MUHAMMAD ALI Versus THE STATE

ABDUL WAHEED, J.‑‑ Muhammad Ali and Akhtar Khan, both aged 19/20 years, were tried for the murder of Rab Nawaz, aged 19 years, by the Sessions Judge, Mianwali who vide his judgment dated 6th of February, 1985 convicted both of them under section 302/34, P.P.C. and sentenced Muhammad Ali to death and to pay a fine of Rs.5,000 or in default to suffer R.I. for one year and Akhtar Khan to imprisonment for life and to pay a fine of Rs.3,000 or in default to undergo R.I. for a further period of one year. They were also directed under section 544‑A, Cr.P.C. to pay Rs.5,000 each as compensation to the heirs of the deceased. Both of them have separately filed appeals from their conviction and sentence. The trial Court has submitted a reference under section 374, Cr.P.C. for confirmation of the sentence of death awarded to Muhammad Ali. Muhammad Khan, the complainant, also has filed a revision petition for enhancement of sentence imposed on Akhtar Khan. This judgment shall dispose of both the appeals, the reference and the revision petition.

2. The occurrence took place on 14th of October, 1982 at Jhikki Peshiwela in the fields in the area of village Mitha Khatak, about twelve miles away from Police Station Kamarmashani, District Mianwali. It was reported by Muhammad Khan P.W.7 stepbrother of the deceased, on the same date at 7‑00 p.m. at Mauza Sultan Khel, about five miles away from the spot vide statement Ex.PH which was recorded by A.S.I. Ghaus Muhammad P.W.10 who happened to be present there in connection with official duty. On the basis of the statement, a case under section 302/34, P.P.C. was registered at Police Station Kamarmashani on the same date at 9.00 p.m. vide formal F.I.R. Ex.PH/1 drawn by S.I. Muhammad Ashiq P.W.2 who was then posted there as S.H.O.

3. The prosecution case briefly was that on the day of occurrence at Jhikki Peshiwela when the deceased alongwith Muhammad Khan P.W.7, his stepbrother, and Nazar Khan P.W.8 and Sarfraz Khan (given up at the trial as unnecessary), his paternal‑cousins, while on their way back from their fields after cultivating the same, was passing near a Tibba of the land of one Gul Mast Khan, both the appellants who were lying in ambush behind Sarkandas emerged from there. They were armed with pistols. Akhtar Khan fired the first shot at the deceased but it missed. Meanwhile Muhammad Ali fired the second shot from his pistol hitting the deceased as a result of which he fell down and died. While fleeing from the spot, Muhammad Ali fired another shot.

4. As regards Muhammad Ali appellant, motive for the attack allegedly was that his father and the father of the deceased had purchased from one Gul Zar Shah land in the village over which they had constructed their houses in respect of which there used to be constant dispute between them. The motive qua Akhtar Khan appellant was that he suspected that the deceased had developed illicit liaison with Mst. Zar Begum, his wife. Both the appellants were friends and on account of the grouse, they were respectively harbouring against the deceased, they collaborated in his murder.

