1988 P Cr (PLP)

KHIZAR HAYAT, J.‑‑Allah Rakha son of Muhammad Ramzan caste Baluch, aged 35 years, resident of Chah Jhandiwala village Kundi Baluchan, tehsil Lodhran, district Multan, was tried alongwith his two brothers, namely, Ahmad Yar and Muhammad Yar, by Additional Sessions Judge, Multan for the murder of Muhammad Bakhsh. Learned trial Court, vide judgment dated 7‑6‑1983, while acquitting Ahmad Yar and Muhammad Yar, convicted Allah Rakha under section 302 P.P.C. and sentenced him to death and a fine of Rs.10,000 or in default to undergo 4 years' rigorous imprisonment. Half of the fine, if recovered, was ordered to be paid to the heirs of the deceased as compensation under section 544‑A, Cr.P.C. The convict has filed appeal (Cr.A.No.123 of 1983) in this Court and a reference (M.R. No.107‑1983) for confirmation of his death sentence is also before us. The complainant Muhammad Sadiq has also filed a revision (Cr.R. No.33 of 1983) praying that retrial of the acquitted accused may be ordered. All the three matters are being disposed of by this single judgment.

2. The occurrence took place on 25‑8‑1981 at 9. a.m. in Kills. No. 23, square No. 10 of village Kundi Baluchan, tehsil Lodhran, district Multan. The F.I.R. Exh.PA was lodged by Muhammad Sadiq son of the deceased, the same day, at 10 a.m. at Police Station Lodhran, 3 miles away from the place of occurrence which was recorded by MHC Iqbal Hussain (PW1).

3. The prosecution case, as disclosed at the trial was that on the fateful day at 9 a.m., Muhammad Sadiq complainant (PW.5) was present in his house alongwith his father Muhammad Bakhsh (deceased), his uncle Taj Muhammad (PW.6) and Sadiq (CW.1) when his wife went out for cutting fodder from the fields. Shortly after her departure they heard her alarm. They rushed there and saw Allah Rakha (appellant) armed w4th gun catching hold of Mst. Amna (PW.8) by her arm, while his brothers Ahmad Yar and Muhammad Yar (acquitted accused) were giving blows to her with a spear and hatchet respectively from their wrong side. Muhammad Bakhsh (deceased) shouted at them saying, 'Haraam Deyo' Meri Izzat Ko Keon Kharab Kareyo' (O' bastards, why are you dishonouring me). At this Allah Rakha (appellant) released Mst. Amna PW and fired at Muhammad Bakhsh. The pellets hitting his left arm and chest pierced through his body. The witnesses tried to intervene but Allah Rakha reloaded his gun and threatened them at the gun‑point with dire consequences. Muhammad Bakhsh died on the spot and the assailants decamped from the scene Muhammad Sadiq (complainant), leaving the dead body in the care of Mst. Amna, Taj Muhammad PWs and Muhammad Sadiq (CW.1) went to Nazir Ahmad Lambardar (CW.?) and informed him about the occurrence and then went in his company to Police Station Lodhran and lodged F.I.R. Exh.PA there.

4. Motive for the offence was stated to be that Mst. Amna's Nikah was performed with Allah Rakha (appellant) but Rukhsati bad not taken place. About two years before the occurrence, Mst, Amna's father obtained her divorce from the appellant due to his bad character through Punchayat of his brotherhood, and married her with the complainant. The appellant felt insulted over it and at times altercated with the complainant On the day of occurrence, since the deceased had abused and prevented him (appellant) from abducting Mst Amna therefore, the appellant had shot him dead.

5. ASI. Muhammad Mansha (PW.9) received the F.I.R. for investigating the case at 10 a.m. in Mauza Lodhran where he happened to be present in connection with patrol duty. Reaching the spot he prepared injury statement Exh.PJ and inquest report Exh.PK of the deceased and sent the dead body to mortuary for its post‑mortem examination. He removed blood‑stained earth and also picked up empty cartridge P.5 from there and seized them under separate memos Exh.PD and PE respectively, attested by Taj Muhammad (PW.6) and Nazir Ahmad (CW.2), On 26‑8‑1981, he made over the investigation to the SHO Ghulam Ahmad Sub‑Inspector (PW.7) and deposited the sealed parcels containing blood‑stained earth and crime empty with MHC Muhammad Iqbal (PW.1) for safe custody.

