MUSHTAQ AHMAD Versus THE STATE

MIAN SHAKIRULLAH JAN, J .--- By this judgment we propose to dispose of Criminal Appal No. 15 of 1993, whereby Mushtaq Ahmad appellant has challenged his conviction under section 304, Part I, P.P.C. and sentence of 10 years' R.I. alongwith a fine of Rs.30,000 or in default of payment of fine to undergo further two years' S.I. and Criminal Revision No.5 of 1993, in which Daud Khan, brother of the deceased has prayed for enhancement of the sentence of the convict-respondent to the normal penalty under section 302, P.P.C. or in the event of construing the convicts' acquittal under section 302, P.P.C. may set aside the conviction under section 304, Part I, P.P.C. and remand the cases from the stage of the statement of accused onward for recording the conviction under section 302, P.P.C. and further to determine the amount of compensation separately and for its payment to the legal heirs of the dead in accordance with law.

2. The facts of the case which set up the prosecution machinery in motion are that on 2-12-1989 at 11-20 a.m. Muhammad Ayaz Khan, I.H.C. alongwith police posed was on duty inside Government Commerce College, Bannu for B. Com. Examination sitting outside the Examination Hall. Meanwhile he heard the report of fire shot from the Canteen side and rushed towards the Canteen and saw the injured lying there and his brother Daud Khan, Lecturer was also present with him. Accused Mushtaq Ahmad was present there duly armed with .30 bore pistol, who was arrested and the pistol was also taken into possession. Mohabat Khan deceased who was then in injured condition reported the matter to Muhammad Ayaz in the Canteen situated in Commerce College, Bannu that on the time of occurrence he alongwith his brother Daud Khan Lecturer, Commerce College, Bannu went to the Canteen for taking tea at 11-20 a.m. On their arrival to the Canteen, Mushtaq Ahmad who was already present there armed with .30 bore pistol, fired at the deceased with the intention to kill him, with which he was, hit, on the left side of belly. The occurrence was witnessed by Daud Khan, his brother. Motive for the offence was stated to be altercation between the deceased and the accused.

3. After completion of the investigation, the accused was sent up to the Court of Additional Sessions Judge, Bannu to face trial, who denied the charges and claimed trial. To prove its case the prosecution produced as many as 12 witnesses. Mir Qadir Shah, the Canteen Contractor was also examined as a Court-witness. Besides the statement of Mushtaq Ahmad appellant, he also recorded his statement as D. W.1. .

4. The prosecution mainly relied upon the statements of Daud Khan, brother of the deceased and the alleged eye-witness, Muhammad Ayaz, I.H.C. scribe of the Murasila and Muhammad Karim, Principal of the College and statement of the dead incorporated in the F.I.R. as dying declaration.

5. Daud Khan, who was examined as P.W.8 deposed that he was a Lecturer in the Government Commerce College, Bannu and Mohabat Khan, deceased was his brother who was a student of B. Com. in the same College. On the day of occurrence he and his deceased brother had went to Canteen of the College for having tea at about 11-20 a.m., where Mushtaq Ahmad accused was already sitting duly armed with .30 bore pistol. As soon as they entered into Canteen, the accused opened fire at his deceased brother who was hit in the belly and fell down to the ground. The police posse thereafter arrived on the spot and caught hold of the accused alongwith the pistol. There was B. Com. Examination inside the College and in that connection police personnel?s were present there for duty. The dead then injured, was examined by the police who himself had reported the matter. The witness stated that 15 days prior to the occurrence his deceased brother and the accused had exchanged hot words with each other on the dispute of village road. Political rivalry was also stated to be motive for the offence.

