JAVID IQBAL, J.-Muhammad Amir Khan (Amir Khan) son of Muhammad Khan, aged 29/30 years, armed with gun, has been convicted under section 302, P. P. C. For the murder of Abdul Hameed aged 25 years, and vide judgment of the Additional Sessions Judge, - Mianwali, dated 3rd July, 1979 was sentenced to death plus fine of Rs, 3,000 or in default to undergo one year's rigorous imprisonment, and if the fine was realized from him, 2/3rd of the same was to be paid as compensation to the heirs of the deceased. The appeal of the convict as well as Reference for the confirmation of death sentence awarded to him are being taken up and disposed of together by this judgment.
2. The occurrence took place at 8:30 a.m. On 8th February, 1977 on Talagang road within the area of village Yaru Khail, at a distance of 1 miles from Police Station Saddar, District Mianwali. F. I. R. Exh. P.
E. Was lodged by Atta Muhammad P. W. 6, husband of cousin of the deceased and also uncle of the appellantat 9-00 a.m. On the same day and it was recorded by Muhammad Rashid.S.-I. P. W. 8.
3. The motive for. Crime, as stated in the F. I. R. Is that 4/5 years before the present occurrence Atta Muhammad P. W. 6 had purchased a piece of land near his house in the area of village Sohrabwala. But two days before the present occurrence a dispute arose regarding the said piece of land between Atta Muhammad P. W. And the appellant in which the deceased supported or helped Atta Muhammad P. W. It is stated that this provided a cause to the appellant for the murder of the deceased. The motive has been believed by the trial Judge for the reasons given in paras. 10 and 11 of the judgment at pages 29/30 of the Paper Book.
4. The prosecution has produced two eye-witnesses of occurrence, namely, Atta Muhammad P. W.
6, husband of the cousin of the deceased, as well as uncle of the appellant, and Muhammad Nawaz P. W. 7, real brother of the deceased. Ghulam Qadir, also a relative of the deceased and Atta Muhammad P. W. Was cited as an eye-witness in the F. I. R. But was given up as unnecessary.
5. The appellant was arrested on 19th February, 1977 (11 days after the occurrence) by Muhammad Rashid S.-I- P. W. 8 when he surrendered himself before the police officer. There was no recovery of crime empty from the spot. However, at the instance of the appellant an unlicensed 12 bore gun P. 1 was recoved from him and taken into possession memo. Vide Exh. P. C. Dated 28th February, 1977.
The attesting witnesses are Noor Muhammad (not produced), Muhammad Rashid S.-I. P. W. 8 and Dilasa Khan F. C. P. W.
4. This recovery has been disbelieved by the trial Judge for the reasons given in para. 20 of the judgment at page 35 of the Paper Book. In any case, in the absence of any crime-empty picked up from the spot, the recovery is of no corroborative value as it does not connect the appellant with the commission of crime. Therefore, it had rightly not been relied upon.
6. The appellant, in his statement before the trial Court, totally denied having participated in the occurrence. He disowned the recovery and stated that it was planted on him. He stated that he had been falsely implicated in this case due to his enmity with Atta Muhammad P. W. The case of the defence is that the deceased was murdered by some unknown assailant unwitnessed by anyone and that Atta Muhammad P. W. Falsely implicated the appellant due to suspicion and enmity with him.
7. Dr. Ashiq Ali P. W. 2 conducted post-mortem examination on the dead body of the deceased at 3-00 p.m. On 8th February, 1977 and found on his person a fire-arm wound of entry just below the left lower eye-lid and four exit wounds in an area of 2" x 2" over the right ear. Four pieces of cardboard, two pieces of pellet and one deformed pellet were found at the site of the exit injury.
The stomach contained about 4 ounces of liquid. Small intestines had traces of digested food and the large intestine was full of faecal matter. The bladder was empty. In his opinion the cause of death was haemorrhage and shock due to the injuries which had been caused by fire-arm and were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was about five minutes and the time between death and post-mortem examination was about six hours. He stated in the cross-examination that the stomach suggested that the victim had not taken any solid food before the attack. The two main injuries on his person represented an entry wound and exit wound of the same injury. There was no blackening or tattooing and that the distance of the gun from the deceased could be about 3 feet and 4 feet at the minimum. He also stated that the presence of faecal matter in the large, intestine was not indicative that the deceased had not yet evacuated. For that purpose the material traced in the anal-canal was to be taken into account.
In the light of the report of the Medical Officer it appears that the deceased had urinated before he was murdered, that he had taken some liquid a few hours before the occurrence and that the shot had been fired at him from a distance possibly beyond 3 or 4 feet.
