KHALIL-UR-REHMAN RAMDAY, J: -- Sher Muhammad, Mehram Khan and Maqbool Elahi were tried by the learned Sessions Judge of Khushab for the murder of one Muhammad Siddique.
2. Vide his judgment, dated 30-6-1987, the learned trial Court found Maqbool accused entitled to the benefit of doubt and accordingly acquitted him but found Sher Muhammad and Mehram Khan guilty under section 452/34, P.P.C. As also under section 302/34, P.P.C. And sentenced each one of them to one year's R.I. Under section 452/34, P.P.C. And to imprisonment for life with a fine of Rs.10,000 or sufferance of one year's R.I. Under section 302/34, P.P.C. The fine, if realized, was directed to be paid to the heirs of the deceased. The sentences of imprisonment were directed to run concurrently and the two convicts were also allowed the benefit of the provisions of section 382-B, Cr.P.C.
3. Sher Muhammad and Mehram Khan convicts challenge the convictions and sentences recorded `against each one of them through Criminal Appeal No.447 of 1987.
4. Muhammad Rafique, a son of Muhammad Siddique deceased has, however, filed Criminal Revision No.322 of 1987 seeking enhancement of the sentences of imprisonment for life awarded to the two convicts and consequently punishing them with death on the murder charge.
5. Both these matters are being disposed of together through this single judgment.
6. The F.I.R. In the present case bearing No.69 dated 14-10-1985 of Police Station Naushera of District Khushab which was originally registered for the alleged commission of offences punishable under section 307/452/34, P.P.C. Was recorded on the statement of Muhammad Siddique, the deceased of the present case, who was in an injured condition at the time of the recording of the said F.I.R.
7. On the death of the said Siddique on 23-10-1985, the offence under section 307, P.P.C. Was converted to one under section 302, P.P.C.
8. Siddique deceased had disclosed through the said F.I.R. That he was employed as a Constable in the Customs Department and was posted at Rawalpindi but had come home on five days leave.
9. He had further alleged that in the morning of the day of occurrence i.e. On 14-10-1985, while he was about to leave his house for Rawalpindi and while some of his relatives including Mansab Khan (P.W.12) and Muhammad Khan (P.W.13) were also present with him in his house to bid farewell to him, Sher Muhammad and Mahram Khan convicts armed with .12 bore guns and Maqbool Elahi accused armed with a hatchet entered the haveli of the deceased whereafter, Sher Muhammad convict fired a shot which hit on the front chest of the deceased followed by a shot fired by Mehram Khan convict which landed on his left knee joint.
10. The deceased had claimed that he fell down and on having seen him so fallen, the accused had run away.
11. The complainant had further alleged that about 2/3 days prior to the present occurrence, the deceased had abused Sher Muhammad convict on account of a dispute between the two relating to the family partitioning of some land.
12. After the registration of this F.I.R., Siddique deceased was carried to the hospital in Naushera from where he was referred to the D.H.Q. Hospital in Sargodha where he died on 23-10-1985 at 5-30 p.m.
13. On 17-10-1985 while Siddique deceased was still under treatment at D.H.Q. Hospital in Sargodha, Ashiq Hussain Randhawa, a learned M.I.C. (P.W.4) received orders from the District Magistrate of Sargodha to record the statement of the said Siddique deceased whereupon, the said learned Magistrate proceeded to the D.H.Q. Hospital and on being certified by Doctor Zahid (P.W.3) that the said Siddique deceased was in a fit state of health to make a rational statement, he recorded the statement of Siddique deceased which is available on record as Exh.P.C./3.
14. This statement made by Siddique is almost the same as the statement made by him at the police station and which is now available in the form of the F.I.R. Of the present case.
15. When examined under section 342, Cr.P.C. Sher Muhammad convict claimed that one day prior to the occurrence in question, Siddique deceased and Fida Muhammad had abused and had beaten Maqbool Elahi (the acquitted accused), a son of Sher Muhammad convict and had asked him not to pass in front of their house as they had got political differences with the family of the said Maqbool Elahi.
16. Sher Muhammad had pleaded that on the day of occurrence, his son Maqbool Elahi (the acquitted accused) again passed through the same street which was a thoroughfare at which, Siddique deceased and the said Fida Muhammad fired at him from the western gate of their haveli but Maqbool Elahi managed to escape unhurt by running away.
17. Sher Muhammad convict had further stated that he was present at his house and after hearing the report of fire-arm, he thought that his son Maqbool had been fired at, whereupon, he picked up licensed gun and came out and just as he had reached in front of the house of Siddique deceased, the said Siddique and the aforementioned Fida Muhammad fired at him but he also luckily escaped unhurt. Siddique deceased and Fida Muhammad against allegedly fired at Sher Muhammad convict who in order to save his own life, fired back at these two from a long distance.
