BASHIRUDDTN AHMAD, J.-Barkat Ali (30) was tried for the murder of Nizam Din on 20th September 1966, by the learned Sessions Judge, Gujranwala, who convicted him under section 302, P. P. C. And sentenced him to suffer death.
2. The condemned person appealed and the case is also before us on `reference under section 374, Cr. P. Code, for con--firmation of the death sentence. This judgment will dispose of the appeal as well as the reference.
3. The facts of tile case, shortly stated, are that the appellant was indebted to the deceased in the sum of Rs. 2,000.00 and it led to an altercation between him and the deceased, when the latter demanded the return of the loan to him some 5 or 7 days before .The occurrence, which is the subject-matter of the case. On account of that grudge, the appellant is alleged to have come to the shop of Nizam Din on the eventful day at 1-00 p.m. And fired at him with the shotgun resulting in the mortal injury to the deceased on right half of the abdomen while he lay on a matress inside his shop. Muhammad Ishaq, Allahditta, Ali Nawaz and Mushtaq witnessed the occurrence. The appellant dropped the gun at the spot and rode away on, a mare. The deceased was removed in a truck to the Civil Hospital, Gujranwala.
4. The Medical Officer, District Headquarters Hospital saw Nizam Din at 3-10 p.m. And rang up the Police Post, Civil Lines, to make arrangements for getting his dying declaration recorded, but as nobody turned up and the condition of Nizam Din started deteriorating, the doctor himself proceeded to record his state--ment, which is Exh. P. C. And obtained his thumb-impression. Nizam Din died about eight minutes afterward. Meanwhile, Ali Nawaz, who had gone to Kamoke Police Station, at a distance of five miles from the scene of the crime, lodged the report Exh. P. D. At 3 or 4 p.m. The same day.
5. The case was registered by H. C. Nazir Husain (P. W. 4) who forwarded a copy of the` report to the Sub-Inspector at Chianwala Rest House where he was investigating another case. On receiving information about the present occurrence. S. 1. Ghulam Rabbani (P. W. 13) went to the place of occurrence and reached there at 3-45 p.m. Allahditta (P. W. 8) produced before the investigating officer. .12 bore gun Exh. P. 1 which contained the crime empty, Exh. P. 2, in its chamber. The gun as well as the crime cartridge were sealed into parcels . Separately. The S. I. Took into possession blood-stained earth from the spot and sealed it into a parcel. He also took into possession blood-- -stained matress, Exh. P. 3, and made it into a parcel. Thereafter, he visited District Headquarters Hospital, Gujranwala, prepared the inquest-report and left the dead-body under the care of F. C.
Muhammad Sharif (P. W. 3) in the morgue. The appellant was arrested on 22nd September 1966.
6. Dr. Z. A. Kaukab (P. W. 1) performed post-mortem examination on the dead-body of Nizam Din on 21st September 1966, at 10-28 a.m. And found the following injury :-
(i) A lacerated wound, 4" x 5", on right half of abdomen. Margins were inverted and blackened. The upper part of the abdominal wall near 'the wound showed swelling and black colouring. Intestines and omentus were protruding out through the wound.
On internal examination, the doctor found tenth rib fractured near the costal Part. Abdominal cavity contained two pounds of fluid blood. Many pellets were removed from the abdominal cavity and liver. A card-board piece was found in the wound and abdominal cavity. Stomach contained about six ounces of dirty coloured fluid. Large intestines contained fascal matter. Liver had multiple opening in its left half. Liver was completely lacerated. In the opinion of the doctor, death was due to haemorrhage and shock, resulting from rupture of liver under injury No. 1, which was sufficient to cause death in the ordinary course of nature.
