MUHAMMAD KHAN Versus THE STATE

ORDER

1. The above titled appeal and reference made by the trial Court arise out of the same order, therefore, these shall stand disposed of through the following order:--

2. A Crime No.38 of 1988 was registered at Police Station Bagh on a report of the complainant Muhammad Sarwar on 28-4-1988 at 2-30 a.m. at night. The incident took place on 27-4-1988 at 6-30 p.m. corresponding to 10th of Ramzan at the time of Aftari. It was alleged in the report that the land of the complainant and Muhammad Khan convict appellant (hereinafter appellant) were quite adjacent. The common boundary of the fields of the parties was disputed. On April 27, 1988 the day of incident, the complainant his father Sultan Muhammad and his brother-in-law Nazir Hussain were cutting a Koil tree when Muhammad Khan appellant objected that the tree belonged to him. The complainant and his associates despite objection cut the tree. Muhammad Khan appellant gave them threats and disappeared. At 6-30 p.m. Muhammad Khan and his real brother Jan Muhammad started lopping the twigs of the same tree. They were asked not to do so by the complainant and his associates namely Sultan Muhammad, Nazir Hussain and Mst. Shah Bano. Mr. Muhammad Khan and Jan Muhammad took up their .12 bore guns which they were having with them at the relevant time and Muhammad Khan fired at the complainant party to kill them. It hit the left side of the chest of Nazir Hussain (deceased) and his left arm. Mr. Jan Muhammad also fired at the complainant party and his fire hit the left leg of Mst. Shah Bano at which both the accused disappeared from the scene. Nazir Hussain on account of fire fell down and died on the spot.

3. The police concerned after registration of the case made the necessary investigation and after completion of the investigation both the appellants were found guilty of the alleged offence and they were sent to face trial before District Court of Criminal Jurisdiction Bagh.

4. The appellants were examined by trial Court under section 242, Cr.P.C. wherein they denied the allegation levelled against them. The prosecution produced Muhammad Sarwar, Sultan Muhammad, Mst. Shah Banoo, the eye-witness in addition to Muhammad Shafi Khan, Muhammad Noor Khan, Khadim Hussain, Mujahid Ali, Patwari, Sabir Hussain, Muhammad Kafeel, Liaqat Hussain Constable, Dr. Muhammad Ateeq Zahid and Aurangzeb Constable. The evidence of Investigating Officer, Sardar Noor Muhammad Khan, then S.H.O. of the concerned police station was also recorded. The trial Court then examined the appellants once again under section 342, Cr.P.C. and they again denied the allegations and termed the evidence as inimical and fabricated. Mr. Jan Muhammad also pleaded plea of alibi and requested the Court to allow him to make a statement on oath in this regard. The trial Court after examination under section 342, Cr.P.C. directed to produce defence evidence if any. The appellants produced Muhammad Ayoub, (father-in-law of Muhammad Khan), Bashir Begum wife of Muhammad Khan, Muhammad Hanif son of Gul Sher Khan and Muhammad Shafi son of Feroze Khan in their defence. Statement of Naib Moharar Karamat Hussain was also recorded by the trial Court in defence of the appellants. The appellants were found guilty of the offence as alleged in the report and Muhammad Khan was sentenced to death as Qisas whereas Jan Muhammad co-accused was awarded a sentence of (Hakoomt-e-Adl) Rs.5,000 for commission of offence under section 15, I.P.L. and for 7 years' R.I. and a fine Rs.2,000 for offence under sections 307/34, A.P.C. He was also punished to undergo simple imprisonment for one year further in case of default. This order of the trial Court is now under challenge by the appellants and the trial Court has also made a reference for confirmation of sentence awarded to principal accused Muhammad Khan.

