1999 PLP 666 (MLD)

MUHAMMAD NASIM CHAUDHRY, J.

Faizullah Khan son of Lal Khan, Caste Pathan, aged 28 years, resident of Mauza Bhutta Kot, Police Station Kabirwala, District Khanewal and Alif Din son of Jahaz Din, Caste Pathan, aged 20 years, resident of Mauza Khaire-wala, Police Station Chaubara, District Layyah were sent up for trial by the Police, Police Station Ahmad Pur Sayal, District Jhang in Crime Case No.41 registered on 24-5-1991 under section 302/34, P.P.C. for the murder of Manzoor Khan deceased son of Ramzan Khan complainant P.W.6. vide judgment dated 6-1-1992 learned Additional Sessions Judge, Jhang found them guilty of offence under section 302/34, P.P.C. and awarded them the following sentences:-- (I) Faizullah Khan appellant: Sentenced to death and to compensation in the sum of Rs.10,000 to be paid to the heirs of the deceased or in default of its payment to further undergo R.I. for a period of six months under section 302/34, P.P.C. (II) Alif Din appellant: Sentenced to R.I. for a period of 25 years and to pay compensation in the sum of Rs.10,000 to the heirs of the deceased or in a case of default to further suffer six months' R.I. under section 302/34, P.P.C.

2. The facts of the prosecution case as narrated in F.I.R. Exh. P.C./1 are that on 23-5-1991 Ramzan Khan complainant P.W.6 alongwith his son Manzoor Khan (deceased of this case), Khaliq Dad P.W.7 and Qutab Din P.W. (given up) was returning to their houses after performing their personal work at village Kassuna. At 8-30 p.m. when they reached near Government Tubewell bearing No.240 within the area of Chak No.6/3-L all of them were surprised by Faizullah Khan appellant armed with pistol and Alif Din appellant who was empty-handed. Alif Din appellant raised the Lalkara that Manzoor Khan should not go un-escaped. On that Faizullah Khan appellant fired two shots at Manzoor Khan with the pistol which hit his right thigh and the right side of his abdomen. Thereafter both the accused are said to have made good their escape alongwith the pistol. The motive for the occurrence is stated to be that Mst. Barkhana Mai, Sister of Faizullah Khan appellant was married to Manzoor Khan deceased who was divorced by him whereby the said appellant nursed the grudge against him and had issued the threats that he would take the revenge and in furtherance of common intention both the appellants had committed his intentional murder. Manzoor Khan was removed to Civil Hospital, Ahmad Pur Sayal died at 7-00 p.m. on 24-5-1991 and thereafter the matter was reported to the police.

3. The complaint Exh. P.C. was recorded by Muhammad Anwar, A.S.I. P.W.8 and on its basis Shafqat Abbas, Moharrir H.C./P.W.3 prepared the formal F.I.R. Exh. P.C./1. Muhammad Anwar, A.S.I. went to hospital and prepared the injury statement and the inquest report pertaining to the deceased. He sent the dead body for post-mortem examination which was conducted by Dr. Ahmad Ali, Medical Officer, Civil Hospital, Ahmad Pur Sayal P.W.1 on 25-5-1991 at 8-00 a.m. who had earlier medically examined the deceased while he was alive on 23-5-1991 at 9-15. p.m. Saifullah, Inspector P.W.10 visited the place of occurrence and prepared the spot inspection note. He prepared the site -plan without scale. He took into possession blood-stained earth and sealed that into a parcel. Muhammad Ramzan, Constable P.W. produced last-worn blood stained clothes of the deceased before him. He recorded the statements of the P.Ws. He got prepared site-plans from the Revenue Patwari.

