SARDAR MUHAMMAD DOGAR, J.---Muhammad Amir Khan (46) and his sons, Khan Zaman (28) and Nawab Khan (16) were tried by Addl. Sessions Judge, Mianwali for having murdered Wazir Khan at 6-00 a.m. On 1-7-1987 near graveyard Meer-e-Khel in the area of village Kot Chandna at a distance of 5/6 K.M. From P.S. Kalabagh, District Mianwali.
2. Learned trial Judge vide judgment dated 29-11-1988 convicted all of them under section 302/34, P.P.C. And sentenced as follows:
(1) Muhammad Amir Khan.
(2) Khan Zaman.
Each sentenced to death plus to pay a fine of Rs.10,000 each, in default whereof to undergo R.I. For six months each; and
(3) Nawab Khan sentenced to imprisonment for life, plus to pay a fine of Rs.5,000, in default whereof to undergo R.I. For three years. Benefit of section 382-B, Cr.P.C. Has been extended.
3. The convicts have filed appeal. Learned trial Judge has made reference for confirmation of death sentences. Both the matters are being disposed of together.
4. F.I.R. Exh.PG was recorded at the Police Station by Ghaus Muhammad (P.W.11) on 1-7-1987 at 6-45 a.m. On the statement of Muhammad Khan (P.W.8).
5. According to F.I.R. The accused were related to the complainants. They owned land from a joint Khata.
On the day of occurrence, the complainant was going alongwith his maternal-uncle Suleman P.W.
(given up) towards the graveyard for seeing him off. Wazir Khan, his deceased father, was going ahead of them for urinating. Wazir Khan reached near the land of Malik Allah Yar close to graveyard Meer-e-Khel. It was 6-00 a.m. Khan Zaman armed with gun accompanied by Nawab Khan armed with knife and Amir Khan armed with Churra came out of the hiding. Khan Zaman fired a shot at Wazir Khan which hit him near the left ear and on the left side of the neck. He fell down.
The complainant and Suleman raised hue and cry. However, being empty-handed they did not dare to intervene physically. Nawab Khan and Amir Khan inflicted injuries to the deceased on the chest, left side of the flank and abdomen with their respective weapons. Alain Khan (P.W.9) also reached the spot hearing hue and cry and witnessed the occurrence. The accused went away towards their house.
6. For motive, for the occurrence, it is stated that there was dispute of division of land between the complainants and Khan Zaman etc. It is also stated therein that Alam Khan had got a case registered under section 325, P.P.C. Against Khan Zaman and Amir Khan in which Wazir Khan was a witness for the prosecution.
7. Ghaus Muhammad, S: I., after registration of the case reached the spot. He despatched the deadbody for post-mortem after preparinig injury statement and inquest report. Bloodstained earth was also collected by hint from the spot vide memo. Exh.P.C. The investigation was taken over by Ubaid Ullah S: I. (P.W.7) on transfer of Ghaus Muhammad S.-I. On 13-7-1987. Ubaid Ullah arrested all the appellants on 14-8-1987. Gun P.3, Knife P.4 and knife P.5 got recovered by Khan Zaman, Muhammad Amir and Nawab Khan appellants respectively on 21-8-1987 were taken into possession vide memos. Exhs.P.D.. P.E. And P.F. Respectively. After completion of necessary investigation challan was submitted to Court.
8. Statements of 11 P.Ws. Were recorded at the trial.
9. Dr. Sher Ali Khan Niazi who had performed autopsy on 1-7-1987 at 11-00 a.m. Appeared as P.W.10.
He had noted following injuries on the body of deceased:
(1) An incise wound 2 c.m. x 1 cm, 6 c.m. Below left nipple.
(2) An incise wound 2 c.m. x 1/2 c.m. On left chest, 6 c.m. Below injury No.1.
(3) An incise wound 2.5 c.m. x 1/2 c.m. On left chest, 6 c.m. Below injury No.1.
(4) An incise wound I c.m. x 0.4 c.m. On left chest, 15 c.m. Below left nipple.
(5) A lacerated wound 14 c.m. From above to downward on front of left chest.
(6) A lacerated wound 2 c.m. On front of the left chest.
(7) A incise wound 2 c.m. x 1 c.m. On right epigastrium.
(8) An incise wound 6 c.m. x 1 c.m. On inner side of left thigh.
(9) An incise wound 2 c.m. x 0.2 c.m. On posterior auxiliary line of right chest.
(10) An incise wound 2 c.m. x 1/2 c.m. Posterior to right shoulder.
(11) An incise wound 1.5 c.m. x 0.5 c.m. On posterior and lower side of chest.
(12) An incise wound 2 c.m. x 1 c.m. On right lower and posterior side of chest.
