' Ghazi Khan, Zarif Khan and Sher Bahadur Khan, sons of Noor Khan, residents of Marmandi, Police Station Musa Khel, Mianwali, were convicted on 13-3-1982, by the learned Sessions Judge, Mianwali, under sections 302'34 and 307/34, P.P.C. They were sentenced to imprisonment for life and a fine of Rs,1,000 each or in default in payment of fine to undergo R.I. For one year under section 302/34, P.P.C. They were further sentenced to undergo R.I. For three years and a fine of Rs,500 each or in default in payment of fine to undergo R.I. For six months under section 307/34, P.P.C. The substantive sentences were ordered to run concurrently. The fine under section 302/34, P.P.C., if recovered, was ordered to be paid to the heirs of the deceased as compensation. The aforesaid three convicts filed appeal against their convictions and sentences. Muhammad Nawaz filed revision petition against the three convicts for the enhancement of their sentences awarded under section 302/34, P.P.C. From life imprisonment to death. The revision petition was ordered to be heard alongwith the criminal appeal.
2. On 13-5-1977, at about 3.00 p.m., Sher Samand Khan deceased, accompanied by Haq Dad P.W., was returning to his house from his thrashing field. When he reached Dera Abbas Khelanwala in the area of village Marmandi, Ghazi Khan, Zarif Khan and Sher Bahadur Khan appellants came out of their hiding place, armed with guns. They threw challange at the deceased that they would not allow him to escape and would avenge the insult of Mst. Nooran. Ghazi Khan appellant fired first shot which hit Sher Samand Khan deceased on the right loin region. The deceased fell down. Zarif Khan appellant fired shot which hit Haq Dad P.W. Sher Bahadur Khan fired shot but it did not hit the target. Besides Haq Dad, the occurrence was witnessed by Haq Nawaz Khan P.W.10.
' The appellants suspected their sister Mst. Nooran of having illicit relations with Ayub Khan, a relative of the deceased . This was stated to be the motive for the murder of Sher Samand Khan.
3. Rana Abdus Sattar, Additional S.H.O., Police Station Musa Khel, was present at bus stand Musa Khel, near Wan Bhachhran Road Mor, on 13-5-1977, Haq Dad and Haq Nawaz Khan P.Ws brought Sher Samand Khan to Musa Khel in a truck in an injured condition. Sher Samand Khan made statement Exh.P.V. Before Rana Abdus Sattar, Additional S.H.O., on 13-5-1977, which was completed at 4.15 p.m. This statement was recorded at Wan Bhachhran Road Mor. Formal F.I.R. Exh.P.V ./1, under section 307/34, P.P.C., was recorded the same evening at 4.30 p.m. The Additional S.H.O prepared the injury statements of Sher Samand Khan and Haq Dad and sent them to Civil Hospital, Mianwali.
He reached the spot the same day and took into possession blood-stained earth from the place where Sher Samand Khan was injured and sealed it into a parcel. He collected crime empty lying at a distance of five Karams from the place of recovery of blood-stained earth and sealed it into a parcel. He took into possession another empty cartridge lying at a distance of 33 Karams from that place and sealed it into a parcel. He took into possession a sealed phial containing pellets which were produced by Falak Sher F.C. He sent four sealed parcels to the police station through Falak Sher F.C., on 14-5-1977.
' The case was partly investigated by Ahmad Yar S.H.O. P.W.
