JUDGMENT RIAZ KAYANI, J.-- Najeeb Ullah and Ameen Ullah sons of Abdul Haq have called in question the judgment of Special Judge, Anti-Terrorism Court, Sargodha Division, Sargodha dated 17.3.1999 whereby both of them were convicted under section 302/34, PPC for- committing Qatl-i-Amd of Fida Muhammad deceased. Najeeb Ullah was sentenced to death and a fine of Rs. I lac, or in default of payment of fine to undergo 10 years' R.I. Whereas Ameen Ullah his younger brother was sentenced to 14 years'
R.I. And a fine of Rs. 10,000/- or in default of payment of fine to undergo three months' R.I. He was extended benefit of section 382-Br Cr.P.C.
2. Criminal Revision No. 189/99 has been filed by Ziaullah complainant, praying that Ameenullah be awarded death penally and the, amount of fine be enhanced.. We intend to dispose of both these matters through this single judgment.
3. The occurrence which resulted in the death of Fida Muhammad took place on 31.1.1998 at 3 p.m.
In the revenue estate of Sh. Azeem situated in Maiza Sharif Abad at a distance of 8,K. Ms. From Police Station Esa Khel, District Mianwali. The matter was reported by Ziaullah brother of the deceased to Zulfiqar Ahmad; S.I. At Police Station Esa Khel on the same day at 4. 30 p.m. On the basis of which FIR Ex.PH was registered.
4. The prosecution version given in the FJ.R., authored by Ziaullah, is that on 31.1.1998 he alongwith Fida Muhammad his brother, Gul Hussan son of Ghulam Hussan, Faiz Muhammad son- of Atta Muhammad All residents of Mauza Sheikh Mehmood Wala went to Sharif Abad to watch cocks fight and fight between dogs and bear. At 3 p.m. He alongwith Fida1 Muhammad his brother, Gul Hussan son of Ghulam Hussan and Faiz Muhammad son of Atta Muhammad were returning home. Fida Muhammad was slightly ahead of them and when they reached the land of Sheikh Azeem, all of sudden Habib Ullah armed with ^ klashinkov and Arrjeen Ullah empty handed sons of Abdul Haq who were Hiding behind the grove of date trees, emerged. Najeeb Ullah called a 'Lalkara' at his brother Fida Muhammad by saying that he committed excesses on his brother Mati Ullah for which they have come to seek .Revenge. Similarly Ameen Ullah also called a 'Lalkara' that he should get ready, upon which Fida Muhammad took to his heels and within no time Najeebullah fired a Klashinkov burst which hit Fida Muhammad on his back who fell to the ground whereafter number of bursts were fired by Najeeb Ullah caused .Injuries to his brother on his-chest, back', shoulders and neck. On their hue and cry Najeeb Ullah and Ameen Ullah Ran way.
5. Motive for the occurrence is stated to be one year earlier when appellants alleged, that Fida Muhammad had committed excesses on the person of their brother Mati Ullah and for this reason both of them in furtherance of their common intention committed murder of Fida Muhammad.
Leaving Gul Hussan and Faiz Muhammad to guard the dead- 'body he came to the police., station in the company of Fateh Muhammad Former Chairman to lodge. The complaint.
6. Zulfiqar Ahmad, S.I. After registration of FIR proceeded to the place of occurrence, prepared the injury statement (Ex.PB) and inquest report (Ex.PC) of the deceased and under the escort of Wali Muhammad constable despatched the dead-body to the mortuary at Tehsir Headquarters Hospital Esa Khel for post-mortem examination. Blood-stained earth was collected vide memo.
Ex.PF and statements of the witnesses were recorded under section 161, Cr.P.C. On 25.2.1998 Najeeb Ullah was arrested and while in custody on 27.2.1998 led to the recovery of kalashnikov (P. 5) alongwith 18 bullets P.6/1-18/ from his residential 'Kotha' situated in Sheikh Mahmood wala which was taken in possession vide memo. Ex.PI. On 26.3.1998 Ameen Ullah was also arrested.
7. Dr. Abdul Sattar performed the post-mortem examination on the dead-body of Fida Muhammad aged 22/23 years at 8 a. Iri. On 1.2.1998 at Tehsil Head-quarters Hospital Esa Khel and found the following injuries on his person:-
(1) A fire-arm wound of entry at left side of neck 3 cm x 1 cm x 6 cm below the angle of chin.
