' MUHAMMAD AMIR MALIK, J.---Ghulam Ahmad (65) and his son Sher Afzal (21) were tried for the murders of Muhammad Ibrahim and Khan Muhammad by the learned Sessions Judge, Attock. Vide judgment, dated 24-5-1988 both were convicted for the double murder and sentenced as under:-- ' Ghulam Ahmad
(i) For the murder of Ibrahim to death, a fine of Rs,4,000 or in default thereof R.I. For one year and a compensation of Rs,5,000 to the legal heirs of Ibrahim deceased.
(ii) For the murder of Khan Muhammad imprisonment for life, a fine of Rs,3,000 or in default thereof one year's R.I. And a compensation of Rs,5,000 to, the heirs of the deceased (Khan Muhammad).
' Sher Afzal ' For the murder of Muhammad Ibrahim imprisonment for life, a fine of Rs,3,000 or in default thereof one year's R.I. And a compensation of Rs,3,000 to the heirs of Muhammad Ibrahim deceased.
' No separate sentence was recorded against him for the murder of Khan Muhammad deceased.
2. The convicts have come up in appeal. The matter is also before us on reference for confirmation of death sentence. It is proposed to dispose of the two by this single judgment.
3. The occurrence took place at Peshiwela in the area of village Thathi Syedan at a distance of about 4-1/2 miles from Police Station Pind Sultani, District Attock on 9-4-1986. Karam Khan complainant (P.W.10) left the spot for the police station and at Chowk Mathial came across Amir Khan Inspector/S.H.O. (since dead) and made statement (Exh.P.E.) at 4-30 p.m. It was sent to the police station where formal F.I.R. (Exh.P.E./1) was registered by Muhammad Khan.M.H.C. (P.W.4) the same day at 5-00 p.m.
4. According to the F.I.R. The complainant alongwith Gulab Khan (P.W.11) and Khan Muhammad deceased left their village for Thathi Syedan for the Mela of Naurose and reached there at 9-00 a.m. There Ibrahim deceased and Qari Rashid Ahmad (P.W.12) of village Aurangabad were also present. The Mela ended at Peshiwela and all started for their homes.
5. The version proceeds that in the meantime Ghulam Ahmad armed with a .12 bore gun and Sher Akhtar/Sher Afzal with a Chhurri both residents of Aurangabad neared them and raised a Lalkara to Ibrahim that he would be given a taste for illicit connection. Ghulam Ahmad fired and hit the deceased in the chest and hands. He fell down. Sher Afzal gave him two Chhuri blows in the back.
When Khan Muhammad deceased went forward to rescue Ibrahim, he was fired at by Ghulam Ahmad and was hit in the back. He also fell down. Ibrahim expired at the spot. Khan Muhammad in injured condition was carried to the hospital at Pindi Gheb.
6. The motive given in the F.I.R. Was that Mst. Zohra Bibi wife of Ghulam Ahmad accused had illicit relations with Ibrahim deceased and for this very reason she had been divorced 6/7 years back.
Khan Muhammad deceased had friendly relations with Ibrahim deceased. About a week before the occurrence Ghulam Ahmad had threatened Khan Muhammad deceased at Bus Stand Pindi Gheb over the friendship.
7. Dr. Muhammad Khan (P.W.1) performed the post-mortem examination on the dead bodies on 10- 4-1986 at 7 and 8 a.m. On the dead body of Khan Muhammad a fire-arm entrance wound 1 c.m. x 1 c.m. On the back 21 c.m. Below the left shoulder was observed. On dissection a pellet was found to have penetrated through skin, muscles, plurae, lower lobe of left lung, left ventricle of the heart, paricardium and was found lodged on the left side of chest. Stomach had three to four 'ounces of digested food, small and large intestines contained faecal matter. The injury was ante-mortem, by a fire-arm and sufficient to result in death in the ordinary course of nature.
8. On the body of Muhammad Ibrahim following injuries were observed:--
(1) A fire-arm wound on the front side of chest, scattered in the area 27 c.m. x 16 c.m. Three entrances 1 c.m. x 1 c.m. x chest on left front side of chest, two entrances on right front side of chest, and also on right hand on entrance, back side of thumb of right hand, with underneath fracture of bone 1 c.m. x 1 c.m. And on exit between index finger and middle finger of right hand 1.5 c.m. x 1.5 c.m. Also on entrance on front side of right wrist 1 c.m. x 1 c.m. At exit on back side of right hand 1.5 c.m. x 1.5 c.m. And also index and middle finger of left hand, with underneath fracture of phalangel bones also on entrance on front side of right arm 1 c.m. x 1 c.m. x muscle deep;
(2) A stab wound on right and back side of chest 2 c.m. x 0.5 c.m. x chest, 17 c.m. Below right shoulder tip;
(3) A stab wound on left and back side of chest 1.5 c.m. x 0.5 c.m. x chest 16 c.m. Below the shoulder tip: marks of cut were present on shirt, jacket, Bunian, corresponding to injuries Nos.2 and 3.
