' Ishaq Masih, son of Sardar Masih, aged 20 years, armed with pistol, has been convicted under section 302/34, P.P.C. for the murder of Muhammad Aslam deceased, aged 30 years, and was sentenced to imprisonment for life plus fine of Rs,1,000 or in default to undergo six months' rigorous imprisonment. lie was also directed to pay a compensation of Rs,5,000 to the heirs of the deceased or in default to undergo six months rigorous imprisonment. He was likewise convicted under section 307/34, P.P.C. for murderous assault on Liaqat All (P.W.7) and sentenced to seven years' rigorous imprisonment. He was also convicted under section 394/34, P.P.C. for committing robbery and sentenced to five years' rigorous imprisonment. His co-accused Yaqub who was also armed with pistol died during the pendency of the trial. The judgment against him was passed by the Sessions Judge, Faisalabad, on 15-3-1981. The appeal of the convict is being disposed of by this judgment.
2. The occurrence took place at 9-15 p.m. on 9-5-1979 in the cloth shop of Liaqat Ali injured (P.W.7) in Saddar Bazar Mohallah Mansoorabad, Faisalabad, at a distance of three miles from Police Station Civil Lines, Faisalabad. Statement (Exh.P.E.) was made by Liaqat Ali (P.W.7) at the hospital and it was recorded at 11 p.m. on the seine day by Muhammad Zeman S.I. (P.W.11) who had arrived there on getting information about the occurrence while being on patrol duty in the bazar. On the basis of the aforesaid statement formal F.I.R. (Exh.P.E./1) was registered at Police Station Civil Lines, Faisalabad, at 11-15 p.m. on the same day by Asadullah Khan A.S.I. (not produced).
3. The motive for crime as stated in the F.1.11. is that the appellant and his companion Yaqub armed as described above had come with the intention to commit robbery and the murder took place in the course of the same.
4. The prosecution has produced two eye-witnesses of the occurrence, namely, Liaqat Ali injured (P.W.7) and Akbar All (P.W.8), Asghar Ali and Muhammad Ayub were also cited as eye-witnesses in the F.I.R. but were given up as unnecessary. Then there is another set of witnesses, besides them, namely, Maqsood All (not produced). Allah Ditta (not produced) and Gul Zaman (P.W.9) who saw the appellant and Yaqub co-accused running from the spot being chased by numerous people and who apprehended them alongwith the stolen property and fire-arms.
5. In the F.I.R. the occurrence is reported to have taken place in the following manner. While Liaqat Ali (P.W.7) was present in his cloth shop at the fateful time, he noticed the appellant and his co- accused Yaqub whose names he learned afterwards, coining riding on a Suzuki motor-cycle and stopped in front of his shop. After parking the Suzuki motor-cycle they advanced towards his shop.
Both of them were armed with pistols and were also wearing bandoliers containing cartridges. At the shop they asked Liaqat Ali P.W. to produce cloth which they wanted to buy. They selected some pieces of cloth the details of which are given in the F.I.R. The selected cloth was put in a bundle which 'shay Masih appellant picked up. Thereafter both of them wanted to leave the shop without paying the price to Liaqat All P.W. Liaqat Ali P.W. insisted that he would not let them go without paying the price. On this Ishaq Masih appellant fired a shot at Liaqat Ali P.W. through his pistol but he missed. However, Yaqub co-accused gave a blow with his pistol butt on the head of Liaqat Ali P.W. In the meantime hearing his alarm Muhammad Aslam deceased, Akhtar All (P.W.8), Asghar Ali (not produced) and Muhammad Ayub (not produced) were attracted to the scene of crime and came in order to help Liaqat All P.W. On seeing them, Yaqub co-accused fired a shot through his pistol which hit in the front belly of Muhammad Aslam deceased who fell down on the ground.
Thereafter both the appellant and Yaqub co-accused started running away from the spot.
