ABAIDULLAH KHAN, J.-Sadiq, son of Shahu, Kashmiri by caste, resident of village Shabdiwal, Police Station Karianwala, district Gujrat, has come up in appeal against the judgment of the learned Additional Sessions Judge, Gujrat, dated the 30th August, 1979, whereby he was convicted under section 302 of the Pakistan Penal Code for committing the murder of Muhammad Sarwar, son of Muhammad Ashraf, aged about 25 years, on the 1March, 1972, at about 9.30 p. m., in a room of Aziz Bhatti Shaheed Hospital, Gujrat, which is at a distance of a mile from Police Station, Sadar Gujrat and sentenced to suffer death and pay a fine of Rs. 5,000.00 as also an additional amount of Rs.
5,000,00 as compensa--tion to the heirs of the deceased. He was to pass rigorous imprisonment for two years for non-payment of fine and rigorous imprisonment for a further period of two years in making default in paying the amount of compensation. Murder Reference No. 283 of 1979 for confirmation of his sentence of death is also before us. This judgment will dispose of both his appeal and the murder reference.
2. The appellant's brother, Fazal, Asghar and Fatal Elahi, sons of Hakim Khan, Mian Khan, Bahadur and his son, Iqbal, another Iqbal son of Lal Khan, Muhammad Khan and Inayat were challaned by the Police alongwith the appellant to face trial. Fazal Elahi, Iqbal son of Bahadur, Muhammad Khan and Inayat died before the conclusion of the trial of the case. Fazal, Asghar, Mian Khan, Bahadur and Iqbal son of Lal Khan were acquitted by the learned trial Judge.
3. Hussaina, who was alleged to have been an accomplice of the appellant in the commission of crime, had been declared to be a proclaim--ed offender. He has not yet been apprehended.
4. There had existed previous enmity between the parties of the appellant and the deceased. The two rival parties bad been engaged in assaulting and murdering their opponents. Thest circumstances motivating the appellant in doing away with the deceased, as may be gleaned from the prosecution case, are these. About 18 or 19 days before the occur--occurrence of the present case Mst. Raftaj Begum, were of a proclaimed offender named Khanu, was murdered in village Shabdiwal, tehsil and District Gujrat, and case regarding her murder was registered against Muhammad Sarwar deceased. A fortnight thereafter Khanu, in order to avenge the murder of his were, attacked Muhammad Sarwar deceased with a view to finish him. However, the deceased was able to kill Khanu by gunfire though he was himself injured. The deceased was arrested for his having allegedly murdered Mst. Raftaj Begum and being in injured condition was admitted to Aziz Bhatti Shaheed Hospital, Gujrat, on the 27th February, 1972. An armed police guard was posted over the deceased in the hospital. To wreak vengeance upon the deceased for his having assassina-- ted Khanu and Mst. Raftaj Begum the appellant armed with a Sten-gun and his co-accused armed with a rifle each came close to the room wherein the deceased was lying- at about 9.30 p.m., on the Ist March, 1972. All of a sudden the appellant opened fire with the Sten-gun he was carrying and the shots hit the deceased on his head, chest and abdomen. The deceased succumbed to the injuries received by him as a result of the Sten-gun shots. Ghulam Sarwar (P. W. 12) was also injured with a shot. Splinters of window pane broken on account of firing hit Ghulam Sarwar (P. W. 12) causing him injuries Asghar, acquitted accused, is also said to have fired with his rifle but the shot did not hit anyone. None of the other accused opened fire though they stood alert armed with rifles.
Gul Hussain Shah, Police Constable, standing guard at the time of occurrence, P. W. 4, fired two shots with his rifle towards the assailants. Sahib Dad, mother's brother of the deceased, P. W. 10, who was present in the room where the deceased was, witnessed the occurrence. Wali Dad, P. W.
13, who had visited the deceased to inquire about his health had just left the room and gone out to urinate before the attack was launched by the appellant.
