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Criminal Appeal No. 105 of 1984, decided on 18th September, 1985.

‑‑ S. 342‑Penal Code (XLV of 1860), S. 302‑Examination of accused‑No question put to accused by trial Court on a certain point‑Accused summoned by High Court in appeal and question put to him on that question.

‑‑ S. 302‑Witness‑Police officials (witnesses) not connected with relevant police station but living in building at time when occurrence tool. place‑Such witnesses neither inimical towards accused nor on friendly terms with deceased but straightforward, and their testimony inspiring confidence‑Objection that witnesses were police officials and arrived per chance at scene of occurrence as such should not be relied upon, held, was without any substance in circum. stances‑Trial Court, therefore, was fully justified in placing implicit reliance on their testimony.

---S. 302‑Sentence‑No adequate motive for committing murder established ‑ Immediate cause for fight shrouded in mystry Accused, held, entitled to benefit of lesser punishment‑Sentence of death altered to that of imprisonment for life in circumstances. (Sentence].

Karim Bux v. The State P L D 1977 Kar. 108; Muhammad Mukhdoom v. The State 1984 S C M R 837; Muhammad Iqbal v. The State 1984 S C M R 1184 and Muzammal Din v. Noor Hussain 1985 S C M R 495 ref.

Zahurul Haq, Bar at law for Appellant.

Mian Muhammad Ajmal, A. A,‑G. for the State.

Date of hearing : 18th September, 1985.

‑The appellant Niaz Ali son of Said Shah, aged about 26 years, resident of Dheri Zardad, Sultan Anad, Tehsil Charsadda, District Peshawar, was tried for the murder of Samiullah son of Painda Gul, aged about 20/23 years, resident of Tangi Nusrat Zai, Tehsil Charsadda, by the Additional Sessions Judge‑II, Peshawar and convicted under section 302, P. P. C. and sentenced to death and a fine of Rs. 5,000 or in default to two years R. I. He was also directed to pay a sum of R.s. 5,000, as compensation to the heirs of the deceased under section 544‑A, Cr. P. C. The appellant was also Separately tried and convicted under section 13 of the Arms Ordinance, 1965 and sentenced to 2 years' R. I. his has challenged his convictions and sentences by filing Cr. A. No. 105 of 1984 and Cr. A. No. 104 of 1984, respectively. The Murder Reference No. 10 of 1984 under section 374, Cr. P. C. for confirmation of his death sentence is also before us. This judgment will dispose of the aforesaid appeals as well as the murder reference.

2. The prosecution case as disclosed at the trial in the statement of Fateh Muhammad, H. C. (P. W. 5), who has also lodged the F. I R., is that during the days of occurrence he was attached to the Court of Municipal Magistrate, Peshawar and used to live in Masha‑Allah building at Peshawar City. In the same building Muhammad Tahir, F. C. (P. W.' 6), Samiullah (deceased) and Niaz Ali (appellant) were also residing in different rooms. On 4‑1‑1984 at about 3 p.m the witness returned from his duty to Masha‑Allah building where Muhammad Tahir (P. W.) also met him in the main gate of the building near the stairs. Both of them went upstairs and when they reached near their rooms they heard the report of fire‑shots. He saw Niaz Ali (appellant) who fired two shots at Samiullah (deceased). At the time of firing he saw the deceased and the appellant grappling with each other. He alongwith Muhammad Tahir (P. W.) apprehended the appellant on the spot alongwith his tamacha with 3 or 4 live rounds in the pistol. The deceased expired on the spot. In the meantime Ghulam Muhammad, S. H. O. arrived and the appellant alongwith the pistol was handed over to him. The witness lodged the report to the S. H. O. on the spot which was recorded in the form of a murasila (Exh. P. A./ 1). In reply to a Court question he stated that he saw the appellant and the deceased when they were grappling with each other after hearing the report of fire‑shots. He denied that the deceased was on friendly terms with him but stated that the deceased used to live in the same building in an adjacent room. He also stated that a week prior to the occurrence he told the appellant that he should not take much time in cleaning his teeth on the water‑tap installed in the building as they were also in hurry to attend to their duty. Muhammad Tahir. F. C. (P. W. 6) also gave similar account of the occurrence and corro borated the evidence of Fateh Muhammad, H. C. (P. W. 5). He stated that when he' and Fateh Muhammad (P. W.) reached the upper portion of the stairs of their storey, he heard the report of two fire‑shots. Fateh Muhammad (P. W.) was ahead of him who rushed and caught hold of the appellant alongwith his tamacha. Samiullah (deceased) was sitting on the floor ire an injured condition while the appellant was learning over him and holding the tamacha in his hand which was taken from him by Fateh Muhammad (P. W.). The appellant was kept by them in their custody for some time and handed over to the Investigating Officer alongwith the weapon of offence on his arrival. In cross‑examination he stated that he heard the fire‑shots when he and Fateh Muhammad (P. W.) had crossed the stairs leading towards their rooms. Again said that he and Fateh Muhammad were on the last stair when he heard the report of fire‑shots. From the place where he heard the report of fire‑shots, the spot was visible. He stated that he had not seen the appellant firing at the deceased but saw him after he heard the report of fire‑shots. He stated that the deceased was on friendly terms with him as they used to live in the same building. He also said that the appellant and the deceased were seen by him when the appellant was leaning over the deceased who was in a sitting position.

