2. The convict has filed appeal. The learned trial Court has send up the murder reference. The complainant has filed Criminal Revision No, 160 of 1981 against the acquittal of Akbar Khan, Muhammad Khan and Khair Muhammad. As all the matters arise from the same judgment, they are being disposed of by one judgment.
3. The occurrence in this case had taken place on 21-10-1980 at 8 a.m. In the fields in the area of Dhok Potha Dakhli, village Kot Qazi, at a distance of 11 miles from Police Station Laws. Formal F.I.R.
Exh.P.B./1) was recorded at the police station on the same day at 11 .m. By Ghulam Muhammad, M.H.C. (P.W.3) on receipt of statement Exh.P.B.) of Mst. Amir Bano (P.W.8), recorded by Riaz Ahmad, .I./S.H.O. (P.W.14) at 10 a.m. At Bus-stand of Danda Shah Alawal, at a distance of about three miles from the place of occurrence.
4. Ahmad Khan, father of appellant and the deceased had married Mst. Saees Bano and Mst. Nur Bhari. The deceased and Mst. Malkani were born from Mst. Saees Bano while Mst. Nur Bhari gave birth to appellant, Akbar Khan and Mst. Razia Begum. Mst. Malkani was married to Muhammad Khan (acquitted accused). Mst. Saees and Mst. Malkani had transferred their shares of the land to the deceased, while Mst. Nur Bhari and Mst. Razia had transferred their shares of land in favour of the appellant and his brother Akbar Khan. Appellant lodged report against the deceased that he had got the land of Mst. Malkani transferred by producing some other woman. The case after investigation was got cancelled by the police of Police Station Talagang.
' Muhammad Khan filed a suit, which was pending in the Court of civil Judge, Talagang that he was husband of Mst. Malkani and so he as entitled to the land of her share.
' Fateh Khan deceased, after demarcation, had taken possession the land and had cultivated the same.
' Appellant, Akbar Khan and Muhammad Khan (acquitted accused), and one Sher Muhammad earlier in the month of Ramzan, had attacked the deceased but he was saved. At the intervention of Berathari, no roceedings were taken.
5. On the day and time of occurrence, Fateh Khan was ploughing is fields. Nur Khan appellant armed with a rifle, acquitted accused Akbar Khan, armed with a gun, Muhammad Khan and Khair Muhammad, Ahmad with Dandas came raising Lalkaras from their Dhok. Fateh Khan aving the yoke ran for safety towards south-west to take shelter behind bushes in the land of Pir Hanfi Shah.
Nur Khan running came head of him and fired a shot from his rifle, which hit Fateh Khan in font of his neck and pierced through back side of the neck. He fell own and died.
' The occurrence was seen by Mst. Amir Bano complainant, wife the deceased, Allah Dad (P.W.11), his son, Gul Sher (P.W.12) and Fateh Khan son of Ghulam Muhammad (not produced at the trial).
6. All the accused including the appellant were arrested on 6-10-1980. Rifle (P.4) containing empty (P.5) alongwith live bullets .6/1-7) were got recovered by the appellant on 28-10-1980, which re taken into possession vide memo. Exh.P.G. The recovery memo. s attested by Hayat Muhammad (P.W.13) and one Nur Khan (not re-reamined at the trial) apart from Riaz Ahmad, S.I. (P.W.14).
' Recoveries of Danda (P.7) at the stance of Muhammad Khan, (P.8) at the instance of Khair Muhammad and gun (P.9) at the stance of Akbar Khan, were also effected on 29-10-1980. They were taken into possession vide memos. Exhs. P.H. P.L. And P.J., respectively. All these memos, were attested by the same witnesses.
' The report of the Fire-arm Expert (Exh.P.N.) has been produced. According to the report empty (P.5) was found to have been fired from rifle (P.4).
7. At the trial the prosecution produced in all 14 witnesses. Mst.Amir Bano, Allah Dad and Gul Sher, P.Ws. 8, 11 and 12, respectively, gave eye-witness account, Hayat Muhammad (P.W.13) deposed regarding recoveries. His deposition has been corroborated by Riaz Ahmed, S.I. (P.W.14).
8. Autopsy on the dead body of the deceased was performed by Dr. Muhammad Afzal Malik (P.W.7) who noted the following injuries:-
(1) A lacerated wound, 3/4 x c.m. With inverted edges and burnt rings at edges clearly marked, situated on left side of neck in the middle. The wound went medially and backward into the exit wound.
