WALI MUHAMMAD KHANJ:- Appellant Mehr Din son of Qamar Din resident of Chaman Chowk, D.I.Khan City, was tried by the learned Sessions Judge, D.I.Khan for the murder of Asghar Ali deceased, aged about 28 years son of Mushtaq Ali resident of Mohallah Cosian Wala, D.I.Khan City, and for attempting at the life of his father Mushtaq Ali complainant, aged 52 years, and was convicted under section 302 PPC and sentenced to death and a fine of Rs.20,000/- or in defauIt of payment of fine, to under go 3 years S.I. And also convicted under section 307 PPC and sentenced to 7 years R.I. Plus a fine of Rs.5000/- or in defauIt of payment of fine, additional one year S.I., vide his judgment dated 11.3.1987. It was also ordered that the fine of Rs.20,000/- if relized, would go as compensation to the legal heirs of the deceased Asghar Ali under section 544-A Cr.P.C, and that, out of the fine of Rs.5000/- imposed u/s 307 PPC, a sum of Rs.2000/- would be paid as compensation to the complainant Mushtaq Ali. The appellant has filed the instant appeal against his conviction and sentences stated above and the learned Sessions Judge has made reference to this Court for the confirmation of death. The complainant Mushtaq Ali has also preferred a revision petition u/s 439 Cr.P.C, for the enhancement of the sentences imposed against the appellant.
2. Through this single judgment we proposed to dispose of the instant appeal, reference and the revision peition.
3. The brief facts of the case are, that on 14.11.1985 at 1900 hours the complainant Mushtaq Ali, after closing his shop, situated in Commissionary Bazar, started for his house along with his son, Asghar Ali (deceased), and when they reached near Al-Aziz Market in the same Bazar, Mehr Din appellant, his son-in-law, came in front of them and by aiming his Pistol towards them, started firing at the complainant and his deceased son which hit both of them. The deceased fell down on the ground unconscious and was taken to the Hospital in a Rickshaw. The occurrence was witnessed by Islamud Din (P.W. 8) and Mohammad Hanif ((P.W. 9) and the other passersby. The motive for the occurrence was shown in the F.I.R, to be (................ ) which had caused annoyance to the convict- appellant from some time and the present occurrence is the resuIt thereof.
4. Hakim Khan (P.W. 12) the then S.H.O., Police Station D.I.Khan City was on patrol duty, on the day of occurrence, when he learnt about the occurrence and of the removal of the injured person to the hospital from the spot. Accordingly he rushed to the hospital where he recorded the murasila, Ex: PA./1 at the instance of Mushtaq Ali (P.W.) 7, read over the same to him and after the complainant admitted its contents as correct, he secured his thumb impression on the same and sent the same to the Police Station where, on its basis the instant case was registered by Sher Ali ASI (P.W. 1) vide F.I.R. Ex: PA, initially under section 307 PPC, as both the complainant and the deceased were injured then. On the receipt of telephonic message from Hakim Khan at 9.40 P.M. Regarding the expiry of Asghar Ali deceased, Sher Ali ASI (P.W. 1) added section 302 PPC in the relevant column of the F.I.R.
On the recovery of weapon of offence viz the revolver on the following day, section 13 of the Arms Ordinance was also added to the charge.
5. Dr.Ikramullah Khan (P.W. 11) examined Asghar Ali deceased then in injured condition, on 14.11.1985, at 7.30 P.M. And found the following injuries on his person:- Wounds:-l. One entrance wound on It.Side chest in 6th intercostal space. Pt: is unconscious and unable to talk.
2. One entrance wound on medial side of the posterior surface of It. Forearm 5" above wrist joint.He kept him under observation for asertaining the nature of his injuries. However, according to him the injuries were caused by firearm within 1/4 to 1 hour.
He also examined Mushtaq Ali complainant on the same day at 7.35 P.M. And found the following injuries on his person.
Wounds:- 1. One grazing wound on anterior fold of It. Exilla on upper arm 1"X 1/2" in size.
