1968 P Cr (PLP)

BASHIRUDDIN AHMAD, J.‑Muhammad Hayat (51), Rohtas Khan (41), Noor Khan (46), Murid Abbas (36) and Fateh Khan (19) were tried for offences under sections 148 and 302 read with section 149, P. P. C. by the learned Sessions Judge, Mianwali, who acquitted Noor Khan on both the counts with the result that the charge under section 148, P. P. C. fell through. The rest were convicted with the application of section 34, P. P. C. Fateh Khan was sentenced to death. Muhammad Hayat, Rohtas Khan and Murid Abbas were awarded the lesser punishment provided under section 302, P. P. C. The convicted persons appealed and the State preferred Cr. Revision (No. 743 of 1966) against Rohtas Khan, Muhammad Hayat and Mtirid Abbas for enhancing the sentence from transportation for life to death. Notice was issued to them by the Division Bench on the 19th of January 1967 to show cause why the sentence of transportation for life be not enhanced to death. The learned Sessions Judge referred the case of Fateh Khan for confirmation of the death sentence. This judgment will dispose of the appeal, the reference and the revision petition for the enhancement of sentence.

2. Briefly narrated the prosecution case is that on the 9th of February 1965, at 1‑00 p.m. Fateh Khan fired at Habibullah Khan deceased with a shot‑gun in the precincts of the District Courts. Mianwali, while Rohtas Khan, Muhammad Hayat and Murid Abbas caused injures to the deceased with knives. When Habibullah Khan fell down, Noor Khan shouted that the object was accomplished and the culprits escaped towards the north. Habibullah Khan son of Muhammad Akbar Khan, Saifullah Khan, Adam Khan and Muhammad Nawaz witnessed the occurrence.

3. The motive for the murder was vendetta. Twelve years prior to the occurrence, under consideration, Amir Abdullah, a brother of Muhammad Hayat was put to death by Muhammad Khan, Muhammad Hayat and Haq Nawaz relatives of Habibullah Khan deceased. Habibullah Khan deceased, who was the leader of iris party, arranged, the defence of the accused in that case.

4. Leaving Abbas Khan to guard the dead body, Habibullah Khan P. W. proceeded towards the Thana for a report. He carne across Sub‑Inspector Fazal Hussain Shah (P. W. 14) in the Court compound and made the statement Exh. P. C. which he endorsed to Police Station Sadar, Mianwali at a distance of three furlongs from the scene of the crime where a case was registered by H. C. Haq Nawaz (P. W. 10) at 1‑45 p.m. the same day.

5. The case was investigated by Sub‑Inspector Fazal Hussain Shah, who prepared the injury sheet and the inquest report and then despatched the dead body to the mortuary for post‑mortem examination Muhammad Akbar (P. W. 8) and Habibullah Khan (P. W. 9) were associated in the investigation and in their presence the Sub‑Inspector took into possession blood‑stained brick from the verandah and sealed it into a parcel. He recovered the crime empty of a '12 bore cartridge from the spot and sealed it into a parcel. He took into possession a pair of shoes Exh. P. 2/1‑2 from a plot at a distance of 151 feet from the scene of the crime and sealed the same into a parcel. It may here be stated that Mr. Muhammad Bakhsh, Magistrate (P. W. 6) found that the shoes P. 2/1-2 fitted Fateh Khan appellant. Muhammad Hayat, Rohtas Khan and Fateh Khan were arrested on February 18, 1965 while Murid Abbas was apprehended by the police on February 22, 1965.

6. On the 9th of February 1965, at 5‑00 p.m., Dr. Nawab -ud‑Din (P. W. 1) held the autopsy on the dead body of Habibullah Khan and found the following injuries :‑ (1) A firearm wound of entry, 1 x 1 ', going deep into the chest back on the middle and slightly to its right part. Margins of the wound were lacerated, ecchymosed and inverted. (2) An incised wound, ' x ' x going deep into the chest on the middle line and slightly to the left of it on the chest back situated 3J' above injury No.

1. Margins of wound were clean cut. (3) An incised wound,' ' x going deep on the back of right lower chest situated 3' to the right of injury No. 1. (4) Four incised wounds on the front lower sternum, epigastrium and on the right lower chest front in area of, 3 ' x 3', size of injuries varying from ' x x going deep to ' x x going deep into the chest, (5) An incised wound, ' x ' x going deep on the antero lateral side of right chest 4 ' below and lateral to the right nipple. (6) A contused wound, ' x ' x skin deep on the back of left elbow. In the opinion of the doctor, death was caused by internal haemorrhage and shock as a result of injury No. 1 which was sufficient to cause death in the ordinary course of nature. All the injuries were ante‑mortem. 7: The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. They ascribed the case to enmity with Habibullah Khan P. W. No evidence was called in defence.

