MUHAMMAD NAWAZ Versus THE STATE
1. IJAZ NISAR, J .‑‑ Muhammad Nawaz, aged 15/16 years (18/1 year as per opinion of the trial Court), his brother Ahmad Nawaz aged 14/15 years (17/18 years as per trial Court's opinion) and their cousin Muhammad Yaqub, aged 20/21 years, son of Dost Muhammad and their friend Dost Muhammad, aged 26 years, son of Yar Muhammad appellants were tried alongwith Haq Nawaz son of Hayat (80/85), Khan Zaman son of Nur Khan (29), Muzaffar Khan son of Muhammad Khan (35), Akbar Khan son of Sher Zaman (30), Fateh Khan son of Sher Zaman (27) and Aslam Khan son of Sher Zaman (23) (since acquitted) by the learned Sessions Judge, Mianwali for the murder of Mst. Alam Khatoon (40) and for murderously assaulting Mehar Khan complainant. Vide order, dated 29‑1‑1981, the learned Sessions Judge convicted Muhammad Nawaz, Ahmad Nawaz, Muhammad Yaqub and Dost Muhammad under section 302‑307‑447/34, P.P.C. and sentenced them as under:
(a) Muhammad Nawaz.‑‑ Death and a fine of Rs.2,000 or in default to undergo 2 years' R.I. under section 302/34, P.P.C.
(b) Ahmad Nawaz, Muhammad Yaqub and Dost Muhammad.‑Imprisonment for life and a fine of Rs.2,000 each or in default to undergo 2 years' R.I. each under section 302/34, P.P.C.
(c) All the appellants were further convicted and sentenced to three years' R.I. each under section 307/34, P.P.C. and three months' R.I. each under section 447/34, P.P.C.
2. All the sentences were ordered to run concurrently. The fine, if realised, was to be paid to the heirs of the deceased as compensation. The other accused were, however, given the benefit of doubt and acquitted.
3. This order will dispose of the murder reference and the appeal filed by Muhammad Nawaz, etc.
2. Muhammad Nawaz and Ahmad Nawaz appellants are brothers, Muhammad Yaqub appellant is their daughter's son while Dost Muhammad appellant was their friend. Muhammad Nawaz and Ahmad Nawaz are the grandsons of Haq Nawaz (since acquitted), Akbar Khan, Fateh Khan and Aslam Khan accused are real brothers and first cousins of Muzaffar Khan accused.
3. Mst. Alam Khan deceased her sister Saher Bano, Aslam and Abdullah had purchased 179 Kanals of land from Alam Khan situated in Khasra Nos.2915/757 to 760 and Khasra Nos. 832 to 842. Haq Nawaz accused (since acquitted) had also purchased 119 Kanals from the said Khasra. The complainant party was in cultivating possession of their land. Mehar Khan complainant was cultivating the land of his wife Mst. Alam Khatun etc. as a tenant. Haq Nawaz and the other accused wanted to get possession of 50 Kanals cultivated land belonging to Mst. Alam Khatun deceased from the Southern side which led to the present incident. On 19‑7‑1979 at 7 a.m. Mehar Din complainant saw two ploughs working in the land of Mst. Alam Khatun. He went to that place followed by Mst. Alam Khatun deceased. Khan Zaman P.W.12, Nur Khan P.W.13 and Muhammad Khan (given up), Ahmad Nawaz and Muhammad Yaqub appellants were ploughing the land. When the complainant party neared them they ploughing and picked up their guns which were lying on the Banna. In the meantime, Muhammad Nawaz and Dost Muhammad appellants, Khan Zaman, Muzaffar Khan, Akbar Khan, Fateh Khan and Aslam Khan accused (since acquitted) also came their armed with guns and started firing. Mst. Alam Khatun deceased started running towards the North but was hit by the shots fired by Muhammad Nawaz and Muzaffar Khan. Khan Zaman, Nur Khan and Muhammad Khan P.Ws, also received injuries at the hands of other accused. Mehar Khan complainant saved himself by lying on the ground near a Banna. The accused then left the spot alongwith their ploughs while firing shots. Mst. Alam Khatun died at the spot. Leaving Alaf Din and Lai Khan at the spot Mehar Khan complainant left for the police station, Chakrala where he lodged F.I.R. Exh.P.R. at 8‑15 a.m. The distance between the spot and the police station being three miles. According to Mehar Khan P.W. the occurrence had taken place at the behest and directions of Haq Nawaz accused (since acquitted).
4. 3‑A. After recording the F.I.R. S.I. Muhammad Saeed P.W.14 reached the 'spot. He prepared the injury statement Exh.P.U. and the inquest report Exh.P.V. of Mst. Alam Khatun deceased. He also prepared the injury statements Exhs.P.X., P.Y. and P.Z. of Khan Zaman, Nur Khan and Muhammad Khan. He took into possession blood‑stained earth from the spot vide memo. Exh.P.D.
