JAVID IQBAL, J.-Muhammad Mohsan alias Mohsan Ali, son of Lal Din, aged 19 years, armed with a single-barrelled gun, has been convicted under section 302, P. P. C. For the murder of Maqsood Ali, aged 30/35 years and vide judgment, dated 16th November, 1978 of the Additional Sessions Judge, Sheikhupura he was sentenced to death plus fine of Rs. 2,000 or in default to undergo two years' rigorous imprisonment with the direction that if the fine was realised from him, half of the same be paid as compensation to the heirs of the deceased. The appeal of the convict as well as reference for the confirmation of death sentence awarded to him are being taken up and disposed of together by this judgment.
The parties are inter-related. The mother of the appellant, namely, Mst. Naziran is first cousin of the deceased being his uncle's daughter.
2. The occurrence took place at 1-00 p.m. On 1st January, 1976 near Chah Abdur Rashid in Mohalla Choorigaran, at a distance of one mile from Police Station City Sheikhupura. Statement, Exh. P. B/1 was made by Mst. Rashidan Bibi P. W. 6, wife of the deceased, on the spot 10/IS minutes after the occurrence and it was recorded by Salar Hussain S. I. P. W. 11, who happened to be on Gasht duty nearby and rushed to the spot on hearing the fire-shot as well as getting the information that murder had been committed. On the basis of the same formal F. I. R. Exh. P. B. Was registered at the police station by Muhammad Afzal M. H. C. P. W. 3 on the same day at 1-55 p.m.
3. The motive for crime, as set up by the prosecution, is that Mst. Sughran, sister of the deceased, was married to Fazal Muhammad, a relative of the appellant and his father, about two years prior to the present occurrence. The relations between the spouses became strained and she came back to live with her parents at Lahore. She filed suit for dissolution of marriage at Lahore which was decreed in her favour. Thereafter, Mst. Sughran was married to one Nishan Ali of Lahore. In the meantime Fazal Muhammad had instituted a suit for the restitution of conjugal rights as against her in the cavil Court at Sheikhupura and Lal Din, father of the appellant, who is reported to be a peon in the A. C.'s office helped him as he had been trying his best to get Mst. Sughran back for him. Any way, the suit for restitution of conjugal rights was also dismissed. Fazal Muhammad, Lal Din and the appellant were very annoyed of the marriage of Mst. Sughran with Nishan Ali and they bad been threatening the deceased as he had been pursuing the cases of his sister. In this connection about 10 months before the present occurrence a quarrel had taken place between the complainant and the accused parties as result of which a complaint was filed under section 500/506, P. P. C. By the deceased in the Court of the Ilaqa Magistrate at Lahore as against Fazal Muhammad, Lal Din, Mst. Naziran and others (Exh. P. Q at page 54 of the Paper Book). But this complaint was dismissed for non-prosecution by the Magistrate Lahore on 2nd January, 1976 (Exh.
P. R. At pages 57/58 of the Paper Book). Furthermore, two months prior to the present occurrence the accused-party through one Ghulam Hussain got a complaint instituted against the deceased in the Court of the Magistrate at Sheikhupura under section 420/406, P. P. C. Alleging that the deceased had swindled him by procurring Rs. 4,000 from the said Ghulam Hussain on the pretext for getting a passport and visa made for him for sending him abroad (Exh. D. F. At page 66 of the Paper Book). On the day of the occurrence, the deceased had gone to Sheikhupura from Lahore in order to attend the hearing of this case which was proceeding before the Illaqa Magistrate at Sheikhupura. It is in this background that the appellant is stated to have murdered the deceased.
On the basis of the evidence on record, it is evident that although the parties were inter-related, they were not on good terms and criminal litigation was going on between them, the root cause of which was that Msr. Sughran had obtained a decree for dissolution as against Fazal Muhammad and that Fazal Muhammid's restitution suit had been , dismissed. The accused-party were supporting Fazal Muhammad whereas the deceased was pursuing the case of his sister.
4. There are two eye-witnesses of the occurrence, namely Mst. Rashidan Bibi P. W. 6, wife of the deceased, and Amjad Ali P. W 8, a relative of the deceased, who was resident of the same area.
Lmdad Ali, brother of the deceased, was also cited as such but was given up as unnecessary.
5. The appellant was arrested on 7th January, 1976 by Salar Hussain S. I. P. W.
11. Two crime-empties P 8/1-2 were pi.Ked up from the spot and taken into possession vide memo. Exh. P. D., dated 1st January, 1976. The attesting witnesses are Muhammad Hussain P. W. 4, Muhammad Bashir (not produced)' and Salar Hussain S. I. P. W.
14. Single-barrelled gun P. 10 licensed in the name of Lal Din, father of the appellant, was produced by the appellant from his house and taken into possession vide memo Exh. P G., dated 14th January, 1976. The attest--ing witnesses are Khadim Hussain P. W.
9, Ghulam Rasul (not produced) and Salar Hussain S. I. P. W.
