' MUHAMMAD MUNIR KHAN, J.-- This Criminal Appeal No, 113 of 1982 and the connected Murder Reference No, 72 of 1982 arise from the judgment of learned Sessions Judge, Islamabad whereby he on 25-3-1982 convicted Javaid appellant (28) under section 302, P.P.C. For causing the death of Munawwar Khan (24) and sentenced him to death and a fine of Rs,5,000 in default thereof one year's R.I. With the direction that the fine if recovered be paid to the legal heirs of the deceased.
Banaras and Ijaz appellants were convicted under section 323/34, P.P.C. For causing hurt to the deceased and were sentenced to imprisonment already suffered by them.
2. The occurrence took place on 17-5-1979 at 5-30 p.m. In the area of Baradari within Mouza GoIra.
F.I.R. Exh.P.D. Was lodged at Police Station Golra on the same day at 6-15 p.m. By Khuda Bakhsh P.W.4 father of the deceased and was recorded by Nasrullah Khan A.S.I. P.W.9. The distance between the place of occurrence and the Police Station is 3/4 miles.
3. The motive as set up by the prosecution was that about one year before the occurrence the marriage of the daughter of Ghulam Muhammad P.W. a cousin of Khuda Bakhsh complainant was to be performed. Munawwar Khan deceased loaded Shamyana etc. On a truck. He passed that truck through the land of the appellants whereupon hot words were exchanged between Munawwar Khan deceased and Javaid appellant and they also grappled with each other but were separated by Ghulam Muhammad P.W.7. On the eventful day it so happened that in the morning a truck of the appellant was passing through the land of Munawwar Khan deceased who took exception to it and the truck was driven back. Munawwar Khan at that time had told the driver of the said truck that he had stopped the truck in retaliation because the appellant had not allowed his truck to pass through their lands a year back. On this the appellant were annoyed.
4. As far the main occurrence it has been stated that on the day of occurrence at 5-30 p.m., the three appellants wanted to take a truck through the land of Khuda Bakhsh complainant, the father of the deceased whereupon the complainant and his son Munawwar Khan deceased stopped them from doing so. Thereafter Javaid armed with .12 bore pistol, Banaras with a Ganthi and ljaz with Soti reached there. They declared that they would teach them lesson for not allowing their truck to pass through their lands. Banaras and ljaz gave Ganthi and Soti blows on the left thigh and head of Munawwar Khan, respectively. Javaid fired pistol shot hitting deceased on the right side of his chest who fell down. Banaras and ljaz appellant then inflicted him blows with their respective weapons when he was lying on the ground. Khuda Bakhsh raised alarm which attracted Qamar Iqbal P.W.5, Hafeez-urRehman P.W.6 and Zahid (not produced) to the spot. The appellants while threatening witnesses with dire consequences, ran away taking the weapons with them.
Munawwar Khan died on the spot.
5. On 17-7-1979 Nasrullah Khan A.S.I. P.W.9 took into possession crime empty P.5 from the spot vide Exh.P.F. Attested by Qamar Iqbal P.W.5 and Hafeez-ur-Rehman P.W.6.
6. On 18-5-1979 at 10-30 a.m. Dr. Agha Muhammad Zaffar P.W. 3 conducted post-mortem examination on the dead body of Munawwar Khan. He found following injuries on his person:-
(1) Seven pellet wounds of entry 3/8" in diameter with burnt edges of wound on front of chest right side below right collar bone and in front of right axillary fold 3" x 41/2" above right nipple between 10 and 1 o'clock position. Four in one row and 3 above these 4, with two exit wounds on back of chest right side at a distance of 2 inches from each other, 7 c.m. From mid-line and 26 c.m. And 31 c.m.
From 7th cervical spine. 4 pellets were dissected out from back of chest on area of wound of exit.
These were sealed in a phial and handed over to police. Right lung was perforated on its upper and lower lobe and right chest cavity was full of blood on internal examination.
(2) A lacerated wound on front of left thigh upper part 1" x 1" muscle deep.
(3) Diffused contusion 1" x 3/4" on front of head 3" behind hair line left to middle.
(4) An abrasion on front of left knee 3/4" x 4".
(5) An abrasion front of right knee 1" x 4".
(6) An abrasion on right thigh above right knee 34" x 3/4".
' On dissection haematoma was seen under scalp injury No,3. Right pleura was perforated under injury No,1. Heart was empty. Bladder contains about three ounces of urine. Intestines contained faecal matter and gases.
' In his opinion death was due to haemorrhage and shock as a result of injury No,1 which was sufficient to chause death in the ordinary course of nature. Injury No,1 was caused by fire-arm. The rest of the injuries were caused by blunt weapon. The duration between the injuries and death was immediate and between the death and postmortem examination was about 18 hours. In cross- examination, the Doctor stated that injuries 4, 5 and 6 could be sustained by a fall on hard surface and it was not correct that injury No,1 was the result of two shots.
