GHULAM MUJADDID MIRZA, J.---Muhammad Aslant, his brother Muhammad Ashraf and their nephew Noor Hussain were tried for the murder of Muhammad Rafique and causing injuries to Nawab Did complainant. The trial Court convicted Muhammad Aslam for the murderand sentenced him to death. The retraining two accused were acquitted. The convict has filed appeal against the judgment of the trial Court.
Reference under section 374, Cr. P. C. For confirmation of death sen--tence is also before us. The complainant has filed revision (Crl. R., No. 446/80) against the order of acquittal which has been ordered to be heard alongwith the appeal. All these matters shall bt decided by this judgment.
2. The occurrence in which Muhammad Rafique was shot dead took place on 11th July, 1975 at 4 p. m. In Chak No. 7/GB within the jurisdiction of Police Station, Nankana. Case against the accused was registered on the statement (Exh. P H) of Nawab Din (P. W. 11) recorded by Munir Ahmad near Chak No. 5/GB.
Nawab Din the first informant uncle of the deceased and Roshan Din are the eye-witnesses. Some recoveries were also effected at the instance of the appellant and from his person. Reference to those shall be made later on. The other evidence is of doctor who. Performed post-mortem exami- -nation of the deceased 9nd prepared medico-legal report of the injured Nawab Din. Prosecution has also led evidence to prove motive which was a minor dispute with regard to the electric connection.
Eight or ten days prior to the occurrence, Nawab Din obtained electric connection from the cable passing by the house of the appellant who got connection two years ago by installing a wooden pole. Muhammad Aslam appellant asked his name-sake, a Line-man of WAPDA (P. W. 7) couple of times to disconnect the connection of Nawab Din. Muhammad Aslam Line-man refused to do so because the connection had been lawfully obtained from WAPDA.
3. On the day of occurrence at about 4 p. m., the complainant and his brother's son Muhammad Rafique were going to the house from their Dera. The appellant and the two acquitted accused were coming from opposite direction. When the parties were at a distance of 20 yards from eact other, the appellant asked the complainant why he did not get his connection disconnected from the pole. Nawab Dm said that nobody could disconnect it because he had obtained through the Department. The appellant abused him. He was paid in the same coin. It is alleged that then Muhammad Ashraf acquitted accused caught hold of the deceased and threw him in the Khatan.
The appellant took out a pistol from his Dab and fired two or three shots at the deeeased. One of the shots hit the deceased on his head. Noor Hussain acquitted accused also fired which hit the complainant on his hose. The deceased died at the spot. According to the First Information Report, Abdur Rashid (P. W.-8) also saw the assailants running away from the spot.
4. Post-mortem was performed by Dr. Abdur Razzaq. As he had left the country, secondary evidence was led to prove the post-mortem report and medico-legal reports of Nawab Din complainant and Muhammad Ashraf acquitted accused.
The post-mortem report and the medico-legal reports have not been printed in the paper book.
We have examined the orginals. The deceased had the following injury :---- ---A fire-arm entrance wound round in shape ----- x -----. The edges of wound are abraded. No burning no blackening. The wound is stitched on the right side of skull, 21" above the right eye-brew, 2----- above the right ear. The wound is passing into the brain. There is a fracture of skull ----- x 1- ---- under the injury. The right cerebral hemesphere perforated 1----- x 1". There is perforation of cerebellum. The bullet is lodged in the base of skull in the foramira maqueum. There is also fracture of the left post cranial fossa. There is haemorrhage at the base of the brain. The wound is passing from the right to left obliquely."
The same doctor also examined Nawab Din (P. W.-11) and found the following injuries on his person :----
(1) A lacerated wound ----- x ----- x bone situated on the front of the upper part of nose. The wound is situated vertically, there is a blenty of the nostril.
(2) An abrasion ----- x ----- situated on the left side of the nose ----- below injury No. 1.
(3) A lacerated wound ----- x 1/8--- x 1/8--- deep situated on the left side of the nose. Medial side of the left eye. The wound is not con--tinuous with injury No. 1, Mst. Shamim Akhtar, sister of the appellant was examined by Dr. Muzaffar Hafeez Ahmad (D. W. 1).
She had the following injuries :-
(1) Incised wound 1----- x 1/6" x muscle deep with cutting few of the muscle fibres at the base of left thumb in bbtween thumb and index finger.
