MUHAMMAD AYUB Versus STATE
Gul Muhammad Khan, J- Muhammad Ayub son of Abdullah, who had been sentenced to death, under section 302, P.P.C. by the learned Additional Sessions Judge-1. Mianwali, and fined a sum of Rs.5,000 or in default of payment of fine to undergo one year R.I. for the murder of Shafiullah Khan, has filed this appeal. Another appeal (Crl. A. 477-80) has been filed by him against his conviction under the Arms Ordinance. The complainant has filed a revision petition (Crl. R. 537-80) against the appellant, for enhancement of fine, and the two co-accused, to set aside their acquittal. A reference under section 374, Cr.P.C. has also been sent up by the trial Court for confirmation of the death sentence. This order shall dispose of all the four cases.
2. The occurrence of the incident took place at 5.30 p.m. on 1st September, 1977, near the bridge of a Rajbah in the Nai Abadi, Daud Khel, .at a distance of one mile from P.S.Daud Khel. Shafiullah Khan who was injured in this occurrence, was being taken on cot when Muhammad Rashid S.I., met at 6.30 p.m, on the way. He stated before him vide Exh. P.A. that he was going on his motor-cycle from Daud Khel to Sikandarabad to purchase some household material at 5.30. When he reached the bridge of Rajbah Ara Machine, he saw the appellant armed with a pistol .12 bore, Shafiullah son of Dalasa Khan armed with a pistol and Sarfraz son of Ahamd Khan, Pathan, emerging from the house, situate on the left side of the metalled road.
3. Ayub appellant fired a shot which missed. His other two companions exhorted him that the deceased may not escape alive. The complainant deceased then allegedly stopped his motore-cycle, while Muhammad Ayub fired the second shot which hit the deceased on his back. Muhammad Nawaz son of Haq Nawaz, Sakhawat Hussain son of Ghulam Qasim and Ahmad Khan son of Draz Khan, caste Pathan, residents of Daud Khel who were coming from the Railway Station, after alighting from the train, saw the occurrence. The appellant and his co-accused, however, made good their escape on seeing them.
4. The motive, according to the deceased was that his brother Zakaullah had got registered a case under section 379, P.P.C against the three accused on 17th August, 1977 for the theft of his money. The case was being pursued by the deceased and consequently, he was injured for his said act. Muhammad Rashid, S.I. (P.W.11) who recorded the statement in the Market Main Bazar of Sikandarabad sent it to the Police Station for the registration of a case. The formal F.I.R. was then recorded by Shah Pasand, Moharrir Head Constable, at 6.45 p.m., at the Police Station, which is at a distance of 150 yards as stated by Muhammad Rashid, SI/SHO.
5. The S.H.O. prepared the injury statement (Exh. P.L) and forwarded Shafiullah Khan for his medical examination to the Civil Hospital, Kalabagh. He then went to the spot, took into possession, motor-cycle, with its accessories, vide memo Exh. P.E. He also picked up two crime empties Exhs. P.6 and P.7 from near the spot and made them into sealed parcel vide memo. Exh.P.F.
6. The S.H.O., came to know of the death of Shafiullah Khan on the next day and proceeded to the Civil Hospital, Kalabagh to prepare the injury statement (Exh.P.M.) and inquest report (Exh. P.N.). The dead body was then sent to the mortuary at Kalabagh. The accused were arrested by Muhammad Rashid S.I. (P.W.11) on 6th September,1977, when they appeared before him at the police station. During investigation on 7th September, 1977, the S.H.O. recovered a .12 bore country-made pistol (P.8) at the instance of the appellant near a kiln of Muhammad Akbar. He took the same into possession vide memo. Exh. P.G. the recovery was witnessed by Motiullah Khan (P.W.7) a cousin of the deceased and Akhtar Khan who was not examined.
7. Dr. Jamshed Alam who was then posted as Medical Officer, Kalabagh, had medically examined Shafiullah aged 25 years and noted the following two injuries:-
(1 ) Five firearm wounds of entry 1 /3" x 1 /4" in an area of 31" x 2" on the back of left chest and lumbar region, 6" below the lower angle of the left scapula and 2" outer to mid-axillary line.
(2) One firearm wound of entry 1/3" x 1/4" on the back of left chest 2 " above injury No.1 and 2 " outer to mid-axillary line. The wound was bleeding.
