1997 P Cr (PLP)

RAJA MUHAMMAD KHURSHID, J.

The appellants namely Riaz Muhammad Khan and Ata Muhammad Khan were convicted under section 302/34, P.P.C. and sentenced to imprisonment for life and death respectively plus a fine of Rs.25,000 or in default to suffer R.I. for 4 years each. Fifty percent of the fine if realised was to be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C. vide judgment, dated 10-4-1991 passed by Mr. Azhar Hafeez Sheikh, the then learned Sessions Judge, Mianwali.

2. The learned trial Court made Murder Reference No. 175 of 1991 for the confirmation of death sentence awarded to aforesaid Ata Muhammad Khan accused whereas complainant Munir Ahmad Khan instituted Criminal Revision No.750 of 1991 for enhancement of sentence of Riaz Muhammad Khan accused from imprisonment for life to death. A prayer was also made in the revision petition for the enhancement of fine from Rs.25,000 to Rs.50,000 to each one of the accused.

3. Since all the three matters arise out of the same judgment, therefore, those are to be discussed and disposed of vide this common judgment.

4. The brief facts are that a case under section 302/34, P.P.C. was registered against the appellants for an occurrence which took place on 7-6-1989 at 10-00 p.m. in which Amir Ahmad, a brother of the complainant Munir Ahmad was done to death in the presence of complainant, Khalid Mahmood Khan and Sami Ullah Khan P. Ws.

5. The motive for the occurrence was given by the complainant Munir Ahmad. It was alleged by him that on the day of occurrence at about 7-05 p.m., he was returning to his home after making purchases from Esa Khel City. When he reached the street known as Ghamtutu Wali Gali, he was confronted by Riaz Muhammad Khan and Ata Muhammad Khan accused. They started abusing him and also opened an attack upon him. The complainant also returned abuses to the accused persons and also gave them fist and kick blows. In the meanwhile upon noise of the complainant the .P. Ws. namely Khalid Mahmood Khan and Sami Ullah Khan were attracted to the spot and had seen the aforesaid incident. The complainant alongwith his brother Amir Ahmad deceased and the aforesaid P.Ws. were going to the police station to lodge a report about the aforesaid incident that the murder took place at about 10-00 p.m. on the main road near Badminton Club. Both the accused while acting in furtherance of their common intention committed the murder of the deceased. Out of them Ata Muhammad Khan fired from his .12 bore pistol on the Lalkara of Riaz Muhammad Khan thereby causing fatal fire-arm wound at tire chest of the deceased.

6. Another motive for the occurrence was disclosed by the complainant in the F.I.R. The motive was that 2-1/2 years prior to the present occurrence, he (complainant) picked up a row with Riaz Muhammad Khan accused on the payment of some money; that resulted into ineffective firing by the complainant upon the accused Riaz Muhammad Khan, but the matter was later settled between the parties through brotherhood. However, the accused nursed grudge, which ultimately led to the murder of the deceased.

7. The prosecution examined two witnesses including the complainant to prove its case against both the accused. In addition to that recovery of .12 bore pistol P.4 was effected from Ata Muhammad Khan accused. It was allegedly the weapon of offence. The medical evidence was also put in the witness-box to prove that the deceased died on account of fire-arm injuries and that Riaz Muhammad Khan accused had also injuries on his person as detailed by Dr. Aal- e-Rasool P. W.12. Besides examining the Investigating officer, other police officials were also examined, who had dealt with the case property and parcels prepared during the investigation, relating to this case. The draftsman was also examined to prove the site plan pertaining to the place of occurrence and the position existing at the site as shown to him by the eye-witnesses at the time of occurrence.

8. The accused were examined under section 342, Cr.P.C. but they denied to have committed the occurrence and took up the plea that they were falsely implicated in this case on account of enmity with the complainant side. They also tried to make it clear that they had conflicting interests inter se.

9. We have heard the learned counsel for the parties. It is contended by the learned counsel for the appellants that the prosecution has not been able to prove its case beyond any reasonable doubt. In this respect it was alleged that Riaz Muhammad Khan accused was shown empty-handed and had only raised Lalkara. The motive about the occurrence was that he had picked up a row with Munir Ahmad complainant. Had the complainant been present at the spot, he would have been the victim of the assault instead of his deceased brother for whom there was no motive. It was further contended that both the P. Ws. were inimical to the accused persons and they involved them in this case in order to quench thirst of their enmity; that F.I.R. was the result of mutual consultations and deliberations and a false story was cooked up in order to rope the accused persons who had nothing to do with the occurrence; that the complainant side including the deceased was aggressor, who had many enemies having been involved in a number of criminal cases; that due to their highhandedness many persons were aggrieved of their conduct and that some body taking advantage of the deserted place and darkness killed the deceased. Both the accused were involved by the complainant in this case to take revenge from them regarding past enmity.