However, while they ran, they were being chased by the aforesaid P.Ws. but in front of them in the bazar were coming Maqsood Ali (not produced), Allah Ditta (not produced) and Gul Zaman (P.W.9) who with the help of other P.Ws. managed to apprehend both the present appellant as well as Yaqub co-accused on the spot along with the stolen property, pistol and bandoliers, etc. Then Liaqat Ali P.W. who himself was injured in the course of the occurrence took Muhammad Aslam deceased while he was in an injured condition to the hospital where both of them were medically examined. When Muhammad Zaman S.I. P.W. arrived there, Liaqat Ali P.W. reported the matter to him.
6. The appellant as well as his companion Yaqub were arrested from the spot later on the same night by Muhammad Zaman S.1. (P.W.11). Akbar Ali P.W. on the spot produced bundle of cloth, pistol.
(Exh.P.9) snatched from Yaqub co-accused, bandolier containing 8 live cartridges (Exh.P.10/1-8) snatched from both the appellant and his companion as well as Suzuki motor-cycle and these were taken into possession vide Memo. Exh. P.F. dated 10-5-1979. The attesting witnesses are Muhammad Ayub (not produced), Asghar Ali (not produced) Akbar All (P.W.8) and Muhammad Zaman S.I. (P.W.11). The Investigating Officer also picked up human blood-stained earth from the spot and took it into possession vide .Memo. Exh. P.G. at the same time and date. lie also took into possession six pellets embedded in the wall of the shop of Liaqat All P.W. (Exh.P.13/1-6) as well as five pieces of Gatta (Exh.P.12/1-5) from the same place vide Memo. P.H. at the same time and date.
All these recoveries are attested by the same witnesses. Thereafter on the pointing out of lshaq Masih appellant pistol (Exh.P.14) was recovered from a wood-stall near the place of occurrence where he had thrown the same and it was taken into possession vide memo. Exh. P.J., dated 13-5- 1979. The attesting witnesses are Akbar Ali (P.W.8), Taj Din (not produced) and Muhammad Zairian S.I. (P.W.11). On the file there is indeed Serologist's report which is positive about the human blood- stained earth but the fire-arms, etc were not sent to the Forensic Science Laboratory.
7. Dr. Major Yusuf Ali (P.W.1) medically examined Liaqat Ali X.W at 10.50 p.m. on 9-5-1979 and found on his person a lacerated wound on the forehead. The injury was caused with a blunt weapon and was declared simple.
' On the same day at 10-45 p.m. he medically examined Muhammad Aslam, while he was still alive, and found on his person a fire-arm wound above the umbilicus and an abrasion in the front of left elbow. The first injury was caused by a fire-arm and was kept under observation, whereas the second injury was caused with a blunt weapon and was simple in nature. Both the injuries were fresh. Muhammad Aslam deceased died a few hours thereafter and Dr. Muhammad Ajrnal Mian (P.W.2) conducted the post-mortem examination on his dead-body at 9-00 a.m. on 10-5-1979. He noted the same fire-arm injury on his person along with one contusion and two abrasions. In his opinion the death had occurred due to shock and hemorrhage resulting from the fire-arm injury which was sufficient to cause death in the ordinary course of nature. He took out 27 pellets and one Gatta from inside the abdominal cavity and handed over the same to the police. This indicated that the deceased must have been fired at from rather close quarteRs, ' The probable time between the injuries and death was within two hours and between death and post-mortem examination was 11 to 12 houRs,
8. The appellant in his statement before the trial Court denied having participated in the occurrence. He stated that he was not present along with Yaqub co-accused at the time of the occurrence. He disowned the recoveries and stated that he had been falsely implicated due to suspicion. Yaqub co-accused was not tried in the instant case because he had died.