2. One grazing wound on medial wall of It. Exilla 2" X 1/2" in size.
The injuries sustained by the complainant were found simple by the doctor, casused within duration of 1/4 to 1 hour and by firearm.
The deceased Asghar Ali succumbed to his injuries and the same doctor conducted autopsy on his dead-body at 10 P.M. The same day and found the following:- External Examination: Condition of Subject: Stout wearing Shalwar, banyan and Qamees.
WOUNDS
1. One penetrating wound on medial side of the posterior surface of It. Forearm 5" above wrist joint.
One entrance wound on the It. Side of the chest in 6th intercostal space. Internal Examination: Thorax. Walls, ribs and cartilages injured. Pleurae injured. Right Lung injured. Left lung injured.
The doctor opined that the death was caused by haemorrhage from lung vessels and from lack of Oxygen as both lungs were unable to perform oxygenation efficiently.
Probable time between in and death: 2 to 5 hrs. Probable time between death and PM. 1/2 hours. He accepted his medicolegal reports Ex. PC/1 Ex: PB/1 respectively and Post mortem report Ex:PD/l to be in his handwriting & correct and bearing his signatures correctly.
6. Usual investigation commenced and Hakim Khan SI (P.W. 11) after sending the murasila to the Police Station for registration of the case, proceeded to the spot, inspected it at the instance of Islamud Din (P.W. 8) and Muhammad Hanif (P.W. 9) and prepared the site plan Ex.PL with all its foot notes. He collected blood stained earth from the venue of occurrence and sealed the same into parcel vide memo Ex: PJ. In the meantime, on learning that Asghar Ali had expired, he left for the hospital where he prepared the inquest report Ex.PD of the deceased and referred the deadbody for post mortem examination. The Doctor, after conducting autopsy on the deadbody of the deceased, sent his shirt having cut marks blood stained Ex: P-3 and banyan also blood stained, having cut marks Ex: P- 4 through Rehmatullah FC (P.W. 6) who, in his turn, produced the same to the I.O. Hakim Khan (P.W. 12) which were taken into possession and sealed into parcel by him vide memo Ex. PF. The said FC Rehmatullah had also been entrusted with shirt Ex: P-1 and banyan Ex: P-2 both having cut marks and blood stained belonging to the complainant Mushtaq Ali by the doctor and he produced these articles, too, before the I.O. Which were also taken into possession and sealed vide memo Ex.PE. The doctor had extracted led pieces Ex.P-5 from the deadbody of the deceased and had sealed the"same in Phial and entrusted to the F.C. Named above and the same, on production by him to the I.O., was also taken into possession vide memo Ex.PG. Haji Abdul Karim (P.W. 10) produced a 32 bore revolver Ex.P-6 containing 32 bore cartiridge Ex.P-7 and a cloth bag Ex.P-8 to the I.O. On 15.11.1985 which were also taken into possession vide memo Ex.PH. The accused was arrested on 15.11.1985 and according to the version of the I.O. Kakim Khan (P.W. 12), the accused while in handcuffs led him to the house of Haji Abdul Karim on the following day I.e. 16.11.1985 and when they reached the door of the said house, the accused pointed the place where he had thrown the revolver Ex.P- 6, inside the dewarhi of the house of Haji Abdul Karim and the I.O.
Prepared the memo Ex: P.K to this effect. In order to connect the alleged weapon of offence, produced by Haji Abdul Karim (P.W. 10), the I.O. Took into possession six 32 bore cartridges of revolver Ex. P-9 produced by Mushtaq Ali, for test purposes, on 21.11.1985 and sealed them into parcel vide memo Ex.P.l. The blood stained articles were sent to the Laboratories. The report of the Chemical Examiner is Ex.P.M. While that of the Arms Expert is Ex.PN. On the completion of investigation, complete challan was put in the Court of Illaqa Magistrate by Dawal Khan Inspector (P.W. 2) who sent up the case to the learned Sessions Judge for trial.
7. On the compliance of the provisions of section 265-C Cr.P.C., a proper charge sheet was framed against the accused under three heads to which he pleaded not guiIty and claimed trial.
