' The appellant Mansab Khan alongwith acquitted accused namely Ahmad Khan, Jahan Khan, Gul Jahan and Muhammad Sher were sent up to face their trial under section 302/148/149, P.P.C. Vide F.I.R. No,133, dated 2-10-1994 registered at Police Station Saddar, Sargodha for an occurrence which took place on 2-10-1994 at about 6-00 p.m. In which one Shaukat Hayat was done to death. The aforesaid formal F.I.R. Was lodged on the same day by Shah Muhammad (P.W.5) i,e, by the father of the deceased at about 7-30 p.m.
2. On the conclusion of trial, Ch. Shabbir Hussain, the then learned Additional Sessions Judge, Sargodha convicted Mansab Khan appellant under section 302(b), P.P.C. And sentenced him to suffer imprisonment for life besides ordering the payment of Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to undergo further R.I. For six months. The rest of the accused aforementioned were, however, acquitted as no case was proved against them by the prosecution vide judgment, dated 25-2-1996.
3. The complainant Shah Muhammad filed a Criminal Appeal No,360 of 1996 against Ahmad Khan, etc. i,e, acquitted accused with the prayer that the acquittal order was bad in the eyes of law and that they should be punished in accordance with law. The complainant also filed Criminal Revision No,465 of 1996 against the appellant Mansab Khan with the prayer that the sentence for imprisonment for life awarded to him vide the impugned judgment be enhanced to death sentence. The aforesaid appeal against acquittal and the revision petition were also pending along with this appeal (Criminal Appeal No,197 of 1996) and will be disposed of together through this judgment.
4. The brief facts leading to the above matters are that on the day of occurrence at about 6-00 p.m., the complainant alongwith his son Shaukat Hayat proceeded to their land situated in Square No,72 in order to mend the watercourse as they had to irrigate their land during the night. They reached on the watercourse and while they were between Square No,72 and Square No,73, the appellant Mansab Khan armed with .12 bore gun along with acquitted accused armed with "Sotas" suddenly appeared from a nearby sugarcane field. Ahmad Khan accused raised Lalkara to teach a lesson to the deceased for getting the turn of water earlier to them and exhorted his co-accused that Shaukat Hayat (deceased) and Shah Muhammad (complainant) should not be spared. In pursuance of the aforesaid Lalkara, Mansab Khan appellant accused fired from his gun hitting Shaukat Ali deceased. He made yet another fire which, however, missed the target. The noise raised by the complainant attracted Atta Muhammad (P.W.6) and Mushtaq Ahmad (given up P.W.) who saw the occurrence. On seeing them and due to their interference, the accused made their escape good brandishing their weapons. The motive stated in the F.I.R. Was that the appellant/accused Mansab Khan owned some land in Square No,72. He had joint turn of water with the complainant, however, he wanted to irrigate the land forcibly out of turn to which the complainant side did not agree. This led to the exchange of hot words between the deceased and the appellant Mansab Khan and his brother Ahmad Khan on the morning of the day of occurrence.
5. During trial, the complainant was examined as P.W.5, whereas, Atta Muhammad was examined as P.W.6. The weapon of offence i,e, gun (P.6) was recovered from the appellant/accused at his instance from his house on 31-10-1994 vide memo. Exh.P.G. The two live cartridges were also recovered from the aforesaid accused on the same day. The crime empties (P.5/1-2) were recovered from the spot on 2-10-1994 vide memo. Exh.P.F. The gun aforesaid and the crime empties along with test empties were sent . To the Forensic Laboratory for examination. The Forensic Report (Exh.P.N.) was in positive. The learned trial Court believed the evidence of Shah Muhammad complainant as truthful whereas, the presence on the spot of Atta Muhammad (P.W.6) was not believed. Likewise, the motive regarding dispute over turn of water was also not believed by the learned trial Court. However, after taking into account the testimony of Shah Muhammad (P.W.5) corroborated by the recovery of gun (P.6) and its being wedded to the crime empties picked up from the spot, the learned trial Court came to the conclusion, that the actual killer of the deceased was Mansab Khan appellant, and that rest of the accused namely Ahmad Khan, Jahan Khan, Gul Jahan and Muhammad Sher were found to be innocent, in the light of the medical evidence given by Dr. Waseem Nayyer Jaffari (P.W.7) which shows that the fatal injuries were inflicted by the fire- arm. The accused/ appellant took up the plea before the Court that in fact the complainant party was aggressor and that he had only acted in self-defence to save his life and property but was falsely involved in this case. The learned trial Court disbelieved the defence version and recorded the conviction and sentence as pointed out above.