(13) An incise wound 1 c.m. x 0.1 c.m. On posterior side of neck
(14) An oval shaped fire-arm wound I c.m. x 1/2 c.m. On posterior side of head, 3 c.m. Below left ear.
(15) A triangular shaped fire-arm wound 1 c.m. x 1/2 c.m. Behind left ear distance of 5 cm.
(16) A fire-arm wound 1 c.m. x 1/2 c.m. Between injuries Nos.4 and 15.
(17) A fire arm wound 1 c.m. x 1/2 c.m. On right side of neck.
Injuries Nos.5 and 6 were lacerated wounds. Injuries Nos.1 to 4 and 7 to 13 were incised wounds and were opined to have been caused by sharp-edged weapon while injuries No.14 to 17 were opined to have been caused by fire--arm. The skull, on opening, was found perforated. Chest was found perforated at four sites. Both lungs, paricardiam and abdomen were also found injured. Death was opined to have occurred due to injuries Nos.1, 3, 9, 10, 16 and 17. Probable time between injuries and death was opined to be immediate while time between death and post-mortem was opined to be between 5 to 6 hours.
10. Ocular account was deposed to by Muhammad Khan (P.W.8) and Alain. Khan (P.W.9).
11. Muhammad Khan repeated the facts given by him in the F.I.R. During cross-examination, he stated that in the case under section 325, P.P.C. Registered at the instance of Muhammad Alam he alongwith his brother Malli Khan and one Muhammad Aslam had suffered injuries. According to him I1 persons were named as accused. He admitted that for that occurrence a cross case under section 148/149, P.P.C. Was registered against Ayub Khan etc. He stated that there was a petrol pump at a distance of one furlong from the place of occurrence. Suleman P.W., according to him, had stayed with them for the night. He denied the suggestion that he had not witnessed the occurrence. He also denied the suggestion that it had transpired during investigation that people doubted that Alam Khan P.W. Had murdered the deceased and that the accused were named falsely due to enmity.
12. Alam Khan (P.W.9) corroborated the statement made by P.W.8. He also claimed to have witnessed the collection of bloodstained earth from the spot. During cross-examination, he admitted that the suit for pre-emption instituted against him by Khan Zaman in 1980 was decreed and the appeal filed by him before the District Judge was also dismissed on 5-12-1981. Like P.W. 8 he also admitted that a cross case under section 148/149, P.P.C. Was registered about the occurrence for which he had lodged F.I.R. Under section 325, P.P.C. He denied the suggestion that he was a police tout and normally he appears in police cases. He explained that he had witnessed the occurrence while coming from the house of his sister. He stated that the accused had gone to the Peers of the area for compromise with Muhammad Khan, but he had refused to compromise as he did not like to pardon murderers of his father. He denied the suggestion that actually he had murdered the deceased and got the case registered against the accused.
13. Ghaus Muhammad S.-I. Who had registered the case and initially conducted the investigation appeared as P.W. 11 and deposed those facts. He admitted that an A.S.I. Was posted at police post Chandna.
14. Ubaid Ullah who had arrested the appellants and had taken into possession gun P='i, knife P..1 and knife P.5 got recovered by Khan Zaman, Amir Khan and Nawab Khan on 21-8-1987 and submitted challan to Court appeared as P.W. 7 and deposed the above facts. During cross- examination he admitted that the accused on their first appearance had professed innocence. He admitted that he had not joined the Lambardar and Members of the Union Council at the time of recovery of weapons at the instance of the appellants. However, he denied, the suggestion that no recovery had been effected and he had planted the weapons.
15. The statements of the remaining witnesses are more or less of formal nature
16. The appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. They denied to have led to the recovery of weapons of offence.
17. Muhammad Amir Khan stated as follows in answer to the question, "Why the P.Ws. Deposed against you and why this case against you?": "In fact Wazir Khan deceased was my uterine brother and I had no enmity with him. There is no doubt that he was witness against me and others in a case under section 325, P.P.C. Got registered by Alam Khan P.W. Yet he was always on good terms with me. He at times suggested me to compromise with Alam Khan. In fact this was a blind murder and it was rumour in Kot Chandna that the deceased was murdered by Alam Khan P.W., Haq Dad Khan son of Khaliq Dad Khan, Rab Nawaz son of Haq Dad Khan, Ayub Khan son of Talib Jan, Malik Jan son of Tatib Jan who were P.Os.
In a cross case against Alam Khan etc. And Alam Khan P.W. Due to his long enmity with me and others exploited the situation and secured the services of the complainant against me and my co- accused to get this false case registered. The above P.Os were being proceeded against by the Court alongwith their sureties in the cross case got registered by my son Khan Zaman. I always was prepared to have the matter settled with my deceased brother and Alam Khan P.W. But my son Khan Zaman did not agree. While declining to make statement on oath under section 340, Cr.P.C.
