' RUSTAM S. SIDHWA, J.--Sharif Khan, Liaquat and Allah Ditta were tried by an Additional Sessions Judge of Faisalabad under sections 302/34, P.P.C. for the murder of one Murad, deceased. The learned trial Judge, by his judgment dated 1-3-1982 convicted Sharaf Khan, accused, under section 302, P.P.C. and sentenced him to death, subject to confirmation by this Court, and to pay a fine of Rs, 6,000 or in default of payment of fine to further undergo rigorous imprisonment for two yeaRs, Half of the fine, if recovered, was ordered to be paid to the legal heirs of Murad deceased. Liaquat and Allah Ditta, accused, were however acquitted on the charge. The appeal (Criminal Appeal No, 162 of 1982) preferred by Sharaf Khan, convict, against his conviction and sentence and the reference (M.R. 62 of 1982) submitted by the learned trial Judge for the confirmation of the de'ath sentence imposed on the convict, are both now before us for consideration and will be disposed of by this judgment.
2. The brief facts of the case are that on 23-1-1979 at about noon time, Noor P.W.10 and Muhammad P.W.11, sons of Murad, deceased, and the said deceased himself were sitting at their Dera constructed on their land when Ghulam All son of Lal (won over P.W.) and Noor son of Wall Muhammad (won over P.W.) were working on a Bailna. At that time, Sharaf Khan, accused, armed with a .12 bore shot gun, Liaqat accused, armed with a hatchet and Allah Ditta, accused, armed with a Sota appeared there and Sharaf Khan, accused, raised a Lalkara that he would teach them a lesson for the marriage of Mst. Amiran. Simultaneously, Sharaf Khan, accused, fired two shots with the shot gun at Noor P.W.10, which missed because he laid himself flat on the ground. Murad, deceased, in order to run away, had just got up when Sharaf, accused, fired with the gun, which hit Murad, deceased, on his buttocks. After the receipt of the injuries Murad deceased, fell on the ground. At that time, Liaquat and Allah Ditta, accused, raised Lalkara that he should not leave anybody alive. In the meantime, Pehlwan son of Bahadur (won over P.W.) and others were attracted to the place of occurrence, and on seeing them, the accused left the place of occurrence.
' The motive for the offence was that. Mst. Amiran, daughter of Humayun was fiance of Sharaf,accused.but due to their strained relations it was broken by Humayun and she was married with Noor P.W.10. Sharaf accused was annoyed over this and on account of that, all the three accused in furtherance of their common intention, attacked and caused injuries to Murad, deceased, which resulted in his death.
' After the occurrence Noor P.W.10 went to the Police Station Garh where he lodged his F.I.R. Exh. P.K. at 1-30 p.m. which was recorded by Asghar Ali Gondal S.I. P.W.12. After recording the F.I.R. Exh. P.K. the police officer proceeded to the Civil Hospital, Faisalabad, where Murad was lying injured. He submitted an application Exh. P.H. before Dr. Abdul Hamid Medical Officer P.W.8 to inquire if Murad was fit to make a statement. The said doctor vide his endorsement Exh. P.H/1 declared that Murad, injured, was fit to make a statement. Accordingly, the statement marked "A" of Murad, deceased was recorded under section 161, Cr.P.C. by Asghar Ali Gondal S.I. P.W.
12. There after, the police officer proceeded to the place of occurrence from where he recovered blood-stained earth vide memo. P.L. and three crime empties vide memo. P.M. which were taken into possession in the presence of Noor P.W.10, Asghar Ali Gondal S.I. P.W.12 and Ghulam Ali (won over P.W.).
3. The same day Dr. Abdul Hamid, Medical Officer, P.W.8 examined Murad deceased and found two firearm wounds of entry on his left and right buttocks which were opined to have been inflicted within four houRs,
4. On 25-1-1979 all the three accused were arrested by Asghar Ali Gondal, S.I. P.W.12. Sharaf Khan, accused, produced his licensed gun P.3 and two live cartridges P.4/1-2 which were taken into possession vide memo. P.C. Likewise, Liaqat and Allah Ditta, accused, produced hatchet P.5 and Soti P.6 respectively, which were taken into possession vide memos. P.D. and P.E. The said recoveries were witnessed by Ghulam Muhammad P.W.6, Asghar All Gondal S.I. P.W.12 and Anwar (won over P.W.).