3. Ghulam Muhammad Khan, S. H. O. (P. W. 9) was on Gusht and having come to know about the occurrence rushed to the spot. He recorded the report of Fateh Muhammad. H.C. (P. W. 5) in the form bf a murasila (Exh. P. A./1) and forwarded the same to the Police Station for registration of the case. The appellant, who was detained by Fateh Muhammad and Muhammad Tahir (P. Ws.), was handed over to him alongwith the weapon of offence. He prepared recovery memo. in respect of the pistol (Exh. P. 9), 2 chargers (Exh. P. 10) and four live rounds (Exh. P. 11) recovered from the accused and produced to him by Fateh Muhammad H. C. He also prepared the injury sheet (Exh. P. M./1) and inquest report (Exh. P. M./2) of the deceased and sent the dead body to the mortuary for post‑mortem examination. He then handed over the investigation to Mehboob Ali Khan, S. 1. (P. W. 11) who prepared the site‑plan (Exh. P. B.) and picked up blood (Exh. P. 2) from the scene of occurrence. He also recovered 2 freshly discharged empties of .32 bore (Exh. P. 1) from the spot. On personal search of the appellant he recovered the key of his room No. 19. He also searched room No. 19 of the appellant and recovered a copy of licence (Exh. P. 4) which was in the name of Muqaddar Shah, brother of the appellant. Iqbal Shekwa (P. W.) brought blood‑stained shirt (Exh. P. 5), Shalwar (Exh. P. 6), a garnm bunyan (Exh. P. 7) and a white bunyan (Exh. P. 8) belonging to the deceased from the hospital which were taken into possession by this witness vide memo. (Exh. P. R./4). He also took into possession photo copies from the register of Masha‑Allah building showing occupation of room No. 19 by the appellant and room No. 25 by the deceased. He sent the blood‑stained earth and the blood stained clothes of the deceased for chemical examination, the report whereof is (Exh. P. Z.). He also sent the pistol recovered from the appellant alongwith 2 empties recovered from the spot and a spent builet recovered from the dead body of the deceased to the Arms Expert for examination, whose report (Exh. P. Z./1) is in the positive. After completion of the investigation he submitted challan to the Court through Ghulam Muhammad Khan, S. H. O.

4. Dr. Abdul Khaliq (P. W. 7) conducted the post‑mortem examin ation of Samiullah (deceased) on 5‑1‑1984 at 8‑45 a.m. and found a fire arm entry wound just to the right side of the mid‑line 4 below the main sterni and 3" from the right nipple, size X . Charring marks present. On internal examination the chest walls, right lung, liver and the abdomen were found injured. Stomach was healthy and contained some juices. The sternum was also fractured. In his opinion the death occurred instantaneously. A bullet was recovered from the right side of the back 3" from the mid‑line and 6' below the border of the right scapula. The cloths of the deceased were also having charring marks which were handed over to the police alongwith the spent bullet mentioned above. The injury sheet (Exh. P. M./1) and the inquest report (Exh. P. M./2) correctly bore his signatures.

