SARDAR MUHAMMAD, J.----The appellant Muhammad Bashir son of Muhammad Khan has been convicted under section 302, P. P. C. By Ch. Amjad Khan, Additional Sessions Judge, Gujrat vide orders dated 2-7-1979 for committing the murder of Nasar Mahmud and sentenced to death and a fine of Rs. 3,000 in default whereof to suffer one year's R. I. He was further directed to pay a sum of Rs. 3,000 as compensation to the heirs of the deceased, in default whereof he has been ordered to suffer one year's R. I. He has filed Criminal Appeal No. 47 of 1979. The learned Sessions Judge has made murder reference for confirmation of the death sentence. Both these matters will be disposed of by the same judg--ment.
2. The occurrence took place at about Shahwela on 6-3-1975 in the area of village Verowal at a distance of one mile from Police Station Lalamusa. The first information report (Exh. P. F.) was lodged by Taj Hussain (P. W. 7) father of the deceased on the same day at Police Station Lalamusa, District Gujrat, at 8-40 a. m. Which was recorded by Muhammad Anwar Khan S. I./S. H. O. (P., VV. 14).
On- 6-3-1975, Taj Hussain P. W. 7 father of the deceased was going in the company of Muhammad Khan P. W. 5 his brother, Muhammad Ashraf P. W. 6, a nephew of the complainant and the deceased, to Lalamusa to make some purchases in connection with the marriage of Arshad Mahmud, the other son of the complainant, which was to take place on the day of occurrence.
They were going on the railway-line track. When they reached in front of the house of one Fateh Khan Gujjar, the appellant armed with a pistol suddenly got up and fired two shots at Nasar Mahmud (deceased) who was ahead of them by few paces which struck him on the temporal bone and on the right side of the forehead. Nasar Mahmud fell down. When the complainant, his brother Muhammad Khan and Muhammad Ashraf P. Ws. Raised the noise the appellant also fired a shot towards them which did not hit anyone. The appellant then ran away. The P. Ws. Picked up Nasar Mahmud who was still alive and proceeded to Lalamusa. The complainant lodged the F. I. R.
(Exh. P. F.) and the deceased was admitted to the Civil Hospital Lalamusa, where he was medically examined by Dr. Iftikhar Ahmad P. W. 1.
3-5. The motive for the occurrence as stated in on 2-3-1975 about the death of Nasar Mahmud, proceeded to the D. H. Q. Hospital, Gujrat and after preparing the necessary documents, i.e. Inquest report of the deceased sent the dead body for post-mortem examination, which was conducted by Dr. Suleman F. Elahi (P. W. 2). The appellant was arrested by Shah Muhammad, A. S. I. P. W. 8 on 14-3-75 from Sialkot. On 26-3-1975 while in custody of Shah Muhammad, A. S. I. The appellant after making a disclosure, led to the recovery of pistol .32 bore (Exh. P. 1) from near an abandoned brick kiln after digging earth which was taken into possession vide memo. Exh. P. G. Barkat Ali P. W. 9 and Mehdi Khan P. W. (not produced having been murdered before the trial) attested the recovery memo. After completion of necessary investigations, the challan was put in Court.
6. The prosecution examined fourteen witnesses in support of its case. Taj Hussain complainant, father of the deceased was examined as P. W.
7. He stated that after having married Ghulam Fatima, daughter of Budba resident of village Verowal, he shifted to the village of his in laws from his parental village Ladha, Police Station Kunjah, District Gujrat 30 years before the occurrence. His wife had inherited 23 bighas of land in village Verowal, and he was residing in the house of his father-in-law as 'Khans. Damad'. He has stated that his other paternal family members were living in village Ladha. According to him, his son Arshad Mahmud was betrothed with Mst. Rashida Begum, a first cousin of the appellant, and his brother Muhammad Khan P. W. 5 and nephew Muhammad Ashraf P. W. 6 had come to his house in connection with tae arrangements of the marriage of his son. He has stated that on the day of occurrence, he alongwith his deceased son Nasar Mahmud, P. Ws. Muhammad Khan and Muhammad Ashraf were going by the Railway track to Lalamusa Town to make some purchases for the marriage of his son Arshad Mahmud, which was to take place on the following day. When they reached near the house of one Fateh Khan Gujjar, the appellant suddenly stood up and fired two shots at Nasar Mahmud who was going a few paces ahead. Nasar Mahmud fell down. The appellant fired also a shot at them but they escaped. They shifted Nasar Mahmud to the hospital, and he lodged the F. I. R. Exh. P. F. About the motive for the occurrence he has stated that the appellant wanted to marry Mst. Rashida Begum who was a daughter of his uncle but the father of Mst. Rashida instead of agreeing to the proposal of the appellant, betrothed her with Arshad Mahmud, a brother of the deceased over which the appellant was annoyed. P. W. 5 Muhammad Khan and P. W. 6 Muhammad Ashraf have given the eye-witness account and have corroborated the statement of Taj Hussain P. W.
