ASLAM RIAZ HUSSAINJ.-This appeal is directed against the conviction and sentence of Muhammad Afzal under section 302, P.P.C.
The occurrence took place at 2 p. m. On 18-8-1972 in village Ukhali Muhla District Sargodha. The facts of the case briefly, are that on the fateful day the deceased was proceeding alongwith Muhammad Sher, P. W. 10, and Fateh Muhammad P. W. 12 to the local mosque for saving the Juma prayer. When they had travelled a distance of about 150 karams from the dera of the deceased, Muhammad Afzal appellant confronted them with '12 bore gun and raised lalkara that Ghulam Muhammad would not be spared. Haji Ghulam Muhammad (deceased) asked him why he was after his life when he had not harmed him in any way. The appellant, however, fired at him hitting him on the right palm. Fateh Muhammad turned back towards his dera, in order to escape but the appellant fired a second shot hitting him on the back, on which he fell down. The appellant then fired a third shot hitting the deceased on the chest and then ran away with the gun. The occurrence was witnessed by Muhammad Sher P. W. 10, Muhammad Sher son of Jindwada P. W. 11.
And Fateh Muhammad P. W. 12.
2. The motive for the occurrence is stated to be that there was a serious dispute with respect to land as well as criminal litigation between the appellant and the brothers-in-law of the deceased and the deceased used to help the latter in those disputes and cases.
3. The eye-witnesses first took him to Civil Hospital, Qaidabad in a car but the doctor was not available there. Muhammad Sher complainant (P. W. 10) left for the Police Station Ganjial to lodge a report while the remaining P. Ws. Took Ghulam Muhammad (deceased) to Civil Hospital, Jauharabad but no doctor was present even at that hospital. They then took him to Civil Hospital Khushab but he died on the same day. The F. I. R. Was recorded by Manzoor Ahmad, S.H.O. At the police station on the statement of Muhammad Sher, P. W.
10. Thereafter he left for the Civil Hospital, Jauharabad but on reaching there he learnt that Ghulam Muhammad (deceas--ed) had been removed to Civil Hospital Khushab. He then went to Civil Hospital, Khushab where he was informed that Ghulam Muhammad had expired. He prepared the inquest report of the deceased and sent the dead body for post mortem examination. He then went to the spot but reached there when it was already dark. Early on the next morning he left for Sargodha to attend a case. On his return later on that day he recovered 2 empty cartridges from the spot, which he took into possession, sealed and sent them to the Forensic Expert. He looked for the accused appellant but found him missing. He was, therefore, declared a proclaimed offender and was arrested many months latter on 12th of December 1972. On I 8-12-1972, the appellant led to the recovery of a '12 bore gun (P2).
The Investigating Officer, also sent the gun to the Forensic Expert who after examination found that the gun and the empty cartridges recovered from the spot matched with each other.
4. The post-mortem examination revealed 6 fire-arm injuries on the person of the deceased, out of which some were inlet while 6 were outlet injuries. Injury No. 2 was tatooed, which shows that the fire had been shot from a close range.
5. At the trial the prosecution produced 3 eye-witnesses, namely, Muhammad Sher P. W. 10 (brother-in-law) of the deceased, Muhammad Sher son of Jindwada, P. W. 11 and Fateh Muhammad P. W. 12, who is also brother-in-law of the deceased. The prosecution also relied on the evidence of motive, recovery of the crime weapon which matched with the crime empties recovered from the spot and the abscondence of the appellant after the occurrence. The appellant accused denied his guilt, but admitted having serious disputes including criminal litigation with brother of the wife of the deceased. He also denied of having absconded after the occurrence. The trial Court, however, believed the prosecution evidence and convicted and sentenced him as mentioned earlier in paragraph No. 1. On appeal the High Court maintained his conviction and confirmed the death sentence. The appellant then approached this Court and leave was granted on 7-4-1977, to consider whether the recovery of the fire arms can be relied upon inasmuch as two of the eye-witnesses, namely Muhammad Sher, P. W. 10, and Fateh Muhammad, P. W. 12, are the recovery witnesses, and also whether in case the recovery of the gun from the appellant cannot be held to have been proved properly, the testimony of the eye-witnesses can be relied upon without independent corroboration.
6. We have heard the counsel for the parties at length. It is admitted on both sides that there was enmity between the appellant and the brothers of the wife of the deceased but no direct enmity between the deceased and the appellant has been alleged. Nor has the existence of any hostility between the eye-witnesses and the appellant, been alleged. The mere fact that two of the eye- witnesses are closely related to the deceased, in the absence of any allegation of enmity between them and the appellant, is not by itself sufficient to dub them as interested witnesses whose testimony cannot be believed without independent corroboration. In any case, the third eye- witness, namely, Muhammad Sher son of Jindwada (P. W. 11) is an independent and disinterested witness whose testimony can safely be relied upon without any corroboration.
7. The recovery of the gun (which matched the empty cartridges recovered from the spot) of course, cannot be used to corroborate the testimony of these two eye-witnesses who were themselves the witnesses of the said recovery but the same can certainly be used to corroborate the testi--mony of the third eye-witness, i.e. Muhammad Sher son of Jindwada (P. W. 11).
8. We have carefully studied the injuries found by the doctor on the deceased during the autopsy and are of the view that they support the prosecution version as given by Muhammad Sher (P. W.
11) and the other eye-witnesses. The abscondence of the accused-appellant after the occurrence for some months is also another factor, which goes to support the prosecution version.
The parties knew each other quite well. It was a daytime occurrence the fact that one of the firearm injuries was tatooed shows that the appellant had fired the shot from very close range. There can therefore, be no doubt that the eye-witnesses could see and recognise him. A single person has been named as the accused in this case and it is well known that substitution is a matter of rare occurrence. There being no enmity between the eye-witnesses and the appellant, the former had no reason falsely to involve the appellant in such a serious case in place of the real culprit.
In view of what has been observed above we feel that the High Court was justified in upholding the appellant's conviction and sentence. The appeal is, therefore, dismissed.