KHALIL-UR-REHMAN KHAN, J.-Muhammad Banaras appellant, aged 45 years, was tried alongwith his real .Brother Shadi Khan, under section 302/34, P. P. C., for the murder of Mst. Anwar Jan in furtherance of their common intention, by the learned Additional Sessions. Judge, Rawalpindi, who vide judgment dated Ist February, 1979, acquitted Shadi Khan accused giving him benefit of doubt but convicted Muhammad Banaras appellant under section 302, P. P. C., and sentenced him to death and a fine of Rs. 5,000, or in default to suffer two years' R. I. In case of realization of fine, 2/3rd of it was directed to be paid as compensation to the heirs of the deceased.
2. The appellant has filed an appeal against conviction and sentence. Maula Bakhsh complainant has filed criminal revision against the acquittal of Shadi Khan. By this judgment we propose to dispose of both the appeal and revision and reference for confirmation of death sentence made by the trial Court.
3. The prosecution case, as narrated in the F. I. R. Was that the parties belonged to village Ropar and the land of this village bad been acquired by the Government under 'Islamabad Scheme' and even the compensation had been paid to the owners but the possession of the land had not been taken and the owners were still in possession and were cultivating the lands previously owned by them. It was further alleged that Mst. Anwar Jan deceased also owned land in the village and in lieu of her land, apart from compensation, she was allotted 122 acres of land in District Multan.
Muhammad Banaras appellant was keen to purchase the land from the deceased, allotted to her in District Multan, but she refused to sell the said land to the appellant and instead sold the same to one Naseer Ahmad. This offended the appellant and he protested to Ata Muhammad, P. W. 7, the husband of the deceased as well as to Maula Bakbsh complainant (P. W. 8) her brother. It was also alleged in the F. I. R. That the appellant had not yet forgotten the refusal made by the deceased to him when another act of the deceased infuriated the appellant as one day prior to the occurrence, the cattle of the mother of the appellant trespassed into the field of the deceased, whereupon the latter abused her. This was stated to be the immediate motive for the murder. It was further alleged in the F. I. R., that on 30th August, 1975 at morning time the deceased and her brother Maula Bakhsh, 'P. W. 8, went to the field .For cutting grass. In that field maize crop was standing. Khan Muhammad P. W. 9 and Gul Muhammad P. W. 10 were already cutting grass in the adjoining field. This field where the deceased was cutting grass, adjoined the back of the house of the appellant. At about 7-30 a. m., the appellant armed with .12 bore grin and Shadi Khan (acquitted accused) armed with a revolver, came there. The appellant addressing the deceased shouted that he had come to teach her a lesson, as she had abused his mother yesterday. On hearing the shout of the appellant, it was alleged, Maula Bakhsh, Gul Muhammad and Khan Muhammad P. Ws., stood, up. Shadi Khan (acquitted accused); asked the appellant to stop talking and to finish Mst. Anwar Jan. Then the appellant fired a shot with his ' 12 bore gun towards Mst. Anwar Jan while she got up to run away.
The shot fired hit her on her back as a result of which she fell down and died at the spot. The appellant and Shadi Khan (acquitted accused) thereafter fled away.
4. The statement Exh. P. L. Containing the above allegations was recorded by Muhammad Hayat Khan S. I. (since dead) of Police Station Kohisar. But as by then, P. S. Kohisar had not yet been noti-- fied as Police Station though under administrative order the police officials had been posted, in the proposed P. S. Kohisar, Muhammad Hayat, S. I. Sent the statement to Police Station, Islamabad for regis--tration of case on the basis of which Munawar Hussain S. I. (P. W. 11) recorded formal F. I. R., Exh. P. L./1. The case was investigated by Muhammad Hayat S.I. (since dead). He visited the spot and collected the blood-stained earth from the place where the dead body was lying, vide Memo.
Exh. P. D. He also found an empty P. 5 lying near the place of occurrence which he took into possession vide Memo. Exh. P. E. Sickle P. 6 lying in the field was taken into possession vide Memo.
Exh. P. F.
5. [Medical Evidence].
6. The appellant and his brother Shadi Khan were arrested on 31st August, 1975. The appellant produced his gun P. 7 before the investigating Officer who took it into possession vide Memo. Exh. F.
G. Shadi Khan (acquitted) produced revolver P. 8 and 3 live bullets which were secured vide Memo.
Exh. P. K. The gun allegedly produced by the appellant was the licenced arm of his brother Manzoor Ahmad and the revolver P. 8 was licensed arm of the appellant. The reports Exh. P. O. Of the Chemical Examiner and Exh. P. Q. Of the Serologist confirm that the earth was stained with human blood whereas the report Exh. D. G. (as it was produced in defence because the prosecution had not produced it in its evidence), contained the opinion of the Fire Arms. Expert to the effect that the empty P. 3 was not fired from the gun produced by the appellant.
