1987 PLP 2193 (MLD)

Muhammad Iqbal, Salehoon Muhammad, Ahmad Yar and Mst.Hayat Bibi were tried by a learned Additional Sessions Judge of Sargodha under section 302/34 PPC for the murder of Ghulam Muhammad, deceased. Muhammad lqbal was convicted under section 302 PPC and sentenced to life imprisonment and granted benefit of section 382-B, Cr.P.C. Salehoon Muhammad, Ahmad Yar and Mst.Hayat Bibi were acquitted of the charge. The appeal Cr. A .53 of 1986 filed by Muhammad Iqbal, convict, against his conviction and sentence and the private revision Cr.R.224 o 1986 filed by Saleh Muhammad against the acquittal of Salehoon Muhammad, Ahmad Yar and Mst.Hayat Bibi, and for the enhancement of sentence of Muhammad Iqbal, convict, and for the grant of compensation, are both now before me for disposal. The brief facts of .the prosecution case are that on 26-6-1984 at 7.00 p.m. Saleh Muhammad, complainant PW 8, alongwith his brother Ghulam Muhammad, deceased, his nephew Muhammad Yar PW 7 and one Mumtaz given up PW were coming home after offering Assar prayer for opening fast in the area of Yaray Wala. When they reached near the house of Ahmad Yar, accused, another nephew of the complainant, he asked them to come in. They entered the house of the aforesaid Ahmad Yar, accused. Muhammad Iqbal, accused, armed with a .12 bore gun, and Salehoon Muhammad, accused, empty handed, were sitting behind the door of the residential kotha Ahmad Yar and Mst.Hayat Bibi, accused, exhorted them to finish Ghulam Muhammad. Muhammad Iqbal, accused, fired at Ghulam Muhammad, with the licensed gun of his father, hitting the deceased on the left side of his chest. Ghulam Muhammad, deceased, fell near the door of the residential kotha. The complainant stepped forward to give a helping hand, but Salehoon, accused, caught hold of him. Ghulam Muhammad died on the spot, whilst the accused managed to run away. The motive for the occurrence was that Ghulam Muhammad, deceased, had promised to give the hand of his daughter in marriage to Ahmad Yar, accused, but later he refused to fulfil that promise on account of his bad character. It is, therefore, alleged that all the four accused, in furtherance of their common intention, had committed the murder of Ghulam Muhammad deceased, due to the said grievance.

2. Saleh Muhammad PW 8 proceeded to Police Station, Sahiwal, where he lodged FIR Ex.PF at 11.30 p.m. which was recorded by Ijaz Hussain SI PW.10. The Investigating Officer then proceeded to the spot, where he reached at 1.30 a.m. on 27-7-1984. The Police Officer, after preparing the necessary papers, sent the dead body of Ghulam Muhammad, deceased, for post-mortem examination. He recovered the blood-stained earth from the spot, vide memo Ex.PD, and the crime empty P.7, vide memo Ex.PE. The said recoveries were witnessed by Muhammad Yar PW 7, Ijaz Hussain SI PW 10 and Muhammad Mumtaz given up PW. On 27-6-1984 at 10.00 a.m. Dr.Inayat Ullah PW 9 conducted the postmortem examination on the dead body of Ghulam Muhammad, deceased, and found one fire-arm wound of entry 6 cm x 4 cm en the front left side of the chest. On internal examination, 6th, 7th and 8th left ribs were found fractured. The left atrium, left ventricle of heart and the right side of the liver were found lacerated. Many pellets were removed from the liver and chest cavity. Death was due to the fire-arm injury, which was sufficient to cause death in the ordinary course of nature. Probable duration between the injury and death was immediate and that between death and post-mortem examination was about fifteen hours. On 12-7-1984 Muhammad Iqbal, Salehoon Muhammad and Ahmad Yar, accused, were arrested by Muhammad Aslam SI PW

11. Muhammad Iqbal, accused had on his person gun P.5 alongwith three live cartridges, which were taken into possession vide memo Ex.PF, in the presence of Muhammad Hussain PW 6, Muhammad Aslam SI PW 11 and Allah Bakhsh given up PW. On 16-7-1984 Mst. Hayat Bibi, accused, was arrested by Muhammad Aslam SI PW

11. The earth recovered from the spot was found to be blood-stained. The crime empty recovered from the spot was found to match with the gun P.5 recovered at the instance of Muhammad Iqbal, accused. After completing the necessary investigation, the challan against all the four accused was sent up. At the trial, the prosecution produced Muhammad Yar PW 7 and Saleh Muhammad PW 8 to prove the motive and the ocular account, Muhammad Hussain PW 6, Muhammad Yar PW 7 and Ijaz Hussain SI PW 10 and Muhammad Aslam SI PW 11 in proof of the recoveries and Dr.Inayat Ullah PW 9 in corroboration of the medical testimony. All the accused denied all the accusations that were levelled against them. All the accused admitted their inter se relationship, but denied that Salehoon Muhammad, accused, was phuphizad of Muhammad Iqbal, accused. Muhammad Iqbal, accused, denied the recovery alleged to have been produced by him. The trial Judge, placing in juxtaposition the case of the prosecution and that of the defence, found that the prosecution case stood proved against Muhammad Iqbal, accused, alone and, therefore, convicted and sentenced him, as stated in para above, and acquitted the rest.

