Muhammad Ayyub (22) was tried by Sessions Judge, Sargodha for having murdered Muhammad Sharif on 26-6-1987 at 11 a.m. In the cattle fair in area of Chak No.7/N.B. In Bhalwal at a distance of 5 furlongs from Police Station Bhalwal. Learned trial Judge vide judgment dated 8-10-1988 convicted him under section 302, P.P.C. And sentenced him to undergo imprisonment of life plus to pay a fine of Rs.60,000 in default whereof to undergo R.I. For four years. Whole of the fine, on recovery, has been directed to be paid as compensation to the heirs of the deceased.
The convict has filed appeal. The complainant has preferred revision petition wherein prayer has been made for enhancement of the sentence of imprisonment for life to death. Prayer has also been made for enhancement of the amount of fine. Both the matters are being disposed of together.
2. F.I.R. Exh. P.E. Was recorded at the police station by Haji Gul Jehan Khan, Inspector (P.W.1.2) at 11.45 a.m. On 26-6-1987 on the statement of Muhammad Latif (P.W.8).
According to the F.I.R., Muhammad Sharif son of the complainant used to work as Munshi in Bhalwal cattle fair, which used to be held on every Friday. He (deceased) went to the cattle fair at 6-00 a.m.
The complainant also reached there at 10-00 a.m. As he had to purchase a goat for sacrifice on Eid-ul-Azha. He went to his son who was performing his duty of Munshi. The complainant remained alongwith him. Muhammad Ayyub (appellant) armed with a gun came there at 11-00 a.m. He fired a shot at the deceased giving a Lalkara that he will murder him for having got his sister Nasreen divorced. The deceased caught the barrel of the gun as a result of which the shod hit him on the right thumb. He (deceased) sat down. Muhammad Ayyub reloaded the gun and fired another shot hitting him on the upper part of the right ear. Muhammad Sharif fell down. Muhammad Ashraf (P.W.9) and given up P.W. Zulfiqar witnessed the occurrence on the noise raised by the complainant. Muhammad Ayyub ran way. Muhammad Ashraf died shortly thereafter.
Muhammad Siddiq, stepbrother of the complainant, had married Mst. Nasreen, sister of Muhammad Ayyub, 1-1/2 years to the occurrence. Differences arose between the couple. Mst.
Nasreen returned to her parents' house. Muhammad Siddiq sent divorce through registered letter to Mst. Nasreen 4/5 days before the occurrence. Muhammad Ayyub suspected that Muhammad Sharif had got his sister divorced from Muhammad Siddiq. He murdered him due to that grievance.
3. Haji Gul Jehan Khan, S.H.O. (P.W.12) after recording the F.I.R. Reached the spot. He despatched the dead body for post-mortem after preparing the injury statement Ex. P.H. And inquest report Exh. P.J.
Blood-stained earth was collected by him from the spot vide memo. Exh. PC. Empties P.1 and P.2 lying at the spot were picked up by him vide memo. Exh. P.D. The appellant was arrested on 30-6- 1987. Licensed gun P.7 being carried by him at the time of arrest was taken into possession vide memo. Exh. P.G. Challan was submitted to Court after completion of necessary investigation.
4. Statements of 12 P.Ws. Were recorded at the trial.
Dr. Riaz Ahmed, who had performed autopsy at 3-00 p.m. On 26-6-1987 appeared as P.W.3. He had noted the following injuries on the body of the deceased:-- (1)A fire-arm wound with inverted edges 3 c.m. x 3 c.m. Going into brain with blackening around it on the left side of the head about 4 cm above left car. It was single wound of entry.
(2)A fire-arm wound with blackening 2 c.m. x 2 c.m. Into fracturing the bone on back of right thumb at the base of distal phalynx, which was fractured into pieces.
On dissection, he found that the shot had entered the head in single mass fracturing left temporal bone, frontal bone, left parietal bone, damaging the meninges and brain matter very badly. Cork and five pellets were removed from the brain matter. Death was opined to have occurred due to haemorrhage and shock resulting from injury No.1. Both the injuries were opined to have been caused by a fire-arm. Time between injuries and death was opined to be immediate while the time between death and post-mortem was opined to be about 5 hours.
5. Ocular account was deposed to by Muhammad Latif (P.W.8) and Muhammad Ashraf (P.W.9).
Muhammad Latif (P.W.S) while repeating the facts given by him in the F.I.R. Produced the divorce deed sent by his brother to Mst. Nasreen through registered letter that had been received back as unserved. (Divorce deed was mark `1', receipt was mark `2', and the envelope was mark `3') (Mark `2' and mark 3 have not been found on the record). During cross-examination, he stated that Siddiq had already gone back and reported in the Army Unit before the return of Talaqnama. He stated that neither he nor his son had attested the Talaqnama. He gave out that he had shown the Talaqnama on return to the police but the police had returned the same to him. According to him, the contractor with whom his son was working as `Munshi' had employed 20/25 other persons also for issuing sale receipts. He stated that he was still looking for a sheep/goat to purchase the same when the occurrence took place. He conceded that there were a large number of persons in the cattle fair. According to him, he reached the cattle fair from his village within half an hour. He denied that he was annoyed due to the marriage of his brother Siddiq or that he wanted him to marry a girl from the family of his in-laws.
