MUHAMMAD ANWAR KHAN Versus STATE

MUHAMMAD SIDDIQUI, J . According to the prosecution, the brief facts of the case are that on 9‑9-1970, at about 9 a.m. Saifullah deceased along with his brother Wazir Muhammad Khan P.W. was returning from Mianwali and going towards his house in village Ballo Khel. On the way, Mehar Khan P.W. also met him. Wazir Muhammad Khan and Mehar Khan stopped and started talking about the return of money which Mehar Khan had taken is a loan from Wazir Muhammad Khan. However Saifullah deceased con tinued walking further. When he reached near the graveyard of Major Ghulam Hassan, the present appellants armed with guns after scaling over the wall of the said graveyard, challenged the deceased and simultaneously fired at him hitting him on or near his right cheek. On the receipt of these injuries, Saifullah fell down. Wazir Muhammad Khan and Mehar Khan P. Ws. raised alarm whereupon both the appellant ran away alongwith their weapons of offence. The occurrence is also alleged to have been seen by one Rabnawaz (given up P.W.). After the departure of the accused persons, the P. Ws reached near the deceased who had already breathed his last. Leaving Mehar Khan and Rabnawaz on the spot to look after the dead body, Wazir Muhammad Khan P. W. went to Police Station Saddar Mianwali, where he lodged the F. I. R. (Exh. P.A.) at 9‑30 a.m. on the same day. S. H. O. Ayub Shah after recording the report, reached the spot, prepared the injury statement (Exh. P. E.) and inquest report (Exh. P. F.) of the deceased and despatched the dead body to the mortuary for post‑mortem examination. He collected blood‑stained earth and sealed it into a parcel vide Memo Exh. P. B. In spite of his best efforts and continuous search the Investigating Officer could not trace the appellants. Accordingly, he applied to the Illaqa Magistrate vide application dated 11‑9‑1970 for the issuance of warrants of arrest against both the appellants. After obtaining the requisite warrants, he made efforts personally as well as through his staff to get them executed against the appellants, but they could not lay their hands upon them. On 24‑9‑1970, the Investigating Officer returned the warrants of arrest unexecuted and at the same time initiated proceedings under sections 87/88 of the Code of Criminal Procedure against the appellants in the Court of the Illaqa Magistrate, Mianwali. After recording the necessary evidence, including the statement of the Process Server, the Magistrate declared both the appellants as proclaimed offenders and issued the necessary proclamation. The appellants still were not available. On 9‑10‑1970, the Investigating Officer submitted challan (Exh. P. W. 14/A) under section 512, Cr. P. C. against both the appellants. The Investigating Officer also got prepared site plan (Exh. P. J.) from the Draftsman. Subsequently, he was transferred from that Police Station. S. I. Muhammad Khawaja Hassan Khan (P. W. 9) arrested Anwar Khan appellant on 27‑2‑1973 from near the Power House, Mianwali. On 26‑3‑1973, he arrested Ghulam Sarwar Khan appellant from Pakka Kirarwala: and also recovered from his possession unlicensed gun (Exh. P. 7) alongwith two live cartridges (Exh. P. 8/1‑2) which were taken into possession vide Memo. Exh. P. H. After the usual investigation both the appellants were challaned under section 302/34, P. P. C. They were tried by the Additional Sessions Judge, Mianwali, who vide the impugned judgment dated 16‑12‑1974 convicted both of them under section 302/34, P. P. C. for the murder of Saifullah and sentenced each of them to death subject to confirmation by this Court. Each of the appellants was further sentenced to pay a fine of Rs. 1000.00. The amount of fine, if realized, was ordered to be paid to the heirs of the deceased as compensation under section 544‑A.. Cr. P C Muhammad Anwar Khan appellant has challenged his conviction and sentences through Criminal Appeal No. 71 of 1975, while his brother Ghulam Sarwar Khan appellant has sled separate Criminal Appeal No. 'i2 of 1975. The case is also before us under section 374, Cr. P. C. for confirmation of the sentences of death awarded to the appellants by the trial Court. This judgment will dispose of both the Criminal Appeals as well as the Murder Reference.

2. Dr. Abdul Majid on 9‑9‑1970, at 3‑20 p.m. conducted the post- mortem examination on the dead body of Saifullah and found the following injuries on it :‑‑‑

(1) A gunshot wound of entry 3 x 3 on right cheek and lower part of right side of neck. The edges were lacerated and the right side of jaw bones shattered.

(2) A gunshot wound of entry 1/4' x 1/4' on right upper part of cheek going into it.

(3) A gunshot wound of entry 1/4' x 1/4' on right side of neck.

