1976 PLP 185 (SCMR)

ANWARUL HAQ, J.‑The appellant Muhammad Din. alias Manna was tried alongwith his three brothers Nazir, Noora and Bashir (since dead) and one Nazir Machhi alias Teddy by the Additional Sessions Judge, Lahore, for the murder of their co‑villager Khushi Muhammad and his brother Niamet. '3 `ire other four were acquitted, but the appellant was convicted and sentenced to death on each count. His convictions and sentences have been confirmed by a Division Bench of the Lahore High Court by its order dated 11‑1‑1973. The occurrence took place at about 2 p.m. on the 20th of January 1966 in village Palarah, twelve miles from Police Station, Chung in the Lahore District. The first information report was made at 3‑45 p.m. by Veero (P. W. 9), an uncle of the deceased, at village Mal, two miles from the spot, where S.

1. Bashir Hussain (P. W. 12) happened to be present. The accused of the appellant were arrested on the 22nd of January 1966, but the appellant could not be found until the 19th of May 1967, on which date ire was arrested by A. S. I. Back‑at Ali (P. W. 13) from village Sundar in the area of Police Station Manga. According to the first information report, lodged by Veero, the motive for the crime was that a sister of the appellant, by the name of Mst. Naziran, had repeatedly eloped with deceased Khushi Muhammad, and every time she was restored to her parents through the good offices of the village Panchayat. Themafter khushi Muhammad left the village and took up residence at Okara. He returned to the village alongwith his mother on the eve of the Eid as to spend the Eid with his family. At about Dhali Peshiwela i.e., about 2 p.m. Veero, alongwith Rahmat Ali (D. W. 1) and Muhammad (P, W. 10) was present at his Bailna, where sugar‑cane was crushed. He saw Khushi Muhammad and his brother Niamet coming towards; the Bailna. When they had reached near the wheat field of one Muhammad Hussain Jat, the appellant suddenly emerged from the sugar cane field of one Siraj Din, and fired with a pistol at Khushi Muhammad. After being hit Khushi Muhammad fell down at some distance. Niamet pursued the appellant, whereupon the latter fired twice Niamet on receiving these shot, Niamet also fell down in the watercourse. Veero, Rehmat Ali and Nek Muhammad rushed to the spot, but did not go near the appellant owing to fear of his threats. The appellant then managed to escape from the spot. Post‑mortem examination of the dead bodies of the two brothers revealed that there was one bullet wound of entrance on the front of the right side of chest of Khushi Muhammad, with the surrounding skin scorched and blackened. There was a corresponding exit wound as well. Niamet was found to have received two entrance wounds of bullets, one of which was on the front of the right side of the chest, and the other was on the right temporal area about one inch above tire right ear. There was a wound of exit corresponding to the first injury. The skin surrounding both the wounds of entrance was scorched and blackened. At the trial, the prosecution placed reliance on the ocular testimony of Veero (P. W. 9), Nek Muhammad (P. W. 10) and one Fateh Muhammad (P. W. 11). This witness had not been named by Veero in the first information report, but he, nevertheless, deposed at the trial that he bad also witnessed the incident. He is a Khalozad cousin of tire two deceased brothers. Rehmat Ali, who has been named as an eye‑witness in the first information report, was given up the Public Prosecutor as having been won over. He was summoned by the defence, and deposed that he had not seen the actual killing. Although in the first information report Veero had named only the present appellant as the sole culprit, at the trial he changed his position, and stated that the appellant was standing on one side of the Khal whereas the other four accused, variously armed, were standing on the other side of the Khal. Nek Muhammad and Fatah Muhammad supported this new version of the incident even going to the extent of attributing a Lalkara to co‑accused Bashir. The appellant and his co‑accused pleaded not guilty at the trial. The appellant denied that he had absconded from the village. He asserted that he was, in fact, living in a village called Babakwal in the district of Sheikhupura and was wrested from there in connection with a carte under section 13 of the Arms Ordinance, 1965. He further stated that he had been falsely involved in this case at the instance of one Aziz Din on the suspicion that he had illicit connections with Aziz Din's daughter Mst. Mukhtaran. The learned trial Judge acquitted the other four accused mainly on the ground that they had not been mentioned at all in the first information report made by Veero, but be felt that he could rely on the ocular account in so far as it implicated the present appellant. ale found corroboration in the absconsion of the appellant for a period nearly seventeen months after the occurrence file rejected the evidence of Rehmat Ali (D. W. 1) as being not worthy of credit, as this witness had supported tile prosecution during the