RASHID AZIZ KHAN, J.-Faiz Ahmad (59) and Muhammad Zaman (23) with Bahadur Khan and Sarfraz Khan were tried for an offence under section 302/109 PPC. Sessions Judge, Mianwali, vide his judgment dated 2.8.1987 gave the benefit of doubt and acquitted Bahadur Khan and his brother Sarfraz Khan. Faiz Ahmad was, however, found guilty and sentenced under section 302 PPC to death with a fine of Rs.5000/- or in default three months R.I. Muhammad Zaman was convicted and sentenced under section 302/144 PPC to imprisonment for life with a fine of Rs.5000/-, or in default three months R.I. Both the convicts were further directed to pay a compensation of Rs.5000/- each to the legal heirs of the deceased or suffer three months R.I. Each. Both the convicts have appealed. The case is also before us for the confirmation of death sentence. Both the matters will be disposed of by this judgment. Since the police held Bahadur Khan and Sarfraz Khan innocent, therefore, the complainant had filed a complaint on which trial was held.
2. The prosection story, in brief, as disclosed in FIR Exh.PF lodged by Mst. Amir Khatoon, PW-6, was to the effect that on 10.6.1982 at Peshiwela. The first informant with her mother Mst. Pathani and Mst.
Daulat Khatoon was coming back to her house from the dera of one Shah Jehan. When they were passing through the land of Shah Jehan through a dry water-course, Faiz Ahmad, who was servant of Bahadur Khan, came there from the eastern side while armed with a l2 bore gun. He fired at them which did not hit any one. Then he came nearer to them and fired another shot which hit Mst.
Pathani on the front of the chest, who fell down. Said Faiz Ahmad ran towards the same direction.
One Mst. Sardar Khatoon, who was also coming from the eastern side, called out that Bahadur Khan and Sarfraz Khan with Muhammad Zain an, son of Faiz Ahmad armed with firearm, were sitting near the hay-stack of Abdul Rehman, and they had sent Faiz Ahmad and had got Mst.
Pathani murdered.
The motive for the occurrence was that about a year before the incident, the first informant's brother Muhammad Hayat, and father Ahmad Khan had murdered one Rab Nawaz, brother of Bahadur Khan. In order to avenge the said murder, Bahadur Khan and others had sent Faiz Ahmad, who committed the murder of Mst. Pathani, first informant's mother.
3. The occurrence took place on 10.6.1982 at Peshiwela in the land of Noor Khan son of Shah Jehan, within the area of village Muslanwala, four miles from Police Station Musa Khel. FIR Exh.PF was recorded by Muhammad Akram, SHO (CW-1) on 10.6.1982 at 5:05 P.M. On the statement of Mst Amir Khatoon, PW-6, daughter of the deceased.
4. PW-7 Dr. Muhammad Hussain, Senior Medical Officer, DHQ Hospital, Mianwali, on 11.6.1982 at 9:30 a.m., conducted the postmortem examination on the dead body of Mst. Pathani, and found the following injuries:-
(a) . A firearm wound of entry 3cm x 2-1/2 cm in size was present at right front of chest, about 3cm right lateral to mid chest line and about 8cm above and medical right nipple. No blackening or tattooing was seen. Blackening was present only on front of Kurta. The edges of the wound were inverted.
2(b). 5 fire-arm wounds of exit were present at left back chest in an area of 4cm x 3cm about 6cm left lateral to mid vertebral line, about 3cm below left inferior scapular angle. The edges of the wounds were everted. Three pellets and one piece of pellet was recovered from under-skin of left back chest. These were packed, sealed and signed by me along with Namda and Gatta, recovered from left chest cavity and were handed over to Police.
In his opinion, the death had occurred because of shock and haemorrhage due to the injuries, which were sufficient to cause death in the ordinary course of nature. The injuries were caused with fire-arm.
5. Muhammad Akram, SI/SHO (CW-1), Police Station Musa Khel, investigated the case. After recording of FIR Exh.PF, he went to the spot and prepared injury statement Exh.CW/1, and inquest report Exh.CW/l-B of the deceased and then sent the dead body for post-mortem examination. He secured blood-stained earth from the spot vide Memo Exh.PC. On 11.6.1982 he took into possession blood-stained Dupatta P.I, Kurta P.2 and Chaddar P.3 of the deceased vide memo Exh.PA. He got prepared site-plan Exh.PB from the Patwari and gave his notes in red ink thereunder. He arrested Faiz Ahmad and Muhammad Zaman on 24.6.1982. On 4.7.1982, Faiz Ahmad got recovered l2 bore gun P.5 from his residential Kotha, with three live cartridges P.6/1-3, which were secured vide memo Exh.PD. On the same day, Muhammad Zaman also got recovered gun P.7 with two live cartridges P.8/1-2 from the floor of his cattle-shed, which were secured vide memo Exh.PE. During investigation, he found Bahadur Khan and Sarfraz Khan, accused, innocent, therefore, placed their mnames in column No.2 of the challan. He had not arrested the said two accused persons.
