' MIAN MUHAMMAD NAJAMUZ-ZAMAN, J.---Appellant Dilmeer was tried for the murder of one Ghulam Fareed in case F.I.R. No, 163/1997 dated 22-11-1997 registered under section 302, P.P.C. At Police Station Arooti District Toba Tek Singh by the Addl. Sessions Judge Kamalia, who vide judgment dated 31-8-1999 convicted the appellant under section 302 P.P.C. And sentenced him to death as Taazir. Appellant was also directed to pay compensation amounting to Rs,30,000 to the legal heirs of the deceased as required under section 544-A, Cr.P.C. To be recoverable as arrears of land revenue.
2. Calling in question his conviction and sentence appellant filed Cr1. A. No,1001 of 1999 while trial Court has made a reference (M.R. 368 1999) seeking confirmation of death awarded to the appellant. Both these matters are being disposed of together by this judgment.
3. Ghulam Fareed appellant was done to death within the area of village Dargahipur Thatha Bhadruwala which was about 12 miles away from Police Station Arooti, F.I.R. Exh.PH/1 was entered upon the statement of Naseer Ahmad (P.W.7) son of the deceased.
4. Facts of the prosecution case as narrated in the F.I.R., are that on 22-11-1997 complainant, his father Ghulam Fareed, his brother Nusrat Hayat and other family members were sleeping in their house and at about 2-30 p.m. On hearing the barking of the dogs complainant along with his father and brother came out of the house. Statedly, Ghulam Fareed was ahead of them when they saw Dalmeer appellant armed with .12 bore gun and within their view appellant made two successive fires which hit Ghulam Fareed (father of the complainant) on his right shin and thigh who fell down and thereafter accused fled away from the spot. This occurrence was also witnessed by Muhammad Ramzan neighbour of the complainant who had also come out of his house on hearing the barking of the dogs. The injured was removed to the hospital by the witnesses where he succumbed to the injuries.
' Motive for this occurrence as narrated in the F.I.R. Was that father of the complainant purchased four kanals of land from the brother of appellant which was in the possession of the appellant. One day prior to the occurrence i.e, 21-11-1997 complainant party ploughed the land after taking over the possession. Statedly, due to the said grudge accused appellant had committed the murder of Ghulam Fareed.
5. On the same day i.e, day of occurrence Ehsan-ul-Haq S.-I. P.W.14 was on patrol duty was present at Sindellianwala Chowk when at 10-00 a.m. Naseer Ahmad complainant P.W.7 met him and made statement Exh.PH on the basis of the same F.I.R. Exh.PH/1 was recorded at the police station.
Thereafter the Police Officer went to Civil Hospital, Peer Mahal and after examining the dead body, prepared injury statement Exh.PC, inquest report Exh.PD and sent the dead-body to the mortuary for post-mortem examination. On the same day police officer also visited the spot and prepared rough site plan Exh.PL, collected blood-stained earth vide recovery memo. Exh.PK and recorded statements of the witnesses under section 161, Cr.P.C. At the same time the complainant of this case also produced before him two empties of cartridges of .12 bore gun which he had collected from the spot. The same were taken into possession vide recovery memo. Exh.PJ. On the same day last worn clothes of the deceased were also produced before the Investigating Officer which were taken into possession vide memo. Exh.PE. During the investigation police officer also got prepared scaled site plan Exhs.PA and PA/1 through draftsman Muhammad Ashraf. On 22-12-1997 appellant was arrested by Arif Ali A.S.-I. P.W.12.
' This case was also investigated by Mukhtar Ahmad A.S.-I. P.W.6. During his investigation on 30-12- 1997 appellant led to the recovery of gun P.4 along with two live cartridges Exhs. P.5 and P.6 and the same were taken into possession vide memo. Exh. PF. Finally the Investigating Officer after complying with legal formalities submitted challan before the trial Court where prosecution produced fourteen witnesses to prove the charge against the appellant.
6. Muhammad Ashraf Draftsman P.W.1 prepared scaled site plan Exhs.PA and PA/1. Dr. Ehsan-ur- Rasheed P. W . 2 conducted post-mortem examination on the dead body of Ghulam Fareed and observed the following injuries:---
(1) Four firearm wounds each about 3 c.m. In diameter x skin deep in the area of 3 c.m. x 3 c.m. On the right side of head 7 c.m. From right ear. These wounds were due to slip of pellets.