The patient was semi-conscious and his blood pressure was 60, his pulse was thready feeble and 100 per minute. He noticed that the injury was caused by a firearm within a probable duration of six hours. However, finding that the condition of the patient was serious, he forwarded him to the District Hospital, Mianwali. On the next day, he received a chit Exh. P.J. from Dr. Muhammad Akram Khan, Medical Officer, Mianwali informing that Shafiullah had expired at 4-15 p.m., and that his dead body had been sent to him for post-mortem examination.
8. On 2nd September,1977 the same Doctor (P.W.10) conducted the post-mortem examination finding the same injuries as described above. However, on opening the thorax, he found the walls of the chest perforated at the site of injuries, 7th left back rib was fractured. Both the pleurae were perforated at various places and the cavity contained 3 Lbs. of blood and was pale. The lower lobe of the right lung was perforated through and through while the lower and the middle lobe of the left lung was perforated and the cavity contained about 2 ounces of blood. Left ventricle was lacerated and both the chambers were empty. Inferior venacava were perforated near, the heart. The left lumbar region in the abdomen was also perforated. The peritonium was perforated at various places. The diaphragm was also perforated. The stomach was also perforated and was stitched. Pancreas were lacerated. Small intestines were healthy. The liver was perforated through and through. The left kidney was lacerated.
9. According to the doctor, the death was due to shock and haemorrhage caused by injuries Nos. 1 and 2, damaging the lungs, pleurae, peritonium, stomach, liver, inferior venacava, etc. and was sufficient to cause death in the ordinary course of nature.
10. the prosecution supported its case by producing Sakhawat Hussain (P.W.8) and Ahmad Khan (P.W.9). Ahmad Khan (P.W.9) is the uncle of the deceased. He is related to him in other ways also. Sakhawat Hussain, however, is not related. Muhammad Nawaz Khan, who was a cousin of the deceased was given up as unnecessary. The report of Examiner of the Firearm (Exh. P.Q.) showed that .12 bore crime empties marked as C/1 to C/2 had been fired from the .12 bore pistol.
11. The appellant denied his participation in the occurrence. He also denied the alleged recovery of pistol at his instance and stated that the witnesses had deposed dure to enmity with him and relationship with the deceased. All the accused pleaded innocent and did not produce any evidence in defence. The learned Additional Sessions Judge noticed that the two eye-witnesses had improved upon the statement of the deceased so as to make Shafiullah and Sarfraz accused, also vicariously liable, alongwith the appellant. Further, finding no corroboration he acquitted, the co-accused but found the appellant responsible for the murder.
12. The learned counsel for the appellant argued that it was an unseen incident for the reason that no blood-stained earth had been recovered; the crime empties and presence of eye-witnesses and motor-cycle is not mentioned in the inquest report; and there was no relation of the deceased with the dead body when it was produced before the S.H.O.
13. He also assailed the genuineness of the F.I.R. on the ground that as the deceased was semi-conscious, according to the P.W. 10 Dr. Jamshed Alam, when he examined him in injured condition, on 1st of September, 1977, at 7.30 p.m., he could not make a coherent statement. The veracity of Sakhawat Hussain (P.W.8) was also assailed on the plea that he was a chance witness and even partisan as he had been challaned in the security proceedings at the report of a brother of the appellant Muhammad Ayub and bound down thereafter. Similarly, he contested the reliability of the deposition of Ahmad Khan (P.W 9) as he was also a chance witness, apart from being an uncle of the deceased and related to him in many other ways. The statements of the private recovery witnesses P.W.6 and Matiullah (P.W.7) were also challenged for the reason that Samiullah was son of P.W.9 and he and Matiullah were also cousins of the deceased.
14. The grounds raised by the learned counsel for the appellant, however, have no merit. It was a day time occurrence, taking place on all thorough fare. The witnesses also knew the accused. There was, therefore, no question of mistaken identity. Sakhawat Hussain P.W.8 is not related to the complainant party and is, therefore, an independent witness. He fully supported the prosecution case. The first information report was lodged without delay. The two eye-witnesses have given an ocular version which has not been, in any way, shaken in the cross-examination. In fact their version is fully corroborated by the medical evidence. After going through the site plan and the statements one is led to the conclusion that a person who had not seen the occurrence would not have given such a precise account. It will be useful to refer back to paras. 7 and 8 above wherein the description of injuries by DP.Jamshed Alam (P.W.10) has been given. It may be seen that these injuries could be caused only from an angle from which the shots were fired and only an eye-witness could say so. We are, therefore, not pursuaded to accept that the two witnesses had not seen the occurrence.