6. Muhammad Ashraf (P.W.9) while corroborating the statement made by P.W.8 about the actual occurrence stated that he was, also serving as a Munshi at the cattle fair. He gave out that he alongwith Zulifqar had remained with the dead body when Latif had gone to lodge the report. He denied the suggestion that he was mueen of Mukhtar Khan and Sardar P.Ws. He stated that 2/3 persons were standing near him when the occurrence had taken place. He denied the suggestion that 4/5 persons armed with guns were standing around the deceased and were firing at him.
According to him, there were 500/600 persons in: the cattle fair at the time of occurrence.
Both the witnesses denied the suggestion that some unknown persons had committed the murder of the deceased and that they had not witnessed the occurrence as they were not in the Meta.
7. Haji Gul Jehan Khan, Inspector, who had registered the case and submitted the challan to Court after completion of necessary investigation while giving the details of the investigation also stated of having collected two empties from the spot and of having taken into possession the licensed gun of the appellant which he was carrying at the time of arrest. During cross-examination, he denied the suggestion that the eye-witnesses had not seen the occurrence and that he had summond them from village Khan Muhammad Wala and that the F.I.R. Was lodged after their arrival after consultation and deliberation. He denied the suggestion that the accused had appeared before him at his house on 26-6-1987. Statements of the remaining witnesses are more or less of formal nature.
Report 'Ex. P.M. From the Office of the Director Forensic Science Laboratory was also tendered in evidence. According to the report, the empties picked up from the spot could not be compared as test empties could not be prepared due to pin of the gun being out of order.
8. The appellant during statement under section 342, Cr.P.C. Denied the prosecution case and stated as follows in answer to the question, "why this case against you and why the P.Ws. Deposed against you?-- "I have been falsely implicated on account of family dispute with the Complainant in fact some unidentified persons fired at and killed the deceased and I was falsely implicated after deliberations when the actual culprits could not be traced.
He declined to make statement on oath and did not opt ot produce evidence in defernce.
I have gone through the evidence and considered the contentions raised by the learned counsel for the parties.
Although the argument of the learned counsel for the appellation that all witnesses from public belonged to the village of the deceased is correct but that alone in my view is not sufficient to discard their testimony.
10. The occurrence had taken place in the cattle fair which used to be held on every Friday Muhammad Ashraf (P W 9) USED TO WORK as a munshi at the cattle fair His presence therefore in the mela cannot be doubted Nothing has been brought on the record to consider that he was not working as a Munshi or was not on duty on that day.
He was not related to the deceased He was not even from his Baradari in fact he was a Qassab be caste He had no enmity with the appellant No such suggestion even was put to him in that regard as such by all means he was an independent witness His testimony therefore cannot be rejected.
11. Although Latif (p.w.8)was father of the deceased but he also had no axe that to grind against the appellant. His only son had been murdered. He would not have chosen to involve an innocent person in that. He claimed of having gone to the cattle fair to purchase the goat/sheep for the sacrifice shortly before the occurrence. His clam of presence at the spot cannot be denied because if he had not been there, he could not have reported the occurrence so promptly. (i.e within forty-five minutes). The fact of the F.I.R. Having been lodged promptly finds support also from the fact that the post-mortem was performed on the s same day at 3-00 p.m. Had the F.I.R not been lodged at 11-45 a.m. The post-mortem could not have been performed at 3-00 p.m. The argument of the learned counsel for the appellant that the F.I.R had not been lodged after the procuring o the attendance of the complainant from his village and after deliberations and consultation does not find support from anything on the record. If the complainant had any idea of dragging his enemies, he could not have named two persons as accused as the deceased was found to have suffered two fire-arm injuries. The manner of lodging the F.I.R. Itself speaks that the complainant had not tried to involve innocent persons. The manner of infliction of injury on the right thumb could have only been given by a person who had witnessed the occurrence. A person who had not witnessed the occurrence could not have even though that the said injury might have resulted from a separate shot. For all the reasons noted above, I feel no hesitation in saying hat the ocular account has been deposed to by reliable truthful and unbiased witnesses.
12. No doubt, the empties recovered fro the spot were not opined to have been fired from the gun but the report is not even in the negative. In fact that inability was expressed by the Fire-arms Expert to give the opinion as the test empty could not be prepared. For comparison with the crime, empties due to the firing pin of the shotgun being not in proper order. All the' same the `recovery' of the empties from the spot and the gun from the appellant the evidence of which ,is quits reliable lends support to the ocular account In the circumstanceI am convinced that the prosecution has been able to prove the case against the appellant beyond reasonable shadows of doubt. The appeal is therefore dismissed.
13. There is no evidence on record that the appellant; was a man of means. The sentence of fine of Rs.60,000, in the circumstance seems to be unproportionate and excessive. The same is reduced to Rs,20,000in default whereof the appellant shall undergo R.I. For two years. The fine on recovery, shall be paid as compensation to the parents of the deceased.
14. Since it is the prosecution---sown case `that the 'appellant had committed the murder as his sister toad been divorced by the uncle of the deceased, a case for family honour stands made out: Lesser penalty of` imprisonment for life awarded to the appellant does not call for' any - interference. The prayer made in the revision petition for enhancement of sentence of imprisonment for life to death is, therefore dismissed. The question of grant of prayer for enhancement of the sentence of fine, does not arise as I have already held that the sentence of fine Awarded by the trial, Judge was excessive. The prayer made in the revision petition to, that, extant.' is also, dismissed. The appellant shall be given benefit of the provisions of section 382-B Cr.P.C.
N.H.Q/M-2794/L