ASLAM RIAZ HUSSAIN, J.--This order will dispose of Criminal Petition No. 414/81 filed by Masti Khan convict against his conviction and Jail Petition No. 76-R-81, filed by Mumtaz convict against his conviction.
2. Masti Khan and Mumtaz petitioners were accused alongwith Feroze and Ghaus Muhammad (acquitted co-accused) of the murder of Mumtaz deceased. The trial Court acquitted Feroze and Ghaus but convicted Masti Khan and Mumtaz petitioners under section 302/34, P.P.C. It sentenced Masti Khan to death and a fine of Rs. 2,000 (in default to undergo further R.I. For 1 year) and sentenced Mumtaz petitioner to imprisonment for life and a fine of Rs. 2,000 (in default one year's R.I.)
Both of them filed appeal before the High Court which was rejected vide the impugned judgment dated 19-9-1981.
3. The occurrence in this case took place at sunset the on 14-3-1976 on the Canal Bank in the area of Village Kund, Tehsil and District Khushab. The report was lodged by Nazar Muhammad P.W.8 (a cousin of the deceased) to Ataullah Khan Niazi, S.I. (P.W. 15) whom he met in the way while proceeding to the Police Station. The Sub-Inspector then despatched the statement of Nazar Muhammad complainant to the Police Station for recording the formal F.I.R. And registration of the case while he himself accompanied that complainant to the place of occurrence. Therefore he recovered the blood-stained earth, an empty .12 bore cartridge and an empty .303 shall, a milk container (P. 3) and Torch (P. 7).
4. The accused were arrested subsequently and .12 bore gun (P. 10) with live cartridges was recovered from Masti Khan which matched with 2 empty recovered from the spot, and a rifle (P. 12) with live cartridges was recovered from Ghaus Muhammad. A hatchet (p 14) was recovered at the instance of Mumtaz which was found to E . Stained with human blood, A hatchet and .303 gun were recovere: from Feroze and Ghaus Muhammad (acquitted co-accused), respectively
5. The following injuries were found on the dead body of Mumtaz deceased during the post- mortem examination:-
(1) Four wounds of inlet 1/4" x 1/2" in radius on back at lumber region 8" lateral to amblicus and five inch lateral to medial line at back. One wound of outlet 1/4" x 1/8" in diameter on left side of abdomen 3" lateral to amblicus four pellets were collected sealed in a bottle and handed over to police.
(2) Incised wound 5" x 4" bone deep circular at middle of right arm and below from the wound bone is free from muscle upto 1--- above the elbow joint. The lower end of wound is not regular.
The rest part of the body upper limb is missing and cut away.
6. The motive for the occurrence is stated to be that Muhammad Nawaz brother of the deceased sold 9 Kanals of land of Mumtaz alias-- Tazu accused` and the deceased filed a suit for pre- emption pending in the Court of learned Civil Judge, Jauharabad, about 1-- ears prior to the occurrence and altercation between the deceased and Mumtaz accuse took place early in the morning on the day of occurrence. The decease: abused Mumtaz accused and the latter threatened him for filing the said pre-emption suit with dire consequences.
7. The prosecution case, briefly, is that Nazar Muhammad P.W.: had his land at a distance of 1 mile towards the South of abadi Bharka and had a cattle shed in it. Mumtaz deceased has also a cattle she which is close to the Dera of Nazar Muhammad complainant. On 14-2-191 at about sunset Nazar Muhammad complainant P. W.8 and Mumtaz decease were coming towards the village and carrying milk with them. Whe they reached the bank of Rajbah Khushab Jauharabad Branch adjacent to the land of Ghaus Muhammad P.W. 11 accused Masti Khan armeo3 with a gun. Ghaus Muhammad armed with a rifle. Mumtaz alias Tazu and Feroze armed with hatchets emerged from the bushes. They challenged the deceased saying that they would teach him a lesson for filing the pre-emption suit. Mumtaz deceased tried to run in order to save his life whereupon Masti Khan accused fired a shot hitting him on, his right flank who fell down on receiving the injury. Mumtaz alias Tazu accused inflicted a hatchet blow on the right arm of the deceases3 and asked Feroze accused to chop of his arm. On this Feroze at Mumtaz accused placed their foot on the shoulder of Mumtaz decease's and pulled the arm. Due to this muscle of the arm got detached from --the bone. Thereafter, Feroze accused gave hatchet blow on the arm and cut it of. The amputated arm of the deceased came in the hands of Mumtaz accused. Ghaus Muhammad P.W. 11 who was present in his nearby field reached there and saw the occurrence. Both Nazar Muhammad P.W. 8 and Ghaus Muhammad P.W. 11 tried to intervene but Ghaus Muhammad accused fired his rifle at him which did not hit him. The accused then fled away firing in the air towards bridge of canal alongwith their respective weapons. Ahmad Nawaz and Muhammad Sher P.Ws. (not produced) saw the accused running from the spot and Mumtaz succumbed to the injuries received by him.
Leaving Ghaus Muhammad P.W. 11 to guard the dead body Nazar Muhammad complainant went to the Police Station to ledge the F.I.R. At Bus Stand Khushab 3/4 Furlongs away from the Police Station he met Ataullah Khan Niazi S.I. (P.W. 15) who got recorded his statement (Exh. P. 4) and sent it for recording the formal F.I.R.
8. At the trial the prosecution relied on the ocular testimony of Nazar Muhammad P.W. 8 (a cousion of the deceased) and Ghaus Muhammad son of Habib P.W. 11, the evidence of recovery motive and the medical evidence.
As stated earlier the learned trial Court acquitted Feroze and Ghaus, giving them the benefit of doubt, but it convicted Masti Khan and Mumtaz petitioners who, lost their appeal before the High Court, have now filed the to petitions under consideration.
9. The learned counsel for the petitioners submitted that the fact that the F.I.R. Was recorded at the Bus Stand and not at the Police Station is a very suspicious circumstance which reflects on the veracity of the entire case. In the circumstances of this case, however, we do not consider this fact to be material, at all. The contention is, therefore, repelled as having no force.
10. The counsel then urged that the testimony of the eye-witnesses is not reliable and that the recoveries are doubtful. But he has not been able to substantiate contentions.
11. We have also gone through the impugned judgment and the grounds of the petition filed through Jail by Mumtaz.
After carefully considering the matter we have formed the view that the petitioners were rightly convicted by the trial Court and that the High Court was justified in dismissing their appeal. The to petitions are, therefore, dismissed as being without merit.
M. I.