5. He arrested Haq Nawaz appellant on 20‑7‑1979 Dost Muhammad, Akbar Khan, Fateh Khan and Aslam Khan on 25‑7‑1979 and Muhammad Nawaz on 31‑7‑1979.
4. Akbar Khan (since acquitted) got recovered .12 bore pistol P.7 from his house on 30‑7‑1979 through memo. Exh.P.J. Fateh Khan (since acquitted) got recovered pistol P.8 through memo. Exh.P.K. while Asiam Khan got recovered .12 bore pistol P.9 from a Bhoosa stalk through memo. Exh.P.L. Gun P.10 was recovered from the possession of Muhammad Nawaz appellant on 31‑7‑1979 through memo. Exh.P.M. Dost Muhammad appellant led to the recovery of gun P.11 from the Kotha of Haq‑Nawaz on 1‑8‑1979 through memo. Exh.P.N.
5. Dr. Ashiq Ali, P.W.5, conducted post‑mortem examination on the dead body of Mst. Alam Khatun (40) on 19‑7‑1979 and found the following injuries thereon:
(1) A fire‑arm wound of entry with inverted edges c.m. x c.m. on front of neck. 2 c.m. above the inner end of right clavicle and 1 c.m. to the right of mid‑line.
(2) An exit wound with everted edges 3/4 x 3/4 c.m. on the upper part of right scapular region. The right scapula was fractured.
(3) A fire‑arm wound of entry 3/4 x 3/4 c.m. with inverted edges on from to fright lower chest 10 c.m. perpendicularly below the right nipple and 7 c.m. to the right of mid‑line.
(4) An exit wound 3/4" x 3/4 c.m. with everted edges on the lateral wall of right chest slightly at a lower level to injury No.3.
(5) A fire‑arm wound of entry 3/4 x 3/4 c.m with inverted edges on the lower most part of right hypogastrium 3 c.m. away from the mid‑line. A bullet was found embedded in the right pubic bone which was fractured.
(6) A fire‑arm wound of entry 3/4 x 3/4 c.m. with inverted edges on the upper most part of left thigh 5 c.m. below the left anterior superior iliac spine.
(7) An exit wound 3/4 x 3/4 c.m on upper most part of left buttock 3 c.m. away from mid‑line with everted edges
(8) A fire‑arm wound of entry 3/4 x 3/4 c.m. with inverted edges on the medial aspect of right forearm,. 7 c.m. below the right elbow.
(9) An exit wound 3/4 c.m. x 3/4 c.m. with everted edges at the level of injury No.8 and close to it on front of right forearm.
6. The first right rib was fractured from back due to injury No.1. The right 9th rib was fractured from front due to injury No.3. The right pleura was perforated due to injury No.1. The right lung was perforated due to injury No.1. The peritoneum was perforated due to injury No.5. The right dome of diaphragm was perforated due to injury No.3. The stomach had about 6 ounces of liquid. The small intestines had traces of digested food and the large intestines had some faecal matter. The bladder was empty.
7. Death was due to shock and haemorrhage on account of injuries Nos. 1 and 3. The injuries were ante‑mortem and were caused by fire‑arm. The pobable time between, injuries and death was about 5 to 10 minutes and that between death and post‑mortem was about 12 hours. Exh.P.E. is the post‑mortem report while Exh.P.E/1 is the sketch of the injuries.
8. On the same day he examined Khan Zaman P.W. and found the following injuries on his person.
(1) A fire‑arm wound of entry with inverted edges 3/4 x 3/4 c.m. on the medial aspect of left leg 12 c.m. above the left medial maleolus.
(2) An exit wound 3/4 x 3/4 c.m. with everted edges on front of left leg at the level of injury No.1.
9. The duration was about 12 hours. Both the injuries were simple in nature caused by fire‑arm. Their duration was 12 or 13 hours.
10. Muhammad Khan was also examined by him. The following injuries were found on his person"
(1) A fire‑arm wound of entry 3/4 x 3/4 c.m. with inverted edges on the lower most part of left buttock.
(2) An exit wound 3/4 x 3/4 c.m. on the medial aspect of mid‑line of left thigh with inverted edges.
(3) Contused wound 4 c.m. x 1 c.m superficial in nature on the medial aspect of right foot below the medial maleolus.
11. Injuries Nos. 1 and 2 were caused by fire‑arm while injury No.3 was caused by a blunt weapon. All the injuries were simple in nature.
12. He also examined Nur Khan P.W. and found the following injuries on his person:
(1) A fire‑arm wound of entry with inverted edges 3/4 x 3/4 c.m. on the antero medial aspect of right knee joint.
