MIAN BURHANUDDIN KHAN, J.-This Jail Petition is barred by time by 33 days. In view of the sentence of death, awarded to the petitioner, we condone the delay and proceed to examine the case of the petitioner.
2. Bashir Ahmad, petitioner was awarded death sentence by the Additional Sessions Judge-II, Sahiwal and a fine of Rs, 5,000 in default, to undergo one year's R. I. He was also sentenced to six months' R. I. Under section 452, P. P. C. In default, he was ordered to suffer R. I. For one month. Fine, if recovered, was ordered to be paid to the heirs of the deceased, per judgment, dated the 30th June, 1980. His appeal was dismissed by the learned Lahore High Court vide judgment, dated 2-10-1983 and his death sentence was confirmed.
3. Petitioner Bashir Ahmad son of Karam Din aged about 44 years committed trespass in the house of Ali Muhammad on the night between 4/5-9-1976 at about Sehriwela. The deceased, alongwith other members of his family, was lying asleep in the courtyard of his house. All of them just got up for their sehri as it was the month of Raman when the accused/ petitioner climbed over the wall of the house of deceased, armed with a pistol and accompanied by two unknown persons, and came in. The accused fired at the deceased Ali Muhammad who was hit and fell seriously wounded.
Complainant Faqir Hussain son of the deceased (P. W. 6) grappled with the accused/petitioner and threw him on the ground but the companions of the accused who were armed with sticks and sotas, started giving him (P. W. 6) blows in consequence of which Faqir Hussain released the accused/petitioner. Inside the house two ladies Mst. Sharifan Bibi P. W. 7 daughter of the deceased and Mst. Jannat widow of Ali Muhammad deceased, also tried to intervene and rescue the deceased but they were also dealt stick blows by the unidentified companions of the accused/petitioner. Fazal Din, P. W. 1 neighbour of the deceased reached the spot and saw the accused and his companions running away from the spot.
4. Faqir Hussain P. W. Lodged the F. I. R. Exh. P. C. Which was recorded by Abdul Karim S.-I. P. W. 11 and a case was registered against the accused/petitioner. The injured Ali Muhammad was removed to the Civil Hospital, Chichawatni where Dr. Khalid Mahmud P. W. 10 was Incharge Medical Officer and he medically examined Ali Muhammad on 5-9-1976 at 3-45 a.m. And found the following injuries :- "(1) A fire-arm lacerated wound 1/4" x 1/4' x going deep on the back left half lower part about 6" from.The cocoyx close to the mid line, with no blackening around the wound.
(2) A fire-arm lacerated wound 1" x 4" x going deep on the left renal angle of abdomen. It was an exit wound but there was no blackening around it.
(3) Lacerated wound 1/2' x 1/4" skin deep on the right temporal region close to angle of right eye."
' The doctor also found two abrasions on the forehead and chest but as Ali Muhammad injured was unconscious, in shock and serious condition, he was referred immediately to D. H. Q. Hospital, Sahiwal.
5. The same day Dr. Khalid also medically examined Faqir Hussain P. W. 6 and found 3 lacerated wounds and a number of bruises and abrasions on his person. The same day he also medically examined Mst. Sharifan Bibi and found a lacerated wound on left side of her head.
6. As Ali Muhammad died the same day, his body was brought by F. C. Abdul Wahid and Dr. Khalid Mahmud performed the post-mortem examination the same day i,e, 5-9-1976 at 9 a.m. And confirmed, in his report, the wounds as were found by him in his earlier medical examination of Ali Muhammad, details of which are given in para. (4) above. In the opinion of the doctor, death was due to shock and haemorrhage resulting from injury No. 1 which was fatal and sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 and 2 were caused by fire-arm while the rest of the injuries were caused by blunt weapon.
7. Prosecution examined Faqir Hussain son of the deceased (P. W. 6) who gave account of the occurrence as described in the foregoing paragraphs. Mst. Sharifan P. W. 7 also gave ocular version of the occurrence. She had identified the accused petitioner and when she had intervened to rescue the deceased, the companions of the accused/petitioner had given 2/3 soti blows on her head as referred to in para. 5 above.
8. Motive, according to the prosecution, is that Bashir Ahmad accused had abducted Mst. Hanifan another daughter of the deceased about 2 months prior to the occurrence. She was subsequently restored to the family through the intervention of Panchayat. The deceased then got her married to another person over which the accused/petitioner was annoyed.
9. Abdul Karim S.-I. P. W. 11 investigated the case and got prepared site plans Exh. P. L. And Exh. P.L./1 through shoukat Ali draftsman. The accused/petitioner was examined at the trial under section 342, Cr. P. C. He admitted having enticed away Mst. Hanifan but he stated that she was restored to her parents later on by him of his own accord and thereafter he left his residence at Chak No, 39/12.
L. He denied the other charges.
10. Learned counsel Ch. Akhtar Ali, Advocate-on-Record who appeared for the accused/petitioner urged the following points ;
(a) that the accused/petitioner was not aggrieved over the incident of Mst. Hanifan because he had himself restored the girl to her parents, and as such he had no motive to commit the crime.
(b) that the occurrence took place according to the prosecution on the night between 4/5-9-1976 which was a rainy night and, therefore, the complainant, Faqir Hussain and Mst. Sharifan P. Ws.
Could not have identified the accused even if they had a glimpse of him.
