ASLAM RIAZ HUSSAIN J.-This appeal is directed against the judgment of Division Bench of the Lahore High Court dated 8-11-1976 dismissing the petitioner---s appeal in a murder case and maintaining his conviction and Sentence.
2. Mehmand, appellant, was tried by the learned Sessions Judge for the murder of his co-villager Ahmad. By his judgment dated 21-1-1976 the learned trial Judge convicted Mehmand under section 302, P. P. C., and sentenced him to death and a fine of Rs. 3,000. In default of payment offine he was ordered to undergo a further period of two of years R,
1. In the event of recovery of fine, Rs. 2,000 out of the same was ordered to be paid to the heirs of the deceased as compensation.
3. Mehmand, filed an appeal against his conviction and sentence before the High Court. The case was also sent up to the High Court for confirmation of the death sentence. The High Court vide the impugned judgment, dismissed Mehmand's appeal, maintained his con--viction and confirmed his sentence of death. It also maintained the remaining sentence.
4. The occurrence in this case took place at about Rotiwela on 11-8-1974in the Abadi of village Maian, District Campbellpur. Motivefor the offence as stated in the F. I. R. Was that about 29 years prior tothe occurrence Muhammad the father ofMehmand, appellant, was murder.Ghulab the father of Ahmad, deceased was tried for that murder alongwith seven others, and was convicted to three years---s R.I.
Another motive mentioned in the F.I.R. Was that about six days prior to the present occurrence the cattle of Ahmad, deceased treapassedinto the land of the appellant, as a result of which the latter abused him.The deceased also returned the abuse in retaliation.
5. The facts of the prosecution case briefly stated are as follows.Marriage of Qamruz Zaman son of Ghulam Khan a co-villager was to take on 11-8-1974.At about rotiwela that morning the Barat left the Baithak of Qamar Zaman for village Jhang.At the time.Mir Alam, P.W. Came and stood outside the door of his shop.His brother Ahmad deceased was also standing nearby.The appellant who was armed with a gun suddenly turned up at the spot and should a challenged at Ahmad saying that the would not be allowed to escape and simultaneously fired a shot hitting Ahmad on the left side of his chest.Ahmad fell down and died at the spot.The occurrence was also witnessed by Muhammad Amir, P.W. 2 and Muhammad Zafar Khan (not examined ) as many other persons including the baratis some of whom rushed to the spot.
6.Leavingthe dead body in the care of Fazal Dad, Mir Alam, P.W. Went to P.S. Fateh jhang, situated a distance of eight miles and lodged the F.I.R. Exh. P.A. At 11-15 am.It was recorded by Muhammad Arshad, S.I.P.W. 8 .The accused was arrested on 26-8-1974, whereafter Muhammad Arshad, S.I.
Recovered a 12 bore gun P.I. From his possession alongwith 2 live cartridges.
7.The post-mortem revelaed a fire-arm injury on the left side of the chest of the deceased which, according to the doctor had resulted in his death.
8.As the trial, the prosecution relied on the evidence of the two eye-witnesses namely Mir Alam, P.W. I and Muhammad Amir, P.W. 2the evidence of motive, the recovery of gun P.1 from the accused and the medical evidence.
9.The accused, when examined, denied his guilt and pleaded innocence and he stated that the father of the deceased was his tenant and that the deceased and his brother Mir AlamP.W. Had stopped the Barat of Qamar Zaman whereupon an altercation took place in which in which shots with fire-arms were exchanged.As a result of the firing the accused as well as one Muhammad Taj (a relative of the accused/appellant) got injured.He denied the recovery of gun form him and produced 3 D.Ws.
10. Irshad Ahmad, D.W. 1, Incharge of an X-Ray Clinic in Bohar Bazar Rawalpindi, produced three X- Ray films with an X-Ray cover Exh. D.A. Of his Clinic.He stated that the same related to the X-Ray examination of Muhammad Taj.During the cross-examination however, he admitted that he did not know Muhammad Taj and that the X-Ray had not been taken by him.
Dr. Ataur Rehman D.W.2 stated that he had medically examined Muhammad Taj on 7-2-1974 at 10- 30 a.m. And issued a Medical Report.He stated further that some injuries were found on his person which had been caused by a fire-arm within about a period of one moth.He however admitted that an error on 3 or 4 days on both sides was possible.
Nur Ahmad, D. W. 3 was Halqa Patwari of village Jhang and he produced Khasra Girdawari of Kharif 1965 to Rabi, 1969 with respect to a plot of land owned by the appellant, showing Gulab, the father of the deceased as his tenant in the said land.
