P L D 1980 Supreme Court 109 (PLP)

SHAFI-UR-REHMAN, J.-Malik Yaran Khan, a practising lawyer of District Mianwali, was shot dead while on way to District Courts on the morning of 17th June 1972. His son Malik Amir (P. W. 13) also an Advocate, who was accompanying him, lodged a report at Police Station, Sadar, Mianwali within half an hour. He charged Ali Khan petitioner along with two others, Attar Khan and Muhammad Hayat for firing at him and on the. information received from one Anwar Beg while on way to Police Station charged Sikandar Hayat and Ghulam Muhammad of conspiring, with them to kill him. The motive given out was long outstanding enmity between the parties. The trial Court acquitted Sikandar Hayat and Ghulam Muhammad and convicted the other three, sentencing Ali Khan to death and two others to life imprisonment. The Lahore High Court maintained the conviction and sentence of Ali Khan but giving the benefit of doubt to the other two convicts acquitted them.

2. There are three petitions seeking leave to appeal. Two of them are by Ali Khan by which he wants to question his conviction and sentence under section 302, P. P. C. and under section 13 of the Arms Ordinance recorded in a separate trial. The third petition is by the complainant who wants to question the acquittal of the other two convicts.

3. The background of the occurrence was that in the year 1967 three persons were murdered of which report (Exh. P. L.) was lodged by All Khan petitioner. One of the murdered was brother of Ali Khan, the other father of Attar Khan acquitted accused and the third his paternal uncle. Malik Yaran Khan deceased was charged of conspiracy and Ahmad Sher (P. W. 15) and Mehr Elahi (not produced) were charged of their murder. That trial ended in acquittal. In 1968, Jehan Khan, the father of the petitioner Ali Khan, was murdered. For this Mumtaz, a nephew of Malik Yaran Khan was charged. In 1969 Allabyar, a brother of Malik Yaran Khan deceased, had lodged a report under section 148/307/429/149, P. P. C. against Ali Khan petitioner and others. In this case Malik Amir (P. W. 13) appeared as a witness. In 1970, Khizar Hayat a servant of Ali Khan petitioner, had fallen into a well. An application was filed by Malik Muhammad Sadiq a cousin of the deceased for initiating an inquiry into that matter and when it did not yield any fruitful result he filed a complaint about his being murdered on the ground that he was suspected of maintaining illicit relation with Ali Khan's sister.

4. On 17-1-1972, Malik Yaran Khan deceased along with his son Malik Amir (P. W. 13), his clerk Mehrban Khan (P. W. 14), Ahmad Sher (P. W. 15) and Mehr Elahi (not produced) was proceeding from his house to the Courts. On way they had just passed ahead of the hotel of one Abdullah when Ali Khan alerted them by shouting and simultaneously fired a shot hitting the deceased in the head. His companions the acquitted accused Attar Khan and Muhammad Hayat also fired shots. The assailants left the place, Malik Yaran Khan died immediately. Malik Amir started for the police station and on way he was informed by one Anwar Beg (not produced) that Ghulam. Muhammad and Sikandar Hayat were planning the previous evening the murder of Malik Yaran Khan. He lodged the report narrating what he had himself seen and what he was told by Anwar Beg. The report was recorded by Muhammad Sadiq, S. 1. (P. W. 17).

5. Dr. Muhammad Aslam Khan (P. W. 10) found in allien injuries on the dead body of Malik Yaran Khan, three of these were minor abrasions and the rest fire-arm injuries, five being entry wounds and two exit wounds. All the fire-arm entry wounds were on the back of the head on its right side and the doctor wa; of the opinion that "if afire-arm is discharged from a distance of 20 to 25 feet all these injuries can be caused with one shot". In the commitment Court he had stated that injuries on the person of the deceased were the result of more than one fire. Ali Khan's licensed gun was recovered in his absence at the instance of his brother. Soon after the occurrence he had, it appears, absconded and was arrested a year after the occurrence by Khan Muhammad Mohsin, D. S. P. (P. W. 7) on 20-2-1973 from near the bus stop of Bon Hafizji. On his arrest he led to the recovery of unlicensed gun from his Kotha in bhok Khund on 21-2-1973 which was taken into possession and for which he was separately tried under section 13 of the Arms Ordinance convicted and sentenced by the Sessions Judge and was required to undergo one year's rigorous imprisonment. The Lahore High during the course of the investigation but that does not mean that irrespective of what they claim to know about the occurrence they have to be produced as witnesses. It is only when they show an awareness of the occurrence, knowledge of the identity of the assailants or other relevant facts that they can find a place at the trial. Any reference to such material as is not on the record is impermissible, and any conclusion drawn from it would be only conjectural. The other submissions made by the learned counsel for the petitioner, namely that if Mehr Elahi and Ahmad Sher were present they would have been the more likely targets than the deceased or that if the deceased had also like others turned back to look at the accused when they called out to him to be alert, such an injury as was found could not have been caused, are entirely in the domain of the appraisement of the evidence and there is no plausible reason to go into it at this stage.

13. As regards the sentence, this Court has certainly held that in cases where the family honour relatable to females is involved, or there appears from the record a tradition of taking revenge, hardening into family duty aggravated to the extent of being an obsession with the accused, the lesser sentence is 11 awarded. In this case, however, that principle is not attracted for the deceased was not instrumental in causing any such grievance to the petitioner Ali Khan. This Court has, on the contrary, never considered taking of private revenge a mitigating circumstance in the matter of sentence.

14. As regards the petition filed by the complainant, two grounds have been taken up. In the first place, it is said that where the interested witnesses are taken to be the natural witnesses, truthful witnesses and to have identified and correctly named the assailants no further corroboration should have been looked for. Further, it is said that Mehrban (P. W. 14) should have been taken to be a disinterested witness providing the necessary corroboration. Secondly, it has been urged that the medical evidence has been misread for it did show that more than one shot was fired effectively at the deceased, and in that case the medical evidence was capable of providing the necessary corroboration. We have already considered why on the facts of this case, to be on the safer side, Mehrban could be taken to be an interested witness. Though theoretically even the statement of interested witnesses is capable of being accepted without further corroboration but such would be an . "exceptional witness" or witnesses and there is nothing on the record which may justify the classification of these witnesses as such. The Courts were therefore justified in looking for corroboration. The medical evidence could not provide it because the doctor made a positive statement in the trial Court that "if a fire-arm is discharged from a distance of 20 to 25 feet all these injuries can be caused with one shot" The distance shown according to the site-plan was in the neighbourhood of 38 feet.

15. As regards the conviction and sentence of Ali Khan petitioner under section 13 of the Arms Ordinance it proce-.ds on evidence accepted by both the Courts.

16. All the three petitions are, therefore, dismissed as being without merit. s. A. H. Petitions dismissed.