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Criminal. Appeal No.302 and Murder Reference; No.118.of.1982, decided on 29th September, 1986.

---S.302--Motive--Motive for murder that during Punchayat proceedings accused abused deceased upon which deceased lost self-control and abused accused in retaliation--Accused then threatening deceased with dire consequences in presence of members of Punchayat--One very closely related witness to deceased making material improvements at the trial and the other at whose Dera Punchayat was allegedly held was withheld by prosecution--Motive, held, remained unsubstantiated in circumstances.

---S.302--False implication--Case of single accused--No reason available to believe that real culprit was let off and father and real brother of deceased had come forward to falsely implicate an innocent person- Substitution is a very rare phenomenon in a case of single accused.

---S.302--Conviction--Occurrence taking place in broad daylight and F.I.R. lodged within fifteen minutes of occurrence- Case of single accused and substitution for real accused ruled out--Conviction of accused under S.302, P.P.C. maintained in circumstances.

Ijaz Hussain Batalvi for Appellant.

Hafiz Ghulam Bari for the State.

Dates of hearing: 27th, 28th and 29th September, 1986.

.--Ahmad Khan '(35) son of Ali Khan; Pathan, resident of village Mochh, was' tried for the murder of Gul Nawaz by the learned Additional Sessions Judge, Mianwali, who by his judgment dated 18th May, .1982, convicted him under section 302, P.P.C. and sentenced him to death subject to confirmation by this Court and a fine of Rs.10,000/- or in default in the payment thereof to undergo rigorous imprisonment for three years. Out of the fine, if recovered, a sum of Rs.5,000/- was ordered to be paid to the father of the deceased as compensation. The convict has appealed and the case is also before us on reference for confirmation of his death sentence. The appeal and the reference shall be disposed of by this judgment.

2. The brief facts to the prosecution case are that on 28th July 1980 at about 9 a.m. Gul Nawaz deceased, his brother Muhammad Nawaz P.W. and their father Yar Muhammad complainant were going to their house. They were taking Bajra fodder which they had cut from the lands of one Mati Ullah Khan. The deceased and Muhammad Nawaz P.W. were carrying one bundle each. When they covered a distance of thirty Karams from the house of one Nur Muhammad Uterkhel and were on a Katcha path, the appellant carne there armed with a gun and threw a challenge that he would take revenge for the abuses hurled on him by the deceased. The deceased threw the bundle of fodder and tried to run away but the appellant, who by that time was at a distance of about one Karam from the deceased, fired at him hitting his left flank, as a result of which, he fell down and expired. Nur Muhammad and Fateh Muhammad got attracted to the spot and saw the occurrence. The appellant ran, away towards east taking the gun with him.

The motive alleged by the prosecution was that the appellant anal Muhammad Iqbal P.W. son-in-law of the complainant, were carrying on joint business at Bhakkar. About ten or fifteen days prior to the occurrence Muhammad Iqbal P.W. left Bhakkar on account of same dispute with the appellant and came to village Mochh. Two or four days after that, Ahmad Khan appellant demanded Rs.10,000/- from Iqbal which, according to him, he had misappropriated. A Punchayat was convened at the Dera of Muhammad Khan P.W. (not produced) to settle the dispute. During the proceedings the appellant abused Muhammad Iqbal P.W. in the Punchayat, upon which the deceased abused him by way of retaliation. It is alleged that the appellant committed the murder of Gul Nawaz on that score.

After the occurrence, Yar Muhammad complainant left for the police station leaving the dead-body in the custody of Muhammad Nawaz, Nur Muhammad and Fateh Muhammad P.Ws. and reported the occurrence to Muhammad Rafiq Ahmad Khan, Sub-Inspector /S.H.O., Police Station Mochh, at 9.15 a.m.