8. Direct evidence regarding the commission of the crime was furnished in the statements of Habibullah Khan P. W. 9, Saifullah Khah P. W. 11, Adam Khan P. W. 12 and Muhammad Nawaz P. W.

13. Habibullah Khan stated that he came to the Courts at Mianwali in connection with the case against Muhammad Nawaz son of Muhammad Akbar. Umar Hayat and Habibullah Khan deceased who were his relatives. A case under sections 13 and 14 of the Criminal Law (Amendment) Act, 1963‑was pending against them and was fixed for that date. Umar Hayat and Muhammad Nawaz were under custody while the deceased happened to be on bail. The case against them concluded at about 1‑00 p.m. Umar Hayat and Muhammad Nawaz were taken away by the police. The deceased was talking to his counsel. When the deceased reached near the Bar room and was standing in the verandah Fateh Khan fired at Habibullah deceased by means of a ' 12 bore shot‑gun from behind. The remaining appellants caused injuries to the deceased with knives. Habibullah fell down and Noor Khan shouted that the job was over and directed his companions to make good their escape. The culprits ran away towards the north, Habibullah Khan P. W. claimed that he was standing at a distance of six Karams from the place of the occurrence within the verandah when he saw the occurrence. Saifullah Khan P. W. was also standing there when the occurrence took place. Adam Khan was sitting in the lawn in front of the Bar room while Muhammad Nawaz was present in the District. Courts, Mianwali, in connection with a case against his relatives when they saw the occurrence Saifullah Khan, Adam Khan and Muhammad Nawaz corroborated the story narrated by Habibullah Khan. It is in the statement of Habibullah Khan P. W. that his brother Haq Nawaz was sentenced to death for the murder of Amir Abdullah, a brother of Muhammad Hayat accused which took place twelve years prior to the occurrence under consideration. Two of the co‑accused in that case, namely, Muhammad Hayat and Muhammad Khan were sentenced to various terms of imprison ment. Habibullah Khan admitted that after the murder of Amir Abdullah six persons of his party and seven persons of the party of the present accused were bound down to keep the peace Habibullah Khan P. W., his brother Umar Hayat and Muhammad Nawaz were placed on security after the murder of Amir Abdullah. Habibullah Khan P. W. did not mention in his report to the police (Exh. P. C.) that Haq Nawaz who was hanged for the murder of Amir Abdullah, was his brother. He simply stated .in Exh. P. C. that the murderers were the relatives of Habibullah deceased. The witness deliberately tried to suppress that there was blood‑feud between his family and the family of the accused person. Habibullah Khan P. W. also suppressed this fact when he made the statement before the committing Magistrate. He stated before the committing Magistrate that Abdul Aziz, Muhammad Khan, Sharbat Khan and Ghulam Muhammad of his tribe were challaned for the murder of Haq Nawaz uncle of Muhammad Hayat accused. The witness expressed ignorance if the aforesaid four persons were sentenced to life imprisonment. He deliberately denied this fact which indicates to my mind that the witness tried to suppress the truth. Umar Hayat and Muhammad Nawaz against whom proceedings were pending under sections 13 and 14 of the Criminal Law (Amendment) Act, simultaneously with Habibullah Khan were under custody. On the day of the alleged occurrence Habibullah Khan P. W. reached the District Courts at Mianwali at about 9 a.m. when the case had already been called. He did not see his brothers who were in custody going inside the Court room. The bail applications of his brothers were pending decision and along with the bail applications bail bonds had also been filed on earlier hearing. Habibullah Khan P. W. had come to Courts in that connection. If he did not go inside the Court room so long as his brothers were there, his first impulse would have been to enquire from them the fate of the bail applications and for that purpose he would rather follow them towards the police lock‑up at a distance of 65 Karams from the Court room towards the south than to accompany Habibullah deceased and his counsel towards the Bar room. The probabilities are that the witness followed his brothers. towards the lock‑up after the case against them was over while the deceased accompanied, his counsel towards the Bar room. In all likelihood, Habibullah Khan P. W. was actually