10. The medical evidence was also allegedly inconsistent and belied the prosecution case; that injuries to the deceased were the result of a single fire, but on the contrary it showed that there were 3 shots fired at the deceased.

11. Lastly it was contended that the motive was not proved and was only invented in order to cook up a false story to involve both the accused in this case. The recovery of weapon of offence from Ata Muhammad Khan was denied on the ground that it was just a fabrication on the part of the police. Even otherwise it carried no value because no empty was collected nor the weapon of offence was sent to Ballistic Expert to find out whether the same was used or not during the occurrence. Advancing the defence version, it was contended that Ata Muhammad Khan accused had taken up the plea that he was arrested by the police and confined in police lock-up at Police Station Paizu, which was at a distance of about 40 miles from Tehsil Lakki Marwat. Even otherwise he was falsely implicated in this case on account of enmity with the complainant side. The other accused Riaz Muhammad Khan also took up the plea that he was made a victim in this case only because of enmity although he never joined hands with Ata Muhammad Khan to kill the deceased. As such, it was urged that both the accused were innocent and that the prosecution case against them was highly doubtful. A' prayer for their acquittal was accordingly made as the case against them was allegedly not proved by the prosecution beyond any shadow of doubt.

12. The learned counsel for the State supported the prosecution case with the plea that two eye-witnesses belonging to the locality were produced. Those witnesses had allegedly no reason to implicate both the accused falsely in this case; that the plea regarding darkness was incorrect as there was an electric bulb near the place of occurrence, which was providing light at the relevant time. The motive was allegedly proved against the accused to mount an attack on the deceased; that the medical evidence was in accord with the ocular account of occurrence given by the eye-witnesses and as such there was no intrinsic inconsistency between the two sets of evidence so as to make the prosecution story doubtful in any manner. The accused Ata Muhammad Khan led to the recovery of weapon of offence i.e. .12 bore pistol P.4, which further linked him with the occurrence as the injuries found on the person of the deceased were caused by fire-arm; that the F.I.R. was promptly lodged i.e. within 20 minutes of the occurrence thereby providing no chance for fabrication or twisting of the actual facts; that story of the prosecution supported by the prompt registration of the case gives truthful colour to the occurrence, which has clearly been supported by the eye-witnesses as stated above. It was, therefore, prayed that the prosecution had proved its case against both the accused and there was no substance in the arguments that they were entitled to the benefit of doubt.

13. We have considered the above arguments addresser' at the Bar. First of all, we would like to deal with the ocular account of occurrence. Munir Ahmad (P.W.9) is the complainant of this case. He is real brother of the deceased. The only instinct on his part would be to name only such persons to be the killers of his brother, who had actually done him to death. Hence there can be no chance that he would involve the innocent persons in this case. It is true that complainant was the only witness regarding the motive of occurrence, which took place 2 or 2-1/2 years back in which he had picked up a row with Riaz Muhammad Khan accused resulting into his ineffective firing upon him. However, the matter did not proceed further because no damage was done due to that firing and it was got settled in the brotherhood. The parties however, lived thereafter without any confrontation till the present occurrence took place. On the day of occurrence both the accused had taken upon the complainant at about 7-00 p.m. in the street known as Ghamtutu Wali Gali and there was exchange of abuses and fist blows etc. in that incident. On the same day at about 10;00 p.m. the unfortunate occurrence resulting into the murder of the deceased took place when the latter was accompanying the complainant to the police station-for reporting the above incident. The injuries on the person of Riaz Muhammad Khan accused showed that he had suffered those injuries 2 or 3 hours before his examination by Dr. Aal-e-Rasool P.W.12 at 7-45 p.m. on' 7-6-1989. This substantially and approximately respond to the incident in which there was quarrel, grappling and exchange of fist blows as stated by the complainant. This corroborates the truthfulness of the motive because there is no plausible explanation of those injuries from the accused side. The question that the prosecution had fabricated the case by stopping the case diary does not appear to be convincing because the F.I.R. was lodged within 20 minutes of the occurrence, which showed that there was no time for such manipulation or consultation to cook up a false story. The prompt lodging of the F.I.R. is itself a corroborating factor of the story given by the eye-witnesses. The name of eye witness namely Khalid Mahmood was mentioned in the F.I.R. as also in the inquest report Exh. P.C., which further corroborates that both the witnesses namely Munir Ahmad and Khalid Mahmood were actually present at the place of occurrence.