11. But the report of the Fire-arms expert Exh. P. O. At page 10/11 of the Paper Book is to the effect that crime empties picked up from the spot had not been fired from gun P.
10. Thus, it is evident that the recovery evidence, in the instant case, has no corroborative value. The appellant is stated to have come on a bicycle on the spot which he left behind when he escaped. This bicycle was also taken into possession vide memo. Exh. P. E. But since no evidence was -produced to connect the same with the appellant, this recovery is not of any value.
6. In the F. I. R. The occurrence is reported to have taken place in the following manner : An evening before the occurrence Mst. Rashidan Bibi P. W. 6 had accompanied the deceased her husband, to Sheikhupura and they were staying in the house of Muhammad Anwar, a Behnoi of the deceased.
On the day of occurrence at about 9-00 p.m. The deceased went to the Court to attend the date of hearing and at about I-00 a.m. Be was returning on foot to the house of his Behnoi arriving near the Chah of Abdul Rashid. Which was at a distance of about 50/60 yards from the residence of Muhammad Anwar. In the meantime Mst. Rashidan Bibi P. W. Came out of the house of Muhammad Anwar and was proceeding to the house of her sister in the same vicinity When she also arrived near the well and saw her husband returning to the house, .The appellant appeared there on a bicycle from behind the deceased, armed as described above. He threw the bicycle in a nearby field and raised a lalkara that the deceased would not be spared. Thereupon, the deceased turned and the appellant immediately fired the first shot which bit the left arm as well as left temple of the deceased. The deceased, fell down. While he was in fallen condition the appellant fired the second shot which hit him in between legs. The deceased died on the spot. On the alarm of Mst. Rashidan Bibi the appellant escaped alongwith the gun leaving his bicycle behind. The occurrence was also witnessed by Amjad Ali P. W. 8 and Imdad Ali (not produced) who had rushed to the spot. .
7. The appellant, in his statement before the trial Court, denied having participated in the occurrence. He disowned the recovery and stated that he had been falsely implicated due to previous enmity between the parties. He further stated that he was not present on the spot at the time of the occurrence. He placed on the record Exh D. C., Exh- D. E., Exh. D. F. And Exh. D- G. In order to show that litigation had been proceeding previously between the parties.
8. Dr. Khalid Yazdani Sheikh P. W. 7 conducted post-mortem examination on the dead body of the deceased at 11-00 a.m. On 2nd January, 1976 and found on his person a fire-arm wound in the neck which bad proceeded in an oblique direction and punctured right lung through and through, another fire-arm wound on the left fore-arm, still another fire-arm wound in the abdomen as well as fire-arm wound in the pelvic region. The injuries had been caused with fire-arm. The second injury was simple whereas the other injuries were sufficient to cause death in the ordinary course of nature as these were collectively and individually fatal. The death resulted due to shock and haemorrhage.
In the cross-examination he stated that the nature of the injuries revealed that they were caused from one and the same distance. The first and the second injuries could not be the result of the same shot though there was possibility that the second injury might have been the result of the same shot. He also stated that the Injuries Nos. 3 and 4 were the result of different shots.
From this cross-examination it appears that the Medical Officer was uncertain as to whether the injuries on the person of the deceased were the result of two shots or three shots.
9. We have heard learned counsel for the parties and carefully perused the re. It may be pointed out at the outset that the motive, in the instant case, is established on the basis of the documentary evidence placed on the record. There existed enmity between the parties and the main cause for the same was that the deceased was pursuing the cases of his sister. It may further be pointed out that there is nothing on the record to show that the deceased had any other enemies except the accused-party. It was a broad day occurrence in a congested locality of Sheikhupura called Mohalla Choorigaran. However, the recovery evidence, in the instant case, does not have any corroborative value and the case of the prosecution is essentially based on the ocular testimony as supported by motive and the medical evidence. The case of the defence is that both the eye-witnesses, in the instant case, were interested witnesses, who had a motive to falsely implicate the appellant and that furthermore they were chance witnesses who could have possibly not witnessed the occurrence. In other words, the case of the defence is that it was an unwitnessed occurrence and that the name of the appellant was mentioned as the principal accused by the complainant-side merely because of 'the previous enmity and on suspicion It was argued that Mst. Rashidan Bibi P. W. Did not see the occurrence After her state--ment Exh P. B./1 she had got recorded a Tatimma statement on the same day to the effect that the appellant had fired three shots instead of two. Thereafter, it was submitted that at the instance of the complainant -- party the matter was reinvestigated by Higher Police Authorities in the course of which statements of Mst. Rashidan Bibi and Amjad Ali P Ws. Were recorded by Inspector Police of the Crimes Branch. It was argued that there was material discrepancy in the statements of these two eye-witnesses recorded by Inspector Police of the Crimes Branch and the statements recorded by the Investigating Officer, namely, Salar Hussain S. I. P. W. As well as the ones which these eye-witnesses bad made at the trial stage. Thus, the reasoning of learned counsel is that due to material discrepancies in different statements of Rashidan Bibi and Amjad Ali P. Ws. Their testimony was not reliable because they had not witnessed the occurrence. It was argued that no inde--pendent witness was produced although it was a day time occurrence in a Mohallah in which many persons could have seen the same. We have considered this aspect of the case but find the arguments of learned counsel without any substance There is no doubt in our mind that there existed, previous enmity between the parties and criminal litigation bad gone on, the main cause of which was that Mst. Sughran had obtained dissolution decree against her husband and the husband's suit for restitution of conjugal rights had been dismissed and she was married for the second time to some other person by the complainant-party. The anger had been directed against the. Deceased for the reason that he was the only person who was pursuing the cases instituted as against him as well as his sister The ex-husband of the sister, namely, Fazal Muhammad was related to the accused side and Lal Din, father of the appellant as well as the appellant were supporting him at every stage. This state of affairs was prevailing about a year before the present occurrence while Mst. Sughran had managed to get her marriage dissolved It is further evident from the record that the deceased and his family had shifted to Lahore and an evening before the day of occurrence the deceased alongwith his wife Mst Rashidan Bibi P. W. Had gone to Sheikhupura which was their original home town. It is reasonably probable that Mst.