(4) Three gunshot wounds of exit on the back of chest on upper part in middle. Each 1/3' x 1/3‑

Death in the opinion of the doctor occurred due to shock and haemorrhage. All the injuries were sufficient to cause death in the ordinary course of nature and were caused by a firearm. Probable time between injuries and death was within ten minutes, while between death and post‑mortem examination was within 12 hours.

3. The appellants when examined under section 342, Cr. P. C. denied the prosecution allegations and stated that they were involved due to enmity with the P. Ws. Muhammad Anwar Khan appellant when asked whether soon after committing the murder of Saifullah, he absconded till 27‑2‑1973, stated as under :‑

"I never absconded. I live with my family at Kundian where my brother Ghulam Sarwar had a shop and a house."

When asked why this case was made against him, he stated as under :‑

"Due to enmity with the P. Ws. My brother Ghulam Sarwar co‑accused abducted Mst. Wazir Khatoon who was brought up by the elder brother of the deceased, namely, Ahmad Khan. which created ill‑will between us and the complainant‑party as a result of which we shifted from Ballo Khel and went to Jhang and from there we went to Kundian and settled down there."

Similarly, Ghulam Sarwar Khan appellant stated that he never absconded, but lived with his family at Kundian where he owned a house and was running a shop. When asked why this case was made against him, he stated as under : ‑‑

"Due to enmity with the P. Ws. I abducted Mst. Wazir Khatun who was brought up in the house of Ahmad Khan, a brother of Saifullah deceased. I then migrated from Ballo Khel and went to Jhang from where I came to Kundian and settled down there alongwith all my family members."

When asked if he had anything else to say, he stated as under :‑

"I am innocent. Rabnawaz P. W. who was cited as an eye‑witness, was given up at the trial for the reason that while appearing before the C. M. he had conceded that the deceased was riding a bicycle when the occurrence took place."

When asked if he would produce any evidence in defence, he stated as under :‑

"Yes. I tender in evidence the sale deed dated 12‑4‑1969, having been executed by Muhammad Azam in my favour."

4. In support of its case, the prosecution produced two eye‑witnesses, namely, Wazir Muhammad Khan (P. W. 12) and Mehar Khan (P. W. 13). The prosecution further relied upon the motive and abscondence. The trial Court believed the prosecution evidence and convicted and sentenced the appellants as mentioned above.

5. As stated above, the ocular evidence consists of the statements of Wazir Muhammad Khan (P. W. 12) and Mehar Khan (P. W. 13). The former is the real brother of the deceased, but Mehar Khan is not in any way related to the deceased. According to the learned defence counsel, the ocular evidence has been wrongly believed by the trial Court. After minutely scrutinising the statements of these two eye‑witnesses, we do not agree with the learned defence counsel. Mehar Khan P. W. has stated that on the day of occurrence at about 9‑00 a m. he had come from his village Khishkan to Mianwali and when he reached near the Slaughter House, he carne across Wazir Muhammad Khan P. W. and his brother Saifullah deceased. Wazir Muhammad Khan P. W. stopped for having a talk with him, while Saifullah deceased continued moving further. According to him, Wazir Muhammad Khan P. W. demanded his loan from him. Meanwhile, Saifullah deceased had reached near the graveyard of Major Ghulam Hassan. The witness saw that all of a sudden the present appellants armed with guns confronted Saifullah deceased after scaling over the wall of the said graveyard. Both the appellants raised a lalkara at the deceased that he would not be spared and simultaneously they fired from their guns hitting the deceased. On the receipt of these fire shots, the deceased fell on the ground and expired on the spot. The appellants then ran away alongwith their weapons of offence. After the departure of the appellants, Mehar Khan P. W. alongwith Wazir Muhammad P. W. and Rabnawaz (given up P. W.) went near the deceased and found him already dead. As men tioned above, Mehar Khan P. W. has no direct relationship with the deceased. He has, however, admitted in cross‑examination that he had acquaintance with Wazir Muhammad Khan P. W. and his family since child hood. He has further admitted that he had taken loan from Wazir Muhammad Khan P. W. for the purchase of a bullock a few months before the present occurrence. On the basis of these admissions, it is argued by the learned defence counsel that even this witness Mehar Khan cannot be termed as an independent and disinterested witness. No doubt, Mehar Khan had lone, acquaintance with Wazir Muhammad Khan P. W. and even otherwise his dealings with him were also quite cordial, but this itself will not be suffi cient to discard has testimony. Wazir Muhammad Khan P. W. undoubtedly is closely related to the deceased, being his real brother. He has also stated that the present appellants suspected Saifullah deceased of having illicit rela tions with their sister Mst. Khan Bibi 7 or 8 months prior to the occurrence for which they bore a grudge against him. He has admitted in cross‑examina tion that his relations with the accused persons were strained since 6/7 months before the present occurrence. It is further admitted by him that Ghulam Sarwar Khan appellant after abducting Mst. Wazir Khatun had married her. Mst. Shakiran, sister of the said Mst. Wazir Khatun, is quarried to the brother of this witness. Ghulam Sarwar Khan appellant in his statement before the trial Court has admitted that he abducted said Mst. Wazir Khatun who was brought up in the house of Ahmad Khan, a brother of Saifullah deceased and Wazir Muhammad Khan P. W. After this he claims to nave migrated from village Ballo Khel to hang from where he came to Kundian and settled down there alongwith his family members. After going through his statement. we find that Wazir Muhammad Khan P, W. apart from being closely related to the deceased, also had some enmity with the appellants. We are, however, conscious of the fact that the appel lants and the deceased are also closely related to each other. Although both the eye‑witnesses are not quite independent, yet their presence on the spot at the relevant time stands established beyond any doubt. They could not be expected to falsely implicate the present appellants anal let off the real assai lants as suggested by the defence. It is not denied that now‑a‑days substitution rather difficult. Keeping in view the social conditions of the local tribes of Mianwali District, these witnesses have been rightly believed by the trial Court and conviction can be maintained on their testimony, as in such area, so called independent and disinterested witnesses are not generally available. The moment an independent witness appears for a party, he ceases to be independent aced is treated as partisan. However, as an abundant caution, we would not maintain the present convictions on the statements of these witnesses alone unless the same are corroborated by some independent and disinterested evidence.