6. Learned counsel for the appellant submitted that the evidence in this case was not trustworthy as it only consisted of the statement of the complainant Shah Muhammad who was the father of the deceased and being an interested person, would not inspire confidence until and unless corroborated by some unimpeachable evidence; that the acquitted accused were found innocent during the police investigation and also by the learned trial Court and as such, the complainant side was not fair enough to link the innocent persons with the case; that on the same evidence which earned the acquittal of the co-accused of the appellant/convict, the latter could not be convicted and sentenced; that since the motive was not proved though alleged, therefore, the prosecution case stood totally discarded as being false and cooked up; that according to the learned trial Court, the presence of Atta Muhammad (P.W.6) at the spot was not proved and hence, the prosecution cited him with a mala fide intention in order to give a different color to the actual story which in fact was the result of aggression on the part of the complainant to forcibly possess the land belonging to the appellant/convict and in pursuance of that object, they opened an attack upon which the appellant had allegedly acted in self-defense but unfortunately, the firing was also made by the complainant side which killed their own man i,e, the deceased in the melee; that the medical evidence also contradicted the ocular account of occurrence as the fire was allegedly made from the backside as would be shown by the locale of injuries and not from the front as claimed by the complainant. In the light of the foregoing contentions, it was urged by the learned counsel for the appellant that the impugned judgment convicting the appellant/convict was bad in the eyes of law particularly when -the motive was not proved; that the defence version is not to be weighed in golden scales and both the stories have to be put into juxtaposition while deciding the question of aggression. Likewise, the evidence in respect of the acquitted accused was disbelieved by the learned trial Court but wrongly taken into consideration to convict the appellant/accused. To support the above contentions, reliance was placed on Muhammad Nazir v.
Tariq and another 1992 SCM R 983 (Supreme Court of Pakistan), Atta Muhammad and another v.
The State 1995 SCM R 599 (Supreme Court of Pakistan), Habibullah and others v. The State PLD 1969 SC 127, Hakim Ali and 4 others v. The State and another 1971 SCM R 432, Munawar Ali alias Munawar Hussain v. The State PLD 1993 SC 251.
7. Learned counsel for the State, assisted by learned counsel for the complainant contended that the presence of Shah Muhammad complainant (P.W.5) was admitted even by the defense as he was physically present in order to attack the accused persons. As such, it was submitted that the mere fact that he was father of the deceased should not discredit his evidence particularly when the same was corroborated intrinsically by the medical evidence as well as the wedding of the crime empties with the gun with which the killing was done by the appellant/convict. It was, therefore, urged that in view of this unimpeachable evidence, the learned trial Court had rightly recorded the conviction against the appellant/convict, but had allegedly committed an error to acquit the other accused who were also liable vicariously; that it was strange that none out of the accused party, which claimed itself to be a victim of aggression of the complainant side, was injured during the unfortunate occurrence.* It was allegedly only a philosophical exposition having no relation with the reality that while committing aggression, the complainant side killed its own man i,e, deceased. The story, therefore, allegedly raised by the defense was not only improbable but was completely washed away by the evidence examined by the complainant side to bring home a charge against the appellant/convict as well as the acquitted accused. It was, therefore, finally submitted that the offence of murder having been proved against Mansab Khan appellant/convict, the latter deserved to be punished with capital sentence, whereas, the acquitted accused were also to be liable to be sentenced as prayed in the connected appeal.
Reliance was placed on Muhammad Javed v. The State 1996 SCM R 962, Muhammad Yactoob v.
The State 1994 PCr.LJ 2189 (Lahore) and Safdar Ali and others v. The State NLR 1994 AC 483.
8. I have considered the arguments addressed at the Bar and have also gone through the record of the learned trial Court carefully. One thing is clear that complainant Shah Muhammad is father of the deceased. It was not unusual that a father and son would go out in order to irrigate the land.
