P L D 1968 Lahore 964 (PLP)

BASHIRUDDIN AHMAD, J.‑

Muhammad Aslam Goldsmith (38) of village Nalli and Khushi Muhammad Baluch (22) of Chak No. 63/N. B., Sargodha District, were tried under section 302/34, P. P. C. for the murder of Muzaffar in Chak No. 74/N.B. on the 18th December 1965, at about 3 p.m., by the learned Addl. Sessions Judge, Sargodha, who convicted and sentenced each one of them to suffer death. The condemned persons appealed and the learned Addl. Sessions Judge referred the case under section 374, Cr. P. C. to this Court for con firmation of the death sentence. We propose to dispose of the appeal and the reference by a single Judgment.

2. The prosecution story, briefly narrated, is that on the fateful day Khushi Muhammad appellant pointed towards Muzaffar and instigated Muhammad Aslam appellant to kill him when Muzaffar was selling beef sitting under a tree in the Chauk of Chak No. 74/N.B. Muhammad Aslam fired with a country‑made pistol and the deceased was hit in the back. He died shortly afterwards. Mian Muhammad, father of the victim, Mian Muhammad son of Ahmad, who is married to the sister of the deceased, Jaffery, a shopkeeper and Yasin weaver, who had seen the occurrence, raised alarm and pursued the culprits who took refuge in the dara of vains Muhammad and chained the door from inside. Hakim Muhammad Saeed, Ghulam Hussain, Abdus Sattar and others also came up on hearing the alarm. Hakim Muhammad Saeed and Ghulam Hussain had the door of the Kotha opened and brought Aslam and Khushi Muhammad out. They took into possession a country‑made pistol from Muhammad Aslam together with a live and an empty cartridge. Leaving Hakim Muhammad Saeed and others to guard the assailants, Mian Muhammad father of the deceased, proceeded on foot to Dharema from where he got into a bus and went to Sadar Police Station, Sargodha, at a distance of 14 miles from the scene of the tragedy and reaching there at 6‑30 p.m. the same day he lodged the report Exh. P. B.

3. The motive for the murder was that the deceased had been suspected of having a love‑intrigue with Mst. Allah Jawai, wife of Muhammad Khan, a clerk in the District Council, Sargodha, who had paid Rs. 20.000 to the assailants to kill Muzaffar.

4. After scribing the report Sub‑Inspector Ahmad Salim P. W. 11 visited the spot, prepared the injury sheet and the inquest report relating to Muzaffar deceased and then despatched the dead body to the mortuary for post‑mortem examination. The Investigating Officer took into possession blood‑stained earth from the spot and sealed it into a parcel. The appellants were arrested from the dara of Vains Muhammad in which they had taken refuge. Hakim Muhammad Saeed was present at the dara and produced before the Investigating Officer the pistol P. 5 and the live cartridge P.7. The pistol contained in its chamber the crime empty P.

6. The Sub‑Inspector took the pistol with the crime empty and the live cartridge in his possession vide Memo. P. C. He sealed the weapon and the crime empty into a parcel. The Chaddar P. 18 was taken into possession from Muhammad Aslam by the Police vide P. F. From the place of the occurrence, were recovered beef weighing two seer P. 8, scale P. 9, weight 3 in number P. 10/1‑3, log of wood P. 13, Gunny bag P. 14, butchers knife P. 11, two knives P. 12/1‑‑12, matress P. 15 cushion P. 16 and pair of chappal P. 17/1‑2, by the police vide Memo. P. E.

5. The autopsy on the deceased's dead body was held by Dr. Izharul Hassan, Medical Officer, District Headquarters Hospital, Sargodha, on the 19th of December 1965, at 11‑30 a.m. Dr. izharul Hassan left for U. K. for higher studies in 1966 and was not expected to return in a year or so. The post mortem examination report showed that the deceased received gun‑shot injuries from a close range of which he died.

6. Direct evidence regarding the commission of the crime is furnished in the statement of Mian Muhammad P. W. 6 and Mian Muhammad son of Ahmad P. W.

