1996SCMR549 (PLP)

MUHAMMAD ILYAS, J.

This judgment shall dispose of two criminal appeals, namely, Cr1.-PLA Nos. 413 and 414 of 1993, which have been filed by leave of this, Court.

2. Facts giving rise to the appeals in hand are that the appellants, Hukam Dad and Ali Gohar stood trial before an Additional Sessions Judge of Attock, under section 302/34, P.P.C., for intentionally causing death of one Ghulam Khan, in furtherance of their common intention, and both were convicted. Hukam Dad was sentenced to death while Ali Gohar was awarded sentence of imprisonment for life. They were also directed to pay a fine of Rs.10,000 each or in default of payment of fine, to undergo rigorous imprisonment for two years each. Half of the fine, if realized, was ordered to be paid to the legal heirs of Ghulam Khan deceased.

3. The appellants filed appeals against the judgment of the learned Additional Sessions Judge while the latter made a reference for confirmation of death sentence of Hukam Dad. A Division Bench of the Lahore High Court, Rawalpindi Bench, decided the appeal by maintaining conviction of the appellants. Death sentence awarded to Hukain Dad was confirmed while the sentence imposed on Ali Gohar was also maintained. Thus, the appeal was dismissed and the reference was disposed of accordingly.

4. Feeling aggrieved by the judgment of the learned Division Bench, Ali Gohar made petition (Crl.PLA No. 138/92) before this Court for leave to appeal against the said judgment. On the other hand, Hukam Dad submitted similar petition, through Jail Authorities, namely, JP No. 190/92. Both the petitions were heard together and leave was granted in both of them to examine, inter alia, the following questions:-- (i) Whether there is-conflict in ocular and medical evidence; the fire-arm injury suggesting that the shot was fired from very close distance? (ii) Whether, in view of the preceding insults given to Hukam Dad, it was not a case of some mitigation in the matter of sentence?

5. The said two petitions have thus been converted into criminal, appeals, referred to at the outset, and are going to be considered together.

6. Prosecution story against the appellant, is that on 29-1-1988, at 8-30 a.m., when Muhammad Khalid (P.W.9), who is Complainant in the present case, was sitting with Mumtaz (P.W. 10) and Ghulam Khan deceased, at a Banna (ridge) of the land of Muhammad Aslam in the ea of village Langer, District Attock, Hukam Dad appellant, armed with .1; yore carbine, and Ali Gohar, armed with .12 bore gun, suddenly appeared. Hukam Dad shouted that they had come to take revenge of disrespect shown to it niece, namely, Mst. Sajida and that no one will be spared. On this, Muhammad Khalid, Mumtaz and Ghulam Khan stood up. Ali Gohar appellant then fired at Ghulam Khan but without success. Thereafter, Hukam Dad appellaa fired at Ghulam Khan and his shot hit his chest whereupon Ghulam Khan fell down. In that state, Ali Gohar appellant inflicted butt blows on the head of, Ghulam Khan with his gun. Mumtaz and Khalid raised alarm whereupon the appellants made good their escape. Ghulam Khan died at the spot.

7. As for motive, it was described by Sher Zaman (P.W.8) as under:-- "Raja Khan is my son and Mst. Sajida daughter of Sher Khan is his wife. She is maternal niece of Hukam bad accused. 4-5 days prior to the present occurrence I had exchanged hilt words with my daughter-in-?law Mst. Sajida. At that time Ghulam Khan deceased my-son-in law also came at the spot. He accused Mst. Kalida and reprimanded for her behaviour with me. In the meanwhile Hukam Dad accused also came there and asked Ghulam Khan deceased feat he was no body to accuse his maternal niece Sajida Bibi upon this an altercation took place between Hukam Dad accused and Ghulam Khan deceased. On 27-1-1988 at Shamwela Hukam Dad a used had threatened Ghulam Khan deceased that he will teach lesson for accusing his niece Mst. Sajida Bibi, in my presence." When cross-examined, Sher Zaman said that on 27-1-1988 (that is after two days of the first incident and two days before the murder of Ghulam Khan), Ghulam Khan had given fist and kick blows to Hukam Dad. Thus, according to the prosecution, Ghulam Khan was murdered by Hukam Dad and Ali Gohar appellants in furtherance of their common intention in order to wreak vengeance for the aforesaid insult.