3. After recording the F.I.R., Muhammad Rafiq Ahmad Sub -Inspector reached the spot and secured some blood-stained earth and made it into a sealed parcel vide memo Ex.PD. He prepared the injury statement (Ex. PJJ and inquest-report (Ex. PH) of the dead-body and despatched it to the mortuary for post-mortem examination. He also took into his possession a bundle of Bajra-fodder from the spot vide memo. Ex. PE. He arrested the appellant on 30th July, 1980. While in police custody, he made a disclosure that he could lead to the recovery of a .12 bore gun and consequently he led the police to his house and from there got recovered .12 bore gun (Ex. P.5) vide memo. Ex. PF. After the investigation, the appellant was challaned.

4. On 28th July, 1980 at 3 p.m. Dr. Muhammad Akram Khan, Medical Officer, D.H.Q. Hospital, Mianwali, conducted the autopsy on the deadbody of Gul Nawaz deceased and found a fire-arm wound of entry 7 cm x 7 cm with slight blackening on the edges of the left iliac fossa. On internal examination, small intestines were found completely cut at two places and perforated at many places, the large intestine as completely cut at the descending colon. The peritoneum was perforated and blood vessels were injured on left side of the abdomen. One card-board and 37 small size pellets were recovered from left side of the abdomen. In the opinion of the doctor, death was due to shock and haemorrhage resulting from injury No.1 which was sufficient to cause death in the ordinary course of nature. The probable time between injury and death was between half and one hour and between death and post-mortem examination four to eight hours.

5. The appellant pleaded not guilty to the charge and denied the: prosecution allegations against him. He maintained that the deceased"" was killed in the early hours of morning when he was all alone and the P.Ws had involved him due to enmity. He examined Sher Khan. Head Constable, in his defence who proved F.I.Rs. Exs. DC, DD, DE, DF, DG and DH to be the correct copies of the originals. The appellant also tendered a certified copy of the birth-entry of Gul Nawaz deceased (Ex. DJ) and a certified copy of his own birth-entry (Ex. DK).

6. After examining the evidence on the record, the learned trial Judge accepted the prosecution version and convicted and sentenced the appellant as mentioned above.

7. Learned counsel for the appellant contended that the motive alleged by the prosecution has not been proved; the presence of both the eye-witnesses at the spot is not established and the medical evidence cuts across the ocular account, therefore, the conviction and sentence of the appellant was not sustainable.

8. At the trial Muhammad Iqbal (P.W.6) supported the prosecution version regarding motive. He stated that he was, carrying on joint business with the appellant at General Bus Stand, Bhakkar. About fifteen days prior to the occurrence, he dissolved the partnership with the appellant and came back to his village Mochh. Two days later, the appellant met him there and tried to persuade him for starting joint business again but he declined to oblige him. On the following day the appellant "sent a man" and demanded Rs.10,000/ from him which, according to the appellant, he had misappropriated. Two days thereafter, Punchayat was convened at the Dera of Muhammad Khan Lambardar. Five persons, including Gul Nawaz deceased, participated in the Punchayat from his side while the appellant was all alone. During the proceedings the appellant abused him, upon which Gul Nawaz deceased lost his self-control and abused the appellant in retaliation. The appellant then threatened the deceased with dire consequences in the presence of the members of the Punchayat.

Muhammad Iqbal P.W. is married with the sister of the deceased. Mehr Muhammad (P.W.5), who is the real brother of the complainant, admitted in cross-examination that since the murder of one Muhammad Siddiq they were on inimical terms with the appellant. Relying on this statement, the learned counsel for the appellant contended that partnership of Muhammad Iqbal P.W. with the appellant was not possible because they were on inimical terms since long. Muhammad Khan Lambardar, on whose Dera the Punchayat was allegedly held, was the best witness of the motive but, strangely enough, he was given up by the prosecution as unnecessary. Thus, the best evidence regarding the motive was withheld by the prosecution. It is also to be noted that Gul Nawaz deceased was aged fifteen years. Generally, lads of this age are not supposed to participate in the Punchayats convened for resolving disputes. In cross-examination Iqbal P.W. stated that all those who accompanied him to attend the Punchayat proceedings at the Dera of Muhammad Khan Lambardar, were related to him, but' except the deceased none had objected to the abuses hurled by the appellant nor he himself had retaliated when the accused abused him. He was confronted with his statement under section 161, Cr.P.C. wherein it was not mentioned that the accused had abused him or that he had sent some one on the following day to demand Rs.10,000/ from him. Muhammad Iqbal P.W. is very closely related to the deceased. He has made material improvements at the trial, and the best witness of the motive, namely, Muhammad Khan, at whose Dera the Punchayat was allegedly held, has been withheld by the prosecution. In the circumstances, the motive alleged by the prosecution remains unsubstantiated.

