SAAD SAOOD JAN, J.-- Jahaz Khan and his brother Chotey Khan, Rasool Khan alias Rasoola and his son Abdur Rehman alias Aliman and Hassan Muhammad alias Hassanoo, hereinafter referred to as the accused, were convicted by the Additional Sessions Judge, Qasur under section 302 read with section 149, and section 148 of the Pakistan Penal Code. For the offence under section 302 they were sentenced to suffer imprisonment for life and to pay fines of Rs.1,000 each, or, in default thereof to undergo rigorous imprisonment for a further period of 6 months. For the offence under section 148 they were directed to undergo rigorous imprisonment for a period of 3 years. They preferred an appeal before the High Court against their convictions and sentences. On its part the complainant party filed a revision petition for the enhancement of their sentences. The High Court acquitted all the accused except Jahaz Khan of all the offences. It maintained the conviction of Jahaz Khan for the offence under section 302 and enhanced his sentence of imprisonment for life to death but acquitted him of the offence under section 148. He has appealed against his conviction and sentence. Fateh Khan, father of the deceased, has also filed an appeal against the acquittal of the other accused. This judgment will dispose of both these matters.
2. The parties were resident of village Vehgal within the jurisdiction of police Station, Lulliani. The accused were alleged to be smugglers. They suspected the deceased who was the son of the local Lumbardar to be a police informer. Hassan Muhammad accused wanted to marry the daughter of Abdur, Rahman (P.W.11), a relative of the deceased. The deceased was opposed to this match.
About 15 or 16 days prior to the occurrence there was a fight between the deceased and the accused Noor Muhammad (PW.9) intervened and separated them. Before parting the accused issued threats to the deceased and told him not to interfere in their affairs.
3. The occurrence took place on 8-6-1975 at 6.00 p.m. It was alleged by the prosecution that Jahaz Khan, Rasool Khan alias Rasoola, Abdur Rehman alias Aliman and one Nawab, an absconder, climbed on the roof of the house of Rasool Khan. Nawab, Jahaz Khan and Rasool Khan were armed with shot-guns while Abdur Rehman alias Aliman had a rifle with him. Chotey Khan and Hassan Muhammad stood in a nearby street, known as Masjid Wall Gall, with revolvers. On seeing them, Abdur Rehman (P.W.11) raised an alarm. After hearing the alarm the deceased climbed on the roof of the house of Bhudan (P.W.10). As soon as he reached there Nawab, Jahaz Khan and Rasool Khan opened fire at him. The deceased was hit and he expired shortly thereafter. Still all the accused, even those standing in the street, kept on firing at him. Besides Abdur Rehman (P.W.1), the occurrence was also witnessed by Noor Muhammad (P.W.9), Bhudan (P.W.10) and one Amin.
4.The occurrence was reported at Police Station Lulliani, five miles away, on the same evening at 7- 30 p.m. By Noor Muhammad (P.W.9).
5. The case was investigated mainly by Sub-Inspector Muhammad Safdar (P.W.14). Apart from other articles he took into possession an empty cartridge from the roof of the house of one Bassa, an immediate neighbour of Rasool Khan. He arrested the accused on 15-6-1973. Nine days later, Jahaz Khan assisted him in getting his gun recovered. The empty cartridge and the gun were sent to a firearm expert. According to the opinion of the expert the empty cartridge had been fired from the said gun.
6. The post-mortem examination of the deceased was performed by Dr. Zafar Iqbal who was posted as Medical Officer in the Civil Hospital at Qasur at the relevant time. He found three firearm injuries on the body of the deceased. These were located on the left side of the chest, left side of the abdomen and the outer aspect of the right buttock. According to the doctor these injuries were sufficient in the ordinary course to cause death and that the deceased had died within five minutes of the receipt of the injuries.
7. The accused pleaded not guilty to the charges against them. Chotey Khan alleged that he was not present in the village at the relevant time. The other accused stated that they had been falsely implicated on account of party faction. They did not produce any evidence in defence.
8. At the trial the prosecution examined Noor Muhammad (P.W.9). Bhudan (P.W.10) and Abdur Rehman (P.W.11) as eye-witnesses of the occurrence. Muhammad Amin who was also cited as an eye-witness in F.I.R. Was given up. Abdur Rehman (PW.11) stated that he was present in the street known as Masjid Wali Gali when he saw Jahaz Khan, Rasool Khan and Abdur Rehman accused with fire-arms sitting on the roof of Rasool Khan's house. Chotey Khan and Hassan Muhammad who had revolvers with them were standing in the street. On seeing them he raised an alarm. Nur Mohammad (P.W.9) stated he and the deceased were in a nearby street when they heard the alarm raised by Abdur Rehman (P. W.11) . Bhudan (P. W.10) claimed that he was present in his shop at the relevant time. All the three eye-witnesses deposed that as the deceased climbed on the roof of Bhudan's house to find out what the alarm was about he was fired at by Jahaz Khan and Nawab.
