Ch. Iftikhar Hussain, J.--Appellant Akbar Ali alias. Sahib son of Noor Muhammad, caste Dogar, resident of Gajan Singh Wala, P.S. Chhanga Manga, Tehsil Chunian, District Kasur was tried under Section 302 PPC in case FIR No, 135 registered with Police Station Chhanga Manga, Tehsil Chunian, District Kasur on 16.06.1997 for on the same day i,e, 16.06.1997 at about 12:30 night committing the Qatal-e-Amd of deceased Boora in his Haveli situated in the aforesaid village within the area of P.S. Chhanga Manga, Tehsil Chunian, District Kasur.
2. He on the conclusion of the trial Was found guilty of the charge of Qatal-e-Arnd of the deceased.
He so vide the judgment rendered on 20.06.2000 by Mian Altaf Hussain, learned Additional Sessions Judge, Kasur was convicted under Section 302(b) PPC and sentenced to death subject to confirmation by this Court and to pay compensation Rs, 50,000/- under Section 544-A Cr. P.C. to the legal heirs of the deceased.
3. He feeling himself aggrieved of the impugned judgment of his conviction and sentence has brought the same under attack by way of the above mentioned Appeal (No, 942 of 2000).
4. The above mentioned Murder Reference (No, 372 of 2000) has been submitted to this Court by the learned trial Court for confirmation of his death sentence as required under Section 374 Cr.P.C.
5. As both these matters have arisen out of one case, hence are being disposed of by this single judgment.
6. Briefly the facts relevant for the disposal of these matters are that the aforesaid case has been registered on the statement Ex. PE of complainant Riasat. Ali (PW-7). He has mentioned therein that in the night on 16.06.1997, he alongwith Muhammad Ashiq and Khalil Ahmad, his cousins and father Boora were asleep in his Haveli. There is no main gate to the Haveli. The electric bulb was lit in the same. At about 12:30 night Akbar alias Sahib came there. He got woke up his father. On hearing his voice he and his companions woke up. He inquired from him in loud .voice that why he has come at such late hours of the night but he did not give any reply to the same and fired at &bra, which hit him on his left knee and it went through the other side. His father on receipt of the fire fell down. On their noise, the people of the village rushed to the spot. Akbar alias Sahib managed good his escape by taking benefit of the darkness of the night. He alongwith his companions put his father in a wagon and took him to the hospital at Chhunian for treatment, who during the same succumbed to his injuries.
The motive behind the occurrence is that about a year ago Nadir, the paternal cousin of the accused had occupied his land. The accused had suspicion that he had done so at the instance of his father. He on account of the grudge over the same has murdered him.
7. The appellant after due investigation was challened to the Court. He was formally charged under Section 302 PPC for committing the Qatal-e-Amd of the deceased on the above said date, time and place. He did not plead guilty.
8. The prosecution at his trial 'examined it's 11 witnesses. They were Rana Niaz-ud-Din (PW-1), Shaukat Ali (PW-2), Dr. Nawab Din (PW-3), Rehmat Ali-Draftsman (PW-4), Farmayesh Ali-HC (PW- 5), Hakim Ali-Constable (PW-6), Riasat Ali-Complainant (PW-7), Muhammad Ashiq (PW-8), Muhammad Din (PW-9), Zakir Ali (PW-10) and Dr. Shaukat Ali (PW-11).
9. The report, of Chemical Examiner, Ex. PL and that of the Serologist Ex. PN and Forensic Science Laboratory Ex. PN were tendered in the evidence.
10. The appellant in his examination under Section 342 Cr.P.0 has denied the allegation appearing against him in the prosecution evidence. He while pleading innocence has stated that: "The real facts of the case are that it is night time occurrence and it is blind murder. The prosecution failed to prove the motive against me. The eye-witnesses are very close related to the deceased and from the evidence, it is crystal clear that none of the PWs were present at the time of alleged occurrence and they had not seen the occurrence because prosecution could not prove the source of light at the place of occurrence. The fact is that the complainant party demanded the hand of Mst. Sharifan Bibi daughter of Dara who is my cousin. I resisted and due my resistance the complainant party failed to get the hand of said Mst. Sharifan Bibi: due to this grudge the complainant party has involved me in this case.
11.He, however, .neither opted to adduce evidence in defence nor to depose on oath in disproof of the allegation appearing against him in the prosecution evidence.
12.11-A. The learned trial Court after hearing the parties came to the conclusion that the prosecution has succeeded in proving the charge against him beyond any shadow of reasonable doubt. and it so has convicted and sentenced him as mentioned above.
