "that he would arm himself with a gun, go to a crowded place like a railway platform and shoot down in broad daylight two persons with whom he had no enmity whatsoever . The learned Judges also referred to the evidence of PW Atta Muhammad wherein he admitted that accused Ghutam Muhammad and his father had appeared as witnesses for the prosecution against his brother in the case relating to the murder of the father of Mukhtar appellant. Thus the learned Judges came to the conclusion that the possibility, that Ghulam Muhammad might have been falsely involved in the case on account of the part he and his father played in the earlier case, cannot be ruled out. The learned Judges also doubted the recoveries of the guns from the houses of the accused Ghulam Muhammad and appellant Mukhtar. They observed that according to the evidence on record, Hazoorpur is fairly big city but not a single person belonging to that village was asked to testify that the recoveries‑ of the guns were made in his presence. On the other hand, one Muhammad Yunus (PW.10) a resident of another village was persuaded to testify the alleged recoveries of the guns from the houses of the two accused. S.I. admitted in his cross‑examination' that a large number of persons of village Hazoorpur were present, but he was unable to furnish any explanation as to why he picked up Muhammad Yunus of another village to testify the recoveries. Thus in our opinion the learned Judges of the High Court were right in rejecting the testimony, as regards the alleged recoveries of the guns and this being the position, they rightly acquitted Ghulam Muhammad. In view of the fact that he had no motive to kill the deceased the recovery of gun from his house was also doubtful.

10. As regards Mukhtar appellant, it is clear that he had motive to kill the two deceased. About 7 years' prior to the occurrence in the present case, Zahoor the brother of Bashir deceased had killed the father of appellant Mukhtar. Zahoor was convicted and sentenced to life imprisonment. The presence of Atta Muhammad on the spot at the time of occurrence cannot be doubted. He alleged in unequivocal terms that appellant Mukhtar shouted to Bashir deceased that he had core to avenge the murder of his father. Thereafter he fired at hid which hit him, resulting in his death on the spot. The occurrence took place in broad daylight and as the appellant had motive to kill the deceased, there can be no question of mistaken identity to be attributed to PW Atta Muhammad the more so as he bears the stamp of fire‑arm injuries on his person. We are, therefore, left in no manner of doubt that Mukhtar appellant was responsible for enacting the tragedy and the learned judges of the High Court rightly rejected the appeal of Mukhtar appellant and confirmed his death sentence. They also rightly upheld his sentence awarded to him for the injuries suffered by Atta Muhammad P . W .12.

11. We are now left with the question of sentence. The learned counsel for the appellant urged that Mukhtar was a young man of 17 years' of age at the time of occurrence and has been in the jail since 3‑11‑1974 (i.e., for more than 13 years) out of which he is lodged in the death cell since 23‑1‑1977 (i.e. for 11 years). The long delay in the disposal of the appeal for more than 13 years is a fact to be taken into consideration alongwith the fact that some heirs of Bashir deceased i.e. his brother Zahoor, the killer of the father of Mukhtar appellant and the son of the deceased have entered into compromise. So we are of the opinion that it would be consistent with the ends of justice to substitute the death sentence of the appellant to imprisonment for life on two counts and fine imposed on the appellant is enhanced to Rs.10,000 on each count or in default two years' R.I. on each count. The sentence of two years' awarded to the appellant in fire‑arm injuries to P.W. Atta Muhammad and a fine of Rs.300 or in default 2 months' R.I. is also maintained. The benefit of Section 382‑B Cr.P.C. should be extended, to the appellant while computing his sentence of imprisonment. The sentences of imprisonment for life shall run, concurrently.

12. This appeal with the above modification is dismissed and as regards the revision application the same ipso facto also fails and is accordingly dismissed.

13. M.Y.H./A‑266/S Appeal dismissed.