' Under injury No.1 the pellet had penetrated through skin, faciea, muscles, paricardium, left lower side of ventricle and was found lying on the back side of heart. Under injury No.2 the skin, faciea, muscles, pleaurae and posterior aspect of upper lobe of right lung were found injured. The stomach contained semi-digested food, small and large intestines contained faecal matter and the bladder was empty. Injuries Nos. 1 and 2 were declared grievous and sufficient to result in death in the ordinary course of nature and were ante-mortem. Injury No.3 was declared simple. Injury No.1 was by a fire-arm and the other two by sharp-edged weapon.
9. Ch. Mulazam Hussain, Inspector (P.W.14) was S.H.O. Police Station Pind Sultani in the year 1986. He deposed that Ch. Amir Khan, Inspector was his class-fellow, had served the department together for 20 years, had died and he was acquainted with his handwriting and signatures. He proved complaint (Exh.P.E.), injury statement and inquest reports of the two deceased (Exhs. P.L., P.M., P.N.
And P.O.) and the other recovery memos. Prepared by late Amir Khan, Inspector. Mulazam Hussain, Inspector had also investigated the case. On 10-5-1986 Sher Afzal had got recovered Chhuri (P.19) from his house, it was blood-stained, was taken into possession vide memo. (Exh.P.J.) and sealed it into a parcel.
10. At the close of the trial the appellants took the plea that the witnesses were inimical against them and related to the deceased. Khan Muhammad deceased and witnesses from village Bhonawali were not known to them previously. Both the deceased were injured by the fireshot in Nauroz Mela at Thathi Syedan during jubilation as a large crowd had assembled for enjoyment.
Ibrahim deceased was not known to the relatives of Khan Muhammad deceased, the relatives of Khan Muhammad deceased came to their village, took Qari Rashid (P.W.12) the relative of Ibrahim and the dead bodies were removed from the spot to the Dera of Liaqat Ali Khan of Pindigheb, whereafter case was concocted after deliberation and consultations. No evidence was, however, led in defence.
11. At the trial the eye-witness account and the motive part of the story was given by Karam Khan complainant, Gulab Khan and Qari Rashid Ahmad (P.Ws. 10, 11 and 12). From the spot blood-stained earth vide memo. (Exh.P.B.) and two crime empties (Exhs.P.15 and P.16) were recovered vide memo.
(Exh.P.H.) and sealed into separate parcels. The recovery evidence in this respect is provided by Abdul Sattar (P.W.8). During investigation Ghulam Ahmad had got recovered his licence and gun (P.17 and P.18) on 14-4-1986 and were taken into possession vide memo. (Exh.P.I) and the gun sealed into a parcel. The recovery is stated to by Fazal Ahmad (P.W.9). Sher Afzal got recovered blood-stained Chhuri (Exh.P.19) which was secured vide memo. (Exh.P.J.). The recovery evidence in this regard is provided by Fazal Ahmad and Mulazam Hussain Inspector (P.Ws.9 and 14). The gun and the crime empties were sent to the Forensic Expert and the empties have matched with the gun vide report (Exh.P.S.). Chhuri has also been reported to be stained with human blood vide Chemical Examiner's and Serologist's reports (Exhs.P.P. And P.R.) Relying upon this evidence the learned trial Judge concluded the charge of double murder against the appellants.
12. We have been taken through the evidence by the learned counsel for the parties. According to the learned counsel for the appellants the witnesses were interested and inimical and so could not be believed, the licensed gun of Ghulam Ahmad was taken into possession on 10-4-1986 and crime empties prepared, thus the report of Fire-arm Expert was of no avail and the possibility that a single shot had hit both the deceased, could not be ruled out. Learned counsel for the State tried to defend the judgment. Karam Khan complainant is the real maternal-uncle of Khan Muhammad deceased while Gulab Khan (P.W.11) is cousin of the father of Khan Muhammad. They and Khan Muhammad deceased are residents of village Bhonawali which is about one or two miles on the South of Thathi Syedan. Ibrahim deceased and Qari Rashid Ahmad (P.W.12) who is a cousin of Ibrahim, were the residents of village of Aurang Abad. This village is 3/4 miles on the West of Thathi Syedan. It is also in evidence that the Dhok (residential place) of the appellants is one mile on the South of Aurangabad and the Dhok of Ibrahim deceased was about 100 yards on its South.
