1982 PLP 714 (SCMR)

Date of hearing : 7th February, 1982. ASLAM RIAZ HUSSAIN, J.‑Mansab Khan petitioner was tried alongwith one Muhammad Ashraf for the murder of Mian Muhammad. Both of them were convicted under section 302, P. P. C., by Additional Sessions Judge, Sargodha. Mansab Khan was sentenced to death and a fine of Rs. 2,000 while Muhammad Ashraf was sentenced to imprisonment for life and a fine of Rs, 2,003 or in default of payment of fine each of them was to further undergo R. I. for one year. On appeal the High Court acquitted Muhammad Ashraf, but dismissed the appeal of Mansab Khan and confirmed his death sentence. It also reduced the sentence of fine but awarded compensation of Rs. 5,000 to be paid to the heirs of the deceased. Hence the present petition.

2. The occurrence in question took place on 27‑10‑1975 at Peshiwela in the area of Sobbibala, Police Station Naushera, District Sargodha. The F.I.R. in this case was lodged by Muhammad Sher (P. W. 7) a cousin of the deceased at 5‑30 p.m. on the same day. It was recorded by Khadim Hussain, A. S. I. (P. W. 9.). The facts of the prosecution case as stated in the F. I. R. are, briefly, that on the fateful day, Muhammad Sher (complainant), Muhammad Khan son of Noor Khan, Muhammad Khan (P. W. 8), Khuda Bakhsh and Mian Muhammad (deceased) were present in the Bajra crop cultivated by the complainant in the land of Khuda Bakhsh aforesaid and were busy cutting the Bajra. At Peshiwela Mansab Khan and Muhammad Ashraf accused, 'both armed with guns, came there. Mansab Khan petitioner fired a shot at the deceased hitting him on the right flank. He then fired another shot, which hit the deceased on his chest. Mian Khan succumbed to the injuries at the spot. Muhammad Ashraf and Mansab Khan petitioner threatened the witnesses not to come near them. Both of them then fled away with the weapons of offence. Muhammad Sher complainant also learnt that these very two accused had also murdered Ghulam Muhammad, the real brother of Mian Khan (deceased), a few hours earlier on the same day, at Dhoke Kawad in the jurisdiction of Police Station, Gunjial, District Sargodha. The motive for the occurrence is stated to be that the deceased and his brother had constructed a Khal in the Shamlat deh and were using it for the last 40 years. Two/three months, prior to the occurrence the accused took forcible possession of the said land. Mian Muhammad and Ghulam Muhammad (deceased) used to ask the accused to deliver the land to them but the accused refused to do so. Mansab Khan petitioner could not be found and was arrested about two months later and single barrel '12 bore gun was recovered from him. It, however, could not, connect him with the offence as no empty had been recovered from the spot which could be matched with the said gun. Similarly a '12 bore gun recovered from Muhammad Ashraf (acquitted accused) after his arrest, could not advance the prosecution case.

3. At the trial the prosecution relied on the occular testimony of Muhammad Sher (P. W. 7), and Muhammad Khan (P. W. 8) as well as the medical evidence and the evidence of motive. The prosecution evidence was relied upon by both the Courts below against Mansab Khan peti tioner.

4. The learned counsel for the petitioner took us through the evidence of the eye‑witnesses and urged that it was not worthy of credence with out independent corroboration. Having gone through their testimony, we are not persuaded to agree with him specially when we notice that the eye‑witnesses are closely related to Mansab Khan petitioner. Nothing has been brought on the record to show that they had any enmity towards the petitioner which could have induced them to involve him falsely in a murder case.

5. The learned counsel further contended that in view of the weak motive alleged by the prosecution the petitioner deserves to be awarded lesser sentence of imprisonment for life. We notice that the learned Courts below have carefully considered this aspect of the matter and have given cogent reasons for awarding him the death penalty. We, therefore, find no reason to interfere with the same. The petition is consequently dismissed.