5. The learned counsel for the appellants argued that the eye-witnesses were interested and inter-linked having clear enmity with the accused, therefore, their statement could not be believed particularly in case of death penalty. It was further submitted that although an impartial witness was mentioned in the F.I.R. but he was not produced before the Court. This fact, according to the learned counsel, made the prosecution case as doubtful. The learned counsel also argued that there were material contradictions in the statements of eye-witnesses particularly about altercation before the occurrence. It was also an argument on the side of the defence that no immediate motive was available as the complainant party decided to go back to their home when the accused insisted to take away the disputed tree but still the accused resorted to firing which, according to learned counsel, was not believable. No enmity with the deceased and no reason to kill him was shown by the prosecution, the learned counsel maintained. The case against the appellants when seen as a whole it showed that the complainant party was having enmity with the deceased and their relations were strained at the time of alleged incident, the learned counsel argued. The medico-legal report, according to the learned counsel, showed that the deceased received injuries from the distance of 150 to 160 feet and a firing by .12 bore gun was not effective to this extent as shown by the doctor. The learned counsel while concluding his arguments stated that Jan Muhammad appellant remained under detention for more than six years whereas the principal accused Muhammad Khan remained in death cell since the announcement of the impugned order and requested to acquit them honourably. The learned counsel cited the following authorities in support of his contention:--

6. 1997 SCR 206; MLD 1993 (Cr.) 394; 1994 PCr.LJ 1009 and 1994 PCr. LJ 1044.

7. As against this the learned Assistant Advocate-General argued that in the instant case there was direct and circumstantial evidence which connected the appellant beyond any doubt and the trial Court after appreciating the evidence in its true perspective recorded the impugned judgment which deserved no interference by this Court. It was further argued that the presence of the eye-witnesses was natural and the mere fact that they were inter-related or they were having some grudge against the accused was not sufficient to discredit their testimony. It was further submitted by the prosecution that the site plan was not substantive piece of evidence and furthermore it was not possible for the eye-witnesses being Village-folk to state the exact distance in between the assailants and the victim. Therefore, in the estimation of the learned Assistant Advocate-General, the circumstantial evidence even if discarded the direct evidence was sufficient to convict the appellants. The learned Assistant Advocate-General supported his arguments with the help of the following case-law:--

8. 1980 PCr.LJ (Kar.) 59, 1981 PCr.LJ (Lah.) 144 and 1982 PCr.LJ (Lah.), 1, 986.

9. Though the tree felled by the complainant party was claimed to situate in the land owned by the complainant party but the police during investigation arrived at the conclusion that, the same situated in Khalsa land under the possession of the father of the complainant.

10. The prosecution case is that the complainant Muhammad Sarwar his father Sultan Muhammad, his brother-in-law Nazir Hussain (deceased) felled a Koil tree from Khalsa land comprising Survey No.432 adjacent to their owned land comprising Survey No.438 in late afternoon. The complainant and his associates after felling the tree went to their home. At about 6-30 p.m. Mr. Nazir Hussain (deceased) went outside the house for natural call and saw the appellants while loping the twigs of the Koil tree felled by the complainant party. The complainant alongwith his father, his wife and his brother-in-law (deceased) came out of the house and objected the loping of the twigs of the tree. The appellants took .12 bore guns which they were having with them and Muhammad Khan appellant shot at Mr. Nazeer Hussain (deceased) who sustained injuries on left side of chest and left arm: Jan Muhammad appellant also fired at Mst. Shah Banoo which hit her on left leg. Nazir Hussain succumbed to the injuries and died on spot.

11. The defence stand as it appeared from the cross-examination is that the deceased was killed by one Zakar Hussain (brother-in-law of the complainant) and Mst. Shah Banoo was also injured by the same person as he was inimical to the deceased on account of illicit relations with Mst. Fatima daughter of Sultan Muhammad who was subsequently married to deceased. The time of incident is not disputed. However, the place of occurrence, according to the defence, was Khalsa land and not the land owned by Sultan Muhammad. The day and time of the incident as stated earlier stood admitted by the parties. The fact that the deceased died on account of fire-arm injuries and Mst. Shah Banoo was also injured with the fire-arm was also an admitted fact with the difference that the deceased and Mst. Shah Banoo sustained injuries at the hands of Zakar Hussain, according to defence.

12. Keeping in view the respective versions of the parties, the post mortem report, medico-legal report and time of incident needed hardly any emphasis to be laid down. The evidence which required to be dilated upon were the statements of eye-witnesses, the site sketch, the recoveries etc. and the statement of Investigating Officer.