8. Yasin Pawali was given up and Jaffery, who was called as the 9th witness for the prosecution, turned hostile. He was cross‑examined and the learned Addl. Sessions Judge, therefore, decided to exclude his evidence from his consideration. In our opinion, the trial Judge improperly eliminated from consideration the evidence of Jaffery who was named in the First Information Report as an eye‑witness. Jaffery tried to absolve Khushi Muhammad appellant. Jaffery admits that he saw Khushi Muhammad near the spot half an hour before the deceased was shot dead by Muhammad Aslam appellant. The reason for the attempt on the part of Jaffery to exonerate Khushi Muhammad is not far to seek. He is the tenant of Muhammad Khan, who was also challaned for abetment of the murder of Muzaffar. Muhammad Khan and Ghulam Muhammad both, who are the landlords of Jaffery, own property in Mauza Kufri and a land grant in Chak No. 74/V.B., Sargodha District. Ghulam Muhammad is the cousin of the mother of the said Muhammad Khan. Jaffery was constrained to admit in reply to a question put to him by the Public Prosecutor that he dropped the name of Khushi Muhammad as one of the culprits at the instance of Muhammad Khan. The witness continued that he was threatened with eviction from his house and the shop in the event of his naming Khushi Muhammad as one of the culprits. The witness concluded that Khushi Muhammad was with Muhammad Aslam when the latter fired at Muzaffar deceased. In fact, Khushi Muhammad pointed out Muzaffar to Muhammad Aslam and after that Muhammad Aslam fired at the victim. Jaffery omitted to mention in his statement before the committing Magistrate the name of Khushi Muhammad as one of the culprits out of fear of Muhammad Khan. The witness had been living in the house of Muhammad Khan for five years without paying any rent to him. We accept the explanation by the witness for the attempt on his part to exonerate Khushi Muhammad and consider his statement which he made at the trial more nearer the truth.

7. Turning to the evidence of Mian Muhammad, father of the deceased, and Mian Muhammad son of Ahmad, who is married to the sister of the deceased, we find that their narrative about the occurrence is consistent. The former was sitting with his son who sold beef in the Chauk of the Abadi in Chak No. 74/N.B. The recoveries from the spot confirm that the deceased was engaged in the sale, of beef at a Thala under a tree in the Chauk in the abadi deh.

8. The fact that the father of the deceased was sitting with him is also confirmed by Jaffery in his statement. Mian Muhammad son of Ahmad was at the shop of Jaffery when the occurrence took place and he also joined in the pursuit of the culprits. The ship of Jaffery is hundred yards from the scene of the tragedy. The presence of Mian Muhammad son of Ahmad is also admitted by Jaffery who deposed that he was one of those who joined in the pursuit of the miscreants. Neither the father nor the brother‑in‑law of the deceased had a motive, of any kind, to falsely implicate the appellants.

9. It is in the statement of Mian Muhammad, father of the deceased, that the appellants were not even known to him previously. The culprits themselves disclosed their identity. Muhammad Aslam also disclosed the motive. Mian Muhammad then proceeded to the Thana for lodging a report. He went on foot up to Dhrema which is 3 mils from his village and from there he proceeded in a bus to the police station. Mian Muhammad proved the First Information Report when it was read out to him at the trial. He clearly stated that the report was recorded at the Thana. The witness, however, admitted during cross‑examination that the Sub‑Inspector got his thumb impression on the First Information Report at the place of the occurrence. Mian Muhammad clarified that he did not thumb mark any paper or statement which purports to be the First Information Report in the case at the police station. Mian Muhammad was not even aware about the place of residence of Khushi Muhammad appellant and as in the first Information Report it is mentioned that Khushi Muhammad appellant belonged to Chak No. 63/N.B. We are inclined to the view that the First Information Report was, in all probability, prepared at the spot. Since the maker of the first Information Report did not thumb‑mark any other document, not even the inquest report, his mixing up matters is out of the question. Ch. Nazir Ahmad, learned counsel for the appellants, submitted that the case deserved to be thrown out because the investigation was dishonest. We do not agree. We think the prosecution should not suffer for the irregularity on the part of the Sub‑Inspector though we highly depricate the practice of recording of the First Information Report in a serious criminal case after spot inspection by the police.

10. There is ample corroboration of the ocular evidence from the recovery of the pistol P. 5 and the crime empty P. 6 from the possession of Muhammad Aslam appellant. When the culprits were given a chase, they took refuge in the dare, of Vains Muhammad and shut the door of the Kotha from inside. On hearing the fire shot Hakim Muhammad Saeed also came to the dara. He deposed that he saw Mian Muhammad, father of the deceased, Mian Muhammad son of Ahmad, Jaffery and Yasin already present there. Abdus Sattar and Ghulam Hussain also came up simultaneously with Hakim Muhammad Saeed. The witness continued that he asked the appellants to open the door. They opened the door of the Kotha and Muhammad Aslam surrendered the pistol P. 5 containing the crime empty P. 6 in its chamber and a live cartridge P. 7 to Hakim Muhammad Saeed. They also confessed That they committed the murder at the instance of Muhammad Khan wino had paid them Rs. 2,000 for the purpose because he suspected that his wife had illicit intimacy with the deceased. The story goes that the culprits again entered the Kotha and chained the door from inside. The door was also chained front outside to prevent their escape. Mian Muhammad father of the deceased made the following statement before the committing Magistrate in this regard:‑‑-- "Before the police had arrested the accused the police asked the accused if they had anything with them and Aslam replied that he had a pistol. The police asked the accused to throw out the same. In compliance with the directions of the police Aslam accused threw out the pistol through a window which was picked up by the police."