6. Muhammad Ayaz Khan, I.C.H. who appeared in the witness-box as P.W.9, deposed that during the days of occurrence he was posted as I.C.H. in Police Station Saddar, Bannu. On the day of occurrence he was on duty inside Government Commerce College, Bannu alongwith police posse in connection with B. Com. Examination. He was sitting with other police personnels near the Examination Hall, while he heard the shot of fire from the Canteen side. He then rushed towards the spot where he found the injured lying and his brother P.W. Daud Khan, Lecturer of the College was also present there with him. He also saw accused Mushtaq Ahmad duly armed with pistol, who was immediately arrested alongwith the pistol. He took pistol from the accused, which was loaded. One bullet was in its Chamber while 3 were in its Charger. Another Charger having 5 bullets were also recovered and took into possession by the witness. According to the witness the injured was in full senses and the injured reported the occurrence to him, which was incorporated in the Murasila Exh.P.A. He prepared the injury sheet Exh. P.H. and site plan Exh. P.F. Vide recovery memo. Exh.P.8 he took into possession a .30 bore pistol marked P.1 having a bullet in its Chamber alongwith Magazine having three live bullets in it marked as Exh.P.2. He also recovered through the same memo. a separate Magazine having 5 bullets of .30. bore into it marked Exh.P.4. Vide recovery memo. Exh. P.D. he took into possession an empty shell of .30 bore marked Exh.P.7 and the same was packed and sealed there and then. Vide recovery memo. Exh. P.C. he took into possession a white Bunyan having blood stains and cut marks Exh.P.5, a shirt having blood stains and cut marks Exh.P.6 belonging to the deceased, the injured Mohabat Khan, which were sent by the Doctor through Constable Naseemullah. He had also recorded the statements of P.Ws. under section 161, Cr.P.C. The witness prepared the inquest report of the deceased Exh. P.K. The weapon of offence alongwith an empty was sent by him to the Laboratory.

7. In his cross-examination the witness stated that he did not mention the presence of P.W. Daud Khan on the spot at the time of examination of the deceased, the injured, in the Karawai of police in the Murasila Exh.P.A. He also did not mention in the said Karawai that the injured was in full senses.

8. Muhammad Karim Khan, P.W.6, Principal (Rtd.) Government Commerce College, Bannu deposed that during the days of occurrence he was working as Principal in Government Commerce College, Bannu. On 2-f0-1989 he was present in his office. At about 11-30 a.m. he heard the voice of fire shot from the Canteen side. At that moment hue and cries were also raised and some one told him that one Mohabat Khan, the brother of Daud Khan, Lecturer of their College, had been fired at by somebody. During those days Supplementary Examination of B. Com. Classes were going on and so the local J police in connection with their duty in the Examination Hall was present inside the College. The police party arrested the accused alongwith the pistol, while the injured was taken to hospital. According to the witness the culprit arrested-by the police was the ex-student of their College, whose name was Mushtaq Khan and he had already given his examination of D. Com. and due to non-outing of his result he was not a regular student of the College in those days.

9. In his cross-examination the witness stated that at the time of occurrence his staff members namely, Ghulam Rasul and Fayaz, Instructors of the College were also present in his office. He stated that at the time of firing he was present in his office but he did not see the firing with his own eyes. To a question he replied that it is correct that the accused was brought into his office by certain students of the College and Mir Qadar, Canteen Contractor alongwith the pistol.

10. Mir Qadar Shah, who was examined as C.W.1 deposed that he was a Canteen owner in Commerce College, Bannu. On the day of occurrence his Canteen was opened and at the relevant time he had taken tea to the office of the Principal of the College. It was the month of December and the occurrence took place around 10-30 a.m. and 11-00 a.m. When he was present in office of the Principal, he heard the fire shot and went to Canteen in order to inquire about the incident. When he reached in the Canteen, he found the dead in injured condition lying on the ground, whereas accused told him that he should take him to the office of the Principal. He took the accused alongwith the pistol to the office of the Principal. Many other boys/students were present on the spot, who accompanied him. He handed over the pistol and the accused to the Principal and then he came back to the Canteen. The student present on the spot told him that the deceased was shot by the accused.

10-A. After close of the prosecution evidence and hearing the learned counsel for the parties, the learned trial Judge convicted and sentenced the accused-appellant as stated in the first paragraph of this judgment.

