ABDUL GHANI Versus THE STATE

AGHA ALI HYDER, J. ‑The appellant was convicted by the learned Second Additional Sessions Judge, Sukkur, for an offence under section 302, P. P. C. and sentenced to death. It appears from the record that the charge‑sheet had been submitted by the police only against the appellant, and the two other persons, namely, Manzoor and Abdul Haq, had not even been arrested. It, therefore, cannot he said for certain as to under what circumstances they came to be arraigned at the trial. Be that as it may the last two persons came to be acquitted. There is an appeal preferred on behalf of the convict, and there is also a reference by the learned Additional Sessions Judge, as required under the law. The appeal and the reference will be disposed of by this common judgment.

2. The prosecution story, in brief, is that, on the 18th of July 1973, Lai Khan, since deceased accompanied by three of his relations, namely Muhammad Ibrahim, Arbab and Birbal, had gone from their village to Qadirpur for sundry shopping. At about 4‑00 p. m. P. W. Gurdasmal was talking to Lai Khan in front of the hotel of Ghulam Rabbani in the Bazar, when a shot was fired, hitting Lai Khan in the neck, and also causing an injury on the right hand of Gurdasmal, which was resting on the shoulders of Lai Khan. Birbal had given a `hakal', which led to a second firing, as a result of which injuries had been sustained by P. W. Birbal. Lai Khan succumbed to the injuries shortly thereafter. Muhammad Ibrahim bad proceed‑3d to the Gothki Police Station, some four miles away, where he lodged the First Information Report at about 5‑45 p. m. P. W. Birbal was also at the police station, and S. H. O. Abdul Majeed made enquiries from him, and prepared a "mashirnama" of his injuries. The S. H. O. had then proceeded to the hospital at Ghotki, and made enquiries from Gurdasmal. From there, he went to the "Vardat" where he found two empty cartridges. The same came to be secured, alongwith the blood‑stained earth. The dead body of Lai Khan was sent for post mortem‑examination, after the inquest report had been prepared. The same day, enquiries were made from Arbab and some other persons.

3. The appellant had appeared before the S. H. O. with a gun on 20‑7‑1973, and came to be arrested. As the appellant did not have a licence for the gun, a separate case was registered against him under sec tion 13‑D of the West Pakistan Arms Ordinance. The gun and the empty cartridges, secured from the "Vardat" earlier, were, later on, sent to the Ballistic Expert, and, after due investigation, the case came to be challaned in the Court.

4. The appellant in his statement at the Court of Enquiry as well as at the trial denied the various allegations made against him, and maintained his innocence.

5. The autopsy had been performed by Dr. Muhammad Ali, according to whom, there were two injuries on the person of the deceased: (1) A fire arm wound of entrance 1 x 1" on the right side of the upper part of neck and mandible. (2) A fire arm wound of exit 2" x 1 " on the left side of the upper part of neck. He was of the opinion that these injuries had been caused from a fire arm and were sufficient, in the ordinary course of nature, to cause death. He has also detailed the injuries of P. Ws. Gurdasmal and Birbal, but no purpose will be served by referring to their nature, as the learned Additional Sessions Judge did not choose to give any findings, or, award any conviction to the appellant on that account. All that needs, however, to be mentioned is that the injuries sustained by these persons also were as a result of gun fire.