(2) Multiple entry wounds of pellets of firearm cartridges in the area of 19 c.m. x 14 c.m. With central lacerated extensive wound 7 c.m. x 5 1/2 c.m. x DNP and rest of area was covered with multiple entries of pellets each about 0.3 c.m. x 0.3 c.m. In diameter on the back of right thigh 16 c.m. From right popliteal fossa.
(3) Exit wound of injury No, 2 was 2.5 c.m. x 1.5 c.m. x DNP on the front and inner side of upper part of right thigh just near the testical.
(4) An entry wound in the area of 17 c.m. x 9 c.m. With extensive wound area 3 c.m. x 3 c.m. In the centre into DNP and rest area is covered with multiple pellets entries each about 0.3 c.m. x 0.3 c.m.
On the back of right leg.
(5) Two firearm wounds each about 0.3 c.m. In diameter into skin deep in the area of 2.5 c.m. x 2 c.m. On the front and centre of lower abdomen.
(6) Four firearm wounds each 0.3 c.m. In diameter x skin-deep in the area of 6 c.m. x 4 c.m. On the back and outer side of lower end of left forearm.
' In the opinion of doctor death occurred due to shock and haemorrhage caused by injuries Nos. 2, 3 and 4 which were sufficient to cause death in the ordinary course of nature.
' Ghulam Raza FC P.W.3 took the dead body to the mortuary of post-mortem examination and after the same handed over the last worn clothes of the deceased to the Investigating Officer, Muhammad Ameen FC P.W.4 took the parcels (case property) to the relevant offices and delivered the same intact. Javaid Iqbal FC P.W.5 took the parcels along with five live cartridges to the office of Forensic Science Laboratory and delivered the same intact. Muhtar Ahmad A.S.-I. P.W.6, Arif All A.S.- I. P.W.12 and Ehsan-ul-Haq S.-I.P.W.14 conducted investigation in this case as narrated earlier.
Naseer Ahmad P.W.7, Muhammad Ramzan P.W. 8 and Nusrat Hayat P.W.9 being the eye-witnesses while supporting the prosecution case, narrated the circumstances under which the appellant had committed the murder of Ghulam Fareed. Muhammad Ramzan P.W.10 identified the dead body of Ghulam Fareed at the time of post-mortem examination. Khursheed P.W.Ll was present when appellant led to the recovery of crime weapon. He also signed the recovery memo, in this regard.
Ijaz Hussain FC P.W.13 entered formal F.I.R. Exh. PH/1 at the police station. He also kept the parcels (case property) in the Malkhana for safe custody and later on delivered the same to the constable for onward transmission to the relevant office.
7. S.P.P. Tendered in evidence report of Forensic Science Laboratory Exh. PM, that of Chemical Examiner Exh. PN and Serologist Exh. PO and closed the prosecution case.
8. Trial Court also examined the appellant under section 342, Cr.P.C. While answering to the question, why this case against you and why the witnesses deposed against you? Appellant replied as under:-- ' "My younger brother Shameer and I along with other share holders are co-shares in agricultural ldhd situated in Mauza Daidi at a distance of 7 squares from my house. My brother had a share of 4 kanals whereas, I own 8 kanals of agricultural land in the said Mauza. Naseer Ahmad (complainant), Nusrat Hay at P.W. And their two brothers Muhammad Ramzan and Bashir Ahmad had got the share of my brother in the above agricultural land transferred to their names through oral mutation, fraudulently. On coming to know about this fraudulent transfer of his share by the complainant party my brother had filed a suit for declaration in the Court of Civil Judge, Kamalia against the complainant party and obtained temporary injunction thereof. My brother was not in a position to bear the expenses, thereof, I shared the expenses of his case with him. Though I too was not in a sound financial position, however, being elder brother felt my responsibility to extent my help to my younger brother and purused the above civil suit myself. Certified copy Exh.Dl is order of the Civil Court dated 22-10-1997. Temporary injunction however was extended afterwards. The complainant party had felt that I am of the main obstacle in their way in fulfilment of evil desire.
Therefore, they had dragged me in this case after developing a false story of motive with regard to taking over the possession of 4 kanals of land owned on the day of taking over the so called possession of the land by the complainant party I was not present there at the spot. I had gone to Abdul Hakeem in connection with domestic affair on 22-11-1997 and returned home late at night at about 10/11 p.m. And thereafter I went on asleep in my house on the morning of 22-11-1997. I had heard that the deceased had been murdered. The complainant party however had taken possession of my own share of my land after the registration of this case. Whereas, the complainant party had got no right to take forcible possession of my own land. Now the complainant had been keeping my share in the land as well as the share of my brother in the above land after registered of this case. This false case, the P.Ws. Have deposed against me due to the above said enmity and are inter se related. "
' The appellant did not make any statement under section 340(2), Cr.P.C. Nor produce any evidence in defence.
