MALIK AND 2 OTHERS Versus THE STATE

SARDAR MUHAMMAD DOGAR, J. ‑‑ Malik Mustafa and Ahman alias Ahmi, were tried by Additional Sessions Judge, Faisalabad, alongwith Mapel and Sultan, for having murdered Allah Yar, at Degarwela on 1‑8‑1983, in the area of village Tahli Khichian, at a distance of six miles from Police Station Bahlak. The learned trial Judge convicted Malik, Mustafa and Ahman alias Ahmi under section 302/34, P.P.C. `and sentenced them as under vide judgment dated 22‑12‑1984:‑

(1) Malik Death, plus to pay a fine of

Rs.5,000 in default whereof to undergo R.I. for two years.

(2) Mustafa and

(3) Ahman alias Ahmi:‑ Imprisonment for life, plus to pay a fine of Rs.3,000 each, in default whereof to undergo R.I. for one year each.

Half of the amount of fine, on recovery, has been ordered to be paid as compensation to the legal heirs of the deceased. Mapel and Sultan were acquitted vide the same judgment.

2. F.I.R. (Exh.PG) was registered at Police Station Bahlak on 1‑8‑1983, at 7 p.m. by Muhammad Fazil, A.S.I. (P.W.12), on the statement of Ramzan (P.W.9), father of the deceased.

According to the F.I.R., Allah Yar had gone to graze buffaloes in the Bela of river Ravi. His father went to inquire about him towards Budh river at Degarwela, on his getting late. He saw his son Allah Yar coming towards house alongwith the buffaloes, after crossing Budh Nullah. At about the same time, Malik and Mustafa, armed with pistols, Ahman armed with gun, Sultan and Mapel empty handed, came out from behind Sarkandas, raising Lalkaras and launched an attack on Allah Yar. Mapel and Sultan caught Allah Yar from the arms. Malik fired a shot on his back. He fell down. Ahman and Mustafa fired one shot each in the air. Gooman (P.W.10) and Zulfiqar (P.W 11), who were grazing their cattle nearby also witnessed the occurrence. When the complainant and witnesses went ahead to save Allah Yar, they were threatened with dire consequences by the accused. Allah Yar died at the spot.

Zohra, father of Malik appellant was murdered 15/16 years before the occurrence. Complainant alongwith six others was challaned for his murder. They were, however, acquitted. The accused had murdered Allah Yar to avenge the murder of Zohra.

3. Muhammad Fazil, A.S.I. (P.W. 12), reached the spot after recording the F.I.R. He despatched the dead body for post‑mortem examination, after preparing necessary papers. Blood‑stained earth was taken into possession by him vide memo. Exh .P.B.

All the accused were arrested by him on P‑8‑1983. Malik led to the recovery of pistol (P.4) alongwith a cartridge from his residential house on 19‑8‑1983. Same were taken into possession vide memo. Exh.P.E. On the same day, pistol (P.5) alongwith a cartridge was recovered at the pointing out of Mustafa, from his residential Kotha. Same were taken into possession vide memo. Exh.P.F.

After completion of necessary investigation, challan was put to Court.

4. Statements of twelve prosecution witnesses were recorded in all during trial. Sarwar named as an eye‑witness in the F.I.R. and Muhammad Nawaz and Naseer, who witnessed the recoveries, were given up as unnecessary.

Dr. Ahmad Saeed, who had performed autopsy on the dead body of Allah Yar appeared as P.W.6. He noted following injuries on the body of the deceased:‑

(1) A fire‑arm wound of entry with charged margins 2 cm x 1.5 cm x opening into chest cavity on back of left side of chest 6 cm outer to middle line. There was corresponding hole in the shirt which had blackening mark.

(2) Left fourth rib was broken posteriorly under injury No.1.

Left 3rd and 4th ribs were broken anteriorly. Left pleura was perforated and its cavity contained about 1000 ml of blood Left lung was pierced by pellets.

The pericardium was perforated and its cavity contained about 200 ml. of blood. The heart was perforated by pellets. The stomach was pale and contained about 250 grams of semi‑digested food. The bladder was healthy and contained about 200 ml. Of urine. Rest of the abdominal organs were pale.

Injuries were opined to have been caused by fire‑arm. Four pellets were removed from chest region. A piece of cardboard was also removed from left lung. Death was opined due to shock and haemorrhage, caused by injury No.1. Duration between death and injuries was opined to be instantaneous while between death and post‑mortem was opined to be 12 to 24 hours.