He was hit and he fell down. Even after that all the accused kept on firing at him.
9. Noor Muhammad (P.W.9) lived about a 100 Karam away from the scene of occurrence. He was the father-in-law of the deceased. On his own admission he was a chance witness. Abdur Rehman (P.W.11) too was related to the deceased, but then he lived in the immediate vicinity of the place of occurrence. The deceased was killed in the house of Bhudan (P.W.10). Thus both he and Abdur Rehman (P.W.11) were natural witnesses. The learned counsel for Jahaz Khan criticized their testimony on the ground that as the roof of Rasool Khan's house had parapets around it none of the eye-witnesses was in a position to see who had fired at the deceased. We are not impressed by this criticism. The occurrence took place in the month of June at 6.00 p.m. When there must have been considerable day-light. That being so the identity of the person who climbed on the roof of Rasool Khan's house and fired at the deceased could not have remained unknown to those who lived and were present at the relevant time in immediate vicinity of the place of occurrence.
10. The learned Judges in the High Court were of the view that the role attributed to Chotey Khan and Hassan Muhammad, accused, by the eye-witnesses was highly improbable for they were alleged to have fired at the deceased from a place where the deceased could not have been possibly visible to them. Similarly, the learned Judge did not, accept the eye-witnesses account with regard to the participation of Rasool Khan and Abdur Rehman alias Aliman in the firing on the deceased for the reason that they could not be in a position to see him after he had fallen down on being hit by the initial firing of Jahaz Khan and Nawab. They also noticed if the firing had been on such a large scale as stated by the eye-witnesses, the deceased would have received many more injuries than were found by the doctor.
11. It cannot be said that the reasons given by the learned Judges in not placing implicit reliance upon the eye-witnesses were insubstantial. It may also be mentioned that the doctor had found blackening around the entries wounds of the deceased. It would thus appear that the deceased was shot at from a much closer range than what the eye-witnesses had stated. It was thus a case where the eye-witness account could not be safely accepted without corroboration.
12. Of all the accused corroboration is available only against Jahaz Khan. As noticed earlier the Investigating Officer had picked an empty cartridge from the scene of occurrence. This cartridge was found to have been fired from the gun recovered from the possession of Jahaz Khan. It may be mentioned that the evidence with regard to recovery of a gun from the possession of Jahaz Khan and an empty cartridge from the spot has been believed by both the trial Court and the High Court.
We see no justification for taking a different view in the matter. There can be therefore little doubt that Jahaz Khan was one of the persons who had fired at the deceased. Therefore, his conviction of the offence under section 302 of the Pakistan Penal Code was fully justified.
13. Learned counsel appearing for Jahaz Khan contended that he had no motive to kill the deceased. This is not correct. Sub-Inspector Zamirud Din (P. W.3) stated that on 20-2-1973 he had received information that some smugglers had gathered at the house of Nawab and that they were in possession of unlicensed arms. On receipt of this information he had raided the house of Nawab. The deceased was a member of the raiding party. Chotey Khan, a brother of Jahaz Khan, was one of the persons present at the house of Nawab. In the case which was subsequently registered the deceased was one of the witnesses for the prosecution. On account of the involvement of his brother in the case Jahaz Khan had a motive to harm the deceased.
14. So far as the other accused are concerned no corroboration of whatsoever nature is available which may support the ocular testimony with regard to their participation in the occurrence. The learned Judges in the High Court were therefore right in acquitting them.
15. As regards the sentence, the learned Sessions Judge had imposed upon Jahaz Khan the lesser penalty prescribed for the offence under section 302 of the Pakistan Penal Code and had given his reasons fork doing so. The High Court enhanced his sentence to death. We do not think that the High Court was justified in interfering with the discretion' exercised by the trial Court unless it found that the reasons advanced by the trial Court were perverse or that the sentence awarded by it was grossly inad9quate. No such finding has been recorded by the High Court. In the circumstances we set aside the sentence of death imposed upon Jahaz Khan by High Court and instead direct that he shall suffer imprisonment for life. The sentence of fine is however maintained. While computing his substantive sentence he shall be given the benefit of the provision of section 382-B of the Code of Criminal Procedure.
16. For the reason stated above the appeal preferred by Fateh Khan is dismissed. Chotey Khan, Abdur Rehman alias Aliman and Rasul Khan are on bail. Their bail bonds shall stand discharged.
Hassan Muhammad alias Hasso had so far not been arrested. The warrants of arrest issued against him shall be withdrawn. The appeal filed by Jahaz Khan is partly accepted.