11. He took over investigation on 14-5-1977. He searched for the accused. He came across Ghazi Khan and Zarif Khan appellants at a distance of about half a mile from the village. He chased the two appellants and apprehended them. He recovered gun P.6 and bandolier P.7/1-10 from Ghazi Khan appellant. He recovered gun P.8 and also bandolier containing 7 cartridges P.9/1-7 from Zarif Khan appellant and sealed them into separate parcels. The memos. Were attested by Muhammad Nawaz and Abbas Khan P.Ws. The S.H.0 prepared the rough plans of the places of recoveries. On receipt of Ruqqa from the doctor, Masud Aziz S.I. Moved an application Exh. P.B. For recording the dying declaration of Sher Sammand Khan. On receipt of said application, Sh. Ghulam Rasool, Magistrate 1st Class, Mianwali, P.W. 2 wrote order at Exh.P.B./1 and reached D.H.Q Hospital. The Medical Officer gave certificate Exh. P.C. On 13-5-1977, at 6-50 p.m. That Sher Sammand Khan was fit to make statement. The Magistrate recorded the statement of Sher Samand Khan Exh. P.D and obtained his thumb-impression thereon. He obtained certificate Exh. P.F. From the doctor that Sher Samand Khan remained conscious during his statement. The Magistrate appended his certificate as Exh. P.E. Sher Samand Khan expired on 16-5-1977 at 9.50 p.m. The offence was amended to section 302/34, P.P.C. Ahmad Yar S.H.O. Prepared the inquest report of the deceased and sent the dead body for post-mortem examination.
' On 29-5-1977, Rana Abdus Sattar, Additional S.H.O, raided the house of Sher Bahadur Khan appellant. The said appellant took to his heels but was given chase and apprehended. Sher Bahadur Khan was interrogated. He led the police to his house and produced gun P. 3 from inside the stock of Bhoosa. The gun was sealed into a parcel. The Additional S.H.O appended notes with red ink on site plans which were prepared by Ghulam Haider Patwari. Muhammad All Muharrir Head Constable had died. Secondary evidence was led to prove the entries in register No, 19.
' The guns recovered from Ghazi Khan and Zarif Khan appellants matched with the two crime empties recovered from the spot. The gun recovered from Sher Bahadur Khan appellant was in working order but no opinion could be given as to when it was last fired.
4. The prosecution produced evidence in order to prove two dying declaration; one made before Rana Abdus Sattar, Additional S.H.O, and the other before Ghulam Rasool, Magistrate 1st Class. Haq Dad P.W. 9 and Haq Nawaz Khan P.W. 10 were examined as eye-witnesses. Abbas Khan (not produced) and Muhammad Nawaz P.W. 8 was produced to prove the recoveries, mentioned in the earlier part of the judgment. Ahmad Yar PW. 11 and Rana Abdus Sattar, Additional S.H.O. P.W. 12 supported their investigation.
5. Dr. Muhammad Anwar Khan P.W. 4 medically examined Sher Samand Khan, on 13-5-1977, at 5.15 p.m. He found the following injuries on his person:-
(1) A gun shot wound of entry 5 c.m. x 21 c.m on the lateral aspect of right lumber region, 31 c.m above the crest of iliac bone. It was profusely bleeding.
(2) A gun shot wound 21 c.m x 1 c.m, 3 c.m. Behind injury No,1. It was skin deep.
(3) Multiple small laceration in an area of 15 c.m x 8 c.m surrounding injury No,l.
' The injuries were caused with fire-arm within a duration of two hours. The injuries were kept under observation.
6. The same doctor medically examined Haq Dad, the same day, at 7-15 p.m. And found the following injuries on his person:-
(1) A small circular wound of fire-arm 1/4 c.m x 1/4 c.m on the outer side of left eye, 2 c.m from the outer angle of left eye.
(2) A small gun shot wound 1/4 c.m. x 1/4 c.m. On the upper part of left shoulder with the pellet peeping through the wound, which was removed and handed over to the police.
(3) Small gun shot wound 1/4 c.m x1/4 c.m on the right side of abdomen, 4/ c.m from the umbilicus.
(4) A lacerated wound 11/2 c.m. x 1/2 c.m. On the back of right shoulder.
(5) A bruise 9 c.m x 1/2 c.m on the back of right shoulder and back, and right axilla in continuation with injury No, 4.
' All the injuries were simple. Injuries Nos. 1, 2 and 3 were caused by fire-arm while injuries Nos. 4 and 5 with blunt weapon within a duration of four hours. The doctor stated that he informed the police about the condition of Sher Samand Khan and on the same day, the police came to the hospital alongwith the Magistrate. He gave certificate Exh. P.C. That Sher Samand Khan was fit to make statement. The doctor stated that in his presence the Magistrate recorded the statement of Sher Samand Khan Exh. P.D. The doctor further stated that he gave certificate Exh. F.F. That Sher Samand Khan remained conscious throughout his statement.