(2) Lacerated wound 3 x 2 c.m. Everted edges back side of neck at the level of 1st and 2nd thorax, vertebrae. This wound went into injury No,1.
' Injury No,1 was an entrance wound while injury No,2 was exit wound. According to doctor's opinion, death was due to shock and haemorrhage, as a result of injuries 1 and 2.
9. The learned trial Court believed the eye-witness account narrated by Mst. Amir Bano and Allah Dad P.Ws. And the evidence of recovery of rifle at the stance of the appellant. Statement of Gul Sher has not been relied upon.
' Mst. Amir Bano while appearing as P.W.8 has made the same statement which she made at the time of lodging the F.I.R. She has stated that on the day of occurrence her husband was ploughing the fields while she alongwith her son Allah Dad were picking the routes of the. Bajra crop; it was 8 a.m. When appellant armed with a rifle, Akbar Khan armed with a .12 bore gun, Khair Muhammad and Muhammad Khan armed with Dandas appeared from the side of Dhok Nur Khan, or a Katcha path. They all challenged her husband that they will not spare him and tried to encircle him from the side of their Dhok. Her husband in order to save his life ran towards Banns of Pir Hanfi Shah to take shelter. Nur Khan filed a shot from his rifle which hit the deceased in front of neck and pierced out from the back side of the neck. According to her, the occurrence was seen by her, her son Allah Dad P.W., Fateh Khan (not examined) and Gul Sher P.W. She has stated that after her deceased husband fell down, all the accused ran away.
' She has also deposed regarding her father-in-law having two wives, namely, Mst. Saees and Mst.
Nur Bhari and the fact of Mst Malkani and her husband having been born from Mst. Saees while appellant Nur Khan, Akbar Khan (acquitted accused) and Mst. Razia having born from Mst. Nur Bhari. She has further stated that Mst, Malkani and Mst. Saees had transferred their share of land in the name of her husband and that appellant and his brother were insisting that they should be given the share out of this land. She has also stated the fact of Nur Khan having got a case registered against the deceased with allegation that the deceased had obtained the land of Mst.
Malkani by producing a fictitious woman and the fact of Muhammad khan having filed a suit against her husband about the alienation of and by Mat. Malkani in the name of her husband. It has also been mentioned by her that Mst. Nur Bhari, mother of appellant, and Mst. Razia, his sister, had transferred their share of land in the name of the appellant.
' Allah Dad (P.W.11)has corroborated the deposition of his mother. 30th of them have been confronted with their statements under section L61, Cr.P.C. With their statements in Court that they were picking he routes of Bajra crop and regarding their deposition that the accused tad tried to encircle the deceased before the attack. These facts were lot found to have been stated by either of them in their statements under section 161, Cr.P.C. Both of them denied the suggestion of laving not seen the occurrence. Mst. Amir Bano also denied the suggestion that her statement (Exh.P.B.) was in fact recorded at the spot after consultations and preliminary investigation.
' The suggestions put to both of these witnesses that the deceased tad fired at Nur Khan with a rifle when he was going on a tractor with Muhammad Nawaz by taking position behind the Banna, that Nur than and his companions got down from the tractor and took refuge behind a heap of stones, that Mamraiz Khan, Malik and Muhammad Ghafoor, relatives of Nur Khan, who were present at his Dhok, seeing Nur Khan being fired upon, started firing and that it was the shot fired by one of these persons that had hit the deceased, were denied by them.
' Hayat Muhammad (P.W.13), who has deposed regarding recovery of rifle at the stance of the appellant and recoveries at the instance of he acquitted accused admitted in cross-examination his family's strained relations with Nur Khan appellant and his family. Instances of murders inter se, the families and convictions resulting therefrom have also been admitted by him. He also admitted that on the day the recoveries were effected from the acquitted accused, he was present on the Adda by chance where other witness was also present by chance and that they had joined the police in the recovery proceedings while many other persons were also available.
10. The appellant in his statement under section 342, Cr.P.C. Admitted that the deceased was his step-brother. Regarding transfer of land by Mst. Malkani in favour of the deceased, he stated that the deceased had got the land transferred by producing a fictitious woman and that he had reported the matter to the police and the case was under investigation. He has denied that they were insisting to get share from the land of Mst. Malkani as he and his brother were not heirs of Mst.
