KHALIL-UR-REHMAN RAMDAY, J.--- One Ghulam Muhammad, his two nephews, namely, Atta Muhammad and Dost Muhammad and one Muhammad Anwar were tried for the murder of Muhammad Ameer and for having caused injuries on the persons of Ghulam Khawaja, Alam Khan and Khan Muhammad P.Ws.
2. Through his judgment, dated 24-10-1988, the learned Sessions Judge of Mianwali found all four of them guilty under section 302/34, P.P.C. And sentenced Ghulam Muhammad to death under this charge but punished the other three with imprisonment for life. Fine of Rs.10,000 was also imposed on each one of these four persons in default of payment of which, each one of them was to suffer four years' R.I. Half of the amount of fine was directed to be paid to the heirs of Amir deceased as compensation.
3. All these four accused persons were also convicted under section 323/34, P.P.C., for causing hurt to Ghulam Khawaja, Alam Khan and Khan Muhammad P.Ws. And each one of them was sentenced to two years' R.I. Plus a fine of Rs.1,000 or fix months' R.I. In default of payment of fine on each count.
Half of the amount of fine imposed under this charge was directed to be paid to the three injured victims of the occurrence in question, as compensation. All the sentences of imprisonment were directed to run concurrently and benefit of the provisions of section 382-B, Cr.P.C. Was also allowed in relation to the sentences of imprisonment.
4. Murder Reference No.247 of 1988 seeks confirmation of the sentence of death imposed on Ghulam Muhammad convict who, in turn, alongwith the other three convicts challenges the convictions and the sentences recorded against them through Criminal Appeal No.1113 of 1988.
5. Ghulam Khawaja complainant has filed Criminal Revision No.654 of 1988 and prays that the sentences of imprisonment for life awarded to Atta Muhammad, Dost Muhammad and Muhammad Anwar under section 302/34, P.P.C. Be enhanced to the normal penalty of death provided for the offence in question and further that sufficient compensation be also directed to be paid under the two proved charges, independent of the fine imposed.
6. All these three matters are being disposed of together through this single judgment.
7. The prosecution case as it emerges from the F.I.R. And from the testimony of the P.Ws. At the trial is that Ghulam Khawaja complainant runs a vegetable shop in the old Sabzi Mandi at Mianwali where his two sons, namely, Alam Khan and Khan Muhammad P.Ws. And Amir deceased used to work with him.
8. On the day of occurrence at about 11-00 a.m. All these four persons alongwith Ghulam Muhammad, who is the father of Amir deceased and a brother of Ghulam Khawaja complainant, were present in the said shop when all the four appellants out of whom Ghulam Muhammad and Atta Muhammad were armed with .12 bore pistols, Dost Muhammad was armed with a rifle and Anwar was armed with a sten gun suddenly emerged there.
9. Ghulam Muhammad appellant raised a Lalkara declaring that they had come to take revenge of the insult which Alam Khan P.W. Had given to Ghulam Muhammad appellant in the morning in the Sabzi Mandi whereupon Amir deceased stood up and requested the appellant not to take such a strong step at which Ghulam Muhammad appellant fired a shot at Amir deceased which hit him on the left side of the front chest.
10. Atta appellant followed him and also fired a shot at Amir deceased, which hit him on the right shoulder.
11. The next shot was fired by Dost Muhammad appellant, which landed on the left index finger of Amir deceased.
12. Thereafter Anwar appellant tried to fire a burst at Alam Khan P.W. But Khan Muhammad P.W.
Held the sten gun from its barrel and pointed the same; upwards and this fire, consequently, did not hit any one.
13. In the meantime Ghulam Khawaja complainant, Khan Muhammad and Alam Khan P.Ws. And their father Ghulam Muhammad started grappling with the appellants during the course of which grappling Atta Muhammad and Anwar appellants inflicted an injury each on the head of Ghulam Khawaja complainant with the butts of their respective weapons and all the four appellants thereafter' also inflicted injuries on the persons of Alam Khan and Khan Muhammad P.Ws. Again with the butts of their respective weapons and as a result of the injuries received by Khan Muhammad P.W., he fell on the ground.
