RASHID AZIZ KHAN, J.--Muhammad Afzal (30) with his father Amir Ahmad (65) was sent up by Police Station Hazro, District Attock, for trial for offences under sections 302/307/34 PPC for the murders of Isa Khan and his brother Muhammad Ayyub, and murderous assault on Muhammad Ashfaq.
Sessions Judge, Attock, vide his judgment dated 2.12.1986 gave the benefit of doubt and acquitted Amir Ahmad. Muhammad Afzal was, however, found guilty and sentenced under section 302 PPC to death on two counts and a fine of Rs. 5000/- on each count, or in default two years R.I. It was directed that the fine, If recovered, shall be paid to the legal heirs of both the deceased. He was also convicted under section 307 PPC to ten years R.I. And a fine of Rs. 2000/-, or in default one year R.I. It was directed that the fine, if recovered, shall be paid to the injured PWs. The convict has appealed. The case is also before us for the confirmation of death sentence. The complainant has also filed a Revision challenging the acquittal of Amir Ahmed. All these matters will be disposed of by this judgment.
2. The prosecution story, in brief, as disclosed in FIR Exh.PG/1, was to the effect that Muhammad Ayyub (now deceased) on 22-12-1985 at 7:30 a.m., with his elder brother Isa Khan and nephew Muhammad Ashfaq was having tea in their house. After tea, Isa Khan went towards the mosque with children. While he was going out, the first informant with his nephew Muhammad Ashfaq also followed him. In the street, Muhammad Afzal, armed with revolver, with his father Amir Ahmad, empty handed, came. Muhammad Afzal challenged them by saying that they would be taught a lesson for not agreeing to marriage. On the lalkara raised by Amir Ahmad to the effect: "finish all of them", Muhammad Afzal fired hitting Isa Khan on the chest, who fell down. Thereafter, he fired two shots - one hitting the first informant in the abdomen, and the other shot hit Muhammad Ashfaq on the right side of the chest. The commotion attracted the eye-witnesses to the spot. The motive for the occurrence was that about a year before the registration of the case, Amir Ahmad (acquitted accused) had asked for the hand of Mst. Irshad, daughter of first informant's brother Rasool Khan, for marriage to Muhammad Afzal, appellant, which was refused. Later on said Mst.
Irshad was married to one Haq Nawaz of the same village. At the time of marriage Muhammad Afzal tried to create a scene but at braird level the matter was patched up. A day before the incident, Muhammad Afzal again had threatened them. He had committed the murder because of the said motive.
The occurrence took place on 22-12-1985 at 7:30 a.m. In a street in village Hameed - five k.m. From Police Station Hazro. FIR Exh.PG/1 was recorded on the same day at 9:25 a.m. By Muhammad Mehboob, Moharrir/Head Constable, PW-2 on the basis of a statement made by Muhammad Ayyub, (now deceased), at Civil Hospital, Hazro, which was recorded by Amir Khan, Inspector/SHO, PW 14.
3. Dr. Sultan Mehmud, Medical Officer, Civil Hospital, Hazro, PW-1, on 22-12-1985 at 8:10 a.m.
Examined Muhammad Ayyub, injured, and found the following injury:-
1. A circular wound of entrance .75 x ,75cm on the anterior of abdomen just below and to the right of umbilicus going deep into the cavity. Cut on shirt and saluka was present. Because of serious condition of the patient, he was referred to Holy Family Hospital, Rawalpindi, where he expired at 1 p.m.
On the same day, at 8:25 a.m. He medically examined Muhammad Ashfaq and found the following injury:-
1. A circular wound of entrance .75 x .75cm going deep on the right upper chest anteriorly, cut on shirt and saluka was present.
The injury was caused with a firearm, which was later on declared grievous.
On the same day, i.e. 22.12.1985, the doctor had also given an opinion Exh. PD/1 on the query of investigating officer that Muhammad Ayyub and Muhammad Ashfaq injured were able to make statement.
On 22.12.1985 at 11:45 a.m., he conducted the postmortem examination on the dead body of Isa Khan and found the following injury:-
1. A circular wound of entrance .75 x.75cm on the left anterior chest in the upper part. There was a charing around the wound. On deep dissection, the bullet had entered the left thoracic cavity, pierced the anterior surface of left lung at the junction of superior and middle lobe, traversed the lung, pierced the posterior plural cavity, entered into the upper thoracic vertebra, went through it and stopped at the inter scapula region in the upper part, from where it was removed, sealed in a bottle and handed over to the police. The left thoracic cavity was fully of blood.