8. The prosecution produced Sher Ali Shah ASI (P.W. 1) Dhawal Khan, Inspector (P.W. 2), Rana Mohammad Zarif (P.W. 3) Muhammad Ramzan, ASI (P.W. 4) Wali Muhammad (P.W. 5) Rehmatullah, FC (P.W. 6) Mushtaq Ali (P.W. 7) Islamud Din (P.W. 8) Mohd Hanif (P.W. 9), Haji Abdul Karim (P.W. 10)
Dr. Ikramullah (P.W. 11) and Hakim Khan SHO (P.W. 12) in support of its case and abandoned the remaining PWs being unnecessary.
9. On the recording of the evidence of the above prosecution witnesses, the accused was examined u/s 342 Cr.P.C, to afford him an opportunity to explain the evidence produced against him. He denied all the charges and claimed innocence. He also appeared as his own witness u/s 340(2) Cr.P.C, wherein too, he dubbed the charges against him as false and baseless. He did not produce any defence.
10. Rana Muhammad Zarif (P.W. 3) had indentified the deadbody of the deceased at the time of P.M. Examination and had remained associated with the I.O. During the investigation. He is witness to the recovery memos Ex.PE, Ex.PF and Ex.PG which according to him corrdctly bear his signatures as marginal witness. Muhammad Ramzan ASI (P.W. 4) is the marginal witness to the recovery memo Ex.PH whereby 32 bore revolver containing one live bullet in its chamber Ex.P-6 and Ex.P-7 respectively and a small cloth bag Ex.P-8 and produced by Haji Abdul Karim (P.W. 10) were taken into possession. He is also marginal witness to recovery memo Ex.PI regarding the production of live cartridges by the complainant for test purposes. This witness was not crosf examined by the defence. Wali Muhammad (P.W. 5) is witness to the recovery of blood stained earth from the spot vide memo Ex.PH. Brief reference to the statements of the Dr.Ikramullah, Sher Ali Shah, Dhawal Khan Inspector, Rehmatullah FC and Hakim Khan SHO have already been made in the earlier part of this judgment. Mushtaq Ali complainant (P.W. 7) Islamud Din (P.W. 8) and Muhammad Hanif (P.W. 9) have supllied the ocular account of the occurrence while Haji Abdul karim (P.W. 10) has deposed about the subsequent conduct of the accused regarding the throwing of the weapon of offence in the dewarhi of his house after the commission of the offence and its production by him to the I.O.
On the following day and their statements shall be discussed in detail lateron.
11. We have heard Barrister Zahoorul Haq Advocate for the convict-appellant, Mr. Ijaz Ahmad learned Additional Advocate General for the State and Mr. Zafar Abbas Zaidi Advocate for the complainant and have perused the record of the case with their assistance.
12. There is no denying the fact that the parties are very closely related. Mushtaq Ali compIt: is admittedly the father-in-law of the accused while Asghar Ali deceased was his real brother-in-law.
Not only this, one other daughter of Mushtaq Ali complainant (Sister of Asghar Ali deceased) is also marrried to Aminud Din brother of the convict-appellant and a third daughter of the complainant is engaged to Farooq, real nephew of the convict-appellant and till the present tragedy, the married ladies were resident with their husbands in their houses. PW Islamud Din is not directly related to the compIt: party. However, he is brother-in-law of one Yousaf, the brother-in-law of one Akbar Ali who is nephew of the complainant Mustaq Ali Muhammad Hanif (PW 9) is the Cousin of the complainant Mushtaq Ali as is admitted to, by him in his evidence in Court. The presence of Mushtaq Ali Complainant cannot be doubted on the spot at the time of occurrence as he has the stamp of injuries on his person. The other PWs, though related to the complainant party, cannot be dubbed as interested witnesses, inasmuch as they are related to both the parties and have no enmity whatsoever with the accused or his family and thus had no cause to falsely implicate the accused for such a grave and heinous charge.