5. The accused when examined at the trial under section 342, Cr. P. C. admitted that he alongwith the deceased and Fateh Muhammad and Muhammad Tahir (P. Ws.) used to live in the same building in the same storey. He denied that a quarrel took place between him and Samiullah (deceased) over a cut prior to the occurrence. He pleaded innocence and stated that the prosecution witnesses were police officials and they were interested in the success or the prosecution case. He stated that Fateh Muhammad (P. W.) was inimical towards him while Muhammad Tahir (P. W.) was a fast friend of the deceased. He further stated that he was graduate and a law abiding citizen and would not take the life of any one for a trivial matter as shown by the prosecution.

6. On 4‑6‑1985 when the appeal was taken up for hearing it was noticed that no question was put to the appellant about the report of the Arms Expert (Exh. P. Z./1) which was in the positive: Thus, it was directed that the appellant be summoned from jail on the next date of hearing. On 8‑9‑1985 the appellant was produced in Court and he was asked that the Arms Expert Report (Exh. P. Z./1) shows that the 2 crime empties recovered from the spot and a 7.65 mm bore crime bullet recovered from the body of the deceased were fired from 7.65 mm bore pistol No. 317 recovered from his possession and what he has to say about it. The answer was that the pistol in question was introduced by the Investigating Agency and so were the 2 empties and this evidence has been fabricated against him. The bullet allegedly recovered from the dead body was never sent to the I. O. and, therefore, the positive result of the Arms Expert in respect of the 2 empties and the spent bullet is all fabricated.

7. The learned trial Court convicted the appellant by placing reliance on the eye‑witness account furnished by Fateh Muhammad, H. C. and Muhammad Tahir F. C. (P. Ws.), recovery of the weapon of offence with four live rounds from his possession and two empties from the spot alongwith the positive report of the Arms Expert. The existence of motive for the offence was also taken into consideration. .

