' KHIZAR HAYAT, J.--Muhammad Nawaz, Abdur Razzaq, Hussain Bakhsh and Sohara were tried under section 302 read with section 34, P.P.C, by the learned Sessions Judge, Dera Ghazi Khan, for causing murder of Shahnawaz (deceased) and making murderous assault on Syed Rahim Bakhsh Shah (P.W.9), in the Bazzar of village Naushehra Gharbi, Police Station Dajil, district Dera Ghazi Khan, at 11- 30 a.m. on 27-6-1979. The learned trial Judge vide his judgment, dated 11-5-1979, acquitted Abdur Razzaq, Husain Bakhsh and Sohara (accused) but convicted Muhammad Nawaz (appellant) under section 302, P.P.C. and sentenced him to death and a fine of Rs,2,000 or in default to suffer rigorous imprisonment for a period of one year. The fine if realized, was directed to be paid to the heirs of the deceased.
2. Muhammad Nawaz (appellant) assailed the order of his conviction by means of this appeal, whereas the learned trial Judge made reference under section 374, Cr.P.C. to this Court for confirmation of death sentence awarded to the appellant. We propose to dispose of the appeal (Criminal Appeal No, 694 of 1979) and the murder reference No, 191 of 1979) by this judgment.
3. The report in this case was made on 27-6-1975 by Syed Rahirn Bakhsh Shah (P.W.9), a cousin of the father of Shahnawaz (deceased) through a written complaint Exh.P.J. Ellahi Bakhsh, Muharrir of Police Station Dajil had drawn up the formal F.I.R. Exh.P.J/1 at 12-30 p.m., the same day, on the basis of Exh.P.J.
4. According to the F.I.R. on the fateful day at 11-30 a.m., Rahim Bakhsh Shah was getting his hair cut fur preparing himself for "Juma prayers" and Shahnawaz (deceased) was sitting on a nearby bench waiting for his turn. In the meantime, Hussain Bakhsh Jaskani (acquitted accused) came there and seeing Syed Rahim Bakhsh Shah and Shahnawaz present there, immediately went back.
Abrupt return of Hussain Bakhsh aroused suspicions in the mind of the complainant. Immediately thereafter, Muhammad Nawaz (appellant) armed with a gun came in front of the shop. He fired a shot aiming at the complainant but the cartridge missed. Abdur Razzaq (acquitted accused) exhorted the appellant to fire again which he did, and the bullet grazing the lower part of t ie right chest of Rahim Bakhsh Shah hit Shahnawaz and the bullet passed through his abdomen. Ellahi Bakhsh (P.W.10) and Wahid Bakhsh (not produced) in order to apprehend the appellant chased him but Hussain Bakhsh and Sohara armed with hatchets threatened them that whosoever went near them would be murdered. Hafiz Umar Wadda and Faiz Muhammad P.Ws (both not produced) had also seen the occurrence.
5. The motive for committing the murder, as given in the F.I.R.,was three-fold. Firstly, Abdul Razzaq (acquitted accused) was politically opposed to Syed Rahim Bakhsh Shah (complainant); secondly, there existed a dispute over a house between them; and thirdly, Abdul Razzaq (acquitted accused) had suspicion about Shahnawaz (deceased) having illicit relation with his sister Mat. Daulat.
6. Shahnawaz and Syed Rahim Bakhsh Shah were immediately removed to Rural Health Centre, Dajil, where Dr. Hafiz Saadullah (P.W.2) examined them at 1-30 p.m. He found the following two gunshot wounds on the person of Shahnawaz:--
(1) A gunshot wound 3/4" x 4/8" x 1" on the right side of abdomen in the lumber region 4" away from the umbilicus. No blackening of the skin, situated on the interior side of abdomen.
(2) Gunshot wound 1/4" x 1/4" x 1" on right side of back of abdomen in the lumber region. No blackening of the skin, 11" from the vertebrae column. The doctor found the following two gunshot wounds on the person of Syed Rahim Bakhsh Shah:--
(1) Gunshot mark 6/8" depth superficial skin on left side of abdomen 41" away from the umbilicus.
(2) Gunshot mark 4/8" x 1/8" the depth superficial skin on the left side of abdomen 11" away from injury No,l.
' Exh. P.B. is the medico-legal report pertaining to the injuries of Shahnawaz (deceased) and Exh.PB/1 pertaining to the injuries of Syed Rahim Bakhsh Shah (P.W.9). The doctor opined that the injuries were of 21 hours' direction. Written queries were made from the doctor by D.S.P. Manzoor Hussain, the Investigating Officer (not produced) to which he replied vide Exh.PW-2/A and P.W-2/B.