13. Mushtaq Ali complainant (P.W. 7) has categorically stated that he is a cloth merchant and was running a shop in Commissionary Bazar and that on the day of occurrence after closing his shop in the evening time, as usual, he started along with his son Asghar Ali (deceased) towards their house through Commissionary Bazar and when they reached near Al-Aziz Market they saw the accused standing in their front and on seeing them he opened fireshot at them with the revolver, as a resuIt of which they both got injured. According to him PW Islamud Din and PW Muahammad Hanif were present at the spot and witnessed the occurrence. He described the motive to be matrimonial differences between the accused and his wife and he, being his father-in-law used to advise him and his father to refrain from teasing his daughter (wife of the accused) and to be of good behaviour towards her. This witness has been thoroughly cross examined but nothing material has been elicited from him to create any doubt on his veracity. He denied the suggestion that it was dark at the time of occurrence and asserted that there was sufficient electric light of the bulbs lit on the electricity polls, close to the spot, at the time of the occurrence. Islamud Din (P.W. 8) deposed that he is also a cloth merchant having his shop in the same Commissionary Bazar and that, on the day of occurrence, as usual, he also, after closing his shop, started for his house in Mohallah Gosian Wala street where the house of the complainant is also situated. According to him when he reached near the shop of the complainant he saw him (complainant) and Asghar Ali (deceased) going ahead of him in the same direction towards which he was proceeding and on reaching AbAziz Market, he saw the accused Mehr Din firing 3/4 shots at the complainant Mushtaq Ali and his son Asghar Ali effectively, as a resuIt of which Asghar Ali fell down on the ground. The accused thereafter decamped from the spot. Muhammad Hanif (P.W. 9) is also residing in Mohallah Gosian Wala. On the day of occurrence he was present with Mushtaq Ali and Asghar Ali in their shop in the evening.
He also started in their company and after they closed their shop, after their daily business. He also witnessed the accused firing at the complainant party. To corroborate the ocular evidence of these PWs, reliance is also placed on the deposition of Haji-Abdul Karim (P.W. 10). His statement is to the effect that on the day of occurrence, at about 8.9. P.M., he was present in his house when he heard the knock like sound, at the outer door of his house which made him curious and on coming out, he saw the accused Mehr Din throwing some heavy substance inside the dewarhi of his house and did not stop, in spite of his call. He picked up the substance and found it to be a 32 bore revolver which he produced before the I.O. On the following day along with bullet in its Charkhi. He deposed that he has no enmity whatsoever with the accused nor any relationship with the complainant party.
14. The ocular testimony of PWs Mushtaq Ali, Islamud Din and Muhammad Hanif, being totally dis- intcrested, is sufficient in itself, to bring home the charge to the convict-appellant for murdering Asghar Ali deceased and attempting at the life of complainant Mushtaq Ali. However, their statements also get sufficient corroboration from other evidence produced in the case. Dr. Ikramullah found firearm injuries on the person of the deceased and the complainant. The recovery of two spent bullet, Ex.P-5 from the deadbody of the deceased, by the doctor, render strength to the version of the prosecution that pistol/revolver was used in the commission of offence, as is mentioned in the FIR, lodged without any loss of time in the Police Station. The occurrence took place in the Commissionary Bazar and it stand to reason that electric lights were on, in the street polls, and the surrounding shops, still open at the relevant time. The promptly lodged report by the complainant, while in injured condition, at the hospital, to Hakim Khan (PW 12) wherein the accused was directly charged for the occurrence, establish beyond any shadow of doubt, that it was the accused alone who did away with his own brother-in-law, the deceased Asghar Ali and attempted at the life of his father-in-law, Mushtaq Ali complainant. There is no suggestion, much less proof, that the complainant party had any enmity whatsoever with any other person who could be expected to have committed the offence. There is no motive alleged by the defence, for the false implication of the accused. In the circumstances, the complainant would be the last person, to substitute his own son-in-law, the accused-appellant, for such a grave charge of murder, for nay other real culprit.
15. Nevertheless the learned counsel for the accused made a feeble attempt to convince us, that the occurrence took place at a time when it was dark and the identification of the assailant was not free from doubt, that the assailant must have made pre-caution to vide his identity; that the accused was charged on suspicion; that the evidence of Haji Abdul Karim (PW 10)does not inpsire confidence and that the evidence of PWs Islamud Din and Muhammad Hanif, being of partisan character require close scrutiny before it can be made basis for the conviction of the appellant.