During cross‑examination, the doctor stated that the shot was fired from a distance of less than four feet and may be few inches.

5. The ocular account was deposed to by Ramzan complainant (P. W. 9), Gooman (P.W. 10) and Zulfiqar (P.W. 11).

Ramzan complainant repeated the facts given by him in the F.I.R. During cross‑examination, he stated that he alongwith Gooman, Sarwar P.Ws., Ali Akbar, brother of Sarwar, his brother Sultan P.W. Rustam and his nephew Kalib Ali were tried for the murder of Zohra. He also admitted that Basara, father of Zohra and Sultan (acquitted accused) were eye‑witnesses in that case. He conceded that Allah Yar deceased in this case was convicted four years prior to the occurrence and sentenced to one year's R.I. for having outraged the modesty of Mst. Kamman daughter of Massen, a co‑villager. He, however, added that he was acquitted on appeal by the Sessions Court. He also admitted that a fight had taken place between them and Muhammad Abdullah's party 17/18 years before the present occurrence and cross‑cases were registered as a result of that occurrence. He, however, added that the cases ended in acquittal as a result of compromise between them. He denied that they were not having good relations with the family of Muhammad Abdullah. In answer to another question, he stated that it was usual for Allah Yar to go for grazing his cattle and normally he used to return home at about Degarwela. He denied the suggestion that somebody else had murdered his son and he had involved the accused falsely.

Gooman (P.W. 10) corroborated the statement made by Ramzan complainant (P.W. 9) with one exception. In that he stated that Mustafa and Ahman had fired one shot each towards them. He admitted that he had not stated so in his statement (Exh.D.A.) before the police.

Zulfiqar (P.W. 11) also corroborated statement made by Ramzan and Gooman P.W.s. During cross‑examination. he stated that he also owned 9 Acres of land and a residential Ihata in Chak No.548/GB. He stated that he owned 8/9 Killas of land in Thatts Ismail. According to him he had taken up residence in Thatta Ismail 4/5 months prior to the occurrence. He stated that Sultan acquitted accused is married to his paternal‑cousin and that Mustafa appellant is son of Sultan.

Gooman (P.W.10) as well as Zulfiqar (P.W.11) denied the suggestion that they had not witnessed the occurrence.

Rustam (P.W.8) stated about having witnessed the recoveries of pistols at the instance of Malik and Mustafa appellants and of having attested the recovery memos. His statement in this regard is corroborated by Muhammad Fazil, A.S.I. (P.W. 12)

6. All the accused during their statements under section 342, Cr.P.C. denied the prosecution case, pleaded innocence and stated that they had been involved in the case due to enmity. Malik appellant examined in defence Hafiz Sikandar Ali, A.S.I. as D.W.1.

Hafiz Sikandar Ali proved F.I.R. No.77, dated 27‑9‑1967, lodged by Basara, against Sulla and six others under section 302/148/149, P. P. C.

7. We have gone through the evidence with the assistance of the learned counsel for the parties. Criticising the impugned judgment, learned counsel for the appellants argued that the prosecution had failed to prove motive, that all the eye‑witnesses in this case are interested, being relatives and inimical to the appellants, and that the evidence of recovery of pistols from Malik and Mustafa appellants is of no consequence, for the reasons that no empty was recovered from the spot and so it cannot be presumed that the said weapons had been used for the crime. Learned counsel argued that the case of Mustafa and Ahman stands entirely on different footing as there is no evidence to corroborate testimonies of eye‑witnesses qua their participation in occurrence. Lastly learned counsel contended that in case the conviction of Malik appellant is maintained, the sentence of death awarded to him should be altered to imprisonment for life, as according to the prosecution even, he had done to death Allah Yar in order to avenge the murder of his father. In this regard learned counsel placed reliance on Muhammad Din v. State 1985 SCMR 625, Ajun Shah v. State PLD 1957 SC 185, Yaqub etc. v. State 198 P Cr. L J 556 and Zulfiqar etc. v. State 1974 P Cr. L J 100.

8. Learned counsel for the State defended the judgment of the trial Court.

9. The facts of Zohra, father of Malik appellant having been murdered by the complainant party and of the complainant, his brother Sultan and their five other relatives having been challaned and acquitted have not been denied even by the appellants. In fact, their stance is that they had been involved in this case on account of the fact that the complainant and his other relatives were named and tried for having committed the murder of Zohra; The argument of the learned counsel for the appellants, therefore, that the prosecution had failed to prove the motive, does not possess any weight.

