' KAMAL MUSTAFA BOKHARY, J. - Muhammad Ramzan alias Jan Muhammad alias Jani. Aged 23 years, son of Abdul Majid and Muhammad Sharif, aged 28 years, son of Wali Muhammad, were tried for the murder of Kama! Din after criminal trespass into his house. The Additional Sessions Judge, Kasur on 20-1-1980, convicted both under section 452, P.P.C. And sentenced each of them to suffer rigorous imprisonment for four years and to pay a fine of Rs, 2,000 or in default of its payment to further suffer rigorous imprisonment for six months. Muhammad Ramzan was further convicted under section 302/34, P.P.C. And was sentenced to death subject to confirmation by this Court and to pay a fine of Rs, 5,000 or in default thereof to further suffer rigorous imprisonment for two years and convicting Muhammad Sharif under section 302/34/109, P. P. C. The trial Court sentenced him to imprisonment for life and a fine of Rs, 5,000 br in default of its payment to further suffer rigorous imprisonment for two years. Out of the fine, if realized, Rs, 10,000 were ordered to be paid to the heirs of the deceased. Both the convicts have filed appeal and the trial Court has sent Reference for confirmation of sentence of Muhammad Ramzan. This judgment will dispose of both.
2. After mid-night time of 1-10-1977 the appellants trespassed into the house of Karam Din deceased in Gall Chaudhary Chiragh Wali, Purani Mandi, Pattoki Town when, at the pointation of Muhammad Sharif appellant, Muhammad Ramzan appellant from his pistol fired from close range and caused murder of the deceased while he was sleeping under a Dhrek tree in the courtyard of his house. This was witnessed by wife of deceased, Mst. Gulab Bibi P. W. Informant, and . Umar- Din P. W. And Sardar All (given up witness) who reached there immediately after the occurrence and saw the appellants running away from the spot. Earlier at Shamwela of 30-9-1977 the appellants had exchanged abuses and altercated with the deceased for false allegations of theft but were separated and left threatening the deceased of dire consequences.
3. Mst. Gulab Bibi widow of the deceased was going to report the matter when she came across Fazal Hussain A.S.I. Near shop of Goldsmith in Ward No, 6 where her statement (Ex. P. A.) was recorded at 3 a.m. Of 1-10-1977 on which formal F,I.R. Was registered at 3-30 a.m. At Police Station, Pattoki, three furlongs away from the spot. Fazal Hussain A.S.I. P.W. Who was on patrol duty started recording statement of the first informant at 2-30 a.m. And after completing it sent it to the Police Station for registration of the F.I.R. And himself proceeded to the spot where after completing formalities made arrangement for escorting the dead body of Karam Din to the mortuary. He secured blood-stained earth from the spot. He also took into possession blood-stained Khes (P 3) vide memo. Exh. P. G. And blood-stained charpai vide memo. Ex. P.H. He got prepared the site plan.
The case was partly investigated by Muhammad Aslam Beg P. W. Who arrested the appellants on 19-10-1977. On completion of investigation Saeed Shah S.I. Challaned the appellants in Court.
4. The autopsy on the dead body of Karam Din, aged 35 years, was conducted by Dr. Muhammad Ashraf P. W. On 2-10-1977, who recorded the following injuries on the dead body.
(1) Oval wound y x y in front of chest on the sternum to the left of mid line. Margins of the wounds were scortched and blackened and inverted. Bullet had entered the chest cavity after perforating through sternum. Bullet had performed through pericardium, heart, left lung and pleura, sixth rib was fractured onleft side.
(2) Lacerated wound y x y left side of chest 2" behind the anterior auxiliary line. Chest cavity contained dark colour blood. Pericardium also full of blood. Margins of injury No, 2 were everted.
' The stomach of deceased contained 4 ozs. Of liquid food. His bladder had 4 ozs. Urine in it. In the opinion of doctor death had occurred due to shock and haemorrhage as a result of fire-arm injury which was sufficient in the ordinary course of nature to cause death and deceased died immediately after receiving injuries. In cross-examination the doctor deposed that injury No, I had been caused from a distance within 6" at the most and according to the stomach contents the deceased would have taken his last meals within the minimum time immediately before the death and maximum 2 hours before the death.