(2) A fire-arm wound of exit 5 cm x 2 cm on posterior lateral aspect of right side of neck, 7 cm below right pinna, "Exit of injury No. 1".
(3) A wound of entry 1.5 cm x 1 cm on left lateral chest wall 4.5 cm from left nipple and 6 cm from left exilla.
(4) A wound of entry 1.5 x 1 cm on left lateral chest wall, 6 cm from left nipple, 3.5 cm below injury No. 3.
(5) A wound of entry 1.x 1 cm on left posterior axillary line 12 cm from left should tip.
(6) A wound of entry 2 cm x 1 cm on back of left chest wall, 8 cm from injury No. 5 and 10 cm from axilla.
(7) A wound of exit 2 x 2 cm on back of left chest wall 5 cm from mid line and 6 cm below the route of neck (exit of injury No. 5).
(8) A wound of exit 5 x 4 cm on baik of left chest wall 3 cm from mid line .And.6 cm from injury No. 7 (Exit of injury No. 6),
(9) A wound of entry 2 x 2.5 cm on right interior chest wall, 4 cm below the mid clavicular line/point.
(10) A wound of exit 4 x 3 cm at upper part of right scapula, 5 cm medial to the right shoulder tip.
And15 cm route of neck. (Exit of injury No. 3).
(11) A wound of exit 5 x 4 cm on lower part of right scapula, 3 cm below injury No. 10 (Exit of injury No. 4).
(12) A wound of entry 2 x 1 cm on right interior lower chest, 5 cm from sternum and 11 cm from right elbow.
(13) A exit wound-3 x 2 cm on right lateral chest call, 7 .Cm from middle of the right axilla (Exit of injury No. 12).
(14) A grazing fire-arm wound 10 x 1 cm smashing the tissue on the middre. Of right arm, 15 cm from right shoulder tip, 7 cm above elbow joint exposing the under-line bone.
(15) A wound of entry on medial side of fight arm, 11 cm . Above right elbow, 13 cm right axilla.
(16) An exit wound 1.5. x 1 cm on interior lateral side of right arm, 11 cm from right shoulder tip, 4 cm above injury No. 14 (Exit of injury No. 15).
(17) A wound of exit 1.5 x 1 'em on back of trunk, 2 cm right to the mid line at the level of tenth thoracic vertebra. (Exit of injury No. 9).
In the opinion of . The doctor cause of death was excessive .Haemorrhage and shock which was due to injuries Nos. 1 to 13 and 17 which were antemortem and were sufficient to cause death in the ordinary course of nature. All the injuries were inflicted by fire-arm. Probable time between, injuries and death was immediate and between death and post-mortem was 12 to 18 hours.
8. After completion of the investigation challan was submitted in Court, appellants were indicted, they denied the charge, pleased not guilty and claimed a trial. During the trial prosecution examined as many as 12 witnesses. The ocular testimony account was furnished by Ziaullah (PW 10) and Gul Hussan (PW. 11). Public Prosecutor submitted the report of the Chemical Examiner (Ex.PK) and that of the Serologist (Ex.PL) and the Forensic Science Laboratory as Ex.PM wherein it was opined that the kalashnikov recovered at the instance of Najeeb Ullah appellant was in working condition. Appellant Najeeb ullah in his statement under section 342, Cr.P.C. Denied his participation in the occurrence and stated-that the deceased was killed by Gul Hussan PW alongwith Ghulam Hussan and Muhammad Latif while he was in compromising position with Mst.
Razia Bibi daughter of Gul Hussan in a naked position on the day of occurrence and to save family honour they have been falsely implicated.
9. Learned counsel for the appellants contended that the witnesses were chance witnesses, as they were not present at the spot, there was discord between the ocular testimony and the medical evidence and being a blind murder the appellants were falsely implicated. Lastly it was contended that the motive having not been proved the sentence of death imposed on Najeeb Ullah was riot called for under the law. Conversely learned Assistant Advocate-General assisted, by the counsel for the complainant supported the conviction and sentence recorded by the Trial Court.