(c) that somebody fired at the deceased when all the inmates of the house were lying asleep and as such in the state of confusion and consternation, identification of the assailant was impossible.
(d) that the deceased had also got divorced Afst. Sharifan by her husband as a result of which her husband and her in-laws were annoyed and the possibility of their being involved in the commission of this crime cannot be ruled out.
(c) that the medical evidence does not corroborate the ocular testimony as the deceased had in his stomach about one ounce of a milky fluid as per the post-mortem report. Thus it is evident that the deceased was put to death some time before the sehri and after his first meals which belies the prosecution version that the deceased and the witnesses had got up to have their sehri meals on the night of occurrence.
(f) that investigation had started before the report of the complainant was recorded by the S.-I.
And as such there was fabrication of evidence in order to bring it in conformity with the ocular testimony and the circumstantial evidence. The learned counsel also referred to the statement of Faqir Hussain, P. W. 6 in cross-examination where he has stated : ' I do not know if any police officer had visited the place of occurrence before he left for the hospital."
' At another place Faqir Hussain P. W. Had stated.
"I cannot say if the S. H. O. Had already visited the place of occurrence first and then he recorded my statement. Mst. Sharifan was also married during the days of occurrence. She has been divorced. She was married at Chak No, 161 District Faisalabad. The previous in-laws of Mst. Sharifan P. W. Were arrested in this case as suspects. They stayed with the police for night and then they were let off. The previous husband of Mst. Sharifan P. W. Was also apprehended amongst them.
They divorced subsequently Mst. Sharifan on account of the aforesaid apprehension by the police."
11. We have considered the contentions raised by the learned counsel and find it in evidence of complainant Faqir Hussain P. W. 6 that Mst. Hanifan was restored to her patents at the intervention of the Panchayat and that the accused/petitioner used to visit the village of the deceased even after the restoration of the girl which points strongly to the fact that the accused/petitioner was frustrated and was on the look out to get back Mst. Hanifan.
12. As regards the darkness of the night we find in the statements of both Faqir Hussain P. W. 6 and Mst. Sharifan P. W. 7 that it was a moon-lit night and the occurrence took place in the moonlight and not in darkness of the night. Nowhere it has been established from either statement that it was raining at the relevant time.
13. Third argument of the learned counsel would also be of no help as we find that Faqir Hussain had a very long scuffle with the accused/ petitioner who was known to him previously because he was brought to the village by the deceased and settled there earlier to the incident of elopement of Mst. Hanifan. Moreover, the nature of injuries would show that Faqir Hussain had ample opportunity to identify the accused/ petitioner and the number of injuries caused by blunt weapon, fully strengthens this presumption and proves the fact that the accused/petitioner was not alone but was accompanied by two other persons. Therefore, the medical evidence fully supports the prosecution case as the deceased had fire-arm injuries.
14. Regarding the contents of the stomach, the deceased may have taken something light before going to sleep. He was an aged man and he may have taken milk or some milky product before going to sleep. As such we find no contradiction in the medical report and ocular evidence.
13. Fourth point raised by the learned counsel is also not convincing, as we find in the statement of Faqir Hussain that Mst. Sharifan was divorced after this occurrence, therefore, her former husband or her in-laws could not have any animosity towards the deceased over the divorce of Mst.
Sharifan.
16. The last point regarding the possibility of manipulation of acts and events, we do deprecade the perfunctory and slip-shod manner in which the case had been investigated and many important'points had not been examined by the Investigating Officer like he had not taken into possession blood-stained Charpoy or quilt etc. Where the deceased had fallen after he was shot, nor there is any mention of the cot in the detailed notes of the scene of crime and other facts material to the case. However, the fact remains that the- doctor sent Ruqqa Exh. P. H. Informing the S. B. O. About the admission of the deceased, in an injured condition, in the Civil Hospital on receipt whereof the Investigating Officer had reached the hospital and recorded the statement of the complainant. Thus, it is clear that no investigation was launched before recording the F. I. R. Exh. P.
C. As regards the quality of investigation, it is admitted by the Investigating Officer in his cross- examination.
"I did not mention the names of the eye-witnesses in the site plans mentioned above. I do not remember the period for which Faqir Hussain P. W. Remained at the hospital. I do not remember about the period of admission of Mst. Sharifan and Mst. Jannat P. Ws. ..At the hospital. It is incorrect that I carried out the preliminary investigation in this case and subsequently registered the case against accused persons. I went to the spot of occurrence or at about 8 a.m. I did not take into possession any cot from the spot. I do not remember if any cot was found blood-stained at the spot of occurrence. I do not remember if there was a blood- ,tained manger lying on the spot of occurrence. I did not bother to cover the footprints of the culprits."
He, however, denied that he had reached the hospital at 9 a.m. Faqir Hussain P. W. Who is an illiterate villager, could not have possessed very precise and correct sense of timing and this fact alone would not militate against the prosecution evidence which is most natural and beyond reproach. Thus, we find this is natural ocular evidence of two witnesses namely Faqir Hussain and Mst. Sharifan, both inmates of the house where the occurrence took place. Their statements find support from the medical evidence as well as both of them were injured during the occurrence.
There is motive for which the accused had no denial. He admitted the abduction of Mst. Hanifan by him but claimed to have restored her to the family of his own volition. Thus, we find no merit in this petition which is, accordingly, dismissed.