5. After the occurrence the Medical Officer of the hospital informed the Station House Officer of Police Station Sadar Gujrat through the letter, Exh. PE/l, that Muhammad Sarwar who had been in police custody in private ward of the hospital had been shot dead and asked him to take necessary action. Mahboob Alam, Assistant Sub Inspector of Police of Police Station Sadar Gujrat, P.
W. 6, repaired to the hospital where he took down at 11.00 p. m., the same day Sahib Dad's statement, Exh. PB, which constitutes the first information report. On its basis formal first information report, Exh. PB/A, was registered a quarter of an hour later at Police Station Sadar Gujrat by Muhammad Nazif, Mohariar Assistant Sub Inspector, P. W. 8.
6. Shortly thereafter Malik Sikandar Hayat, Sub Inspector of Police and the then Station House - Officer, Police Station Sadar Gujrat, P. W. 11, reached the spot. Gul Hussain Shah (P. W. 4) produced before him two empties of -303 bore rifle bullets which he-took in his possession vide memorandum, Exh. PA. He picked up 10 empties of bullets, Exh. P. 5/1--10, from the southern verandah abutting the room in which the deceased was lying when be had been fired upon and secured them in his possession vide memorandum, Exh. PE. He collected two led portions of the bullets from underneath the cot of the deceased and took them in his possession vide memorandum, Exh. PG. Broken pieces of window glass were also taken possession of by him 'vide memorandum, Exh. PC. The aforesaid memoranda were attested by Sahib Dad (P. W. 10) and Ghulam Sarwar (P. W. 12).
7. Due to his absconsion the appellant could not be arrested till the 27th June. 1972. No recovery was effected from him or at his instance. His co-accused were arrested on different dates and from some of them rifles were recovered but they are least important for disposal of the present matter.
8. Dr. Tahir Anis, Deputy Police Surgeon Punjab, Lahore, performed autopsy on the dead body of Muhammad Sarwar deceased on the 2nd March, 1972, at 3.30 p. m., and found the following injuries thereon :--
(1) Gunshot wound --' x --' left frontal region of the head.
(2) Gunshot wound 1/3' x --" over right side of neck.
(3) Gunshot wound --'x 1/3' over right upper front part of chest.
(4) Gunshot wound --" x 1/3" left front chest.
(5) Gunshot wound --" x --' left lower front chest.
(6) Gunshot wound --" x 1/3' left front abdomen,
(7) Gunshot wound 1" x --" left upper front thigh.
(8) Gunshot wound 1' x --' upper back left forearm.
(9) Abrasion --' x --' front mid left leg.
(10) Lacerated wound 1" x 1' over mid back left leg.
(11) Gunshot wound, 3/4" x 1 /2" tip of left shoulder.
(12) A gunshot wound 1" x 3/4" left upper back chest, exit wound of injury No. 11.
Left frontal bone of head was fractured, membranes were congested and left frontal lobe of brain was lacerated. Heart was empty. Peritoneum showed injury corresponding to the external injuries.
Abdominal cavity contained 500 cc. Blood. Stomach contained diet. Spleen was found ruptured.
Bladder was full of urine.
All the injuries were ante mortem. Injuries Nos. 9 and 10 had been caused by blunt means, other injuries by fire-arms shooting. Gunshot wounds especially Nos. 1, 5 find 6 were sufficient to cause death in the ordinary course of nature. Three bullets were recovered from the body of the deceased. The Medical Officer estimated time between infliction of injuries and death to be instantaneous and between death and Post-mortem examination 24 hours. Exhibit P. W. 14/A is the copy of the Post-mortem examination report and P. W. 14/B is the diagrammatic sketch showing location of injuries.
9. Dr. Abdul Razaq, Medical Officer, Aziz Bhatti Shaheed Hospital Gujrat examined Ghulam Sarwar (P.
W. 12) on the 2nd March, 1972, at 1-00 p. m. And noticed the following injuries on his person:-
(1) A firearms wound 1/8' x 1/8" situated on the back of left side of the chest in the upper part of scapula. The pallet seen under screening.
(2) A lacerated wound 1" x 1/2' 1/8" on the back of left side of the chest in the upper part.
