1988 PLP 935 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to the complainant as well as to the convict against the 'judgment of the Lahore High Court, dated 15‑2‑1982, whereby three persons convicted of the offences under sections 302/307/148 and 149, P.P.C. were acquitted and while maintaining the conviction of Misri Khan appellant in Criminal Appeal No.119 of 1983 under section 302, P.P.C. his sentence was reduced on two counts to life imprisonment. Leave to appeal was granted on the mistaken impression that the conviction of Misri Khan had been altered from section 302, P.P.C. to Section 304, Part‑I, P.P.C. which was not the fact. The parties had a background of serious enmity. In or about the year 1964, murder of Muhammad Rashid, a brother of Muhammad Taj, deceased of this case, had taken place for which Muhammad Ali, father of Muhammad Akram acquitted accused, Misri Khan appellant, and others were charged and acquitted. In 1969 or near about, Muhammad Ali, father of Muhammad Akram, acquitted accused, was murdered for which Muhammad Taj deceased of this case, was charged but was acquitted. On the 17th of April, 1976, Muhammad Taj deceased, his father Mian Khan deceased, Gulzar PW.13 his brother‑in‑law, Zubeda PW.1.2 his wife, had been invited for lunch at the house of Shan Khan of village Gang, father‑in‑law of Muhammad Taj. After lunch, in the afternoon, these four‑persons started for the village of the deceased, village Gangal. Gulzar Khan PW.13 had a .12 bore licensed gun with him. When they reached near the shrine of Baba Jee Sahib in the area of village Gangal, they were fired at from the side of Kothri of shrine of Baba Jee Sahib. Muhammad Taj his father Mian Khan and brother‑in‑law Gulzar Khan PW.13, received the shots. Zubeda took refuge by the side of the wall of a school and got prptection. Gulzar PW.13 was also able to get cover of a tree. He saw six persons coming out of the Kothri of the shrine. Mian Khan and Akram acquitted accused were armed with rifles, Misri Khan the convict, Ghulam Khan, Ghulam Qadar and Manzoor Hussain, the acquitted accused were armed with guns and fired at them. They fired at Taj Muhammad and Mian Khan killing both of them. Gulzar PW.13 fired two shots, one of which hit and injured Misri Khan. A report about the occurrence was lodged by Shan Khan at 3.00 a.m. on 18‑4‑1976 at Police Station Chauntra at a distance of about 8 miles. Shan Khan died before the trial of the case took place. So did Shamsher Ali Shah, S.I. who recorded the report and conducted the investigation. Mian Khan had received a fire‑arm wound on his left side of chest and two fire‑arm wounds on left thigh, the margins of which were burnt. One pellet was recovered from thoracic spine. Muhammad Taj's dead body had multiple fire‑arm injuries and one pellet was removed from the clothes and 11 pellets were recovered from his dead body. Gulzar Khan PW.13 received 7 punctured wounds and Misri Khan had also 11 pellet wounds. Shamsher Ali Shah, S.I., had recorded the First Information Report and conducted the investigation at the initial stages. He had recovered blood‑stained earth from two spots and a number of empties of .12 bore gun and 7 m.m. rifle. In all 20 crime empties were recovered and 55 wads of cartridges. The accused in the case could be arrested, three of them on 30‑4‑1976, two others on 30‑5‑1976 and Ghulam Khan on 23‑9‑1976. Licensed rifle was recovered from Mian Khan acquitted accused. Ghulam Qadar, Misri Khan, Akram, and Manzoor also led to the recovery of weapons. The crime empties recovered from the spot were never sent to the Fire‑Arms Expert the weapons recovered from the accused for getting them matched. There is no reason forthcoming on the record for this failure. All the accused facing trial, except Misri Khan, denied their presence or participation in the occurrence and stated that they had been falsely implicated on account of enmity. Misri Khan on the other hand took up the plea that Gulzar Khan PW.13 and his companions had attacked him and injured him and he had acted in exercise of the right of private defence of his person. The trial Court held that the two eye‑witnesses in the case namely, Gulzar PW.13 and Zubeda PW.12 were interested witnesses. They had not mentioned to Shan Khan the presence of accused Ghulam Qadar and Manzoor Hussain as their name was not recorded in the First Information Report. All that was recorded was that there were two other persons with muffled faces. Considering this aspect of the prosecution case, the trial Court recorded the following reasons for acquitting them:‑‑ "To my mind, although I do not find any inconsistency in the statements of the eye‑witnesses P.W.12 and P.W.13, yet the inclusion of names of Ghulam Qadar and Manzoor Hussain are not free from doubt. Had the P.W.13 told of these two names also to his father there was no occasion to miss these names. Again if P.W.13 had seen Ghulam Qadar and Manzoor Hussain accused persons, there was no occasion to miss their names and to say that there were two persons with muffled faces. I believe the testimony of P: W.12 and P. W.13 to the extent of the accused Missri Khan, Mian Khan, Muhammad Akram and Ghulam Khan but I do not believe them when they name the other two accused persons Ghulam Qadar and Manzoor Hussain. I am quite prepared to believe that they had come to know of their names afterwards but such is not their case before me. In this view of the matter, I cannot but give benefit of doubt to Ghulam Qadar and Manzoor Hussain accused persons." The trial Court rejected the defence set up by Missri Khan and convicted the four, Missri Khan, Mian Khan, Muhammad Akram and Ghulam Khan, for the murders of Mian Khan and Muhammad Taj and for injuries caused to Gulze Khan P.W.13. The conviction was recorded under section 302/149, P.P.C. on two counts and they were all sentenced to death and to pay fine of Rs.5,000/‑ each or in default to suffer 6 months imprisonment. They were also convicted under section 307/149, P.P.C. and sentenced to 10 years' R.I. and also a fine of Rs.5,000/‑ each. For conviction under section 148, P.P.C. they were sentenced to three years R.I. On appeal and while considering the question of confirmation of death sentence, the High Court re‑appraised the entire evidence. The defence set up by Missri Khan was rejected. In spite of coming to the conclusion that the injuries on the complainant party showed the presence of at least two persons in the attack, the fact that the two