6. The prosecution in support of its case produced nine witnesses in all. Mumtaz Hussain, Patwari, PW-4, had prepared the site-plan Exh.PB on the direction of the police. Rab Nawaz, PW-5, had witnessed the recovery of bloodstained earth from the spot. He had also witnessed the recovery of gun P.5 at the instance of Faiz Ahmad, appellant, as well as gun P.7 at the instance of Muhammad Zaman, appellant. He had signed both the recovery memos. The ocular account was furnished by Mst Amir Khatoon, Mst. Daulat Khatoon and Mst. Sardar Khatoon, PWs- 6,8 and 9, respectively. Dr. Muhammad Hussain, PW-7, had conducted the postmortem examination on the dead body of Mst Pathani. Muhammad Akram Cheema, SI/SHO (CW-1) had conducted the investigation of the case and challenged the appellants.
At the conclusion of the prosecution evidence, the appellant were examined without oath, wherein they refuted the prosecution allegations and pleaded innocence. Faiz Ahmad, appellant, in answer to a question stated that he was involved in the instant case falsely because he had appeared as a witness against the prosecution side.
7. We have heard the learned counsel and gone through the evidence. Both the appellants had got recovered guns while in custody from their residential houses, which was witnessed by Rab Nawaz and Mst-Amir Khatoon, PWs-5 and 6, respectively. No empty was secured from the spot, therefore, the recovery of guns simpliciter cannot advance the case of the prosecution. The ocular account had been furnished by Mst Amir Khatoon, Mst. Daulat Khatoon and Mst. Sardar Khatoon, PWs 6,8 and 9, respectively. Mst Amir Khatoon was daughter of Mst. Pathani, deceased. At the relevant time, all the witnesses were coming back to their house with the deceased. They had stated that they saw Faiz Ahmad, appellant, armed 'with a gun, came to-wards them from the eastern side and fired a shot which did not hit anyone of them. Thereafter he came closer to them and fired another shot which hit Mst Pathani on the chest, who died later. All the eyewitnesses corroborated each- other as far as the occurrence is concerned. They were cross-examined at length, but the defence could not bring anything on the record which could indicate that they arc not truthful witnesses or had not witnessed the occurrence. The defence tried to establish enmity of Mst Amir Khatoon's father and brother with Bahadur Khan and Sarfraz Khan, acquitted co- accused. Even if it is accepted that Mst Amir Khatoon had enmity, yet the same would be directed only against Bahadur Khan and Sarfraz, who have already been acquitted. The assertion of the prosecution that Faiz Ahmad appellant was an employee of the above said acquitted accused was denied by the appellant in his statement under section 342 Cr.P C, even in cross-examination of all the eyewitnesses, no direct enmity was suggested against the appellants. Even otherwise also, all the eye-witnesses have given a detailed account of the occurrence in a very convincing manner, which leaves no room for doubt that they were not truthful witnesses. The statement of the eye- witnesses further finds corroboration from the medical evidence according to which the deceased had blackening on the front of her Kurta. The doctor had also taken out wad from the injury of Mst.
Pathani, which would indicate that she was fired at from a close-range. All the eye-witnesses were unanimous that Faiz Ahmad fired the first shot which missed, and thereafter he came very close to the deceased and then fired. In the light of the above discussion, we hold the eye-witnesses can safely be relied upon as far as Faiz Ahmad, appellant, is concerned.
8. Muhammad Zaman was convicted under section 302/114 PPC. We have carefully gone through the statements of all the witnesses and find that not a word has been said by any of the witnesses which could even remotely connect him for the offence charged. The only evidence which has come on the file against him is from Mst. Sardar Khatoon who stated that she saw the acquitted accused with Muhammad Zaman sitting behind a hay-stack and Faiz Ahmad alone went and fired.
Even if this statement is accepted, yet it would not establish an offence under section 114 PPC.
According to this witness, Muhammad Zaman appellant had not said a word to Faiz Ahmad. The mere fact that an accused comes from the company of other persons and commits an offence would not involve others or establish that they had abetted the same. It is, therefore, held that there is no evidence connecting Muhammad Zaman appellant with the offence. Therefore, his appeal is accepted and he is acquitted of the charge under section 302/114 PPC. He is on bail. His bail bonds shall stand discharged.
9. The last contention of the learned counsel for the appellants that prosecution did not allege any motive against Faiz Ahmad appellant for the commission of the offence. Therefore, extreme penalty of death may not be awarded needs consideration. As discussed earlier, the prosecution case was that Faiz Ahmad appellant was an employee of Bahadur Khan and Sarfraz Khan and on their abetment had committed the offence has not been proved. It has come in evidence that Faiz Ahmad was Chowkidar of the village. The prosecution has not produced any evidence which could establish that he was their employee. No direct motive was alleged against the appellant, and, therefore, we hold that the circumstances which led to the murder of Mst. Pathani are shrouded in mystery. In these circumstances, we feel the sentence of imprisonment for life would adequately meet the ends of justice.
For what has been discussed above, the appeal of Faiz Ahmad is dismissed. However, the sentence of death is altered to imprisonment for life. The sentence of fine and compensation is, however, maintained. He shall also be given the benefit of section 382-B Cr.P.C. The death sentence is not Confirmed.