12. It has been argued on his behalf that it was a night occurrence and the assailant was unknown and he has been involved in the instant case due to enmity; that the medical evidence is not in consonance with the ocular testimony as the size of the entry wound is larger than the exit wound while in the ordinary course of things it should have been otherwise and this apparent inconsistency in the two sets of the prosecution evidence has, cast doubt on the veracity of the prosecution version against him; that the motive in this case is not convincing and the same has also not been proved satisfactorily; that the recovery of crime weapon pistol is inconsequential as neither any empty was recovered from the spot not matching report of the expert is available to the prosecution to use against him; and that in any case the sentence of death in his case is too excessive to be maintained.
13. Conversely, the learned State counsel assisted by the learned counsel for the complainant has supported the impugned judgment saying that the ocular account in this case is worth the consideration inasmuch as that it was a night occurrence and had taken place in the own Haveli of the complainant where he and his cousins could naturally be present; that it has sufficiently been proved on the record that there was bulb light at the venue of the occurrence and the appellant is the relative of the complainant party and so there could not be any possibility of mistaken identity of the assailant/appellant by them and that they had duly identified him at the place of occurrence while firing at the deceased; that in the MLR Ex. PK of the deceased the name of the complainant is mentioned as the person who had brought him to the hospital at about 01:30 a.m. on the day of occurrence and it was within one hour of the incident and this fact heavily suggests that he was present at the venue at the relevant time and had witnessed the occurrence and so he rushed his father to the hospital so soon after receipt of injury by him; and that the FIR too was lodged within three hours of the incident while the distance of the police station from the place of occurrence was about 18 Kilometers and this promptitude in the FIR heavily suggests that it was without any consultation and concoction and the same could validly be used to corroborate it's maker and this also makes the evidence of he complainant and the other eyewitness namely Muhammad Ashiq to be believable; that name of Muhammad Ashiq PW also finds mention in the post-mortem report as the person who has identified the deadbody of the deceased at the time of post-mortem examination and this too was within about eight hours of the incident and so he too appears to be a witness who had seen the incident and so a reliable witness; that the medical evidence has not full corroboration to the ocular testimony as the fire had hit the left of the deceased and fractured the bone and so the size of the exit wound has smaller than the entry wound and there was no abnormality in the same and so it is not right to say that there in any conflict in these two sets of the prosecution; that the motive is convincing and the same amply stood proved on the record and all such pieces of the prosecution evidence have Droved the guilt of the appellant to the hilt and he so has rightly been convicted and sentenced; that he has taken the life of an innocent person and so there exists no mitigating circumstance for lesser penalty to him than the death.
14.We have carefully considered the submissions made from all the sides with the help of the available record.
15.The ocular account of the prosecution has been unfolded by Riasat Ali (PW-7) and Muhammad Ashiq (PW-8). They have narrated the details of the incident. It is almost in line of the FIR Ex. PE. They are quite , unanimous to each other as regards the time, venue and the mode of the incident.
16. It was a night occurrence. Riasat Ali is the inmate of the house.
His presence at the spot at the relevant time was quite a natural phenomena. Muhammad Ashiq is his cousin. He has also given cause of his presence there. According to him, he had been sleeping in that Haveli since his childhood. He is the relative of the deceased and in the habit of doing so. So, his presence at the spot at the relevant time could not be doubted. He, therefore, seems to be a natural witness of the incident.
17.The incident had taken place at 12:30 night on the relevant day. The deceased in injured condition was removed to the hospital within an hour. The name of complainant Riasat Ali finds mention in his MLR Ex. PK. This suggests that he was present at the spot and had witnessed the occurrence. The report Ex. PE was made to the police within about three hours of the incident. The distance of police station from the place of occurrence is about 18 Kilometers. The deceased firstly was removed to the hospital in an injured condition for treatment. This was a natural conduct on the part of the complainant being son of the deceased. He after the expire of the deceased had lodged the report to the police This, thus was with utmost promptitude.
18.It is to be mentioned here that such promptly lodged FIR could be used to corroborate it's maker. It has contained the name of the assailant, the weapon carried by him, the names of the eye-witnesses and the manner of happening of the incident.
19. It is a case of single accused. There could not be any possibility of substitution of the real culprit for an innocent person. It is amply available in the evidence of the eye-witnesses and site- plan Ex. PD that there were bulbs lit at the spot at the relevant time. The appellant is the relative of the complainant party.. So, there could not be any mistake with them of his identity. The eye- witnesses appeared to have no ill will or enmity against him prior to the occurrence. They, therefore, were reliable witnesses. Their evidence has fully established his act of having fired at the deceased, who died as a result of the injuries suffered by him.