18. Mr. Ijaz Hussain Batalvi and Mr. D.M. Awan, the learned counsel representing Sher Muhammad and Mehram Khan convicts respectively submitted that the two statements of Siddique deceased available in the form of the F.I.R. And the statement recorded by a Magistrate as abovementioned were a fabrication and did not deserve any credit; that the two eye-witnesses, namely, Mansab Khan and Muhammad Khan were chance witnesses who were closely related to the deceased and who were inimically disposed towards the convicts; that the ocular testimony was being belied by the medical evidence; that the eye--witnesses had already been disbelieved in respect of the acquitted accused, namely, Maqbool Elahi, that Sher Muhammad convict had fired at the deceased in self-defence and that no case of conviction was thus made out against both the convicts.
19. Mr. D.M. Awan, the learned counsel for Mehram convict further submitted that, 'in the first instance the motive alleged by the prosecution did not stand established on record and in any case, even if the motive be conceded for the sake of arguments, no motive was available to Mehram convict to participate in the occurrence in question; that Mehram convict had been involved on account of his close relationship with Sher Muhammad convict in an attempt not to leave out any male member of the family of Sher Muhammad; that according to the medical evidence, the pellet injuries received by the deceased could be the result of one shot fired at him and that this opinion of the doctor found support in the medical evidence and finally that in the circumstances, the participation of Mehram convict in the occurrence in question was not at all free from doubt.
20. Having been injured at the place of occurrence, Siddique deceased had been carried to the police station where he made a statement, which is now the F.I.R. Of this case and it was thereafter that he was carried to the hospital where he was received and examined by Dr. Sarwar (P.W.2).
21. This doctor had categorically stated that Siddique deceased was in complete senses when he reached the hospital and the defence could not bring anything on record which could have demonstrated that Siddique deceased was not in a position to make the statement, which he allegedly made at the police station after receipt of the injuries which he had received on his person.
22. Thereafter Siddique deceased was immediately shifted to Sargodha Hospital and it was at Sargodha that the son of Siddique deceased had made an application for the recording of Siddique's `dying declaration' which ultimately resulted in orders; of the District Magistrate to the said effect, in pursuance of which orders, Mr. Ashiq Hussain, M.I.C. Finally recorded the statement of Siddique deceased.
23. This statement Exh.P.C./3 had been recorded by a Magistrate in the presence of a doctor i.e. Dr. Zahid (P.W.3) after the said doctor had certified that the deceased was in a fit condition to make a rational statement.
24. The defence again failed to bring out any fact, which could militate against the proper and faithful recording of the dying declaration on 17-10-1985.
25. The submission of the learned counsel for Sher Muhammad convict that in the presence of the F.I.R. Which itself qualified as a dying declaration the recording of further dying declaration on 17- 10-1985 was an indication that the subsequent statement was the result of a fabrication.
26. This submission appears to be without force. It is true that even the F.I.R. Is admissible as a dying declaration. Nevertheless, if the deceased was available and if his statement could be recorded by Magistrate, in the presence of a doctor, which could have answered all possible objections which could have been levelled against the statement made by the deceased to Nazar Muhammad H.C.
Which was reduced as an F.I.R., then this opportunity cannot be grudged to the son of the deceased at whose instance, this statement had been recorded.
27. There is no reason not to rely upon the testimony of the learned Magistrate (P.W.4) and the doctor (P.W.3). Nor is there any reason available on record to doubt the correctness or the propriety of the statement made by the deceased to the Police Officer at the police station.
28. Mansab Khan (P.W.12) is the son of a step-sister of the deceased and also his son-in-law whereas Muhammad Khan (P.W.13) is brother-in-law of Siddique deceased. Their places of residence are at half of furlong from the residence of Siddidque deceased which is the place of the present occurrence.
29. The close relationship of these two eye-witnesses with the deceased, as also the proximity of their residence with the place of occurrence supports their explanation that they were present at the place of occurrence to say good-bye to Siddique deceased who was, for the first time, taking away his family to Rawalpindi, which was the place of his posting.
30. The defence tried to demonstrate that the two eye-witnesses were inimical towards the accused persons.
31. It was brought on record by the defence that one Mst. Bhag Bhari who was the paternal-aunt of Muhammad Khan P.W. Was married to one Ali Muhammad who was an uncle of Sher Muhammad convict and that it was at the instance of the father of Sher Muhammad convict that the said Ali Muhammad had divorced the said Mst. Bhag Bhari.
32. To further demonstrate the animosity between the two sides, it had also been brought on record that one Ali Muhammad was the grandfather of Mansab Khan P.W. And it was suggested that he had abducted one Mst. Fateh Khatoon and that the father of Sher Muhammad convict had appeared as a P.W. Against the grandfather of Mansab Khan P.W. This suggestion was, however, denied by Mansab Khan P.W.
33. It was suggested to Muhammad Khan P.W. That a cousin of his, namely, Mst. Fateh Khatoon had been abducted by one Fateh Khan whose brother was married to a cousin of Mehram Khan convict. This suggestion was also denied by Muhammad Khan P.W.
34. On the strength of such like facts and suggestions, it was contended that the two eye-witnesses were inimical towards the convicts.
