BASHIRUDDIN AHMAD. J.--Riaz Khan (26) was tried for the murder of Ghulam Rasool on 20-10-1966, by the Addi--tional Sessions Judge, Gujrat, who convicted him under sec--tion 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 confirmation of the death sentence. This judgment will dispose of the appeal as well as the reference.
3. The story for the prosecution, briefly narrated, is that All Muhammad, who is the father of the deceased, used to tether his cattle in the haveli of Haider Beg, with whom the appellant had civil litigation. Two days before the occurrence, under consideration, Riaz Khan told Ali Muhammad that he should not tether his cattle in the haveli of Haider Beg, who was his enemy. Ali Muhammad replied that he was the kamin and could not side with anybody in the village. The appel--lant felt annoyed and went away threatening Ali Muhammad.
On the eventful day, at about sun-rise the, Ghulam Rasul deceased, who was a student, went to the village mosque in order to take a bath. The appellant reached there and began abusing the deceased. The deceased abused the appellant in return. The appellant whipped out carbine, Exh. P.
2, from the fold of his loin-cloth and fired at the deceased. The shot hit the deceased on his right eye. The deceased fell to the ground. Ghulam Rasul son of Karam Din and Faqir Muhammad reproved the appellant who ran away carrying the weapon of offence with him. Ghulam Rasool and Faqir Muhammad P. Ws. Were still, at the spot when Ali Muhammad, the father of the deceased, reached there and they narrated to him what had happened. The deceased was removed to the Civil Dispensary, Pahrianwali at a distance of 4-- miles.
4. Dr. Muhammad Afzal informed the police at 8-20 a.m., vide ruqqa Exh. P. G., regarding the arrival of Ghulam Rasul in an injured condition at the Dispensary. Fifteen minutes later, Ghulam Rasul expired and intimation regarding his death was given by the doctor to the Station House Officer, Pahrianwali Police Station, vide ruqqa, Exh. P. H. A. S. I. Suba Khan came to the Dispensary and Ali Mohd. Father of the deceased, made the statement Exh. P. A. 4-was endorsed to Pahrianwali Police Station for the registration of a case. He prepared the injury-sheet and the inquest-report and then despatched the dead body to the mortuary for post--mortem examination. The investigation officer collected blood--stained earth from the spot and made it into a sealed parcel. He recovered the crime empty, Exh. P. 1, from the spot and sealed it into a parcel.
5. The appellant was produced before the police by Fazal Husain Lambardar and was put under arrest. He led to the recovery of carbine, Exh. P. 2, and the live cartridge, Exh. P. 3, from under a heap of chaff lying inside his kothri. It was taken into possession and was sealed into a parcel. It may here be stated that the crime empty, Exh. P. And the carbine, Exh. P. 2, were examined by the Ballistics Expert, who declared that the .12 bore crime empty Exh. P. 1 had been fired from the country-made .12 bore pistol Exh. P.
2. This piece of, circumstantial evidence was not relied on by the trial Judge, who came to the conclusion that the house from which the recovery of carbine Exh.
P. 2, was effected, was not in the exclusive possession of the appellant. The trial Judge also came to the conclusion that the carbine, Exh. P. 2, was in the possession of the police on 24-10-1966, when the, crime empty was despatched from the police station. He inferred from this circumstance that it was possible for the police to have fired from the carbine, Exh. P. 2, in order to concoct a crime empty. We have considered over the evidence of recovery of the carbine, Exh. P. 2, in the light of the evidence of Hakam Beg (P. W. 7), Muhammad (P. W. 8) and the investigating officer. In addition to the considerations which prevailed with the trial Judge to discard the recovery, we find that the maker of the F. I. R. Exh. P. A. Nowhere stated that the crime empty was thrown at the spot by the appellant who tried to reload the weapon of offence. There is no mention in the relevant column of the inquest report about the existence of the crime empty at this circumstance also tends to show that whosoever was the assailant and away after firing the fatal shot. There was no necessity on the part of the appellant to have reloaded the weapon because there was hardly any opposition which the appellant had to encounter and there was no point 'in his loading the weapon again after he had successfully fired at the victim, who dropped to the ground after receiving the mortal injury. We are, therefore, of the view that the recovery of the weapon of offence and the crime empty in this case in no way advanced the prosecution case, because the recovery of the crime empty Exh. P. 1 from the spot is highly doubtful.
