ABDUL HAMEED DOGAR, J.---By this consolidated judgment we propose to dispose of Criminal Petition No,24-Q of 2001 filed by the complainant/petitioner Murad Bakhsh and Criminal Appeal No,235-Q of 2001 filed by the appellant Muhammad Khan as these arise out of judgment dated 20- 4-2001 passed by a learned Division Bench of the High Court of Balochistan, Bench at Sibi, whereby Criminal Appeal No,(S)91/2000 of appellant Muhammad Khan was dismissed whereas Criminal Revision No,(S)32/2000 filed by complainant Murad Bakhsh was allowed and his sentence was enhanced to death. However, appeal of Muhammad Yaqub was allowed and he was acquitted.
2. The case of the prosecution in brief is that on 19-3-1999 complainant lodged F.I.R. At Police Station Usta Muhammad stating therein that he used to reside with his brother Abdur Rehman at Dera Allah Yar. Appellant Muhammad Khan being on visiting terms with them visited their house twice and persuaded deceased AbdurRelunan to accompany him on the pretext of getting him employed. Accordingly, it was on 19-3-1999, at about 4-00 p.m., deceased Abdur Rehman accompanied appellant Muhammad Khan and acquitted accused Muhammad Yaqub alias Khairo and proceeded to Usta Muhammad. Deceased Abdur Rehman left. Having Rs,30,000 and two photocopies of Identity Card with him at the time of his departure. At about 9-30 p.m. The complainant was informed that his brother had been murdered by appellant Muhammad Khan and acquitted accused Muhammad Yaqub alias Ithairo on the allegation of 'Siyah Kari' with his wife Mst. Murad Bibi and both of them had been done to death. On such information, the complainant, Muneer Ahmed and Nooruddin arrived at Usta Muhammad. According to the complainant, the motive behind incident was that 7/8 years prior appellant Muhammad Khan had quarrelled with Dil Murad thus he harboured a grievance against complainant and the deceased for supporting Dil Murad. It was on account of such grudge that appellant committed the murder of his brother Abdu.
Rehman and Mst. Murad on false accusation of 'Siyah Kari'.
3. After registration of the case, the police reached the place of occurrence, collected three empties of rifle, Rs,3,070 and two photocopies of National Identity Cards from the pocket of the deceased. Appellant was arrested on 26-3-1999 and Rifle No,9932 made in Germany and one Licence No,117/m/u. Were recovered at his behest. The empties and the rifle were sent to the Forensic Science Laboratory for examination.
4. Dr. Saleem Raza conducted autopsy on person of deceased Abdur Rehman and Mst. Murad Bibi and found the following injuries:
(i) Deceased Abdul Rehman External Injuries
(1) A fire-arm wound of entrance on occipital region of skull 1/2" in diameter. Blackening was not present.
(2) A fire-arm wound of exit on right side of the upper Jaw 2" in diameter.
(3) A tire-arm wound of entrance on lateral side of the right lip joint size 1/2" in diameter.
BlaCkening was not present.
(4) A fire-arm wound of exit on the medial side of the upper part of right thigh .3" in diameter with a gross fracture of femur bone.
(5) A fire-arm wound on the testes, (both ruptured). External Injuries
(1) A fire-arm wound of entrance on the left cheek 1/4" in diameter. Blackening was present.
(2) A fire-arm wound of exit on the right side of the neck just below the ear 4" in diameter.
(3) A fire-arm wound of entrance on the left side of the chest on midexillary line at the level of 8th intercostal space 1/4" is diameter. Blackening was present.
(4) A fire-arm wound of exist on the right side of the chest at the level of 8th intercostal space 2" in diameter."
5. At trial, the prosecution, in order to prove its case, examined asmany as ten witnesses.
6. Appellant and the acquitted co-accused, in their respectivestatements recorded under section 342, Cr.P.C., denied the case of the prosecution and claimed innocence. They neither examined themselves on oath nor led any evidence in defence.
7. On conclusion of the trial, both of them were found guilty of the charge under section 302(b), P.P.C. And were convicted and sentenced to imprisonment for life. They were also ordered to pay Diyat amount of Rs,2,70,000 jointly in equal share to the legal heirs of deceased Abdur Rehman and similar amount to the legal heirs of deceased Mst. Murad Bibi. They were also fined to pay Rs,50,000 each. They were, however, granted- benefit of section 382-B, Cr.P.C.