not present at the spot when the deceased was done to death. It is likely that he came to the spot on hearing of the occurrence. Even if his presence on the spot at the time of the occurrence is accepted still it is not possible to rely on his evidence because of the blood‑feud. The witness has been guilty of deliberately trying to suppress the truth and is proved to have lied on more points than one. He expressed ignorance if Aman Ullah Khan was a counsel for his brothers or for Habibullah deceased exclusively. The witness stated that he knew Adam Khan P. W. from his face. This is unbelievable. Adam Khan had been attending the Court in connection with the case against the brothers of Habibullah Khan P. W. under sections 13 and 14 of the Criminal Law (Amendment) Act. In fact, Adam Khan stood surety for Umar Hayat, Habibullah Khan P. W. had to admit it. He said in his statement, at the trial, that Adam Khan submitted a surety bond for one of his brothers ‑but he was not definite for whom the surety fond was actually submitted by Adam Khan. Habibullah Khan P. W. was confronted with his statement before the committing Magistrate wherein he had stated that Adam Khan P. W. stood surety for his brother Umar Hayat. The witness had no way out and trotted out the excuse that due to passage of time he did not recollect for whom Adam Khan actually stood surety. It is unbelievable that the witness did not try to find out from his brothers the fate of the bail application. Habibullah Khan admitted that his brother Muhammad Nawaz is married to Mst. Hayatan but he was unable to say if she comes from Musa Khel or not. He also expressed ignorance if she is the first cousin of Muhammad Nawaz P. W. The witness deposed in the committing Court that Mst. Hayatan belonged to Musa Khel but in his statement, at the trial, he stated that she hails from Musa Khel side. 'The witness seems to have little respect for the truth. Habibullah Khan admits that Muhammad Nawaz P. W. belongs to village Musa Khel. The wife of Habibullah deceased is the maternal aunt of Habibullah Khan P. W. The witness admitted in the committing Court that she is the sister of Abbas Khan P. W. but denied this fact in his statement at the trial and there appears a note by the learned trial Judge that the witness was reluctant to reply to questions put to him. Habibullah Khan stated, at the trial, that the deceased was shot from a very close range. He gave the distance intervening between the muzzle of the gun and the body of the deceased as three niches. To the contrary, he stated before the committing Magistrate that Fateh Khan fired from a distance of one Karam, Saifullah Khan P. W. is married to Mst. Mehr Khatoon. She is the uterine sister of Abbas Khan. Saifullah denied in his statement before the committing Magistrate that she is the sister of Abbas Khan. He admitted that Abbas Khan is the son of Muhammad Khan. The witness stated in the committing Court that his wife Mst. Mehr Khatoon is the daughter of one Khalil. The witness was, however, constrained to admit that she is the daughter of Muhammad Khan. He declared that if Abbas Khan had stated that Mst. Mehr Khatoon was his real sister then be told a lie. Saifullah Khan is proved to have lied in order to conceal his relationship with Abbas Khan P. W. 7 who. categorically stated that Khalil was his uncle, that Saituilah Khan P. W. is not married to the daughter of Khalil and that Mst. Mehr Khatoon is his real sister who is married to Saifullah Khan P. W. Habi bullah deceased was the brother of Abbas Khans wife. Saifullah Khan P. W. admits that he did not put in any application for the grant of a gun license. He did not apply at all for the grant of a gun license. He did hot tell the police that on the day of the alleged occurrence he came to Courts at Mianwali in order to apply for a gun license. To the contrary he stated to the police that he had come to attend the hearing of the case against the deceased. The witness claimed that he watched the proceedings of the case against Habibullah deceased and others in Court on that day. He admitted that he did not state before the committing Magistrate that he along with Habibullah Khan P. W. followed the police who were escorting Muhammad Nawaz and Umar Hayat but the police did not allow them to go near and so they came back. Saifullah Khan admitted that never before he attended the proceedings of the case against the deceased, Umar Hayat and Muhammad Nawaz. It is, therefore, clear