' The same doctor conducted autopsy on the dead body of Sher Samand Khan, on 17-5-1977, at 10 a.m. He noted the same injuries as mentioned in the medico-legal report. On opening the abdomen, the wall of he abdomen was found injured in the right lumber region. Caecum was injured. The right pelvis bone was broken into many pieces. In the opinion of the doctor, the death was due to fulminating faecal, peritonitis due to perforation of caecum as a result of injury No,
1. All the injuries were caused with fire-arm. Injury No, 1 was sufficient to cause death in the ordinary course of nature. The time between injuries and death was four days and between death and post-mortem about twelve hours.
7. The three appellants denied the prosecution allegations. They did not admit the recoveries of guns. They attribute the case to enmity.
8. The learned counsel for the appellants took me through the entire record. It was contended by him that the prosecution failed to prove the motive in the case and it was rightly held so by the trial Court; that the dying declaration Exh. P.V. Could not be acted upon as six persons were present when the same was made and the possibility of prompting could not be ruled out; that the dying declaration Exh. P.D. Was liable to be rejected as there was sufficient time for other relatives to influence the deceased; that both the eye-witnesses, namely, Haq Dad and Haq Nawaz Khan were closely related to the deceased and thus interested; that Haq Dad and Haq Nawaz Khan were chance witnesses; that the two eye-witnesses made false statements with regard to the motive and thus their statements, regarding the main occurrence, could not be relied upon;that injuries of Haq Dad P.W. Had been fabricated; that the medical evidence contradicted the ocular evidence; that the prosecution story of running the deceased towards the appellants was not plausible; that the deceased could have run away in the other direction instead of running towards the appellants; that the evidence of recoveries of guns was rightly rejected by the trial Court; that the trial Court, for valid reasons, did not take into consideration the report of the Fire-arms Examiner; that injuries to Sher Samand Khan and Haq Dad could result by a single fire and it was the act of a single person.
9. The learned counsel for the State supported the convictions. He submitted that the motive was poved in this case; that nobody prompted the deceased at the time of making the dying declaration; that medical evidence did not contradict the ocular evidence; that relationship was no ground for discarding the evidence of the two eye-witnesses and the two recovery witnesses as the eye-witnesses and the recovery witnesses had no direct enmity with the appellants; that Sher Bahadur had fired shot at the time of occurrence but his shot missed the target.
' The learned counsel for Muhammad Nawaz contended that leniency has been shown in the matter of sentence and it was a case of capital sentence.
10. The contentions of both the parties have been considered in the light of the evidence on record.
The three appellants, Sher Samand Khan deceased, Haq Dad, Haq Nawaz Khan, Muhammad Nawaz and Abbas Khan were related inter se. Jafar Khan, the great-grand-father of Haq Dad P.W., Muzaffar Khan great-grand-father of Sher Samand Khan deceased and Muhammad Nawaz P.W.
And Yar Gul Khan great-grandfather of the appellants were real brothers. Haq Nawaz Khan was a first cousin of Haq Dad P.W. Sister of Haq Nawaz Khan was married to Haq Dad P.W. Muhammad Nawaz P.W. Was son-in-law of Haq Dad P.W. Daughter of Muhammad Nawaz from his first wife, was married to the son of Haq Dad P.W. Zarif Khan appellant was married to the daughter of Ayub Khan, who was brother-in-law of the deceased in relation. There was no previous enmity between the parties except that Ghazi Khan and Zarif Khan appellants were challaned two years before the occurrence and acquitted two months before the occurrence in a case under section 324/34, P.P.C.
For causing injuries to Umar Hayat, son of first cousin of the deceased, named, Mst. PhulIan Khatoon. It was a day time occurrence.Since there was no direct enmity between the parties, it could not be legitimately argued that the deceased,his brother Muhammad Nawaz and relatives Haq Dad, Haq Nawaz Khan and Ghulam Abbas P.Ws. Were interested witnesses. None from the prosecution witnesses or deceased was a witness against Ghazi Khan and Zarif appellants in the aforesaid hurt case. As mentioned earlier, the deceased and the prosecution witnesses were related to the appellants. On account of these circumstances, I cannot hold that the deceased and the prosecution witnesses had motive for falsely implicating the appellants. They could not come in the category of interested witnesses.