The relationship inter se of Ramzan, Gooman and Zulfiqar, eye‑witnesses, has not been denied, but their testimonies cannot be discarded merely on that account. Since after the murder of Zohra and the acquittal of the complainant party (herein) 15/16 years prior to the present occurrence, the complainant party had never tried to harm or pester the heirs of Zohra for having involved them in tae murder case of Zohra.

Although an occurrence had taken place four years prior to this occurrence between the complainants and one Abdullah, a co‑villager and a case was also registered at the instance of the complainants, but they had not availed the opportunity of involving the relatives of Zohra in that case. As such, the argument of the learned counsel for the appellants that one Allah Yar having been murdered by someone else the complainants picked the opportunity and involved the appellants in order to avenge their implication in the murder of Zohra, has not impressed us.

The contention that the complainant party, particularly the deceased, had other enemies and so he might have been done to death by someone of them and appellants were involved falsely in this case, also appears to be without substance. In that, the argument of the learned counsel for the appellants that Allah Yar was tried for', having outraged the modesty of daughter of one Massen and that cross‑cases were also registered as a result of fight between the complainant party and Muhammad Abdullah party, and so someone connected with those families might have murdered Allah Yar, also does not possess any substance. Had any one of them, murdered Allah Yar, they (the complainants) would not have spared them as the quarrel with those parties was of recent origin, and the complainant being father of the deceased, would not have allowed the murderers of his son go scot‑free, just to involve the heirs and relatives of Zohra, who had been murdered 15/16 years prior to the present occurrence and the trial of which had resulted in acquittal of the complainant and his other relatives.

Having considered the testimonies of these witnesses, we are of the view that no case is made out, for, altogether throwing away their testimonies by dubbing them interested and inimical witnesses.

We are, however, in agreement with the learned counsel for the appellants that the evidence of recovery of pistols at the pointing out of Malik and Mustafa appellants, is not of much consequence, as the arms were not found to be wedded with any crime empty. In fact, no empty was recovered from the spot and the arms were not even sent to the Forensic Science Laboratory. Apart from that some other independent persons including a Lambardar, who were available for witnessing the recoveries were not joined as witnesses and instead Rustam, a close relative, was asked to witness the recoveries. The failure of the police to join the independent persons present and available, makes the recoveries doubtful. It may be mentioned here that Rustam (PW 8) stated in cross‑examination that 10/12 other persons including a Lambardar were present with the police when the accused were interrogated and taken for recoveries.

The only evidence against Mustafa and Ahman appellants, is, that they had fired a shot each in the air. Although Gooman (PW 10) stated in examination‑in‑chief that both of them fired a shot each towards them, but during cross‑examination he admitted that he had not stated that fact before the police. Since, even according to the prosecution they had not caused any injury to anyone, there is no medical evidence to corroborate the part assigned to them. Yet the other fact, which is worth consideration, is, that if they had actually gone to participate in the crime, would they have only resorted to firing a shot each in the air? Had they been there, they could have easily made a target of complainant, who was named as one of the murderers of Zohra. They are not directly involved with the motive for the occurrence also. In the circumstances, their participation in the occurrence appears to be doubtful. The appeal qua them, therefore, is allowed and they are acquitted by way of grant of benefit of doubt.

The case of Malik appellant stands on different footings. It was he whose father had been murdered by the father of the deceased and his other close relatives. He had, therefore, an exe to grind. The ocular account qua him finds corroboration not only from the motive, but also stands corroborated by the medical evidence. As such, we do not find any merit in the appeal filed by him. His conviction under section 302, P.P.C. is, therefore, maintained.

The argument of the learned counsel for the appellants that since Malik appellant, even according to the prosecution, had done to death Allah Yar for avenging the murder of his father and so a case for altering his sentence of death to imprisonment for life, finds support from the cases cited by the learned counsel for the appellants viz. 1985 S C M R 625. P L D 1967 SC 185, 1980 P Cr. L J 556 and 1974 P Cr L J 100. The sentence of death awarded to him, is, therefore, altered to imprisonment for life. The sentence of fine is maintained. He shall be given the‑.benefit of the provisions of section 382‑B, Cr.P.C.

S.A./M‑504/L Partly accepted.