Lalkani. In answer to the question why this case against him, he stated as under:- "I had no dispute about any land with Fateh Khan Deceased. I have no claim about the property of Mst. Malkani because I am not her heir. Some applications for demarcation and correction of Khasra Girdawari were pending in the Settlement Department in which compromise had already been effected on 12-10-1980 and the agreement took place between us that whatsoever is in possession it remained as usual. The compromise was effected between me and Fateh Khan deceased. I produce Exhs.D.E. And D.E/1, certified copies, respectively of the statement of deceased and myself and the order of the Settlement Authorities. However, I did not agree to drop the forgery case which was still under investigation due to my apprehension that I may not be proceeded against for making an incorrect report. The deceased was also feeling aggrieved against me because I was helping Muhammad Khan accused in civil suit over the property of Mst. Malkani. I was his special attorney.
' On the day of occurrence at about sunrise time Muhammad Nawaz resident of Suka finished ploughing my land with his tractor near my Dhok. We took tea and started towards East on the Katcha road with the purpose of ploughing the land of my sister's husband who was residing in Karachi and had asked me earlier to also get his land ploughed. While we were on the road towards the West of the Dhok of the deceased, he came out with a rifle and taking position behind the Banna started firing on us. The driver turned the tractor towards the South. I jumped down from the tractor to save my life and the driver could not stop the tractor and it struck up in a Kasi. We saved ourselves while taking shelter behind the stones. My maternal uncle Mumraiz and Malik Hussain and Ghafoor, my cousin were present at my Dhok, as they had come for Eid greetings.
When they heard the reports of firing, they also started firing towards the deceased in order to save us. My co-accused were not present at the spot. None out of the P.Ws. Was also present there. Only Mst. Sais Bano was at the Dhok."
' He examined in defence Abdul Ghafoor son of Muhammad Khan and produced a copy of F.I.R.
(Exh. D.G.) a photostat copy of application moved by Nur Khan etc. On 13-4-1981, containing the order of Additional Sessions Judge. He had also produced Exh.D.C. An application purported to have been written on 24-10-1980, with the report of S.H.O., dated 27-10-1980.
' Abdul Ghafoor (D.W.1) had stated that he had gone on the day of occurrence to the Dhok of Nur Khan to say Eid greetings, following the day of Eid, where Muhammad Nawaz, one Malik and Mamraiz were also present. After taking tea, he expressed desire to go to the house of Fateh Khan to say Eid greeting to him. Nur Khan went away with Nawaz, who had brought the tractor, for ploughing the land of Nur Khan's sister. He has stated that when Nur Khan and Nawaz went near the Dhok of the deceased, he challenged them and started firing with the rifle. Nur Khan and Muhammad Nawaz leaving the tractor took shelter behind the heap of stones, Mamraiz by taking licensed gun of Nur Khan from his Dhok and Malik, who had a rifle with him, started firing on the deceased. There was exchange of firing between the deceased and these two persons for a period of 5/10 minutes. When the occurrence was over, he went to the spot and saw Fateh Khan lying dead. The mother of the deceased Mst: Sais Bano was the only person who came there. He expressed sympathies with her and thereafter proceeded to his village to inform his mother. He deposed that he had also appeared before the police in defence of the accused. He stated that the trial of this case was to start on 19-5-1981 and that he was taken into custody by police of Police Station Lawa during the night between 17th/18th May, 1981 when he was going to Attock, in order to stop him to appear as defence witness. He has also stated that a habeas corpus petition was moved in the High Court Bench at Rawalpindi. He was recovered by the bailiff of the High Court from Police Station, Lawa, but the police in order to conceal his confinement had taken physical remand from Resident Magistrate, Talagang in some case. He admitted in cross-examination that he was not released as a result of habeas corpus petition. He has admitted of having been chalaned under section 365, P.P.C. And in case under section 13 of the Arms Ordinance, 1965 and of his having been arrested in a theft case. He had further stated that he had not fired when Malik and Mamraiz were firing towards the deceased in aid of the appellant.
11. Learned counsel for the appellant contended that the prosecution has not been able to establish motive, that there is unexplained delay in lodging the F.I.R. That Mst. Amir Bano and Allah Dad P.Ws.
