1985 PLP 783 (SCMR)

Date of hearing: 4th February, 1985. M. S. H. QURAISHI, J.‑‑This appeal by leave of the Court is directed against the judgment of the High Court dated 13‑12‑1977 whereby the appellant's appeal against his conviction of the murder of Muhammad Yaqoob deceased and the sentence of imprisonment for life was dismissed.

2. The occurrence took place in Chak No.67/4‑R, Tehsil Fortabbas, on 27‑1‑1972, which was the day of Eid‑ul‑Azha, at 10.30 a. m. Deceased Muhammad Yaqoob alongwith his brother Abdul Hamid, his son Meharban and his co‑villagers came out of the village mosque when he was stopped by Muhammad Tufail son of Ali Bakhsh, co‑accused, who started enquiring about his health. In the meantime the said co‑accused be coned to Zulfiqar appellant who was standing behind them at a short distance and at his instigation, the appellant, who was armed with a pistol, rushed towards the deceased and fired a shot hitting him at the abdomen, where after the two culprits managed to escape. The deceased in injured condition was removed to Haroonabad Hospital while Abdul Hamid proceeded to the police station. He met Qazi Mukhtar Ahmad, S.‑I., in the Haroonabad Bazar, before whom he made his statement at 12.15 p.m. which became the basis of the formal F.I.R. in the case.

3. Three motives were given in the F.I.R. for the crime. Firstly, Muhammad Tufail, father of the appellant, had been injured by the deceased some 6/7 years prior to the occurrence which had resulted in his death, for which the deceased had been prosecuted but acquitted in 1967. Secondly, the allotment of some land made in favour of Muhammad Tufail co‑accused had been cancelled at the instance of the deceased. Thirdly, in the B.D. Elections the complainant party had supported one Nawab, the rival candidate, who had defeated Muhammad Tufail co‑accused.

4. The police officer recorded the statement of the deceased under section 161, Cr.P.C. at the hospital. As he was in a dangerous condition, the police officer approached the Assistant Commissioner for getting the deceased's dying declaration recorded which was done at 1.45 p.m. the same day by Malik Naseer Ahmad (P.W. 3), Naib‑Tehsildar and Magistrate 11 Class. The deceased was then sent to the District Headquarter Hospital, Bahawalnagar, for treatment but he died there on 5‑2‑1972.

5. The appellant, who was arrested on 29‑1‑1972, led to the recovery of pistol Exh.P.2 with a live cartridge from the pillow of his bed in a Jhuggi in the Dera of another Chak. The pistol matched with the crime empty Exh.P.l recovered earlier from the spot. Cu‑accused Muhammad Tufail, who had absconded, was arrested on 15‑3‑1972.

6. The case of the prosecution was based on (1) the uvular testimony of Abdul Hamid (P.W.13), complainant and brother of the deceased, Faqir Hussain (P.W.15), Muhammad Yaqoob (P.W.16), Meharban (P.W.17) son of the deceased, Muhammad Shafi (P.W.18) and Abdul Jabbar (P.W.19); (2) the dying declaration of the deceased; (3) the medial evidence and (4) the recovery of the matching pistol. The deceased had suffered a firearm injury, 1" x 1/2" with blackened edges on the abdomen about 1" below the umbilicus. A bullet was recovered from his body in the course of the autopsy. The injury was sufficient to cause the death.

7. The appellant in his statement under section 342, Cr.P.C. made no effort to answer the questions put to him or to offer any explana tion though before the Committing Magistrate where he had denied the prosecution case, he had stated that he would make a detailed statement in the Court of Session.

8. The trial Court acting upon the evidence convicted and sentenced both the accused. The High Court, however, in appeal preferred by them, did not rely on the evidence of the eye‑witness Muhammad Shafi (P.W.18) who did not belong to the locality and the evidence of recovery. The High Court also found reasons to acquit co‑accused Muhammad Tufail but dismissed the appeal as regards the appellant.

9. Leave was granted to re‑appraise the evidence in order to examine the contention that the eye‑witnesses were interested persons and that A there was discrepancy in several respects between the dying declaration and the F.I.R.

10. We have two statements of the deceased himself, one recorded by the Sub‑Inspector and the other by the Magistrate, both in quick succession the same day and substantially supporting the prosecution case. Then is the ocular testimony furnished by six witnesses, of whom five are either related to the deceased or are his co‑villager and as such their presence near the mosque on the Eid‑ul‑Azha day at the time of the occurrence is natural and there is no reason for disbelieving them. The small discrepancy pointed out by learned counsel is that there is no mention of the presence of Abdul Hamid, Muhammad Yaqoob and Muhammad Shafi P.Ws. in the dying declaration recorded by the Magistrate nor is there mention of the fact that co‑accused Muhammad Tufail had instigated the appellant by uttering (jaaney na paaye). We find that the deceased had in his statement recorded by the police mentioned the presence of all the six eye‑witnesses though he had in the subsequent statement, spoken only of the presence of his son Muhammad Meharban, Faqir Hassain and Abdul Jabbar but with these names he had added .. . In any case, the discrepancies pointed out are not material. The conviction of the appllant was, therefore, well -merited.

11. The appellant has already been given the benefit of his young age (he was about 19 at the time of the occurrence) and of the fact that he believed Muhammad Yaqoob to have murdered his father. We however, notice that as the occurrence had taken place before the coming into force of the Law Reforms Ordinance (XII of 1972) the appellant could be awarded the sentence of transportation for life and not imprisonment for life. We accordingly modify his sentence by substituting transportation for life for imprisonment for life. With this modification in the sentence, the appeal is dismissed. M. Z. M. Order accordingly.