7. Banaras and Ijaz appellants were arrested on 19-5-1979 and Javaid was arrested on 20-5-1979 by Nasrullah Khan A.S.I. P.W.9. On 30-5-1979, Javaid appellant led to the recovery of .12 bore pistol P.6 from underneath grass where it was concealed. It was taken into possession vide memo. P.G.
Attested by Ghulam Muhammad P.W.7 the cousin of the complainant and Jahandad (not produced). On 24-5-1979 Banaras and Ijaz had got recovered Ganthi P.7 (not blood-stained) and Soti P.8 (not blood-stained) which were taken into possession vide memoranda P.K. And P.L.
Attested by Naushad and Muhammad Aslam (both not produced).
8. To prove its case, prosecution examined 9 witnesses. Khuda Bakhsh P.W.9 father of the deceased, Qamar Iqbal P.W.5 second cousin of the father of the deceased and Hafeez-ur-Rehman (not related) have given the ocular account of the occurrence. They supported the main occurrence of the murder of Munawwar Khan as detailed above. They claimed to have seen Banaras and Ijaz giving Ganthi and Soti blows and Javaid appellant firing shot on Munawwar Khan resulting in his death. Qamar lqbal P.W.5, Hafeez-ur-Rehman P.W.6 and Nasrullah Khan A.S.I. P.W.9 have proved the recovery of crime empty P.5 from near the place of occurrence. Ghulam Muhammad P.W.7, Nasrullah Khan A.S.I. P.W.9 have also stated that Javaid appellant had got recovered .12 bore Pistol P.6 which was lying concealed. The Forensic Science Laboratory report Exh. P.Q. Reveals that crime empty P.5 had been fired from pistol P.6 recovered from Javaid appellant. Ghulam Muhammad P.W.7 stated that a year before the occurrence, on the occasion of the marriage of his daughter they had brought Shamyanas etc. On a truck but the appellants had not allowed them to pass through their land. Yameen Baig P.W.2 took sealed parcel of crime empty P.5 to Forensic Science Laboratory and delivered the same intact. Thereafter he was given a sealed parcel containing carbine/pistol P.6 which he delivered intact in Forensic Science Laboratory on 2-6-1979. The rest of the evidence is of formal nature.
9. When examined under section 342, Cr.P.C. The appellants denied all incriminating circumstances. They raised plea of false implication. In reply to the question as to why the case against him Javaid appellant stated:- "About one or one and a half years before the occurrence my brother Arif had injured Tabrez the brother of Hafiz-ur-Rehman P.W. They falsely invovled me and my brother Banaras accused in the said case, but we were acquitted. Then the son of Khan Khuda Bakhsh of Golra was murdered and a case was lodged against the Firs of Golra. My brother Banaras appeared as a prosecution witness in the said case. I appeared as a prosecution witness against the Pirs in a gambling case.
Due to this reason the Pirs party of Golra turned against us and they have falsely implicated us in this case."
In defence no witness was produced.
10. Trial Court has believed motive, ocular evidence and recoveries and has convicted the appellants for individual acts.
11. The learned counsel for the appellants argued that the eyewitnesses are not reliable; that the trial Court has not found the narrative of the prosecution case as "whole truth"; that the ocular evidence is not inconformity with the medical evidence inasmuch as there is a possibility that injuries 4, 5 and 6 were not caused by Banaras and Ijaz but were the result of fall of the deceased on the hard surface; that in the F.I.R. It has been stated that Banaras had given Ganthi blow on the shoulder of the deceased whereas post-mortem shows that there was no injury on his shoulder; that the presence of the empty is not mentioned in the F.I.R. As well as in the site plan; that there was inordinate delay in the despatch of the crime empty and the pistol P.6 allegedly recovered from the appellants to the Forensic Science Laboratory; that the recovery of pistol P.6 from the appellant shown to have been effected on the 18th day of the arrest of Javaid was in fact fake and that the prosecution has failed to prove its case beyond reasonable doubt. Conversely the learned counsel for the State supported the judgment of the trial Court.
12. We have considered the arguments advanced by the learned counsel for the parties with care.
We have not been able to persuade ourselves to agree with the learned counsel for the appellants.
