1983 P Cr (PLP)

7. Malku appellant and his acquitted co‑accused, Shahu, Bati and Mammun, were arrested by Muhammad Ashraf, P. W. 12, on the 13th November, 1979. Zafar and Murid, appellants, were arrested on the 16th November, 1979 by the same Police Officer. Murid's arrest took place on the 3rd December, 1979. At the time of arrest Malku produced unlicensed single barrelled 12 bore gun, Exh. P.4, and five 12 bore live cartridges, Exh. P.51 1‑5, which were taken possession of after having been covered into a sealed parcel by Muhammad Ashraf, P. W. 12, vide memorandum Exh. P. D, which was attested by Bahadur, P. W. 7 and Khan Muhammad. When Zafar and Murid were arrested they produced before Muhammad Ashraf P. W. 12, unlicensed single barrelled 12 bore gun, Exh. P. 6 with three live cartridges Exh. P. 7/1‑3, and unlicensed single barrelled 12 bore gun, Exh. P. 8, with four live cartridge, Exh. P. 911‑4, respectively, and they were taken possession of by Muhammad Ashraf, P. W. 12, vide 'memoranda Exhs. P. E. and P. F. which bear the attestation of Falak Sher, P. W. 8 and Ata Muhammad.

8. Doctor Mumtaz Ahmad, Senior Medical Officer, District head quarters Hospital, Sargodha, P. W. 1, performed autopsy on the dead body of Muhammad Khan deceased on the 19th October, 1979 at 7‑30 a. m., and found the following injuries thereon :‑ (1) The anterior 3/4th portion of skull was blown out with small portion of skull remaining on the back. Brain matter was not in the skull cavity. Half of the left eye was blown out and skin around the remaining portion was charred. One metallic piece was recovered from the skull cavity. (2)A firearm wound of entry 21/2cm x1 cm on the back of left side of neck with wound of exit 4 cm x 1/2 cm on the left side of neck. (3) A firearm wound of entry 2cm. x 11/2 cm on left side of back just above the buttock J cm from vertebral column. 3rd lumber vertebra was fractured. (4) A firearm graze wound ,5 cm x 1 cm on left scrotum. ‑ (5) A firearm graze wound of entry 1/2 cm x '1/2 cm on the inner side of right ankle; a metallic piece was recovered. (6) A firearm graze wound 2 cm x 1 /2 cm on left groin. (7) A firearm graze wound 2J cm x l cm on outer side of ring finger. Holes were present on the shirt corresponding to injuries Nos. 2 and z and two metallic pieces and one cork piece were recovered from the abdomen corresponding to injury No.3 Stomach contained two ounces of food. Both large and small inter. tines contained faecal matter. There was two ounces of urine in the bladder. All the injuries were ante‑mortem and had been caused with firearm. The first three injuries were of grievous nature while the others were simple. Injuries Nos. 1, 2 and 3 were individually as well as collectively sufficient to cause death in the ordinary course of nature. Death in the opinion of the Medical Officer occurred instantaneously due to shock and haemorrhage and injury to brain. Post‑mortem examination was conducted within 18 to 24 hours after death. Exh. P. A. is the copy of the post‑mortem examination report and Exh. PA/1 is the diagrammatic sketch indicating the location of injuries.

9. The appellants 'and their acquitted co‑accused denied that Mst. Skina had been abducted by Ahmad Khan, brother of the deceased, or that the deceased, on being approached by the appellants, had promised to return her. They denied any previous attempt to murder the deceased and Ahmad Khan and described the cases under section 307 of the Pakistan Penal Code against them to be false. They denied point black their commission of crime and disowned the alleged recoveries of guns and ammunition. They stated that they had been falsely implicated due to enmity. Barring the production, of his secondary school examination certificate Exh. D. C. indicating his age of about 17_ years at the time of occurrence by Zafar appellant no evidence in defence .was adduced.

10. The learned trial Judge believed the motive set up the prosecution to be true. He doubted the participation of Shahu, Bati and Mammun as they were shown to be present .at some distance raising lalkara and had not caused a single injury. Nadir had no kinship with the appellants. It was proved that he had enmity with the complainant party on a number of counts recounted by the learned trial Judge in his judgment Therefore, it appeared to him that the complainant party had strong motive for falsely implicating him. The injury he was alleged to have caused at close range did not have blackened edges. He was considered to have no motive to join the other accused in the assault upon the deceased. In these circum stances the learned Judge took his involvement in the case to be malicious and false. Consequently giving the benefit of doubt to Nadir, Shahu, Bati and Mammun be acquitted them. He took the appellants to be responsible for murdering the deceased. However, feeling that the accused had acted on provocation received as a result of abduction of Mst. Sakina and in order to vindicate their family honour to punish the person at fault and his kith and kin the learned Judge awarded the appellants punishment of imprisonment for life in place of capital sentence.

