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Criminal Appeal No. 361 and Murder Reference No.110 and Criminal Revision No.726 of 1983, heard on 27th April, 1987.
---Ss.302, 354, 148 & 149--Eye-witnesses having no enmity with accused and no contradiction existing between medical and ocular account- Relations between parties prior to occurrence never strained and they had never come into clash with each other--Injuries not doubtful vis-a-vis weapon used--Conviction maintained in circumstances.
Muhammad Farooq etc. v. State P L D 1976 Lah. 1403 ref.
---Ss.302, 354, 148 & 149--Sentence--Clear motive leading to commission of murder by accused not available--Whole exercise as result of which deceased lost his life was to avenge family honour--Case for awarding lesser penalty, held, made out--Sentence of death altered to imprisonment for lime.--[Sentence].
Mirza Khan v. State 1984 S C M R 1006; Ahmad etc. v. State 1982 S C M R 1049 and Ali Khan v. State P L D 1980 S C 109 rel.
---Ss.302, 354, 148 & 149--Recovery--Bias--Empty not sent to Forensic Science Laboratory till after recovery of rifle--Positive report received from office of Forensic Science Laboratory, held, could not be relied upon as a safe, unquestionable piece of evidence, particularly in face of stand taken by accused that inquiry officer was biased against him.
Ijaz Hussain Batalvi for Appellants.
Sher Ali Khan for A.-G. for the State.
Malik Noor Muhammad Awan for the Complainant.
Dates of hearing: 26th and 27th April, 1987.
--F.I.R. (Ex.PH) was recorded at Police Station Musakheil, on 18-12-1980, at 3-15 p.m. by Altaf Hussain Shah, SI/SHO (PW.9), on the statement of Saadullah Khan (PW.6), under section 302/148/149, P.P.C. Section 354, PPC was added later on.
2. According to the F.I.R., Saadullah Khan (PW.6) and his father Nur Khan, were present in their land known as Shirin, in the area of village Borikheil, at a distance of nine miles from Police Station Musakheil. Mst. Sahib Khatun was also grazing goats nearby. At 12 Noon, Abdul Karim, his brother Inayatullah; Yasin Khan, Amir Abdullah, Aurangzeb, sons of Nawab Khan and Zar Khan son of Nawaz Khan, came there armed with guns. They tried to forcibly abduct Mst. Sahib Khatun. She raised noise. The complainant, his father and Kafaitullah (PW.8), who were also nearby, ran to the place and tried to intervene. Whereupon, Zar Khan raised a Lalkara that they will not be spared and will be taught a lesson for damaging the crop. Mst. Sahib Khatun was released. Abdul Karim fired a shot from his gun hitting Nur Khan on the right flank. He fell down and died. The shots fired by the remaining accused amissed. Whereafter all the accused ran away.
On 17-12-1980, Umar Khan, a cousin of the complainant, was grazing goats. TAP goats damaged the crop of Khalas Khan. Mst. Zohran daughter of Khalas Khan and cousin of Abdul Karim had prohibited him and had also abused him. Whereupon, Umar Khan had given a Soti blow to Mst. Zohran. According to the complainant, the accused had launched the assault on account of that grievance.
After the occurrence, the dead body of the deceased was taken to the police station by the complainant on a truck, where the FIR (Ex.PH) was recorded.
3. Altaf Hussain Shah, S.I., after recording the F.I.R., prepared the injury statement (Exh. P.L.) and inquest report (Exh. P.M.) and despatched the dead body of Nur Khan for post-mortem examination, which was performed by Dr. Muhammad Husain (P.W.2), on the following day, at 10-30 a.m. The doctor noted a firearm wound of entry, 1 c.m. x 1 c. m. , at left anterio-lateral surface of abdomen, about 7 c.m. above and medial to mid-point of left anterior iliac crest and about 14 c. m., left lateral to mid-abdominal line. The edges of the wound were inverted. There was no blackening and tatooing.
On internal examination, peritoneum was found perforated. The vertebrae of lower lumber region were fractured, rupturing the abdominal artery and other adjoining blood-vessels. The right iliac bone was fractured at its posterior lateral part.
According to the opinion of the doctor, death had occurred due to profuse haemorrhage and shock, resulting from the injury.
