2005 PLP 90 (YLR)

16. They, no doubt are related inter se being paternal cousins to each other but this itself was not sufficient to view their testimony with suspicion. They, while have accounted for the cause of their presence at the place of occurrence at the relevant time. They have described that how they happened to be there when assault was launched upon them by the appellant's side. They have narrated that they in the company of the deceased were returning from Morre Dars Kufri after the effect of reconciliation between them and Kher Muhammad and others in the case of abduction of Mst. Haleem Khatoon, the step-sister of appellant Nazir Ahmad.

17. The abduction of the said lady and her such relationship with appellant Nazir Ahmad is an admitted fact on the record. It is in the evidence that Kher Muhammad's side had abducted her. She was the daughter of Muhammad Sher, the brother of complainant Ahmad Sher and deceased Ahmad Sher from Mst. Kalsoom Akhtar, the mother of appellant Nazir Ahmad.

18. The factum of Mst. Kalsoom Akhtar being the real mother of appellant Nazir Ahmad is also an admitted fact. It is also admitted that she was abducted by Muhammad Sher, the brother of the deceased, who had performed Nikah with her and the said lady Mst. Haleem Khatoon was born out of their wedlock.

19. The venue of the occurrence is also not disputed one. The deceased had been done to death at the given venue. The presence of the deceased at the venue could be for no other purpose except the one as has been explained in the testimony of the eye-witnesses. The complaint's side, if had gone to the above said Morre for the purpose of reconciliation with Kher Muhammad and others, then, the presence of the eye-witnesses with the deceased being, the real brother of Sher Muhammad, whose aforesaid daughter Mst. Haleem Khatoon, had been abducted by that party, was quite probable an event.

20. It is because of the fact that the deceased, Ahmad Sher P.W. being the real brother and Muhammad Afzal, their paternal cousin, could go to that place to join the- negotiation for reconciliation with the said party over the abduction of their niece. So, the presence of the eye-witnesses at the spot at the relevant time fully stands explained and there is no reason to doubt the same.

21. They no doubt were not the residents of the place of occurrence but the cause of their presence there satisfactorily stands explained on the record. Their testimony, therefore, has inspired confidence.

22. It was a broad daylight occurrence as having taken place at 12-45 Noon in the month of April. The parties were known to each other being related inter se. There, thus could not be any mistake with the eye witnesses about the identity of the assailants.

23. The report regarding the incident was made at the police station with the quickest dispatch and promptitude. It was within half an hour of the same, while the distance of the police station from the place of occurrence was six kilometers.

24. This promptitude and dispatch in the report of the incident to the police is highly suggestive of the fact that the eye witnesses were present at the spot and they had witnessed the occurrence. The F.I.R. Exh.P.F. contains all the necessary details of the incident like the names of the assailants, the weapons carried by them, the names of the eye-witnesses and the manner of it's happening from the start to end. The mentioning of the names of these eye witnesses in this document, which was without any unnecessary delay is really indicative of the factum of their presence at the spot and having seen the occurrence. This document is sufficient to corroborate the testimony of Ahmad Sher P.W. The presence of the eye-witnesses at the spot from this document in the evidence is proved on the record. The learned trial Court, therefore, was right in relying upon them.

25. The medical evidence has supported their testimony fully as regards appellant Nazir Ahmad and Noor Muhammad. According to their testimony, appellant Nazir Ahmad with .12 bore gun had fired at the deceased, which hit at his right hand and Noor Muhammad with rifle at his right buttock and thereafter again Nazir Ahmad fired at him, which hit at his left thigh and left hand.

26. These injuries as per the evidence of Dr. Muhammad Saleem (P.W.1), were there on the dead body of the deceased. These according to him were with fire-arm and of the duration as has come in their evidence. It may be mentioned here that the appellants' side did not seriously challenge the doctor as regards the injuries attributed to these two appellants (Nazir Ahmad and Noor Muhammad). Their account of the ( occurrence, thus has received support fully from the evidence of the doctor. It can be said with all certainty that it was with all conformity to their testimony.