(2) An exit wound 3/4 x 3/4 c.m. with everted edges on the medial aspect of right thigh at the level of injury No.1.
13. The injuries were simple caused by fire‑arm.
6. The appellants pleaded not guilty to the charge and attributed se to enmity: Muhammad Nawaz appellant stated that he was not present at the spot. Ahmad Nawaz appellant gave the following account of the occurrence:
14. "It rained three days before the occurrence and on the day occurrence before morning prayers time Yaqub accused and I started for our land with one pair of bullocks. A t a distance of one mile Gulrang met us and told us that he was going to the Dera of Tore Khels. He accompanied us to the land and when we had ploughed about 3J or 4 Kanals of land, Gulrang started away for the West. When he was only 100 or 150 Karams from us, Abdul Sattar, Noor Khan, Muhammad Khan, Khan Zaman, Ghulam Muhammad, Alaf Din (P.Ws.) alongwith 4 or 5 women came towards us and the above male members started firing towards us. Gulrang returned and started firing at them while we taking along the bullocks ran away towards Chakrala. The deceased or the witnesses were not injured by us. The other accused were not at the spot."
15. Muhammad Yaqub appellant stated that his statement was the same as that of Ahmad Nawaz. He further stated that his right arm was incapacitated and he could not wield any weapon.
16. Dost Muhammad appellant also stated to have been involved on account of enmity. None of them produced any oral evidence in defence.
17. The prosecution examined 14 P.Ws. to prove its case. Dr. Ashiq Ali P.W.5 had conducted the post‑mortem examination and medically examined the injured P.Ws. Alaf Din P.W.6 deposed about the recovery of pistols at the instance of Akbar Khan, Fateh Khan, and Aslam Khan accused (since acquitted). Muhammad lqbal P.W.7 and Muhammad Shafi P.W.8 proved the recovery of guns at the instance of Muhammad Nawaz and Dost Muhammad appellants. Sher Rasul Patwari P.W.9 prepared the site plans and stated about the entries in the revenue record in respect of possession of the parties over the disputed land. Allah Yar P.W.10 deposed about the conspiracy of Haq Nawaz accused alongwith the other accused telling them to take forcible possession of the land of Mehar Khan complainant by ploughing it and to murder anybody putting up resistance. Mehar Khan P.W.11, Khan Zaman P.W.12 (injured) and Noor Khan (injured) P.W.13 furnished the ocular account. Muhammad Khan the third injured witness was given up as unnecessary, Yar Muhammad eye‑witness was given up as having been won over. S.I. Muhammad Saeed P.W.14 carried out the investigation.
18. The learned trial Court disbelieved the evidence of conspiracy and acquitted Haq Nawaz accused. Alaf Din P.W.6 who deposed about the recoveries at the instance of Akbar Khan, Fateh Khan and Aslam Khan accused was also disbelieved. Muhammad lqbal P.W.7 who testified to the recoveries at the instance of Muhammad Nawaz and Dost Muhammad appellants was also disbelieved on account of his close relationship with the complainant's family. However, the other recovery witnesses, namely, Muhammad Shafi P.W.8 and S.I. Muhammad Saeed P.W.14 were relied upon. The ocular account furnished by Mehar Khan P.W.11, Khan Zaman P.W., 12 and Noor Khan P.W.13 was belied so far as the appellants are concerned but it was disbelieved qua the five acquitted accused, namely, Khan Zaman, Muzaffar Khan, Akbar Khan, Fateh Khan and Aslam Khan. The motive was also found proved against the appellants,
19. Learned counsel for the appellants contends that the witnesses relied upon by the trial Court were highly interested and partisan and had been disbelieved in respect of six accused as such should not have been believed against the appellants without any independent corroboration. Further that the motive does not stand established and the complainant party has failed to show that they were in possession of the land in dispute. The recoveries of fire‑arms at the instance of Muhammad Nawaz and Muhammad Yaqub do not advance the case of the prosecution, being unconnected. No empty was recovered from the spot with which they could match. The complainant party had thrown the net wide to rope in all their adversaries in the case without realising that they could not join hands with one another because of their inter se enmities and hostilities.
20. Mehar Khan complainant P.W~11 is the husband of Mst. Alam Khatun deceased. Muhammad Khan injured (given up) P.W. was his brother. Khan Zaman P.W.12 and Noor Khan P.W.13 the injured witnesses are his nephews. Yar Muhammad (given up) P.W. is nephew of Amir Muhammad P.W. Mst. Raza Bano wife of Yar Muhammad is the sister of Muhammad Shafi P.W.8.