6. Ghulam Ahmad, Sub Inspector (PW.7) arrested Allah Rakha (appellant) on 17‑9‑1981 and recovered gun P.2 and a live cartridge at his pointation from his residential Kotha and secured it under memo Exh.PF attested by Hamid and Rashid Akhtar PWs (not produced). He arrested Muhammad Yar and Ahmad Yar (acquitted accused) on 18‑9‑1981 and seized spear P.3 and hatchet P.4 produced by them, respectively. It may be stated that crime empty P.5 was taken by M. Arshad Constable (PW.3) on 31‑8‑1981 for depositing it in the office of Forensic Science Laboratory which was returned with objections. However, he again took it there and deposited on 13‑9‑1981. Gun P.2 which was recovered subsequently on 17‑9‑1981 was also sent to the aforesaid laboratory through M. Arshad Constable (PW.3) for comparison and report if the crime empty had been fired from gun P.2 which he delivered there on 15‑10‑1981. The Fire‑arms Expert's report Exh.PQ is in the positive.

7. Dr. Zia-ud‑Din Zaidi, Medical Officer, (PW.10) performed autopsy on the dead body of Muhammad Bakhsh (deceased) and found a gun‑Shot wound on the medial side of left Upper arm (lacerated) 10 cm x 9 cm x 4 cm with irregular margins and blackening around alongwith an inlet wound on the anterior axillary line 6 cm below and leteral to left nipple on chest 52 cm x 51 cm, piercing middle and posterior part of left lobe of lung crossing over vertebral column and piercing posterior part of right lung and fracturing right 4th rib and forming two small exit wounds 1 cm x 1 cm each. In the opinion of the doctor, the injury was ante‑mortem and sufficient to cause death in the ordinary course of nature. The time between injury and death was immediate and between death and post‑mortem examination was about 24 hours.

8. On 29‑8‑1981, i.e. four days after the occurrence, the same doctor medically examined Mst. Amna PW and found linear multiple abrasion on her back on right limber region 5 cm x 1 cm obliquely. The injury was found simple in nature with blunt weapon within the duration of 96 to 100 hours.

9. The prosecution produced ten witnesses while Muhammad Sadiq son of Ata Muhammad and Nazir Ahmad Lambardar given up by the prosecution as won‑over were examined as CWs. The prosecution apart from the ocular testimony furnished by Muhammad Sadiq (PW.5) and Mst. Amna (PW.8) has relied on the recovery of gun P.2 as deposed to by Ghulam Ahmad, Sub‑Inspector (PW.7) coupled with Fire‑aims Expert's report Exh.PQ and the motive.

10. Allah Rakha (appellant) and Ahmad Yar and Muhammad Yar (acquitted accused) in their statements under section 342 Cr.P.C. denied their presence and participation in the occurrence. Allah Rakha (appellant) denied that Mst. Amna (PW.8) was ever given in his Nikah or that he divorced her on her father's demand. He also denied to have got recovered .12 bore gun P.2. He produced certified copy of judgment dated 7‑10‑1982 passed by a Magistrate acquitting him from charge under section 13 of West Pakistan Arms Ordinance, 1965, for keeping in his possession gun P.2 without licence. He did not produce any witness in his defence. 10‑A. Learned trial Court believing the motive, recoveries the report of Fire‑arms Expert and the ocular testimony held the appellant guilty under section 302 P.P.C. and sentenced him as indicated above but acquitted Ahmad Yar and Muhammad Yar giving them benefit of bout, hence this appeal.