witnesses were highly interested, it was considered not safe to rely on their testimony without corroboration, as none was found except in the case of Missri Khan. The other three persons were acquitted but the conviction of Missri Khan under section 302 on two counts and under section 307 was maintained. The conviction and sentence of others under section 148, P.P.C. imposed by the trial Court was set aside. As regards the sentence of death, the High Court converted it into life imprisonment, and the reason given was as follows:‑‑ "The only question that now remains is that relating to sentence. Muhammad Ali, maternal uncle of Missri Khan, appellant, was murdered by Muhammad Taj deceased and others. Earlier also in 1964 Missri Khan appellant was challaned in respect of the murder of Muhammad Rashid, the brother of Muhammad Taj deceased. Missri Khan appellant appears to have participated in the occurrence, promoted by dictates of family honour. In these circumstances, Missri Khan, appellant, is entitled to the lesser penalty. His sentence under section 302, P.P.C. for the murder of Mian Khan and Muhammad Taj deceased is reduced to life imprisonment on each of the two counts but the sentence of fine of Rs.5,000/‑ imposed on him by the trial Judge on each of the two counts as also the sentence of six months rigorous imprisonment imposed on him on each of the two counts in the event of default of payment of fine, are maintained. The sentence imposed on Missri Khan appellant under section 307, P.P.C. by the trial Judge is hereby maintained. All the sentences shall run concurrently. The benefit of section 382‑B, P.P.C. shall also be allowed to Missri Khan appellant, when calculating the period of his sentence." Mr.Agha Aziz Ahmed, Advocate, the learned counsel for the convict Missri Khan, tried to argue on the basis of defence set Up by Missri Khan with regard to the firing on him and his reacting in private defence of his person. Sardar Muhammad Ishaque Khan, Advocate, the learned counsel for the complainant, on the other hand, contended that the empties, the medical evidence, the abscondence of the accused immediately after the occurrence and the number and nature of weapons used and the injuries caused, all implicated the four accused who were convicted by the trial Court and interference should not have taken place with their conviction and sentence. Additionally it has been contended by the learned counsel that it was a pre‑planned murder and the sentence of death was rightly awarded and even the reason given by the High Court with regard to previous enmity and murders could not hold good so far as the murder of Mian Khan was concerned because Mian Khan was not involved or sent, up as an accused for any of the earlier murders. The plea of private defence of person, set up by Missri Khan, has been rejected by the two Courts on the ground that if both the parties were armed with fire‑arms, and the complainant had opened the attack, Missri Khan or his companions could not get away with the injuries which were found on the person of Missri Khan. The attack was launched from the cover available inside the Haveli. It was directed toward persons out on the path. The recoveries of the empties from the spot and the damage done to the complainant party clearly indicate that it was the victim of the attack by the accused party. There was no occasion for the complainant to plan such an attack on Missri Khan because they were returning after having taken lunch. The background of the motive, the place of occurrence and the occasion when it took place, all suggest, that Missri Khan was not a victim but one who had planned the attack. The rejection of his defence and his conviction for the offence is merited and no ground is made out for interference, so far as his appeal against conviction is concerned. As regards the appeal of the complainant we find that in acquitting three other convicts, the High Court has adopted a well -recognized principle to be kept in the fore‑front in administering criminal justice‑ The two eye‑witnesses who were natural and had reasonably established their presence as eye‑witnesses of the occurrence, one of them being injured, have not been considered sufficient in view of the inimical background and the doubt created with regard to two others acquitted by the trial Court, improvements concerning them, and the trial Court considering not safe to act on their testimony. It was not one of those cases where corroborative evidence was lacking or was not in existence. There were weapons recovered at the instance of each of the accused persons and there were at least twenty crime empties recovered from the spot. No attempt was made to match these. No reason is forthcoming for this failure. In its absence, the High Court could consider motive, the medical evidence and the short absence without the accused being declared proclaimed offenders as insufficient corroboration for implicating them on the capital charge. We consider that the acquittals are not in violation of any provision or principle of law or such as to amount to miscarriage of justice, but it is primarily with a view to ensure safe administration of criminal justice. So far as the sentence for the murder of Muhammad Taj is concerned, the High Court could in view of the long background of enmity and acquittals, grant the convict Missri Khan, the benefit of lesser sentence. However, left to ourselves, we are not satisfied about the lesser sentence being awarded to Missri Khan for the murder of Mian Khan, who was never involved in any of those cases nor suspected of being involved. There are no reasons recorded by the High Court for not distinguishing the case of Mian Khan from that of Muhammad Taj. Nevertheless, the one reason which comes to our mind is that as they were walking in a group on the path, the attack on Muhammad Taj could also have resulted in injuries to others, in the group. It could, therefore, have been mainly, an attack on Muhammad Taj and none else which could have resulted in the death of others like Mian Khan in his company. If that were so, then probably the reason given for lesser sentence for the murder of Muhammad Taj would equally extend, to that of Mian Khan. All considered, we do not find that this is a fit case for our interference in the matter of sentence alone. Hence, both the appeals are dismissed. The respondents Nos.1, 3 and 4, shall be released forthwith unless, their detention is required in some other case.