5. The prosecution case as disclosed in the F.I.R. Registered at the instance of Mst. Ghulam Bibi, widow of the deceased, was that she along-with her deceased husband and children slept in her house as usual. At about mid-night time she was awarkened as her suckling child wept due to illness. Her deceased husband also woke up who advised her to take the child inside as the child was ill. The informant went inside. The informant with the child was lying inside the room leaving the shutters of the door open. Within a short time while she was still awake she heard the noise of opening of main door of her house and saw in the light of moon the appellants entered the house, Muhammad Sharif appellant pointed to Jan Muhammad appellant that the deceased was sleeping under the Dharek tree in the courtyard of the house and asked him to proceed while he (Muhammad Sharif) stayed at the outer door inside the house. Jan Muhammad with his pistol advanced and within sight of Mst. Gulab Bibi informant fired at the deceased. Mst. Gulab Bibi raised alarm and ran out of her room. In the meantime on the alarm raised by fire-arm Sardar Ali and Umar Din. P.W. Were attracted and reached the spot who saw the appellants running away and identified them. They also tried to capture them but failed. The deceased died at the spot. The motive was that on previous evening when the informant was present in her house and her deceased husband was in the street in front of the house the appellants reached there and abused the deceased. Jan Muhammad appellant said that the deceased had falsely accused him of the theft of Bala Khusra while Muhammad Sharif appellant said that the deceased had upset him by making false allegations of theft in Panchayat and the deceased had also humiliated his friend Jan Muhammad appellant for which the deceased will have to suffer the consequences. The deceased also retaliated and abused the appellants but the Mohalladars separated them. While leaving the appellants theatened the deceased with dire consequences. Aggrieved by this the appellant had caused murder of the deceased.
6. At the trial prosecution examined Mst. Gulab Bibi (P. W. 7) and Umar Din (P. W. 8) who gave eye- witness account and the former gave the motive which was also given by Muhammad Din (P. W.
5). Other witnesses were also examined.
7. The appellants pleaded not guilty to the charge. In their statements under section 342, Cr. P. C.
The appellants denied the allegations and the motive. Muhammad Ramzan appellant stated that prosecution witnesses deposed against him on account of their relationship with the complainant that the appellant was the tenant of the deceased in the dilapidated house and had asked the deceased to get it repaired but on his failure to do so the appellant stopped paying rent to the deceased and also sublet it due to which the complainant nourished a grudge against the appellant. Muhammad Ramzan appellant also stated that his name was Muhammad Ramzan and he has never been called Jan Muhammad alias Jani and police had added that name only to bring it in accord with the F.I.R. He also stated that Mst. Gulab Bibi informant was carrying on illicit intimacy with Muhammad Hanif and the deceased was opposed to it and reprimanded her time and again and the murder had been committed by her in connivance with Muhammad Hanif. He produced in defence a copy of registered deed Exh. D.C. And a copy of school leaving certificate Exh. D. D. And a copy of gun licence Exh. D. E. Muhammad Sharif appellant stated that he had been falsely involved in this case because the prosecution witnesses were related with the deceased. He likewise stated that the murder had been committed by Mst. Gulab Bibi informant herself in connivance with Muhammad Hanif because the deceased had reprimanded her for her illicit intimacy with Muhammad Hanif,
8. The trial Court believed the ocular evidence and found that it was supported by medical evidence and corroborated by the motive which had been established in the case. The appellants were convicted and sentenced as aforementioned.
9. We'have been taken through the entire evidence by the learned counsel for the parties. We have ourselves perused and considered the evidence in the light of submissions made by the learned counsel for the parties.
10. It has been argued that Mst. Gulab Bibi informant could not see the occurrence because she was sleeping inside the room and it was a dark night occurrence. It was further urged that Umar Din was not present at the spot at the time of occurrence and did not witness it. It was also argued that ocular evidence in the case was in conflict with the medical evidence as no weapon had been recovered. It was also argued that motive alleged by the prosecution was not proved and that the F.I.R. Was registered after deliberations and preliminary investigation which was dishonest.