11. We have heard the learned counsel for the parties and perused the record of the case with their assistance.

12. The learned Sessions Judge while not believing the report lodged by the deceased himself incorporated in the F.I.R. and was alleged to be dying declaration and also the presence of the P.W. Daud Khan, the alleged eye?witness, but, however, keeping in view the over all circumstances of the case and specially in the light of the statement of the accused he led to a conclusion that when the venue of occurrence is not disputed, the altercation and grappling has been admitted by the accused with the only difference of the manner of firing with the shots of which the dead was hit was of the considered opinion that it was the accused who is responsible for the commission of offence and held him guilty and sentenced him under section 304, Part I, P.P.C. on the ground that the accused being infuriated, as a result of sudden provocation, fired at the deceased as he was posing himself to be a lover of the accused and holding that possibility of passing of wrong overtures by the deceased is there.

13. The learned counsel for the appellant contended that the learned trial Judge has committed a patent illegality by not accepting the defence version on the only ground that the injury on the deceased could not be caused in the manner in which the deceased has sustained it if the appellant and the deceased were in grappling and falling position because in the first instance no opinion/evidence has come on record about the direction of injury and secondly during internal travelling a bullet may adopt any unpredictable/unconceivable direction, thus in the absence of any positive evidence, this by itself cannot provide sound and solid legal basis for conviction on a capital charge and hence the conviction and sentence awarded to the appellant cannot be maintained in the eyes of law. The learned counsel for the appellant further contended that after making overall assessment of both the prosecution as well as the defence version, the only conclusion which can be drawn safely, is that the appellant is entitled to the benefit of acquittal particularly when the investigation from the start to the end gives a gruesome picture of extreme dishonesty and is full of embroidery work at the hands of the Investigating Officer, thus the learned trial Judge was not justified under the law by returning a verdict of conviction and passing a sentence on the appellant.

14. None of these contentions of the learned counsel for the appellant are maintainable. The accused who give the statement under section 342, Cr.P.C. and also examined himself as D.W.1 gave a lengthy statement admitting about all the relevant facts of the case as alleged by the prosecution except the commission of the offence. The relevant portion of his statement recorded under section 342, Cr.P.C. is as under:--

"After a little while, the deceased got knowledge of my presence in the Canteen, entered there and in a threatening mode asked me that why I had come over there when I am not to keep the desired relations with him. I innocently disclosed the purpose of my visit upon which he finding me alone and defenceless, laid hand upon me, started forcibly kissing me and in the process tried to make me nude but I gave him a push and he fell down on the table where the Crockery and other articles of the Canteen owner were lying. He again got up and took out pistol from his trouser fold and in a very infuriated and highly charged moved step forward and loaded his pistol and said in clear words that he would not leave me unless his immoral desire/lust is satisfied and also threatened me with dire consequences if I resisted. At this moment we grappled with each other for some time and during the process of grappling we fell to the ground and during the process of filling to the ground the pistol also fell on the ground and accidentally went off with which he was hit and fell down on the ground. In the meanwhile C.W. Mir Qadar alongwith 2/3 students entered into the room to whom. I requested that I may be taken into safe custody and be taken to the office of the Principal. I was then taken by them to the Office of Principal where I narrated the same story to the Principal, in Tithe presence of Canteen owner and the said students and one Lecturer."

He also deposed almost in the same words while he examined himself as D.W.l. The version given by the appellant in respect of the manner of firing with which the deceased was hit does not fit in the circumstances of the case. The- site, location and direction of the injury in such way do not support the version of the accused rather it cannot be explained on any other hypothesis that the dead was fired upon somebody else and in the facts of the case it could be only the accused and none else, and thus while agreeing with the learned Sessions Judge we maintain the conviction of the appellant. The learned trial Judge has already taken a lenient view in sentencing the accused-appellant under section 304-A P.P.C. to 10 years' R.I., which does not deserve any further leniency. In the circumstances of the case this appeal is rejected and the impugned conviction under section 304, Part I, P.P.C. and sentence of imprisonment of 10 years is upheld. The revision-petition is also dismissed qua the conviction under section 304-A, P.P.C. and the sentence of imprisonment but is modified to the extent that the accused-respondent Mushtaq Ahmad shall pay a fine of Rs.20,000 in default of payment of which he shall suffer imprisonment for two years and shall also pay a compensation under section 544-A, Cr.P.C. of Rs.50,000 in default of payment of which the convict-respondent shall suffer imprisonment for six months, which shall be in addition to the mode of recovery of compensation provided in the section itself.

N.H.Q./2065/P ??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.