Two pieces of bullets removed from under muscle of right buttock and from right side of abdominal cavity, were sealed and handed over to the police.
4. Altaf Husain Shah, S. I., during spot inspection on 18-12-1980, collected blood-stained earth from the place of occurrence vide memo. Exh. P.J. He also took into possession an empty cartridge (P.13), vide memo. Exh. P. K.
5. Aurangzeb, Zar Khan and Yasin Khan were arrested by the same S.I. on 31-12-1980.
Gun (P.5) alongwith a live cartridge (P.6), found in possession of Aurangzeb, at the time of arrest, were taken into possession vide memo. Exh. P.D.
Pistol .12 bore (P.7), alongwith a live cartridge (P.8), found in possession of Zar Khan, at the time of arrest, were taken into possession vide memo. Exh. P.E. While Pistol (P.9) and alive cartridge (P.10), found in possession of Yasin Khan, at the time of arrest, were taken into possession vide memo. Exh. P.F.
Abdul Karim was arrested on 4-1-1981. Rifle (P.11) and live cartridges (P.12/1-2) found in his possession, at the time of arrest, were taken into possession vide memo. Exh. P. G .
Memos. Exhs. P.D., P.E., P.F. and P.G., p apart from Altaf Husain Shah, S.I., were also attested by Khadim Husain, A.S.I. (P W.5).
Amir Abdullah and Inayatullah were also arrested on 4-1-1981, but nothing was recovered from them.
6. After completion of necessary investigation, challan was put to Court.
7. The learned Additional Sessions Judge, Mianwali, who tried the case, vide judgment, dated 11-6-1983, convicted and sentenced them as under:-
(1) One year R.I. under section 148, P.P.C.
(2) One and a half years R.I. , plus a fine of Rs. 2,000 under section 354/149, P.P. C. In default of payment of fine, they have been ordered to suffer R.I. for three months.
(3) Abdul Karim alone has been convicted under section 302, P.P.C. and sentenced to death, plus a fine of Rs. 2,000, in default whereof to suffer R.I. for two months.
Abdul Karim has also been directed to pay Rs. 8,000 as compensation to the heirs of deceased, or in default to undergo R.I. for six months.
8. The convicts have filed Criminal Appeal No. 361 of 1983. The learned trial Judge has made reference for confirmation of death sentence awarded to Abdul Karim. The complainant has filed Criminal Revision No. 726 of 1983, praying setting aside acquittal of Amir Abdullah, Inayatullah, Aurangzeb, Yasin and Zar Khan, under section 302, P.P.C. and also praying for enhancement of sentences of the convicts under sections 148, 354/149, P.P.C.
As all the matters arise from the same judgment, they are being disposed of by one judgment.
9. At the trial prosecution in all examined nine witnesses, including Dr. Muhammad Hussain (P.W.2) and Altaf Husain Shah, S.I. (P.W.9).
Positive reports Exhs. P. N., P. Q. and P.O, from the offices of Chemical Examiner, Serologist and the Forensic Science Laboratory, were also tended in evidence.
10. The ocular account has been deposed to by Saadullah Khan complainant (P.W.6), Mst. Sahib Khatun (P.W.7) and Kifayatullah (P.W.8).
Kifayatullah is married to the sister of the complainant.
Saadullah repeated the facts given by him in the F. I. R., with one improvement that the accused had removed loin-cloth of Mst. Sahib Khatun, but had thrown the same while leaving the spot
Mst. Sahib Khatun and Kifayatullah corroborated the account given by the complainant.
11. The appellants during their statements under section 342, Cr.P.C., denied the prosecution case as a whole; pleaded innocence and stated that they have been involved due to party faction at the instance of their opponents.
12. Before embarking upon enunciation of the prosecution evidence, we would like to note here that Khalas Khan, (father of Mst. Zohra, who was insulted and beaten by Umar Khan) is uncle of Abdul Karim appellant. Abdul Karim, who was 38 years of age at the time of trial is real brother of appellant Azeem Khan, aged 26 years, and they are first cousins of appellants Amir Abdullah Khan, aged 26 years, Aurangzeb, aged 20/21 years, Yasin Khan, aged 28 years who are real brothers inter se. Zar Khan appellant, aged 42 years, is cousin of above-named appellants.