7. The appellant pleaded not guilty to the charge and denied the prosecution allegations .Against him. He disowned the crime weapon and the cartridge. 'When called upon to explain why he had been implicated in the case, the appellant made a statement which reads :- "I have been falsely implicated by the prosecution witnesses due to enmity. Ali Nawaz P. W. And Imam Din, grandfather of Mushtaq P. W. Obtained land from my father and my aunt on mortgage, but my father and my aunt refused to give them possession, or to get the mutation of the mortgage entered in the revenue papers. They also refused to pay any rent, as a result of which Ali Nawaz and Imam Din became inimical with my family and persisted to get the principal as well as the interest from my father, which we refused. Even principal was partly paid by my father and the mortgage-deed was got back. This was their grievance, for which they had implicated me. There is another grievance with the P. Ws. Against me and my family. Mst. Sharifan, daughter of my brother Muhammad Ali, is married to Bashir, the brother-in-law of Mushtaq P. W. And a relation of Allahditta P. W. She has deserted her husband and refused to live with him for which the P. Ws. Several times brought a deputation, but she refused."
8. The appellant produced certified copies of certain docu--ments in proof of enmity with the witnesses and a cutting from a local newspaper "Qaumi Dalair" reporting the incident.
The appellant did not produce any witness in his defence.
9. Mr. Salim, learned counsel for the appellant did not refer to the documentary evidence produced in defence or relied on it at the time of arguments in appeal.
10. The conviction of the appellant was assailed on triple grounds: First, that the ocular evidence is materially contradic--tory, secondly, that the ocular account is inconsistent with the evidence of the medical witness and, thirdly, that the occurrence did not take place in the manner alleged by the prosecution.
The case against the appellant rests on the evidence of Muhammud Ishaq (P. W. 7), Allahditta (P.W.8), Ali Nawaz (P.W.9) and Mushtaq (P.W.10). Of the eye-witnesses, Allah--ditta and Mushtaq are related to the deceased person. The deceased was partner in business of Ali Nawaz. Nizam Din was the son of the maternal-uncle of Allahditta. His sister is married to Ghulam Muhammad, a brother of the deceased. Mushtaq is the grandson of Imam Din, who is also a brother of the deceas--ed. Mst. Irshad, sister's daughter of the deceased, is married to Mushtaq. A brother of Mst.
Irshad is married to the daughter of Muhammad Ali. Allahditta admitted that the daughter of Muhammad Ali has been living separately, from her husband for the last 8 or 9 years. He modified his statement and said that she started living separately from her husband after the occurrence. It is also in evidence that Yar Muhammad was a brother of Taj Din, the father of the deceased: Yar Muhammad was .The maternal-uncle of Allahditta. A daughter of Yar Muhammad was married to Allahditta, but she had died about 20 to 25 years ago. On the death of Yar Muhammad, the mother of Allahditta also inherited his property. The deceased was the partner in business of Ali Nawaz. It is in his statement that Imam Din is the brother of Nizam Din. Ali Nawaz and Imam Din obtained land on mortgage from Khushi Muhammad, father of the appellant and Mst. Said Bibi, a paternal-aunt of Barkat Ali in 1956, for a consideration of about Rs. 18,000.00. They did not get possession of this land from Khushi Muhammad and Mst. Said Bibi, who were allowed to cultivate the same as lessees. Ali Nawaz repelled the suggestion that the said land was not given on lease to Khushi Muhammad and Mst. Said Ribi. The witness continued that the mortgage was redeemed and the mortgage-deed was returned to the mortgagees after about two -or three years of the mortgage.
He also denied that they had yet to receive the mortgage debt or a part of it.
