BASHIRUDDIN AHMAD, .J.-Ghalib Husain (20) and his younger brother Abdul Basit (13) were tried for the murder of Muhammad Munir, in furtherance of their common intention, on August27; 1966, by the Additional Sessions Judge, Bahawalpur, at Bahawalnagar, who acquitted Abdul Basit, but convicted Ghalib Husain under section 302, P. P. C. And sentenced him to suffer death.
2. The convicted person appealed and the case is also before us on reference under section 374, Cr. P. C., for confirmation of the death sentence. We propose to dispose of the appeal as well as the reference by a single judgment.
3. The case for the prosecution, briefly narrated, is that the appellant along with his brother had been demanding their share of the land left by Muhammad Rafiq and Muhammad Zaman; who were put to death some time before the present occurrence. The estate of the deceased persons had to be mutated in the names of Muhammad Iqbal, his brother Ghulam Farid and their sister Mst.
Khudeja Begum. The appellant and his brother were considered not entitled to the inheritance of Mohd. Rafiq and Mohd. Zaman in the presence of Muhammad Iqbal, Ghulam Farid and Mst.
Khadeja Begum. They, however, insisted that the land should be divided and they should also be given a share out of it. They were told to wait till the decision of the case relating to the deaths of Muhammad Rafiq and Muhammad Zaman. Mst. Khudeja, the mother bf the deceased person in this case, declared that she would make a gift of her share to Muhammad Munir. On the night preceding the day of the alleged occurrence, the appellant and his brother again approached Muhammad Iqbal and Msr. Khudeja Begum for their share in the land. Mst. Khudeja Begum told them in clear terms that she could not deprive Muhammad Munir of the land, whereupon the appellant and his co-accused left the place threatening to take revenge.
4. On the eventful day, at 10-30 a.m., Muhammad Iqbal was present with Muhammad Munir, his mother Mst. Khudeja Begum and Mst. Sakina in their haveli. Muhammaq Iqbal had kept his licensed gun, which was loaded, on his cot out of fear of reprisal from his enemies who were responsible for the murders in his family. The story goes that the appellant and his co---accused went to the haveli of Muhammad lqbal and sat on his cot. The appellant picked up the loaded gun of Muhammad Iqbal and at the instigation of his co-accused fired at Muhammad Munir, who was mortally wounded on the right side in the chest and dropped to the ground. He died shortly afterwards. Mst. Khudeja Begum and Mst. Sakina also witnessed the occurrence. The assailants escaped. The gun was taken away by the appellant.
5. After the occurrence, Muhammad Iqbal proceeded to McLeod Ganj Police Station;-at a distance of five miles from the scene of the tragedy and reaching there at 1-00 p. m. The same day, lodged the report, Exh. P. A. After scribing the report, S. I. Nawaz Haq (P. W. 14) visited the spot, prepare the injury-sheet and the inquest report relating to Muhammad Munir and then despatched the dead body to the mortuary for post-mortem exami--nation. He took into possession blood-stained earth from the spot and sealed it into a parcel. Suba Khan (P. W. 12) and Muhammad Iqbal son of Abdul Aziz (P. W. 13) were associated with the investigation and in their presence, the S. I. Recovered the gun, Exh. P. 1, and two empty cartridges, EXhs. P. 2/l-2 from the appellant near Pattan Rateka. The gun 4nd the crime cartridges were sealed into parcels separately. The appellant was arrested on August 30, 1966.
6. Dr. Gulzar Ahmad Dogar (P. W. 1) performed the post---mortem examination on the dead body of Muhammad Munir deceased on August 28, 1966 at 8-30 a. m. And found a fire-arm wound on the front side of the chest, towards right side, 1--" in diameter, 1" below, the right clavical and 2" lateral to the mid---sternal line. The wound went right through the chest and opened on the back.
It was circular and its margins were inverted. The skin round about the wound was not black, but the areas of the shirt round about the aperture was blackened about 2" in diameter (entrance) on the back of chest on the right side at a point,' 4" from the mid-line and 6" below the upper border of right shoulder four + one =five apertures or wounds in an area 2" in diameter. The wounds were fire-arm wounds with everted margins. They were, directly connected with the wound on the front 1-- x --,1/3x 1/3", 1/3"x 1/3", --" x 1/3", and --"x1/3 ". (The wound is of exit). There was no blackening on the skin.