14. After coming to the conclusion that both the eye-witnesses were present at the spot, it shall have to be considered whether their evidence should be relied upon in order to pass judgment against the accused persons. It is contended from the defence side that electric connection of the street light of Tehsil Colony up to the Civil Rest House was disconnected on 12-1-1989 for the non-payment of bills and that energy had not been restored, pp account of the outstanding bills till the occurrence took place. It may be pointed out that the Badminton Club where the occurrence took place is not shown to be a part of the Tehsil Colony or the Civil Rest House, Isa Khel, although service line of the electricity may be passing in front of the Badminton Club, but it cannot be safely said nor it had been brought on record that in fact there was no light at the place of occurrence. On the contrary, the site plan Exh. P.I. clearly showed an electric pole about 59 feet away from the place of murder, having a bulb emitting rays of light. This shows that the plea of the defence that there was not electric light near the place of occurrence is falsified from the documentary evidence particularly when the defence evidence examined at the trial on that point is not of satisfactory nature. The service line may have been disconnected from the Tehsil Colony up to the Civil Rest House, but there may be some other line to provide light to the Badminton Club and its vicinity. The fact that a burning bulb was shown near the place of occurrence in the site plan would itself show that the prosecution story is not only truthful but reasonably convincing that there was electric light near the place of murder. Assuming for the sake of argument that there was darkness at the spot as alleged by the defence, even then the possibility of recognizing the accused from their voice or Lalkara cannot be ruled out as they were known to P.Ws. being from the same village. As such there can be no doubt regarding the identity of the accused in this case nor any such point was ever taken at the trial stage. Even otherwise it deserves no merit because an electric bulb was providing light near the place of occurrence. The parties were known to each other. They were well-known to each other and as such could be easily recognized through their voice. Hence there is obviously no possibility of any kind of doubt about the identity of accused by the P.Ws. during the occurrence.

15. There is some evidence of criminal litigation against Munir Ahmad complainant and other witnesses namely Khalid Mahmood. However, these involvements are not of such nature, which would compel Munir Ahmad complainant to falsely implicate both the accused in this case for the murder of his brother and let the actual offenders escape scot free. It is true that Munir Ahmad complainant was involved in certain criminal cases, but was acquitted in appeal. Likewise involvement of Khalid Mahmood P.W. against Ata Muhammad Khan accused etc. would not show that the present occurrence was a cooked up affair. The accused Ata Muhammad Khan tried to invent a story by saying that he was held up and detained at the Police Station Paizu, District Bannu. This appears to be a cock and bull story. It was never given as first version before the Investigating Officer, but was introduced at the trial. Even otherwise it is not credible because his arrest was never reported nor any order of a Court was obtained in the matter. The record of the police station shows that the pages of the daily diary containing entry regarding arrest of the aforesaid accused were detached and pinned with other pages instead of being at their regular place. Even Report No.7 of the daily diary dated 8-6-1989 was not signed by the S.H.O. of the police station concerned. The S.H.O., Police Station Paizu (Naik Nawaz) admitted that he had to face an inquiry regarding entry in the daily diary of the Police Station, Paizu in respect of arrest of Ata Muhammad Khan accused. He stated that he was suspended and was still under suspension when he appeared as a witness. He also admitted that inquiry against him was initiated at the complaint of the complainant patty. This makes the plea of alibi highly doubtful and appears to be an arranged affair with the police. It is only for that reason that even the Report No.7 was not signed by the S.H.O. concerned whereby Ata Muhammad Khan accused was allegedly released on bail. Likewise is the story about disconnection of the service line of the Badminton Club etc, as stated above, though there was a bulb giving light near the place of occurrence. Similarly the report of Chairman, Zakat and Ushr Committee is also of no avail nor it is likely to affect the evidentiary value of any of the eye-witnesses because they would not tell lie to screen the original offenders qua the present accused particularly when one of the witnesses is the real brother of the deceased. Conversely it becomes evident that the prosecution version was supported by the eye-witnesses in a natural manner. The medical evidence also supports the eye-witnesses regarding fire made by Ata Muhammad Khan accused upon the deceased. Both the witnesses have stated that Riaz Muhammad Khan had raised Lalkara to teach a lesson for abusing and beating him whereupon Ata Muhammad Khan accused fired at the deceased Amir Ahmad causing him fatal injury.