11. The occurrence took place at about 3 p.m. Arrangements were made for taking Sher Samand Khan in a truck to Musa Khel. The statement of Sher Samand Khan Exh.P.V. Was completed by 4-15 p.m. The same day The said statement had been recorded without any loss of time. There was no time for deliberation and concoction of a false story. There was neither any evidence nor a suggestion that certain other persons had been prompting Sher Samand Khan when the latter was making statement to Rana Abdus Sattar, Additional S.H.O. An application Exh.P.B. Was moved on 13- 5-1977, by S.I. Sh. Ghulam Rasool Magistrate recorded the dying declaration Exh. P.D of Sher Samand Khan after getting certificate from the Medical Officer to the effect that Sher Samand Khan was capable of making statement. In both the dying declarations, Sher Samand Khan had involved Ghazi Khan as the person whose fire shot hit him and Zarif Khan as the person whose fire shot hit Haq Dad P.W. He had named Haq Nawaz Khan as eye-witness in both the statements. The evidence of dying declaration was a material piece of evidence. The deceased was in a serious condition. He had no motive to involve Ghazi Khan and Zarif Khan falsely in the case. The dying declaration received corroboration from the medical evidence. Sher Samand Khan deceased and Haq Dad P.W. Had fire shot injuries.
12. I cannot agree with the learned counsel for the appellants that the injuries of Haq Dad had been fabricated. The said witness had fire shot injuries and the seats of injuries clearly indicated that he was fired at by his assailant and the injuries had not been caused with a friendly hand. Another argument could be advanced that in case the intention of prosecution was to show the presence of Haq Dad, by fabricating injuries, injuries could also be fabricated on the person of Haq Nawaz Khan P.W. The absence of injuries on the person of Haq Nawaz Khan P.W. Negated the argument of the learned counsel for the appellants that injuries of Haq Dad had been fabricated. Haq Dad accompanied the deceased to the thrashing field of the deceased. Being close relative, he was expected to give some help, if asked for it. There was nothing unnatural in it. The other eye-witness Haq Nawaz Khan was going to Musa Khel to enquire about the health of his brother-in-law Azim Khan. Both the witnesses were cross-examined at length. The statements of the two eye-witnesses were consistent. I have not come across any material discrepancy worth mentioning in the statements of the two eye-witnesses. The learned counsel for the appellants failed to show as to how the ocular evidence was contradicted by the medical evidence. The Dera of Abbas Khelanwala was situated towards the west of the spot. It appeared that the deceased had run towards that direction but was given chase and murdered.
13. Ahmad Yar S.H.O arrested Ghazi Khan and Zarif Khan appellants on the following day of the occurrence. Both the appellants were carrying one gun each and some cartridges which were recovered from their possession. The guns were sealed into separate parcels. The relevant recovery memos. Were attested by Muhammad Nawaz P.W. 8 and Abbas Khan son of Noor Khan (not produced). Muhammad Nawaz and Ahmad Yar supported the said recoveries. Although Muhammad Nawaz was a real brother of the deceased, his statement could not be brushed aside on account of his relationship. He had no motive to make false statement. Two empty cartridges had been recovered from the spot and sealed in to parcels. Four sealed parcels, including two sealed parcels of empties, were given by Rana Abdus Satter, Additional S.H.O. To Falk Sher F.C. On 14-5-1977. Falk Sher F.C. P.W. 5 stated that he delivered those sealed parcels to Muhammad Ali Moharrir the same day. The evidence was brought on record that entries in respect of all the parcels of empty cartridges were made in register No, 19 of the Police Station on 15-5-1977. It was immaterial that instead of 14-5-1977, the parcels were delivered to the Moharrir on 15-5-1977. The parcels of empty cartridges were given to Falak Sher F.C. On 20-5-1977 who delivered those parcels in the office of Director, Forensic Science Laboratory, on 21-5'-1977. One gun was recovered from Sher Bahadur Khan appellant on 29-5-1977 and it was received by the Moharrir the same day.