6. The eye witness account in the case has been furnished by Gurdasmal, Birbal and Muhammad Ibrahim. Out of these, Birbal and Muhammad Ibrahim are closely related to the deceased. They state to have gone to Qadirpur, alongwith the deceased, for sundry shopping. Both of these persons had also implicated Manzoor and Abdul Haq, since acquitted. Birbal had testified that the injuries sustained by him were as a result of firing by Manzoor. However, Manzoor and Abdul Haq were not challaned by the police, and were subsequently acquitted for good reasons. Patently, they had involved two innocent people. However, Birbal had himself received injuries, and was duly examined by the Medical Officer. The injuries on his person will be contemporaneous with the injuries received by the deceased, Lai Khan. There is, therefore, no occasion to doubt his presence at the "Vardat" all the same. Looking to the fact, that the First Information Report was lodged by Muhammad Ibrahim promptly, and his presence is also deposed to by Gurdasmal a rank outsider, his presence will also not be open to any exception. Even Gurdasmal has got injuries, which are consist ent with the details furnished by him. All that was contended by Mr. Muhammad Hayat Junejo, learned counsel for the appellant, was that he would not be too disinterested a witness, as he was thinking of appointing Lai Khan as his `Munshi' when the fatal shot had been fired at the latter, and that he was having money dealings with the latter's Sardar. The fact, that he was contemplating to employ Lai Khan as his `Munshi', would not go to show that he would run down a totally innocent man. At the time, when the First Information had been lodged, even the complainant did not know as to what was the grudge that was being nursed by the appellant, and by his accomplices, and even the one that has been furnished later, on, as will be seen later, is far from true. The incident had taken place in broad day light, and Gurdasmal states to have seen the appellant with a gun in his hand, firing at Birbal, though, when the first shot had been fired, he was taken completely by surprise. The question of any mistaken identity, under the circumstances, does not arise. Nor there is anything, which in the remotest way, smacks of any partisan feeling on his part. It is also to be seen that he had totally exonerated Manzoor and Abdul Haq right from the beginning. He is a witness of truth, and, so far as the appellant is concerned, it is safe to trust even the version of Muhammad Ibrahim and Birbal.

7. Then, there is the evidence of P. W. Muhammad, in whose presence two empty cartridges had been secured from the "Vardat", lying at a distance of five‑six paces from the dead body of Lai Khan. These had been duly secured by the police. Later, on, the appellant had appeared before the police with a gun. The gun was duly secured, and sent to the Ballistic Expert, along with the two empties. According to Mr. Mukhtar Ahmad, Ballistic Expert, the empties had been fired from the gun in question. Mr. Muhammad Hayat Junejo had nothing to say about the testimony of Mr. Mukhtar Ahmad. His only contention was that the evidence of P. W. Muhammad, the mashir, in that context, was unreliable, because he was related to the complainant. He further maintained that Qadirpur, was a big town, and the Sub‑Inspector would not have found any difficulty in employ ing an independent witness. True that P. W. Muhammad, on his own showing, was related to the complainant, but the record does trot show, that he was either too close to them, or, had any bias against the appellant. He was believed by the learned trial Judge, and I do not find any reason to hold otherwise. I am, therefore, of the opinion that the case against the appellant has been established beyond reasonable doubt.

8. I am, however, of the opinion that the sentence of death is called for in this case. The motive, as given by the complainant in his testimony at the trial Court, was that there was a theft at the house;' Abdul Haq, and he suspected Lai Khan for the same. That was some fifteen/sixteen days prior to the incident. According to him, Lal Khan had been interrogated by the police, but had been let off. Abdul Haq and family members were nursing a grudge for the same, and had made a shoe work of Lal Khan on that account. These allegation have been belied by S. H. O. Abdul Majeed and therefore it cannot be said that the motive as alleged, had any bearing on the happenings in the case. There is no other, motive forthcoming. Mr. Muhammad Hayat Junejo had referred to the cases of Khamber Ali Shah v. The State (P L D 1959 Kar. 461) and Bahadur v. The State (P L D 1959 Kar. 578) in which the sentence of death were altered to transportation for life, in the absence of any evidence of motive. Therefore, while maintaining the conviction of the appellant under section 302, P. P. C. I will substitute the sentence of death by imprisonment for life, and not accept the reference. To that extent, the appeal is allowed, orders accordingly.

9. The learned Additional Sessions Judge did not choose to award any sentence for the offence under section 307, P. P. C. as per charge, for the injuries on the persons of Gurdasmal and Birbal. It will not be necessary to determine the nature of the offence, because the appellant will be presumed to have been acquitted thereon. A copy of the judgment will be sent to him, wherever he might be posted, for his future guidance.

JAMALUDDIN H. AHMED. J--‑I agree.

Order accordingly.