11. The witness slid not stick to the above statement when examined at the trial. What he had said earlier in his statement, at the trial, about Hakim Muhammad Seed having taken into possession the weapon of offence containing the crime empty and the live cartridge from Muhammad Aslam, was not to be found in his statement before the committing Magistrate. Similarly, he had not mentioned to the committing Magistrate that the culprits confessed having murdered Muzaffar at the instance of Muhammad Khan, who gave them Rs. 2,000 for the purpose. The witness seems to have come to know all this during interrogation by the police. Mian Muhammad sort of Ahmad also stated that when Hakim Muhammad Saeed P. W. asked the assailants to open the door, they did so and canto out of the Kotha without the intervention of any person. To the contrary, the witness said in his statement to the police that Hakim Muhammad Saeed and Ghulam Hussain entered the Kotha and held the accused persons and recovered from Muhammad Aslam appellant pistol P. 5 and a live cartridge. He did not mention in his police statement (copy B. A.) that the pistol P. 5 contained the crime empty P.

6. Mian Muhammad P. W. 8 did not say so in his statement to the police or the committing Magistrate that the accused persons entered the Kotha after handing over the pistol, etc. to Hakim Muhammad Saeed. These omissions, in our opinion, are not material. The contradictions, in our view, do not go to effect the prosecution ease on merits as we have gained the impression after going through the evidence that some of the contradic tions were introduced deliberately, particularly, in the case of Hakim Muhammad Saeed. Even Hakim Muhammad Saeed; the recovery witness, who tried to save Khushi Muhammad appellant, admitted that when the door of the Kotha was opened by Muhammad Aslam appellant at the instance of the police, Muhammad Aslam produced the pistol P. 5 containing crime empty P. 6 and the live cartridge: P.

7. The pistol and the crime empty were sealed into a parcel by the police in his presence: Hakim Muhammad Saeed continued that whereas Muhammad Aslam was arrested from the dara of Vains Muhammad, his co‑accused Khushi Muhammad was apprehended during the night from Rasoolabad (Chak No. 63/N. B.) which is his native place. Since Hakim Muhammad Saeed had made important departures from his earlier statement in his attempt to favour the defence his statement which he had made before the committing Magistrate was brought on the record in accordance with the provisions of section 288, Cr. P. C. His statement before the committing Magistrate runs:‑-- "I knocked the door and disclosed the accused about my identity and also ordered them to open the door. The accused opened the door. I along with Ghulam Hussain P. W. entered inside the Dara and over‑powered Khushi Muhammad and Muhammad Aslam accused. Aslam accused had a pistol in his hand. I toot, the pistol which had an empty cartridge in its barrel. On his personal search a live cartridge of 12 bore was also recovered from the pocket of his shirt. On the arrival of the police, I produced both the accused along with pistol P. 5, empty cartridges P. 6 and live cartridge P. 7 before the police vide memo. Exh. P. C. which was signed by me."

12. The witness, when confronted with the above statement, attempted to wriggle out of the situation and lied on more points than one. He said that his statement before the committing Magistrate was recorded in the absence of the Presiding Officer without administering to hint tine oath which we are not prepared to accept. Hakim Muhammad Saeed is literate and he attested the recovery memo. P. C. It is too much to accept that he was made to sign on a blank piece of paper which was later on converted into memo. of possession. It is equally unbelievable that Hakim Muhammad Saeed attested memo. P. C. without reading its contents. The witness belongs to Kufri. Chak No. 74/N. B. comprises of about 40 squares of land out of which 30 squares are held by the residents of Kufri. Muhammad Khan is originally a resident of Kufri. The deceased was a non‑proprietor and in all probability, the pro prietors in order to help Muhammad Khan prevailed on Hakim Muhammad Saeed to absolve Khuahi Muhammad appellant to indirectly sabotage prosecution case. Hakim Muhammad Saeed, who is also a Basic Democrat, seems to have complicated the matter by introducing the story about Muhammad Aslam surrendering the weapon and the cartridges to the Sub‑Inspector of Police. The Investigating Officer himself did not say so. He stated that both the appellants had taken asylum in a Kotha at the Dara trains Muhammad and surrendered to him. He is definite that the pistol P. 5 containing the crime empty P. 6 and the live cartridge P. 7 were produced before him by Hakim Muhammad Saeed vide memo. P. C. The circumstance that Khushi Muhammad was also found in the same Kotha in which Muhammad Aslam had taken refuge, confirms that he was also concerned in the commission of the offence.

13. The defence tried to make capital out of the omission on the part of the prosecution to call certain persons as witnesses. Suffice it to say that the prosecution was not bound to examine each and every person named as a witness. The defence never insisted on the production of those witnesses fort the purpose of cross‑examination whom the prosecution decided to drop.

14. On a careful consideration of the facts and the circumstances, we find that the prosecution succeeded in bringing. home the guilt to the appellants who seem to have been rightly convicted and properly punished by the trial Court. We confirm the sentences of death passed upon the appellants and proceed to dismiss the appeal. Appeal dismissed. Death sentence confirmed.