that Saifullah Khan P. W. had no business to be present in the District Courts, Mianwali, on the day of the alleged occurrence. The reason given by him for his presence in the Court‑compound on that day was a subterfuge as he did not apply for the grant of a gun license even after the occurrence. The witness is married to the sister of Abbas Khan P. W., who in turn, is married to the sister of the deceased. Adam Khan P. W. admitted that he had to stand surety for Umar Hayat, brother of Habibullah Khan P. W. He is a resident of Musa Khel which is 13 miles from Mianwali towards the east, Village Rokhari is towards the north‑west of Mianwali town. Adam Khan admitted that he knew Habibullah deceased but did not know how many brothers he had nor he knew their parentage. The witness continued that he knew Rohtas Khan and his co‑accused from their faces but did not know their parentage. This is proved to be a lie because the witness mentioned in his police statement the parentage of the accused person as well as that of the deceased. The witness goes on to say that he did not know Umar Hayat and Muhammad Nawaz accused in the case under the Goondas Act. When questioned whether he submitted bail bonds for Umar Hayat the witness bad no answer. He clearly said in his statement before the committing Magistrate that he had stood surety for the brother of the complainant in security proceedings in the Court of Khan Masud Khan, Magistrate. It is remarkable that this witness submitted a bail bond in the sum of Rs. 50,000.00 (Rupees fifty thousand) for Umar Hayat and still he was not able to remember whether he stood surety for him. The statement of this witness is a tissue of lies made in order to show that he did not stand surety in such a huge amount at the instance of Habibullah Khan P. W. The witness came forward with the story that his brother in‑law Muhammad Azim was also an undertrial in a case under section 302, P. P. C., Umar Hayat asked him in jail that he should provide surety for him and Muhammad Azim asked the witness who undertook to do so. Mozam Khan, the father‑in‑law of Umar Hayat, also approached the witness and he agreed to stand surety for Umar Hayat. Adam Khan admits that the amount of the surety bond was huge but he stood surety to oblige his brother‑in‑law Muhammad Azim. The witness did not give this detail in his police statement. The witness denied that he knew at that time that the deceased was a co‑accused with Umar Hayat and Muhammad Nawaz. He clearly stated to the contrary in his police statement the witness did not mention in his statement to the police or to the committing Magistrate that he was present in the lawn in front of the Bar room. Adam Khan denied that he is married to niece of Muhammad Nawaz P. W. He admitted that Muhammad Nawaz P. W. is a resident of Musa Khel. He says that he saw Muhammad Nawaz in the Court‑compound sometime before the occurrence but did not enquire from him the purpose of his visit. Even after the occurrence Muhammad Nawaz P. W. did not disclose to him the purpose of his visit to Courts on that day. It is in the statement of one of the recovery witnesses namely, Akbar Khan P. W. 8 that Mst. Almo was his grand‑mother and Adam Khan P. W. is a nephew of Mst. Almo, Adam Khan, Muhammad Nawaz and Akbar Khan belong to Musa Khel which is 13 miles from Mianwali and is connected by road and buses ply between the two places. There was nothing improbable about these witnesses having come to the spot hearing of the occurrence. Mst. Hayatan, a cousin in the second degree of Muhammad Nawaz P. W. is married to the brother of Habibullah Khan P. W. Muhammad Nawaz expressed ignorance if Muhammad Nawaz the husband of his cousin Mst. Hayatan was being proceeded against under the Goondas Act along with his brother Umar Hayat and Habibullah deceased. This is a blatant lie. He told another lie when he stated that he had come to Courts in connection with a case against his relative Rab Nawaz to the Court of the Addl. District Magistrate, Mianwali but he did not go inside the Court of the Addl. District Magistrate when the case against Rab Nawaz was called and did not even care to enquire from Rab Nawaz the next date of hearing. Muhammad Nawaz had never come to Courts in that connection earlier and clarified that he did not attend on any subsequent hearing. The witness was unable to deny that his paternal aunt Mst. Shakran was married to the maternal grand‑father of Habibullah Khan P. W.