(3) Multiple small lacerated wound on the back of left side of chest in an area of 8" x 5". The wound was caused by broken pieces of glass which were seen in the wound.
(4) An lacerated wound 1/4" x 1/4' on the back of left side of upper arm 6" below the shoulder.
(5) A abrasion I J' x 1/8" situated on the back of right scapula in the upper part.
(6) A lacerated wound --' x 1/8" on the left occipital region.
All these injuries were simple in nature. Injury No. 1 was caused by firearms while the rest were caused by broken pieces of glass. Exhibit PE is the copy of the medico-legal examination report.
10. The appellant denied having participated in the commission of crime of the murder of the deceased. Pleading his innocence he maintain--ed that he had been falsely involved due to enmity with the complainant party. He did not produce any evidence in defence.
11. The learned trial Judge accepted the presence of Gul Hussain Shah (P. W. 4), Sahib Dad (P. W. 10) and Ghulam Sarwar (P. W. 12) at the spot and believed the testimony of Sahib Dad in so far as it implicated the appellant in committing the murder of the deceased. He held the appellant to be guilty of the commission of murder of the deceased and consequently convicted and sentenced him as indicated in the beginning of this judgment.
12. Sahib Dad (P. W. 10) is the only eye-witness who says that he saw the appellant firing his sten- gun and thereby shooting the deceased dead. Ghulam Sarwar (P. W. 12), who was sitting in a chair in the room of the deceased at the time of occurrence, did not actually see the appellant as he had at the relevant time bowed down to pick up a match-box which had fallen from his hand on the ground. Wali Dad (P. W. 13) had gone out of the room to urinate and, therefore, did not see the appellant opening fire at the deceased.
13. Gul Hussain Shah, the constable on duty, P. W. 4, who is quite a disinterested witness, confirms the presence o-- Sahib Dad (P. W. 10) in the room of the deceased at the time of occurrence facing towards the southern side of the room where the window through which the appellant fired Sten- gun shots was. He testifies to opening of Sten-gun burst upon Muhammad Sarwar who died in consequence of receiving step-gunshot injuries, Ghulam Sarwar (P. W. 12), who sustained injuries during the course of occurrence and whose presence at the spot can hardly be doubted also marked Sahib Dad (P. W. 10) present in the room where the deceased was when the occurrence took place. We are convinced in our minds that Sahib Dad (P. W. 10) was present at the spot--- when the occurrence took place.
14. The testimony of Sahib Dad, who may be termed as an interested witness, cannot be straightaway discarded; all that is desired is that it should be scrutinized with great care. It cannot be treated as tainted evidence simply because it comes from quarters interested in the prosecution; it has to be adjudged on its own merits. Existence of, previous enmity between the faction of the appellant and of the deceased (to which Sahib Dad belonged) is not in itself sufficient to reject the testi--mony of Sahib Dad unless other circumstances render it unworthy of credit; it can be acted upon it if is otherwise found reliable. No doubt he is related to the deceased and had been on inimical terms with the appellant party yet the evidence he gave so as to hold the appellant to be the real killer of the deceased does not appear to be devoid of truth. He is not enlarging the net to entangle the appellant's co-accused towards whom he was admittedly inimically disposed. He could have -very well involved Asghar who was said to have been armed with riffle and fired rifle especially when two lead portions of rifle bullets were collected by the investigating officer from the room of the deceased but he refrains from implicating anyone else.
He knew the appellant as also his alleged accom--plices before the occurrence. Had he any intention of wreaking vengeance he could have gone to the extent of attributing some role to any of the appellant's co-accused as well. The fact that he had confined himself to fixing the real culprit, namely, the appellant alone, with .The responsibility of causing fatal injuries to the deceased by sten-gun firing, especially when the use of Sten-gun is supported by Gul Hussain Shah (P. W. 4) and the medical evidence, persuades one to place reliance on his testimony as one would treat the evidence of a disinterested witness as trustworthy, In that view other matter we believe that it was the appellant who despatched the deceased to death by shooting with his sten- gun.