(2) Abrasion ----- x 1/3--- front of right index finger near the tip.
(3) Abrasion ----- x 1/6" front of right middle finger about its middle.
5. The appellant denied all the allegations and stated that he was a-Police Constable and was posted at Police Station, Sadar Sheikhupura, at the time of occurrence, whereas his brother Muhammad Ashraf admitted the occurrence, but in a different form. We shall refer to his statement subsequently.
6. Nawab Din complainant repeated the same story before the trial Court which he had given in his statement (Exh. P. H.). He was corrobora--ted by Roshan Din (P. W. 12). Roshan Din-deposed that he was present inside his house. The time was 4 p. m. Abdus Sattar was sitting within. He heard some hue and cry outside near the road. Both came out. Muhammad Ashraf took his son in "Japha" and threw him in the Khatan. Muhammad Aslam appellant took out a pistol from his Dab and fired three shots one of which hit his son on the right side of his face. Noor Hussain then fired at Nawab Din which hit him on his nose. The witness also deposed about the motive.
Here we would like to mention the version of acquitted accused Muhammad Ashraf which is as follows :- "The true facts are that on the day of occurrence my sister Mst. Shamim Akhtar went out to ease herself in the abandoned school where Rafiq deceased followed her. He captured Mst. Shamim Akhtar, who raised hue and cry, when her modesty was being out--raged by deceased. Attracted by the shrieks of my sister, I saw Rafiq deceased was trying to outrage the modesty of my sister and she was resisting. On my arrival Rafique deceased took out a knife and injured my sister and also attacked me. On this grave and sudden provocation and in order to save the life and honour of my sister and to save my own life, I gave a solitary Pistol shot to the deceased. The other accused were not present at that time."
7. Learned counsel for the appellant first dealt with motive and submitted that it was of a very insignificant type, how could such a minor thing lead to an offence like murder. He submitted chat even, otherwise, the prosecution has not been able to prove the motive which means that it was false. Learned counsel then contended that if the very basis of the prosecution starts with a false motive, how can the rest of the story be believed.
With regard to the ocular evidence, learned counsel submitted that both the eye-witnesses were closely related to deceased. The first informant was his uncle and the other eye-witnesses his father. It was next contended that Roshan Din (P. W. 12) admitted the factum of enmity which was of serious type, therefore, it would not be safe to rely upon such type of evidence unless it is corroborated by other independent evidence of unim--peachable character. So far as the medical evidence was concerned, according to the learned counsel, it did not provide the necessary corroboration.
Dealing with the recovery of Pistol it was argued that it was not incriminating because the lead recovered from the body of the deceased did not tally with the Pistol alleged to have been used by the appellant. The report of the Forensic Expert was in the negative.
The other point urged was about the blood-stained shirt of the appellant which was taken into possession vide memo. P. L. Attested by Abdus Sattar. The learned counsel submitted that how the appellant got blood on his shirt is a mystery and the prosecution has failed to furnish any reasonable explanation for that, therefore, the recovery was of no consequence.
The learned counsel laid stress on the fact that the prosecution has not been able to explain the injuries of Muhammad Ashraf acquitted accused, properly.
Last of all, it was submitted that the statement of Muhammad Ashrat' when examined in juxta- position with the case, competely falsifies the prosecution story hence the appellant is entitled to its benefit in the form of acquittal.
8. We have also heard counsel for the complainant as well as for the State who argued that the F. I.
R. Was lodged promptly. It was a broad day-light occurrence. The question of substitution as such did not arise. With regard to the injuries of Mst. Shamim Akhtar, it was submitted that those could be caused in the ordinary day-to-day house hold work.
9. The main evidence which is to be scanned is the testimony of the two eye-witnesses as well as the medical evidence and of course all this is to be taken into consideration in juxta-position with the statement of acquitted accused Muhammad Ashraf. So far as the recovery is concerned, we are not impressed by this evidence which is accordingly rejected. Nawab Din was inured but according to the learned defence counsel, the injuries on his person could not be caused by a fire- arm. They were by a blunt weapon, whereas the prosecution insisted that those had been caused by a fire-arm. We shall examine this aspect later on in more detail, but the first question to be determined is the presence of the two eye-witnesses at the spot, whether they saw the occurrence and told the truth. We are not inclined to reject their testimony on the ground of their relationship with the deceased unless we are of the view that it is not trustworthy. The enmity aspect was frankly admitted by Roshan Din, Nawab Din was not questioned on this point. Both these witnesses gave good expla--nation of their presence at the spot. This evidence has gone unchallenged.