11. The alleged recoveries of the guns, Exhs. P. 4, P. 6. and P. 8, from the appellants are of little consequence because the empty cartridges which Ghulam Jilani, P. W. 11, stated had been collected by the police from the spot were not shown to have been got tested and matched with these guns.

12. The contention of the learned counsel for the appellants that the deceased had been murdered early in the morning while he was asleep, that none had witnessed his killing and that the eye‑witnesses, Ahmad Sher, P. W. 9, Akhtar, P. W. 10, and Ghulam Jilani, P. W. 11, were all made up is difficult to be accepted at face value. The deceased was not expected to sleep in the land of another person. He had turn of water commencing at 7‑30 a. m., and the sun ‑rose at about 6.00 a m. that day. Therefore, he would have gone to his land after sunrise. The reports of gun‑fires must have attracted the attention of many a person to the spot. In these circumstances it could not _ be dubbed as an un witnessed occurrence. At least Akhtar P. W. 10. and Ghulam Jilani, P. W. I1 are not related to the deceased. The mere fact that Akhtar, l P. W. 10 was co‑accused with the deceased in another case can hardly be a reason for his becoming false witness against the appellants with whom he had no animosity. It was a daylight murder and as the accused had been known to the complainant party there could be no difficulty in identifying them. The complainant party would not have left out anyone else, whether or not he happened to ‑be their enemy, if he had been associated with the murder of the deceased. Being members of the village society where one is prone to ‑go to any length to get ~ back one's abducted, girl, the accused‑ party could be taken 'to have been moved by the intransigence of the complainant party to seek revenge of Mst. Sakina's abduction and non‑restoration.

13. However; the learned counsel's submission that the complainant party, as is generally done, tried to enlarge the net to entrap some innocent persons and exaggerated the ‑part played‑by the accused needs consideration. He pointed out that ocular testimony of the prosecution witnesses did not synchronise with the result of the post‑mortem examination of the dead body of the deceased. No doubt the statements of Akhtar P. W. 10 and Ghulam Jilani, P. W. 11: to the effect that the deceased had been writing when Nadir, acquitted accused, had fired shot at his neck cannot be accepted at face value because after having received injuries Nos. 1; 3 and 5 on the head; in the neck and on the ankle, listed in the post‑mortem examination report and para. 8 of this judgment, he could have hardly been left with consciousness to make any bodily movement. The learned trial Judge has rightly discarded it as untrue improvement. The description of injury No. 2 indicates that the shot hit the, neck of the deceased from behind which means that he received the. shot when he was standing because while lying prostrate on the ground the shot fired from above could not have made entry at the back of neck: This was one of the reasons prevailing with the learned trial Judge to disbelieve the testimony of the prosecution wit nesses in so far as it attributed to Nadir firing Of shot hitting, the neck of the deceased while the former was standing and the latter was lying on the ground on his back. According to the Medical Officer injuries Nos. 4 and 6 could have resulted by a single shot and injury No. 7 could have been caused by an isolated pellet meaning there by that it was riot the result of an independent shot. Making allowance for time spent in reloading a single barrelled gun, like the one with which the appellants were said to be armed, and keeping in view the nature of p injuries Nos. 2, 3 and 5, which the deceased in all probability received before falling to the ground, it may be concluded that the shots causing these injuries were fired by more than one person with preloaded guns.

14. There appears legitimate doubt regarding participation of Zafar in the commission of crime. He was a lad of hardly seventeen years and had recently passed secondary school certificate examination. Norm all his relations would not have liked him, placed as he was in the enviable position of being a marticulate in the society dominated by illiterates, to involve him in the risky adventure. Two persons could very well have done the job of causing the injuries received by the deceased. On the other hand, the complainant party would have very well liked to implicate such a qualified person belonging to the accused party. In these circumstances his commission .of offence cannot be accepted with an exact degree of certitude. He is accordingly given the benefit of doubt, his appeal is accepted and he is acquitted of the charge levelled against him. His conviction and the sentence awarded to him are set aside. He shall be set at liberty forthwith if he is not required to be detained in any other case.

15. The testimony of the eye‑witnesses in so far as it relates to the firing of fatal shots by Malku and Murid at the deceased cannot, for reasons explained in para. 12 of this judment, be altogether brushed aside. The finding of the learned Sessions Judge touching their guilt is endorsed. They have already been given the concession of lesser penalty of imprisonment for life. The period of their pre‑trial detention will be adjusted against the term of their imprisonment under section 382‑B of the Code of Criminal Procedure with these observations their appeal stands dismissed. M. A. K. Order accordingly.