Umar Khan mentioned above is son of brother of Mst. Sahib Khatun P.W.7's husband.
13. The empty recovered from the spot on 18-12-1980 and deposited in the Malkhana at the police station on 22-12-1980, was despatched to the office of the Forensic Science Laboratory on 5-1-1981. Prior to that, Rifle (P.11) had been recovered from Abdul Karim appellant on 4-1-1981, at the time of his arrest, and the same had also been deposited in the Malkhana of the police station on the same day. Rifle was sent to the office of the Forensic Science Laboratory on 1-2-1981. The empty and the rifle both remained together at the police station. The empty, which should have been sent earlier, was not sent to the office of the Forensic Science Laboratory, till after the recovery of the rifle. It is in the light of these facts that we are prone to accept the contention of the learned counsel for the appellants that the positive report (Exh. P.O.) from the office of the Forensic Science Laboratory cannot be relied upon, as a safe, unquestionable piece of evidence, particularly, fur the reason, that Abdul Karim appellant had taken a stand that Altaf Husain Shah, S.I. was biased against them.
14. The averment of the learned counsel for the appellants that no person who participated in, or witnessed the incident of 17th December, 1980, has been examined, is no doubt' correct, but his argument that the incident of 17th December, therefore, be deemed not to have taken place at all, has not appealed to us. In this connection not only P.W.6 made statement but also Mst. Sahib Khatun, who in fact was the target of the occurrence of 18th December, 1980, also stated about it. They did not claim that they had witnessed the incident, nonetheless, they disclosed their knowledge. The incident of 17th December, 1980 was not the subject of trial. The incident was only a reference and the non-production of anyone of the persons who participated in the incident or witnessed the same, cannot be taken to mean that no such incident had taken place.
15. The emphasis laid by the learned counsel on the fact, that if the accused had to avenge the insult of Mst. Zohra, they would have picked up either mother of Umar Khan or someone of his sisters, referring to the statement of Mst. Sahib Khatun, in cross-examination, that Umar Khan's mother was alive and he had five grown up sisters, has not impressed us, for the reason that Mst. Sahib Khatun was also no stranger to Umar Khan. She was a member of Umar Khan's family being aunt (she was married to the brother of father of Umar Khan). We do not know and actually there is nothing on record, that the other ladies connected with Umar Khan were available or not. It was the routine of Mst. Sahib Khatun to go out for grazing, goats at about the time when the occurrence took place. It is also on record that this was the area, where she used to graze the goats. It was almost a lonely place and so the appellants chose this lady as their target knowing that she will be available to them in secluded place without expecting that the deceased, his son complainant or Kifayatullah P.W. will also be present near about the place of occurrence. Even otherwise, one cannot say that who should have been chosen as target for revenge by the appellants. Their only aim would be to insult some lady connected with the family of Umar Khan and so we do not find anything unimaginable in the choice made by the appellants.
16. The contention of the learned counsel for the appellants that Khalas Khan, whose daughter was, insulted, had brothers and sons as well, and so it was none of the business of the appellants to have taken upon themselves the task of avenging the insult of Khalas Khan's daughter, has been examined by us. As noted in the earlier part of the judgment, the appellants are no strangers to Mst. Zohra. Her father is uncle of Abdul Karim and Inayatullah appellants. All other appellants being their cousins are equally related to Mst. Zohra. In a tribal society the responsibility of taking revenge is on all connected persons and not particularly on the father, son and brother of the affected ones. Rather the tribal custom demands the voluntary option by the near relatives of the person insulted or injured, to go out for revenge. It is known that under tribal customs occurrence of murders and murderous assaults are launched for avenging murders or insults. In the circumstances, we do not think anything unusual in the appellants having gone out for avenging the insult of the lady, related to them quite closely, without physical participation and aid of her father and brothers.
17. The stance of the learned counsel for the appellants that the depositions of Saadullah (P:W.6), Mst. Sahib Khatun (P.W.7) and Kifayatullah (P.W.8) do not inspire confidence and that the conviction cannot be maintained on their, statements, has been examined by us in the light of their exposition's of the occurrence.