Rashidan Bibi P. W. Had gone there with her husband in order to meet the relatives. So far as Amjad Ali P. W. Is concerned, he lived in Sheikhupura and had not gone from Lahore Amjad Ali P. W. Was employed as driver of one of the Advocates at Sheikhupura. It is further evident from the record that within 1.0/15 minutes of the occurrence .The Police had arrived on the spot and had recorded the statement of Mst. Rashidan Bibi P. W This itself is an important feature, for, had she not been on the spot, the Investigating Officer could have not recorded her statement immediately after the occurrence. In the same way, the statement of Amjad Ali P. W. Was recorded on Ist January, 1976.
Consequently, in our view the statement of Mst. Rashidan Bibi P. W. Exh. P. B/1 as well as the statement of Amjad Ali P. W. Under section 161, Cr. P. C. Were recorded initially by the Investigating Officer I shortly after the occurrence. It may be pointed out at this stage that these statements are not only consistent inter se but are also consistent with the statements made by these witnesses before the trial Court. In other words, there is no inconsistency or material discrepancy between these statements about the occurrence and the way how it had taken place. However, it appears that Mst. Rashidan Bibi P. W. Made a tatimma statement on the same day only to the effect that shots fired by the appellant were not two but three. That would not make her statement inconsistent in any sense of the term, because according to the Medical 'Officer he could not definitely state as to whether the injuries sustained by the deceased were the result of two shots or three shots. Then it appears that after three months or so the complainant-party moved the Higher Police Authorities for reinvestiga--ting the matter and three months after, the statements of the same witnesses were recorded by Inspector Police of Crimes Branch. These are Exhs. D. A. And D. B.
At pages 58 to 61 of the Paper Book. They were recorded by Muhammad Sadiq Inspector Police.
Crimes Branch (not produced) on 27 March, 1976. The object of the recording of these statements was to implicate Lal Din, father of the appellant, and Fazal Muhammad for having conspired to get the deceased murdered through the appellant. But the Police did not implicate them for the reason that Mst. Rashidan Bibi P. W. Bad stated that both of them were not present on the spot and Amjad Ali P. W had stated that they were neither present on the spot nor they had any hand by way of ath conspircy in the murder of the deceased. Learned, counsel for the appellant while attempting to show material discrepancy in the statements of the eye-witnesses has referred to these statements and not the original ones made by these two eke-witnesses on the day of occurrence before the Investigating Officer, namely, Salar Hussain S. I. P. W. In our view, the statement of these eye-witnesses recorded by Inspector Police, Crimes Branch three months after the occurrence are not of any value at all and they have to be ignored.
Now remains the question as to whether or not the eye-witnesses, in the instant case, are to be considered as interested witnesses. It is correct that they are closely related to the deceased. But then both of them only named the appellant for having committed the crime. If they had not actually witnessed the occurrence, they could have named Fazal Muhammad or Lal Din as well as the appellant. But this was not done by them and they named only the single assailant who had I fact fired the shots at the deceased, although subsequently attempt were made by the complainant side to implicate Lal Din as well as B Fazal Muhammad by way of conspiracy. Their this attempt was bound to fail because both the eye-witnesses had stated that no other accused- person was present at the time of the occurrence except the appellant and there was not other evidence to establish the conspiracy so far as Fazal Muhammad and Lal Din were concerned.
Irrespective of their relationship with the deceased, the consistency of their version has convinced us that they had witnessed the occurrence and it was only the appellant who had appeared with a single barrelled gun and had fired at the deceased thereby murdering him.
In the light of the above discussion, we are convinced in our mind that the prosecution has succeeded in establishing its case as against the appellant and in the circumstances his conviction as well as sentence were quite proper and are accordingly maintained. The result is that this appeal is dismissed.
The death sentence awarded to the appellant is hereby confirmed.