investigation, but was latter on won over by the defence. In the High Court, the learned Judges decided to discard the testimony of Fateh Muhammad (P. W. 11) on tire ground that he was closely related to the deceased, and his nacre had been introduced by the prosecution at a latter stage as an eye‑witness. The also held that it would not be safe to place reliance on the evidence of Nek Muhammad (P. W. 10), for the reason that he had stated before the committing Court that when he reached the place of occurrence he found many persons present there including Veero, and that on his inquiry Veero told him that tire two deceased had been murdered. The learned Judges took the view that this witness could not have made this kind of inquiry from the first informant, if he had himself when the incident. However. they placed full reliance on the ocular account given by Veero, for the reason that he had no previous enmity with tire appellant and he bad lost no time in making the first information against the appellant. They explained away the subsequent involvement of the other four accused by saying that "it is our experience at the Bar and the Bench that during the course of investigation the Thanedar, in his wisdom evolves a story and prepares the case accordingly and the witnesses' in the case are left with no option but to toe the line and support the version prepared by the Investigating Officer . we feel that in the circumstances of this case the introduction of the new facts by Veero (P. W. 9) at the trial could, at the most, be termed as exaggeration." they further observed that the part attributed by Veero to the appellant Muhammad Din was supported by the motive and the medical evidence, as well as the absconsion of the appellant after the Incident. Finding no mitigating circumstances in favour of the appellant they confirmed the death sentence on both the counts. Leave to appeal was granted to examine the contentions that the convictions recorded against the appellant were not consistent with the safe administration of criminal justice, as the High Court had failed to attach much significance to the medical departure made by the prosecution from the original version of the incident as given in the first information report, that it had also not considered the effect of the failure of Rehmat Ali to support the prosecution, nor the effect of the relationship of Veero and Nek Muhammad with the two deceased persons. We have now perused the entire evidence brought on the record and lave also considered at length the various submissions made on behalf of the appellant by Ch. Fazal‑i‑Haq. We are of the view that the appellant has been rightly convicted on both the counts. It is true that Veero is closely related to the two deceased Khushi Muhammad and Niamet being their paternal uncle, but it is also true that he had no previous enimity with the appellant, and no motive whatsoever to implicate him falsely in these murders. The incident has admittedly taken place within a close range of his Bailna where his presence at that time of the day would be natural in the ordinary course of events. It is also in evidence that there was no obstruction between his Bailna and the place of incident, and, therefore, we have no hesitation in accepting his assertion that he saw the incident. This fact is also confirmed by the promptitude with which he reported the matter to A. S. I. Bashir Hussain (P. W. 12) in the adjoining village Mal. In these circumstances, the Courts below were right in accepting she presence of Veero at or near the spot; but after scrutinising his evidence carefully in view of the new facts introduced by him at the trial, the learned trial Judge was right in rejecting the accusation made by Veero against other four persons whose names he had not mentioned in the first information report. it bas been repeatedly observed by the Superior Courts in this country that, keeping in view the peculiar social conditions obtaining here, it is the duty of the Court to sift the grain from the chaff, and the entire evidence of a witness cannot be rejected simply on the ground that he may have exaggerated the part played by some of the accused persons or falsely implicated some of them. Reading the statement made by this witness at the trial, we find that the true position which emerges is that his attention was drawn to the incident on hearing the first shot by which Khushi Muhammad had been inured, and then within his sight the appellant bad fired two shots, at Niamet deceased. We also consider that it is indeed possible that the other four accused may also have been present on the other side of the Khal, as alleged by Veero and the other witnesses, for otherwise it may not have been possible for the appellant to kill two brothers in this manner, but we are not called upon to pursue this matter any further fort the reason that the other four have been acquitted, and there is no challenge to that acquittal. After a detailed perusal of the lengthy cross‑examination to which Veero was‑ subjected, we are satisfied that the Courts below have rightly placed