8 In support of the appeal it is contended that the ocular account of the incident furnished by the eye‑witnesses does not inspire confidence as they are police officials and none else from the occupants of the building H as examined as a witness in the case. It is also urged that Ghulam Muhammad, S. H. O. (P. W. 9) arrived at the spot at 3‑20 p.m. and recorded the report of the complainant. He remained there till the investigation was handed over to Mehboob Ali, S. I. (P. W. 11) at 4‑30 p.m. Thus, there was no reason why the two crime empties were not recovered by him during the period of one hour and 19 minutes when he remained at the spot. In this respect it may be stated that at the end of the murasila (Exh. P. A./ 1) it is mentioned that Mebboob Ali Khan, S.I. had arrived at the spot and the investigation was handed over to him. This note in the murasila would show that there is no substance in the objection raised on behalf of the appellant. It is next argued that the spent bullet allegedly recovered from the body of the deceased was never entrusted to the Investigating Officer as neither any recovery memo. regarding the same was prepared nor Muhammad Iqbal F. C., who brought various articles of the deceased from the doctor, nor Ghulam Habib, A. S. I. (P. W. 8), who is a marginal witness to various recovery memos. depose anything about the spent bullet. The objection is without force. Dr. Abdul Khaliq (P. W. 7) clearly stated that the bullet recovered from the body of the deceased was handed over to the police alongwtth other articles. Mehboob Ali, S. I. (P. W. 11) also stated that he also forwarded the spent bullet recovered from the dead body alongwith other articles to the Arms Expert. The report of the Arms Expert (Exh. P. Z./1) clearly shows that the crime bullet of 7.65 mm was also received by him alongwith the pistol and the crime empties and he opined that it was fired from the pistol in question. Similarly, the objection about the eye witnesses that they were police officials and arrived per chance at the seen of occurrence is without any substance. The said witnesses are not connected with the police station in question. Fateh Muhammad, H. C. (P. W. 5) was attached to the Court of Municipal Magistrate, Peshawar, and Muhammad Tahir, F. C. (P. W. 6) was a Natb‑Moharrir in the office of the Senior Superintendent of Police and both of them used to live in the Masha‑Allah building at the relevant time. There is nothing on the file to show that they were either inimically disposed towards the appellant or were on friendly terms with the deceased. The straight forward account of the incident furnished by them inspires confidence and nothing material has been brought out in cross‑examination to cast doubt on their veracity. We are, therefore, of the view that the learned trial Court was fully justified in placing implicit reliance on their testimony. 1t is next contended on behalf of the appellant that there was no motive for the appellant to commit the murder and the motive alleged by the prosecution was not only far‑fetched but entirely insufficient for killing the deceased. The argument is not without force. Panda Gul (P. W. 1), father of the deceased, stated that prior to the occurrence, during the summer season, the deceased and the appellant had quarrelled over a cot and when he came to know about it he told them to live peacefully but the appellant threatened him by saying that he will see to it. In cross examination he was confronted with his police statement under section 161, Cr. P. C. wherein he did not say that he was threatened by the appellant and instead it was mentioned that there would be no dispute in future. Lehaz Gul (P. W. 2) stated that during the summer season preceding the occurrence, there was a dispute between the deceased and the appellant over placing cot on the roof of the building where they used to sleep in summer season. A few days after the incident the cot of the deceased was stolen for which the deceased suspected the appellant. From this evidence it is clear that the alleged dispute between the deceased and the appellant took place during the preceding summer season whereas the present occurrence took place in the month of January, 1984. Thus, no adequate motive for committing the murder was established particularly when it was not proved that after the alleged dispute the relations between them remained strained or they picked up any quarrel before the present occurrence.

9. It is in evidence that before the incident of murder the appellant and the deceased were seen grappling with each other and in the absence of any evidence to show the immediate cause for grappling between them, the origin of the fight remains shrouded in mystery and, therefore, the question of the sentence of the appellant would require consideration. In Karim Bux v. The State (P L D 1977 Kar. 108), lesser sentence of imprisonment for life was imposed as it was held

"The genesis of the quarrel is shrouded in mystery, for, it is not known how, over what or when exactly it started. It may also be mentioned that no adequate motive for the murder has been established."

In Muhammad Mukhdoom v. The State (1984 S C M R 837), the lesser sentence of transpor tation for life was imposed as the prosecution failed to prove adequate motive for the offence and the immediate cause of occurrence was also concealed by the prosecution. In Muhammad Iqbal v. The State (1984 S C M R 1184), it was held that motive set up by the prosecution having not been proved and the real cause of occurrence remaining shrouded in mystery, the appellant was entitled to the lesser sentence of imprisonment for life. In Muzammal Din v. Noor Hussain (1985 S C M R 495), the immediate cause for the attack being shrouded in mystery, the accused were held entitled to the benefit of lesser sentence.

10. Taking this view of the matter we think that no adequate motive for committing the murder has been established and the immediate cause for the fight being shrouded in mystery, the appellant is entitled to the benefit of the lesser punishment. Therefore, while maintaining his convic tion under section 302, P. P. C. the sentence of death is altered to that of imprisonment for life. The sentence of fine and imprisonment in default thereof is maintained. The order as to the payment of compensation to the heirs of the deceased is also maintained and in default of payment thereof the appellant shall undergo 6 months further R. I. With this modification the appeal is dismissed and the murder reference is not accepted.

11. Regarding Appeal No. 104 of 1984 wherein the appellant was convicted under section 13 of the Arms Ordinance his learned counsel requested that in case the appellant was given the benefit of lesser sentence in the murder case, the imprisonment under section 13 of the Arms Ordinance may be directed to run concurrently. Therefore, while dismissing the appeal we order accordingly.

M. A. K. Order accordingly.

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