It is true that Shah Muhammad had admitted that he had never gone to irrigate the land before as his sons used to do the same. However, there is on record that there was some sort of litigation between the parties in respect of the land in question. It cannot be, therefore, said that the story about the land was purely a concocted affair as would be clear from a civil suit admittedly filed by one of the sons of the complainant and a brother of the deceased namely Khizar Hayat against Syed. Iftikhar Hussain Shah and Agricultural Development Bank of Pakistan, Sargodha. That was a suit for specific performance of an agreement of sale, dated 17-4-1993. Although unfortunately, the agreement has not been brought on record but even from the document produced by the defendant in defence i,e, Exh.D.L., the plaint of the suit which has been brought on record, would show that the transaction in question was finalised against the consideration of Rs,3,00,000 (Rupees three lac only) for the land measuring 6-1/4 Acres situated in Squares Nos.72/73 comprising Khewat No,66, Khatoni Nos.183 to 189. Out of the aforesaid amount, Rs,45,000 was allegedly paid, whereas, the remaining amount was to be paid at the time of attestation of mutation of sale or the registration of the sale-deed. In the alternate, a total of Rs,90,000 was prayed to be paid to the aforesaid plaintiff, out of which Rs,45,000 was the amount to be paid as penalty. It is also clear from the contents of the plaint that the plaintiff was recorded as tenant whereas Ahmad Khan,son of Gul Jahan was recorded s rIt was also contended that since the aforesaid Ahmad Khan alongwith others was involved in the murder of the brother of the plaintiff, therefore, they being marginal witnesses were not likely to tell the truth as were involved as accused in that case. It is further stated in the plaint that defendant No,1 had also mortgaged the aforesaid land to the Agricultural Development Bank of Pakistan, Sargodha which the aforesaid defendant wanted to redeem by depositing the bank money and to alienate it further of which he was allegedly not entitled on account of the previous agreement with him. The plaint at least shows that there was some dispute in respect of the land in question. Shah Muhammad being special attorney of his son Khizar Hayat had filed that suit thereby conveying that they were under bona fide belief to be entitled to the land in question on the basis of the aforesaid agreement which had come into existence allegedly through the efforts of Ahmad Khan (acquitted accused) who was maternal-cousin of the plaintiff and had arranged the sale of land allegedly at cheaper rate. The land was given to Ahmad Khan by the plaintiff for cultivation but since he could not account for the earning from the land honestly, therefore, the complainant decided to cultivate the land himself. It is, thus, clear that there was some dispute in existence between these two sides over the land in question. It may be in that scenario that the complainant side wanted to repair the watercourse which led to some sort of altercation ending finally into the awful murder of the deceased. .Though the motive regarding the turn of water could not be proved beyond any shadow of doubt but the fact remains that there was some sort of dispute between the parties over the transfer of land in which Ahmad Khan figured as the main character. Needless to point out that the aforesaid Ahmad Khan is the step-father of the appellant/convict Mansab Khan who had confrontation with the deceased on the preceding morning. This is something not unusual in the situation like that. The mere fact as to what was the starting point which resulted into the firing by the deceased being shrouded in mystery would not give more benefit than was given to him after his conviction in the matter of sentence.
9. Now the question would arise whether or not the father of the deceased should be believed as was done by the learned trial Court. First it should be kept in mind that there was no chance for substitution in this case as the natural urge on the part of the complainant would be that the real killer of his son should be brought to book. It is a different matter that the complainant might have been swept with the general but unfortunate practice- prevailing in the rural side that some innocent persons are also linked with the occurrence in order to bring maximum harm to the opposite side. However, it is in such-like situation that the principle of falsus in uno falsus in omni bus is not to be considered as applicable; rather the Court is required to sift the grain from the chaff to reach the absolute truth in respect of a case before it. The appreciation and appraisal of evidence is to be made with both the principles, above quoted, in mind. In the instant case, the father is a complainant Whose real son has been killed in front of his eyes. It is, therefore, difficult to believe that he would tolerate that the real culprit should go scott free and someone else should be totally substituted for such killer. As pointed out above, he may be influenced by the unfortunate tendency of mixing the innocent persons with the culprit but it would not be possible that he would let off the real culprit. The same thing happened in this case because it was the fatal shot produced by the appellant/convict Mansab Khan from his .12 bore gun which took the life of the deceased. However, to bring the maximum harm to the opposite side, the complainant also named the acquitted accused who were rightly found innocent during the investigation and also by the learned trial Court on the basis of evidence produced at both the forums and also on some "Nian" given before the Investigating Officer. It is true that the decision of criminal cases on "Nian" cannot be appreciated but if it is in line with the rest of the evidence, examined during the investigation or at th trial, it would be worth while to take it into consideration, particularly when supported by the other circumstances of the case. In the case in hand, Mansab Khan appellant stood out distinguished from the acquitted accused because he led to the recovery of his licensed .12 bore gun which was sent to the Ballistic Expert where it was found wedded with the crime empties, picked up from the spot. The parcels of the empties and the gun were sent separately and there was not possibility of creation of any evidence for matching the crime weapon and the crime empties. The Report of the Forensic Report (Exh.P.N.) was positive which further linked the appellant/convict with the murder of the deceased with .12 bore gun as stated by P.W.5 i,e, complainant during the trial as well as before the police. This