Riaz Ahmed, J.- The appellant Wazir Khan son of Khan Baig Pathan aged 24/25 years, was tried by the learned Sessions Judge, Mianwali, on the charge under section 302 of the Pakistan Penal Code for having casused the murder of Sana Ullah (deceased). The appellant was also tried on a charge under section 429 P.P.C, and also for commission of offence under section 13 of the Arms Ordinance, 1965.
2. Vide two separate judgments dated 12.4.1986, the learned Sessions Judge found the appellant guiIty on the charge under section 302 PPC as well as under section 13 of the Arms Ordinance. On the charge under section 429 PPC, the appellant was acquitted. On the charge under section 302 P.P.C., the appellant was sentenced to death and to pay a fine of Rs.5,000/- or in defauIt to suffer rigorous imprisonment for a term of one year. Half of the fine, in the event of its realization, was ordered to be paid to Yaqoob Khan, the father of Sana Ullah (deceased). Under section 544-A Cr.P.C., the learned Sessions Judge, further directed the appellant to pay another amount of Rs.20,000/- as compensation to the complainant, father of the deceased. On the charge under section 13 of the Arms Ordinance, the appellant was sentenced to suffer rigorous imprisonment for a term of nine months and to jtey a fine of Rs.300/- or in defauIt to undergo 3 months R.I.
3. Aggrieved by his conviction and sentences, the appellant has preferred two appeals bearing Criminal Appeal No.351 of 1986 to assail the conviction under section 302 P.P.C, and Criminal Appeal No.352 of 1986, assailing the conviction under the Arms Ordinance. The case has also been referred to us by the learned Sessions Judge under Section 374 Cr.P.C. This judgment shall dispose of both the appeals as well as the reference .
4. The occurrence resuIting into the death of Sana Ullah (deceased) took place on 19th of August, 1984 at Roti wela in a field in village Bori Khel within the area of Torianwala situated at a distance of five miles from Police Station Musa Khel. The occurrence was reported at the Police Station by Yaqoob Khan, the father of the deceased, PW 1, and on his statement, F.I.R. Ex.PA, was recorded by Muhammad Iqbal, Moharrir, Headconstable, PW 5 and the case was registered under section 307 read with section 429 of the Pakistan Penal Code. On 26.8.1986, Sana Ullah died in the DHQ Hospital, Mianwali, and thus the registration of the case was converted into one under section 302 of the Pakistan Penal Code.
5. In brief, the prosecution case as diclosed by Yaqoob Khan, PW 1, in the FIR Ex.PA, was, that he was a agricuIturist by profession and was a resident of Wandha Iyaz wala. On the fateful day, the complainant along with Sana-Ullah, (deceased) were working in their land situated in Torianwala.
The complainant was cleaning land of reeds, while Sana Ullah (deceased) had yoked the pair of bullocks with the Suhaga and was levelling the land. At about Roti wela, appellant with a. 12 bore gun, arrived at the scene of occurrence and remarked in loud voice that he had come to avenge the insuIt of his niece and then challenged the deceased and fired a shot hitting the deceased on the left side of his abdomen and the right wrist and the fire also injured the right leg of the bullock.
The deceased fell down. The complainant and Amir Khan who was also working in a field nearby, having seen the occurrence, ran towards the deceased while, the appellant raising Lalkaras ran away towards his Dera. The motive for the commission of the offence, as stated in the FIR, was that the appellant suspected illicit liaison between the deceased and his niece and, therefore, on account of the said grouse, the appellant had injured the deceased.
6. On 19th of August, 1984, PW 12, Dr. Willayat Khan, Medical Officer, in the DHQ Hospital, Mianwali examined Sana ullah (deceased) while he was alive and noticed the following injuries on his person.
Entry wounds1. 1 c.m x.5 c.m. On the left side of abdomen 10 c.m. From mid line, I6 c.m. Down the nipple.
2. 1 c.m. x .5 c.m. On the left side of abdomen and 2 c.m. Downwards and slightly outward to injury No.1.
3. 1 c.m. x .5 c.m. And 3 c.m. Downward and outward to injury No.2 and 14 c.m. From mid line.4. Two entry wounds each measuring 1 c.m. x .5 c.m. Close to each other on the left side of abdomen, 4 c.m. Down the injury No.3
5. Entry wound 1 c.m. x .5 c.m. On the left wrist joint, upper aspect and inner most part.Exist wound
1. 1.5 c.m. x 1 c.m. On the right side of back 3 c.m. From mid line and 15 c.m. From superior iliac spine at the level of second lumber vertebrae.