5. A.S.I. Ghaus Muhammad P.W.10 after recording the statement Exh.PH at Mauza Sultan Khel on the statement of Muhammad Khan P.W.7 proceeded to the spot and on reaching there, he prepared injury statement Exh.PK/1 and inquest report Exh.PK in respect of the dead body of the deceased and despatched the same to the mortuary for post‑mortem examination. He took into possession from there blood‑stained earth vide memo Exh.PC and made it into a sealed parcel. An empty P.1 was lying at the spot. He took the same into possession and sealed it into a parcel vide memo Exh.PD in the presence of Darya Khan P.W.4 and Bori Khan (given up at the trial as unnecessary). On 19‑10‑1982, he got prepared from Muhammad Ramzan, Patwari, P.W.3 site plan Exh.PB and its duplicate Exh.PB/1 of the place of occurrence. On 22nd of October, 1982, he arrested Akhtar Khan appellant and on his personal search recovered from him a pistol P.5 containing live cartridge P.6. He took them into possession and made them into a sealed parcel vide memo Exh.PG in the presence of F.C. Hayat Khan P.W.5 and Muhammad Khan P.W.7. On 25th of October, 1982, he also arrested Muhammad Ali appellant who on 29th of October, 1982 while in custody led to the recovery of pistol P.7 after digging it out from the Deohri of his house. He took the same into possession vide memo Exh.PJ which was attested by Nazar Khan P.W.8 and Sarfraz Khan (given up at the trial as unnecessary). The blood‑stained earth was sent to the Chemical Examiner and the Serologist who vide their reports Exhs.PL and PL/1 respectively opined that the same was stained with human blood. The crime empty P.1 recovered from the spot and pistol P.7 got recovered by Muhammad Ali appellant were sent to the Forensic Science Laboratory which reported vide memo Exh.PM that the crime empty was fired from the pistol.

6. On the conclusion of the investigation as above, both the appellants were challaned.

7. On 14th of October, 1982, Dr. Muhammad Mushtaq Ahmad, Medical Officer, Civil Hospital, Kala Bagh performed autopsy on the dead body of the deceased and found the following injury:‑-

(1) An entrance wound of fire‑arm 6 m.m x 6 m.m on the left side of forehead 1 c.m. above the inner end of the left eye‑brow. It was bleeding slightly. No blackening or burning was present around the wound.

In the opinion of the Medical Officer, the death of the deceased had occurred due to shock and haemorrhage as a result of injury No.1 which was sufficient to cause death in the ordinary course of nature. The injury was ante‑mortem and caused by fire‑arm. The probable interval between the injury and the death was 10/15 minutes and between the death and the post‑mortem examination about 12 to 18 hours. Exh.PA is the post‑mortem examination report and Exh.PA/1 is the diagram showing the locale of the injury.

8. Both the appellants pleaded not guilty to the charge framed against them under section 302/34, PPC. When examined at the trial under section 342, Cr.P.C. they denied the prosecution case and the recoveries attributed to them. In answer to a question as to why the prosecution witnesses had deposed against him, Muhammad Ali appellant gave the following answer:‑

"A plot measuring 1 kanal 10 marlas was lying near the house of Muhammad Khan and Nazar Khan PWs, which I purchased on 12‑3‑1979. The P.Ws. wanted to purchase this plot but I purchased instead and on that account they were on inimical terms with me and they have falsely implicated me in this case."

On a similar question, the answer of Akhtar Khan appellant was as follows:‑

"Khan Zaman paternal‑uncle of my wife and his relatives Amir Khan and Ghazi Khan were prosecuted for the murder of Jalendar Shah s/o Gulzar Shah, brother‑in‑law of Miram Shah P. W.

On 11‑3‑1965, Mehmood Ahmad S.I. was murdered in which Gulzar Shah, his sons and brothers were prosecuted. My relative Abdul Aziz s/o Shah Wali and Bostan s/o Sher Khan were P.Ws. against them in that case. Abdul Aziz is a son of Shah Wali and Shah Wali is the first cousin of Mst. Fatima Bibi, daughter of Naurang.

Nazar Khan PW fired at Bori Khan. and Sarbuland and was prosecuted under section 307, PPC and Arms Ordinance cases. My paternal‑uncle Mehr Baz is married to Mst. Khalima first cousin of Sarbuland aforesaid. On account of these enmities, I have been falsely implicated at the instance of Miram Shah P.W. and Lal Shah, who were present before the report was lodged and Nazar Khan P.W."

9. Both the appellant pleaded innocence. In their defence, they examined M . H . C . Kifayatullah D.W.1 to prove certain F I. Rs . Akhtar Khan appellant tendered in evidence three documents Exh.DD, which is an entry in respect of the marriage of Mst. Zar Begum daughter of Zar Khan with Lal Shah on 6th of May, 1975, Exh.DE which is his school leaving certificate and Exh.DF which is a pedigree‑table. No other evidence was adduced by the appellants in support of their plea of innocence.