It is not the case of the appellants that these three witnesses were inimical to the appellants in any manner. In fact, except the incident of 17th December, 1980, no incident directly had ever taken place between the appellants and these witnesses or their family. The deceased was not a disputed personality. The only thing brought on record is that he was a prosecution witness in the murder case of Haq Nawaz, a brother of Rab Nawaz, in whose land the present occurrence had taken place, before the birth of Saadullah complainant, who was 25 years old at the time of trial. The P.Ws., therefore, are independent and not inimical to the appellants. The only improvement, worth mentioning, made by them at the trial was about the removal of loin-cloth of Mst. Sahib Khatun. In fact, even at the time of registration and investigation of the case, it was their stance that the appellants wanted to abduct or insult Mst. Sahib Khatun. The mentioning of removal of loin-cloth was just an explanation in detail, what appellants did with Mst. Sahib Khatun. Their testimonies cannot be discarded merely on such .an unimportant variations.
18. Learned counsel while arguing that mere independent posture of witnesses is no guarantee of their being truthful, cited Muhammad Farooq etc. v. State P L D 1976 Lah. 1403.
After having gone through the judgment, we regret to say that the facts of the case cited by the learned counsel are different from the facts of the case in hand. In the precedent case appeal was allowed taking into account the fact that the statement of the complainant was contradictory with regard to his own injuries, noted in the medico-legal report, and the fact that prosecution version stood falsified by the post-mortem report. The fact was also taken into account that the dying declaration made by deceased, which was disbelieved by the trial Court, was contradictory to the version given by the complainant in the F.I.R. The strained relationship of the parties and the fact of their litigating against each other in Civil Courts had also weighed with the learned Judges in coming to the conclusion of acceptance of appeal. It was about the testimony of one witness only, who had no previous enmity with the accused in that case that observation was made that non-existence of previous animosity of the witness was not sufficient to label him as truthful witness.
In the case in hand, there is no contradiction between medical evidence and the ocular account, relations between the parties prior to the present occurrence were never strained. They, in fact, had never come into clash with each other.
19. We do not think that there was anything unusual for the complainant having taken the dead body of the deceased to the police station while going to make a report. He might have been afraid that some body may remove the dead body from the place of occurrence to wipe of the evidence, or he might have thought that ultimately the dead body had to be taken to a city for post-mortem examination. Nothing is on record to grant the argument of the learned counsel for the appellants that it must have been done with mala fide intentions. After all what mala fides there could be The dead body could be of no use for consultations. It was not a case of doubtful injury vis-a-vis the weapon used.
20. After having carefully considered the evidence on record and the contentions raised by the learned counsel for the appellants, we are convinced that no interference is called for in the convictions recorded by the trial Judge. The same are, therefore, maintained.
21. We have considered the last contention raised by the learned counsel for the appellants, that in view of the facts that there was no clear motive for commission of murder and also in view of the fact that it is prosecution's own case that the whole exercise, as a result of which Nawaz lost his life, was to avenge the family honour, a case for awarding lesser penalty for conviction under section 302, P.P.C. to Abdul Karim stands made out. In this connection we have also gone through Mirza Khan v. State 1984 S C M R 1006, Ahmad etc. v. State 1982 S C M R 1049 and Ali Khan v. State P L D 1980 SC 109, cited by the learned counsel in support of his contention.
22. We find weight in the contention of the learned counsel in view of the fact that the same finds support from the evidence on record and the law cited by him. The sentence of Abdul Karim awarded to him under section 302, P.P. C. is, therefore, altered from death to imprisonment for life. The sentence of fine and the direction for payment of compensation is, however, maintained.
23. The sentences awarded to the appellants under sections 148, 354/149, P.P. C. are also reduced to that of already undergone, keeping in view the period that they have remained in jail during the trial and the days they spent in jail after conviction.
24. Learned counsel appearing for the petitioner in Criminal Revision No. 726 of 1983, has not been able to make out any case against the Acquittal of Amir Abdullah, Inayatullah, Aurangzeb, Yasin Khan and Zar Khan, warranting setting aside of their acquittal under section 302, P.P.C. and remanding the case for fresh trial. The question of grant of prayer for enhancement of the sentences for conviction under sections 148, 354/149, P.P.C., does not arise, as we have considered it more just to reduce the sentences, already awarded, taking into account the periods the convicts have remained in jail during trial and the days they spent in jail after conviction. The revision petition is, therefore, dismissed, being without any merit.
M.Y.H./A-96/L
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