The eye-witnesses were present at the shop of the deceased when the appellant came there, fired a shot at the deceased who was lying on a matress and escaped leaving behind the weapon of offence. Muhammad Ishaq (P. W. 7) belongs to Butala Sharam Singh, which is six miles away, and had come at about afternoon for selling paddy at the shop of Nizam Din at Eminabad More. He stated that Allahditta, Ali Nawaz and "tushtaq were present there. Learned counsel for the appellant pointed out that the next witness, namely, Allahditta who had also brought paddy to the shop of the deceased for sale stated that Ishaq was there with Ali Nawaz, Mushtaq and Nawab at the shop of Nizam Din. We do not consider it a discrepancy or a contradiction. We know from experience that while recording evidence, care is not taken to bring out the exact sequence of arrival or presence of witnesses at the spot in such cases. Muhammad Ishaq is a completely disinterested witness. He did not tell the police or the Commit--ting Magistrate that he took paddy for sale to the shop of the deceased and was paid Rs. 260.00 by Ghulam Rasool Munshi of Nizam Din and since the matter was left thereby defence and no attempt was made to disprove it by calling for the account-books or insisting on the presence of Ghulam Rasool for statement on the point, we take it that the witness did come to the shop of the deceased with paddy for sale. The incident took place roughly within 3 or 4 hours of the arrival of Muhammad Ishaq at the shop, of the deceased. Mr. Salim maintained that there was no point in the witness staying at the shop of the deceased for so long a time. We find nothing improbable, about it because the paddy had to be weighed, stocked and then payment from Ghulam Rasool Munshi had to be received by the witness. Ishaq omitted to refer to the gun by its exhibit number in his statement before the Committing Magistrate, but we cannot reasonably conclude from this omission that the witness did not see the occurrence. These are minor details which concern the manner in which evidence is recorded in cases at the commitment stage and it, in no way, detracts from the evidenciary value of the statement of a witness. The next discrepancy pointed out in the evidence was that whereas Ishaq stated that he did not see any bag or bandolier, with the appellant, Allahditta deposed that the appellant had a bandolier with him; but no bag. Similarly, Ali Nawaz said in his statement, that the appellant was having a bandolier. It all depends on the power of observation of a witness and the mere fact that Muhammad Ishaq did not notice by any bandolier with the appellant or omitted to so state is not sufficient to discredit his evidence. Stress was laid on the fact that whereas in the report to the police, it was stated that the appellant left the gun and ran away, the witnesses deposed that the gun was actually snatched by Allahditta. This discrepancy is not such as to affect the prosecution case on merits. Similarly, it is immaterial if the maker of the first information report omitted to state that the assailant rode away on a mare. The assailant had to run to the place where a mare was standing and if the detail about his escape on a mare was not there either in the report, Exh. P: A. Or in the evidence of some of the witnesses, it could not be inferred that the witnesses lied or that they tried to suppress the truth. It might be due to stress and strain of the occurrence.
11. As already observed earlier in the judgment, Allahditta is a relation and Ali Nawaz was partner in business with the deceas--ed. He did not state to the police 'that Allahditta snatched the gun from Barkat. To the contrary, he stated in the first informa--tion report that they tried to catch hold- of Barkat who ran away leaving behind the gun. Ali Nawaz also omitted to state before the Committing Magistrate that the deceased was lying on a matress. On the other hand he stated that Nizam Din was lying on the ground and there was nothing under him. The witness did not state to the Committing Magistrate that Muhammad Ali, a brother of the appellant, was waiting with a mare and that the appellant rode away with Muhammad Ali on the mare and made good his escape. These are all matters of detail and we do not share the view that the omissions go to prove that the witness was not present when the occurrence took place. Mushtaq in addition to his being a relation was also partner in business with the deceased. He said in his police statement that Barkat was going to reload the gun, but before he, could do it Allahditta snatched the gun from him. He did not state to the police that Muhammad Ali was present with a mare and that Barkat rode away the mare after the incident. There are other omissions in his police statement regarding certain details about the taking of Nizam Din to Gujranwala and also with . Regard to what happened at the Civil Hospital. It was also pointed out that whereas Mushtaq stated that the deceased was awake when Barkat fired at him, the deceased in his "one line" dying declaration, Exh. P. C., clearly stated that he was asleep. We attach no value to the so-called dying declaration, as the deceased died within a few minutes after he stated to the doctor that he was asleep at Eminabad More. Mushtaq said in his statement under section 164, Cr. P. C. That Nizam Din was sleeping at the tharra. He said further in his statement under section 164, Cr. P. C. That Allahditta snatched away a cartridge from Barkat accused. It is also in his statement under section 164, Cr. P.
