MUHAMMAD NAWAZ Versus THE STATE

Appellant Muhammad Nawaz (26) and his brother Shameer (35), sons of Muhammad Azam, cultivators of village Shadia in the area of Police Station, Musakhel, were put on their trial on a charge under section 302/34, P.P.C. for committing murder of Muhammad Hayat son of Ahmad, their co-villager, before the Sessions Judge, Mianwali. By judgment dated 10th March, 1976, presently under appeal, appellant Muhammad Nawaz has been convicted and sentenced to life imprisonment. He was also ordered to pay a sum of Rs. 500 as compensation under sec tion 544.A, Cr. P. C. to the heirs of the deceased. Co-accused Shameer was however, acquitted. One Bahadur son of Sher Muhammad was also, challaned in the case. But he was discharged under section 209, Cr. P. C. by the Committing Magistrate.

2., The occurrence in question allegedly took place at 2-30 p.m. on 24th February, 1974 in the area of village Shadia and the matter was report ed to the Police on the same day by Ahmad P. W. 7, father of the deceased at 5-00 p. m. F.I.R. Exh. P.A. was recorded by Sabir Hussain P. W. 9 Head (Constable at Police Station, Musakhel which is at a distance of 20 miles from the place of occurrence.

3. Prosecution case in brief is that a year before the occurrence Mst. Khadeja wife of the appellant had been abducted by the deceased. At the time of this abduction she was not yet married with the appellant. A ca se under section 363/366, P. P. C. (Exh. P. W- 10/A) was registered inter alia, against the deceased on the complaint of Muhammad Khan, father of Mst. Khadeja. She was restored to her parents. Some six months thereafter, she was married to the appellant. A month after the marriage, the appellant chopped off her nose and a case under section 326, P.P.C. (Exh. P. W. 10/B) was registered against him. The appellant suspected that Mst. Khadeja had been contemplating to elope with the deceased again. This served as a motive for the present occurrence.

4. On 24th February, 1974 there was a Kabbadi match in the land known as Ghappi situate in the outskirts of village Shadia. Ahmad P. W. 7, father of the deceased, his son Muhammad Hayat deceased, brothers Muhammad P. W. 8 and Jan (not examined), went to witness the Kabbadi match. It was about 11-00 a. m. when the match had started and had finished at about 2-30 p. m. On the close of the game, they all went back to their village. They had hardly covered a distance of 24 or 25 karams when suddenly appellants Muhammad Nawaz and his brother Shameer co-accused both armed with -12 bore pistols, appeared from the eastern side. Appellant Muhammad Nawaz fired a shot hitting the deceased on his left upper arm. He fell down and succumbed to the injuries. The accused then ran back towards the direction from where they had appeared. The matter, as indicated above, was reported to the Police.

5. Sabir Hussain Head Constable after recording the report went to the spot. He prepared injury statement Exh. P J and inquest report Exh. P Kin respect of the dead body of Muhammad Hayat and despatched it to the mortuary for post-mortem examination. He collected blood stained earth from the spot and made into a sealed parcel vide memo Exh. P B. He handed over the investigation to S. I. Mian Falaksher (P. W. 10) on 26th February, 1974. S. I. Falaksher got site-plan Exh. P C and its duplicate Exh. P C/1 prepared from Muhammad Khan Patwari P. W.

5. On 25th March, 1974, he arrested the three accused from Adda Shadia. On the personal search of Muhammad Nawaz appellant, he recovered unlicensed pistol P. 5 from the fold of his loin cloth and a live cartridge P. 6 from his pocket. The articles were taken into possession vide memo Exh. P F. Raja Ali Gohar, S. H. O. submitted challan against the appellant and Bahadur (since discharged). Shameer accused was however, placed in Column No. 2 of the challan as he was found innocent and his plea of alibi was accepted during the investigation.

6. Dr. Muhammad Qasim P. W. 1 conducted post-mortem examina tion on the dead body of the deceased. He found the following injuries on his person ;--

(1) Five fire-arm wounds of entry within an area of 3 " radius, each measuring x on the outer aspect of the left arm, 4" below the left. shoulder joint.

(2) Five fire-arm wounds of exit in an area of 4" radius, each wound measuring " x " on the medial aspect of the left arm.

(3) Five fire-arm wounds of entry, each measuring " x " within an area of 4" diameter over the lateral aspect of left chest, corresponding to the five wounds of exit of injury No. 2.

On the examination of the thorax, 5th and 6th ribs on the left side of the chest were fractured ; wall was perforated at places of injury, Chest cavity was full of blood. One pellet was recovered from the left chest wall under the skin. Another pellet was recovered under the sternum bone. Left pleural cavity was damaged. Another pellet was recovered from the left chest cavity and one from the right chest wail. Pericardium was perforated at three places. Left chamber was punctured at two places and right chamber was. perforated at two places. The stomach contained six ounces of semi-digested food. Small intestines contained traces of digested food and bladder was empty. Large instestines were full of faecal matter. Injury No. 3 was fatal caused with a fire-arm. Injury No. 1 was grievous. Left humerous bone was fractured at the level of Injury No. 1. Death in the opinion of the doctor, occurred due to shock and haemorrhage as a result of Injury No. 3, which was sufficient to cause death in the ordinary course of nature. Probable time between the injuries and death was immediate and that between death and post-mortem was 20 to 22 hours.