Elaborating his arguments, he submitted that the Investigating Officer did not recover any bulb or tube from the spot to satisfy the Court that the occurrence took place in the electric light. He also stressed that the nephew of the complainant, namely Akbar Ali is serving as PSI and that he had influenced the process of the investigating in favour of the complainant party. His contention is that in the cases like the one in hand, the charge must be brought home to the accused beyond reasonable doubt and that, in the instant case, the defence has been able to create sufficient doubt, to warrant the acquittal of the accused-appellant for the safe dispensation of justice.
16. We have minutely considered th", learned arguments of the learned counsel for the accused- appellant but are unable to subscribe to his views. As stated earlier, the accused is the son-in-law of the complainant Mushtaq Ali and the record shows that the relations between them were very cordial right from the time when the families of both the parties migrated to Pakistan from India, somuch so, that three daughters of the complainant are married to the accused, his brother and brother's son. It is in evidence that two daughters were born to the accused from his wife, (the daughter of the complainant) before the present incident while a son was born to him thereafter. It is also admitted that the other ladies stayed in the house of the accused party till the time of occurrence. Obviously the complainant Mushtaq Ali cannot be expected to falsely implicate his own son-in-law for murder charge. Thereby depriving his daughters and grand children from the protection of their guardian. No doubt, the other witnesses are related to the complainant but in the absence of any motive, for their own, to falsely implicate the convict-appellant, their testimony cannot be discarded They do not fall in the category of interested witnesses as is held in various judicial pronouncement, as they themselves have no axe to grind, to rope in, the accused falsely for the murder charge of their own kith and kin. Their presence at the spot at the relevant time was natural and the inclusion of their names as eye witnesses in the FIR, pre-se is sufficient to establish their presence at the spot, at the relevant time and having witnessed the occurrence with their own eyes. The occurrence took place in the bazar and the witnesses have positively deposed that electric bulbs were on around the spot, and they had clearly identified the appellant as the person firing at the deceased and the complainant Mushtaq Ali.Thcre no reason why their version, in this respect, should be doubted. The injuries on the person of the deceased and the complainant are the resuIt of fireshot with pistol/rcvolver and, in all probability, they were caused from a dose range.
The site plan Ex. PL prepared soon after the occurrence by the I.O. Reveals distance between point No.3 wherefrom the appellant fired at the deceased Asghar Ali and complainant Mushtaq Ali standing at point No. 1 and 2, as four paces and 3 1/2 paces respectively. The parties were known to each other and the plea of mistaken identity is out of question. The allegation of the learned counsel for the appellant that no bulb was taken into possession by the I.O. Is not of much importance, in view of the clear note given by the I.O. In the site plan that all the electric bulbs were on.
17. The spot admittedly is situated in the Bazar and the appellant could not possibly take pre- caution to hide his identity, particularly when he was to use a pistol/revolver, which could only proved effective, if the firing was from a close range. Introduction of Akbar Ali PSI, nephew of Mushtaq Ali complainant as the moving figure in the investigation of the case, will not possibly help the accused in any way. Be that, as it may, he was not posted at such an exhauIted position as to be able to pursuade the senior police officers Inchargc of the case, to rope in, innocent person instead of the guiIty. No material discrepancies were pointed out in the ocular testimony of the aforementioned eye witnesses and the learned Sessions Judge had rightly placed reliance on their version.
