INAYATULLAH KHAN Versus STATE

SH. MUHAMMAD ZUBAIR, J.-- - This appeal is by Inayatullah Khan. He was tried alongwith three others, namely, Ghazi Khan, Tariq Khan and Noor Khan, under section 302/34, P.P.C. by the learned Additional Sessions Judge, Mianwali, for the murder of Abaidullah Khan. The learned trial Judge vide his judgment, dated 8-11-1990, convicted the appellant under section 302, P.P.C. and sentenced him to suffer death plus fine of Rs.5,000 or in default six months' R.I. He also convicted Ghazi Khan under section 307, P.P.C. and sentenced him to one year's R.I. and fine of Rs.5,000 or in default to undergo further R.I. for three months. The remaining two accused, namely, Tariq Khan and Noor Khan were acquitted.

The learned trial Judge has referred the case of the appellant to this Court under section 374, Cr.P.C. for confirmation of his death sentence, whereas complainant Mowaz Khan (P.W.8) has filed Criminal Revision No.39 of 1991, for enhancement of sentence of fine of the appellant, for enhancement of sentence of Ghazi Khan to imprisonment for life and for setting aside the judgment qua the acquitted accused and to be dealt with in accordance with law. The revision petition against the acquitted accused was dismissed whereas notice was issued to the appellant and Ghazi Khan by a learned Judge of this Court vide order, dated 9-2-1991. We propose to dispose of all the three matters by this judgment.

2. The occurrence took place at 5-45 a.m. on 14-4-1989 in the area of Mauza Gundi at a distance of about nine miles from Police Station Mochh. F.I.R. Exh.P.L. was recorded the same day at 7-00 a.m. on the statement of Mowaz Khan (P.W.8) by Ghulam Muhammad, S.I. (P.W-12).

3. The motive, for the alleged occurrence was that about nine years prior to the occurrence, Abaidullah Khan deceased, abducted Mst. Soorat Khatoon wife of the appellant. Eleven persons including the deceased were challaned in that case. The deceased was sentenced to rive years' R.I., whereas his co-accused were acquitted. About four years ago, the deceased had come after serving the sentence. It is alleged that on account of the aforesaid abduction, the appellant and his co-accused, in furtherance of their common intention had injured Abaidullah Khan by firing, who later on succumbed to the injuries.

4. As for the main occurrence, it is alleged that on the day of occurrence at about 5-45 a.m., Mowaz Khan (P.W.8), his brother Abaidullah Khan deceased, Habibullah Khan (P.W.9) and Abbas Khan (given up witness) were present in the land of Khan in the area of Gundi for netting quails. All of a sudden, the appellant, Ghazi Khan and the acquitted accused armed with guns appeared at the scene. They raised a Lalkara that they had come to take revenge of the abduction of Mst. Soorat Khatun and that Abaidullah Khan would not be spared. Simultaneously Tariq Khan and Noor Khan fired from their respective guns, but the shots did not hit the deceased. Thereafter Ghazi Khan fired from his gun and the shot hit the deceased on his left calf, followed by the fire of the appellant which hit the deceased on his chest,.who fell down. The occurrence was witnessed besides the complainant Mowaz Khan by Habibullah Khan (P.W.9) and Abbas Khan (given up witness). The witnesses raised alarm whereupon the accused decamped from the spot. Abaidullah Khan in injured condition was being taken to Civil Hospital, Mianwali, but he died in the way. The dead body of Abaidullah Khan was taken to Civil Hospital, Mianwali and Mowaz Khan came to Police Station Mochh, where he lodged the F.I.R. Exh.P.L.

5. Ghulam Muhammad S.I. (P.W.12), after recording the F.I.R. proceeded to Civil Hospital, Mianwali, where he prepared the injury statement Exh.P.M. and inquest report Exh.P.K. of the deceased and sent the dead body to the mortuary for post-mortem examination. He then reached the spot, from where he collected blood-stained earth vide memo. Exh.PA. He also collected four crime empties Exh.PA./1-4 from the spot vide memo. Exh.P.B. On the same day i.e. 14-4-1989, Motiullah F.C. and Khaliq Dad F.C. produced before the S.I. the last-worn clothes of the deceased which were taken into possession through recovery memo. Exh.P.G. He got prepared site plan Exh.P.H. by Muhammad Khalid Hussain Halqa Patwari (P.W.6). After his transfer, the investigation was taken over by Ghulam Farid S.I. (P.W.13) on 21-4-1989. The said Police Officer arrested the accused on 17-5-1989 at Bus Stand Tarikhel. On 21st May, 1989, the appellant led to the recovery of gun P.3 lying in earthen bin of his residential Kotha, which was secured through recovery memo. Exh.P.D.

6. Doctor Asmatullah Khan Niazi (P.W.7) conducted autoposy of the dead body of Abaidullah Khan on 14-4-1989 at 11-30 a.m. and noticed the following injuries thereon:

(1) ??????? An entry wound of tire-arm 1/2 c.m. x 1/2 c.m., on the front of the chest on its right side, 6 c.m. infro medial to the right nipple, 3 c.m. from the mid-sternal line towards right side and 6 c.m. supro lateral to zyphi sternum.