2. 1.5 c.m. x 1 c.m. On the left side of back 3 c.m. From mid line at the level of 12 phoracic vertebrae.
3. 1.5 c.m. x 1. c.m. On the left side of back 4 c.m. Down the injury No.2 and 6 c.m. From mid line.
1.5 c.m. And 3 c.m. Below the injury No.3 and 6 c.m. From mid line.
5. 1.5 c.m. x 1 c.m. And 3 c.m. Just below the injury No.4.
After the death of Sana ullah, on 27.8.1984, the said doctor conducted the post-mortem examination on the dcadbody of the deceased and almost, the same above mentioned injuries were noticed, besides the operation wounds which are as follows.
1- A stitched laparatomy wound 12 stitches longitudently on the left side of abdomen, 2 c.m. From mid line.
2- Two wounds for drainage on the left side of abdomen.
In the opinion of the doctor, the death occurred on account of severe shock and internal haemorrhage as a resuIt of the fire-arm injury on the abdomen causing rupture of the abdominal viscera, which was sufficient in the ordinary course of nature to cause death.
7. On 20.8:1984, PW 13, Dr. Muhammad Anwar, Incharge, Veterinary Centre Hospital, Musa Khel, was taken to the Dera Iyaz wala by the police where he examined the bull and on the examination, the said doctor found the following injuries on the bull.
1. The wound was about 1/2" deep and it travelled for 11 inches along the vertebra from right side of base of tail, where this injury was located,. Watery discharge of bloody tinch was oozing out of the wound.
2. This wound was 6 inches ahead of the first wound, 1/4" wide and 11/2" inch long. Skin was charred.
3. This wound was parallel to the injury No.2 at a distance of 11/2" going forward from tail side. Skin underneath was charred.
In the opinion of the doctor, the bull had received injuries by a gun shot.
8. The appellant Absconded and was not found and hence proceedings under sections 87 and 88 of the Criminal Procedure Code were initiated against him. Fida Hussain Shah, S.H.O., Musa Khel, PW 8, obtained warrant of arrest for the appellant on 26.9.1984. Thereafter, proclamation Ex.P.G. Was obtained by the investigating officer and Umer Hayat, Footconstable, PW 9, was deputed to execute it. The said Constable made a report Ex.P.G/1 to the effect that the appellant was not available and was hiding. On 29.10.1984, the appellant was arrested by Fida Hussain, S.H.O., PW 8. On 31st of October, 1984, the appellant, in custody, led the police and got recovered a gun P.2 and two live cartridges P.3/1-2 from his house and the same was taken into possession vide memo Ex.P.C.
Attested by FidaHussain, S.L, PW 8, Habib ullah, PW 3 and Nazar Muhammad, ASI (not produced).
9. In order to establish its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by the complainant, father of the deceased Yaqoob Khan, PW 1 and Amir Khan PW 2, a cousin of Yaqoob Jian. In addition thereto, reliance was placed upon the abscondence of the appellant as corroborative piece of evidence. Recovery of gun was also relied upon but in our view the same is of no avail to the prosecution, inasmuch as, it is not connected with the commission of crime because no empty was recovered from the scene of occurrence.
10. When examined under section 342 Cr.P.C., the appellant denied the charge and stated that he had been involved falsely due to enmity. As regards his abscondence, the appellant stated that he was a truck driver and was residing in Karachi. On coming to know about the occurrence, he visited Mianwali and surrendered himself before the D.S.P, in his office at Mianwali through Taj Muhammad Kund, Member District Council, Mianwali. The appellant denied the abscondence.
11. With the assistance of the learned counsel for the appellant (Mr. Ijaz Hussain Batalvi, Advocate) and the learned counsel for the State, we have carefully perused the record and we have also heard both the learned counsel at length.
12. Learned counsel for the appellant vehemently argued that both the eye witnesses had not seen the occurrence, and the pretext on the basis of which, they were present at the scene of occurrence was belied by the site plan. It was further argued that PW 2, Amir Khan, had no cuItivable land and, therefore, he could not have been present, to weed out the grass as claimed by him. It was also contended by the learned counsel for the appellant that the abscondence in this case could not be considered as corroborative piece of evidence, because the proclamation Ex. P.G. Brought on the record has no value in the eye of law because warrant of arrest issued in the first instance was not placed on the record, nor the evidence existed to show that such warrant of arrest was executed. It was next argued that warrant of arrest was obtained on 26.9.1984 whereas the proclamation was obtained on 13.10.1984 much before the expiry of thirty days and, therefore, issuance of proclamation was violative of the Criminal Procedure Code.