C. That Muhammad Ali was standing with a mare and that Barkat rode away on the mare. He made a similar statement before the Committing Magistrate. The witness expressed ignorance if his grandfather Imam Din and Ali Nawaz (P. W. 9) had acquired land jointly or that his grandfather Imam Din and Ali Nawaz obtained land on mortgage from Khushi Muhammad, father of the appellant and Mst. Said Bibi, paternal aunt of the appellant: The witness admitted that, Nizam Din was issueless, but denied the suggestion that he inherited his property. It was suggested to this witness that he alongwith the other witnesses was responsible for the murder of Nizam Din through their servant Barkat, son of Khushi Kumhar, but the witness repelled the suggestion. It was further suggested that the deceased was done to death under a cluster of trees from where the road bifurcates for Eminabad, but he denied it. The attention of the witness was invited to a news item appearing in a Vernacular Daily that Nizam Din was killed while asleep at Eminabad More by some unknown person, but Mushtaq denied having read - any such news. It may here be stated that the defence did not produce the Correspondent who B gave the news in "Qaumi Dalair" to vouch-safe for the correctness of the news appearing in the paper. We attach, no value to these suggestions by the defence and have no hesitation in repelling the- argument that the deceased was killed by some unknown person at Eminabad More. Had ocular evidence con--sisted only of the statements of Allahditta, Ali Nawaz and Mushtaq, we would have hesitated to, accept it, but their evidence finds ample corroboration in the statement of Muhammad Ishaq who is completely disinterested and independent. His presence at the spot at the time of the occurrence is established beyond C doubt.
He had no motive to depose falsely against (he appellant. Since it is in his statement that Allahditta, Ali Nawaz and Mushtaq were also present, we hold that they did witness the occurrence, which took place in the manner alleged by the prosecution.
12. We now proceed to examine if the ocular evidence is in any way inconsistent with the medical evidence. Learned defence counsel pointed out that the distance between the assailant and the victim as shown in the plan was 13 feet and as such no wad could penetrate the body. Counsel appearing on behalf of the State, however, referred to Taylor's Principles and Practice Medical Jurisprudence, Twelfth Edition, wherein at page 295, D it is mentioned that a wad may penetrate the body at 15 to 2 feet. In the instant case, if a card-board wad was found stuck in the wound, we cannot throw out the case merely on the ground that it could not happen if the assailant had fired at the victim from a distance of 13 feet in view of the opinion expressed in the book, referred to above. Mr. Salim also laid great stress on the circumstance that there was blackening of the wound and with reference to Sir Gerald Burrad's Book on the Identification of Firearms and Forensic Ballistics, tried to argue that the shot was fired from a close range i.e. Less than four feet in any case. The doctor, while describing the injury clearly said that the margins were inverted and blackened. No question was, however, put to the doctor regarding regarding the distance from which the shot was fired in this case. Even the Ballistics Expert was not questioned as regards the distance from which the shot was fired. Sir Gerald Burrard in his book at page 59 has given his opinion as under :- "Blackening with a high-power rifle, such as a service rifle, can occur up to about 9 inches; and with a revolver or pistol up to about 6 inches. If the shot is fired with a cartridge loaded with black powder the blackening range is increased because of the smoke."
The cartridge used in this case was smokeless. We do not say that. The blackening was possible if the firearm was discharged from a distance of 13 feet, but the idea about the distance from the place where the culprit was standing and the victim as given by the witnesses is only rough. The assailant even if stood in the door of the shop, he must have taken a step or two forward while aiming the gun and taking into consideration the length of the barrel, which is 321", we feel that blackening was possible. The spread of the pellets also indicates that the gun was fired from not very close range. It in conclusively proved from the testimony of the Arms License Clerk that the gun in question belongs to Shukar Din, son of Karam Din, resident of Chandiala Khurd, District Gujranwala, who is the uncle of the appellant. In the absence of any explanation as to how the gun came to be produced before the police during the investigation by Allahditta at the spot, there is no escaping the conclusion that what the eye-witnesses stated as regards the use of the gun by the appel--lant for the commission of the offence was true. The cartridge in the chambers of the gun on examination by the Expert was found to have been fired through it.
13. We also find that the appellant had a motive to kill the deceased. The story in regard to the motive was duly mentioned in the first information report and also stands corroborated by Ali Nawaz in his statement at the trial. There is no suggestion that any other person was interested in the murder of the deceased. Killings are made from trivial motives.
14. The cumulative effect of the evidence on our mind is that the appellant and no other person was responsible for the dastardly crime. We uphold the conviction, maintain the sentence and in the absence of any extenuating circumstance confirm the death sentence. The appeal is dismissed.