8. Before the trial Court, when charged under section 302/34, P.P.C., the appellants pleaded not guilty.

9. The prosecution examined as many as 11 witnesses to prove its case. Their evidence will be discussed in due course, where necessary.

10. On the conclusion of the prosecution evidence statements of the appellants were recorded, under section 342, Cr.P.C. They said that the incriminating statements, etc., against them were not correct and added that the witnesses had deposed falsely for their being closely related to the deceased and the complainant. When asked as to why they had been involved in the case and why the witnesses had deposed against them, Ghulam Khan said: "They have deposed falsely against me and my co-accused as they are closely related to the deceased and the complainant. They have deposed against us on account of enmity and suspicion which they entertained against us as the occurrence was an unseen one. " Ali Gohar also made exactly the same statement.

11. The appellants did not produce any evidence in defence but they appeared as their own witnesses under section 340, Cr.P.C. Hukam Dad stated as follows:-- "The motive attributed to me as well as my co-accused is incorrect. I did not murder Ghulam Khan deceased. The recovery of empties and carbine from me were planted on us. I am innocent. I have been involved on account of enmity and suspicions. " Ali Gohar appellant dittoed his statement.

12. Assailing the conviction of the appellants, it was contended by learned counsel for the appellants that the medical evidence was not in consonance with the ocular testimony and, therefore, the ocular evidence could not be relied upon. He maintained that according to eye-witnesses, Ghulam Khan deceased was fired at from a long distance but the medical evidence showed that the shot, which resulted in his death, was fired from very close distance. '

13. Medical evidence was furnished by Dr. Muhammad Azam (P.W.1) who performed post-mortem examination on the dead body of Ghulam Khan. He observed following injuries on his dead body:-- "(1) Fire-arm inlet wound, edged inverted 2-1/2 c.m. x 2-1/2 c.m. x going inward on front middle of chest sternal area at the level of nipple, there was corresponding hole on the Qamiz and Saluka. (2) Contused wound 8 c.m. x 1/2 c.m. x bone deep on right portion of head 8 c.m. above the right eye-brow." As for internal examination of the dead body, the doctor deposed as follows:-- "On internal examination skull and vertebrae, membranes brain and spinal cord were found normal and healthy. Thorax cavity was full of blood and contained four pellets and one card board. Sternum was fractured under injury No.

1. Both plurea were ruptured under injury No.

1. Both right and left lungs were ruptured under injury No.

1. Pericardium and heart and blood vessels were ruptured under injury No.l. Peritoneum was ruptured under injury No.l. Two pellets were recovered from abdominal cavity. Diapharam was ruptured under injury No.l. Stomach was normal and healthy but contained two ounces of digested food. Small intestines contained faecal matter. Large intestines contained faecal matter but was ruptured under injury No.

1. Bladder was normal and healthy. It contained two ounces of urine. All the remaining organs were healthy."

14. The ocular account of the evidence was given by Muhammad Khalid (P.W. 9) and Mumtaz (P.W. 10). Muhammad Khalid said that "Hukam Dad accused had come nearer the deceased and fired at him from a distance of about 6 feet". Length of a carbine is not less than 3 feet. Thus, it is not correct to say that the muzzle of the carbine was far away from the chest of Ghulam Khan when he was fired at. The only other eye-witness is Mumtaz (P.W. 10). No question was put to him with regard to the distance from which Hukam Dad had fired at Ghulam Khan deceased. Learned counsel for the appellants did not cite any authority showing that if Hukam Dad had fired from a distance of 6 feet, with his carbine, pellets and card board would not enter his body and do damage thereto as reported by the Medical Officer. We, therefore, find no conflict between the ocular evidence and the medical evidence in the matter of the fire-arm injury attributed to Hukam Dad appellant, which had resulted in the death of Ghulam Khan.