7. The prosecution, at trial, produced 11 witnesses. Out of them, Maula Bakhsh P. W. 8, Khan Muhammad P. W. 9 and Gul Muhammad P. W. 1,0, are the eye-witnesses. To support the ocular account, medical evidence contained in the statement of Dr. Muhammad Siddique, P. W. 2, evidence of recovery of Sickle P. 6 and blood-staind earth and motive, was produced. As against this, the appellant and Shadi Khan (acquitted), in their statements under Section, 342, Cr. P. C., denied the prosecution version and asserted that the deceased bad strained relations with her husband Ata Muhammad P. W. 7, who murdered her or got er murdered and that they had been falsely roped in the case. The appellant tendered into evidence registered power of at--torney Exh.
D.B. Dated 25th June, 1971 in favour of one Muhammad Javaid deed cancelling the said power of attorney Exh. D. C. Dated 29th August, 1972 power of attorney Exh. D. D. Dated 29th August, 1972 in favour of Ata Muhammad P. W., the husband of the deceased, deed of cancellation of the aforesaid power of attorney Exh. D. E., dated 5th August, 1974, registered power of attorney Exh. D F.
Dated 5th August, 1974 in favour of one Muhammad Siddique and report of Fire Aims Expert Exh. D.
G. It is pertinent to note at this stage that the aforesaid power of attorneys were executed by Mst.
Anwar Jan deceased. The appellant (Muhammad Banaras) attested, as a witness, the documents marked Exhs. D. B. And D. E. It may also be added that these deeds were executed in respect of the land allotted to the deceased in Multan District, which was ultimately sold by her in favour of one Naseer Ahmad on 26th October, 1974. It is in evidence of Ata Muhammad P. W. 7, husband of the deceased that Mst. Anwar Jan herself got the sale-deeds registered by appearing before the Sub- Registrar.
8. We have heard the learned counsel for the appellant as well as the State and the complainant.
We have also gone through the entire evidence with the help of the learned counsel. The learned counsel for the appellant contended that the ocular account of the eye--witnesses cannot be believed as their tainted testimony had already been disbelieved by the learned trial Court as against Shadi Khan (acquitted accused), acid as this testimony further stands contradicted by the medical evidence on record. He further argued that the ocular account of the witnesses in view of the apparent conflict with the medical evidence has to get support from the unimpeachable corro--boratory evidence before the same can be accepted for basing conviction, but no such corroboratory evidence is available on record. Elaborating the submissions it was contended that even on minor matters these witnesses deposed falsely and even the two alleged motives have not been proved satisfactorily. Learned counsel further contended that the refusal to sell the land to the appellant to commit the murder and assuming the allegation to be correct, yet it is apparent from the record that the land was sold on 26th October, 1974, but no untoward incident occurred till the date of occurrence i. e. In a period of almost one year. As regards the second motive i. e. Giving of abuses to the mother of the appellant, it was pointed out that no witness of the said incident was produced to prove the same. The contention that the ocular account is in conflict with the medical evidence is based on 'the answers given by the doctor in cross--examination. Dr. Muhammad Siddique, P. W. 2, stated that in his opinion the injuries were caused by two shots; one fired from close range which caused blackening around the wound measuring 1--- x 1--- and the second shot caused the other wound that he did not find any exit wound. It is to be noted that in the post- mortem report, Exh. P B., the injuries as found on the dead body were described as under :- "Multiple small pellet wounds scattered in an area 14", x 10" on back of chest and back. One of the wound was 1" x 1'' on back right side with some blackening around the wound."
The plea on the basis of the above-noted description of the injury and the reply given by the doctor in cross-examination, was that two shots hit the deceased; one causing the pellet wound scattered, in an area 14" x 10" on the back of chest and the other causing the wound 1" x 1" which had some blackening around it. The learned counsel for the appellant argued that in view of above it is apparent that either the version of eye-witnesses that only one shot was tired by the appellant was false or that they had not seen the occurrence. It was further argued that the deceased had strained relations with her husband Ata Muhammad P. W. 7, as is apparent from the fact that the power of attorney executed in his favour was cancelled by the deceased for the reasons noted in the deed of cancellation Exh. D E. It is mentioned in the deed of cancellation Exh. D. E. That the General Attorney had not worked in accordance with the wishes, of the executant and had not rendered account due to which the executant had lost confidence in him. It was further contended, that either the deceased was murdered by her husband Ata Muhammad P. W. Or, he got her murdered through someone else and in order to save their own skin, her husband and P. Ws. Who are also his relatives have implicated the appellant and his brother as the appellant had attested the documents executed by the deceased and as the house of the father of the appellant adjoins and abuts the field in which the deceased was found murdered. The learned counsel for the appellant also argued that the eye-witnesses claimed that the appellant fired shot from a distance of 8 paces. In the site plan, prepared by Tasadaq Hussain, Patwari (P. W. 5), the distance between point No. 1 and point No. 2 has been shown 4 Karams and, therefore, according to both these versions the shot was fired from a distance of 22 feet. If this is to be believed then there cannot be any blackening around the wound, but the doctor found that there was blackening around the wound. In this connection, he relied upon the following opinion noted in Modi's Medical Jurisprudence and Toxicology at pages 229-230 :- "At a distance of twelve feet the charge of shot spreads widely and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter depending on the choke, but without causing blackening scorching or tattooing of the surrounding skin. At a distance of about 50 feet a pattern measuring about 14 inches from a fully choked barrel and about 28" from an unchoked barrel are produced."