13. The version given in the F.I.R. And reiterated by the eye-witnesses at the trial that it was Nauroz Mela in village Thathi Syedan on the day of occurrence which ended at about Peshiwcla and all started for their houses, is not challenged by the defence. The occurrence having taken place after the close of the Mela and at the spot, as deposed to by the eyc-wtinesses, also is not disputed. The motive part of the story that Mst. Zohra Bibi, the mother of Sher Afzal appellant and the wife of Ghulam Ahmad appellant was suspected of illicit connection with Ibrahim deceased and on that account was divorced, is also not under challenge. The motive part of the story is rather admitted.
14. No enmity with Karam Khan complainant and Gulab Khan (P.W.11) has been indicated or specifically stressed by the learned counsel for the appellants. Qari Rashid Ahmad is a relative of Ibrahim deceased but otherwise even he does not seem to be inimical or interested against the appellants. After having gone through their statements with the help of the learned counsel for the parties, we are inclined to think that perhaps Gulab Khan was not present at the spot. Both Karam Khan and Qari Rashid Ahmad have given the full and detailed description of the Mela and the two salient events of tent-pegging and Kabaddi/Pirr Kaudi. In addition to these two events, Gulab Khan has added that the bullock race had also been held. Such a salient event could not have been omitted by the other two eye-witnesses. Karam Khan deposed that after the Mela they reached the hotel to take tea but there being no milk, the tea was not served. On this aspect Gulab Khan has to say that they had gone to the hotel of Muhammad Haleem where they had taken tea in about five minutes and Muhammad Haleem had also witnessed the occurrence. For these considerations we are inclined to think that he (Gulab Khan) was not present at the spot. We, therefore, exclude his testimony from consideration. So far as Karam Khan and Qari Rashid Ahmad are concerned we do not find any infirmities in their statements so as not to inspire confidence.
15. While developing his arguments learned counsel for the appellants tried to reconstruct the occurrence so as to show that the possibility of the two deceased having been hit by a single shot could not be ruled out. For reconstruction of the occurrence it will have first to be shown that the eye-witnesses were withholding the correct account. As concluded above Karam Khan and Qari Rashid Ahmad inspire confidence. Their consistent case is that they were proceeding from Mela ground to the south when the appellant appeared from the East and assaulted and injured firstly Ibrahim and when Khan Muhammad tried to interfere, he too was fired at. As per the medical evidence Ibrahim was hit in front while Khan Muhammad was struck in the back. Situation cannot be visualised that while under assault one was hit in front and the other in the back with one shot.
The occurrence as desired to be reconstructed by the learned counsel does not appeal to us to have taken place in the manner as canvassed by him.
16. Two crime empties (P.15 and P.16) were recovered from the spot. The recovery thereof is stated to by Abdul Sattar (P.W.8). He has not been seriously cross-examined. The sealed parcels of the crime empties and blood-stained earth were delivered by Amir Khan, Inspector to Muhammad Khan, M.H.C. Of the police station (P.W.4) on 12-4-1986. As per his statement he kept the same in safe custody in the Malkhana and on the following day delivered the same to Altaf Khan Constable (P.W. 2) for onward transmission. He also deposed that on 14-4-1986 the S.H.O. Entrusted him sealed parcel of gun which he handed over to Altaf Khan Constable on 18-4-1986 for being taken to the office of the Forensic Science Laboratory. Altaf Khan Constable stated that he was given the sealed parcel containing empties on 13-4-1986 by the Moharrar and he delivered the same in the Forensic Science Laboratory on the following day. He also told that on 18-4-1986 he received the parcel of gun which he deposited in the Laboratory on 20-4-1986. He denied the suggestion that in his statement (Exh.D.A.) (made during investigation) he had mentioned that he had received the parcel of rifle from the S.H.O. On 10-4-1986. The statement (Exh.DA.), the carbon copy thereof from the police file and the copy delivered to the accused (D.A./2) were examined by the learned trial Judge. It seems that some rubbing had been done with respect to the dates. If there was suspicion as to the deposit of the parcels of the crime empties and the guns with the Moharrar of the police station and their onward despatch to the Forensic Expert, register Malkhana could very well have been summoned to confront the prosecution but this was not attempted. In the circumstances, we are not inclined to attach much importance to the rubbing. The gun recovered from Ghulam Ahmad appellant was licensed and so its recovery from him also cannot be doubted. The recovery of crime empties, coupled with the report of the Fire-arm Expert, is further corroboration of the eye- witness account.
17. In the end learned counsel for the appellants argued that in view of the motive part of the story the extreme penalty of death was not called for. We are inclined to agree with him.
18. The upshot is that the appeal against conviction fails and is hereby dismissed. However, the death sentence passed upon Ghulam Ahmad is altered to imprisonment for life. The sentences awarded to him on both counts shall run concurrently. Both the appellants would have the benefit of provisions of section 382-B, Cr.P.C. The reference is declined accordingly.