7. Barkat Ali P. W. 9 was produced to prove the recovery of pistol (P. 1) at the instance of the appellant. The evidence of recovery has also been furnished by Muhammad Anwar Khan, S. I. (P. W. 14). Dr. Iftikhar Ahmad P. W.
I had medically examined the deceased on the 6th March, 1975 at 9-25 a. m. He found two injuries on his person, and gave his opinion, the details of which are as follows:- "(1) A gunshot wound 1/8" in circumference with burning of skin all around the wound, and there was swelling of right upper and lower eye-lids, with protrusion of eye-ball.
(2) A gunshot wound 1/8" in circumference with burning of skin all around the wound on left side of face from left ear.
Advised X-Ray of skull and referred to Aziz Bhatti Shaheed Hospital, Gujrat. Both the injuries were kept under observation and caused by fire-arm including a revolver. Duration was fresh. Exh. P. A. Is the correct carbon copy of medico-legal report and bears my signature. Exh. PA/1 is the sketch of the injuries which is also signed by me. In view of the condition the injured was referred to Aziz Bhatti Shaheed Hospital, Gujrat. On 6-3-75 I had issued certificate Exh. P. B. That the injured was not fit to make statement."
Dr. Suleman F. Elahi (P. W. 2) conducted the post-mortem examination on the dead body of the deceased on 12-3-1975. He observed two circular lacerated wounds partly healed, on the dead body of the deceased. According to him the injuries were the result of fire-arm. During the post-- mortem examination he recovered two metallic bullets from the body of the deceased. He sealed them into a parcel and handed over to the police. According to him death resulted due to shock haemorrhage and damage to the substance of the brain caused by fire-arm injuries. P.W.7 has also furnished the evidence of motive. The evidence of the other witnesses, more or less is of a formal nature.
7. The plea of the appellant was that he had not committed the murder. His case is that he was falsely involved under the influence of Mehdi Khan, his uncle (P. W. Now deceased) with whom his father had some dispute regarding land. He has further stated that Mehdi Khan had illicit relations with Mst. Zohra Bibi, the wife of Nasar Mahmud deceased and both of them wanted to get rid of Nasar Mahmud, and that he had been involved in this case by the complainant under the influence of Mehdi Khan about whom later on the complainant had also come to know that he had murdered Nasar Mahmud, so they murdered him (Mehdi Khan) after this occurrence and were facing trial for his murder.
8. Learned counsel for the appellant has argued that the P. Ws. In this case were closely related. P.
W. 5 Muhammad Khan and P. W. 6 Muhammad Ashraf arc not the residents of the village of the deceased, so their presence is doubtful. He has contended that the deceased in fact was murdered some time at 'Sargiwela' when he was carrying cabbages to Lalamusa and the occurrence was not witnesses by anyone. He has vehemently argued that there is no plausible reason for the prosecution witnesses to be present at the place of occurrence because if it is admitted that they were going to Lalamusa then they should not have followed this route, there is another route which was shorter than the one on which the occurrence took place. He has further argued that P. W. 1 Dr. Iftikhar Ahmad had noted burning of skin around the swat of both the injuries which is in conflict with the eye-witness account. According to him the distance given by the P. Ws.
Is 2 Karams and the burning results if the shots fired are received from a closer range. His next argument is that the appellant had no motive to murder the deceased and that if the story of motive is to be accepted then the appellant should have murdered Arshad Mahmud instead of Nasar Mahmud.