4. Dr. Ahmad Ali, Medical Officer P.W.1 found the following injuries on the deceased:-- "(1) Wound of entry of bullet 1/2 c.m. 1/2 c.m. x cavity deep on the right side of the- abdomen 10 c.m. away from the umbilicus. There was blackening around the wound and margin was inverted. There was wound of exit of bullet 1 c.m. x 1 c.m. on the left side of the abdomen just above the iliac crest. Margins of wound were everted. (2) Wound of entry of bullet 1/2 c.m. x 1/2 c.m. on the front of the middle of the right thigh. Margins were inverted and there was blackening around the wound. The wound of exit was 1 c.m. x 1 c.m. situated on the inner and back side of the middle of right thigh. The margins were averted."

5. The Medical Officer opined that the death was caused due to shock and haemorrahage due to injuries Nos.1 and 2 resulting in the purforation of the large gutt and liver and muscle of the right thigh which were sufficient to cause death in ordinary course of nature. According to him the injuries were ante- mortem and caused by fire-arm. He opined that the probable time that elapsed between injuries and death was, within 24 hours and between death and post- mortem was within 12 hours and 35 minutes.

6. During the investigation on 13-6-1991 one Qasim produced Faizullah Khan appellant before Manzoor Ahmad, S.I. P.W.9 who was arrested and at that time pistol P.3 was produced by the accused before him. Alif Din accused was arrested on 5-7-1991. This Police Officer submitted the challan after necessary investigation.

7. Both the appellants were charged under section 302, P.P.C. who pleaded not guilty thereto. At the trial the prosecution witnesses stood in the witness-box and supported the prosecution case. When examined under section 342 Criminal Procedure Code the appellants stated about their non-participation in the occurrence and their false involvement. The recovery pistol P.3 was refuted by Faizullah Khan appellant. The appellants did not produce the defence evidence and also did not choose to appear in the witness box in their defence on oath under section 340(2), Criminal Procedure Codc Learned trial Court did not give the weight to the alleged recovery of pistol P.3 and ignored the same. However, the weight was given to the remaining ingredients of the prosecution evidence comprising motive, ocular account and medical evidence. The version of the appellants about non-participation in the occurrence was not given the weight and they were convicted as narrate above.

8. Both the appellants have preferred Criminal Appeal No.34/ 1992 while the learned trial Court has sent the Murder Reference under section 37 Criminal Procedure Code for the confirmation of the death sentence awarded Faizullah Khan appellant. Both the appeal and the Murder Reference are being disposed of together through this judgment.

9. We have heard both the learned counsel for both the appellants as we as the learned State Counsel and gone through the record before me. Learned counsel for Faizullah Khan appellant argued that the said appellant has bee involved due to enmity in the un-witnessed occurrence particularly when the chance of error in the identification of the appellant cannot be ruled out as the occurrence took place at 8-30 p.m. on 23-5-1991. He added that both the eye witnesses namely Ramzan Khan complainant P.W. 6 and Khaliq Dad P.W.7 a inimical towards the appellants and their statements are not entitled to due weight. He continued that the medical evidence cannot be held to 1 corroborative piece in the matter because according to medical witness the blackening was caused to the wound when the fire was trade from a distance 4 ft. while in the present case the distance between point No.1 where Manzoor Khan deceased was present and point No.2 from where Faizullah Khan fired w 5 Karams. On the contrary learned State Counsel laid the emphasis that it admitted fact of motive and the medical evidence have corroborated the ocular account whereby the case of the prosecution against both the accused Stands established. He continued that Khaliq Dad P.W.7 was an important witness as 1 was a cousin of Manzoor Khan deceased as well as both the appellants. In o view the prosecution has succeeded in establishing the case against Faizulh Khan appellant. In the instant matter the cause of grumble is with the said appellant as it is the admitted position that his sister Mst. Barkhanan Mai w divorced by Manzoor Khan deceased and according to Ramzan Khan P.W.6 she was divorced one year before the occurrence. It can safely be expressed that the learned trial Court rightly relied upon the motive as Faizullah Khan appellant nursed the grudge against Manzoor Khan who had divorced his sister one ye before the occurrence and his mind brewed against him. This part of the prosecution evidence has rightly been given the weight by the learned tri ""un. The statements of the eye-witnesses are consistent and both the eye-witnesses have stood the test of cross-examination. The fact of the matter is that Faizullah Khan appellant was related to the P.Ws. and the chance of any error in the identification of this appellant could not be expected. The relationship of Khaliq Dad P.W.7 with the appellants has stolen the eminence for the purpose of their involvement in the matter as he is their cousin. The medical evidence has to prove the corroborative piece in the matter keeping in view the nature of the injuries. The exception pleaded by the learned counsel for this appellant with regard to the blackening is not fatal to the prosecution case as this aspect of the matter shall not contradict the ocular account especially when both the eye-witnesses have already been believed supra and they have been declared as the truthful witnesses. Consequently, the reasoning adopted by the learned counsel for Faizullah Khan appellant has failed to impress us and we hold that the prosecution has established its case against this appellant clearly.