8. In the F. I. R. The occurrence is reported to have taken place in the following manner. On the fateful day Atta Muhammad P. W. 6 and the deceased riding on a bicycle together were proceeding to Mianwali. When they arrived on the pacca Talagang road near the Water Tank of P.
A. F. The appellant, who was armed with 12 bore gun and driving a scooter passed by their side and stopped them by forcing them to alight from the bicycle and stating that he would avenge the incident which took place two days before. Thereafter, he fired a shot which hit the deceased on the eye and as a result the deceased fell down and died on the spot. Besides Atta Muhammad P.
W. The occurrence was also witnessed by Muhammad Nawaz P. W. 7 and Ghulam Qadir (not produced) who were also coming behind them both riding together on a bicycle and had witnessed the occurrence as well as had rescued Atta Muhammad P. W. From being further attacked by the appellant. The appellant then ran away on his scooter towards the village. Leaving behind Muhammad Nawaz P. W. And Ghulam Qadir to guard the. Dead body, Atta Muhammad P.
W. Proceeded to lodge the report.
9. We have heard learned counsel for the parties and have carefully perused the record with their assistance. It may be pointed out at the outset that according to the statement of Atta Muhammad P. W. Complainant, he is related to the deceased as well as is paternal uncle of the appellant. The motive for crime, as given in the F. I. R. Is that 4/5 years before the present occurrence Atta Muhammad P. W. Had purchased a piece of land near his house in the village Sohrabwala. There never arose any dispute between him and the appellant in the course of these 4/5 years in respect of the said land. However a dispute arose only two days before the present occurrence respecting the said land between the appellant and Atta Muhammad P. W. In the course of this dispute it is stated that the deceased had sided with, supported or helped Atta Muhammad P. W. As against the appellant and had thus intervened. Atta Muhammad P. W. In his cross-examination, has explained as to what was the nature of this dispute which had arisen two days before the present occurrence. He has stated that he wanted to include the disputed land in his residential house. There was a street measuring 12 feet in width which passed in front of his house and on the back side of the house of the appellant. Since Atta Muhammad P. W. Wanted to merge the disputed land in his house, he planned to close the aforesaid street which catered through it as there was no necessity to keep it intact. He categorically stated that the dispute about the said land arose only two days before the present occurrence and that it was incorrect to suggest that the appellant had been previously restraining him for the last 4/5 years from closing the aforesaid street. He further stated that he could not open the door in the aforesaid street because of his financial inability and it was not that he did not fix the door due to the opposition put up by the appellant. The altercation had taken place two days prior to the present occurrence in front of his door and on the back side of the house of the appellant. At that time besides him and the appellant, the deceased was present as he had come to see his ailing wife. Learned counsel for the appellant has vehemently argued that the motive as set up by the prosecution, could not be true. It is argued that if there existed any dispute between the appellant and Atta Muhammad P. W.
About the disputed land, then the deceased was not connected with the said motive and the appellant had no motive to commit the murder of the deceased. Furthermore, it is submitted that it has not been brought on the record as to in what way the deceased had helped, supported or sided with Atta Muhammad P. W. There is no independent witness of the motive and whatever Atta Muhammad P. W. Had stated about the motive was simply this that he and the appellant had an altercation about the disputed land in the course of which the deceased had supported Atta Muhammad P. W. And this had provided a cause to the appellant to murder the deceased. In short, the argument of learned counsel is that the motive or the real cause of the occurrence has not been disclosed and the Court has not been taken into confidence by the prosecution in respect of the same. The argument is that mere supporting Atta Muhammad P. W. In his dispute pertaining to a piece of land with the appellant would ordinarily not provide sufficient motive to the appellant for the commission of crime of murder of the deceased. Thus, according to learned counsel the motive, as set up by the prosecution, should not be relied upon. If there had been any motive or cause, it remained shrouded in mystery and the Court had not been taken into confidence in respect of the same. We do not agree with learned counsel. Atta Muhammad P. W. Has stated in his statement that previously he never had any dispute aboute the said land with the appellant. It is evident from the record that Atta Muhammad P. W. Is not only related to the deceased but is paternal, uncle also of the appellant. So be is related to both the parties. Dispute, if any pertaining to the said land arose between Atta Muhammad P. W. And the appellant only two days before the present occurrence. Atta Muhammad P. W. Is certainly the person who could only be produced as witness of the motive. He has stated in the cross-examination that the dispute arose because he wanted to include the disputed land in his residential house and this meant the closing of what had been used as a pathway in the said land. It was in respect of this dispute, according to the prosecution, which took place two days before the present occurrence that the deceased is reported to have sided with Atta Muhammad P. W. It is irrelevant as to in what way the deceased had helped Atta Muhammad P. W. But it can be inferred that extension of help by the deceased to Atta Muhammad P. W. Could have annoyed the appellant for probably the reasons that Atta Muhammad P. W. Was an elderly man who was closely related to the appellant and that if there had been a dispute between the two of them Why should the deceased interfere whose cousin was married to Atta Muhammad P. W. In other words, he had no business to intervene in a matter which was between the appellant and Atta Muhammad P. W. Consequently, in our view there is no vagueness about the motive and it is not correct to say that it is shrouded in mystery or the Court had not been taken into confidence about the same.