21. As regards their enmity with the appellants Mehar Khan P.W. admitted that about 10 years ago one Sardar Khan was murdered for which Muzaffar Khan accused (since acquitted) and his father were challaned and his (complainant's) brother Lal Khan and Alaf Din P.Ws. were the prosecution witnesses against them. He could not deny that in the case reported by Gul Jahan Qasai under section 380/457, P.P.C. against Muzaffar Khan accused (since acquitted) he was not the P.W. Khan Zaman P.W.12 'admitted litigation with Fateh Muhammad a near relative of Akbar Khan, Fateh Khan and Aslam accused (since acquitted). There is no denying the fact that civil and criminal litigation was going on between Haq Nawaz appellant on one side and Mst. Alam Khatun deceased etc. on the other at the time of occurrence. The parties were also litigating before the revenue authorities over the possession of the disputed land. Haq Nawaz accused (since acquitted) had obtained a stay order against the complainant restraining him from interfering with his possession over the land in dispute on 1‑12‑1978 i.e. about 7 months prior to the occurrence. He had also got a case registered against the complainant and others for removing his crop from his land about two months prior to the occurrence. Furthermore, there was no love lost between Haq Nawaz grandfather of Muhammad Nawaz and Ahmad Nawaz appellants and Akbar Khan, Fateh Khan, Aslam Khan and Muzaffar Khan accused (since acquitted). On the other hand, it stands proved on record that they were inimically disposed towards one another. Mehar Khan complainant could not deny that Haq Nawaz accused had reported a case under section 336/427, P.P.C. against Muzaffar Khan, Akbar Khan and Aslam Khan accused (since acquitted). Copy of the F.I.R. Exh.D.R.R. proves that such a report was made by Haq Nawaz. The complainant denied that Haq Nawaz accused had reported the case under section 13 of the Arms Ordinance against Muzaffar Khan in 1969 but the judgment in the Arms case Exh.D.Q.Q. belies the complainant. Haq Nawaz had appeared as a P.W. in a theft case against Muzaffar Khan. Haq Nawaz was fired at by Muzaffar Khan. Sher Zaman, father of Akbar Khan, Aslam Khan and Fateh Khan (since acquitted) had moved the police against Haq Nawaz for his nefarious activities as is evident from Exh.D.S.S. Even the trial Court was of the view that they could not join hands with each other. The trial Court was further of the view that Muzaffar Khan etc. had no reason to help Haq Nawaz etc. to take possession of the disputed land from the complainant party.
22. The motive also does not stand fully established. No independent evidence has been examined to prove the possession of the complainant party over the land in dispute. It is not ascertainable which particular piece of land was being ploughed by the complainant party when they were allegedly attacked. The appellants, version is that Haq Nawaz accused (since acquitted) was in possession of the said land. He had also obtained a stay order against the complainant party restraining them from interfering with his possession prior to the occurrence. The said stay order was continuing when the occurrence in question took place. It is not even clear from the evidence of Sher Rasul Patwari P.W.9 as to who was in possession of the disputed land on the relevant date because in the Khasra Girdawari names of different persons are recorded at different times and it is not ascertainable which of the parties was occupying which piece of land.
23. Admittedly, the eye‑witnesses are interested against the appellants being closely related to one another and inimical towards the appellants. They have been disbelieved in respect of five accused who were also alleged to have taken active part in the occurrence by firing gun shots. Muzaffar Khan accused was also alleged to have fired at the deceased besides Muhammad Nawaz appellant has been acquitted for want of corroboration. Khan Zaman, Akbar Khan, Fateh Khan and Aslant Khan who were alleged to have injured Khan Zaman, Noor Khan and Muhammad Khan P.Ws. were also let off for lack of any corroborative evidence. There is no mismatch between the case of the acquitted accused and the appellants and the same evidence had been led against them. The recoveries of fire‑arms at the instance of Muhammad Nawaz and Muhammad Yaqub do not advance the prosecution case because they are not connected with the offence. No empty was recovered from the spot with which they could match. The complainant party had roped in as many accused as they could without caring as to whether they could join hands or act in concert.
24. In view of the long‑standing enmity between the parties it was eminently necessary to seek corroboration of the oral testimony of the interested eye‑witnesses specially in light of the tendency to implicate the innocent with the guilty. The said corroboration should have come from sources remote from or wholly unconnected with the interested witnesses, but the required corroboration is not available in this case:
25. The honesty of the P.Ws. having been shown to be open toll; question it would not be correct to accept their verdict against one and to reject the same against the other.
26. The upshot of the discussion, therefore, is that like their acquitted co‑accused the criminal liability in regard to the firing cannot be safely and securely laid on the shoulders of the appellants. Accordingly, we accept their appeal, set aside their conviction a nd sentence and acquit them.
27. They shall be set at liberty, forthwith, provided they are not required in any other case.
28. The death sentence of Muhammad Nawaz is NOT confirmed.
29. M. Y. H
30. Appeal accepted