The injuries, in the opinion of the doctor, were sufficient to cause death in the ordinary course of nature. The cause of death was shock and haemorrhage.
7. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. Explaining why he had been implicated in the case, the appellant made a detailed statement at the' trial which is reproduced below for the sake of convenience: -- "My father Nur Ahmad was murdered on 27th April 1966, I was minor. My brother Bash and two others were also minors. The property left by my deceased father was joint with Muhammad Iqbal and Ghulam Farid P. Ws. Who along with their sister Mst. Khudeja P. W. Grabbed the whole of it and refused to give any produce of the property to us. So much so that they did not allow the mutation of inheritance of our deceased father's property to be effected in our name. We had been requesting them for the release of our property to us but they were not parting with it up til now the Mutation of inheritance has not been effected in our name on' account of the obstacles created by these persons. Moreover, these persons had become inimical to us because they were from a mother who was not Khalsana by tribe whereas our mother was Khalsana by tribe, which led to the murder of our father and uncles. There was a long standing enmity between these P. Ws. With us.
They have involved us falsely in this case in order to remove us from their way and to enjoy the whole produce of the property left by our deceased father and also to take revenge of the first murder from us. Muhammad Iqbal P. W. Came to Peepal Khalsana only on the morning of the occurrence. It is not known to us how Munir was killed on that day in the haveli. On 27th July 1967, Muhammad Iqbal P. W. Along with Lashkar Manzoor and one another under conspiracy with his brother Ghulam Farid P. W. Opened fire on the accused of first murder case while they were coming under police escort from Bahawalnagar Jail to attend the Court of A. D. M., Bahawalnagar. Some of the accused were killed and the other seriously injured. Gun, Exh. P. 1, was also used in this firing and recovered from the companion named Lashkar/ of Muhammad Iqbal .P. W. Similarly, rifle and ammunition was recovered from Iqbal and Lashkar who were also injured, At thetime of their arrest in this case, Iqbal was injured while putting resistance. I produce certified copy of the F. I. R. Of that murder case as Exh. D. B. The prosecution witnesses are inter-related while the recovery witnesses are the stock witnesses of the police and partisan of complainant party."
8. No evidence was produced in defence.
9. At the trial Muhammad Iqbal (P. W. 10) and his sister Mst. Khudeja Begum (P. W. 11) furnished direct evidence. The gist of their evidence is that after the murders of their brothers Muhammad Rafiq and Muhammad Zaman, who were unmarried, the appellant and his co-accused started demanding a share in the property left by them. They were told that they were not entitled to any share in the land. Mst. Khudeja Begum said to them that she would gift her share in the land to Muhammad Munir, her son. The witnesses continued that on the night preceding the day of the alleged occurrence, the appellant and his brother Abdul Basit had come to their house and again demanded a share out of the property left by Muhammad Rafiq and Muhammad Zaman. Mst.
Khudeja told them that she could not possibly deprive her son Muhammad Munir of the property.
On the eventful day, at about 10-30 a.m., Muhammad Iqbal, his sister-in-law Mst. Sakina and Mst.
Khudeja Begum were present in their haveli. The gun Ehx. P. 1, belonging to Muhammad Iqbal, which had been loaded, waste lying on the cot, on which Muhammad Iqbal was sitting. The appellant and his brother came there. Ghalib Husain appellant picked up the gun and at the instigation of his brother Abdur Basit fired at Muhammad Munir hitting him in the chest. Both the brothers then ran away taking the gun with them.
The story in regard to motive; as narrated in the F. I. R. Was substantially co-rroborated by Muhammad Iqbal, his brother Ghulam Farid (P. W. 9) and their sister Mst. Khudeja Begum.
The recovery of the gun, Exh. P. 1 and two empty cartridges. Exhs.P. 2/ 1-2 from the possession of the appellant was deposed to at the trial by Suba Khan, Muhammad lqbal son of Abdul Aziz and S. I.
Haq Nawaz.