11. Learned counsel appearing on behalf of the appellant half‑heartedly argued that the ocular testimony furnished by Muhammad Sadiq and Mst. Amna PWs, close relations of the deceased, was not worthy of credence because other two eye‑witnesses, namely, Taj Muhammad (PW 6) and Muhammad Sadiq son of Atta Muhammad (CW 1) who are equally close relations of the deceased had stated that they had not seen the occurrence. Further argued that Fire‑arms Expert's report is of no consequence because the recovery of gun P.2 from the appellant has been disproved inasmuch as he had been tried and acquitted from the charge under section 13 of the Arms Ordinance, 1965, by Magistrate 1st Class, vide judgment dated 7‑10‑1982 EXh.DB, against which no appeal had been filed, thus it had attained finality. He further argued that there is no reliable evidence on record substantiating the motive part of the story. The motive therefore, being shrouded in mystery. He urged that the appellant is entitled to lesser penalty. Learned Assistant Advocate- General assisted by learned counsel for the complainant defended the impugned judgment.

12. It may at once be stated that acquittal of Ahmad Yar and, Muhammad Yar, co‑accused of the appellant (respondents in Cr.R.No.33' of 1984) is not open to exception. Admittedly, they had neither: shouted a Lalkara nor did they use hatchet or spear carried by them at the time of occurrence against the deceased. The allegation that they caused injuries from wrong side of their weapons to Mst. Amna (PW 8) does not find mention in the F.I.R. lodged by the complainant as well as in Mst. Amna's statement Exh.DA made by her during the investigation. Furthermore, Mst. Amna was medically examined about four days after the occurrence, without there being any explanation much less satisfactory one for this delay. In the circumstances, we find that the learned trial Court rightly observed that it was not believable that they had joined hands with Allah Rakha (appellant) 'in such a venture' and consequently acquitted them.

13. Now taking up the case of Allah Rakha (appellant) we shall first of all deal with the incriminating recovery of gun P.2 from they appellant and the Fire‑arms` Expert's report Exh.PQ which shows; that empty P.5 recovered from the spot had been fired from gun P.2. Needless to say that the Fire‑arms Expert's report would be relevant if the recovery of gun P.2 from the appellant was found established beyond doubt. Both the witnesses of recovery from the public, namely, Abdul Hameed and Rashid Akhtar were given up as won‑over. They had resiled when appeared before the Magistrate 1st Class who tried the appellant under the Arms Ordinance for possessing gun P.2 without licence and acquitted him vide judgment dated. 7‑10‑1982 (Exh.DB). We agree :with learned counsel for the appellant that since no appeal or revision had been filed against the aforesaid order acquitting the appellant, therefore, it has attained finality and; consequently recovery of gun as well as opinion of the Fire‑arms; Expert are rendered inconsequential. Learned trill. Court was. therefore, not right in treating recovery of gun and the Fire‑arms Expert's opinion as corroborative evidence in the case.

14. The eye‑witnesses of the occurrence are Muhammad Sadiq complainant (PW 5), his wife Mst. Amna (PW 8), his uncle Taj Muhammad (PW 6) and Muhammad Sadiq son of Ata Muhammad (CW 1). The last mentioned two witnesses did not support the prosecution and' for this reason the appellant's learned counsel submitted that implicit reliance could not be placed on the testimony of Muhammad Sadiq (PW 5) and Mst. Amna (PW 8) as they have been belied by Taj Muhammad and Muhammad Sadiq (PW 6/CW 1) and also because they have been disbelieved by the trial Court qua the two acquitted accused. It ma, be stated that the principle of 'falsus in uno, falsus in omnibus' is' not followed by the Courts of this country. A witness disbelieved against one accused may be believed against the other accused provided his testimony is corroborated by some independent evidence qua him. 15.Muhammad Sadiq (CW 1) claimed to have visited the house of Taj Muhammad (PW 6) in the morning of the day of occurrence who is married to his paternal‑aunt and lived at a distance of two Killas from the house of the complainant. Muhammad Ramzan son of the deceased (PW 2) came there at 5 a.m., and told them that Muhammad Bakhsh (his father) had been murdered. They went to the place of occurrence and saw Muhammad Bakhsh lying dead in Killa No.23 of square No.10 whereafter the police was informed, and that the police having sent for the accused involved them in this case. He meant to say that the deceased was done to death by unknown persons and nobody had seen the occurrence. He, however, admitted that he did not appear in defence of the accused before any police officer during investigation. Taj Muhammad (PW 6), brother of the deceased, stated that they were informed by the complainant, at 7/8 a.m., in the morning of the day of occurrence; that the appellant and his brothers have murdered the deceased. He also denied to have seen the occurrence himself. His daughter is married to the maternal cousin of Muhammad Sadiq (CW 1). When cross‑examined by the A.D. A., with permission of the Court, he conceded that Muhammad Sadiq (CW 1) and Nazir Ahmad Lambardar (CW 2) worked for effecting compromise between parties and that as a result of their request he resiled to save the accused (from punishment). Taj Muhammad PW is a self -confessed liar and, therefore, his evidence is ruled out of consideration. As for Muhammad Sadiq (CW 1), he does not reside near the, place of occurrence. He is a chance witness. His version is neither supported by Muhammad Ramzan (PW 2) nor by Taj Muhammad (PW 6). It is in the evidence that he worked for compromise to save the accused from punishment and Taj Muhammad PW resiled as a result of his efforts. His interest in saving the appellant from punishment is too obvious. It looks strange that despite his claim that he knew that the deceased was murdered by unknown persons yet he did not appear during the investigation to testify the innocence of the accused. His testimony, therefore, does not deserve any weight.