reliance on the evidence of Veero in so far as it implicates the present appellant in both the murders. It was submitted by the learned counsel for the appellant that the ocular account given by Veero is falsified by the medical evidence, inasmuch as scorching was found around the entrance wounds on both the dead bodies, thus showing that shots were fired at the two deceased from a very close range. We do not see any merit in this contention for the reason that Veero had not specified the distance from which the appellant shot at the two brothers. As regards the firing on Khushi Muhammad, he only saw injured man running after he had been shot, and later he saw the appellant firing twice at Niamet. However, in neither of the two cases he has indicated the distance from which the shots were fired. We consider therefore, that there is no essential contradiction between the medical evidence and the ocular account given by Veero. It was next contended by Ch. Fazal‑i‑Haq that the prosecution bad failed to prove that there was any sugar‑cane crop near the spot in which the appellant could conceal himself before launching the assault on Khushi Muhammad. In support of this assertion the learned counsel drew our attention to the statements made in cross‑examination by Draftsman Virasat Ali (P. W. 4). We find. however, that these statements stand belied by the plan Exh. P. B./1 which this witness had himself prepared, and proved at the trial, stating that it was correct according to the facts prevailing at the spot. In this plan he has clearly shown by symbols the sugar‑cane crop standing at the spot from where the appellant is supposed to have emerged at the time of the assault. By similar symbols he has also shown standing auger‑cane crop on the eastern aide of the plan. In the presence of this evidence, it is not possible to accept the contention that the appellant could not have concealed himself in the sugar‑cane crop before the incident. Once Veero's evidence is accepted, there is no difficulty in maintaining the convictions recorded against the appellant. However, this evidence does not stand alone. It is corroborated by the fact that the appellant absconded from the village for nearly seventeen months. The explanation given by him has been rightly rejected by the Courts below, as It was not s supported by any evidence on the record. The absconsion of the appellant was proved by A. S. I. Barkat Ali (P. W. 13) who bad been entrusted with the task of apprehending the appellant. It also finds mention in the opening paragraph of the commitment order recorded by the Magistrate, in which the appellant has been described as an absconder during the commitment proceedings. We are, therefore, satisfied that ibis circumstance has been rightly used as providing corroboration of the ocular account given by Veero. This Court has already held in Gul Hassan v. State (P.L.D1969SC89) and Syed Mushtaq Ahmad v. Siddiqullah (PLD1975SC106) that absconsion can be used as a corroborative circumstance. Coming now to the question of sentence, we find that there is merit in the submission made by Ch. Fazal‑i‑Haq that the murder of Khushi Muhammad was motivated by a sense of family honour, inasmuch as the sister of the appellant had repeatedly eloped with this man. In Fazal Khan v. State (PLD1964SC54) Ghulam Rasul v. Ali Akbar (PLD1965SC363), Muhammad Ramzan v. The State (PLD1966SC129) as well as in Ajun Shah v. The State (PLD1967SC185) it was observed that questions of family honour, touching the females of a family, were of almost overpower ing importance to the agricultural tribes of the western regions and they feel bound in duty to go to very great lengths to vindicate that honour. It was held that this was a circumstance of which notice could appropri ately be taken by the Courts in the matter of awarding sentence. In all these cases, sentence of transportation for life was considered as being appropriate. Following these precedents we are inclined to the view that in regard to the murder of Khushi Muhammad, the; sentence of death was not called for. We would accordingly set it aside and instead substitute the sentence of imprisonment for life. However, no such considerations are available in respect of the murder of Niamet. This man had not done anything in derogation of the honour of the appellant s family nor had he given any offence to the appellant at the time of the incident. On the evidence produced in this case, it is clear that both the deceased brothers were unarmed and were proceeding peacefully to the Badna of their uncle Veero. In these circumstances, the appellant had no excuse whatsoever cause the death of Niamet, and here are no mitigating circumstances in his favour in this behalf. We could accordingly uphold the sentence of death aw fed to the appellant on this count. The appeal is accordingly dismissed except to the extent that as regards the murder of Khushi Muhammad the sentence of death is sub3titut ed by that of imprisonment for life. It shall take effect if the sentence of death awarded on the other count is not executed. Appeal dismissed.