M. S. H. QURAISHI, J. Mushtaq Ahmad petitioner was convicted under section 302 of the murder of Nadar Khan and Amir Sardar and was sentenced on each count to death and a fine of Rs. 2,000 or in default in payment of the same to R.
1. For one year each. His appeal before the Peshawar High Court having been dismissed by the impugned judgment dated 31-3-1.982, he has moved this petition for leave to appeal.
2: The occurrence giving rise to the case against the petitioner took place on 31-5-1980 at 10-30 a.m. In the shop of Malik Bahadur khan, situate in Qayyum Market, within 3/4 furlongs from City Police Station Bannu. Amir Sardar deceased, the Munshi, and Nadar Khan deceased, son of the said Malik Bahadur Khan were present at the shop. Musharraf Khan alias Malangi and Bahadur Zaman Khan, P. Ws., the driver and, bodyguard, respectively, of Malik Bahadur Khan, had also come to the shop to take some fruit as instructed by their master. It was then that petitioner Mushtaq Ahmad came armed with a Tamancha and standing in front of the shop fired at Nadar Khan hitting him as well as Amir Sardar, whereafter he fled away. Both the injured were removed to the District Headquarter Hospital. Muhammad Nazir Khan, A. S. I. Of another Police Station, that is, Bannu Sardar, who had come to the Hospital in connection with official duty, recorded the statement of Amir Sardar at 11-30 a.m., which formed the basis of the formal F.
1. R. In the case. After obtaining a certificate of fitness from the doctor, he then recorded .The dying declaration of Nadar Khan in the presence of the doctor who attested it. He prepared their injury statements as well. Nadar Khan was referred to Peshawar for treatment but he died soon thereafter the same day. Zarif Khan, the S. H. O. Concerned, on learning of the occurrence also came to the hospital and took charge of the case. He arrested the petitioner after some pursuit the same day. Nothing was recovered from his personal search. The S. H. O., however, recovered six empties (Exh. P. 1), three spent bullets (Exh. P. 2) and some pieces of a wooden desk (Exh. P. 3) from the spot. Muhammad Saeed A. S. I ; who had gone under his instruction to secure the crime weapon, recovered pistol (Exh. P. 7) from the shop of Nawab Nawaz Khan, according to whom it had been thrown there by the petitioner. Amir Sardar died in hospital on 6-6-1980 and thus his statement, too, became a dying declaration in the case.
3. The parties are related to each other. Nadar Khan deceased, as already pointed out, is the son of Malik Bahadur Khan (P. W: 10). The petitioner is a cousin of Nadar Khan, being the son of sister of Malik.Bahadur Khan. He is also the son of the daughter of aunt of Bahadur Zaman Khan (P. W. 14).
The latter is a cousin, i.e., son of paternal aunt of Malik Bahadur Khan.
4. No motive had been given in the F. I. R. But according to Tor Malik (P. W. 6) and Malik Bahadur Khan (P. W. 10), there had been an altercation between the petitioner and Nadar Khan deceased on the occasion of the marriage of Tor Malik's son some 2/3 days before the occurrence.
5. The medical evidence supported the prosecution case. Nine fire-arm injuries, of which five were inlet wounds and three exit wounds, were found on the person of Nadar Khan in the chest, lumbar and left leg. He had died due to injuries to liver, kidney and intestine leading to haemorrhage and shock. A fire-arm inlet wound below the left nipple and a graze wound on the left of the umbilicus had also been found on the person of Amir Sardar deceased whose death was "due to shock".
6. According to the report of the Forensic Science Laboratory, the crime empties had been fired from the pistol Exh. P. 7.
7. The ocular testimony was furnished by Musharraf Khan alias Malangi (P. W. 13) and Bahadur Zaman Khan (P. W. 14) whose names appear in both the dying statements. The petitioner admitted his relationship with the complainant party but denied the occurrence, the story of the motive, as also the recoveries. He explained his involvement as being the result of enmity with Malik Bahadur Khan on account of the mutation of property valued at about rupees 80 lacs, having been attested on 18-4-1976, in the name of his mother, which property had previously been in the name of Malik Bahadur Khan. He also stated that Malik Bahadur Khan was an influential person and that the, ocular witnesses who were his employees had deposed falsely at his instance.
8. The High Court treated the case as being without motive, or motive if any having been kept back by the prosecution. The High Court also excluded the recoveries as the evidence of Nawab Nawaz Khan who had gone back on his earlier statement and had to be subjected to cross-examination was not reliable and as "the pistol and the empties- had been kept back by the Investigating Agency for quite some time". The Court, however, found that the dying declarations and the ocular evidence had sufficiently substantiated the charge against the petitioner. It did not consider the absence of recovery of blood from the spot of any significance for in its view "the recovery of the empties would prove that the occurrence took place in the shop of Malik Bahadur Khan in Qayyum Market". As the murder had been committed in a cold-blooded manner and there was no reason at least for killing Amir Sardar; it confirmed, the death sentence.
9, Mr. A. K. Brohi, learned counsel for the petitioner, has urged that Nadar Khan deceased, considering the nature of the injuries sustained by him, could not have made the dying statement; that in any "case- it could not be relied upon having been made in the presence of Malik Bahadur Khan who was inimically disposed towards the petitioner; and that the statement of Amir Sardar not having been made in the expectation of death was not deserving of much weight. He further urged that no blood having been recovered from the spot, the place of occurrence could not be identified; that in view of the injuries being some 1/3" x 1/3" and others 1/4" x ----- in size, it was most likely that two weapons had been used, which meant that there were two assailants and that the difference in the level at which the shots bad been fired also showed that there had been more than one assailant. He stressed that the ocular witnesses being employees of Malik Bahadur Khan could not be relied upon particularly in the absence of any independent witness from near the scene of the occurrence which was a busy place. We have considered all these points and have gone through the material before us, but find no force in the arguments advanced. The dying statement of Nadar Khan had been recorded in the presence of the medical officer who had himself attested the same. Even though Malik Bahadur Khan might have been present when the statement was being recorded, but there is nothing to show that it was made at his prompting.
There is, however, no reason for the other deceased to have falsely named the petitioner as the assailant. Both the dying declarations are the earliest possible statements and the petitioner has been named as the only assailant in both of them. The presence of the ocular witnesses also not open to doubt. Their reason for having gone to the shop is quite plausible. They had no animus t e falsely implicate the petitioner. In fact, as pointed out earlier, Bahadur Zaman Khan P. W. Was related to the petitioner. A small difference in the size of the injuries is, in our view, not sufficient to hold that there were two assailants at the scene. If that were so, the deceased would not have omitted one of them. Nor does the question of .His substitution for the real culprit arise, particularly when he is closely related to the complainant party. The absence of blood at the spot was explained by Bahadur Zaman Khan in the words "No blood has oozed out at that time from the two deceased". Considering the location of the injuries, the explanation is not implausible. Anyway, the point has been adequately dealt with by the High Court and we see no reason to disagree with its view. We are thus satisfied that no case is made out for interference with the impugned judgment of the High Court. The petition is dismissed and leave to appeal refused.