9. On a careful consideration of the ocular evidence, we get the impression that the eye‑witnesses are thoroughly unreliable and they lied on material points which go to affect their veracity. They were perhaps not there at the spot when the occurrence too place and since they resided not very far away from Mianwali town they turned up on hearing of the occurrence and volunteered evidence. Had Saifullah Khan, Adam Khan and Muhammad Nawaz been present when the occurrence took place, there is no reason why none of them was left to guard the dead body when Habibullah Khan P. W. had gone for a report. He left Abbas to guard the dead body. Saifullah Khan, Adam Khan and Muhammad Nawaz did not sign the inquest report which throws considerable doubt as regards their presence on the spot at the time of the occurrence. The recovery memos. in this case were signed by Habibullah Khan complainant son of Muhammad Akbar Khan and Muhammad Akbar Khan son of Muhammad Nawaz. Had Saifullah Khan, Adam Khan and Muhammad Nawaz been actually present at the time of the incident or at the time of the investigation, some one of them, if not all of them, could be made as attesting witnesses. None of them attested even the inquest report. It further confirms the belief in my mind that Habibullah Khan complainant named them as eye‑witnesses in his statement Exh. P. C. counting on their support' and they were procured subsequently and did not actually see the occurrence.

10. We have already held there was blood‑feud between the maker of the first information report and accused persons. Even if it be held that Adam Khan, Saifullah Khan and Muhammad Nawaz were present at the time of the occurrence still it would not be possible to sustain the conviction of the appellants on evidence which is inimical and is of a partisan nature. No corroboration of this tainted evidence from a independent source is forthcoming. The occurrence took place in the Court's precincts and still the prosecution were not able to examine a single disinterested or independent witness in support of their case. Since the gun was not recovered in this case and even if the recovery of any empty cartridge from the spot is believed, still it, in no way, advanced the prosecution case inasmuch as the mere recovery of an empty cartridge is not a confirmatory circumstance tending to corroborate the ocular evidence which is found to be unreliable and inimical.

11. The appellants had no motive whatsoever to kill the deceased. It is in the evidence of Habibullah Khan P. W. that the deceased had never figured as a complainant or a co‑accused against the present appellants. He never appeared as a witness in any case against any of the accused party. The deceased was not even proceeded against to keep the peace after the murder which twelve years before this occurrence. Had he taken an active part in arranging the defence in the previous murder case as alleged by Habibullah Khan P. W. then there was every likelihood of his also being put on security. The deceased had done nothing to invite the wrath of the accused. They had no score to settle with Habibullah deceased. They had a strong motive against Habibullah Khan P. W. We are not prepared to believe that the appellants killed Habibullah deceased for nothing and caused no harm to Habibullah Khan P. W. who is their arch‑enemy.

12. The deceased had a number of enemies as is clear fro the evidence of Habibullah Khan P. W. The deceased was involved in a murder case pertaining to Mochh Police Station but he was acquitted. He was challaned in two cases under section 307, P. P. C. A case under section 307, P. P. C. was still pending against the deceased when he was put to death. None of the present appellants was involved either as a complainant or as a witness or even as an accused Habibullah Khan P. W. admitted in his statement before the committing Magistrate that the deceased was also involved in a case under section 143, P. P. C. The deceased was implicated in a case under section 392, P. P. C. for robbing a Head Constable of a rifle and that case was still pending against him. It is thus e clear that the deceased had a number of enemies and the possibi lity of the deceased having been done to death by any one or more of them could not be ruled out in the circumstances of the case.

13. The first information report in this case was recorded by the Sub‑Inspector at the spot. This was admitted by Habi bullah Khan complainant in his statement. He also admitted that the particulars of the three eye‑witnesses were entered in the first information report by the investigating officer and were not supplied by him as he did not know their parentage. We strongly deprecate the tendency on the part of the police to prepare the first information report after the spot inspection in certain cases. It is not possible to rely implicitly on the version which is proved to have been touched up by the police.

14. Rohtas Khan accused is the brother of Noor Khan, who was acquitted by the learned trial Judge. Fateh Khan is the son of said Noor Khan and is barely 18 years old. The principal role in the crime committed was assigned to him by the prosecu tion. If Noor Khan was himself there to participate in the commission of the crime he could have himself shot dead the deceased rather than to leave it to his young son and see him walk to the gallows. Muhammad Hayat accused is the mother's sister's son of Noor Khan and Rohtas Khan accused. Murid Abbas accused 'belongs to the same clan as his co‑accused but he is not proved to be in any way related to his co‑accused. The trial Court held the case against Noor Khan to be not free from doubt. If the complainant was so unscrupulous as to implicate Noor Khan in a murder case there is no guarantee that all the four appellants or some out of them were actually responsible for the crime committed.

15. For all these reasons, we accept the appeal, set aside the conviction and the sentence passed on the appellants and proceed to acquit them. They are in jail and we direct that they be set at liberty forthwith provided that their detention is not necessary in connection with any other matter. The death sentence is not confirmed.

16. Since the appeal by the convicted persons has succeeded and they have been ordered to be acquitted, the revision petition by the State for the enhancement of sentence fails ipso facto and is accordingly dismissed.

17. The prosecution have to thank themselves if as a result of the decision in appeal some really guilty person escaped with the innocent. Appeal accepted.