10. At this stage learned counsel for Faizullah Khan appellant referred to the delay in reporting the matter to the police and laid the emphasis that the appellant has been roped in falsely as there was dispute between the P.Ws. and deceased on the one side and this appellant on the other side. Our view is that in view of the close relationship of Faizullah Khan appellant with the eye-witnesses and the deceased this aspect of the matter cannot be said to be fatal to the prosecution case. The complainant Ramzan Khan, father of Manzoor Khan deceased, has given the plausible explanation that he remained busy in the treatment of his son and after his death he reported the matter to the police. It is, however, surprising that the medical witness did not contact the police in the matter. Hence our view is that this aspect of the matter is of no help to the aforesaid appellant. and the assertion raised in the matter is ignored.

11. Consequently, we hold that Faizullah Khan appellant has rightly been held liable in the matter who cannot escape his criminal liability. There is no extenuating circumstance for lesser punishment and rather this aspect of the matter has not been argued by his learned counsel. We, therefore, dismiss the appeal to the extent of Faizullah Khan appellant. The death sentence awarded to Faizullah Khan appellant is confirmed.

12. With regard to Alif Din appellant his learned counsel laid the emphasis that he was much younger in age than his principal accused/appellant namely Faizullah Khan who had no direct motive against Manzoor Khan deceased and whose presence is not shown in the site-plan Exh. P.E. and prayed for his acquittal thereof. We must record that learned State Counsel did not support the judgment passed by the trial Court to the extent of Alif Din appellant and, rightly. In this regard we would record our following reasons for the purposes of the exoneration and acquittal of Alif Din appellant:-- (i) Alif Din appellant was having no direct motive against Manzoor Khan deceased as Mst. Barkhanan Mai is not his real sister. The parties are related inter se and this aspect of the matter shall not prove to have the weight against this appellant. (ii) Before the occurrence the threats were issued by Faizullah Khan appellant and not by Alif Din appellant. (iii) Alif Din appellant is much younger in age than Faizullah Khan appellant as their respective age is 20 years and 28 years. It means that Alif Din appellant was not in a commanding position so as to raise the Lalkara in the matter directing Faizullah Khan to fire so that the murder of Manzoor Khan was caused in furtherance of common intention. (iv) In site-plan Exh. P.E. the presence of Alif Din appellant is not shown. The site-plan was prepared by the Revenue Patwari at the pointation of the eye-witnesses. This aspect of the matter shall grant the legal benefit to Alif Din appellant. (v) The theory of indivisibility of evidence does not hold the water these days and the grain is to be sifted from chaff. (vi) As expressed above learned defence counsel has not supported the impugned judgment passed by the learned trial Court to the extent of Alif Din and rightly. In this regard we refer to our aforesaid reasons.

13. For what has been said above, we are of the view that the prosecution has failed to connect Alif Din appellant beyond reasonable doubt. We, therefore, accept this appeal to the extent of Alif Din appellant, set aside the impugned judgment to his extent and acquit him. He shall be set at liberty forthwith, if not required in any other case. N.H.Q./F=34/L Order accordingly.