1982 PLP 722 (SCMR)

2. The facts giving rise to the case briefly, are that Mansab Khan petitioner was tried alongwith Muhammad Ashraf, for the murder of Ghulam Muhammad, by the Additional Sessions Judge, Sargodha who by his judgment dated 18‑1‑1978, convicted the two .accused under section 302, P. P. C. He sentenced Mansab Khan to death and a fine of Rs. 2,000 or in default one year's R. I., while Muhammad Ashraf was sentenced to imprisonment for life or in default to further, undergo one year's R. I. Both of them filed appeals against their convictions and sentences. The case was also referred to the High Court for confirmation of the death sentence to Mansab Khan petitioner. The High Court accepted the appeal of Muhammad Ashraf and acquitted him vide the impugned judgment but dismissed that of Mansab Khan petitioner and confirmed his death sentence. At the same time it reduced his sentence of fine under section 545, Cr. P. C. to Rs. 500 or in default thereof to further undergo R. I. for six months, but directed to pay a sum of Rs. 5,000 as compensation to the heirs of the deceased. Hence the present petition by Mansab Khan.

3. The occurrence took place on the 27th of October, 1975 at Dopehrwela in Dhok Kawad, Police Station Gunjial, District Sargodha. The matter was reported to the police by Sardar Ali (P. W. 7), Muhammad Raza A. S. I. (P. W. 10) at Bus Stand Ukhlimohla at a distance of 18‑19 miles from the place of occurrence where he happened to be present at that time. He recorded Sardar Ali's statement at 8 p. m. The formal F.I.R. (Exh. P. D.) was subsequently recorded on the basis of the above‑noted statement at the Police Station.

4. The prosecution case, according to the F. I. R., is that at Dopehrwela on the fateful day Sardar Ali (P. W. 7), Falak Sher (P. W. 8) and Ghulam Muhammad (deceased) were grazing their cattles in a hill torrent known as Sarakha in the area of Dhoke Kowad, when suddenly both the afore mentioned accused appeared on the scene armed with guns. Muhammad Ashraf (acquitted accused) raised a lalkara at Ghulam Muhammad deceased saying that he would not be spared ; whereafter Mansab Khan fired at Ghulam Muhammad, hitting him on the right side of the chest. Ghulam Muhammad deceased fell down on the ground and died at the spot and both the accused fled away with their guns. The motive for the offence stated is that Mansab Khan and Muhammad Ashraf aforesaid had constructed a Khal on the village common land (Shamlatdeb) for bringing water from the chashma. Two/three months prior to the occurrence the accused took forcible possession of this land. Ghulam Muhammad (deceased) and his brother Mian Khan (deceased) told them to vacate the said land. On this account the accused became hostile towards them. At Peshiwela, a day prior to the occurrence a buffalo belonging to Ghulam Muhammad, deceased, trespassed into the Bajra crop of Mansab Khan (petitioner). He complained about it to Ghulam Muhammad which led to exchange of abuses between them.. Mansab Khan petitioner left the place, threatening the deceased with dire consequences. According to the prosecution this led to the incident in which Ghulam Muhammad was murdered by Mansab Khan, petitioner, and his co‑accused.

5. After recording the F. I. R., the A, S. I. went to the spot, prepared the injury statement and the inquest report ; sent the dead body for post mortem examination whereafter he collected blood‑stained earth from the spot. He then looked for the two accused but found them missing. Mansab Khan was arrested after about 7 weeks. After the arrest of the accused, the Investigating Officer recovered one ' 12 bore gun from each of the accused but it was not sent to the Forensic Expert and cannot be therefore said to have connected with the offence in question.

6. At the trial the prosecution produced in support of its case, two witnesses namely Sardar Ali P. W. 7 (brother's son of the deceased) and Falak Sher P. W. 8 (paternal‑cousin of the deceased). It also relied on the aforementioned motive and the medical evidence, according to which the deceased had been hit by fire‑arm in the chest. The accused denied their guilt and pleaded innocence. They stated that they had been involved due to enmity. However, they did not produce any defence witnesses in support of their case.

7. As already mentioned the Trial Court believed the prosecution evidence with regard to both the accused, while the High Court acquitted Muhammad Ashraf giving him the benefit of doubt.

