1978 PLP 29 (SCMR)

WAHEEDUDDIN AHMAD, J.‑Petitioner Ali Muhammad was tried along with Fatah Khan, Mian Muhammad. Sultan, Mansab, Ghulam Farid and Dost Muhammad under sections 148 and 302, P. P. C. read with section 149, P. P. C. for the murder of Muhammad Hayat and Mst. Saleh Khatun They were tried by the learned Sessions Judge who by judgment dated 30‑9‑1975 acquitted Mansab. Mian Muhammad, Sultan, Ghulam Farid and Dost Muhammad. Petitioner and Fatah Khan were convicted under section 302/34, P. P. C. Petitioner was sentenced to death and a fine of Rs. 10,000 or in default to four years' R. I. while Fatah Khan was awarded sentence of imprisonment for life and a fine of Re. 10,000 or in default to R. I. for four years. The matter was taken in Cr. Appeal No. 1102 of 1975 and Cr. Revision No. 1061/75 before the High Court, Lahore. A Division Bench of the said High Court, by judgment dated 11‑3‑1977, upheld the conviction of the petitioner Ali Muhammad and Fatah Khan. The fine imposed on them was, however, remitted. Fatah Khan has not filed any petition. However, the petitioner seeks permission to file an appeal against his conviction. The prosecution story is that about eight years prior to the occurrence which took place on 15‑9‑1972 Dost Muhammad, father of Muhammad Hayat deceased, and his brother Muzaffer Khan, father of Mst. Saleh Khatun deceased, alongwith some other persons. were challenged for the murder of Muhammad Khan alias Manna, brother of Fatah Khan and Sultan accused. They were acquitted four years before the occurrence in question. It is alert that about a month prior to the occurrence Dost Muhammad and Ghulam Farid accused tried to construct Kothas in the joint land. This was challenged by Muzaffar and his brother Dost Muhammad and they did not permit the aforesaid persons to construct the Kothas. There was a fight between the parties as a result of which Muzaffar Khan and Dost Muhammad were challaned under section 307, P. P. C. and confined in Jail. It is further alleged that on 15‑9‑1972 during the night Mst. Mulkhan, complainant, her sons Muhammad Hayat deceased aged 5 years, and Sultan aged 7 years, "Mst. Malkani, wife of Muzaffar Khan, her sons Sher Muhammad P. W. and Muhammad Nawaz, her daughter Mst. Saleh Khatun, and Mst. Mulkhan, sister of Muzaffar were sleeping the courtyard of their dera. Muhammad Hayat deceased was suffering from fever and a lantern was kept burning in the courtyard near his cot. It appears that at about late Khfthanwela, Mian Muhammad, Ghulam Farid, Fateh Khan, Dost Muhammad, Mian Muhammad and Sultan accused, armed with guns and Mansab accused armed with a lathi trespassed into the courtyard of complainant's dera from the eastern side. Ali Muhammad, Dost Muhammad and Ghulam Farid raised lulkara that they had come to avenge the murder of Muhammad Khan alias Manna, and would exterminate the progeny of his murderers. Thereupon, Mst. Malkhan and Mir. Malkani got up from their cots, and entreated the accused persons to spare their children but they did not listen. According to the prosecution Dost Muhammad accused fired a shot hitting Muhammad Hayat deceased on the right flank, and second shot was fired by Ghulam Ferid, which hit him on the right knee and he succumbed to his injuries Immediately. Ali Muhammad fired at Saleh Khatun who was sleeping on a cot, and the shot hit her on the right clavicle and she cried instantaneously. Mst. Malkhan P. W. took Sher Muhammad and Muhammad Nawaz inside the Kotha to save their lives. Thereafter the petitioner and other accused persons ran away from the spot alongwtth their weapons. On the following morning at 4‑30 a.m. Mat. Mulkhan, complainant reported the matter to Wilayat Ali, Muharrir Head Constable, Police Station Katba Saghral vide F. I. R. Exh. P. A. Wilayat Ali proceeded to the spot. While going there, he met Abdul Hamid, A. S. I. at Bus Stand. Katha Saghral and banded over the papers to him. Abdul Hamid, A. S. I, inves tigated the crime. From the above narration of facts, the prosecution story shows that the occurrence took place on the night between 15‑9‑1972 and 16‑9‑1972 in the courtyard of the complainant in village Nalli, P. S. Katha Saghral, District Sargodha, and Muhammad Hayat aged 5 years, and Mst. Saleh Khatun aged 11 years‑were murdered in the above occurrence. In support of the prosecution, three eye‑witnesses have been produced viz Mst. Mulkhan w/o of Dost Muhammad, P. W. 11, Mst. Mulkbani w/o of Muzaffar, P. W. 12 and Slier Muhammad son of Muzaffar, P. W.

13. These eye‑witnesses have supported the case of the prosecution, and have alleged that the petitioner fired a shot on Mst. Saleh Khatoon and killed her. The prosecution story is corroborated by the recovery of guns Exh. P. 10 and Exb. P.

11. Ch. Aftab Hussain the learned counsel for the petitioner has contended that it was the night time, and the possibility of not identifying the accused person correctly cannot be ruled out. He further contended that distance of eye‑witnesses from each other was about 25 to 28 feet. It was vehemently contended by him that there was enmity between the parties and, therefore, the petitioner has been falsely implicated in the case. Lastly, it was urged that Ali Muhammad had no motive to kill the children. The contentions of the learned counsel for the petitioner have received our anxious consideration. In our opinion, the eye‑witnesses in the present case are natural witnesses. They were present in their courtyard and as it was the sixth of the lunar month, the learned Judges of the High Court were justified in observing that the occurrence took place at late Kuftanwela (sleeping time) when the moon was in the sky and the witnesses were in a position to identify the culprits. The evidence has been fully examined by the learned courts below. The cots of the eye‑witnesses were at a very short distance, and they were in a position to witness the crime in the moonlight and identify the persons responsible for murder of the deceased persons. It is true that there was enmity between the parties but we do not think that the eye‑witnesses have falsely or wrongly implicated the petitioner. In the ordinary circumstances they would not implicate a wrong person in the crime. In any case the statements of use eye‑witnesses is corroborated by the recovery of the guns Exh. P. 10 and Exh. P.

11. We agree with the learned Judges of the High Court that it was a good evidence and could be relied upon for purpose of corroboration. We are also satisfied that the motive has been proved in the case under consideration. The crime took place at a time when Dost Muhammad and Muzafar were in Jail. During this period there was a dispute between the parties on the construction of Kothas. After careful consideration of the facts and circumstances of the present case, we are satisfied that the petitioner has boon rightly convicted. There is no ground to interfere. The petition is dismissed. Petition dismissed.