10. The prosecution in support of its case examined 10 witnesses who included Muhammad Khan P. W.7 and Nazar Khan P. W.8 who deposed to the occurrence, the motive for the crime and the recoveries effected in this case. Darya Khan P.W.4 testified to the recovery of blood stained earth and crime empty P.1 from the spot. On the basis of this evidence, the learned trial Court held the appellants guilty of the murder of the deceased in furtherance of the common intention of them both and convicted and sentenced them as above.

11. According to the F.I.R. Exh.PH the appellants did not have a common motive. A dispute over land was alleged to be a bone of contention between the deceased and Muhammad Ali appellant. Akhtar Khan appellant, it was alleged, was suspecting that the deceased was carrying on illicitly with Mst. Zar Begum, his wife. It was further alleged that both the appellants were also friends.

12. The last allegation that the appellants were friends was not adhered to at the trial. There Muhammad Khan complainant stated as P.W.7 that the two appellants were paternal‑cousins inter se. This statement, however, was shaken in cross‑examination during the course of which he stated that he did not know any specific relationship between the ancestors of the appellants and he said that they were paternal‑cousins only because they were both Pathans by caste and their fathers owned some land jointly. So, any common factor which could motivate the appellants to collaborate in the commission of the offence did not exist.

13. As regards Muhammad Ali appellant, it was alleged in the F.I.R Exh.PH that his father and the father of the deceased had purchased some land in the village jointly and they constructed their houses thereon but subsequently there arose a dispute between them in that behalf. The nature of cause of the alleged dispute was not given. At the trial, however, Muhammad Khan complainant deposed as P.W.7 that his father and the father of the deceased had jointly purchased a piece of land from Gulzar Shah about twelve years prior to the occurrence but the father of the appellant took possession of the entire land resulting into a dispute. The deceased who was an employee of Militia Force had said that he would apply to his officers for possession of half share of the land. In cross‑examination, it was elaborated that the father of Muhammad Ali appellant constructed his house about six years prior to the occurrence and created dispute about possession of the remaining land one year prior to the occurrence. The variation between the allegation in the F.I.R. and the testimony of the complainant at the trial recoils on the existence of any dispute over land. Moreover, if any such dispute existed there, the aggrieved party was the family of the deceased who had been allegedly denied possession of half share of the land. This could not constitute a motive for the appellant to launch the attack. The innovation at the trial that the deceased had said that he would approach his officers in the Militia Force for settlement of the dispute is insignificant as even if it were true, it could not pose any threat to provoke the appellant to kill the deceased.

14. Similarly the motive as alleged against Akhtar Khan appellant was not satisfactorily proved. It was alleged in the F.I.R. that he suspected that the deceased was carrying on illicitly with his wife. When examined under section 342, Cr.P.C. Akhtar Khan denied that he was married to Mst. Zar Begum. Muhammad Khan PW.7 fumbled in his cross‑examination as regards the marriage of the appellant with Mst. Zar Begum. He was not sure as to when the Nikah of the appellant with Mst. Zar Begum was performed. It was suggested to him that the Nikah took place on 10th of October, 1984. He firstly expressed ignorance about it but then volunteered that they were married four years back. However, he admitted that he was not present at the marriage ceremony. He made one admission which militates against the allegation of infidelity of Mst. Zar Begum. He admitted that Mst. Zar Begum was about 14 or 15 years of age "now (that is on 7th of January, 1985 when his statement was recorded). It implies that at the time of the occurrence which took place on 14th of October, 1982 she was hardly 12 or 13 years old. In view of this evidence, it is difficult to believe the allegation that the appellant was having any suspicion of illicit intimacy between his wife and the deceased.