8. We have heard the learned counsel for the petitioner at length and have gone through the evidence on the record and the relevant portions of the judgments of the Courts below with his help. He urged that the learned courts below had not appraised the evidence correctly. He contended, firstly, that it was an un-witnessed occurrence but he was unable to advance any cogent arguments in support of this contention. He contended next that, in any case, the two eye‑witnesses were closely related to Ghulam Muhammad deceased, therefore, they should not be relied upon without any independent corroboration. He also urged that the motive as alleged by the prosecution is too feeble to have induced the petitioner and his co-accused to kill Ghulam Muhammad and his brother Mian Muhammad (who is deceased in the second murder case for which Mansab Khan was tried separately). The learned counsel, however, admitted that both eye‑witnesses are also closely related to Mansab Khan petitioner. Falak Sher (P. W. 8), who is the paternal‑cousin of the deceased, is also maternal‑cousin of Mansab Khan petitioner. Consequently it is evident that Sardar Ali (P. W. 7) who is real nephew (brother's son of the deceased) is also closely related to Mansab Khan petitioner. The learned counsel for the petitioner vehemently contended that the motive as alleged by the prosecution does not disclose any deep hostility between the parties and is too weak to furnish a reason for the petitioner and his co‑accused to murder the deceased. If that be so, then it is equally surprising as to why they should have spared the real culprits and named their own close relative for firing the fatal shot at the deceased. For the same reason, we feel that there is no force in the contention that although the above‑named two eye‑witnesses had not witnessed the occurrence at all, yet they have chosen their own relative Mansab Khan to be named as the murderer.

9. No doubt, there is no independent corroboratory evidence available in the present case but the learned counsel has not been able to point out any inconsistency or infirmity in the testimony of the eye‑witnesses nor ha he advanced any convincing reason as to why Mansab Khan petitioner ha been substituted by his own near relatives for the real culprit. Having gone through their testimony and considering all the relevant factors, we are o the view that Sardar Ali (P. W. 7) and Falak Sher (P. W. 8) are truthful witnesses and their testimony can be relied upon without any corroborator evidence. It may be mentioned that although there is no corroboratory evidence available in the shape of some incriminating recovery connecting the accused with the crime yet the story as given by them is supported by the medical evidence and the evidence of motive. As already mentioned the two eye‑witnesses, who are very closely related to the accused‑petitioner, have not been shown to have any serious animosity or hostility against them and the learned counsel for the petitioner has not been able to show any infirmity or inconsistency in their testimony. Having considered these and all other relevant factors we feel that the learned Courts below were justified in placing reliance on the testimony of these two eye‑witnesses. We are of the view that the prosecution case against Mansab Khan petitioner has been g proved beyond reasonable doubt. The High Court was, therefore, justified! in maintaining his conviction.

10. The learned counsel then prayed for reduction in the sentence of Mansab Khan petitioner from death to that imprisonment for life. In support of this plea he contended, firstly, that the motive as alleged was not so serious as to have induced the petitioner and his co‑accused to kill the deceased. From this he wants us to infer that the real motive has been suppressed by the prosecution and, as such, the petitioner should be given a lesser sentence. In the first place the motive of the crime alleged in this case could result in the commission of murder ; secondly no suggestion whatso ever had been made by the defence to the eye‑witnesses during the trial that anything else had happened before the occurrence which had given rise to such circumstances as would entitle the petitioner to the lesser sentence for the murder committed by him. The learned counsel contended next that the trial Court while awarding the sentence of death had taken into account the fact that within a few house of this murder Mansab Khan, petitioner bad also killed Mian Khan a brother of Ghulam Muhammad, deceased in the present case, by firing two shots at him at another place, at a distance of 18‑19 miles from the spot. (A separate F. I. R. had been lodged about that incident and that a separate trial was conducted in which Mansab Khan was also found guilty and sentenced to death). The grievance of the petitioner's counsel is that the High Court should not have taken into account the evidence recorded in the second murder while awarding the sentence to the petitioner in the present case. But the High Court has not relied upon any 'evidence' recorded in the second case and has only taken notice of the fact of the second murder, which had been duly proved in a Court of law. The learned counsel then urged that the two deceased persons were themselves involved in murder cases and that this factor could also be made the basis of awarding the lesser sentence to Mansab Khan petitioner. We fail to understand how this could constitute a mitigating circumstance for purpose of sentence. We, therefore, feel that the High Court was justified in confirming the petitioner's death sentence.

11. The net result of the above discussion is that the petition has no force and is, therefore, dismissed. Petition dismissed.