In his opinion, the death had occurred due to injury No.1 which was sufficient to cause death in the ordinary course of nature.
On the same day at 2:45 p.m., he also conducted the postmortem examination on the dead body of Muhammad Ayyub and found the following injury:-
1. A circular wound of entrance .75 x .75cm on the anterior abdomen below into the right of umbilicus. On deep dissection, the bullet had entered the abdominal cavity and ruptured the mesentery of small intestines then ruptured the ascending colon and the mesentery of caecum.
After that it peicered muscles of posterior abdominal walls, went through the hip bone and stopped at the upper part of right gluteal region, from where it was recovered, sealed in a bottle and handed over to police. The abdominal cavity was full of blood.
In his opinion, the death had occurred because of injury No.1 which was caused with a firearm and was sufficient to cause death in the ordinary course of nature.
4. Amir Khan, Inspector/SHO, PW-14, received information from the Civil Hospital, Hazro, with regard to the admission of the injured. He went to the Hospital, and made an application Exh.PD to enquire if the injured were in a fit state to make statements. The doctor replied in the affirmative, therefore, he recorded the statement Exh.PG of Muhammad Ayyub, which was read over to him and he signed the same in token of its correctness. Thereafter, he sent the statement for registration of the case. He secured blood-stained clothes of Muhammad Ashfaq, injured, vide memo Exh.PM, and of Muhammad Ayyub vide memo Exh.PL. He came to the spot and prepared injury statement Exh.PN, of Isa Khan, and inquest report Exh.PC. While at the spot, he learnt about the death of Muhammad ayyub, therefore, went to the hospital and prepared injury statement and inquest report Exh.PP and Exh.PQ, respectively. He sent the dead body for postmortem examination. He arrested the accused on 23.12.1985. Muhammad Afzal at the time of his arrest produced licenced revolver P.9, which contained three empties P.8/1-3, and three live bullets P.12/1-3, vide memo Exh.PK. He got the said memos attested from Muhammad Anwar and Riffat Abbas. On 24.12.1985 he got the site-plans Exh.PJ and PJ/1 prepared from the Draftsman and gave his notes in red ink thereunder.
5. The prosecution in support of its case produced 14 witnesses in all. Dr. Sultan Mehmood, PW-1, had examined the injured and conducted the postmortem examinations. Muhammad Mehboob, H.C., PW-2, had drawn the formal FIR Exh. PG/I.PW-4 Sardar Bakhsh, F.C. Had produced last worn clothes of Muhammad Ayyub, deceased, before the investigating officer. On 1.1.1986 he had taken sealed parcels containing 32 bore revolver and empties and delivered them in the office of forensic Science Laboratory, Lahore. Muhammad Hanif, Draftsman, PW-5 had prepared site-plans Exh.PJ and PJ/1 on the direction of the police. Muhammad Anwar, H.C., PW-6 had witnessed the recovery of revolver P.9 at the instance of Muhammad Afzal, appellant. Hasham Khan, PW-9 came to the spot after the incident and transported the injured to the hospital in a suzuki-van. Hakeem Khan, PW-10, had deposed about the motive. He further stated that on the occasion of marriage of Mst.
Irshad, daughter of Rasool Khan, (brother of both the deceased) j Rasool Khan had approached him and asked him to request the accused to refrain from making any unpleasant scene at the time of his daughter's marriage, which he accordingly did. Shehbaz Khan,PW-ll, stated that a day before the incident, he was coming from the mosque and saw both the deceased standing near the baithak of one Sardar Khan. In the meanwhile, both the accused came and asked them to go away from their sight. This witness along with another separated the parties. The ocular account was furnished by Muhammad Ashfaq and Sarwar alias Kala, PWs-12 and 13, respectively. The case was investigated by Amir Khan, PW-14, the SHO.
At the conclusion of the prosecution evidence, the appellant was examined under section 342 Cr.P.C, wherein he refuted the prosecution allegations and pleaded innocence. He also appeared in his defence on oath and pleaded innocence. He, however, did not produce any defence evidence.