3. I have heard the arguments of the learned counsel for the appellant, the complainant and the State and have perused the record. The evidence as regards motive is furnished by Muhammad Yar PW 7 and Saleh Muhammad PW

8. According to their version, Ghulam Muhammad, deceased, had promised to give the hand of his daughter Mst.Sidan to Ahmad Yar, acquitted accused, but later had refused to fulfil his promise on account of the bad character of the said acquitted, accused. To avenge that insult, the three acquitted accused and, Muhammad Iqbal, appellant, had committed the murder of Ghulam Muhammad, deceased. Nothing has been brought on the record to suggest that the evidence as regards motive is untrue or cannot be" safely accepted. In the circumstances, I would hold that the motive stands firmly established. The ocular account in this case is furnished by Muhammad Hayat PW 7 and Saleh Muhammad, complainant' PW 8, who happened to be the son and brother respectively of Ghulam Muhammad, deceased. Their account of the version also stands reproduced in para.2 above and need not be repeated. Though Muhammad Iqbal, appellant, in his statement under section 342, C r . P. C ., did not admit his participation, but pleaded his false involvement due to his relationship with Ahmad Yar, acquitted accused, and his enmity with the prosecution witnesses, yet in questions in cross-examination put to Muhammad Yar PW 7 and Saleh Muhammad PW 8 he admitted his participation, though in some what different circumstances. According to the questions put to the said two witnesses in cross-examination it was suggested that Ghulam Muhammad deceased, had demanded the hand of Mst.Zohra, sister of Ahmad Yar, acquitted accused, for Muhammad Yar PW 7 and tried to secure her forcibly, that on the day of occurrence Ghulam Muhammad, deceased, assaulted Ahmad Yar, acquitted accused, and threatened him that by evening he would take away Mst.Zohra forcibly, that a` about 7.00 p.m. Ghulam Muhammad, deceased, and Muhammad Yar PW 7, armed with dagger and chhuri, went to the house of Ahmad Yar, acquitted accused, and tried to forcibly lift Mst.Zohra, when Muhammad, Iqbal, appellant, came there and in order to save Mst. Zohra he fired at Ghulam Muhammad, deceased with his gun, which was lying nearby, which suggestions were denied by both the witnesses. Placing in juxtaposition the case of the prosecution and the defence, the learned trial Judge found that the evidence on the record and the surrounding' circumstances did clearly show that Muhammad lqbal, appellant, was guilty of the offence imputed to him. The learned counsel for the appellant has not been able to displace this inference. It is not possible to believe the defence version, in the absence of proper witnesses on behalf of the defence to support such a story. Even otherwise, nothing appears on the record from which such an inference` can be drawn from the evidence on the record. Had the defence story been true, Ahmad Yar, acquitted-accused, would have been the first person to press such a story in his statement under section 342, Cr.P.C., which he did not do. In these circumstances, I have no hesitation but to reject the defence version. Even otherwise, the evidence of Muhammad Hayat PW 7 and Saleh Muhammad PW 8, qua Muhammad Iqbal, appellant, and Ahmad Yar, acquitted-accused, is' natural, clear and convincing and has the ring of truth. The participation, therefore, of Muhammad Iqbal, appellant, stands firmly established in the case, ever' by the ocular testimony.

4. Since participation has been impliedly admitted on the part of Muhammad Iqbal, appellant, there is no need to look for any corroboration in the case. However, if any is required, the fact that the licensed gun P 5 recovered from the person of Muhammad Iqbal, I appellant, when he was arrested, matched with the crime empty P 7 recovered from the spot, acts as strong incriminatory evidence against Muhammad Iqbal, appellant, to prove his participation. This, with the medical testimony, conclusively proves the case to the hilt against the appellant. The only question that now remains is that relating to sentence. On behalf of the appellant, it is pleaded that he was sixteen years old at the time of occurrence and that being provoked due to the attempt made by Ghulam Muhammad deceased, and his son Muhammad Yar PW 7 to abduct Mst.Zohra, the daughter of his maternal aunt, he should be convicted under section 304-I, PPC. I am afraid I cannot accept this submission. The defence story already stands disbelieved. Whether there was any animus or not, the fact remains that Muhammad Iqbal, appellant, fired at and mortally wounded Ghulam Muhammad, deceased, with his father's licensed gun, by firing straight at his chest. The offence, therefore, appears to be one under section 302 PPC. The appellant appears to have been properly convicted and', sentenced under the said section. I would, therefore, dismiss his appeal. I now take up the revision petition filed by Saleh Muhammad, complainant. There are no good grounds for setting aside the acquittal of Salehoon Muhammad, Ahmad Yar and Mst.Hayat Bibi acquitted accused. I would, therefore, dismiss this revision petition in limine. It appears that the learned trial Judge inadvertently did rot award any compensation to the legal heirs of Ghulam Muhammad deceased, under section 544-A, Cr.P.C., for there is no conscious order giving reasons for not granting the same. I would, therefore, order that Muhammad Iqbal, appellant, shall pay Rupees five thousand (Rs.5,000) to the legal heirs of Ghulam Muhammad deceased, as compensation under section 544-A, Cr.P.C., or in default thereof to undergo further rigorous imprisonment for one year.

5. For the foregoing reasons both the appeal (Cr: A . 53 of 1986) and the private revision (Cr:R.224 of 1986) stand dismissed. S . A . / M-288/ L Appeal dismissed.