27. According to the evidence of Muhammad Afzal, A.S.-I. (P.W.7), and Investigating Officer, Jahan Khan, S.-I. (P.W.9), the three appellants on 30-4-1999 in custody had led to the recovery of crime weapons. According to them, Nazir Ahmad had led to the recovery of .12 bore gun P-7 along with two cartridges P-8/2 and Habib Sultan 7mm rifle P-9 along with five live cartridges P-10/1-5 from the Dera of appellant Nazir Ahmad and Noor Muhammad 7mm rifle P-7 along with five live cartridges P-12/1-5 from the same place. There is nothing in their evidence to say that they had deposed falsely on that account. They, no doubt are the police officials but the same itself was not enough to discredit them in their testimony as it is now almost well-settled that such officials are as good witnesses as any other witness. There has been pointed out nothing from their evidence to say that they had any I motive to plant the recoveries upon them. The reliance of the learned trial Court on their testimony on such aspect, thus was not in any way wrong.

28. The report Exh.P.P. of the Forensic Science Laboratory has established that the .12 bore gun recovered from appellant Nazir Ahmad and 7mm rifle from appellant Noor Muhammad had matched with the crime empties recovered from the spot. There has been thrown no challenge by them to this report of the expert. It .is in the evidence of Muhammad Afzal P.W. that two empty cartridges of 7mm rifle P-6/1-2 and four empty cartridges of .12 bore gun P-5/1-4 were recovered from the spot.

29. These empties had matched with the aforesaid crime weapons recovered from these two appellants, this is sufficient confirmation of the fact that these appellants had used these weapons in firing at the deceased and caused him injuries as a result of the same he died. However, no such matching report was available to the prosecution to confirm that in fact the crime weapon recovered from appellant Habib Sultan was used in the commission of the crime.

30. So, the recovery of the crime weapons from appellants Nazir Ahmad and Noor Muhammad is further in corroboration to the testimony of the eye witnesses.

31. The motive set up by the prosecution is almost admitted. Both the' eye-witnesses have narrated the motive part of the story. According to them, the mother of appellant Nazir Ahmad was abducted by Muhammad Sher, the brother of the deceased and that of Ahmad Sher P.W. and he thereafter had performed Nikah with her and out of their wedlock Mst. Haleem Khatoon was born, who was abducted- by the party of aforesaid Kher Muhammad. The complainant side had reached to reconciliation with them. Appellant Nazir Ahmad had grudge against them on both these counts. It is in their evidence that Noor Ahmad appellant was his friend.

32. The learned counsel for the appellants has vehemently argued that the mother of appellant Nazir Ahmad was abducted long back and she thereafter had been murdered by him and so that matter between him and the complainant's side had ended while he' had no love lost with his step-sister Mst. Haleem Khatoon and so he could not have any motive to kill the deceased on those counts and this sufficiently establishes that such story is made up one or at least not proved; and that the same was not supported by any independent person. He in this regard has also argued that appellant Habib Sultan and Noor Muhammad were in no way connected with that motive and so the same could not be received as of any corroborative value to the ocular testimony against them; and that since sufficient time has elapsed in between the abduction of Mst. Kalsoom Akhtar, the mother of appellant Nazir Ahmad and the happening of the present incident and so it seems not reasonable that he after such a long time had been prompted to take revenge of that incident, while the immediate cause, which had led to the happening of the incident is shrouded in mystery. As against the same, the learned counsel for the State assisted by the learned counsel for the complainant has controverted such contentions saying that the incident of abduction of the mother of appellant Nazir Ahmad was such a matter, which could not be vanished away from his mind despite the time factor and this type of incident can prompt one to take revenge from his adversary at any time and that the immediate motive, which had led to the happening of the present occurrence had also been reasonably and satisfactory explained on the record by the eye witnesses.

33. The contentions raised from the side of the appellants in this regard are without force. It is because of the fact that the incident of abduction of the mother of appellant Nazir Ahmad is an admitted fact as said above. Though it had taken place sufficiently long ago but this was such an episode which normally could not be forgotten by him. It is matter of common experience and knowledge that sense of vengeance or sentiments of revengefulness, arising out of such a happening can vary in degrees of severity from individual to individual. The severity of degree in passions of revengefulness over such an incident is more in rural society than the urban. The parties are closely related to each other. In tribes and brotherhoods in the villages passions of revengefulness, arising out, out of which incident hardly go out from one's memory as it becomes stigma on him to move in society. So, the motive was at least there with appellant Nazir Ahmad to attack upon the complainant party out of vengeance over the abduction of his mother by the brother of the deceased. Noor Muhammad appellant was his friend as has appeared from the testimony of the eye-witnesses. It has been noticed that in villages friends join hands with others in taking revenge from their adversaries.