7. In view of serious Injuries on his person, Shah nawaz Wilt referred to District Headquarters Hospital, Dern Ghia' Khan, where he remained admitted till he expired on 30-6-1975 at 7-30 a.m.
8. On 30-6-1975, Dr. Musarrat Abbas (P.W.1) conducted post-mortem examination on the dead body of Shahnawaz and found the following injuries:--
(1) A rounded lacerated wound 1" x 1" on right lower back about 2-14" below last rib and about 2" away from mid-line, there is no blackening around (wound of entrance).
(2) A lacerated wound oval in shape 3/4" x 1" on right abdomen below the last rib on right side about 4" away from the umbilicus (wound of exit).
' On internal examination, the heart was found full of blood; the peritoneum was found perforated at the level of the injury; stomach was empty; small intestine was healthy and contained fluid, Large intestine (ascending colon) was perforated. It was stitched and contained faces. Bladder was full of urine. In the opinion of the doctor, all the injuries were ante-mortem, caused by fire-arm.
They were fatal and were found sufficient to cause death in ordinary course of nature due to hemorrhage, peritonitis and shock. The probable time between the injury and the death was about 3 days and the time between death and post-mortem examination was about 51 houRs,
9. S.I. Raja Sikandar Hayat (P.W.11) reached the spot at 1-15 p.m. on 27-6-1975 and took up the investigation. He recovered bullet P.1 from the spot and sealed it into a parcel vide memo. Exh.P.F.
Muhammad Nawaz (appellant) appeared before him, the same day and produced .303 bore rifle P.2 with a missed cartridge P.9 stuck up in its chamber and two live cartridges P.3/1-2. The Sub-:Inspector arrested him and also sealed and seized the cartridge through memo. Exh.P.G.
10. On 5-7-1975, a wooden plank P.5/1 of the door of shop of Rahim Bakhsh, barber, bearing a hole caused by a bullet was taken into possession vide memo Exh.P.H. He got the site plan Exh.P.C. prepared in triplicate by Amir Bakhsh, Patwari (P.W.3). On 6-7-1975, he seized shirt P.6 of Syed Rahim Baldish Shah (P.W.9) wind shirt P.7 and vest P.8 of Shahnawaz (deceased) through memo Exh.P.L. and Exh.P.M. respectively.
11. Being dissatisfied with the investigation by S.I. Raja Sikandar Hayat, the complainant made several complaints to the higher authorities as a result whereof the investigation was transferred to Manzoor Hussain, D.S.P., Taunsa, who also conducted the investigation of the case for some days.
Both the Investigating Officers held the appellant guilty and declared Abdul Razzaq, Hussain Bakhsh and Sonhara innocent in this case. Ultimately the S.H.O. submitted challan against Muhammad Nawaz (appellant) alone to the Court.
12. Feeling aggrieved by the findings of the police, Syed Rahim Bakhsh Shah (complainant) filed a private complaint Exh.P.K. on 27-8-1975 under sections 302/307/34, P.F.C. before Ilaqa Magistrate against all the four accused (mentioned in the F,I.R) under the old law. After recording preliminary evidence the learned Magistrate issued process against Abdul Razzaq but declined to summon Hussain Bakhsh and Sonhara as accused vide his order, dated 21-6-1976. Against this order, a revision petition was filed by the complainant before the learned Sessions Judge which was accepted. In the meantime, the procedural-law was amended and consequently the complaint was sent up under section 190, Cr.P.C. to the Court of Session. The learned Sessions Judge, after obtaining a report in an inquiry held under section 202, Cr.P.C. by a Magistrate, summoned Hussain Bakhsh and Sonhara also, by his order, dated 5-7-1978, to face trial alongwith Abdul Razzaq and Muhammad Nawaz. The private complaint and the challan case were consolidated, tried and disposed of by the learned Sessions Judge by the single order under appeal.
13. It would be appropriate to give here the gist of complaint Exh.P.K. "On 27-6-1975, at 11-00 a.m., the complainant was getting his hair-cut at the shop of Rahim Bakhsh, Barber, in village Naushehra Gharbi while Shahnawaz (deceased) was sitting on a bench lying near him. Hussain Bakhsh (acquitted accused) came there armed with hatchet but immediately went back. This had aroused a suspicion in their minds. They were about to rise, but immediately Muhammad Nawaz (appellant) armed with a gun, Abdul Razzaq, Hussain Bakhsh and Sonhara (acquitted accused) armed with hatchets, came there. Muhammad Nawaz (appellant) had fired a shot but the cartridge missed. Abdul Razzaq shouted Lalkara and exhorted the appellant to fire the second shot.