14. In this struggle, the appellants also received injuries and in the process Khan Muhammad injured P.W. Managed to snatch the sten gun from Anwar appellant and Alam Khan P.W.
Succeeded in seizing the rifle of Dost Muhammad appellant.
15. Thereafter Ghulam Muhammad and Atta Muhammad appellants started firing in the air with their respective pistols and all the four accused persons then ran away from the place of occurrence.
16. The reason which had motivated the four appellants for launching the above-described attack on the complainant party was that in the morning of the day of occurrence Alam Khan' P.W. And Ghulam Muhammad appellant had exchanged-hot words in the New Sabzi Mandi over the auction of turnips as a result of which Alam Khan P.W. Had beaten up Ghulam Muhammad appellant whereupon Ghulam Muhammad appellant had gone away after extending threats that he would take revenge of the insult on that very day.
17. While reporting the occurrence in question at Police Station City, Mianwali, Ghulam Khawaja complainant had handed over the sten gun alongwith a magazine carrying nine bullets and the rifle alongwith its magazine carrying two bullets to the Inspector/S.H.O. (P.W.12) which weapons, as has been mentioned above, had been allegedly snatched from Anwar and Dost Muhammad appellants, respectively, by Khan Muhammad and Alam Khan P.Ws.
18. The plea of Atta Muhammad, Dost Muhammad and Anwar appellants, at the trial, was that they were innocent; had been involved on account of business rivalry and enmity and that they had not participated in the occurrence in question.
19. Ghulam Muhammad appellant, however, pleaded that Amir deceased was armed with a .12 bore pistol and had fired a shot, which hit one Mumtaz (D.W.1) who returned the fire which hit the deceased and caused his death. No further details of this defence plea were, however, given by Ghulam Muhammad appellant.
20. Mumtaz aforesaid was produced as a defence witness and disclosed that twelve years prior to the occurrence one Raza Muhammad the father of Atta and Dost Muhammad appellants had been murdered and two cousins of Mumtaz, namely, Noor and Arif were tried for the said charge but were acquitted. He further claimed that ever since this murder Ghulam Muhammad appellant party was inimical towards his family.
21. Despite this animosity Mumtaz D.W. Stated that on the day of occurrence he was present in his shop located in the Old Sabzi Mandi at about 10-00 p.m. And saw 15/20 persons grappling with each other and giving fist blows to each other. He further claimed that Amir deceased who was armed with a .12 bore pistol fired a shot and two of, the pellets hit the left eyebrow and the forehead of Mumtaz D.W. And that he retaliated and fired a shot from his .12 bore pistol which hit Amir deceased who fell injured and subsequently died.
22. This was the defence explanation of the death of Amir deceased which) suffers from a number of infirmities and lacuna.
23. As has been noticed above, Ghulam Muhammad appellant made no mention of the reason why Amir deceased had fired at Mumtaz D.W. And his statement is thus of hardly any assistance in reaching any conclusion.
24. Next comes the testimony of Mumtaz D.W. He exonerated all the appellants of the murder of Amir deceased and in fact offered his own neck instead.
25. He had claimed to be no sympathizer of the appellant party by stating that his family was inimical towards the family of the appellants and in the circumstances his statement could have ordinarily carried weight but his credibility suffered from a rather serious setback when it was demonstrated through his cross-examination that his mother Mst. Bakhtawar was a real sister of Mst. Jantan, the mother of Ghulam Muhammad appellant and also that a sister of Ghulam Muhammad appellant, namely, Mst. Haleeman was the were of his real paternal-uncle, namely, Ghazi and further that his (Mumtaz D.W.'s) paternal-grandfather was a real brother of the grandfather of Ghulam Muhammad appellant. Thus, his interest in attempting to extricate the appellants from their liability in the occurrence in question is obvious and consequently no implicit reliance can be placed on his testimony.