10. We have attended to the arguments of the respective counsel and have also minutely gone through the record.
11. The cock fight at Sharif Abad Is admitted fact having been admitted by the defence witness Obaid Ullah Khan (DW. 1) who stated that on 31.1.1998 there was a fight of cocks at Sharif Abad. Zia Ullah brother of the deceased was a student of Intermediate College, Esa Khel and his classes ended at 11 a.m. On the said date. Similarly Gul Hussan is resident of the village Sheikh Mehmood Wala Lying at a distance of 3/4 k. Ms. From . Sharif Abad. The village folk usually attend such festivities which takes place in winter. Cocks fight or fights between dogs and bears is a special occasion which is attended by the people of the villages near the place where event has to happen. There is, therefore, nothing strange for the witnesses to attend to such outings. The evidence that they were returning at 3 p.m. Despite lengthy cross-examination has not bj shaken in its authenticity. Such events are seen by the people who gather in tandem. Presence of Zia Ullah, Gul Hussan and Faiz Muhammad (not produced) alongwith the deceased is quite natural. Najeeb Ullah being armed with a kalashanikov nobody dared to go near him. Appellants were hiding in bushes near the date trees from where they are said to have fired. Absence of crime bullets at the spot is, therefore, understandable having been lost in the groves of the trees and their foliage. No answer was elicited to throw doubt that these witnesses were not accompanying the deceased.
The foremost question which comes to mind is that in the absence of any racecourse or enmity there is no earthly reason why the eye-witnesses should spare the real culprit and substitute the appellants for having caused murder of the deceased. The defence pleaded by Najeeb Ullah does not create any dent in the prosecution version, therefore, need not be even adverted to. Account of .Ocular testimony being trustworthy and inspiring confidence was rightly relied upon by the Trial Court and appraisal of evidence made does not call for any interference on our part.
12. The argument of the learned counsel .That ocular testimony is not in accord with the medical evidence because Zia Ullah in FIR stated that first burst of klashinkov was fired when the deceased started running and hit. Him on his back and since no injury on the Back was found by the doctor, therefore, the ocular testimony being furnished by a, witness who has not seen the occurrence, no credence can be attached to it. Argument is fallacious on many grounds. In the first-instance in the FIR itself it is stated that burst of klashinkov fired was made Repeatedly which hit the deceased on chest, neck and shoulder! Secondly the statement of Zia Ullah made in FIR has not been confronted to him when he appeared as PW. 10, thirdly we find injury No. 6 noted by the doctor to be on the back of left chest, therefore, keeping the medical evidence in juxtaposition with the ocular testimony we find no such discrepancy as to dis-credit the eye-witnesses. Occurrence took place on 31.1.1998 and Najeeb Ullah was arrested on 25.2.1998, he remained fugitive torn law for 25 days. It is yet another factor which-corroborates the ocular testimony being in complete accord with the medical evidence.
13. The argument of the learned counsel that motive having not been proved, appellant Najeeb U.
Llah should bg sentenced to alternate punishment of life imprisonment. We do not agree with this submission. The eyewitnesses stated that the appellants were under impression that Fida Muhammad had sodomized their younger brother Mati Ullah. It is not the case where sodomy was actually committed rather the appellants were levelling allegations that their brother was dishonoured by the deceased. Najeeb Ullah appellant when got a chance perpetrated the murder of Fida Muhammad nursing a grudge in his mind. Even otherwise the eye-witnesses have not been suggested that the motive was false and was being planted by the prosecution. Moreover in a very recent judgment of the apex. Court reported in 1999 S.C.M.R. 1668," Abdul Wahab alias Rehra Vs. The State" It has been held "Motive shrouded in mystery" by itself is not a mitigating circumstance for lesser sentence.
14. As far as Ameen Ullah is concerned he' is stated to be empty handed and no overt act whatsoever except a proverbial 'Lalkara' is attributed to him. The prosecution has failed to prove his complicity which could be said to have facilitated the act of Najeeb Ullah in the murder of Fida Muhammad deceased. We therefore, accept the appeal of Ameen Ullah, set aside his conviction and sentence recorded by the Trial Court vide its judgment dated 17.3.1999. He is in custody and shall be released forthwith if not required in any other case.
15. For the reasons given, in the judgment appeal of Najib Ullah is dismissed. His conviction and sentence recorded by the Special Judge, Anti-Terrorism Court Sargodha is upheld. Sentence of death awarded to him is confirmed. The fine of Rs. 1 the cannot be imposed. We award this amount i.e. Rs. 1 lac as compensation to the heirs of the deceased under section 544-A, Cr.P.C. Failure to pay compensation shall entail imprisonment for six months'. S.I.
16. Criminal Revision No. 189/99 for reasons given above is dismissed having no merit.