We find that the F.I.R. In this case was lodged with great promptitude. The occurrence took place at 5-30 p.m. And the F.I.R. Was registered after 45 minutes i.e, 6-15 p.m. On the same day. There is nothing on record to doubt the genuineness of this valuable document which contains the names of the witnesses, accused, the weapons used by them and the manner in which the occurrence took place. The ocular account furnished by Khuda Bakhsh P.W.4, Qamar Iqbal P.W.5 and Hafeezur- Rehman P.W.6 is also confidence inspiring. No doubt Khuda Bakhsh and Qamar Iqbal are related to the deceased but relationship per se is not sufficient to discard their testimony. They have given plausible cause of their presence on the spot at the time of occurrence. Hafeezur-Rehman is not related with the deceased. He supports the statements made by Khuda Bakhsh and Qamar Iqbal P.Ws. The witnesses have successfully stood the test of cross-examination. We do not see any inherent infirmity in their statements. Learned counsel has not been able to point out any material contradiction, major discrepancy or dishonest improvements in their statements. The witnesses were subjected to lenghty cross-examination but nothing advantageously to the defence could be elicited. The witnesses had no motive to involve the appellants falsely in the case. The occurrence having taken place at 5-30 p.m. In the month of May, there could have been no difficulty in the identification of the offenders. No satisfactory basis for the substitution of the appellants for the real culprits have been laid down by the appellants. We do not see any noticeable conflict between the ocular evidence and the medical evidence. Mere possibility that injuries 4, 5 and 6 could be sustained by a fall on hard surface does not exclude the receiving of these injuries by the deceased with the blunt weapons used by Banaras and ljaz appellants. Furthermore there is nothing on record that the deceased had fallen on a hard surface. No doubt in the F.I.R. It was stated that Ganthi blow given by Banaras had hit near the shoulder of the deceased and that the medical evidence shows that there was no blunt weapon injury on his shoulder. The discrepancy cannot be fatal to the statements of the eye-witnesses inasmuch as the possibility of an honest error in the observation of the witnesses cannot be excluded. Qamar lqbal P.W.5 and Hafeez-ur- Rehman P.W.6 cannot be contradicted with the F.I.R. Which was not lodged by them. In their examination, they have not stated that the injury given by Banaras with Ganthi had hit at the shoulder of the deceased. The ocular account is in consonance with probabilities and fits in with other evidence and attending circumstances. The number and nature of the injuries and the number of the persons named by eye-witnesses as culprits, do commensurate. For all these reasons, we are of the view that conviction can safely be sustained on their uncorroborated testimony. In the case in hand we however find that the ocular account stands satisfactorily corroborated by strong circumstances which successfully connect Javaid appellant with the murder of Munawwar Khan deceased. The sealed parcel of crime empty was prepared on 17-5- 1979, it was despatched on 22-5-1979, brought back due to objections from the Forensic Science Laboratory and was finally sent to the Laboratory on 27-5-1979 intact. The .12 bore pistol P.6 was recovered from the appellant three days thereafter and as such the possibility of the tampering with crime empty or with the pistol stands completely eliminated. The Forensic Science Laboratory report shows that crime empty P.5 was in fact fired from the pistol/ carbine recovered from the appellant. The witnesses of the recovery having no against the appellant are quite independent witnesses.The learned counsel has not been able to impeach their credit. This circumstance not only tends to satisfy but has actually satisfied our mind that the eye-witnesses while stating that Javaid appellant had fired at Munawwar Khan causing his death had stated spoken nothing but truth. For all these reasons the submissions made by the learned counsel for the appellant do not hold any water. We feel fully convinced that the trial Court has rightly recorded the convictions of the appellants.
13. This brings us to the question of sentence which requires utmost care on the part of the Courts dealing with the life of the accused. Having given due attention to this question, we find mitigating/ extenuating circumstances in favour of Javaid appellant for lesser penalty, inasmuch as the origin of the occurrence appears to be shrouded in mystery and the possibility that the deceased might have uttered something which might have provoked the appellants more particularly Javaid, cannot be excluded. Khuda Bakhsh P.W.4 says that he was not present when the incident of stopping the truck of Munawwar Khan loaded with Shamyana, by the appellants took place a year earlier. Ghulam Muhammad P.W.7 stated that the appellant had stopped them from passing the truck a year earlier but no quarrel took place at that time. It may be noted that no untoward incident took place between the parties throughout the year. He has not stated about the incident which allegedly took place on the morning of the day of occurrence. Khuda Bakhsh complainant stated that he was not present at the place of occurrence in the morning of the day of occurrence when the deceased had stopped the truck of the accused. In these circumstances the reasonable possibility of the occurrence having taken place all of a sudden wherein the deceased might have used some provocative language cannot be excluded. Giving him the benefit of doubt on the question of sentence we alter the sentence of death to imprisonment for life. Fine awarded by the trial Court, sentence in default thereof and the directions for the payment of the fine when recovered to the legal heirs of the deceased given by the trial Court are maintained. The appeal and Murder Reference disposed of accordingly.
' THE DEATH SENTENCE IS NOT CONFIRMED.