KHALIL-UR-REHMAN RAMDAY, J.--- Zahoor, his brother Ayub, their cousins Amir Abdullah and Zafarullah who are brothers inter se and their maternal-uncle Saifullah were sent up to face trial for the murder of one Abdul Rashid.
2. Saifullah accused, abovementioned, got murdered on 12-7-1987 and the trial to his extent abated.
3. Out of the remaining four accused persons, Ayub, Amir Abdullah and Zafarullah were given the benefit of doubt and were accordingly acquitted.
4. Zahoor was, however, found guilty of the charge under section 302, P.P.C. And was sentenced to death with a fine of Rs.5Q,000 or sufferance of two years' R.I. In default of payment of the said fine.
Half of the amount of fine was directed to be paid to the heirs of the deceased, as compensation.
5. This was vide a judgment, dated 5-7-1988 of a learned Additional Sessions Judge of Mianwali.
6. Murder Reference No.196 of 1988 seeks confirmation of the sentence of death imposed on Zahoor convict who in turn challenges his above-noticed conviction and sentences through Criminal Appeal No.896 of 1988. Alam Khan complainant felt aggrieved of the acquittal of Ayub, Amir Abdullah and Zafarullah accused and also felt dissatisfied with the amount of compensation awarded to the heirs of the deceased and challenges the said acquittal besides seeking enhancement of the amount of compensation through Criminal Revision No.526 of 1988.
7. The learned counsel for Alam Khan complainant-petitioner stated at the very outset that he did not want to press the revision petition abovementioned, which is still at motion stage. The same is accordingly dismissed as not pressed.
8. This judgment shall therefore, dispose of only Murder Reference No.196 of 1988 and Criminal Appeal No.896 of 1988.
9. It was one Alam Khan who disclosed before Arshad Mehmood Inspector/S.H:O. Of Police Station Mochh (P.W.12) on 11-6-1985 at about 6-20 p.m. That Abdul Rashid deceased was sitting on a bench in the Verandah of the hotel of one Yaqoob Khan situate in Purana Adda Larrian of Mochh at about 6-00 p.m. And while the complainant was purchasing fruit from the shop of Habib Ullah Khan located in front of the above-said hotel for breaking the fast, Zahoor appellant armed with .12 bore gun. Ayub, acquitted accused, armed with a rifle, Amir Abdullah acquitted accused armed with .12 bore gun. Zafarullah, acquitted accused, armed with .12 bore pistol and Saifullah accused (since dead) reached there and stood on the road a few paces away from Rashid deceased whereafter, Zahoor appellant challenged the deceased that they had come to take revenge of the fire-arm injuries which Khalid Khan, a cousin of Rashid deceased had inflicted on his person.
10. Alam Khan complainant had further disclosed that Zahoor appellant thereafter went near Rashid deceased and fired a shot with his gun which hit the deceased on his left chest, whereafter, the remaining accused persons fired shots in the air and all of them decamped from the place of occurrence.
11. The complainant had alleged that on 22-5-1985 Zahoor appellant had fired at and injured one Ghulam Sarwar who was a paternal-uncle of Rashid deceased as a result of which, Khalid abovementioned, a cousin of the said deceased had retaliated the same day and had injured Zahoor appellant with a fire-arm shot and it was for this reason that the appellant had killed Rashid deceased.
12. This was then the prosecution case against the accused persons who had in turn pleaded that they had been falsely implicated in a fabricated case in which, even the venue of occurrence had been changed by the prosecution.
13. The inter se relationship of the appellant party has already been mentioned above and it would be of advantage to notice the inter se relationship of the deceased and the eye-witnesses also.
14. Rashid deceased was a son of real sister of Alam complainant (P.W.9). A brother of the deceased is married to the daughter of Alam complainant.
15. Abaid Ullah (P.W.10) and his brother Saad Ullah are married to the two sisters of Alam complainant.
16. Sher Khan (P.W.11) is a Mamunzad of Rashid deceased and his brother Muhammad Khan is married to a sister of the said deceased. He is also a nephew t of Alam complainant.
17. The learned counsel for the appellant attacked the motive alleged by the prosecution and argued that there was no reason for Zahoor appellant to have assaulted and killed Rashid deceased and further that Ghulam Sarwar afore--mentioned who had been injured by Zahoor appellant on 22-5-1985 was not a real paternal-uncle of Rashid deceased.
18. It is true that the defence did successfully demonstrate that the said Ghulam Sarwar was not a brother of the father of Rashid deceased but the actual relationship which became apparent at the trial was that the said Ghulam Sarwar was a first cousin of the father of Rashid deceased. In the circumstances, this lapse or improvement on the part of the eye-witnesses is not really material.
19. From the record it, however, transpires that the relationship of Khalid, above-mentioned, who had inflicted fire-arm injuries on the person of Zahoor appellant on 22-5-1985 and which incident was the real motive for Zahoor appellant to have attacked the deceased, was never challenged.
20. From the two incidents abovenoticed of 22-5-1985, it appears that the assault on Ghulam Sarwar abovementioned was avenged neither by Ghulam Sarwar himself nor by any of his brothers or sons and the one who had retaliated against this assault, was Khalid, a cousin of Rashid deceased.
21. The pattern, which thus emerges is that as between the two parties, the revenge is taken by whosoever can manage it and is taken on whosoever may be available.
