SARDAR KHAN Versus STATE
KHALIL-UR-REHMAN RAMDAY, J. --- Sardar Khan, his brother Waris Khan and their father Muhammad Khan had been tried by a learned Additional Sessions Judge of Mianwali for the murder of one Shah Jahan.
2. Through a judgment dated 6-12-1989 of the said learned trial Court, Muhammad Khan accused had been acquitted while Sardar Khan and Waris Khan accused had been 'found guilty of the charge and having been convicted under section 302/34, P.P.C., each one of them had been sentenced to death with a fine of Rs.20,000 or one year's R.I. in default of payment of the said fine.
3. Murder Reference No.3 of 1990 seeks confirmation of the said sentences of death whereas, the two convicts have filed Criminal Appeal No.908 of 1989 to impugn the above-noticed conviction and sentences recorded against them. Riaz Khan complainant has filed Criminal Revision No.412 of 1990 and calls in question the acquittal of Muhammad Khan accused.
4. All these matters are being disposed of together through this single judgment.
5. The occurrence in question had taken place at about 7-00 p.m. on 21-6-1988 in the lands of Shah Jahan deceased. The same had been reported by Riaz Khan (P.W.8), the son of Shah Jahan deceased, at Police Station Qamar Mashani of District Mianwali at about 9-00 p.m.
6. He aad claimed that at the said time of occurrence he was irrigating his lands alongwith his maternal-uncle, namely, Ghulam Rasool (P.W.9) at which time, his father Shah Jahan deceased and his mother Mst. Qamar Khatoon (given up) were bringing meals for them. He had added that Sardar Khan, Waris Khan and Muhammad Khan accused out of whom, the first two were armed with guns, suddenly appeared there and on a Lalkara raised by Muhammad Khan accused, Sardar Khan fired a shot hitting the front chest of Shah Jahan deceased which was followed by a shot fired by Waris Khan which hit the lower part of the abdomen of the deceased. He had further claimed that both the appellants fired 2/3 shots at him also but the same missed him because he had in the meantime lay down in the watercourse. The complainant had stated that they then picked up his injured father and were carrying him to Qamar Mashani but he died oh the way.
7. He had further disclosed that a dispute relating to 2 Kanals of land existed between the two parties and it was on this account, that the accused party had done the deceased to death.
8. Allah Bakhsh S.I. (P.W.10) inspected the spot the next morning and collected blood-stained earth which was seized vide memo. Exh.P.C. He arrested all the three accused persons on 30-6-1988 whereafter, it was only Sardar Khan appellant who had led to the recovery of a licensed .12 bore gun on 1-7-1988 which was taken into possession vide memo. Exh.P.B.
9. The accused persons, when confronted with the prosecution ease under section 342, Cr.P.C. denied their participation in the occurrence in question and attributed the accusation to enmity and suspicion.
10. Canvassing acquittal for the appellants, the learned counsel argued that the occurrence in question had not taken place at 7-00 p.m. as alleged but had in fact taken place sometimes after sunset; that the two eye-witnesses had not witnessed the said occurrence and had been subsequently planted as false witnesses; that in any case, the complainant party was inimical towards the appellants party and no corroboration existed in support of the ocular testimony; that the motive, as alleged, furnished no grounds for the appellants to commit the murder in question and that in the circumstances, the appellants were entitled to acquittal.
11. Riaz Khan complainant is the sort of the deceased while the other eye witness, namely, Ghulam Rasool P.W. is the brother of the widow of the deceased. Both of them are thus, closely connected to Shah Jahan deceased. It stands admitted on record that some bad blood did exist between the parties which was evidenced by the fact that a sister of Shah Jahan deceased who was married to Sardar accused and a sister of Sardar accused who was married to Shah Jahan deceased had both been divorced by their respective husbands; that criminal cases were registered by the parties in respect of the fight in which the females of the complainant party had allegedly received injuries at the hands of the appellants and the acquitted accused and another son of the said acquitted accused and by the fact that a civil suit had also been filed by the deceased to restrain the appellants' party from interfering with his right of passage over some land. The testimony of these eye-witnesses would, therefore, have to be viewed with great caution and care.
12. Although the above-noticed friction existed between the parties but it is on record that these were all old disputes. The dispute regarding the land existed ever since the ancestors of the parties and was not a new development. Similar is the situation of the above-noticed divorces which had taken place more than twenty-five years prior to the occurrence. The criminal cases above-mentioned had been allegedly registered sometimes in the year 1976 while the civil suit had been filed sometimes in the year 1980. This kind of strained relations cannot be reasonably expected to have provided any motive for the murder in question in the year 1988 especially when the eye-witnesses never claimed that anything had recently transpired between the parties which could have furnished any reason for the appellant party to kill the deceased.
13. The complainant claimed that he was irrigating his land which was only 2/3 furlongs from their Dera and he had been so irrigating the land since about 8 o'clock in the morning. He and his alleged companion i.e. Gbulam Rasool P.W. were not at such a kind of distance or were not involved in a kind of job which could not have permitted them to go home to take their meals. Thus, the story that the eye-witnesses had been watering their land since morning and the deceased alongwith his wife, had gone to- the place of occurrence carrying meals for the two eye-witnesses, does not really inspire confidence. Riaz P.W. had stated that he had to lay down in the water course to save his life and to protect himself from the shots which were fired at him. During the course of his cross-examination, he had first claimed that the water course was dry but then immediately changed his stance, perhaps after realizing that he had stated his being involved in irrigating the land as the cause of his presence at the place of occurrence, he alleged that water was flowing through the said water course. It is strange that his clothes never got wet or stained with mud. The F.I.R. had been allegedly registered at 9-00 p.m. which was not really late in the evening as the sunset during the days of the occurrence in question was at about 7-30 p.m. No reasonable explanation exists on record as to why the Investigating Officer had not inspected the spot till the ' next morning.
14. Ghulam Rasool P.W. has his brother and sisters with whom he shares his house at quite a distance away from the place of occurrence. He explained his presence at the place of occurrence by claiming that he used to reside with the deceased at their DERA. Nothing definite is available on record which could have persuaded us to believe this claim of Ghulam Rasool P. W. As per the prosecution, a number of fires had been shot i.e. two at the deceased and 2/3 at the complainant but no crime empty was found at or around the place of occurrence.
15. A gun had been recovered at the instance of Sardar Khan appellant but' the same could not be connected with the commission of the offence in question in any manner.
16. Keeping all these circumstances in view, we find that the uncorroborated ocular testimony offered by the two eye-witnesses, is not such I which could be safely relied upon to sustain the conviction recorded against the two appellants.
17. Consequently, we set aside the conviction and sentences recorded against Sardar Khan and Waris Khan appellants through the impugned judgment dated 6-12-1989 of Additional Sessions Judge, Mianwali. They are acquitted of the charge and shall be set at liberty forthwith if not required to be detained in any other case.
18. Criminal Appeal No.908 of 1989 is thus allowed and Murder Reference No.3 of 1990 is answered in the negative.
19. For the same reasons, we dismiss Criminal Revision No. 412 of 1990.
N.H.Q./S-239/L Appeal allowed.