13. No doubt, that abscondence by itself is weak piece of evidence, but before touching the merits of the contentions raised by the learned counsel for the appellant about the abscondence, it will be advantageous to examine whether the ocular testimony furnished in this case is worthy of credit or not. We have carefully examined statements of both the eye witnesses Yaqoob Khan, PW 1 and Amir Khan PW 2. The complainant not only in the FIR but in his statement, in Court, asserted that Amir Khan, PW 2, his cousin was cleaning the land of reeds in his own field, situated adjacent to the field where the occurrence took place. The site plan Ex.P.F., which was prepared by Fazalur Rehman, Patwari, PW 7, at the pointation of the witnesses, shows that Khasra Nos. 90 and 91 are owned by the complainant and the occurrence had taken place in Khasra No.90 at point No.1. Adjacent to Khasra No.90 is the Khasra No.91 and towards the southwest of Khasra No.91 is the land owned by Amir Khan, PW 2. According to Fazal-ur Rehman, Patwari, PW 7, it was point No.3 in Khasra No.90 .Where Amir Khan, PW 2, was cleaning the land of reeds. Precisely, the complainant stated that Amir Khan, PW 2, after having cleaned the land of reeds was coming to their field when the appellant came and fired a shot at the deceased. Fazal ur Rehman, Patwari, PW 7, stated that fields of Amir Khan PW 2, are towards the west of the torrent at the distance of 15 or 20 karams from point No.3.
The Patwari further clarified by stating that the land belonging to Amir Khan, PW 2, is situated towards the west of Khasra No.91.
14. We are referring to these facts and the situation of land with reference to the place of occurrence because the learned counsel for the appellant argued that the witnesses had no business to be present in those places because the land had not been cuItivated and Khasra Nos.90 and 91 owned by Yaqoob Khan, PW 1 and Khasra Nos. 92, 93 and 94 owned by Amir Khan, PW 2 were not cuItivable. We have carefully examined this aspect of the case and we are of the view that the presence of these witnesses at the time and place of occurrence cannot be disbelieved.
The complainant also stated that the land where they were working is about 60/70 kanals and is surrounded by Bands, to contain rain/torrent water. The complainant denied that the place of occurrence is barren or is situated in the bed of a hill-torrent. The complainant further stated that the land was sown only by yearly crops. The complainant also stated that they had ploughed this land and on the day of occurrence, they were levelling it.
Similarly, Amir Khan, PW 2, also clarified the situation by stating, that his fields were about I6 karams towards the south-west of the place of occurrence. Amir Khan, PW 2 also stated that at the time of occurrence, Yaqoob Khan, PW 1, was towards his south-eastern side at a distance of 10/12 karams and the field in which, he> was working, was at a distance of 5 or 6 karams towards the south-west of the spot from where the occurrence had been seen. Amir Khan, PW 2, also denied that he had no field on that side or there is bed of torrent. The witness stated that the hill torrent is situated towards the south-west of the place, where he was standing. We are, satisfied about the veracity of the eyewitnesses because they were present in their own land, otherwise, the bullock would not have been injured. We are, further convinced of the fact that both Yaqoob Khan, PW 1 and Amir Khan PW 2, were present at the time and scene of occurrence and at least, Yaqoob Khan, PW 1, the father of the deceased, would not substitute the real culprits with that of the appellant and particularly so, when no enmity worth the name was brought on the record, to indicate that the complainant had a motive to falsely implicate the appellant. No doubt, that Amir Khan, PW 2, is a cousin of the complainant, but, that too, itself, is no ground to discard his testimony, his presence stands established on the record and we arc of the view that he had also seen the occurrence.
15. We have noticed that the learned defence counsel, in cross- examination elicited the various other murders in the family but unfortunately, no link of enmity could be established by the defence to show that the witnesses were deposing against the appellant, out of enmity, and hence, no weight could be attached to it.
16. As already stated that the learned counsel for the appellant laid emphasis on the statement of Fazalur Rehman, Patwari, PW 7, to show that since the land was uncuItivable, therefore,the question of cleaning the land of reeds and to be present in the said land for the purpose of its cuItivation does not at all arise. Fazalur Rehman, Patwari, PW 7, was transferred from the said Halqa in 1984, and he had not brought any Khasra- girdawari with him and in view of the claim of the complainant that they were cleaning the land and they had already ploughed the land cannot be disbelieved and since land of Amir Khan, PW 2, is also situated towards the south-west of the place of occurrence, therefore, his presence at the time and place of occurrence is natural.
