MUHAMMAD AKRAM Versus THE STATE
RASHID AZIZ KHAN, J. --- Muhammad Akram son of Ghulam Jan (20) was sent up for trial by Police Station Kamar Mashani, District Mianwali for an offence under section 302, P.P.C. for the murder of Niaz Muhammad, aged 35 years. Special Court for Speedy Trial No.VIII, Sargodha, vide its judgment, dated 28-5-1988 convicted and sentenced him under section 302, P.P.C. to death with a fine of Rs.30,000, or in default of payment of fine, to further undergo R.I. for five years. It was further directed that the fine, if recovered, out of it Rs.20,000 shall be paid to the legal heirs of the deceased as compensation. The convict has appealed. This judgment shall dispose of the same.
2. Prosecution story, as given in F.I.R. Exh.P.H., lodged by Muhammad Ayyaz, P.W., was that on' 5-4-1987, first informant with his brother Niaz Muhammad, Ahmad Khan and Mehr Dil were going on motorcycles to Makkarwal to enquire after the health of one Muhammad Aslam, who was not well. While they were coming back to their Village at about Jhakki Degarwela. when they reached near Wandha Buchanwala---first informant and Mehr Dil Khan were riding on one motorcycle and Niaz Muhammad Khan and Ahmad Khan were riding another motorcycle, on the metalled road Muhammad Akram armed with .7 mm rifle came in front and directed Niaz Muhammad to stop the motorcycle. The moment Niaz Muhammad got down from the motorcycle, Muhammad Akram fired three shots with his rifle at Niaz Muhammad hitting him on his chest and abdomen. Thereafter, the assailant ran away. Niaz Muhammad died at the spot. The motive for the occurrence was that in November, 1986 Muhammad Akram accused had fired at Muhammad Sadiq, first informant's cousin, for which a case under section 307, P.P.C. was registered, who had come out on bail. Ten/eleven days before the present occurrence, Niaz Muhammad and Muhammad Sadiq gave kick and fist blows to Muhammad Akram accused, who in retaliation committed the occurrence.
F.I.R. Exh.P.H. was lodged by Muhammad Ayyaz on 5-4-1987 at 7 p.m. It was recorded by P.W.11 Muhammad Sarwar Khan, S.I., at Police Station Kamar Mashani with regard to an occurrence which took place the same day at Jhakki Degerwela near Wandha Buchanwala, five miles from Police Station Kamar Mashani.
Muhammad Sarwar Khan, S.I. P.W.11, after registration of F.I.R. Exh.P.H. went to the spot and prepared injury statement. Exh.PJ. and inquest report Exh.P.K. of the deceased and sent the same for autopsy. Blood-stained earth was secured from the spot vide memo. Exh.P.D. He also secured from the spot two crime empties Exh.P.5/1-2 vide memo. Exh.P.E. A motorcycle belonging to the deceased was also secured vide memo. Exh.P.F. He got the memos attested from the witnesses. He got prepared site plan Exh.P.C. and Exh.P.C./1 from Patwari and gave his notes in red ink thereunder. He arrested the accused on 8-5-1987: The same day, the accused while in custody got recovered rifle P.6 from his residential house, which was secured vide memo, Exh.P.G., which was attested by the witnesses. After usual investigation, he challaned the accused.
P.W.1 Dr. Sher Ali Khan, Medical Officer, Civil Hospital, Kala Bagh, District Mianwali, on 6-4-1987 at 7 a.m., conducted post-mortem examination on the dead body of Niaz Muhammad Khan, aged 35 years, and found the following injuries:-
(1) A wound 4 c.m. x 3 c.m. on right lower chest.
(2) A wound 2 c.m. x 1.5 c.m. on right side of abdomen.
(3) A wound 4 c.m. x 2 c.m. on left lower abdomen.
In his opinion, death had occurred due to shock. According to him, the injuries were ante-mortem and sufficient to cause death in ordinary course of nature. The injuries were caused with fire-arm.