15. Referring to the opinion of Taylor expressed at page 377 of Volume I of the Eleventh Edition of his treatise on Medical Jurisprudence the learned counsel contended that with Sten-gun fire the body of the deceased would have been considerably ruptured and he would not have received wounds of the nature described in the post-mortem examination report. He maintained that as such rupturing was not to be found the occurrence could not be accepted to have taken place as the prosecution liked us to believe. In the first place there is no discussion of the effect created on the body by Sten-gun fire in the material relied upon by the learned counsel. In the absence of examination of the Sten-gun and the ammunition used by the appellant at the time of occurrence it is not possible to pass verdict that the wounds were not caused by sten-gun fire. A look at the skiagram, Exh. P. W. 14/13, shows that the gunshot wounds are in a line almost at regular intervals which fact leaves the impression that the Sten-gun wielded by the appellant was slowly moved when it was discharging bullets. Wounds resulting from individual shots fired by one or snore rifles might not have formed such a pattern. Again Gul Hussain Shah (P. W. 4) could not have made any mistake in recognizing the Sten--gun fire. He deposed in uninequivocal words that Sten-gun burst was made as the deceased thereby fatally injuring him. The Sten-gun was stated to be held only by the appellant and none else. It was he who was seen by Sahib Dad (P. W. 10) using, it for assassinating the deceased. Therefore, we have no doubt in our mind that the appellant fired with his Sten-gun at the deceased causing his death.
16. Referring to the site plan of the place of occurrence, Exh. P. W. 11/4, and utilizing the statement of Dr. Tahir Anis (P. W. 14) in his cross-examination that the assailant would be in front of the victim and at level with him at the time of firing, the learned counsel argued that lying as the deceased was on the cot with head towards south he could not have received injuries in the fashion as were found on his person if the assailant were to fire as he was alleged to have done through the southern window of the room. The precise position of the appellant as also the exact manner of his holding the Sten-gun when opening fire as well as the true posture of the deceased on the bed are not known with an exact degree of certitude. Therefore, it is not possible to share the view formulated by the learned counsel. The hard fact remains that it was the appellant whose firing with Sten-gun resulted in the death of the deceased.
17. The learned counsel alluded to the principles laid down by the Federal Court and he Supreme Court of Pakistan in Muhammad v. Crown (PLD 1954 FC 84), Bagh Ali v. State (PLD 1973 SC 321), Ghulam Muhammad v. State (PLD 1975 SC 588) and Mumtazud--din v. State (PLD 1978 SC 114) to press his point of view that it was not safe to accept the evidence of Sahib Dad (P. W. 10) at its face value unless it was corroborated by other reliable evidence. We respectfully agree with the rule enunciated in the precedents. However, the legal propositions set out in the cases cited at the bar cannot be applied to the special features of, the instant case in the manner in which the learned counsel desires them to be used in favour of the appellant. In Muhammad v. Crown PLD 1954 FC 84, the evidence of prosecution witnesses in a murder case wholly rejected as unreliable so far as most of the accused were concerned was not considered to be safe to be relied upon for the purpose of convicting the remaining accused in the absence of any confirmatory circumstance. In the present case, as noticed earlier, Sahib Dad (P. W. 10) does not implicate the other accused persons for murdering the deceased; he simply pin-points the appellant as the assassin. Therefore, there is no occasion for holding his evidence to be unreliable as against other accused.
18. In Bagh Ali v. State PLD 1973 SC 321 while dealing with the question of appraisement of evidence of eye-witnesses in the case where there was a total absence of physical circumstances to connect the accused persons with the crime and there was a background of enmity it was observed that appreciation of evidence had to be based upon a full consideration and evaluation of all the circumstances appearing in the case and that the ocular evidence must, in order to carry conviction on a capital charge, come from an unimpeachable source and in the event of non- availability of such a source must be supported by some strong circumstance which would enable the Court to overcome the inherent doubt which such evidence must necessarily create. In the cast in hand Sahib Dad (P. W. 10), Rough carries a background of enmity with the appellant's party, does not give impression of giving vent to his vengeful feelings inasmuch as he does not enrope other accused persons for killing the deceased though they were as bad his enemies as the appellant was. His version of the occurrence that it was the appellant who fired fatal shots at the deceased with Sten-gun is supported by the evidence of Gut Hussain Shah (P. W. 4), whose presence at the spot and independence is beyond dispute, that it was the Sten-gun burst which caused the death of the deceased as also by the medical evidence. Therefore, taking an overall picture of the evidence produced in this case into consideration we are left with no doubt that the appellant was solely responsible for murdering the deceased.