6. The ocular account was given by Ghulam Rasul (P. W. 12) and Faqir Muhammad (P. W. 13). The father of Ghulam Rasul P. W. Is a first-cousin of Ali Muhammad, father of the deceased. He deposed that on the day of the alleged occurrence at about sunrise, he had gone to the village mosque and saw the deceased standing near the eastern bath room of the mosque. After sometime, the appellant also came there and stood by the well situated inside the mosque. The appellant started abusing the deceased telling him that Haider Beg was his rival and why the deceased had not discontinued tethering his cattle in the haveli of Haider Beg. The deceased returned the abuse whereupon the appellant fired with the carbine hitting the victim on the right eye. Faqir Muhammad also came up. They admonished the appel--lant who ran away taking the weapon of offence with him. Ali Muhammad, whose house is at a distance of 30 karams from the mosque, also came up. Ghulam Rasul and Faqir Muhammad narrated to him what had happened.
Ghulam Rasul stated that he was going to the mosque when he saw Faqir Muhammad P. W. Also coming towards the mosque. He did not say so before the committing Magistrate. He omitted to mention either in his statement before the committing Magistrate or before the police that the appellant fired at the deceased from a distance of about 3-- feet. We cannot from these omissions reasonably come to the conclusion that Ghulam Rasul did not seethe occurrence and deposed because of his relationship with the deceased. It is in the statement of Ghulam Rasul that Faqir Muhammad P. W. Was standing in the street outside the mosque, while he was standing just to steps inside the main door of the mosque when he saw the appellant firing the fatal. Shot at the deceased. The appellant was standing on the eastern side of a wall about three feet high towards the well of the mosque while the deceased was standing outside the entrance door of the bath- room of the mosque on the western side of the wall when the appellant fired with the carbine at the deceased from over the wall which intervened between-them. The seat of the injury caused to 'the victim of the crime fully bears out the statement of Ghulam Rasul on this point. The trial Judge relied on the evidence of Ghulam Rasul to convict the appellant.
7. Mr. M. Salim, learned counsel for the appellant vehe--mently contended that Ghulam Rasul did not see the occur--rence because he had been working at village Senthal as a carpenter. Ghulam Rasul admitted that he alongwith Ali Muhammad and Bahadur P. Ws. Had been working at village Senthal, but on the day of the alleged occurrence he did not go and work there. He is a tarkhan. So is Ali Muhammad a father of the deceased, who worked as a mason. Bahadur P. W. Is the brother of the deceased. Learned counsel for the appellant also contended that the conduct of Ghulam Rasul is not accompanying the injured to the hospital was unnatural because he being a relation should have ordinarily gone with the deceased to the Dispensary, particularly when the deceased had to be carried on a cot. . It is in the statement of Ghulam Rasul that he did not go to the -hospital alongwith the injured, but went towards his- land after the occurrence. No question was put to Ghulam Rasul as to why he did not accompany the injured to the dispensary. Ghulam Rasul was not given the opportunity to explain his conduct in going towards his land after the occurrence and not accompanying the injured to the Dispensary. In the absence of any expla--nation by Ghulam Rasul on this point, it is not possible for us to infer that Ghulam Rasul did not see the occurrence.
We are not prepared to go to the length of holding that Ghulam Rasul, Ali Muhammad and Bahadur P. W.
5. Happened to be at village Senthal to or 2-- miles away and came to the spot on learning of the occurrence.
Sun rose at 6-07 a-m. On the day of the alleged occur--rence and although the deceased is stated to have gone to the mosque at about sunrise, followed by Ghulam Rasul P. W., but the deceased had not yet taken of his clothes when the appellant is alleged to have reached the mosque and started abusing the deceased. The fact that the deceased was carried to the Dispensary immediately after the occurrence where the statement of Ali Muhammad, his father, was promptly recorded, nagatives the defence argument by the learned counsel for the appellant that Ghulam' Rasul, his cousin Ali Muhammad and Bahadur came to their village from Senthal on hearing about the occurrence. The deceased had been mortally wounded and died within 15 minutes of his arrival at the Dispensary, which shows that he was removed to the Dispensary immedia--tely after the occurrence. The probabilities favour the view that Ghulam Rasul told the truth when he stated that in his presence the appellant shot at the deceased with the carbine in the village mosque. We find nothing improbably in either Ghulam Rasul or Ali Muhammad not going to work at Senthal on the day of the alleged occurrence. The name of Ghulam Rasul was mentioned in the report Exh. P. A. Which was promptly lodged by Ali Muhammad. His house in at a distance of about 30 karams from the mosque on the eastern side and there; is nothing on the record to suggest that Ali Muhammad did not reach the spot immediately after the occurrence as claimed by him. He admitted that some ladies were present before he went to the mosque - and Mr. M. Salim, wanted us to infer from his statement that Ali Muhammad must have taken long to come to the spot because he was at Senthal. We do not share the view. It is not possible to discard the statement of Ali Muhammad merely because when he reached the spot, he found some women already present there. Neither Ali Muhammad nor Ghulam Rasul had a motive to implicate the appellant in the case falsely. They are village menials: The appellant is a proprietor in-the village.