7. The appellant at the trial, pleaded innocence and refuted the allegations. He denied that Mst. Khadeja was ever betrothed to him or that she was his wife. He hewever, admitted that she was once abducted by the deceased. He admitted that he was involved in a case under section 326, P. P. C. for chopping off the nose of Mst. Khadeja but stated that he had been falsely implicated in the case and was discharged. He pleaded that he has been involved in this case due to enmity. He did not lead any evidence.

8. The prosecution, at the trial, relied on the ocular evidence of Ahmad P. W. 7. father of the deceased and Muhammad P. W. 8, deceas ed's uncle ; recovery of pistol P. 5 ; motive and finally the medical evidence.

9. The learned trial Judge has rejected the motive. Recovery of pistol P. 5 was found to be of no avail to the prosecution as it was not connected with the killing of the deceased. He accepted the testimony of the two eye-witnesses and found that the medical evidence supported the ocular testimony in regard to the time of death and the location of injuries. Accusation against Shameer co-accused, according to the learned trial Judge, was as the result of some confusion. There was no evidence against him and he was accordingly, acquitted.

10. Learned counsel for the appellant, in support of this appeal, argued that the prosecution evidence having been disbelieved qua Shameer the same should not have been accepted qua Muhammad Nawaz unless corroborated by some supporting evidence. The motive having been dis believed and the recovery not being of any avail to the prosecution, there had been no corroborative piece of evidence against the appellant. The prosecution, in the circumstances, has failed to bring home guilt to the appellant beyond reasonable doubt. The medical evidence could not be used as a piece of supporting evidence.

11. I have considered the arguments of the learned counsel for the appellant and also counsel for the State and have gone through the record. I am not inclined to agree with the learned counsel for the appellant and do not find any merit in any of the contentions.

12. I feel that the finding of the learned trial. Judge that the pro secution has failed to establish motive is open to review. The main reason for this finding is that according to the learned trial Judge the prosecution has failed to establish that Muhammad Nawaz appellant and Mst. Khadeja were "spouses'". He did not accept the statement of Ahmad P. W. about the marriage of the appellant with Mst. Khadeja as no nikahnama had been produced. Even the nikah khawan or the witnesses of the nikah were not examined. The learned trial Judge did not seem to have carefully read the contents of F.I.R. Exh. P. W. 10(B. This is an F. I. R. under section 326, P. P. C. lodged by Muhammad Khan, father of Mst. Khadeja on 17th July, 1973 against the appellant. In this case he had stated that Mst. Khadeja had been married with Muhammad Nawaz son of Muhammad Azam, a month before. According to this F.I.R. therefore, the marriage had taken place in or about June, 1973. Appellant Muhammad Nawaz has admitted his involvement in the case. This supports the complainants version that the appellant had married Mst. Khadeja, 6/7 months after the abduction case. F.I.R. in the abduction case was registered on 31st December, 1972. It was not the prosecution case that at the time of abduction Mst. Khadeja was living as wife of the appellant. The lodging of the F. I. R. in the abduc tion case by father of the lady was quite natural. No adverse inference therefore, could be drawn from the fact that the F.I.R. in the abduction case was lodged at the instance of the father. I am of the view that the prosecution has been able to establish that Mst. Khadeja was a wedded wife of the appellant and she had once been abducted by the deceased. Appellant Muhammad Nawaz, therefore, could have motive for the attack on the deceased.

13. The defence has not seriously questioned the factum that there was a kabbadi match on the day of occurrence. It is a matter of common knowledge that people living in villages do invariably go to witness such matches. The presence of Ahmad and Muhammad P. Ws. in the area, therefore is not open to a serious doubt. The medical evidence corro borates the ocular account in regard to the time of occurrence and the manner of attack and the type of weapons used. According to the witnesses of the spot. the deceased was fired at by a .12 bore pistol from a close range hitting him at the left upper arm. There are five wounds of entry within an area of 3 " radius. There are corresponding exit wounds on the medial aspect of the left arm. Again there are five wounds of entry near the lateral aspect of the left chest. A lay man could have been misled as to the number of shots although he had in fact seen the occurrence. Both the eye-witnesses claim that the deceased was hit at only by a single shot. They could not form such a precise opinion as merely seeing the wounds and witnessing the actual firing. In any case, the existence of motive lends support to the ocular account of the occur rence. Motive alone would not be sufficient to corroborate the ocular testimony yet in the whole body of proof it is an important piece of evidence. It will not be sine qua non for bringing the guilt home to the A accused yet it is relevant and important on the question of intention. Generally, volunteer acts of sane persons are not without motive. The existence of motive, therefore, have a great significance in a criminal trial.

14. On the contrary, if we accept the finding of the learned trial Judge that the prosecution has not been able to establish motive, no difficulty will he left in accepting the ocular testimony. There is not even a slightest suggestion that there was any acrimony much less any animosity between the parties why should then the witnesses implicate the appellant. Mere relationship of the witnesses with the deceased has often been not accepted as a ground to discredit their testimony. It was held in Shihab Din v. State (P L D 1964 S C 177) that--- "the mere relationship of witnesses does not necessarily render a witness's account of the occurrence doubtful provided his on the spot is proved beyond doubt. In so far as there were on the bodies of two witnesses and the number of persons accused was not out of proportion to nature of their enterprise and the results they produced the witnesses din the circumstances were entitled to be believed."

15. For all that has been stated above, I feel that no exception an be taken to the judgment of the trial Judge in recording the conviction against the appellant and I concur with it. I do not find any merit in the e appeal and dismiss the same. The conviction and sentences of the appel lant are maintained.

Appeal dismissed