10. We have examined these arguments very carefully but finding A them without substance we have no hesitation in rejecting them. It is to be noted that the doctor, when he stated that the inner wound measuring 1" x 1" was caused by the second shot, failed to correctly read the diagram prepared by him 3 years and 5 months earlier. This wound measuring 1" x 1" in the central portion where maximum damage was done as well as the pellet wound around it are the result of one shot. If the eye-witnesses were implicating the appellant and his brother falsely, it was easy for them to attribute second shot to Shadi Khan (acquitted accused) who was stated to be present at the time of occurrence. These witnesses were not misled by the central portion of the wound found on the, back of the deceased. As regards the plea that as blackening was found arround the inner portion, o: the injury the eye-witnesses must be disbelieved as they unanimously' stated that the shot was fired from a distance of 8 paces, it will be noted that at best what can be said is that the witnesses failed to correctly estimate the distance from which the shot was fired. Moreover, merely because of the fact that the blackening, was found, the ocular account cannot be discarded as the witnesses are not only reliable but are natural witnesses of the crime. Moreover, Modi at page 230 of the same book, concludes the discussion as follows :- "In conclusion it must be noted that a definite opinion about the distance from which a fire-arm was discharged should be given with caution. According to Taylor no general rule can be laid down. Firing experiments must be done with the weapon and cartridges (or loading) similar to those which are alleged to have been used."
On the same page of the said book, it is also stated that "the scattering of shot depend upon the size of the gun, the charge of the powder and the distance of the gun from the body, the dispersion of pellets should however, be studied with the gun and -ammunition in question". In a similar situation, learned Judges of the Supreme Court in the case of Muhammad Rafiq v. The State (PLD 1974 SC 65) declined give effect to a similar argument observing that it is too much to expect that illiterate or semi-literate witnesses would indicate the distance in question with scientific exactitude.
11. For the above reasons, the medical evidence cannot be, taken to have contradicted the ocular account of the eye-witnesses. The testimony of the eye-witnesses further stands supported by the F. I. R. Lodged promptly and without any loss of time which fact would be indicative that the version narrated in the F. I. R. Was free from padding or concoction. The occurrence took place at 7-30 a. m.
It was reported at 9-15 a. m. And the formal F. I. R. Was recorded at Islamabad Police Station at 9- 40 a. m. The post-mortem examination was conducted at 3-30 p. m. And the doctor stated that the probable duration between death and post-mortem was about 8 hours. This fits into the time of occurrence and death described by the complainant in the F. I. R. This timing further stands supported from the fact that the doctor found undigested food in the stomach of the deceased.
The deceased must have left the house after taking some food at about 7-00 a. m. Had the deceased been murdered in the early hours of the morning or at dead of night the doctor would not have found undigested food in the stomach of the deceased. In case the deceased bad been put to death during early hours of the previous night, then the duration between death and post- mortem should have been much more than 8 hours. This lends support to the prosecution version that the occurrence took place at about 7-30 a. m. It is true that the eye-witnesses have tried to suppress their inter se relationship but that would not be suffcient to discredit their testimony as against the appellant as it stands supported from independent material evidence and the fact that they did not attribute firing to Shadi Khan, the acquitted accused. Moreover, it is not believable that the eye-witnesses would spare Ata Muhammad P. W. The husband of the deceased had he been the actual culprit. It is important to note that Maula Bakhsh is real brother of Mst. Anwar Jan deceased and the other witnesses are also related to him and Mst. Bhagan, sister of Ata Muhammad P. W. 7 is married to Mir Dad, another brother of Maula Bakhsh complainant. There was no reason, in the circumstances to substitute Muhammad Banaras appellant for Ata Muhammad, The ocular account as against the appellant is reliable, trustworthy confidence inspiring. The learned trial Judge was, therefore, fully justified in convicting the appellant. In the circumstances of the case the aquittal of Shadi Khan co-accused was also justified following the principles of safe administration of criminal justice.
12. The net result of the above discussion is that the appeal of the appellant as well as the revision filed by the complainant are dismissed and the reference made by the trial Court is accepted. The death sentence awarded to the appellant is hereby confirmed.