We are, therefore, of the view that they were present when Muhammad Rafique was shot dead and they deposed what they saw. We, therefore, believe their evidence.
10. The next point to be considered is that their evidence is to be examined in juxta-position with the defence version.
The appellant's statement was that he was not present at the spot and was posted in those days at Sheikhupura. He did not say whether he was on duty or on leave. Being a Constable, he could easily prove whether he was on duty or not. So the only inference which can be drawn from his statement is that he denied the prosecution allegations without raising any specific plea.
Muhammad Ashraf admitted to have fired at the deceased because he was going to molest his sister. How far this story is true, we have to consi--der in the light of the following :- No doubt Mst. Shamim Akhtar was medically examined but she did not enter the witness-box. She was the most important person to prove innocence of the appellant and if the incident happened the way Mohammad Ashraf explained, then she would not have hesitated to come and tell the same story to the Court especially when two of her brothers were facing murder charge. Great stress was laid on the injuries of Mst Shamim Akhtar, which are not of such a serious nature. On the other hand these could be caused to a young girl living with her family while doing the normal household work.
Similarly we fail to understand why she should go for toilet in an abandoned school in the broad day-light while she was living with the --parents.
Moreover we are inclined to agree with the submission made by the learned counsel for the complainant that if at all Muhammad Ashraf---s state--ment is to be believed that he was attracted to the spot when the girl raised hue and cry, then it was natural for the man who was after her that he would run away at one rather than to stay at the spot and get hurt. We therefore, do not accept the statement of Muhammad Ashraf to be true and the correct version of the incident.
11. The only other point now left to be examined is the nature of injuries on the person of Nawab Din (P. W.-11). The doctor who examined him was not recalled for cross-examination because he was not avail--able. Hence we have to form our own opinion as to whether the injries on his nose could be caused by a fire-arm car must be the result of a blunt weapon. Out of the three injuries, one was abrasion whereas the remain--ing two were lacerated wounds on the nose. Such ic1Jutcs could be caused by a fire-arm, even by a blunt weapon and even by a tall. Reference in this connection is made to the Medical Jurisprudence and Toxicology by Modi (21st Edition) at page 214 where the discussion pertains to lacerated wounds :- "Lacerated Wounds :--These are tears or splits produced by blows from blunt objects and missiles, by violent falls on sharp and hard projecting surfaces, by machinery and railway accidents, by the wheels of a vehicle causing a grinding compression by their weight resulting in avulsion of the skin also, by the claws, teeth or horns of animals and by projecting nails, or by over-stretching of the skin over broken bones. These wounds do not generally correspond in shape or size to the weapon producing them".
We may further observe that if at all Nawab Din (P. W.-11) was to falsely depose, he could easily change his stance after the medical report but nevertheless he stuck to his original position and deposed that he had received the injury by a fire-arm.
We are therefore of the view that there is no conflict between the medical evidence and the ocular testimony.
12. We believe the two eye-witnesses regarding motive as wall as the incident of firing. Their evidence alone is sufficient to maintain this convi--ction. Nevertheless it finds support from the post-mortem report of the deceased and the medico-legal report of Nawab Din.
The consention of the learned counsel that the prosecution has not properly explained the injuries of Muhammad Ashraf is without any sub--stance. Muhammad Ashraf acquitted accused had only one incised wound on the back of head of the dimension of 1 ----- x ----- x -----. This injury though caused by a sharp-edged weapon, but it was found simple. Its duration was of three days.
We don't attach any importance to this injury because of three days, delay. If Muhammad Ashraf was actually injured in the manner he stated before the trial Court, then he should have got himself examined on the same day rather than to wait for three days.
13. For the foregoing reasons we uphold the conviction and sentence of the appellant. His appeal-is accordingly dismissed.
As we have not come across any mitigating circumstance in favour of the appellant, we confirm the death sentence. The reference is disposed of accordingly.
14. Criminal Revision No. 446/80 was ordered to be heard alongwith this appeal. No notice was issued in it. We are of the view that there is no substance in the revision which is dismissed in limine.