20. The medical evidence is fully inconsonance with the ocular account. Dr. Shaukat Ali (PW-11), who has initially examined the deceased when he was alive and in an injured condition. He found the following injures on his person:- 1.A lacerated wound (1/2) x (1/2) cm underneath bone is fractured into pieces burning scorching was present on left knee. Profused bleeding through the wound knee was markedly swollen, margins were inverted.
2.A lacerated wound (1/2) cm with averted margin on back of left knee (Popliteal region) profused bleeding was due to laceration of poplitcal vessels.
21. These according to him were with fire-arm within two hours of his examination. He produced his Medico-Co-Legal Report Ex. PK and Diagram Ex. PK/1 and K/2 to be in his hand and bearing his signatures.
22. Dr. Nawab Din (PW-3) has conducted autopsy on the dead body of the deceased. He found the following two injuries on his dead body. .23. According to him, these were sufficient to cause death in the ordinary course of nature. The time between injury and death was one to two hours and between death and post-mortem 6 to 8 hours. He produced his report Ex.PC and Diagram Ex. PC/1 and Ex. PC/2. The deceased was removed to the hospital immediately on the receipt of fire at his body at the hands of the appellant. He was examined while alive in injured condition at about 1:30 a.m. the same day. The incident had taken place at about 12:30 night. The time of suffering of injuries by the deceased and his medical examination fully tallies with the time as has been described in the ocular account. The similar is the position in the evidence of Dr. Nawab Din PW-3, who has conducted the autopsy on the deadbody of the deceased. The fire hit the deceased at his left knee. According to the said doctor, the left femur bone was fractured into pieces and left tibia bone in it's upper part. This shows that the fire had smashed the bones into pieces and that is why entry wound was larger than the exit.
According to (PW-3), the hemorrhage caused due to injury and bleeding from popliteal vessels resulted into the death of the deceased and this was sufficient to cause death in the ordinary course of nature. SO, the medical evidence is fully in line with the ocular account. There is no contradiction at all in these two sets of the prosecution evidence. The contention of the appellant's side regarding contradiction in the two is absolutely is without force. The same, therefore, is repelled.
24.Riasat Ali PW has narrated the motive. It is the same as has been mentioned by him in Ex. PE.
According to him Nadir the cousin of the appellant has occupied his land. The appellant had misunderstanding that the deceased had got possession of the land to Nadir. He bore grudge against him on that account and committed his murder. Riasat Ali is found to be a reliable witness as he has no animus at all against him. There, thus seems no reason not to believe him on this aspect of the prosecution case. The appellant has not denied that the said Nadir has occupied his land. He therefore, could have motive to kill the deceased due to grudge against him on that count.
The motive, therefore, stood proved satisfactorily. The contention from the appellant's side in this regard is, repelled.
25.The evidence of recovery of the crime weapon pistol P-3 from the appellant is inconsequential as admittedly no crime empty was recovered from the spot and no matching report of the expert is available to the prosecution. Hence, this piece of evidence could not be used against him to corroborate the ocular testimony. The learned trial Court has erred in relying upon the evidence of recovery of crime weapon pistol P-3 from the appellant. The same is kept out of the consideration.
26. Anyway, due to the ocular account having been rendered by the trustworthy witnesses supported by the medical evidence and the motive, the charge against the appellant stood proved to the hilt. He, therefore, was rightly convicted for the Qatal-e-Amd of the deceased. He has taken the life of an innocent person without any due cause. There, thus has been found no extenuating circumstance in his case.
27.The locale of injuries of the injures of the deceased though was the left knee but due to excessive bleeding the deceased has expired within three hours of the receipt of the injuries by him. So, it makes no difference that the injures were not on the vital part of his body and the result of single shot. Hence no extenuating circumstance exists in the case of the appellant to take lenient view in the matter of sentence to him. The sentence has correctly been awarded to him. His convicted and sentence, therefore, thus is maintained.
28.The appeal, therefore, fails and the same is dismissed as such.
29.It is to be mentioned here that the learned trial Court has not mentioned at all the consequence to flow in the event of his failure to pay the compensation to the legal heirs of the deceased. He shall suffer six months simple imprisonment in default of payment of such compensation.
30.The Murder Reference is answered in the affirmative. The death sentence is confirmed.