Being wife and son of the deceased are interested wtinesses and also inimical as the appellant had got a case registered against the deceased and that there were other disputes pertaining to the property also. About Gui Sher P.W. Learned counsel argued that he was a desperate person and had been set up as a false witness and was chance witness at the best. Learned counsel referred to the trial Court's observations in paragraph 33 of the judgment of the trial Court and submitted that the trial Court had discarded his evidence. It has been argued that the statement of Hayat Muhammad (P.W.13), a recovery witness, is not worth reliance and in case the recovery evidence is discarded, conviction cannot be sustained on the statements of the two interested eye-witnesses without corroboration. Learned counsel also vehemently argued that the counter-version put forth by the appellant bears the strength of creating substantial doubts in the story put forth by the prosecution.
12. Learned counsel for the State and the complainant have defended the judgment of the trial Court and have controverted the contentions raised by the learned counsel for the appellant.
13. The inter se relationship of the appellant and the deceased stands admitted. The differences inter se, the fact of the case having been registered at the stance of the appellant against the deceased and of the suit having been filed by co-accused of the appellant against the deceased are also admitted. It has also come in evidence that the parties had compromised their proceedings in the Revenue Courts by agreeing to continue with the land already in possession of each party.
' The argument of the learned counsel for the appellant that since the appellant and his brother could not have inherited the land owned by Mst. Sais Bano and Mst. Malkani according to the Shariat, there could be no question of the appellant having made a demand for share from their land and that since the parties had compromised regarding the distribution of land inter se, the motive set up by the prosecution stands belied.
' The legal proposition put forth by the learned counsel for the appellant that according to the Shariat the appellant and his brother could not inherit the land of mother and sister of deceased, is of course correct but the fact remains that it is appellant's own assertion that he had got a case registered against the deceased for having got transferred the land of Mst. Malkani by producing a fictitious woman. The fact of the registration of the case at the stance of the appellant against the deceased is an abundant proof of the fact that the appellant for one or the other reason was against the deceased and so had got the case registered against him. May be that it was the result of demand made by the appellant for sharing the land and refusal of the deceased, or may, that be, for any other reason, the fact remains that appellant was inimical towards the deceased.
Because of the compromise entered into regarding distribution and possession of land, the complainant would not have falsely involved the appellant by allowing the real culprits to go scot free.
' The complainant's' case is that the case registered against the deceased had been cancelled after investigation. Although appellant asserted that the case was still under investigation but it was never pleaded that the deceased had been challaned in that case.
In this view of the matter, we find no weight in the argument that the prosecution has failed to establish motive.
14. We have examined the statement of Hayat Muhammad (P.W.13). We find weight in the contention of the learned counsel for the appellant that his statement is not worth reliance. The witness has admitted previous enmity with the appellant's family. His having joined the recovery proceedings of the rifle, from the appellant does not inspire confidence. We find little hesitation in ruling out his evidence. TheC only other evidence of recovery of rifle at the stance of the appellant is uncorroborated statement of Riaz Ahmad, S.I. (P.W.14). In the circumstances, we feel inclined to hold that the prosecution has not been able to prove the recovery of rifle at the stance of the appellant.
15. We find weight in the contention of the learned counsel for the appellant regarding the improbability of Gul Sher (P.W.12) being present at the spot. We have gone through the observations of the learned D trial Court in this regard, recorded in para. 33 of judgment, we are of the view that the trial Court, for good reasons, has discarded his evidence.
16. The occurrence took place quite close to the Dhok of the appellant. The presence of Met. Amir Bano and Allah Dad, wife and son of the deceased, was natural. The argument of the learned counsel for the appellant that both of them had not stated before the police that they E were picking the roots of Bajra crop is not enough to discard their statments as while making statements before the police they had not stated as to what they were doing. They had mentioned their presence and if for further explanation of their presence they had stated about what they were doing, it cannot be termed as an improvement, nor it can be termed as contradiction of their earlier statements. At the best F this was an explanation and elucidation. The fact of their being related is no ground to discard their evidence. The alleged enmity of registration of case against the deceased would not have weighed with them to an extent that they would have falsely involved their own relation by leaving the actual culprits. In fact, they must have been impressed by the compromise effected regarding distribution of land and might wellG have been satisfied regarding the registration of case as the same had been found to be untrue and since the compromise was effected after the registration of the case, possibly they would not have been feeling any grievance. Allah Dad (P.W.11) was aged abdut 14 years and a boy of that age would not have come up with a false statement against his own uncle.