Rahim Bakhsh, barber, became panicky and ran out. He (Rahim Bux Barber) closed the door of the shop from outside. Muhammad Nawaz (appellant) fired the second shot which hit him as well as Shahnawaz (deceased). Ellahi Bakhsh and Wahid Bakhsh P.Ws tried to apprehend the appellant but his co-accused Hussain Bakhsh and Sonhara threatened to kill any person who attempted to arrest them. The occurrence was seen by Ellahi Bakhsh, Wahid Bakhsh, Hafiz Umar Wadda and Faiz Muhammad, P.Ws. Syed Rahim Bakhsh Shah (complainant) and Shahnawaz (deceased) were removed to the hospital at Dajil. But the doctor had at once referred Shahnawaz (deceased) to District Headquarters Hospital, Dera Ghazi Khan, in view of his precarious condition and simultaneously informed the police. Since the Station House Officer was his enemy, he did not send the police to his help; no arrangements were made to record his statement or dying declaration of Shahnawaz. At last, Shahnawaz died in District Headquarters Hospital Dera Ghazi Khan on 30-6- 1975. Being dissatisfied with the investigation of the Station House Officer and the Deputy Superintendent of Police, Taunsa, he filed a complaint on 27-8-1975."
14. It would be apparent that the story narrated in the complaint largely coincides with the contents of the F.I.R. except of a few additional details.
15. At the trial the prosecution produced 11 witnesses in support of its case and produced various pieces of evidence, e.g. motive as deposed by Syed Rahim Bakhsh Shah (P.W.9); incriminating recoveries proved by Ghaus Bakhsh, Lambardar (P.W.8) and S.1. Raja Sikandar Hayat (P.W.11); ocular account furnished by Syed Rahim Bakhsh Shah (P.W.9), Ellahi Bakhsh (P.W.10), Rahim Bakhsh alias Moro (C.W.1), Aman Ullah (C.W.2) and Rahim Bakhsh Khoja (C.W.3), and the medical evidence given by Dr. Musarrat Abbas (P.W.1) and Dr. Hafiz Saadullah (P.W.2).
16. All the accused including the appellant when examined under section 342, Cr.P.C. denied the allegations in to and professed innocence. They, however, did not offer to produce defense evidence.
17. The learned trial Court believed the prosecution case as far as it pertained to the appellant and convicted him as described earlier. But finding the prosecution case doubtful against the retaining co-accused, acquitted them.
18. We have heard the arguments advanced by learned counsel for the parties and also gone through the record with their assistance.
19. Learned counsel for the appellant has raised various objections to show that the evidence available on the record did not prove beyond reasonable doubt that the appellant was guilty of committing the murder of Shahnawaz (deceased) in this case. We shall deal with each of his objections in the following paragraphs of the judgment.
20. Firstly, the learned counsel argued that the learned lower Court having disbelieved the complainant Rahim Bakhsh Shah (P.W.9) and Ellahi Bakhsh (P.W.10) was not justified in placing implicit reliance on the uncorroborated testimony of the Court-witnesses, namely, Rahim Bakhsh alias Moro (C.W.1), Aman Ullah (C.W.2) and Rahim Bakhsh Khoja (C.W.3) because the version given by these witnesses was materially different than the prosecution version set up by the comp lainant in the F.I.R. Exh.P.J. and his private complaint Exh. P.K.
21. It is true that the learned trial Court discarded the evidence of Ellahi Bakhsh (P.W.10) and rightly so, because he was a close relation of the deceased and his presence was not confirmed by the Court witnesses. But while dealing with the testimony of the complainant, Syed Rahim Bakhsh Shah (P.W.9) the learned trial Judge observed that because he had exaggerated and also did not narrate the occurrence in a straightforward manner, therefore, he had to "sift grain from the chaff".
In doing so, he rejected his evidence qua Abdul Razzaq, Hussain Bakhsh and Sonhara (acquitted accused) but accepted his claim that he was present at the relevant time with the deceased Shahnawaz at the shop of Rahim Bakhsh, Barber (C.W.1) for getting his hair cut. We find that the learned trial Court, by way of abundant caution, has done so. This treatment of evidence is, to our view, quite in consonance with the principle of safe dispensation of criminal justice and is, therefore, not open to exception.