9. Trial Court after appraisal of evidence available on record vide judgment dated 31-8-1999, convicted and sentenced the appellant as narrated earlier.
10. While challenging the legality of the impugned judgment learned counsel for the appellant argued that Ghulam Fareed was done to death by some unknown persons during the dark hours of the night; none of the prosecution witness was present at the spot but were later on introduced just to strengthen the prosecution case; that the alleged motive for the murder of Ghulam Fareed deceased was not proved by the prosecution during the trial; evidence of recovery to connect the appellant with the commission of this offence was tailored during investigation and that the medical evidence contradicts the ocular account. It was finally argued that in the circumstances trial Court had erroneously convicted and sentenced the appellant. Conversely, learned counsel for the State while supporting the impugned judgment, vehemently opposed the contentions raised by the learned counsel for the appellant.
11. With the able assistance of learned counsel for the parties, we have minutely gone through the record of this case.
12. In order to prove the charge against the appellant prosecution has relied upon the statement of three eye-witnesses namely Naseer Ahmad P.W.7 Muhammad Ramzan P.W.8 and Nusrat Hayat P.W.9 and sought corroboration from the evidence of recovery, motive and the medico-legal reports.
13. The bone of contention for this occurrence was a dispute over the possession of four kanals agricultural land. This land was owned by Shamsher brother of the appellant but the possession of the same was with the appellant. Statedly this land was sold to the complainant party by the brother of the appellant and one day prior to the occurrence the complainant party had taken over the possession of the same. Admittedly the said land is also a subject matter of a civil suit for declaration filed by Shamsher (brother of the appellant) against the complainant party. The fact that the relations between the parties were strained because of the said piece of agricultural land is also apparent from the statement of the appellant made under section 342, Cr.P.C.
' On the day of occurrence at about 2-30 a.m. On hearing the barking of dogs deceased along with his two sons namely Naseer Ahmad P.W.7 and Nusrat Hayat P.W.9 came out of his house. In the meantime their neighbour Muhammad Ramzan (P.W.8) also came in the street and in the light of electric bulb they saw appellant being armed with a 12 bore gun. Within the view of Sie witnesses appellant made two fires from his gun which hit Ghulam Fareed on different parts of his body as a result of which he fell down and died in the hospital later on. The scaled site plan Exhs. PA and PA/1 prepared, by Muhammad Ashraf Draftsman P.W.l and first inspection report prepared by Ehsan- ul- Haq S.-I. P.W.14 clearly show that at the relevant time there was sufficient light of electric bulb to identify the appellant. The presence of .Eye-witnesses at the relevant time being the residents of the area was very normal and natural. All of them while supporting the prosecution case unanimously stated that it was appellant who had fired at Ghulam Fareed (deceased) as a result of which he received injuries on different parts of his body and died later on in the hospital.
' The ocular account to the extent of firearm injuries on the right thigh and leg of the deceased as mentioned in the F.I.R. As well as by the witnesses before the trial Court find support/corroboration from the post-mortem report prepared by Dr. Ehsan- ur-Rasheed P.W.2. As far the rest of the injuries on the person of deceased mentioned in the post-mortem report are concerned, the site plan Exh.PA reveals that the appellant had fired from a distance of 34 feet and from such a distance the spread of pellets of a fire made from .12 bore gun is wide enough to cover the entire body of a well built man. The possibility that the rest of the injuries were also the result of same two fires which were made by the appellant could not be ruled out. Even otherwise it is well settled that prosecution witnesses are not expected to explain each and every injury on the person of deceased especially when the same were caused by a weapon like firearm. Similarly the ocular account also find corroboration from the recovery evidence. The report from the office of Forensic Science Laboratory Exh. PM reveals that empties recovered from the spot had matched with the firearm weapon recovered at the instance of the appellant.
' In a case of single accused substitution by kith and kin by leaving the real culprit is a rare phenomenon. In this case two sons of the deceased along with their neighbour who is an absolutely independent witness, have deposed against the appellant. The statement of these witnesses which are persuasive in nature and find support corroboration from the evidence of recovery medico-legal reports and motive for the commission of this offence are sufficient to uphold the conviction and sentence of the appellant. This appeal has no merits, the same stands dismissed.
' Death sentence is confirmed and the murder reference is answered in the affirmative.