15. The above finding is further supported by the report of the firearm expert. It will be noticed that Muhammad Rasheed, SI (P N.11) had picked up two crime empties P.6 and P.7 from near the spot on 1st September, 1977, in the presence of Samiullah (P.W.6). He handed over them to Shah Pasand, H.C. (P.W.1) on 2nd September, 1977, who gave the same parcel to Hayat F.C. (P.W.2) on 3rd September. He delivered the same to the Forensic Science Laboratory on the next day. The Sub-Inspector (P.W.11) also recovered pistol (P.8) at the instance of the appellant on 7th September, 1977 in the presence of Matiullah (P.W.7). He gave the same to Hayat (P.W.2) on 11th September, 1977 who further delivered that to Forensic Science Laboratory, on the following day. According to the reports Exh. P.O. and P.0/1 of the Forensic Science Laboratory, the two crime empties had been fired from the .12 bore shot-pistol.
16. The learned counsel then submitted that the prosecution version is belied by the obvious reason that if a person fires one shot by a .12 bore pistol, he shall have to reload it to fire again and the deceased who was on the motor-cycle, in the meanwhile would get out of the range of the firearm. This argument may have some merit if it is presumed that the first shot was fired when the deceased was just opposite the assailants. However, a perusal of the statement of the two eye-witnesses and the deceased would show that this contention has no force. The deceased, according to his own statement, had seen the assailant. This means that he must be away from them on an acute angle. After receiving the first shot he according, to the prosecution stopped but even if he did not, he might have come on the other side with back to the assailants when he received the second shot. The position being explained by the eye witnesses, therefore, is not impossible.
17. In any case, the enmity being alleged between the parties is not such that the witnesses would let the real culprit go free and rope in an innocent person. This position is further strengthened from the fact that the witnesses attributed both the shots to the same accused, thought one of two others was also carrying a fire-arm. Had the intention of the witnesses been to involve their enemies they could have easily attributed the second shot to the second accused. We, therefore, have no reason to accept the contention that the appellant had been involved due to enmity.
18. Again, the plea, that the omission on the part of the S. H.O. to mention in the inquest report the names of witnesses, the presence of the motor-cycle and crime empties, adversely affects the prosecution case, is not sound. Shafiullah did not die at the spot but in the hospital, on the next day and it was there that his inquest report was prepared. The plea of the appellant, that there was no relation of injured present while he was brought before the S.H.O. is also not correct. The witnesses stated that his father and other relations had reached the spot. In fact there is a suggestion also made by the defence to Muhammad Rashid, S.I. (P.W.11), in reply to which he stated:
"It is incorrect to suggest that the deceased was semi-conscious at the time when he was brought to him and 1 recorded his statement Exh. P.A. after conniving with his relatives."
20. Again reliance by the learned counsel on the statement of the doctor that the injured was semi-conscious, at the time he was examined by him, at 7.30 p.m., would not show that he was semi-conscious even at 5.30 p.m. when he was brought before the S.H.O. The fact that the S.H.O. declined the suggestion on this aspect further shows that the same is not correct. Similarly, there is- not much merit in the objection that no blood-stained earth was recovered from the spot. The deceased was going on the metellad road. May be no blood could be scrapped. In any case, the fact the motor-bike and the crime empties were recovered from there would not mislead one about the scene of occurrence. Again, it was a day-light occurrence and so there could be no doubt about it.
21. Now we take up the revision petition. The case of the prosecution against the two co-accused is that they were accompanying the appellant. One of them was armed with a fire-arm while the other was empty handed. The only part attributed to them is that they exhorted the appellant to kill and not to let the deceased escape. This, however, appears doubtful. If all of them had come with the common intention of killing the deceased there was no occasion for the co-accused to remind the appellant. Further, Shafiullah respondent being also armed with a pistol must have automatically fired alongwith the appellant. As undoubtedly, no overt act other than exhorting is attributed to them, we have no good reason to differ with findings of the learned Additional Sessions Judge.
22. The upshot of the whole discussion is that there is no case made out against the respondents in the revision petition, while the appellant had been rightly convicted. His appeal, therefore, have no merit and are dismissed. As a result, we also confirm the death sentence awarded to him by the learned Sessions Judge and decide the reference under section 374, Cr.P.C. accordingly.
M. Y. H. Appeal dismissed.