6. The most important corroborative piece of evidence available on the record against the appellants is their abscondence. As stated above, the occurrence took place on 9-9‑1970. Muhammad Anwar Khan appellant was arrested on 27‑2‑1973, while Ghulam Sarwar Khan appellant was arrested on 26‑3‑1973. Ghulam Sarwar Khan appellant in his statement under section 342, Cr. P. C. has stated that he never absconded, but lived with his family at Kundian where he owned a house and was running a shop. Muhammad Anwar Khan appellant has also denied that allegation and has Mated that he lived with his family at Kundian where his brother Ghulam Sarwar Khan appellant bad a house and a shop. It is not denied that Kundian is not far off from the place of occurrence. Both the places are located in the same area and are in Mianwali District. As mentioned above the appellants and the deceased are also related to each other. They, there fore, must have known the murder of Saifullah deceased. It is not believable that they would not know this murder during the period of about two and a half years. Generally, news of a murder in a village spreads like fire in the jungle and is known to the whole area within no time. In the instant case, at least the relatives of the deceased must have known this murder. We are not, therefore, prepared to believe the statements of the appellants regarding their abscondence. On the other hand, the prosecution has positively proved through the statements of Gul Nawaz (P W. 4), Nawab Khan (P. W. 5) and Ayub Shah, Investigating Officer, that in spite of their best efforts, the appel lants could not be traced out and served with the warrants. Proceedings under sections 87/88, Cr. P. C. were also initiated against the appellants and finally proclamation was also issued. In spite of the best efforts of the pro secuting agency, the appellants could not be served, with the relevant warrants. After going through the statements of these witnesses and taking into consi deration the other relevant circumstances, we are absolutely clear in our mind that the present appellants had intentionally avoided their arrest and, therefore, had absconded. The abscondence of the appellants has been proved through independent source. The witnesses mentioned above no doubt belong to the Police Department, but they had no motive to make a false report against the appellants. In performance of their normal duty, they found that the appellants were not available for service. The defence has miserably failed to bring on record any material against these witnesses. In the absence of any such material or allegation against them, we feel no hesitation to hold that the prosecution has proved the abscondence of the appellants beyond any shadow of doubt. It is well settled now that abacon dence can be used as corroboration.

7. Another corroborative piece of evidence available in this case and relied upon by the prosecution is the motive. Wazir Muhammad Khan com plainant has stated in the F. I. R. as under :‑

In his statement before the trial Court, the complainant has stated as under :‑

"The accused suspected the deceased of having illicit relations with their sister Mst. Khan Bibi 7/8 months before this occurrence and on this account they bore grudge against the deceased."

Muhammad Amir Khan (P. W. 11) is the other witness produced by the prosecution in support of the motive. In examination‑in‑chief, this witness has stated as under :‑

"I know both the accused who are real brothers. About 5/6 days be fore the present occurrence both Ghulam Sarwar and Muhammad war accused came to my house and asked me to dissuade saifullah deceased from carrying on with their sister Mst. Khan Bibi. I promised them to do so. About one or two days before the present occurrence, I contacted Saifullah deceased in this connection who, denied the allegation and told me to appease the accused that he would not give them any chance of complaint. Muhammad Khan P. W. was also present there at that time."