15. We have also examined the evidence on the record showing that after his arrest, Hukam Dad appellant led to the recovery of .12 bore carbine from his residential home and one of the crime empties recovered from the place of occurrence was reported to have been fired from the said carbine. Learned counsel for the appellant did not raise a syllable of protest against evidence in this regard, which too links Hukam Dad appellant with the fatal injury by fire?arm.

16. It was argued by learned counsel for the appellants that Ali Gohar's conviction under section 302/34, P.P.C. was not sustainable because Ghulam Khan did not die on account of any fatal injury caused by him. It is true that according to the prosecution evidence, the shot fired by him did not hit the deceased but 12 bore gun was recovered, after his arrest, at his instance, from a box lying in his house. According to the Forensic Expert, a crime empty recovered from the spot had been fired from the said gun. Evidence in this behalf was not taken exception to by learned counsel for the appellants. It is also in the evidence that there was injury on the head of the deceased and it was caused by a blunt weapon. As indicated earlier, according to the prosecution version, the said injury was inflicted by Ali Gohar with the butt of his gun. We are, therefore, of the view that Ali Gohar did open fire at Ghulam Khan although his shot had missed the target. Had he succeeded in this? behalf, his injury could also be result of the death of Ghulam Khan. Looking at all these circumstances, we are convinced that he shared a common intention with Hukam Dad to hack Ghulam Khan to death. He was, therefore, rightly convicted under section 302/34, P.P.C. He was also given the benefit of unsuccessful firing inasmuch as he was saved from gallows and was sentenced to undergo imprisonment for life. This was the only sentence lesser other than the capital punishment which could be awarded to him under section 302/34, P.P.C.

17. This brings us to the question whether there are mitigating circumstances warranting leniency in the matter of sentence. In this regard, point canvassed by learned counsel for the appellants was that the appellants are alleged to have killed the deceased due to the fact that they had been disgraced earlier. Of the previous incidents, the first one had taken place 4-5 days before the murder of Ghulam Khan and the second one occurred two days before his death. Further, the most serious development which had occasioned in the second incident was that Hukam Dad appellant was given fist and kick blows. We do not think that this maltreatment warranted him to take the life of Ghulam Khan and that too after two days. If at all the appellants had to take revenge, they could also give him beating at an appropriate place and time.

18. Learned counsel for the appellants cited Muhammad Ashraf v. The State (1981 SCMR 856), Imam Bux v. The State (PLD 1983 SC 335), Aziz Masih alias Kudi v. The State 1991 PCr.LJ 419, Khakhi Jan and another v. The State 1985 PCr.IrJ 2074, Abdus Sattar alias Babu and others v. The State (1984 SCMR 832), to show that in similar circumstances, concession was shown in the matter of sentence. In the case of Muhammad Ashraf, the accused had killed his wife as he suspected her character, but in the present case there was no such relationship between the deceased and the perpetrators of his murder. In the case of Imam Bux, Ghazi Ahmad accused, who caused fatal injury, was sentenced to death while his co-accused. Imam Bux, whose fire did not hit the deceased, was awarded the sentence of transportation for life. The appellants before us have also been punished accordingly. Case of Imam Bux is, therefore, of no avail to the appellants. In the case of Aziz Masih, Khakhi Jan and another, Abdus Sattar alias Babu and others, insult had been meted out in public, but in the present case this was done before a few family members inside their house. Thus, the case in hand is distinguishable from the last-mentioned three cases under report. All the authorities cited by learned counsel for the appellants are, therefore, of no help to the appellants.

19. According to the eye-witnesses as well as the medical evidence, it was a fire-arm injury caused by Hukam Dad appellant which resulted in the death of Ghulam Khan. He was, therefore, rightly punished with death. Ali Gohar appellant did not cause such injury although he did make an effort in this behalf; and leniency has been shown to him by imposing on him the sentence of life imprisonment instead of the death penalty. He did not deserve any more concession.

20. Learned counsel for the appellants did not raise any other plea with a view to enabling us to interfere with the judgment under challenge.

21. As we have found no force in both the appeals, they are dismissed. N.H.Q./A-1367/S ?????????????????????????????????????????????????????? Appeals dismissed.