Three parcels, containing guns,were given to Gul Muhammad F.C., On 31-5-1977, who delivered the parcels intact in the office of Fire-arms Examiner. The report of the Fire-arms Examiner Exh. P.C.C.
Proved that the two empties, recovered from the spot, were fired from the guns recovered from Ghazi Khan and Zarif Khan appellants. The learned Sessions Judge did not take into consideration the report of the Fire-arms Examiner for the reason that the parcels, containing empties, were sent to the police station on 15-5-1977, a day after the recovery of guns from the two appellants. In case, the Investigating Officer had the intention of creating evidence, he would have shown the recovery of three cartridges from the spot instead of two. If it had been a dishonest investigation, the Investigating Officer could conveniently fabricate the evidence with regard to the fire shot of Sher Bahadur appellant. This fact leans heavily against the arguments of the learned Sessions Judge.
There is not an iota of evidence to suggest that there was dishonest investigation. It is not necessary that in each case the positive evidence of matching the empty cartridges with the guns should be rejected on the sole ground of delay in sending the parcels to the Fire-arms Examiner. It all depends on the nature of the investigation. Such inference is to be drawn only if the Court comes to the view that the investigation was not honest. The learned Sessions Judge erroneously discarded the report of the Fire-arms Examiner. The two guns, recovered from Ghazi Khan and Zarif Khan appellants, were used in the commission of the present occurrence. There was positive evidence of the Fire-arms Examiner in that regard. It was a material piece of evidence against Ghazi Khan and Zarif Khan appellants.
14. It is clearly made out from the evidence that in fact the appellants had the motive against the deceased. Sher Samand Khan deceased simply stated in his dying declaration Exh.P.V. That the accused suspected their sister Mst. Nooran of having illicit relations with Ayub Khan who was his deceased's brother-in-law. If the motive had been against Ayub Khan, there was no reason to commit the murder of Sher Samand Khan. The accused had given out a Lalkara that they would take avenge of Badnami of Mst. Nooran. The deceased did not give any motive in his dying declaration Exh.P.D. Which was recorded by the Magistrate. Haq Dad P.W. Made an attempt to make improvement over the dying declaration of Sher Samand Khan Exh.P.V. In respect of the motive by stating that two months before the occurrence, Ghazi Khan appellant had asked the deceaseed that he should tell Ayub Khan to desist from his connections with Mst. Nooran but Sher Samand Khan replied that he had conveyed it to Ayub Khan, who replied that he was innocent in the matter. The witness further stated that Ghazi Khan insisted that there was such a connection and that the deceased should ask Ayub Khan to desist but Sher Samand Khan told Ghazi Khan that Ayub Khan was innocent. Even from the said statement of Haq Dad P.W. No motive against the deceased was made out. Both the eye-witnesses stated that the accused threw the challenge that Badnami of Mst. Nooran would be avenged. It was apparent from the evidence, referred to above, that the motive was against the deceased and not Ayub Khan.
15. The case of Sher Bahadur appellant was distinguishable from the case of Ghazi Khan and Zarif Khan appellants. Only two cartridges were recovered from the spot. The shot fired by Sher Bahadur Khan had not hit the deceased or any of the witnesses. Although the deceased and the two eye- witnesses named Sher Bahadur Khan as one of the assailants, he is entitled to acquittal on the principle of abundant caution. The appeal of Sher Bahadur Khan is accepted and he is acquitted of the charge. He is on bail and he is discharged of his bail bonds.
16. In view of the discussion in the foregoing paras. I hold that the prosecution succeeded in proving the case against Ghazi Khan and Zarif Khan appellants beyond reasonable doubt. They were rightly convicted for offences under sections 302/34 and 307/34, P.P.C. Since the family honour was involved, proper sentences were awarded by the learned Sessions Judge. The appeal, filed by Ghazi Khan and Zarif Khan is dismissed. Both these appellants are on bail. They shall be arrested and sent to jail for serving the unexpired period of their imprisonment.
17. The revision petition, filed by Muhammad Nawaz, for the enhancement of sentences of Ghazi Khan and Zarif Khan is dismissed .