17. Learned counsel for the appellant had also argued that the Investigating Officer was biased and the police had been helping the complainant party. It was submitted that the appellant had been arrested earlier to 26-10-1980 but the police had shown the arrest of the appellant on 26-10-1980. In this regard reference has been made to an application (Exh.D.C.) submitted on behalf of the appellant to the Manager, Muslim Commercial Bank, on which Riaz Ahmad, S.I. (P.W.14) had made a report on 27-10-1980 that Nur Khan had been arrested in a case under section 302, P.P.C. This application is purported to have been written on 24-10-1980. The report of the Sub-Inspector is dated 27-10-1980.
If this application had been submitted to Manager of the Bank and had there been signatures of the Manager of the Bank of a date prior to 26th October, 1980, the contention of the learned counsel could have some force, but this application does not appear to have been produced before anybody 'else than the S.I. Who had made the report, dated 27-10-1980. There is nothing to conclude that the date 24-10-1980 was correctly written. Moreover, there was no reason for the Sub-Inspector to have delayed the arrest of the appellant. The credit of a police officer is to effect the arrest of the accused as soon as possible after the registration of the case. Nothing has been pointed I out to infer as to what benefit the Sub-Inspector had derived by showing delayed arrest.
The contention regarding delay in lodging the F.I.R. Is also not well-founded. The occurrence had taken place at 8 a.m. And the statement (Exh.P.B.) was made by the complainant to the Sub- Inspector at 10 a.m. , after covering a distance of three miles. The argument of the learned counsel that the occurrence had taken place after sunrise at about 6 or 6-30 a.m., even if granted, does not substantially improve J the contention as in that case the delay would at best come to 3i hours, which by itself cannot be termed as an unexplained delay in view of the fact that it was a woman who had reported the matter to the police, whose husband had been murdered, after having travelled on foot a distance of three miles in the hilly areas of the country.
' We have not felt impressed by the other contention of the learned counsel for the appellant that the statement (Exh.P.B.) of Mst. Amir Bano, was not recorded at Bus-stand Danda Shah Alawal and was in fact recorded at the spot. Nothing cogent has been pointed out to substantiate this contention.
18. We have examined the defence version in juxta position with the prosecution story. None of the persons who are stated to have fired towards the deceased in order to save the appellant from assault by deceased, has been produced. The statement of Abdul Ghafoor D.W. Does not inspire confidence. It does not appeal that the appellant would have left his Dhok leaving his guests at the Dhok, who had come to say Eid greetings to him. The claim of the D.W. That he was related to both sides also does not seem to be correct, in view of his statement that after having sympathised with the mother of the deceased he had left for his own village. If he was a relative of both sides, he should have taken more interest in the matter as the other relative i.e, the appellant, according to him, was not involved in the murder and so there was no reason for him to have left the place of occurrence. As the persons about whom he had stated to have fired at the deceased were not related to him, he should have gone to the police to lodge a report against them. The other significant thing is that if his statement is accepted that he was the first to have gone to the place of occurrence, he would have definitely picked up the rifle with which, according to him, the deceased was firing. He has not stated anything regarding the rifle being lying on the spot what to say of its having been taken into possession by him to produce before the police or handing over to the family of the deceased.
' His statement that the police in order to stop him from appearing as defence witness in the trial Court had arrested him during the night of 17th/18th May, 1981, does not seem to be of much significance as the trial had to start on 19th May, 1981 and his arrest by police of Laws Police Station could not have stopped him from appearing as D.W. As the trial Court could easily have directed the police to produce him on an application submitted to the trial Court. The police officers could have well-imagined the situation that if the witness is in their custody and the Court directs his production they will have to. As such whatever be the reasons of his arrest, it cannot be presumed that it was merely to stop him from appearing as D.W. His statement does not inspire confidence and is not worth anything. The version thus put forth by the appellant does not bear the semblance of truth even to the extent of creating doubts in the prosecution story.
19. The ocular account furnished by Mst. Amir Bano, complainant (P.W.8) and Allah Dad (P.W.11) is corroborated by the evidence of motive and the medical evidence. The prosecution case against the appellant stands proved beyond any reasonable shadow of doubt. The appeal is dismissed and the sentence of death is confirmed.
20. Criminal Revision No,160 of 1981 is still in motion. Learned counsel for the petitioner has not pressed the revision petition. The same stands dismissed as having not been pressed.