6. It was contended by learned counsel for the appellant that the motive, as set up by the prosecution, was not proved. It was argued that the recovery of revolver and empties at the instance of the appellant was extremely doubtful because he was alleged to have produced the revolver along with the empties on the following day of incident and in such circumstances, he had ample opportunity to do away with the empties. Lastly, it was submitted that in any case, the sentence of death was not justified because the appellant had acted under the influence of his father. The contentions were opposed by learned Assistant Advocate General for the State.
7. We have heard the learned counsel and gone through the evidence. The prosecution in order to prove its case has mainly relied upon the evidence of motive, recovery of firearm, dying declaration and the ocular account. The motive in this case has been furnished by Hakeem Khan and Muhammad Ashfaq, PWs- 10, and l2, Hakeem Khan and Muhammad Ashfaq, PWs-10, stated that Amir Khan wanted the hand of Mst. Irshad Bibi, niece of both the deceased, for his son Muhammad Afzal, appellant, but the same was refused. The witness was cross- examined at length but nothing could be brought on the record to suggest that he was not telling the truth.
Muhammad Ashfaq, PW-12, had also deposed about the motive. He was brother of said Mst. Irshad Bibi whose hand the appellant and the acquitted co-accused had asked for. He has been cross- examined at length but nothing damaging could be brought on the file. We fail to understand why would a brother depose falsely that the appellant had asked for the hand of his sister. In these circumstances, we hold that the motive is proved. Muhammad Ayyub was admitted in the Civil Hospital, Hazro in an injured condition. The investigating officer on receiving the information rushed to the hospital and made a query to the doctor to indicate if the injured was in a fit state to make statement. The doctor replied in the affirmative. Thereafter, he recorded the statement of Muhammad Ayyub, injured, at 9:25 a.m. On the same day at 1 p.m., said Muhammad Ayyub died.
The investigating officer while deposing about the recording of the statement, had stated that after recording the the statement, he read over the same to the injured who accepting it correct, signed.
The FIR on the basis of same statement was drawn. The defence in its cross-examination did not suggest to the investigating officer that the injured was not in a fit state to make the statement or the statement was not got recorded by the injured at all. In the absence of any challenge to this part of the statement of the investigating officer, we hold that statement Exh.PG was got recorded by Muhammad Ayyub, who died a few hours thereafter. The ocular account has been furnished by Muhammad Ashfaq and Sarwar, PWs-12 and 13, respectively. Muhammad Ashfaq was injured in the same transaction as well. In these circumstances, his presence at the spot cannot be doubted, especially in the circumstances when he received a firearm injury on the chest. He has given a detailed account of the occurrence the way it transpired. In cross-examination, the defence has not been able to create doubt in his evidence; no enmity or motive for false involvement was suggested to the witness. Even otherwise also, his presence at the relevant time would be quite natural because he was accompanying his uncles when the occurrence took place. A careful perusal of his statement has indicated that he is a truthful witness and inspires confidence. Sarwar, PW-13, corroborated the statement of Muhammad Ashfaq, the eye-witness, by giving a detailed account. He was cross-examined at length wherein he stated that his house was about I0O paces from the spot and he had come out of his house to go to the market for seeking labour. No enmity was even suggested to this witness. He is an independent person, not connected with either side.
Therefore, we hold that he is a truthful witness and can safely be relied upon. The last contention of the learned counsel that the appellant had acted under the influence of his father, therefore, the imprisonment for life would adequately meet the ends of justice has been considered, but we do not find any force in it. It is in evidence that the motive was directed against the appellant. He was rejected by the real brother of both the deceased for marriage with his daughter Mst. Irshad Bibi.
There was an apprehension against him that he might create some scene at the time of marriage of Mst. Irshad Bibi this fact has also been proved by the prosecution. He had also exchanged hot words with both the deceased a day prior to the occurrence. In these circumstances, we hold that the motive for the commission of the present offence was directly attributed to the appellant, and in such circumstances, it cannot be said that he had acted under the influence of his father.
For what has been discussed above, we hold that the prosecution has been able to prove its case beyond doubt; there fore, the appeal fails which is accordingly dismissed.
As far as the acquitted co-accused is concerned, we find there is hardly any evidence to establish his involvement. No overt act as such was attributed to him. He was empty handed. In these circumstances, after going through the judgment impugned, we feel that he was rightly given the benefit of doubt. Therefore, the revision fails which is dismissed.
In these circumstances, we dismiss the appeal and confirm the death sentence on each count. For the reasons discussed, the revision of the complainant is dismissed; The death sentence is confirmed.