In the light of the above discussion, We are convinced in our mind that the trial Court had correctly relied upon the motiVe version.
We have already pointed out that the case of the defence is that the occurrence took place early in the morning when the deceased might have gone on his bicycle on the Talagang road and while he was proceeding he was attacked by some unknown assailant unwitnessed by anyone and that subsequently Atta Muhammad P. W. Was informed and he proceeded to lodge the report with the police in which he named the appellant as the assailant of the deceased due to suspicion or due to two days old enmity. In this respect learned counsel wants us to rely on the medical evidence which is to the effect that there was only liquid in the stomach of the deceased at the time of his death and that although the bladder was empty, he had not yet evacuated. From this learned counsel wants us to draw an inference that the occurrence did not take place at 8-30 a.m. As stated by the prosecution but might have taken place at 6-00 a.m. Or so. In support of this contention learned counsel also took us through the inquest report on the top of which the number of the F. I. R. Is not given and furthermore in the column of date and time of report there is overwriting on the time of report over 8-00 a.m. Making it 9-00 a.m. The argument of learned counsel is that the police officer went to the spot alongwith Atta Muhammad P. W. And first prepared the inquest report. He did not write the number of the F. I. R. On the top of it because the F.
I. R. Had not yet been prepared and that he originally wrote with his pencil 8-00 a. m. Without realizing that if the occurrence was to be described as having taken place at 8-30 a. m. Then the matter could not be reported at 8-00 a.m. It should have been 9-00 a.m. Consequently, 8-00 a. m.
Was overwritten as 9-00 a.m. But here too we do not agree with learned counsel. Muhammad Rashid S.-I. P. W. Has denied these suggestions as incorrect in his cross-examination. He explained that he did not write the number of the F. I. R. As he was in a rush and he had further stated that he had written the time as 9-00 a. m. By writing over 8-00 a. m. We have gone through the inquest report. He has given an abridgement of the narration in the F. I. R. About the occurrence in the brief facts and has also recorded the names of the eyewitnesses therein. It is, therefore, difficult to balieve that the inquest report had been written before the recording of the F. I. R. In our view, the F.
I. R. Was recorded before the making of the inquest report and in the inquest report if the Investigating Officer had not given the number of the F. I. R. Or had erroneously written 8-00 a. m.
As the time of the report and then corrected it as 9.00 a. m. It would not help in any way or support the case of the defence. So far as the prosecution case is concerned, it was not a case of mistaken identity. The occurrence took place at 8-30 a. m. On 8th February, 1977. The police station was at a distance of I miles and the matter was promptly reported at 9-00 a. m. On the same day at the police station. The Investigating Officer, according to his statement, arrived at the spot within about two hours of the occurrence and the post-mortem examination on the dead body of the deceased took place about six hours thereafter. Consequently, in our view the F.I.R. Was lodged promptly in the instant case. Even if we are to assume that the inquest report was made before the making of the F. I. R, in the brief facts the narration of the occurrence is the same as in the F. I. R. And the names of the same eye-witnesses also occurred as in the F. I. R.