18 The learned counsel for the appellant took serious exception to the deposition of PW Haji Abdul Karim and submitted that the story of the recovery of the revolver as a weapon of offence having been thrown by the accused in the Dewarhi of his house, was introduced by the prosecution to strengthen the case against the appellant. According to him, it does not stand to reason, that the convict-appellant would choose the Dewarhi of the house of Haji Abdul Karim (PW 10) as the prope' and safer place to throw the weapon of offence therein and not the drain of the road/lane he was running through. The conduct of Haji Abdul Karim (PW 10) in producing the revolver on the following day to the police and not immediately after its recovery by him also casts aspersion on the veracity of the said P.W. The learned counsel, doubts the integraity of the investigating staff and also that of Arms Expert who had in his report opined that piece of bullet recovered from the deadbody of the deceased was fired from the revolver produced by Haji Abdul Karim (PW 10). The statement of Hakim Khan S.H.O. (P.W. 12) to the effect that the appellant, while in handcuffs, had led him to the house of Haji Abdul Karim P.W. And had pointed out the place where he had thrown the revolver Ex.P-6, the weapon of offence, was dubbed as inadmissible under the Evidence Act. The aforesaid arguments, prima-facie, appear to be very much attractive but the close scrutiny of the statement of Haji Abdul Karim (PW 10) would show that in spite of some exaggeration made by him, his entire version cannot be brushed aside. The appellant has failed to cross examine Muhammad Ramzan (PW 4) in whose presence the 32 bore eevoivef containing one live bullet in its chamber, Ex.P-6 and Ex.P-7 along with a small cloth bag Ex.P-8 were produced by Abdul Karim (P.W. 10) and were taken into possession by the I.O. The presumption would be that the defence accepts the statement of Muhammad Ramzan (P.W. 4) regarding the production of the revolver on the following day of the occurrence. Haji Abdul Karim (P.W. 10) has stated that he had no enmity with the accused- appellant and thus he too does not fall in the category of interested witness. The prosecution had sufficient disinterested ocular evidence, coupled with corroborative material and they did not stand in need of concocting the story of revolver to be produced by a person like Haji Abdul Karim PW, whose readiness to involve him self in murder enmity is inconceivable. The report of Arms Expert, in positive, connects the revolver with the injuries caused to the deceased. We are of the considered opinion that this portion of the evidence has rightly been considered by the learned Sessions Judge.
19. In view of the discussion above, we have no doubt in our mind that the prosecution has established its case against the convict-appellant beyond any shadow of doubt and the learned Sessions Judge had no option but to convict the accused-appellant under sections 302/307/PPC for the murder of Asghar Ali deceased and for attempted murder of Mushtaq Ali complainant. We accordingly maintain the said conviction.
20. On the question of sentence the learned counsel for the appellant relied on cases Mir Khan ...
Versus ...The State and Muhammad Iqbal..Vs..The State reported as f!984 SCMR Pages: 1006 & 11841. respectively, and submitted that the motive as alleged by the prosecution has neither been proved nor the same, could possibly be the immediate cause of the tragedy in view of the close relationship of the parties inter sc. We have minutely considered this aspect of the case and find force in it. The motiveattributed in the F.I.R, is simply.................... Which was improved upon by the complainant in his statement in Court wherein he stated that, on account of matrimonial differences between the accused and his wife (daughter of the complainant), he used to advise him and his father for good behaviour towards his daughter (the wife of the accused). The other P.Ws have not said a word, about the alleged motive thought, being relations of the parties and residing in the same locality, were expected to know much about the family affair of the parties. We are not inclined to believe that for such a pcu> affair, the accused/appellant would go to the extent of pre-mediating and preplanning the murder of his own brother-in-law, with whom he had no personal grudge. Obviously the prosecution has tried to suppress the real and immediate cause of the occurrence. The possibility that the parties met by chance, at the relevant time, and after excahnge of some hot word, the occurrence took place, cannot be excluded. The motive as alleged has neither been proved nor was grave enough to prompt the accused-appellant to take away the life of his own brother-in-law. The real cause of the tragedy is still shrouded in mystery and keeping in view the matrimonial bondages between the families of the parties, we are of the considered opinion that the lesser penaIty provided under the law under section 302 PPC will amply meet the ends of justice. Consequently we, by maintaining the conviction of the appellant under section 302 PPC, aIter the sentence of death to imprisonment for life. The other sentences imposed against the appellant by the trial Court and the order regarding the award of compensation fo the complainant party are maintained. The substantive sentences are to run concurrently. The appeal and reference are disposed of accordingly. There is no substance in the revision petition and the same is dismissed.