11. The learned trial Court did not rely upon the recovery of the gun as both the recovery witnesses were not produced by the prosecu--tion. He, however, relied upon the rest of the prosecution evidence and sentenced the accused as stated above. The High Court dismissed his appeal, and upheld the conviction as well as the sentence of the appellant.
12. The appellant applied for leave to appeal vide his Jail Petition No. 2/R of 1977 which was considered by two learned Judges of this Court. There was a cleavage of opinion. One learned Judge felt that the petition has no merit while the other learned Judge opined that since the High Court appears to have relied on the recovery of the gun and the cartriges without any discussion whatsoever and used it as a corrobo--ration of the testimony of the eye-witnesses, the case required further examination.
13. We have heard the learned counsel for the appellant at length and have also gone through the judgments of the Courts below and the evidence on the record.
14. The learned counsel for the appellant argued that the ocular testimony in the case is not worthy of reliance, that in the background of the enmity between the parties it should not have been relied upon without independent corroboration; that no such corroboration is available on the record ; that the learned Bench of the High Court had erred in relying on the recovery of gun P. 1 and two live cartridges from the appellant without giving any reasons to differ with the learned trial Judge who bad discarded the recovery ; that the alleged motive was about 29 years old and could not, in fact, have framed a motive for the murder in question ; that the occurrence could not have taken place at rotewala because according to the report of the post-mortem examination, the stomach and bladder of the deceased was found empty while his large intestine had faecal matter ; that the place where the appellant was alleged to be present is not shown in the site plan and that the defence version is more probable and ought to have been relied upon in preference to the prosecution version.
We are not inclined to agree with the above-mentioned con--tentions. The motive alleged is indeed a very old one but evidently hostility simmered in the mind of the appellant whose father had been killed by the deceased's father. This hostility was rekindled by the exchange of abuses between the appellant and the deceased a few days prior to the occurrence and evidently formed the immediate motive for the murder.
15. No doubt, both the eye-witnesses are related to the deceased, Mr. Alam, P. W. 1 being his real brother and Muhammad Amin, P, W. 2 being a distant relative. But they are both natural witnesses.
The incident had taken place in front of the shop of Mir Alam, P. W. While Muhammad Amir who lives in the same village, had gone to enquire about the health of the mother of Amir Alam, P. W.
Which is not improbable in view of his relationship.
16. The grudge and hostility resulting from the earlier murder lay with the appellant and not with the prosecution witnesses. In any case Muhammad Amir, P. W. Cannot be said to have had any hostility whatsoever against the appellant. As such they had no reason to involve him falsely in the case.
17. It was a daytime occurrence and there was no possibility o mistake in the identification of the assailant. Mehmand, appellant, is the only person named as accused in this case and as is well- known substitution is a matter of rare occurrence.
18. Having gone through the statements of the two eye-witnesses we feel that they are consistent and there is no serious contradiction in their testimony, in the absence of any motive on their part to involve the appellant falsely in this case, we feel that in the circumstances of the case, their testimony could be relied upon even without any corroboration.
19. The fact that the stomach and the bladder of the deceased was found empty during the post- mortem examination and the large intes--tine contained faecal matter only goes to support the prosecution case that the incident had taken place rather early in the morning when the deceased had not yet defected or taken any breakfast though he might have emptied his bladder immediately after waking up which is quite normal.
20. The omission by the draughtsman to show the appellant on the site plan does not in any way cast any reflection on the testimony of the eye-witnesses. The evidence of the D. Ws. Does not advance appellant's case because in the first place, he did not produce Muhammad Taj, who is stated to have been injured during the incident. Moreover, the evidence of the doctor and the radiologist produced by him, show that while the incident took place on 11-8-1974. Muhammad Taj was examined by Dr. Ataur Rehman, P. W. 2, after about a month on 8-9-1974 and the X-Ray had been taken a day earlier, i.e. On 6-9-1974. There is no explanation whatsoever as to why Muhammad Taj did not appear before the Police during the investigation and if at all he had been injured during the incident when why had he not been got examined by the doctor, at least for his treatment soon thereafter.
Even if the evidence relating to the recovery of the gun and two live cartridges from the appellant is kept out of consideration, the rest of the evidence is sufficient to bring home the guilt to the appellant.
21. In view of the above discussion, we feel that the evidence brought on the record by the prosecution is sufficient to establish the guilt of the appellant beyond reasonable doubt and the Division Bench of the High Court was, therefore, justified in dismissing the appellant's appeal and upholding his conviction and sentence. This appeal is consequently, dismissed.