9. I have heard learned counsel for the parties and carefully perused the record. Learned counsel for the appellant has vehemently argued that the F.I.R. in the instant case could not have been recorded in the hospital as alleged by the prosecution. He states that according to Liaqat Ali P.W. he came to know of the names of the appellant and his companion on the following day, whereas in the F.I.R. he is alleged to have stated that Liaqat Ali P.W. came to know of the names of the appellant and his companion afterwards and the F.I.R. is alleged to have been recorded on the same day after a few hours at the hospital. So on the basis of these pieces of evidence learned counsel is of the view that in the instant case F.I.R. had been recorded after due deliberations, possibly on the spot, and even perhaps on the following day. I have considered this argument of learned counsel and it is possible that the F.I.R. had not been recorded as alleged by the prosecution and might have been recorded on the spot subsequently. But then it must not be forgotten that by the time the Investigating Officer could have gone to the spot for inspecting the same, midnight might have passed and the next day might have started i.e, 10-5-1979. So if Liaqat Ali P.W., after a number of years, when he was getting his statement recorded before the trial Court, had said that he came to know of the names of the appellant and his companion on the following day, it could mean that the names of the appellant and his companion were found a few hours after the occurrence and this could be On 10-5-1979. It was next argued that the pistol (Exh.P.14) was not recovered from the appellant at the time of his alleged apprehension on the spot by Gul Zeman P.W. and otheRs, The theory of learned counsel is that if at all anyone was apprehended from the spot it was Yaqub co-accused and that the appellant was not present with him at the time Of the commission of crime as stated by him in his statement before the trial Court. In his statement before the trial Court the appellant had said that he was arrested on the following day of the occurrence when Yaqub co-accused had been brought to his house by the police on 10-5- 1979 and it was in this way that he was arrested. It is further submitted that the aforesaid pistol was recovered at the instance of the appellant four days after the occurrence i.e, on 13-5-1979. The reasoning is that had he been present on the spot along with Yaqub co-accused and was apprehended also as alleged by the prosecution along with the fire-arm., bandolier and bundle of cloth, then pistol should have been also recovered from him on the spot. 1 have carefully examined this aspect of the case also. The statement of the appellant before the trial Court is not very convincing. In answer to the question as to whether he had to say anything else he had replied that he did not know Yaqub co-accused before and that the police came to his place early in the morning on 10-5-1979 with Yaqub co-accused in handcuffs and they took him away with them. If he did not know Yaqub co-accused, then how it was possible for Yaqub co-accused to point out his house to the police or to come with the police in handcuffs so that the appellant could also be arrested in the instant case. It is reasonably probable that while escaping from the scene of crime he threw away the pistol and subsequently it was recovered at his instance, may be after four days of the occurrence. But it must not be forgotten that it was recovered from a wood-stall near the spot and consequently it could have only been thrown by him while he was running away from the scene of crime and was being chased by the people from behind as well as there were people who were going to apprehend them in the front. It was next argued that the version of the prosecution is not probable. Learned counsel states that according to the prosecution the appellant and his companion are alleged to have come to the spot on a Suzuki motor-cycle. If they apprehended any danger and wanted to escape, they should have used the motor-cycle and should have not started running without the same. This argument of learned counsel is of no value because while they had fired a shot which hit the wall of the shop, due to the alarm of Liaqat Ali P.W. people present in the bazar were attracted to the scene of crime and, therefore, had advanced in order to help Liaqat Ali P.W. In such circumstances, when the appellant and his companion were threatened, they could possibly have no time to rush to their motor-cycle to start the same and then to slip away from the scene of crime. Had they done so, they would have been immediately apprehended near the motor-cycle. It was perfectly natural for them to try to run away from the spot leaving the motor-cycle behind and this was what they had done. I have heard learned counsel for the appellant. In my view the trial Court has already taken a lenient view so far as the appellant is concerned. The other co-accused, namely, Yaqub had died while the matter was still pending and, therefore, he could not be punished in accordance with law. So far as the present appellant is concerned, I am of the considered view that the prosecution has succeeded in establishing its case as against the appellant beyond any shadow of doubt and, therefore, in the circum A stances his convictions as well as sentences awarded to him were quite proper and well- deserved. These are accordingly maintained. The result is that this appeal is dismissed. However, the Jail authorities are hereby directed to grant the benefit of the provisions of section 382-B, Cr.P.C. to the appellant at the time of the computation of his sentences of imprisonment awarded to him which have been directed to run consecutively. With these observations this appeal is dismissed.