Muhammad Amir Khan P. W. is neither related to the deceased nor inimical towards the appellants. In any case, the defence has not been able to bring: on record any material or circumstances to show either his interest in the complainant or animosity against the appellants. Both the appellants in their statements under section 342, Cr.P. C. when put this question, have denied this allegation. After hearing the counsel for the parties and going through the relevant material available on the record, we have reached the conclusion that the trial Court has rightly believed the motive against the appellants. We also endorse that view. According to the prosecution, it was for the motive that the deceased was done to death by the present appellants. This is also another corroborative piece of evidence available against the appellants which among others, is supported by Muhammad Amir Khan (P. W. 11) who is an independent and disinterested witness.

8. The doctor who performed the post‑mortem examination on the dead body of Saifullah, found four injuries on it. The nature and location of these injuries found by the doctor also corroborate the eye‑witnesses. According to the eye‑witnesses, the deceased was fired at by both tae appel lants on or near his right cheek. The injuries found by the doctor are gun shot wounds and on the same region of the body as given by the witnesses. The prosecution, therefore, can legitimately use the medical evidence also as corroborative piece of evidence.

9. After going through the entire material available on the record and hearing the counsel for the parties, we have reached the conclusion. that tile prosecution has established the guilt of the present appellants beyond any shadow of doubt. They have beet rightly convicted by the trial Court under section 302/34, P. P. C. for the murder of Saifullah. We also maintain their conviction. However, as regards the sentence, we are not inclined to confirm the sentence of death imposed upon the appellants by the trial Court. The motive alleged by the prosecution in tae F. I. R. and subsequently proved through reliable witnesses, is that the appellants had suspected the deceased of having illicit relations with their sister Mst. Khan Bibi and for that reason they bore a grudge against him. This happened 7/8 months prior to the occurrence. According to the F. I. R. although said Mst. Khan Bibi was married with one Ataullah Khan about five months prior to the occurrence, yet she continued visiting Ballo Khel even after her marriage. A clear inference from this is that in spite of the fat that the appellants got their sister married elsewhere, her illicit relations with the deceased continued even after her marriage, as she continued visiting village Ballo Khel. We have believed this motive against the appellants. On the basis of this motive, it is vehemently argued by the learned defence counsel that in our society, especially among the Pathans of that area including Mianwali District, suspision of such illicit intimacy with one's sister, daughter or wife is con sidered to be great dishonour to the whole family. Mr. Nemat Khan, the learned counsel for the State, also joins hands with the defence counsel. After believing the motive of the prosecution and keeping in view the local social conditions among the Pathans in Mianwali District, we feel that the motive alleged by the prosecution serves a good mitigating circumstance in favour f lesser penalty. Reliance in this behalf can safely be placed on the following observations of their Lordships of the Supreme Court in Umar Hayat's case (P L D 1966 S C 602).

" The evidence also proved that Muhammad Zaman had illicit connection with the wife of Umar Hayat's brother, and since a question of family honour affecting a female was involved. it was a matter for consideration whether, having regard to the fact that Umar Hayat belonged to a Pathan tribe of the Western District of Mianwali, the lesser sentence of transportation for life was not more appropriate in the case."

Ultimately, their Lordships held as under ;‑‑

"The ground of intercity of the sentiment an long people of his class, which is aroused through interference by a man who is a stranger to the family with a woman belonging to the family, is in our view, suffi cient in the circumstances of this case for avoiding the penalty of death, and replacing it by the lesser sentence of transportation for life. We entertain no doubt that this sentiment will never be dimi nished, in the slightest degree, by any number of death sentences'.

In another case reported as (Muhammad Ramzan v. The State) their Lordships were pleased to observe as under :‑

"It was also urged that in cases where the honour of their womenfolk is involved, male members of the family in the rural areas feel under an imperative obligation to vindicate the family honour by resort to violence. In this case it had been clearly admitted that the deceased Abdul Rashid had interfered with the chastity of a girl belonging to Allah Dad's family. That is a circumstance of which notice may appropriately be taken by the Courts after nearly a century of admi nistration of the law relating to murder in cases of this kind."

In the instant case also the question of family honour was involved, as the deceased was suspected of having illicit intimacy with the sister of the appel lants. Accordingly, we feel that ire the peculiar circumstances of the case, lesser penalty of life imprisonment will meet the ends of justice. Therefore, while maintaining the conviction of the appellants under section 302/34, P. P. C. for the murder of Saifullah, we alter the sentence of death to life imprisonment. We also remit the sentence of fine as the financial position of the appellants appears to be poor, as they have not even engaged their own counsel. The defence counsel is at the Government expense.

10. Both these appeals stand disposed of in the above terms.

Order accordingly.