16. There now remains the testimony of two eye‑witnesses, namely, Muhammad Sadiq (PW 5) son of the deceased and Mst. Amna (PW 8) daughter‑in‑law of the deceased. Their house is at 40 Karams' distance from the place of occurrence. Muhammad Sadiq (PW 5) was present at his house while Mst. Amna (PW 8) allegedly was cutting fodder for her buffalo in a nearby field at the time of occurrence. Their presence at the relevant time thus appears to be quite natural. Their statement that the deceased was fired at with a .12 bore gun by the appellant at about 9 a.m., is corroborated by the medical evidence. We are, therefore, in no manner of doubt that these two witnesses had seen the appellant causing death of the deceased by firing at him.

17. Learned counsel for the appellants, as pointed out earlier, vehemently argued that it is not a case of extreme penalty because the prosecution has either concealed or it did not know what had transpired between the appellant and the deceased immediately before the occurrence. He submitted that the prosecution deliberately introduced the story of abduction of Mst. Amna PW just for providing an excuse for the deceased to hurel invectives on them, which story has been partly disbelieved qua Ahmad Yar and Muhammad Yar (acquitted accused). We have carefully considered this argument. No doubt the appellant has denied that Mst. Amna PW was ever married to him or that he divorced her on demand made by her father and members of his brotherhood but Nazir Ahmad (CW 2) besides the eye‑witnesses has also supported this version, therefore, we hold that Mst. Amna was earlier married to the appellant who was divorced by him under the pressure of the brathery, hence the parties were having strained relations. It is noteworthy that the parties lived one acre away from each other since Mst. Amna PW was divorced by the appellant, She had been going for cutting fodder in the fields after her marriage with complainant. But there is no allegation that the appellant made any attempt to abduct her earlier. It would, therefore, mean `that even if the appellant nursed a grudge on account of Mst. Amna's marriage with the complainant, it had become dormant. The omission on the part of Mst. Amna to mention her injuries which she allegedly suffered at the time of occurrence while being abducted and her medical examination having been delayed for about 3/4 days makes us sceptical to accept it as immediate motive for murdering the deceased. Admittedly, the deceased hurled filthy abuses on the appellant before he was fired at by the appellant. As observed earlier, the reason for abusing the appellant shown by the prosecution is not convincing, therefore, it is not known as to how the brawl developed between the appellant and the deceased. The deceased's calling the appellant as 'bastard' was without any justification, however, it did ' present some element of provocation which although was sudden yet it was not grave, therefore, in our view, in this case, extreme penalty is not called for. Consequently, while holding the appellant guilty under section 302 P.P.C. we commute his sentence from death to imprisonment for life. The sentence of fine is maintained. The result is that the appeal is dismissed, the murder reference is rejected and the death sentence awarded to the appellant is not confirmed. For the same reasons the criminal revision is also dismissed. S.A./A‑350/L Sentence commuted.