was a sufficient and scientific corroboration of an unimpeachable character to corroborate Shah Muhammad (P.W.5) and as such, his evidence could not be discarded only because he was the father of the deceased. The acquitted accused, however, were not linked with any other circumstance and as such, were rightly let off by the learned trial Judge. Another factor which linked the. Appellant/convict was the medical evidence. The deceased had suffered three fire-arm injuries showing blackening around them. Injuries Nos.1 and 2 were found to be fatal as would be clear from the statement of Dr. Waseem Nayyer Jafari, Medical Officer, D.H.Q. Hospital, Sargodha (P.W.7). The blackening around the injuries would show that the fire was made from very close range as was stated by the complainant while appearing during the trial as P.W.S. The post-mortem report (Exh.P.M.) and the sketch of injuries (Exh.P.M./1) further show that the locale of injuries were rightly depicted by the seats of injuries deposed by the complainant (P.W.5). The mere fact that the Medical Officer stated that the injuries were received by the deceased from the left side and that the same could not be caused from front side would not introduce any material inconsistency between the medical evidence and the ocular account of occurrence because the view taken up by the Medical Officer is based on his opinion, whereas, the description of the injuries given by the complainant was the ocular account of occurrence which has to be believed and given preference over the opinion of the Medical Officer on the principle that "seeing of a thing leads to its belief, whereas, an opinion is a formation of view in the light of the circumstances placed before a person". Hence an eyewitness has to be preferred in respect of the locale of injuries and the mode in which those were caused instead the opinion of a Medical Officer as to from which side, those could be inflicted. It, therefore, follows that the medical evidence totally conforms with the ocular account of occurrence given by the complainant and ought not to be allowed to create any ambiguity even if the evidence of P.W.6 is not taken into consideration on account of observation of the learned trial Court that he was not present at the spot, the evidence given by the complainant (P.W.5) would be sufficient to sustain a charge against the appellant/convict in view of the precious corroboration provided by the medical evidence and the Report of the Forensic Expert which clearly stated that the crime empties collected from the spot were found wedded with the crime weapon i,e, gun (P.6) used during the murder of the deceased. It, thus, follows that the prosecution has proved its case against the appellant/convict beyond any reasonable doubt. IF 10. Before concluding, it would be worthwhile to consider the defence version of the appellant/convict. It was stated by him that in fact the complainant side was aggressor and that he acted in self-defence while a fire was made by the complainant party due to which their own man i,e, the deceased was killed. The defence version as pointed out above does not find any circumstantial or any other type of corroboration to show that in fact the complainant side was the aggressor one. My attention was drawn to the statement of Muhammad Akram, S.H.O. (P.W.8) who stated during the cross-examination that the complainant party had no legal right to cultivate or irrigate the land in dispute, therefore, they had gone to take the possession of the disputed land for irrigating the same. In this respect, it was contended that since the complainant side wanted to take forcible possession of the land in question, therefore, they had initiated the aggression. Though the statement of the Investigating Officer appears to be a concessional statement but in the same breath, he stated that it was not proved that Shaukat Hayat deceased and Sikander Hayat, his brother were armed with fire-arms at the time of occurrence. However, they were stated to be present by the S.H.O. Along with Shah Muhammad at the time of occurrence. The S.H.O. Also added upon a question during the cross-examination that it was not proved that the complainant had fired first. It, therefore, follows that during the cross- examination, an attempt was made to elicit concessional statement from the Police Officer but it all went in vain when he stated that the complainant was present at the spot and that his two sons including the deceased were not armed with fire-arms at the time of occurrence. The matter had become crystal clear when the S.H.O. Emphatically stated that the complainant party had not fired first as suggested by the defense. In such situation even the circumstances will support the version of the prosecution and would dislodge the defense version because if the deceased and his brother while armed wanted to commit trespass or to take forcible physical possession of the land in question, there would have been loss of lives or at least some injuries to the accused side but there is none as would be clear from the facts of the case. It cannot be believed that the deceased was killed due to the firing of his own party. On the contrary, the prosecution version, as pointed out above, is more sound and is in line with truth that in fact the appellant/convict had used his licensed gun to kill the deceased.
11. After taking into account the above facts, I come to an irresistible conclusion that the conviction of the appellant/convict under section 302(b), P.P.C. Was rightly made vide the impugned judgment and the remaining accused were rightly acquitted after giving them the benefit of doubt.
The question of sentence to the appellant/convict was also appropriately decided by the learned trial Court, as the motive and the immediate facts leading to the murder were found shrouded in mystery and in such a situation, it would not attract the capital punishment even if the offence of murder was proved.
12. Following the above discussion, I do not find any merit in this appeal which is dismissed and the conviction and sentence passed by the learned trial Court vide the impugned judgment upon the appellant/convict ivlansab Khan are maintained.
13. As pointed out above that respondents Nos.l to 4 namely Ahmad Khan, Jahan Khan, Gul Jahan and Muhammad Sher (in Criminal Appeal No,360 of 1996) were rightly acquitted by the learned trial Court, therefore, Criminal Appeal No,360 of 1996 is without merit and the same is also dismissed.
14. The conviction and sentence awarded to the appellant/convict namely Mansab Khan have also been upheld, therefore, Criminal Revision No,465 of 1996, filed for enhancement of his sentence, being meritless is dismissed.