13. Though the defence claimed substitution and, under law, it was to be proved by the defence yet' the fact remained that the prosecution was under heavy burden to prove its case beyond reasonable doubt.

14. The incident took place on 27-4-1988 at 6-30 p.m. corresponding to 10th of Ramzan at the time of "Aftari". The F.I.R. was lodged on 28-4-1988 at 2-30 p.m. at Bagh Police Station situated at a distance of 14/15 miles away from the place of occurrence. The complainant travelled on foot to the police station to report the matter, therefore, the report was not belated. The appellants are real brothers and both were nominated in the F.I.R. Their role was also clear. The eye-witnesses were complainant himself, his father Sultan Muhammad and his wife Mst. Shah Banoo. Another person Subedar Abdul Aziz was also shown to be the eye-witness, but he could not appear before the trial Court as he died before recording his statement in the Court. The complainant being eye-witness mainly corroborated the version given in the F.I.R. However, according to him, he was not present when the site sketch was prepared by the concerned Patwari (page 98 back) and furthermore Mst. Shah Banoo did not witness the shot fired by the principal accused as she came on spot after she was attracted by the firing sound (page 100 back), his statement also showed that Mr. Zakar Hussain often objected the presence of the deceased at the house of the complainant and he was not good in terms with the deceased (page 102 back). Moreover, according to him, there was no enmity between the appellants and the deceased.

15. According to the statement of Sultan Muhammad, his eyesight was so weak that he was unable to see beyond two yards (page 107) but at the same time he claimed to have witnessed both the assailants at the time of firing from a distance of 88 feet (per site sketch).

16. The statement of Mst. Banoo mainly corroborated the contents of the report but she knew nothing whether or not the concerned Patwari went on spot to prepare the site plan (page 114). Moreover, she admitted the strained relations between the parties on account of constant altercation on Khalsa land. The previous grudge, rivalry or enmity between the parties also stood admitted by this witness.

17. Through the site sketch, the Patwari failed to fix the boundaries of the adjacent survey numbers i.e. Survey Nbs.432 and 438. Furthermore, he also failed to point out that at whose pointation the site plan was prepared. Mr. Sarwar the complainant and Mst. Shah Banoo were not present when the Patwari visited the spot and Sultan Muhammad was unable to see beyond two yards meaning thereby that he could not disclose the place from where, according to Patwari, the assailants were firing at the relevant time. Therefore, the site sketch and the statement of Patwari is not helpful in the instant case. The next evidence which is available on record is the statements of witnesses pertaining to recovery of weapon of offence and the statement of Investigating Officer. The persons reported to have witnessed the recovery were close relatives of the deceased and the complainant. However, they corroborated the prosecution story. The Investigating Officer during his statement before the trial Court disclosed that the gun allegedly used by the appellant Jan Muhammad neither belonged to him nor it was recovered at his pointation (page 140 back). The gun according to Investigating Officer, belonged to Muhammad Sharif (brother of Jan Muhammad) and the same was handed over to him by Muhammad Afsar (father-in-law of Jan Muhammad). Neither the gun was recovered at the instance of Jan Muhammad appellant nor the Investigating Officer and the attesting witnesses to the recovery memo went inside the room from where the gun was brought by Muhammad Afsar.

18. The position which emerged out from the above discussion was that the evidence on record suggested to discard the statement of Sultan E Muhammad alleged eye-witness and the site plan prepared by the concerned Patwari. The reason being that while preparing the site sketch no boundaries of adjacent survey numbers' were fixed, especially the line separating the Survey Nos.432 and 438 was drawn hypothetically. Moreover, it was not clear that on whose pointation the points on which the assailants, victim and the eye-witnesses were standing at the relevant time were specified. The distance from where the appellants hit both the victims as disclosed by the Patwari was 16 Karams (88 feet) whereas P.W. Sultan Muhammad was not able to see beyond two yards (6 feet). If the site plan is accepted to be correct then certainly P.W. Sultan Muhammad could not witness the firing by the appellants from such a distance as he could see only within 6 feet on account of his weak eyesight. Therefore, it is not safe to rely on such-like evidence, especially when the sun was down from horizon at the time of "Aftari" in Ramzan. How a witness whose eyesight was so weak that he was unable to see beyond two yards could see a person from a distance of 88 feet. After excluding the statement of Sultan Muhammad, the other ocular evidence which remained on record were the statements of Muhammad Sarwar complainant and his wife Mst. Shah Banoo.