22. Next comes the evidence of Court witnesses which should be considered and scrutinized to see as if it was worthy of credence. Rahim Bakhsh, Barber (C.W.1) is the person at whose shop the incident had taken place. His name appears both in the F.I.R. Exh.P.J. and the complaint Exh.P.K. He has no animosity or iliwill against the appellant and also has no interest whatsoever with the deceased or special relationship with the complainant party. He averred in unequivocal terms that on the day of occurrence at 10/11 a.m. he was busy trimming the head of Syed Rahim Bakhsh Shah, complainant and Shahnawaz (deceased) was sitting on a bench lying near him when all of a sudden Muhammad Nawaz (appellant) came there armed with a rifle. He aimed it at the complainant but he caught hold of the barrel and pushed him out of the shop. The appellant fired but per chance the cartridge missed. He had closed the door and bolted it from without, leaving Syed Rahim Bakhsh Shah (complainant) and Shahnawaz (deceased) inside the shop. Muhammad Nawaz (appellant) reloaded his rifle and fired again towards Rahim Bakhsh Shah, (complainant) and the bullet pierced through the plank of the door and hit Shahnawaz (deceased). He further stated that Shahnawaz (deceased) showed him his injury and told him that he was hit by the fire of the appellant as he was standing and holding the door so that the appellant may not enter the shop by opening the door. The appellant then ran away towards the west. This witness has categorically stated that the appellant was all alone at that time and no other accused was in his company. Aman Ullah (C.W.2) is also a shopkeeper who is admittedly a cousin of Sonhara (acquitted accused). He runs a grocery shop situate quite in front of the place of incident. He has largely corroborated the statement of Rahim Bakhsh alias Moro, Barber (C.W.1). He appeared during the investigation before the Deputy Superintendent of Police. He had complained that the Station House Officer did not record his statement. The third Court witness, Aman Ullah, testified that as soon as he came out of the shop after hearing a report of gunfire, he saw the appellant running from the spot with a gun (Bundooq) in his hand. We are, therefore, convinced that these three Court-witnesses are the witnesses of truth. Their presence at the place of occurrence is natural. Site plan Exh.P.C shows that their shops are at a distance of few Karms and in front of the shop of occurrence. They have not exaggerated or implicated any other person, as Syed Rahim Bakhsh Shah (complainant) has done. No serious criticism has been made on their evidence by the defence counsel except that these witnesses have given a different version than the one set up in the F.1.R lodged by Syed Rahim Bakhsh Shah (complainant). As observed earlier, we have believed the complainant to the extent that he was present at the place of occurrence at the relevant time. But as far as other three accused persons are concerned, out of whom Abdul Razzaq is admittedly his staunch opponent, the remaining two were ascribed very minor role therefore, we kept his evidence qua him out of consideration as it lacked corroboration. But mainly the story given out by him is quite consistent qua the appellant which is further corroborated by the testimony of independent witnesses who have been examined as Court-witnesses.
23. The occurrence has taken place in broad-daylight in the Bazaa and therefore, there is no question of mistaken identity of the appellant as being the assailant of the deceased. We think that if the presence of an eye-witness is established at the time of occurrence beyond reasonable doubt then it is not necessary to look for corroboration t believe his evidence. If this condition is imposed 'then in each case the real culprit would go scot free by destroying the corroborative evidence. In this case, the ocular account as given by Court-witnesses an corroborated by Syed Rahim Bakhsh Shah (complainant P.W.9) leave us in no manner of doubt that it is the appellant who had caused the death of Shahnawaz by firing at him with a rifle on the fateful day.
24. Learned counsel for the appellant has further argued that the three-fold motive was stated by the complainant in the F.I.R. but at the trial, he abandoned two of them which concerned him and Abdul Razzaq (acquitted accused) and then he only deposed about the third one i.e, that Abdul Razzaq suspected Shahnawaz (deceased) as having illicit relations with his sister. Learned counsel maintained that the appellant had no grouse or enmity whatsoever with the complainant or the deceased and, therefore, it is highly improbable that he would fire it for taking the life of the deceased, without any aim. The, same argument applies against the appellant with still greater force, i.e, when the complainant or the deceased had no enmity or ill will against the appellant then there is no earthly reason for them to implicate him falsely in the murder case. It is true that the prosecution has not led any evidence to show that the appellant had any motive to kill Shahnawaz or make an attempt at the life of Syed Rahim Bakhsh Shah, bit the absence of motive in every case does not recoil on the prosecution. This is now a settled proposition of law that weakness of a "motive" or its complete absence does not render the prosecution story improper or unbelievable.