26. According to him 15/20 persons were grappling with each other near his shop when Amir deceased suddenly fired at him.
27. He does not state as to why these 15/20 persons had come to blows with each other and as to why Amir deceased should have suddenly elected to fire a shot at him. He has obviously claimed no enmity or ill-will between himself and Amir deceased.
28. He also has nothing to say about the injuries suffered by Ghulam Khawaja complainant and Alam and Khan P.Ws.
29. In the circumstances, his version of the occurrence in question is full of unexplained mysteries and does not carry the defence plea very far.
30. The defence story of the occurrence in question, therefore, does not inspire confidence and is accordingly rejected.
31. The prosecution case is supported by three injured eye-witnesses of the occurrence in question and despite efforts made by the defence and some u obliging concessions given by Dr. Mehr Khan P.W., the defence could not c succeed m demonstrating that the injuries suffered by these three P.Ws. Were inflicted or suffered by a friendly hand.
32. All three of them are involved in the vegetable business and have their shop very close to the place of occurrence. No reason has been shown to believe that these three eye-witnesses could not be present at this shop at the time of occurrence which was around 11-00 a.m. They are thus the natural witnesses of I the occurrence in question.
33. It has come on record that no enmity whatsoever existed between the complainant and the appellant party prior to the occurrence and nothing exists on record even to suggest that the complainant party had any motive to falsely implicate the appellants in the occurrence in question. It is also not believable that knowing that Mumtaz D.W. Was .The one who had killed Amir deceased, the complainant party would let him go escort free and would instead substitute the present appellants as the murderers.
34. These three eye-witnesses are, therefore, independent witnesses of the said occurrence.
35. In spite of the fact that we have no reason to doubt the presence of these eye-witnesses at the place of occurrence at the relevant time or their independence vis-a-vis the appellants yet there appear certain facts on record which warrant a closer scrutiny of their testimony.
36. The eye-witnesses claimed that the appellant party had come armed to the place of occurrence to take revenge of the insult given to Ghulam Muhammad appellant by Alain Khan P.W.
Yet in spite of the fact that they were all armed with fire-arms and Alain Khan P.W. Was available to them like a sitting duck yet the appellants did not fire even a single shot at the said Alain Khan P.W.) which part of the ocular testimony, therefore, does not inspire confidence.
37. All the four persons were allegedly armed with fire-arms which fire-arms included weapons like a 7 m.m. Rifle and a sten gun. They had allegedly opened attack as a result of which Amir deceased had fallen dead yet the eye-witnesses expect it to be believed that having suffered such a loss and having been subjected to an attack by fire-arms they could pick up the courage and had enough strength to start grappling with the appellants and these assailants then became so powerless that they yielded to the strength of their victims and even permitted them to snatch their sten gun and rifle. This part of the prosecution claim is too fantastic to be believable especially when the eye-witnesses further expect us to believe that the person who had snatched the sten gun i.e. Khan Muhammad P.W. Had already been hit in the head by the butts of the fire-arms; had fallen injured on the ground but had then managed to rise and to snatch this weapon from Anwar appellant.
38. Consequently, this part of the prosecution story is also to be discarded.
39. The prosecution version that the occurrence consisted of two incidents i.e. One involving altercation between Alain P.W. And Ghulam Muhammad appellant which took place at about 7-30 a.m. And the subsequent incident which caused the death of Amir deceased and injuries to the P.Ws., is also open to exception.
40. Ghulam Khawaja complainant stated in his examination-in-chief itself that a dispute had arisen between the complainant party and the appellant party over an auction of turnips and that this dispute had taken place in the old Subzi Mandi and that it was immediately after this dispute that the occurrence in question had taken place.
41. This statement of the complainant negates the entire prosecution claim that the dispute which was the motive for the occurrence in question had taken place in New Subzi Mandi about four hours prior to the occurrence in question.