35. Even if these suggestions be admitted as correct, we are afraid, the same are too far-fetched to be of any consequence and thus could not offer any ground to the two eye-witnesses to falsely implicate the convicts.
36. We are, therefore, of the opinion that the ocular testimony cannot be rejected on the ground of being interested nor can any exception be taken to the validity and the legality of the two statements i.e. The F.I.R. And the one recorded by the Magistrate, being accepted as the dying declaration of Siddique deceased.
37. This evidence, however, needs some sifting.
38. Siddique deceased had alleged through the F.I.R. That there was some dispute existing between him and Sher Muhammad convict regarding the partitioning of some family land.
39. This assertion of the deceased and the eye-witnesses has remained unsubstantiated on record. The prosecution could not establish that the two had any joint family property, which required partition. No proceedings before any Court or before any Authority were ever commenced in respect of any such dispute. Even the pieces of land owned or held by the deceased and Sher Muhammad convict were not contiguous or even close to one another, which could possibly generate any dispute.
40. In the circumstances, we find that the prosecution had failed to prove the motive alleged. .
41. Dr. Sarwar (P.W.2) was of the opinion that the injuries on the chest and the left knee joint of Siddique deceased could be the result of a single shot.
42. The dimensions and the condition of the edges of all the fire-arm injuries on the person of the deceased were identical. The prosecution did not deny that injuries Nos.1, 2 and 3 were the result of one shot. If this be so, then there was no difference between injuries Nos. 2 and 3 and No.5.
43. The opinion tendered by Dr. Sarwar (P.W.2) that all the four fire-arm injuries could be in result of the same shot, is not unreasonable or unfounded.
44. There was no motive for Mehram Khan convict to have joined Sher Muhammad convict in the assault mounted on Siddique deceased. It has come on record that Mehram Khan convict was a brother-in-law of Sher Muhammad convict and was the only male adult relative of Sher Muhammad who was available in this village at the time of occurrence.
45. The gun recovered from Mehram Khan convict offers no support to the prosecution case, as the same is his licensed gun.
46. In the circumstances, we find that the participation of Mehram Khan convict in the occurrence in question is not free from doubt, the benefit of which doubt is to be extended to him.
47. Consequently, the convictions and sentences recorded against Mehram Khan convict under sections 452/34 and 302/34, P.P.C. Are set aside. He is acquitted of the said charges and shall be set at liberty forthwith, if not required to be detained in any other case.
48. As has been noticed above, Sher Muhammad convict had taken up a definite plea and had his own version of the occurrence in question. 'His explanation of the death of Siddique deceased is, however, full of infirmities and improbabilities.
49. Claims that Siddique deceased and one Fida Muhammad had fired shots at his son Maqbool Elahi and sitting in his house, he could make out that these shots had been fired at his son. He immediately picked up his licensed gun and rushed towards the spot in question only to find out that the shots had in fact been fired at his son but these shots had gone amiss.
50. Siddique deceased and Fida Muhammad again tried their luck, this time, by firing shots at Sher Muhammad convict but the same again missed the target.
51. The two from the complainant's side i.e. Siddique deceased and Fida Muhammad made another attempt and once again fired shots at Sher Muhammad convict which again went astray whereafter, Sher Muhammad convict fired a solitary shot from a long distance which hit Siddique deceased and finally proved fatal.
52. The medical evidence available on record does not support this version of the occurrence offered by Sher Muhammad convict. The edges of all the fire--arm injuries on the person of Siddique deceased were found to be torn and the margins of one such injury had even got blackened. This thus indicated that the shot fired at Siddique deceased had been fired from a close range and not from a long distance as claimed by Sher Muhammad convict.
53. Even otherwise it takes too many co-incidents to complete Sher Muhammad's story of the occurrence. It is not reasonably believable that two persons from the complainant side i.e. Siddique deceased and Fida Muhammad were allegedly firing shots from their weapons and each time that they fired these shots i.e. Once at Maqbool Elahi and twice at Sher Muhammad convict, every such shot missed the target.
54. The blood-stained earth was found from within the haveli of Siddique deceased, which again makes this defence version improbable.
55. We thus find that Sher Muhammad's plea about the manner in which the occurrence in question had allegedly taken place is far from being reasonable and thus cannot be acted upon.
As against this, the prosecution story, to the extent of Sher Muhammad convict inspires confidence and is believable.
56. Consequently, we maintain Sher Muhammad's conviction under section 302, P.P.C. And under section 452, P.P.C.
57. As has been noticed above, the motive alleged by the prosecution did not stand fully established on record and the immediate cause which had led to the murder of Siddique deceased was hazy, in which circumstances, the capital punishment was justifiably not imposed on Sher Muhammad convict.
58. In view of what has been held above, Criminal Revision No.322 of 1987 is dismissed. Criminal Appeal No.447 of 1987 is dismissed to the extent of Sher Muhammad convict but is allowed to the extent of Mehram Khan convict.
59. Both these matters thus stand disposed of in the above terms.