(2) ??????? An entry wound of fire-arm, 1/2 c.m. x 1/2 c.m., on antomcdial aspect of the left lower leg, 20 c.m. below the left knee joint and 20 c.m. above the medial malleilus of left leg.

The doctor opined that death was due to haemorrhage and shock as a result of injury No.l which was caused by fire-arm and was sufficient to cause death in the ordinary course of nature.

The appellant in his statement under section 342, Cr.P.C. denied the prosecution allegations. He denied the recovery of gun at his instance. He deposed that on account of his marriage with Mst. Soorat Khatoon, who was the fiancee of the deceased, he had been falsely implicated in this case. Three police officials were produced in defence, who produced the record of cases registered against the parties.

8. Believing the ocular version being fortified by the matching of crime?-empty with the gun of the appellant, the trial Court convicted him and gave him the sentence as indicated above.

9. The leaned defence counsel vehemently contended that the occurrence took place in the dead of night and none of the eye-witnesses has seen the same. The two eye-witnesses, namely, Mowaz Khan (P.W.8) and Habib Ullah Khan (P.W.9) produced by the prosecution are close relations of the deceased and inimical to the appellant. Mowaz Khan P.W.8 is the real brother of the deceased, whereas Habibullah Khan P.W.9 is his cousin; hence their uncorroborated testimony cannot be accepted on its face value. He further contended that the ocular version is being belied by the medical evidence brought on the record. According to Mowaz Khan P.W., the deceased took his Sehri and thereafter he died, but this fact is belied by the post-mortem report. The enmity between the parties is admitted by the eye?witnesses, hence in the presence of this background of enmity, it would not be safe to place reliance on the uncorroborated and conflicting statements of the eye-witnesses.

In the end, learned counsel submitted that the FI.R. was recorded after preliminary investigation and no sanctity can be attached to this F.I.R.

10. Learned counsel for the State has supported the impugned judgment on the basis of reasons which prevailed with the trial Judge while convicting the appellant.

11. We have examined the respective submissions of the learned counsel for the parties and have carefully gone through the record with their able assistance.

Admittedly, Mowaz Khan P.W.8 who lodged the F.I.R. is the real brother of the deceased and there is background of enmity, but both these things per se would not be sufficient to discard the straightforward evidence A given by this witness. He has given very plausible and reasonable explanation for his presence at the scene. He deposed that he alongwith Habibullah Khan, Abbas Khan and his deceased brother was present in the land of Khan in connection with the netting of quails. It is customary that the quails are available in the early morning and the occurrence took place at 5-45 a.m. which is the normal time for netting the quails. He stood the test of cross?-examination and in spite of lengthy cross-examination by the defence counsel, nothing favourable to the defence could be extracted from him. The evidence of this witness gets further support from the matching of crime empty which was taken into possession by the Investigating Officer from the spot and sent to the Ballistic Expert on 19-4-1989 through Zahid Iqbal F.C. (P.W.2), whereas the gun was recovered on 21-5-1989 from the possession of the appellant which was found wedded with the crime empty.

The presence of Habibullah Khan P.W.9 is also established from the record, because the reasons given by him for his presence are reasonable and probable. He alongwith the complainant Mowaz Khan, Abbas Khan and hi, deceased cousin Abaidullah Khan went for netting the quails which requires the presence of more than 2/3 persons.

In view of the background of enmity and on account of abduction of Mst. Soorat Khatoon, this Court would like to seek corroboration of the ocular version, because mere presence of a witness at the spot per se does not establish the guilt of the appellant. There is independent corroboration available on the record, so far as the guilt of the appellant is concerned, because his gun was found wedded with the crime empty recovered from the spot, which proves the guilt of the appellant to the hilt; hence the prosecution has proved its case against the appellant beyond any reasonable doubt.

12. There is no independent corroboration with respect to the involvement of Ghazi Khan in this case, who was convicted under section 307, P.P.C. and has not filed any appeal against his conviction. The eye-witnesses have specifically attributed injury No.2 to Ghazi Khan, but the doctor admitted in cross-examination that both the injuries could be caused with a single fire attributed to the appellant, hence, the case against Ghazi Khan is not free from doubt, so while exercising our suo motu revisional jurisdiction, we set aside his conviction and sentence and acquit him.

13. We have given our anxious consideration to this aspect of the case what should be the appropriate sentence in the given circumstances. The deceased abducted the wife of the appellant, it appears reasonable that the appellant committed the murder of the deceased due to family honour, which is a mitigating circumstance in his favour, so while maintaining the conviction of the appellant under section 302, P.P.C., we reduce his sentence from death to imprisonment for life. However, the sentence of fine is maintained. With this modification in the quantum of sentence, the appeal is dismissed and the sentence of death is NOT confirmed. The appellant shall be entitled to the benefit of section 382-B, Cr.P.C.

14. We have heard the learned counsel in the revision petition. As the occurrence took place due to family honour, therefore, we see no justification to enhance the sentence of fine of the appellant from Rs.5,000 to Rs.50,000. Similarly, in view of our finding in para. 12 ante, the revision so far as Ghari Khan is concerned, is also devoid of force and the same is dismissed accordingly.

N.H.Q./1-91/L ???????????????????????????????????????????????????????????????????????????????????? Order accordingly.