19. Muhammad Sarwar though inimical and interested and as such his statement could not be given that much weight as that of a impartial anti independent witness but nevertheless, it could not be discarded simply on this ground. The incident took place at the time of "Aftari" and the witnesses normally expected to be present were the inmates of the house only. Thus, it was not reasonable to brush aside the testimony of this witness. However, held contradicted his wife Mst. Shah Banoo by excluding her from the ambit of direct evidence to the extent of shot fired by the principal accused, as per his statement, she came to the spot after she was attracted by firing sound.

20. Mst. Shah Banoo also claimed to be the eye-witness. Though she stood contradicted on this point by her husband but even if her testimony was accepted to be correct, her statement being the statement of a female could not be allowed to give a weight equal to that of a male witness while deciding the case of Qisas. According to Islamic Law, the standard of evidence required for sentence of Qisas was direct evidence of two adult male Muslims (Adil), who abstain from major sins and do not indulge themselves in minor sins. Thus, her evidence could only be a corroborative piece of evidence in the instant case.

21. Therefore, briefly stated, the evidence in this case at the most could be the statement of the complainant corroborated by his wife and other circumstantial evidence in shape of recovery etc. However, the recovery of rifle from Jan Muhammad (appellant) was not trustworthy for the reason that the same was not recovered at his pointation. Thus, this recovery alongwith Alms Expert Report to this extent stood discarded.

22. In the light of the evidence as discussed above both the accused were rightly held responsible for murder of the deceased and attempt to murder Mst. Shah Banoo.

23. Now the question arises as to what extent they could be punished fort their guilt. The standard of evidence for sentence of Qisas as stated earlier was not available in the instant case. Moreover, in this backdrop the death penalty was also not advisable in this case for the reason that the prosecution witnesses were inimical, inter-linked and interested and moreover the incident took place on felling of a Koil tree situated in Crown land where either party had equal rights, if any. Thus, in view of the overall facts anti circumstances of the case and the nature of evidence, the sentence of Qisas is converted into life imprisonment to the extent of Muhammad Khan. Another mitigating circumstance was that what enraged the appellants to have resort to firing when the complainant party did nothing except to decide to go back to their home when the appellants insisted to take away the tree felled by the complainant party. According to the statement of the complainant and his father they without uttering any harsh words decided to go back to their home. Thus, what prompted the appellants to resort to such a severe step was then shrouded in the mystery and this circumstance also suggested to confine the punishment to the extent of life imprisonment to Muhammad Khan and punishment to Jan Muhammad for the period he had already undergone in detention spreading over more than six years by giving them the benefit of section 382-B, Cr.P.C. Furthermore, the appellants had no enmity, rivalry, or personal grudge against the deceased rather he remained engaged in falling the tree handed over to the appellant by the arbitrators. The case-law cited at bar was also examined but the facts of the case in hand being not identical it was not felt expedient to discuss the same.

24. The result is that the appellant Muhammad Khan is convicted for life imprisonment for commission of offence under section 5, I.P.L and the appellant Jan Muhammad also stand convicted for commission of offence under sections 307/34, A.P.C. read with section 15, I.P.L., for the period he had already undergone in the detention. The term of life imprisonment in case of Muhammad Khan shall be 14 years as the incident pertains to year 1988. As earlier stated, the appellants shall be entitled to benefit under J section 382-B, Cr.P.C.

25. Therefore, keeping in view the circumstances of the instant case the criminality is not of such a nature to award a severe penalty like Qisas or death sentence. Thus, the reference made by the trial Court is not confirmed for the sentence of Qisas. The appeal also stands disposed of accordingly.

26. H.B.T./23/Sh.C.(AJ&K) Order accordingly.