15. As regards the recoveries, A.S.I. Ghaus Muhammad PW.10 deposed that when on the day of occurrence, he visited the spot, he recovered from there a crime empty P.1 and made it into a sealed parcel vide memo Ex.PD. This memo was attested by Darya Khan PW.4 and Bori Khan, who was given up at the trial as unnecessary. Darya Khan PW.4 fully supported this recovery. A.S.I. Ghaus Muhammad also deposed that he arrested Muhammad Ali appellant on 25th of October, 1982 and on 29th of October, 1982, he while in custody led to the recovery of pistol P.7 after digging it out from the Deohri of his house. He took it into possession and made it into a sealed parcel vide memo. Ex.PJ. This memo. is attested by Nazar Khan PW.8 and Sarfraz Khan (given up at the trial as unnecessary). Nazar Khan in his statement as PW.8 corroborated this recovery. Their statements on this recovery remained unimpaired if cross‑examination.

16. According to the evidence of MHC Aman Ullah PW.9 and F.C. Hayat Khan PW.5, the sealed parcels containing the crime empty and the pistol recovered from Muhammad Ali appellant were sent to the Forensic Science Laboratory. The Examiners of Fire Arms reported vide Ex.PM that the crime empty was fired from the pistol. Therefore. the recovery of pistol P.7 from Muhammad Ali appellant constitutes incriminating evidence against him.

17. A.S.I. Ghaus Muhammad PW.10 further stated that he arrested Akhtar Khan appellants on 22nd of October, 1982 from a graveyard and on his personal search, recovered from him pistol P.6 vide memo. Ex.PG. This memo is attested by F.C. Hayat Khan PW.5 and Nazar Khan PW.8 who supported the recovery. However, since this pistol was not sent to the Forensic Science Laboratory, its recovery per se does not furnish any corroborative evidence of the collaboration of the crime and is, therefore, inconsequential.

18. The ocular account, as mentioned above, was furnished by Muhammad Khan PW.7 and Nazar Khan PW.8. They are respectively the brother and paternal‑cousin of the deceased. Muhammad Khan also claimed that Muhammad Ali appellant was the son of his maternal‑aunt. They narrated the occurrence as given in the F.I.R. Their evidence that the deceased died as a result of the pistol shot fired at him by Muhammad Ali was consistent and indiscrepant. This evidence received unimpeachable corroboration from the recovery of pistol P.7 from him and the report Exh.PM of the Forensic Science Laboratory according to which the empty recovered from the spot was fired from it. The medical evidence also accorded with the ocular evidence.

19. With regard to Akhtar Khan appellant also, the two eye witnesses stated that he had fired from his pistol but it missed. However, their statements as regards his participation remained uncorroborated by any other reliable evidence. The motive as alleged against him was not proved. The pistol recovered from him remained unconnected with the commission of the crime. In these circumstances, his participation in the occurrence bristles with doubts.

20. In view of the above discussion, We hold Muhammad Ali appellant alone guilty of the murder of the deceased. Since the motive for the crime is shrouded in mystery, the extreme penalty of death, in our opinion, is not warranted. We, therefore, reduce his sentence from death to imprisonment for life. However, the sentence of fine and the order directing his to pay Rs.5,000 as compensation to the heirs of the deceased under section 544‑A, Cr.P.C. are maintained. With this reduction in the sentence, the appeal of Muhammad Ali appellant is dismissed. He shall be given benefit of the provisions of section 382‑B, Cr.P.C. while computing the period of his sentence.

21. The sentence of death awarded to Muhammad Ali appellant is not confirmed.

22. Since the prosecution, in our view, failed to establish its case against Akhtar Khan appellant beyond doubt, we accept his appeal, set aside his conviction and sentence and acquit him. He is on bail. He is discharged from his bail bonds.

23. Consequently, the revision petition filed by Muhammad Khan complainant for enhancement of the sentence of Akhtar Khan is dismissed.

M.Y.H./M‑448/L Appeal dismissed.