3. Prosecution in support of its case produced 11 witnesses in all. Dr. Sher Ali Khan, P.W.1 had conducted the post-mortem examination on the dead body of Niaz Muhammad Khan. P.W.2 Muhammad Mumtaz H.C. had escorted the dead body to mortuary. Muhammad Akram, F.C. P.W.3 on 1-5-1987 was delivered sealed parcels for taking them to the office of Forensic Science Laboratory, which he delivered.
Hayatullah Khan, Patwari, P.W.5 had prepared site plan Exh.P.C. and Exh.P.C./1 on the directions of the police. Madad Khan, P.W.6 had witnessed the recovery of blood-stained earth from the spot as well as two crime empties PS/1-2 and motorcycle vide memo. Exh.P.F. He had signed the recovery memos. Ghulam Asghar, P.W.7 on 8-5-1987 witnessed the recovery of rifle P.6 at the instance of the appellant. He signed the recovery memo. Ocular account was furnished by Muhammad Ayyaz and Mehr Dil P.Ws.9 and 10, respectively. Case was investigated by Muhammad Sarwar Khan, S.I. P.W.11.
At the conclusion of prosecution evidence, District Attorney submitted reports of the Chemical Examiner and of the Serologist as well as report of the Fire-arm Export, whereby the empties matched with the gun recovered at the instance of the appellant.
The appellant was examined without oath, wherein he refuted the prosecution allegations and pleaded innocence. In answer to a question, he further stated that Muhammad Sadiq, paternal-cousin of the deceased, was suspected of having illicit relations with his (accused) real sister. He had earlier fired at said Muhammad Sadiq on 22-11-1986 and was challaned as well. Thereafter, a compromise was effected between the parties and he was released on bail. On the fateful day at 7 p.m., he came out and saw his sister Mst. Hamidan talking to the deceased while standing in the wheat crop. He apprehended that the deceased had come at the instance of Muhammad Sadiq, his cousin. with some message for his sisters therefore, out of "Ghairat" he fired and killed Niaz Muhammad. He, however, did not produce any witness in his defence.
4. It was contended by learned counsel for the appellant that as far as the recovery of fire-arm is concerned, it is accepted by the appellant because he had fired under grave and sudden provocation and family honour. Contended that no reliance on the ocular account could be placed because the eye?witnesses were not the residents of the locality where occurrence took place and they were highly inimical towards the appellant. Contended that the prosecution case, if kept in juxtaposition with the defence version, the defence version was more plausible and nearer to truth, therefore, the same should have been relied upon. The contentions were opposed by learned counsel for the State.
5. We have heard the learned counsel at length and gone through the evidence with his assistance. As far as time, place and the weapon with which the occurrence was committed are concerned, same has been accepted by the defence as well. In these circumstances, it is held that the deceased was done to death with fire-arm by the appellant. The only point which requires to be resolved is whether the deceased was done to death because of motive as asserted by the prosecution or in the circumstances as alleged by the defence. Prosecution in order to establish its case produced Muhammad Ayyaz and Mehr Dil Khan, P.Ws.9 and 10, respectively, who had witnessed the occurrence. Both of them were cross-examined at length but nothing could be brought on record which could suggest that they were not telling the truth or had any motive for false involvement of the appellant. The contention of the learned counsel that they were chance witnesses, therefore, may not be relied upon has been considered but we find it is without substance. The witnesses had given a plausible explanation with regard to their presence at the spot. They were not even cross-examined on that point by the defence. There could not be any motive for the false involvement because the earlier case registered against the appellant under section 307, P.P.C. was compromised and in such circumstances, motive for the false involvement can safely be ruled out. As far as the defence version is concerned, we are not inclined to place any reliance on it because the motor-cycle of the deceased was secured from the spot which proved that he was on his way when waylaid by the appellant. The defence version, even otherwise, does not appeal to reason because the deceased was fired at from a very close range. If defence version was correct, then the appellant could not have come so close to the deceased before firing at him. The deceased could be fired from such a close range only in the circumstances given by the prosecution, which were that he was waylaid while going on a motorcycle.
For what has been discussed above, we hold that the prosecution has been able to prove its case beyond any reasonable doubt against the appellant. Therefore, the appeal fails, which is accordingly dismissed.
N.H.Q./M-1673/L ?????????????????????????????????????????????????????????????????? Death sentence upheld.