17. Adverting to the question of abscondence of the appellant, the contention of the learned counsel that the proclamation issued before the expiry of thirty days of the issuance of warrant of arrest, has no significance, is not tenable.
18. The perusal of sections 87 and 88 of the Criminal Procedure Code would clearly indicate that after the issuance of warrant of arrest, if it is reported that before the expiry of 30 days, that the warrant cannot be executed, then, the proclamation can be issued. The provision of 30 days in the letter of law means that attempt has to be made for the execution of warrant within the said period, but, there is no bar to the issuance of proclamation, before the expiry of 30 days, provided, it is reported that the warrant is unexecutable. The warrant of arrest in this case was issued on 26.9.1984 and the proclamation was obtained on 13th of October, 1984 because it had been reported that the warrant is unexecutable, as the whereabouts of the appellants were not known.
Umer Hayat, Foot Constable, PW 9, deposed that he was given the warrant of arrest for the appellant but the appellant was not found and on enquiry, made from the surrounding areas, he was of the view, that the appellant was intentionally avoiding the arrest. The warrant was thus, brought back unserved and produced in the Court of a Magistrate at Mianwali where the statement of Umer Hayat FC, PW 9, was recorded on 12th of October, 1984 and, thereafter," q.
Proclamation was given to him and the copies of which were duly affixed by the witness at the relevant places. The perusal of the proclamation Ex. P.G. And the report thereon, vouched for the statement of the witness.
19. No doubt, the warrant has not been brought on the record but it is obvious that the proclamation could not have been issued by a Magistrate in the absence of production of unserved warrant. The presumption arising in this case, would be that all officials acts are done regularly, in good faith, or in accordance with the procedure laid down by law. AIthough, this presumption is rebuttable but unfortunately, nothing has been brought on the record to rebut this presumption and, therefore, we are of the view that the non-production of the warrant on the record would not demolish the evidence of the issuance of proclamation and its execution by Umer Hayat, F.C., PW 9.
20. It was further contended by the learned counsel for the appellant that the place of occurrence, as the prosecution wants us to believe is not what it attempts to show, because no blood-stained earth was recovered from the spot. The contention has no force because according to both the eye-witnesses, Yaqoob Khan, PW 1 and Amir Khan, PW 2 and also as stated by Muhammad Saeed, PW 10, S.H.O., the investigating officer, it had rained after the occurrence and, therefore, the blood could not be collected. The ocular testimony in this case is above-board and therefore, we are not convinced with this argument to believe that the occurrence had not taken place in Khasra No.90.
21. The upshot of the above discussion is that the prosecution has established its case against the appellant beyond any shadow of doubt. However, the question of sentence in this case requires consideration because the motive as disclosed by the prosecution, has not been proved by it. The prosecution case in brief, was that as soon as, the appellant had reached the scene of occurrence with the gun, he raised a Lalkara that he had come to avenge the humiliation which the appellant had faced because of the illicit liaison of the deceased with his niece. The only evidence to substantiate the motive is that of the complainant, the father of the deceased. There is nothing on the record to show that in fact, the deceased was carrying on with the niece of the appellant.
22. In this view of the matter, we are not prepared to believe the truth of the motive and in our view the same is shrouded in mystery. It is also well settled now, that, if the prosecution seeks to set up a motive but fails to prove it, then, it must suffer. Accordingly, we are of the View, that the motive in this case is not proved and hence we are not inclined to confirm the death sentence awarded to the appellant and, therefore, we will aIter the sentence of death into life imprisonment. Accordingly, the appeal stands dismissed. The death sentence is not confirmed and istead, the appellant shall suffer life imprisonment. The sentence of fine and the compensation, as awarded by the trial Court are maintained. The appellant is however allowed the benefit of section 382-B Cr.P.C.
The Reference is answered accordingly.
23. Adverting to the appeal assailing the conviction under section 13 of the Arms Ordinance, we are not convinced with the genuineness of the recovery in this case because the appellant was arrested after more than a month of the commission of offence and the evidence brought on the record to prove the recovery is also scanty. In this view of the matter, we will allow the appeal, setting aside the conviction and the sentences of the appellant imposed upon him under section 13 of the Arms Ordinance, 1965. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.