16. The learned counsel for the defence had contended that nature and number of injuries would disclose that injuries Nos. l to 3 were the result of one shot whereas injuries Nos.4 to 7 were cased by another shot and injury No.8 was yet the result of 3rd shot. It was allegedly so because injuries on the person of the deceased were said to be diagonally opposed, having been noticed on front, back and side ways of his body. Such injuries could not possibly be caused with a single shot. In this connection a reference was made to the statement of Dr. Zafar Ullah Khan P.W.1, who was of the opinion that injuries Nos.4 to 6 could be caused as a result of one fire and rest of them by another fire if the deceased was standing still in anatomical position at the time of firing upon him. It was pointed out that even according to the Medical Officer, injuries were caused at least by 2 shots whereas according to the eye-witnesses only one shot was made. We have given our careful consideration to this aspect of the medical evidence. First of all, we must point out that tire was made from some distance at the deceased and due to dispersal of pallets, the deceased suffered multiple injuries on different parts of his body. The injuries were admittedly found on the front, back and other extremities of his body. However, that would not mean that those were caused by 3 different shots as allegedly by the learned counsel for the defence or by 2 shots as stated by the Medical Officer. The opinion of the Medical Officer was conditional to the posture of the deceased at relevant time. He was of the view that injuries with 2 shots were possible only if the deceased was standing still in anatomical position. It is obvious that a living object cannot stand still like a statute, muchless on such-like occasion. Even otherwise opinion of an expert cannot be safely equated with the evidence of a person, who had actually seen the event. It is said, seeing is believing. As such, due importance and weightage should be given to the testimony of an eye witness vis-a-vis opinion of an expert. But in this case, there is no intrinsic or credible contradiction between the medical and the ocular evidence in respect of the single shot qua the injuries found on the person of the deceased, which could be the result of one shot due to body movement. As such the medical evidence supports the eye-witnesses on this point.

17. The presence of eye-witnesses on the spot cannot be doubted as their names were mentioned in the promptly lodged F.I.R., thereby ruling out the possibility of their association with the case at some later stage.

18. The recovery of weapon of offence i.e. .12 bore pistol P.4 cannot be used as a corroborative piece of evidence because no empty was recovered or sent to the Ballistic Expert so as to show that it was wedded to the crime weapon. However, there is sufficient evidence to show that prosecution had proved its case beyond any reasonable doubt against both the accused, as detailed above. The defence evidence has also been discussed and discarded by us. The offence of murder against both the accused is, therefore, proved and they have been rightly convicted under section 302/34, P.P.C. by the learned I trial Court as there was a community of purpose and they had acted in furtherance of their common intention as would be clear from the incident, which took place at about 7-00 p.m. before the murder of the deceased at 10-00 p. m.

19. Now the question of sentence would arise. The sentence of imprisonment for life awarded to Riaz Muhammad Khan accused by the learned trial Court is upheld and it does not call for any interference. The appeal to his extent is dismissed in toto. In case of Ata Muhammad Khan it will be clear that the original incident which occurred at 7-00' p.m. is shrouded in mystery as it has not been shown as to how it actually started. The confrontation of the parties was also incidental. In such a situation and keeping all the facts in view it will suffice the ends of justice if the sentence of Ata Muhammad Khan accused is reduced from the sentence of death to the sentence of imprisonment for life. It is accordingly reduced to the imprisonment for life, but the sentence of fine as awarded to him by the learned trial Court is upheld. The benefit of section 382-B, Cr.P.C. shall be available to both the accused. The appeal of Ata Muhammad Khan is also dismissed with the above modification in sentence.

20. The Criminal Revision Petition No.750 of 1991 being without merit is dismissed as a consequence of the above findings.

21. The death sentence awarded to Ata Muhammad Khan is not confirmed The Murder Reference No. 175 of 1991 is accordingly answered. N.H.Q./R-24/L Order accordingly