19. Ghulam Muhammad's case (PLD 1975 SC'588) was replete with doubtful circumstances which are missing in this case. The complainant in that case was found to have falsely enroped his enemies. It was for such reasons that independent corroboration of the ocular testimony of interested witnesses was insisted upon.
20. Mumtazuddin"s case (PLD 1978 SC 114) reiterated the well settled principle that though a conviction can be based on evidence of a solitary witness, as a rule of prudence the Courts do not base conviction on the evidence of a single eye-witness unless he is absolutely reliable or his evidence is corroborated by reliable evidence. We believe that the evidence of Sahib Dad (P. W. 10) implicating the appellant alone in the commission of murder of the deceased is reliable. Further it is supported by the evidence of Gut Hussain Shah as discussed above as also by medical evidence.
21. The learned counsel vainly tried to create doubt touching the authenticity of the occurrence by pointing out that the officer incharge of the guard posted over the deceased had not made an immediate report of the death of the deceased to the nearest Magistrate empowered to hold inquests as required by rule 26.31 of the Police Rules, 1934, and that no inquiry as envisaged by section 176 of the Code of Criminal Procedure was made. Rule 26.31 states that when any person dies while in the custody of the police, the officer in charge of the guard, escort or Police, Station, as the case may be, shall make an immediate report of the fact to the nearest Magistrate empowered to hold inquests. Section 176, of the Code of Criminal Procedure calls upon the Magistrate to hold inquiry into the cause of death. The said rule envisages cases of death resulting from torture, suicide or any natural cause. The death of the deceased was the result of murder pure and simple committed by the appellant and as such a report in respect of commission of the offence had to be made and was actually made to the police as required by section 44, of the Code of Criminal Procedure. No inquiry into the death of the deceased by the Magistrate under section 176, of the Code was to be held, rather case for commission of murder had to be and was rightly tried by the competent Court of Session.
22. In case of maintenance of the appellant's conviction the learned counsel canvassed for the imposition of lesser penalty of imprisonment for life on the ground that it was to avenge the murder of Mst. Raftaj Begum and Khanu that the appellant was prompted to do away with the deceased who had assassinated them. He invoked the assistance of what has been said by this Court in Murder Reference No. 69 of 1979 and criminal appeal No. 229 of 1979 Yara v. State decided on the 9June, 1980, Zulfiqar v. State (1974 P Cr. L J 100), Shera v. State (1976 P Cr: L J 1028) and Muhammad Afzal v. State (PLD 1980 Lah. 518) and by the Supreme Court of Pakistan in 4jun Shah v. State (PLD 1967 SC 185) and Mehr Muhammad v. State (1970 SCMR 688). In the first instance mere private revenge, as held in Abdul Ghafar v. State (1973 SCMR 39). Mokha v. Zulfiqar (PLD 1978 SC 10), Muhammad Iqbal v. State (PLD 1978 Lah. 1157) and Niaz Muhammad v. State (PLD 1978 Pesh. 97) cannot in itself be considered to be a mitigating circumstance for awarding lesser penalty of imprisonment for life in place of normal penalty of death. The appellant in proximity of relationship with Mst. Raftaj Begum and Khanu was not closely connected. He is stated to be just a cousin of theirs. He commit--ted cold blooded murder when the deceased was in the hospital undergoing treatment under the protection of law. His dare-devil act was too grisly o and gruesome to permit display of any leniency in matter of award of punishment. He has been rightly sentenced to death.
While maintaining his conviction under section 302 of the Pakistan Penal Code we confirm sentence of death passed upon him by the Court of Session and dismiss his appeal.