25. Learned counsel has next contended that the case against the appellant is doubtful since the rifle produced by the appellant has not been proved to have been used in the commission of the murder of Shahnawaz because the bullet P.1 recovered from the spot did not match with rifle P.2 vide Arms Expert's report Exh.P.N. Usually an Arms Expert carries out the test-comparison on the percussion cap of the empty of a cartridge fired from a particular weapon. Since no empty had been recovered in this case, therefore, the Arms Expert had not been able to carry but the required test and furnish opinion. No doubt that some times the marks on the bullet also help in identification of the weapon from which it is fired, but it is a very rare phenomena. In such tests very high acumen besides extremely well equipped laboratories are required, which, to our knowledge, are not available in this country. So, usually to get rid of such complicated tests and also because of non-availability of testing facilities the ballistic experts return the cases by saying that the weapon/bullet does not possess identifiable data.
26. Rifle P. 2 was allegedly produced by the appellant before S.1. Raja Sikandar Hayat (P.W.11) when he surrendered before him the same day, after the occurrence. At that time rifle P.2 had a missed cartridge stuck up in its chamber. This is a peculiar characteristic of the weapon which allegedly was used at the time of occurrence. All the witnesses have deposed that when the appellant fired for the first time the cartridge missed and then the appellant having reloaded, fired for the second time which hit the deceased. The same characteristic is found in rifle P.2 and it appears that the appellant must have used it once again immediately after the occurrence and the cartridge missed and also got stuck up in the chamber. This provides a strong circumstance to believe that this very weapon was used at the time of the occurrence. As the recovery of the rifle was prompt, therefore, it is not possible that such a costly weapon would be planted and that too in such a short time. Again the recovery witness Ghaus Bakhsh Labrador (P.W.8) is quite an independent witness who had no relationship with the complainant party. He does not seem to have an axe to grind by making a false statement against the appellant. Therefore, the recovery of rifle P.2, to some extent, does advance the case of the prosecution.
27. Learned counsel next contended that the deceased was conscious when he was removed to the hospital and the doctor also examined him in that state but the police had failed to record his statement itself or through a Magistrate, although the doctor had opined that the deceased was fit to make a statement. No doubt, the doctor (P.W.2) had stated that at the time he had examined Shahnawaz at Dajil he was in complete senses. We fail to understand that for the omission or inefficiency of police why the complainant party should be penalized. We have entertained an impression that the statement of Shahnawaz (deceased) was not recorded by the Investigating Officer against whom serious allegation of partiality had been leveled by the complainant. The Sub-Inspector did not investigate the case to the satisfaction of the complainant who was forced to raise hue and cry and ultimately the case was got instigated by the D.S.P., Taunsa. May be that the Sub-Inspector had not recorded the statement of Shahnawaz (deceased) himself nor he managed to get it recorded through a Magistrate with a motive to help the appellant. We find that the Sub Inspector failed to examine Amanullah (C.W.2), a nearby shopkeeper, on the day of occurrence. He was rather examined by the D.S.P. He had also failed to seize plank P.5 of the door of the Barber's shop till 5-7-197$ despite the fact that he gained knowledge on the day of occurrence through the statement of Rahim Bakhsh barber (C.W.1) that the bullet had pierced through the door. In these circumstances, it is no wonder if he avoided to record statement of the deceased.
We agree with the learned Sessions Judge who had taken serious note of the improper conduct of the investigation of this case by the Investigating Officer (P.W.11).
28. For the foregoing reasons, we are convinced that the present appellant has been proved beyond reasonable doubt to be the person who caused death of Shahnawaz by firing a shot from the rifle. Consequently his conviction is upheld and the appeal is dismissed the reference is accepted.
29. As for the sentence, we find that the appellant had gone armed with a rifle in broad-daylight, in the Bazaar, and committed the murder of Shahnawaz, in a daring and dastardly fashion, which shows that the appellant is a "desperado" who has no regard for law and no respect D for human life. He, therefore, deserves no indulgence by this Court in the matter of sentence even. The death sentence awarded to him is, in our view, proper, in the circumstances of the case. Resultantly, the death sentence is confirmed.
Death .