9. We have considered the argument of the learned counsel for the appellant and have heard the learned counsel for the State. Taj Hussain (P. W. 7) did not originally belong to this place. His brothers and other family members were living in village Ladha. There is nothing unnatural if his brother and nephew had come to this village some time before the day of marriage to help him, as the close relations are generally invited to such functions before the actual day of ceremony. In this case their presence; was more reasonably required as the complainant was living alone, away from his own family. He would naturally have desired the presence and assistance of his brother and nephew, as such we do not agree that their presence was unnatural. Apart from the evidence of Taj Hussain (P. W. 7), the appellant had also admitted in his statement under section 342, Cr. P. C.
That he was engaged with one Inayat Begum, daughter of his maternal-uncle two years before the occurrence and that before that his father had negotiated for the hand of Mst. Rashida Begum. The contention of the learned counsel for the appellant is that if this was the motive, the appellant should have murdered Arshad Mahmud. The contention finds explanation in two ways. Firstly, it may be the case of mistaken identity by the appellant. The deceased was a real brother of Arshad Mahmud and both of them migt have some resemblance. The other is that the appellant wanted to stop the marriage and he might well have considered that by the murder of Nasar Mahmud, the marriage for the time being will certainly be put off, and might be under the impression that having gained time he may be able to get the engagement broken off. These explanations are quite plausible. We do not find any force in the contention of the learned counsel for the appellant.
10. We have considered the argument of conflict of medical evidence and the eye-witness account. It is not specifically stated as to at what point the deceased was shot at. What is stated is as to where the deceased was found to have fallen after having been injured and blood-stained stones taken therefrom. It will be quite natural to assume that the deceased could not have fallen exactly on the point where he might have received injuries. He must have moved some distance.
This particularly finds support from the fact that the deceased wriggled with his life for some days after receiving these injuries. He was a young man of 20 years and would have certainly felt enough strength to move a little away after receiving injuries, may be, to save himself or may have at least staggered or stumbled to some distance. We have gone through the evidence and we find recorded therein that the difference between the two paths leading to Lalamusa was not more than two furlongs. One witness has stated it to be 2 acres. We, therefore, do not find anything wrong in taking up this route by the P. Ws. Particularly in view of the explanation given by P. W. 7, that P. W.
Muhammad Ashraf had gone to the tube-well and as he was getting late, they proceeded on this path to get him on the way and so they took up the path on the Railway track despite the fact that the same was a longer route. In answer to the Court question, the P. W. Has stated that the shortest route which was via G. T. Road was only one acre less than the path by the side of Railway track.
11. During cross-examination, questions, were put to P. W. 7 that Mehdi Khan had some illicit relations with Mst. Zohra Bibi, the wife of Nasar Mahmud (deceased), that he had murdered the deceased and that when they came to know of this, they murdered him after this occurrence. The P. W. Denied the suggestions, though he has admitted that he alongwith his son Arshad Mahmud and his brothers have been challaned for the murder of Mehdi Khan. He has elucidated that in fact the F. I. R. Was against some other persons but the father of the deceased compromised with them and got them challaned in that case in order to pressurise them to effect a compromise in this case also. During the arguments, learned counsel for the appellant made a statement that in that case Arshad Mahmud has been convicted and sentenced. We do not know as to what was the motive for that murder, how and in what circumstances it happened. If the murder of Mehdi khan was interlinked with this case in any manner as suggested on behalf of the appellant during the cross-examination, the defence would have brought that fact on the file of this case by producing some evidence. Apart from this, this is a separate case and had to be decided on its own merits.
We cannot take account anything merely on an argument based upon the surmises in the absence of evidence.
12. We have considered all aspects of this case and contentions of the learned counsel for the appellant. The important point in this case is that there was no reason for the complainant or his brother and nephew to have falsely implicated the appellant who was a first cousin of Mst. Rashida Begum to whom the brother of the deceased was to be married on the following day. The first information report was lodged with promptitude. There is no suggestion whatsoever that the P. Ws.
Were inimical to the appellant. If there was any difference between the two, that has been suggested in the form of motive by the complainant, which goes against the appellant. There is nothing on record to conclude that Mehdi Khan was so influential with the complainant to have got the appellant falsely involved.) W6 are, therefore, convinced that the prosecution has been able to prove its case against the appellant beyond any reasonable shadow of doubt. The appeal of the appellant is rejected and his sentence of death is confirmed.