10.Learned counsel for the appellant bad not much to urge against the acceptance of evidence of Muhammad Iqbal and Mst. Khudeja, who are closely related to the appellant. Their evidence is consistent and they had no motive, whatsoever, to implicate the appellant in the case falsely. The prosecution did not produce Mst. Sakina as a witness because she had betrothed his daughter to Abdul Basit accused meanwhile. Therefore, the non-production of Mst. Sakina, as a witness, does not in any way adversely reflect upon the prosecution case.
With regard to motive, the submission made by the learned counsel for Ghalib Husain was that the appellant had no motive because the land left by Muhammad Rafiq and Muhammad Zaman had not yet b: en mutated in the names of their heirs. It is true that a mutation had not been effected in the names of Iqbal, his brother, Ghulam Farid, and their sister Mst, Khudeja, but all three of them were unanimous that the appellant and his co-accused started demanding a share out of the estate of Muhammad Rafiq and Muhammad Zaman shortly after they had been put to death.
Muhammad Iqbal told the appellant and his brother to wait till the decision of the murder case, but they continued insisting that their share of the land should be separated. Mst. Khudeja Begum had also told the appellant that she could not possibly deprive her son of the land by giving a share to the appellant and his brother. In view of the evidence of Ghulam Farid, his brother, Muhammad Iqbal and Mst. Khudeja Begum, we are inclined to agree with the learned trial Judge that the appellant had a motive to kill the deceased.
11. The recovery of the gun, Exh. P. 1, and two 1 empty cartridges Exhs. P. 2/1-2, from the possession of the appellant is sufficiently proved from the evidence of Suba Khan and Muhammad Iqbal son of Abdul Aziz besides the investigating officer, Suba Khan admitted that he had given evidence in two cases on behalf of the prosecution, but we are not inclined to conclude from this admission on his part that he is the stock witness of the police. Learned counsel had no criticism to make of the evidence of Muhammad Iqbal son of Abdul Aziz who is also a recovery witnesses. Since the recovery of the weapon of the ofence and two empty cartridges from the possession of the appellant is supported by Suba Khan and Muhammad Iqbal, we believe the recovery. It may here be stated that on examination by the Ballistics Expert, both the empty cartridges were found to have been fired ;from the gun, Ehx.P. 1, belonging to Muhammad Iqbal. There is thus overwhelming evidence on the record connecting the appellant with the commission of the crime.
12. The suggestion in cross-examination to the effect that the deceased was shot dead by Muhammad Iqbal is preposterous. It is un-balievable that Munir Ahmad was killed as a result of accidental firing by Muhammad Iqbal while shooting game. None of the defences suggested was plausible and we have no hesitation in disbelieving the defence versions.
13. Since the gun, Exh. P. 1, which had already been loaded, was picked up at the spur of the moment by the appellant who fired at the victim, the learned trial Judge very rightly came to the conclusion that section 34, P. P. C. Did not apply and acquitted Abdul Basit. So far as Ghalib Husain is concerned, he took the view that the prosecution had produced overwhelming evidence connecting him with the fire which resulted in the death of Muhammad Munir. We agree with the finding of the learned trial Judge on this point. We are, therefore, of the view that the appellant was rightly convicted under section 302, P. P. C. For causing the death of Muhammad Munir. We uphold his conviction.
14. This brings us to the question of sentence. Undoub--tedly, there had been bad blood as result of dispute over the share of the property between the appellant and his uncles Ghulam Farid and Muhammad Iqbal and their sister Mst. Khudeja Begum, but the appellant and his co-accused had not gone armed to the have of Muhammad Iqbal on the day of the alleged occurrence. They were empty handed. Presumably, they had gone there to make a demand of their share in the land to which they rightly or wrongly considered themselves to be entitled to and if at the spur of the moment, the appellant picked up the gun and fired at the victim with fatal result, the murder of Muhammad Munir cannot be held to be premeditated. We feel that something must have happened which prompted the appellant to pick up the gun and fire at Muhammad Munir. In this view of the matter, we think that the extreme penalty provided by law under section 302, P: P. C.
Should not be exacted from the appellant who at the time of the occurrence was in his extreme youth. In the circum--stances, a lesser penalty of transportation for life would amply meet the ends of justice in this case. We, accordingly, alter the sentence of death to one of transportation for life.
The appeal is accepted to this extent only. The death sentence is not confirmed.