9. Yar Muhammad complainant and Muhammad Nawaz- (P.W.10) furnished the ocular account of the occurrence as detailed in the earlier portion of this judgment. Learned counsel for the appellant vehemently contended that their presence at the spot is not established. He submitted that both of them claim to have seen the occurrence when they alongwith the deceased were taking Bajra-fodder to their house after cutting the same from the field of Mati Ullah Khan but had no Bajra-crop, therefore, the explanation given by them is false and their presence at the spot is not proved. He based this submission on the statement of Niaz Muhammad, Revenue Patwari P.W.4, who stated that aforesaid Mati Ullah Khan owns land in Mauza Mochh Pakka only in Khasra Nos.440 and 441. In Kharif 1980 there was cotton crop in Khasra No.440 while Khasra No.441 was lying vacant. He further stated that in Kharif 1980 there was no Bajra or Jawar crop in the lands owned by the father and brother of said Mati Ullah Khan. In re-examination this witness, however, admitted that Bajra and Charl are the crops of Zaid Rabi and that the Revenue Department does not conduct Girdawari of Zaid Rabi crops because that is the job of canal-patwari. In the circumstances, the statement of Niaz Muhammad Patwari does not, in any way, help the defence.

10. The learned counsel for the appellant pointed out that possibility of false implication could not be ruled out because there was old enmity between the appellant and the accused party. To support his contention he relied on the statement -of Mehr Muhammad (PW.5), brother of Yar Muhammad complainant who admitted that- since the murder of one Muhammad Siddiq they had been on inimical terms with the accused. This Muhammad Siddiq was father-in-law of Yar Muhammad complainant. He was murdered by Ibrahim, Karam Dad and others. Ibrahim was the brother of one Perwana. This Perwana was the father-in-law of the sister of the wife of the appellant. Aforementioned Karam Dad was brother of Ata Muhammad who was husband of Mst. Razia, sister of the wife of the brother of the appellant. It is thus evident that the murderers of Muhammad Siddiq were very distantly related to the appellant. Muhammad Siddiq was murdered about twenty years back when appellant was a young lad. If the complainant wanted to take revenge by false implication, he would have named close relatives of Ibrahim and Karam Dad as the culprits and not the appellant with whom he had no direct enmity. It is the case of a single accused and we see no reason to believe that the real culprit was 'let off and the father and real brother of the deceased had come forward to falsely implicate an innocent person. In the case of single accused substitution is a very rare phenomenon. The occurrence took plate in the broad daylight and the F.I.R. was lodged within fifteen minutes of the occurrence at the police station. There is nothing on the record to show that the deceased was killed in the early hours of the morning, as alleged by the appellant in his statement under section 342, Cr.P.C. We are, therefore, satisfied that the appellant was rightly convicted under section 302, P.P.C. and we maintain his conviction.

11. The question of sentence, however, requires consideration. We have already observed that the motive alleged by the prosecution has riot been proved. In this case the real motive is shrouded in mystery. Since the immediate cause of the commission of murder is not known and the story set but by the prosecution regarding motive has not been substantiated, the extreme penalty provided for the offence of murder is not called for. We, therefore, reduce the sentence of the appellant to imprisonment for life. The fine imposed on him by the trial Court is, however, maintained. In default of payment of fine he will undergo rigorous imprisonment for three years. On recovery, the entire amount shall be paid to the heirs of the deceased as compensation. The appeal stands disposed of accordingly.

The death sentence of Ahmad Khan is not confirmed.

M.A.K./A-144/L Sentence reduced.

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