He produced in defence following documents:
(1) Copy of plaint Khan Zaman v. Said Khan and others being part of head note alongwith judgment Exhs.D.A. And DA./1 besides decree shcet Exh.D.A./2.
(2) Copy of judgment of the learned Additional District Judge Exh.D.B. And copy of decree sheet thereon Exh.D.B./1.
(3) Copy of the report under section 173, Cr.P.C. Exh.D.C. In F.I.R. No.33 of 1984 P.S. Kalabagh.
(4) Copy of the report under section 173, Cr.P.C. Of F.I.R.No.33 of 1984 P.S. Kalabagh Exh.D.D.
(5) Copy of the proceedings alongwith report under section 173, Cr.P.C. In F.I.R. No.33 dated 15-6- 1984, P.S. Kalabagh in State v. Alam Khan etc. Exh.D.E. And Exh.D.E./l, Exh.D.E./2, Exh.D.E./3, Exh.D.E./4, Exh.D.E./5, and Exh.D.E./6, and will produce no other defence.
18. Nawab Khan stated that he was 15 years old student at the time of occurrence and had been implicated falsely in the case.
19. Khan Zaman owned the statement made by his father while answering question why P.Ws. Have deposed against you.
20. We have gone through the evidence with the assistance of the learned counsel for the appellants and considered the contentions of the learned counsel for the parties. The statements made by P.W.8 and P.W.9 about the dispute of land between the accused and the deceased is not supported by any details. Even the son of the deceased, i.e. P.W. 8 did not state as to what was the dispute. He had not clarified whether the dispute pertained to the title or it was regarding the possession of land, nor did he state whether any of the parties had gone to the Court for resolving the dispute. In the circumstances, the bald statements made by both the P.Ws. That there was a dispute between the deceased and the appellants are not enough to accept the stance of the prosecution that the dispute of land was motive for the occurrence.
21. The stance of the prosecution that registration of case under section 325, P.P.C. Against the accused by Alam Khan was another igniting factor, in our view, does not advance the case of the prosecution. In that, it is on record that, in that occurrence, the complainant alongwith his brother and one Aslam had suffered injuries. The grievance, if any, could have been to the persons who had been attacked and inflicted injuries. The annoyance of the accused for the registration of that case would have been firstly, against Alam Khan who had got the case registered and, secondly, against the complainant who was the main witness in the occurrence being an injured P.W. It is not the case of the prosecution that the appellants had tried to attack or cause any harm to any of them. In the circumstances, we feel no hesitation in accepting the contention of the learned counsel for the appellants that the prosecution had failed to prove the motive for the occurrence.
22. The only witness who stated at the trial about the recovery of weapons at the instance of the appellants was P.W.7, the S.-I. He had not joined any person from the public at the time of recovery of the weapons from the appellants. The two constables who allegedly had attested the recoveries were also not examined. In the circumstances, evidence of recovery of weapons at the instance of the appellants is not up to the mark. Even otherwise, such evidence is of no consequence as neither any empty was recovered from the spot se as to see whether the same had been fired from the gun recovered from Khan Zaman nor the two knives recovered at the instance of the other two appellants were found stained with blood.
23. There is no denying the fact that Muhammad Khan (P.W.8) was son of the deceased but that alone was not sufficient to discard his testimony, particularly so when his statement is corroborated by the testimony of Alam Khan (P.W.9) who was an independent witness by all means. In that, he was not related to the complainants in any manner. The statements of both the witnesses are corroboratory and inspire confidence.
24. The suggestion put to P.W.8 during the trial that Alam Khan (P.W.9) had, in fact, murdered his father and that he had reported against the appellants falsely, was not even worth consideration as it could not be believed by any stretch of imagination that Muhammad Khan would have let off the real murderer of his father and instead would have named uterine brother of his father and his sons falsely. The occurrence was reported promptly, as such, there was no room to consider that the F.I.R. Might have been lodged after consultation and deliberations. The fact of the occurrence having been reported promptly also finds support from the fact that the post-mortem of the dead body had been performed within 5 hours (the occurrence had taken place at 6-00 a.m., it was reported at 6-45 a.m. And the post-mortem was performed at 11-00 a.m.).
25. For the reasons noted above, we find no weight in the argument of learned counsel for the appellants that the ocular account was not worthy of placing reliance upon. In our view, the prosecution has succeeded in proving the case against the appellants. The appeal is, therefore, dismissed.
26. We are, however, not inclined to confirm the sentences of death awarded to Amir Khan and Khan Zaman as the motive for the occurrence in this case remained shrouded in mystery. Their sentences of death are, therefore, altered to sentences for imprisonment for life to each. The sentences of fine are maintained. Fine, on recovery, from all the appellants shall be paid as compensation to the heirs of the deceased. Benefit of section 382-B of the CrY.C. Extended to Nawab Khan shall also be given to Khan Zaman and Amir Khan.