34. It also was not right to say that the immediate motive, which led to the happening of the incident had remained shrouded in mystery. It was not so as the eye-witnesses had narrated the immediate motive, which actually had led to the happening of the incident on the fateful day. According to the eye-witnesses, the reconciliation was effected between their side and Kher Muhammad and others over the abduction of Haleem Khatoon, who happened to be the step-sister of appellant Nazir Ahmad. She, admittedly was abducted by Kher Muhammad party as said above. The complainant party, as per their showing had reached to reconciliation with them. She after all was his sister from the mother's side. It is, thus absolutely not correct to say that he could not have any concern with her.

35. The complainant party had reached to reconciliation with her abductors without his consent. It could also give him cause of annoyance against them. He had perhaps murdered his mother due to her abduction or elopement with the brother of the deceased. He, therefore, could be prompted to take revenge of the same from the complainant party.

36. Noor Muhammad appellant being his friend could be his associate in the matter of taking revenge from them. So, the motive against these appellants at least fully stands proved on the record. It is a further corroborative circumstance to the ocular account of the prosecution.

37. We, therefore, from the above discussion are fully convinced that the prosecution as per it's above discussed evidence on the record has fully proved the guilt of the appellants namely Nazir Ahmad and Noor Muhammad to the hilt. The impugned judgment-thus, to the extent of their conviction and sentence is open to no valid exception. We, therefore, maintain the same except to the extent that the sentence of appellant Nazir Ahmad shall be treated as death by way of Ta'zir and not Qisas because of the fact that the requisite proof for penalty as Qasis is not available in the instant case.

38. We, therefore, dismiss Criminal Appeal No.254 of 2000 to his extent and the Appeal (No.429 of 2000) of appellant Noor Muhammad.

39. The murder reference to the extent of appellant Nazir Ahmad is answered in the affirmative. The death sentence awarded to him is confirmed.

40. As regards appellant Habib Sultan, the medical evidence has not fully supported the ocular account. According to the eye-witnesses, he with 7mm rifle had fired at the deceased, which hit at his left thigh.

41. The above said doctor has found Injuries Nos. 1 and 2 on the left thigh of the deceased. These were as follows:-- "B(1) A fire-arm wound of exit with 4 opening 1 x c.m. on front of left thigh, 16 c.m. from left iliac crest. (2) A fire-arm wound of entry with 4 openings 3 x 2 c.m. on internal side of left thigh, 16 c.m. from left iliac crest.". These injuries show that No.1 was wound of exit and No.2 of entry on the left thigh of the deceased. The Injury No.2 had four openings 3 x 2 c.m. on lateral side of left thigh 16 c.m. from left iliac crest. The similar was the dimension of wound of exit on the said part of the body of the deceased. These injuries could possibility be of fire made with .12 bore gun and not 7mm rifle.

42. Besides than this, according to the eye-witnesses appellant Habib Sultan had fired at the deceased from a distance of 10 Karams. This has so been stated by Ahmad Sher P.W. in his cross-examination. Muhammad Afzal P.W has also stated in the cross-examination that all the fires were made at the deceased from a distance of 10 to 15 Karams. The doctor while has stated to the cross-examination that Injury No.2 was caused to the deceased from a very close range. Muhammad Saeed, Draftsman (P.W.4) in his cross-examination has stated that appellant Habib Sultan was at point No.5 in the site plan at the time of occurrence and the deceased at point No.1. He has given the distance between the two points as 55 feet. This much distance could not be said to be close range. So, the medical testimony has not supported the role ascribed to him in the commission of the crime as narrated by the eye-witnesses.

43. Besides then this, there was no matching report available to the prosecution as regards the aforementioned rifle recovered from him as said above. The recovery of the crime weapon from him, therefore, was inconsequential. This carried shadow of doubt qua his culpability in the matter.

44. Furthermore, he is the brother of the wife of appellant Nazir Ahmad. He did not have any direct concern with the motive of abduction of the mother of Nazir Ahmad. He, therefore, possibly had been involved due to his relationship with Nazir Ahmad to widen the net. It is noticeable that there is growing tendency in our rural society to rope in maximum number of family members to wreak vengeance. The question of his involvement in the instant case, therefore, has remained unproved above doubt. The impugned judgment to the extent of his conviction and sentence, therefore, is not liable to be sustained.

45. We, therefore, accept the Criminal Appeal (No.254 of 2000) to his extent and set aside the impugned judgment to his extent and acquit him of the charge giving him the benefit of doubt. He is in custody. He be set at liberty forthwith, if not required in any other case.

46. The murder reference to his extent is answered in the negative. The death sentence awarded to him is not confirmed. H.B.T./S-128/L Order accordingly.