8. We have heard Mr.Muhammad Salahuddin Mengal, learned Advocate Supreme Court for the appellant and Raja Abdul Ghafoor, learned Advocate-on-Record for the State and gone through the record and the proceedings of the case in minute particulars.
9. The learned Advocate Supreme Court for the appellant contended that the learned High Court of Balochistan has erred to appreciate and appraise the evidence available on the record. He urged that the ocular evidence is not only doubtful but is highly unreliable, unconvincing and insufficient for the conviction mainly for the reason that the eye-witnesses being the resident of Dera Allah Yar have failed to explain their presence on the scene of occurrence at Usta Muhammad. He further contended that on the same evidence Muhammad Yaqub co-accused of the appellant has been acquitted, therefore, in view of rule of consistency, the appellant is also entitled for the same benefit. He urged that no documentary evidence has been brought on record to prove the previous enmity between the appellant and the complainant party. He argued that the medical evidence is in conflict with the ocular evidence, therefore, for sustaining the sentence, it was incumbent upon the prosecution to adduce reliable and convincing evidence which in the instant case is lacking.
10. On the other hand, Raja Abdul Ghafoor, learned Advocate Supreme Court for the State supported the judgment. According to him, the last seen evidence is not only corroborated by the medical evidence but by the recovery of crime weapon as well as the- report of Forensic Science Laboratory. Admittedly, the incident was pre-planned one and under the garb of allegation of Siyah Kari', deceased AbdurRehman and Mst. MuradBibi were done to death brutally. According to him, the allegation of 'Siyah Kari' even otherwise has not been proved by the appellant while putting forth his case at the trial. In support, he relied upon the precedents of this Court in the cases Abdus Samad v. The State PLD 1964 SC 167; Khurshid v. The State PLD 1996 SC 305 and Muhammad Akram Khan v. The State PLD 2001 SC 96.
11. The trial Court while convicting appellant Muhammad Khan has relied upon the ocular testimony of P.W.3 Muhammad Amin who being neighbor residing in the nearby quarter, witnessed the incident along with one Ghulam Ali who later on was given up. Though thoroughly cross-examined yet the defence could not shatter his evidence. Another aspect which weighed with the trial Court was the last seen evidence furnished by complainant and P.W. Munir Ahmad coupled with the evidence of recovery from the appellant. Finding the incident emanating from sudden and grave provocation, the trial Court, however, treated the same as mitigating circumstance and convicted and sentenced appellant Muhammad Khan under section 302(b), P.P.C. To imprisonment for life.
However, the learned High Court in appeal took different view that the instant case was not that of honour killing but was premeditated one and was fully established on record as such, there was no justification for awarding lesser sentence, thus enhanced the sentence from imprisonment for life to death.
12. Admittedly, deceased Abdur Rehman was resident of Dera Allah Yar far away from the place of occurrence situated at Usta Muhammad. Looking to the motive that there existed an old enmity due to an incident wherein the leg of appellant Muhammad Khan was fractured in a quarrel with one Dil Murad and the appellant had the grievance against the complainant and deceased that they had cited Dil Murad in that incident, it would be improbable to believe that in such circumstances the deceased would accompany appellant on the pretext of getting him employed.
The presence of deceased Abdur Rehman a stranger in the house of the appellant in the night hours at the site plan whereby it was noticed therein be a sufficient extenuating circumstance to alter the sentence from death to imprisonment for life.
13. From the above resume, the case of the appellant would fall under section 302(b), P.P.C. Liable to Ta'zir punishable with death or imprisonment for life. In the above circumstances of the case, the appeal is partly allowed and the sentence of death awarded to appellant Muhammad Khan is altered into imprisonment for life.
14. However, we have gone through the memorandum of the Criminal Petition No,24-Q of 2001 and do not find any force in the contentions raised therein.
15. From what has been discussed above, we are also of the considered opinion that the verdict of acquittal recorded in favour of respondent Muhammad Yaqub alias Khairo does not warrant interference. As such, the petition being devoid of force is dismissed.