22. In the circumstances, if Khalid could injure Zahoor appellant for assault committed by him on Ghulam Sarwar, then it is believable that Rashid deceased who was a cousin of the said Khalid, could also become a target of the wrath of the appellant.
23. We thus find that the defence has not been able to shake the motive) alleged by the prosecution for the occurrence in question.
24. It was next contended on behalf of the appellant that according to the eye-witnesses, Zahoor appellant had fired at the deceased while he was about seven feet away from him. The learned counsel submitted that it had been brought on record that the barrel of the appellant's gun was 2- 1/2 feet long and it is also known that the butt of the gun is about one foot in length and in the circumstances, the fire would have hit the deceased from the distance of only about three-four feet which should have caused blackening and charring on the injury in question which, however, was not found to exist. Relying upon the absence of this blackening and burning, the learned counsel argued that the eye--witnesses had not seen the occurrence in question and thus, could not be believed.
25. The learned counsel was confronted with the site plan Exh. P.A. Of the place of occurrence, according to which, the distance between the deceased and Zahoor appellant at the time the shot in question had been fired was 17 feet. This explains the absence of blackening and charring around the seat of injury. Needless to mention that the distance mentioned by the eye-witnesses is a mere guess work, which may or may not depict the exact measurement on the ground.
26. The learned counsel for the appellant attacked the veracity of the prosecution claim also on the ground that besides the relatives of the deceased, no one from around the place of occurrence had come forward to support the prosecution case.
27. It has been held more than once, that members of the public were reluctant to become witnesses in such like cases and this reluctance was understandable. Reference here may be made to the statement of Arshad Mehmood S.H.O./I.O. That Yaqoob Khan, the owner of the hotel, where the occurrence had taken place, had refused to become a witness because of the fear of the two parties.
28. The prosecution story, therefore, cannot be rejected only because no one from the public had come forward to support the same as a witness.
29. Relying upon an admission of Alain complainant, that his cousin, also by the name of Alam, who was also a cousin of Sher Khan P.W., had been murdered in the year 1965 and that Muhammad Khan, the father of Zahoor appellant had been tried for the said murder, the learned counsel attempted to demonstrate that these two eye-witnesses, namely, Alain (P.W.9) and Sher Khan (P.W.11) were inimical witnesses.
30. The learned counsel, however, failed to notice that in the same breath Alain Khan complainant had also declared that the said Muhammad Khan had been acquitted in the said murder case on account of the compromise between the parties.
31. In the circumstances, it cannot be said that Alam and Sher P.Ws. Had any animosity against Zahoor appellant which could have prompted them to falsely implicate the said Zahoor in the occurrence in question.
32. The occurrence in question was a day time occurrence which had taken place in a public place and thus, could not have gone unwitnessed, nor could have the assailants managed to escape unidentified from the place of occurrence.
33. There was thus no occasion or reason for falsely substituting Zahoor appellant for the actual assailants.
34. The learned counsel lastly contended that the medical evidence was at variance with the ocular testimony inasmuch as it appears from the wounds of entry on the person of the deceased that the same were not the result of a single shot but were the result of at least two different shots fired at him.
35. It is true that Dr. Iftekhar Ahmad (P.W.6) found that shape of one of the wounds of entry was oval while the others were round in shape. But the doctor had himself explained that the oval shape was because of two pellets having entered the said place together, which was also supported by the fact that the measurements of this wound entry were 2 c.m. x 1 c.m. Whereas, the measurements of the other wound of entry were 1 c.m. x 1 c.m.
36. Having thus analysed the prosecution evidence available on record, we find that the eye- witnesses though related, were yet believable because the defence had failed to bring out any motive on the part of the eye-witnesses which could prompt them to falsely implicate Zahoor appellant in the occurrence in question, especially when the complainant party had already avenged the appellant's assault on Ghulam Sarwar through an assault by Khalid on the appellant.
The motive alleged by the prosecution also inspires confidence and is accepted.
37. The defence had produced Ghulam Dastgir D.S.P. As a witness in their defence. He, while posted as D.S.P. Of the Crimes Branch had investigated this case under the orders of the I.G. Of the Poliao and had found Ayub and Amir Abdullah accused as innocent.
38. He had stated during his cross-examination that the investigation of the said case had been entrusted to him on account of an application submitted by the father of Zahoor appellant and had claimed that in this application, which was available on the police file, the appellant's father had mentioned that all the persons accused of the murder of Rashid deceased except Zahoor appellant, were innocent. This assertion of this Investigating Officer who was a witness of the defence itself, was never challenged by the defence through re-examination nor did the defence throw any challenge to the said witness by requiring him to place the said application on record.
39. This is a circumstance, which cannot be ignored and which supports the prosecution story.
40. In view of the facts and circumstances abovenoticed, which appear on record, we agree with the conclusions reached by the learned trial Court and consequently, maintain the conviction and the death sentence recorded against the appellant. The death sentence awarded to Zahoor appellant is, therefore, confirmed. We, however, find that the amount of fine imposed on the appellant is excessive. The same is reduced to an amount of Rs.20,000. The imprisonment directed in default of payment of fine shall, however, remain the same but it is directed that the entire amount of fine, if realised, shall be paid to the heirs of the deceased.
41. Criminal Appeal No.896 of 1988 and Murder Reference No.196 of 1988 are, thus, disposed of in the above terms.