It was next argued that according to the version of the prosecution Atta Muhammad P. W. Was accompanying the deceased as both of them were riding a bicyle on the Talagang road when the appellant came from behind on scooter armed with a 12 bore gun and stopped them, Thereafter he forced them to alight from the bicycle. Then he fired a shot which hit the deceased on the eye and thus killed him. According to the prosecution version, the bicycle of the deceased was found on the spot. The argument of learned counsel is that Muhammad Nawaz P. W. Real brother of the deceased, who resided at some other place is also shown to have followed the deceased and Atta Muhammad P. W. On another bicycle alongwith Ghulam Qadir who has not been produced but was given up as unnecessary. The argument is that the second bicycle had also been stated to be lying on the spot by Muhammad Nawaz P. W. But the Investigating Officer states that he did not see it. According to learned counsel there was no second bicycle on the spot and Muhammad Nawaz P. W. Was merely a chance witness who had no reason to be present on the spot. According to learned counsel he had been produced only in order to support or corroborate the testimony of Atta Muhammad P. W. It was also pointed out that Muhammad Nawaz P. W. Being brother of the deceased lived with him in the same house and that, therefore, it should have also been in his knowledge that an incident in the form of altercation had taken place two days before the present occurrence between the appellant on one side and Atta Muhammad P. W. As well as the deceased on the other about the disputed land. But this witness has clearly stated in line 26 at page 21 of the Paper Book that he had no knowledge about any such dispute or that if the deceased and the appellant had an altercation with the appellant two days before the present occurrence. Thus the reasoning of learned counsel is that the testimony of Muhammad Nawaz P. W. Not only disproves the existence of motive as set up by the prosecution but he also could have not been present on the spot being a chance witness. It is submitted that he is real brother of the deceased and since he is clearly a chance witness, he must have been introduced in order to support the testimony of Atta Muhammad P. W. We have carefully considered this aspect of the case. But we have pointed out to learned counsel. That even if Muhammad Nawaz P. W. Was to be considered as a chance witness and we were to discard his testimony, there was still the ocular testimony of Atta Muhammad P. W. Who had .Accompanied the deceased on his bicycle at the time of the occurrence and was an eye-witness of the same. Indeed, the conviction and sentence of any accused-person can be sustained on the basis of the sole testimony of a reliable eye-witness. At any rate, in the instant case, Muhammad Nawaz P. W. May be a brother of the deceased and, therefore, closely related to him. But there is nothing on the record to show that he had a motive to falsely implicate the appellant.
It was next argued that Atta Muhammad P. W. Is an interested witness, because he had a dispute over a piece of land with the appellant and that in the peculiar circumstances of this case his testimony should not be accepted without corroboration. It was submitted that there is no corroboration of his testimony and that he being an interested witness with a motive to falsely implicate the appellant might have named him as the assailant of the deceased merely on suspicion. It was submitted that the testimony of an eye-witness or particularly a sole eye-witness of an occurrence like the present one should only be accepted if it came from an unimpeachable source. Reliance in this connection was placed on Bagh Ali v. State and Thoba v. State . We have carefully considered these arguments of learned counsel. Atta Muhammad P. W. Is paternal-uncle of the appellant and cousin of the deceased is married to him. Evidently he is closer in relationship to the appellant rather than the deceased, it is also borne out by the record that there was no previous enmity between the parties on any account or even in respect of the disputed land. The1 2 parties are related. The dispute only arose two days before the occurrence and it was about the disputed land. In this dispute an altercation took place between Atta Muhammad P. W. And the appellant two days before the occurrence. The deceased was present on that day when the dispute arose because he had gone to inquire about the health of the wife of Atta Muhammad P.
W. Who was his cousin. He is reported to have sided with, supported or helped Atta Muhammad P.
W. In the course of this altercation as opposed to the appellant. This had offended or annoyed the appellant for the reason as to who he was to intervene. It was in this background that on the day of occurrence the appellant is stated to have attacked the deceased while he was accompanying Atta Muhammad P. W. On a bicycle on Talagang road. Atta Muhammad P. W., in our view, is not an interested witness in the sense as learned counsel for the appellant wants us to believe. He is paternal uncle of the appellant and had no motive to falsely implicate him. There is no background of previous enmity in this case. We therefore, have no reason to doubt his testimony as the sole eye-witness of the occurrence even if we are to discard the testimony of Muhammad Nawaz P. W.
In the instant case. Had he been an interested witness, he would have implicated not only the appellant, but also some other members of his family or his other enemies by attributing proverbial lalkara, Japha, etc. To the others. Had it been so, then certainly corroboration was necessary. But, in the instant case, he being paternal-uncle of the appellant was giving a statement of facts as to what had happened and his testimony is quite consistent. In our view, there is no reason why it should not be relied upon even if we are to leave out of consideration the testimony of Muhammad Nawaz P. W. Thus in our considered opinion the ocular testimony, in the instant case, is being supported by the medical evidence as well as the motive version.
In the light of the above discussion, we are convinced in our mind that the prosecution has succeeded in establishing its case as against the appellant beyond any shadow of doubt. In the circumstances, his conviction as well as sentence awarded thereunder were quite proper and are accordingly maintained. The result is that we do not find any substance in this appeal which is accordingly dismissed.
The death sentence awarded to the appellant is hereby confirmed. PLD 1973 SC 321 PLD 1963 SC 40