11. The time, place and cause of death of Karam Din deceased is not in dispute. The occurrence was witnessed by his widow, Mst. Gulab Bibi P.W., while Umar Din P. W. Saw the appellants running away after committing the murder. According to Mst. Gulab Bibi informant she was lying awake on her charpai inside the room of her house and shutters of the door of the room were open. On hearing noise of the opening of main entrance door of the house and on being so attracted, through the door of the room in which she was lying, she saw the appellants at the main entrance of the house.
It was Muhammad Ramzan appellant who approached the deceased and fire d at him under Dharek tree resulting in death of Karam Din. The objection is that Mst. Gulab Bibi P. W. Could not see the occurrence also because it was a dark night. The charpai of deceased under the Dharek tree was about 16 feet away from the door of the room in which Mst. Gulab Bibi P. W. Was lying awake. It was 17th of lunar month. As at Lahore the moonset time on, 1-10-1977 was 09-24 while the moonrise time on 30-9-1977 was 19-46. The occurrence allegedly took place at mid-night time in Pattoki Town now included in Kasur district. Therefore, there was sufficient moon light at the time of occurrence which enabled Mst. Gulab Bibi to identify Muhammad Ramzan appellant from a distance of about 16 feet when he fired at the deceased lying under the Dharek tree. Muhammad Ramzan appellant was previously known to her. She could witness the occurrence through door of the room in which she was lying awake on a charpai. We are satisfied that she witnessed the occurrence and properly identified Muhammad Ramzan appellant who was named by her in the F.I.R. Which was promptly lodged. She was widow of the deceased but mere relationship is no ground to falsely name Muhammad Ramzan appellant as murderer of her husband. She is a natural witness. Umar Din P. W. Saw the appellants running away immediately after th occurrence.
He is brother of the deceased but is not inimical towards the appellants. He supported the prosecution and corroborated Mst. Gula Bibi. The testimony of the aforementioned two witnesses is confidenc inspiring. It was supported by the medical evidence which disclosed that deceased died of fire-arm injury as alleged. The margins of wounds wer scortched and blackened according to which the assailant had fired at the deceased from close quarter. This is what was mentioned in the very first information report. At the trial Mst. Gulab Bibi deposed in cross-examination that Muhammad Ramzan fired at her husband from a distance of 14- yards but that was only an estimate by an illiterate rustic village woman. Her testimony cannot be said to be in conflict with the medical evidence on that score. The digestion time varies with individuals. The eye-witness truthfully deposed about the occurrence. The ocular evidence in the case is corroborated by the motive alleged against the appellants. Mst. Gulab Bibi and Muhammad Din P.Ws. Gave the motive.
Muhammad Din P.W. Was Mamuzad of the deceased but had no enmity of his own t falsely depose against the appellants. It is a case of witnessed occurrenc and the motive alleged in the case is also of the previous evening. We are satisfied that the trial Court rightly convicted and sentenced Muhammad Ramzan appellant.
12. The case of Muhammad Sharif appellant is distinguishable. H is not related with Muhammad Ramzan appellant. The prosecution has not proved his abetment beyond doubt. He was merely standing and I alleged to have only pointed out towards the deceased from distance. Muhammad Sharif had no motive of his own to cause murder of the deceased. It is not proved that he intended murder of the deceased and had knowledge that Muhammad Ramzan appellant was carrying a pistol for causing the murder of deceased. Muhammad Sharif appellant stood at the main entrance inside the house beyond courtyard the distance of whic was more than 30 feet from the point where Mst. Gulab Bibi P. W. Was lying. Muhammad Sharif appellant did not advance from the entrance door. We do not consider it safe in the administration of criminal justic to maintain his conviction in the circumstances of the present case.
13. For the foregoing reasons the conviction and sentence of Muhammad Ramzan appellant is maintained and his appeal is dismissed. Muhammad Sharif appellant is acquitted of all charges.
He shall be set at liberty forthwith, if not required in any other case.
' Death sentence of Muhammad Ramzan appellant is confirmed. .