42. This part of the complainant's statement suggests that the dispute which had croped up between the two parties and the resultant murder of Amir deceased were not two independent incidents which were about four hours apart but were the parts of one single transaction.
43. This inference is supported by the fact that Alain Khan P.W. Who, according to the prosecution, was the real target of the appellants and was available to them at the place of occurrence was not fired at when the appellants had allegedly come and had opened the attack.
44. The blunt weapon injuries on the persons of the P.Ws. Would also demonstrate that the same could not have been inflicted after the appellants had resorted to firing because after having opened fire there would be no occasion or reason for the appellants to hit the P.Ws. With the Butts of their weapons and in any case the injuries received by three eye-witnesses are too trivial to be the result of the Butt blows. The inference is thus irresistible that the blunt weapon injuries on the persons of the three eye-witnesses had been received by them prior to the opening of fire by the appellant party.
45. We are thus led to conclude that as a result of the dispute between the two sides, the appellants had inflicted injuries on the persons of the complainant party including the fire-arm injuries which caused the death of Amir deceased.
46. We have disbelieved the story that Khan Muhammad and Alain Khan P.Ws. Could have snatched the sten gun and the rifle from Anwar and Dost Muhammad appellants. Both these appellants had disowned these two weapons. No empty was recovered either from the spot or from the two weapons in question.
47. The rifle shot allegedly fired by Dost Muhammad appellant was stated to have hit the left index finger of Amir deceased.
48. A perusal of the post-mortem report and the statement of Dr. Mehr Khan (P.W.1) would indicate that this fire had entered the left index finger from one side and exited from the other side of the said finger i.e. The bullet had passed through the left index finger.
49. This kind of an injury cannot be caused by a bullet because the size of the bullet is such that it cannot pass through the index finger of an ordinary human being and even the dimensions of the wound of entry which are 1/4 c.m. x 1/4 c.m. Would corroborate this conclusion.
50. This makes the use of a rifle in the occurrence in question a doubtful affair.
51. The sten gun was allegedly wielded by Anwar appellant. He is a young boy of nineteen years of age and is a Pathan by caste and has no connection or relationship whatsoever with the other three appellants who are Arains by caste. He had suggested that on account of political rivalry of his tribe with one Mehmood Khan who is a Councillor of the area and who was the Advocate conducting the prosecution case that he had been falsely implicated in the occurrence in question.
52. The above analysis of the prosecution evidence renders the participation of these two appellants i.e. Dost Muhammad, who was allegedly carrying a rifle and Anwar who was allegedly carrying a sten gun doubtful.
53. The benefit of doubt is thus extended to these two appellants and Criminal Appeal No.1113 of 1988 is, therefore, accepted to their extent.
54. Dost Muhammad and Anwar appellants are acquitted of all the charges levelled against them.
They shall be set at liberty forthwith if not required to be detained in any other case.
55. The dimensions of the injury received by Amir deceased on his right shoulder are 1 c.m. x 1 c.m.
Whereas the other injuries received by him have different dimensions i.e. 1/2 c.m. x 1/2 c.m. Or 1/4 c.m. x 1/2 c.m. The surfaces at which these injuries had been caused were almost similar and in the circumstances we conclude that the fire-arm injuries received by the deceased were the result of shots fired from two different weapons.
56. Ghulam Muhammad and Atta appellants had used .12 bore pistols in the occurrence in question which pistols had even been recovered at their instance.
57. No reasons exist to doubt their participation in the occurrence in question as the prosecution evidence to their extent inspires confidence and is believable.
58. The aforesaid appeal to the extent of these two appellants i.e. Ghulam Muhammad and Atta Muhammad is, therefore, dismissed. The conviction and the sentences recorded against them are maintained.
59. The death sentence awarded to Ghulam Muhammad appellant is consequently confirmed and Murder Reference No.247 of 1988 is accordingly disposed of.
60. For reasons abovestated Criminal Revision No.654 of 1988 is dismissed.