Ali Muhammad P. W. Had come to the spot when he heard the report of a gun-fire. He saw his son Ghulam Rasul lying at the door of the bath-room of the mosque with a fire-.Arm injury on his right eye. He says that Ghulam Rasul and Faqir Muhammad P. Ws. Were present in the mosque when he went there. Ghulam Rasul deceased was still alive. He placed him on a cot and took him to the Rural Dispensary, Paharianwali. The statement of Ali Muhammad is in no way in conflict with the evidence of Ghulam Rasul. The trial Judge believed Ghulam Rasul and we have no hesitation in accepting his presence at the spot at the the of the alleged occurrence.
8. Faqir Muhammad, however, belongs to a different village, which is at a distance of 2J miles from the spot. He said in his statement that he was in need of services of a carpenter to work at his brother's house. ' He came to village Alipur in order to engage a carpenter. He reached Alipur shortly after sunrise and saw the occurrence: In addition to the reasons given by the trial Judge, to, dis--believe his presence on the spot at the the of the occurrence, we find that Faqir Muhammad stated before the committing Magistrate that at the the of the occurrence, the assailant was at a distance of live or six karams from the victim, which is inconsistent with the medical evidence. Faqir Muhammad admitted having given evidence in more case than one for the prosecution and although it is to give a categorical finding that Faqir occurrence, we consider it safe to keep out his evidence from consideration. We have already relied on the evidence of Ghulam Rasul, which is corroborated by Ali Muhammad.
The deceased had gun shot injuries exactly at the right eye. He had four small gun shot wounds on the left side of the nose and three small gun shot wounds of entries at the right eye-brew. There was also a gun shot wound of entrance below injury No. 1 and the margins of the wound were not only lacerated inverted ecchymosed but also tatooed, which shows that the shot was fired from a close range. The doctor estimated the distance of the assailant from the victim as approximately six. Feet, which fits in with the ocular account. Death had occurred due to shock and haemorrhage as a result of injuries to the brain and right eye-ball. Injury No. 1 was sufficient to cause death in the ordinary course of nature.
9. There was sufficiently strong motive for the appellant to have killed the deceased. The dispute regarding the tethering of cattle by Ali Muhammad, father of the deceased, in the haveli of Haider Beg with whom the appellant had enmity, was of no consequence. In fact, what impelled the appellant to take the life of the deceased was the incident which he himself had witnessed three days before the occurrence. Mst. Kursia Begum, a sister of the appellant was seen by him shaking, hand with the deceased. The appellant had slapped his sister. The deceased was admonished by his brother Bahadur, who told him that as a kamin he dare not have friendly relations with the lady of the house of a proprietor. The deceased had told Bahadur that the girl was herself inclined to have amorous relations with him. We are inclined to believe this motive which must have infuriated the appellant to the extreme.
10. The defence of the appellant was a bare denial. He ascribed the case to enmity with Haider Beg.
Undoubtedly, there has been litigation between Haider Beg and. The appellant, but we are not inclined to believe that the deceased was killed in the village mosque after sunrise but nobody had seen the occurrence and that Haider Beg prevailed upon Ali Muhammad, the father of the deceased, and his relative Ghulam Rasul to foist the crime on the appellant.
On careful consideration of the evidence, we are inclined to agree with the finding of the trial Court that the appellant and nobody else was responsible for the death of Ghulam Rasul.
11. This brings us to the question of sentence. The appellant appears to have committed the crime from a sense of honour and keeping in view the observations of their Lordships of the Supreme Court in Umar Hayat v. The State (PLD 1966 SC 602) we are inclined to the view that the sentence of death was not called for in this case. We, therefore, while maintaining the conviction of the appellant under section 302, P. P. C., replace the sentence of death with transportation for life. The appeal is accepted to this extent only. The death sentence is not confirmed.