5. On 1-2-1979, Murad, deceased, died and Dr. Imtiaz Ahmad Gill P.W.7 the same day at 3-00 p.m. conducted the post-mortem examination on his dead body. He found the same two firearm injuries which had been observed by the earlier doctor, as also another wound, which was the result of surgery that had in the meantime been carried out. He found the small intestines and uninary bladder punctured. Death was due to peritonitis and shock resulting from injuries to the small intestine and urinary bladder, which injuries were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was about 10 days and between death and post-mortem examination about seven houRs, The gun P.3 recovered from Sharaf Khan, accused, and the three crime empties recovered from the spot were sent to the Forensic Science Laboratory, for examination, where they were found to match. After completing the necessary investigation, the challan against all the three accused was sent up.
6. At the trial, the prosecution produced Noor P.W.10 and Muhammad P.W.11 in proof of the motive and the ocular account, Ghulam Muhammad P.W.6, Noor P.W.10, Asghar Ali S.I. P.W.12 in support of the recoveries, Dr. Imtiaz Ahmad Gill P.W.7, Dr. Abdul Hamid P.W.8 and Dr. Bashir Ahmad Kahloon P.W.9 to corroborate the medical testimony and the report Exh. P.U. of the Director Forensic Science Laboratory to show that the empties recovered from the spot had been fired from the gun recovered at the instance of Sharaf Khan accused.
7. At the trial, all the accused admitted their relationship, but denied all the other allegations that were levelled against them. Sharaf Khan accused admitted that he produced his licensed shot gun with live cartridges, as required by the investigating officer, but he had never used the weapon in the commission of the offence. He asserted the crime empties were planted on him. The other two accused denied the recovery of the weapons of offence at their instance. All the three accused stated that the statement marked "A" of the deceased was fabricated by the police officer during investigation. All of them imputed their false investment to enmity.
8. The learned trial Judge, relying upon the motive, the ocular account, the deceased's dying declaration, the recoveries and the medical evidence, convicted and sentenced Sharaf Khan accused, as stated above, but acquitted the rest.
9. We have heard the arguments of the learned counsel for the appellant and the State and have also perused the record. Learned counsel for the appellant has not challenged the evidence as regard the motive. We must, therefore, assume that the learned counsel is satisfied as regards its existence. He has however, challenged the ocular account and made the following submissions: First, that Noor P.W. 10 and Muhammad P.W.11 are the sons of Murad, deceased, and being related to the deceased are interested witnesses. They are also inimically inclined. Second had these two witnesses been present Noor P.W.10 would have been the first to have been attacked, as he was the person who had married Mst. Amiran, who was earlier engaged to Sharaf Khan, appellant. Third, that Ghulam All and Noora (won over P.W.) who were allegedly working at the Bailna, were independent witnesses and since they were not produced, a presumption should be drawn that had they been so produced, they would have given the evidence against the prosecution. It is true that Noor P.W.10 and Muhammad P.W.11 are the sons of the deceased, but they were present at the spot at the time of occurrence and, are, therefore, natural witnesses. They have no past enmity against Sharaf Khan, appellant, to falsely implicate him in particular on a capital charge of murder.
It is true that Noor P.W.10, against whom Sharaf Khan, appellant, bore a grudge, escaped death, but that was only because of his good luck. In fact, he was fired at twice by Sharaf Khan, appellant, and it was only by falling flat on the ground that he managed to escape. His father Murad, deceased, who also was sitting nearby and had got up and attempted to escape received a part of the spread from the third fire shot on his buttocks. The fortuitous escape of Noor P.W.10, therefore, cannot advance the inference that he and Muhammad P.W.11 were not present. As regards Ghulam Ali and Noor P.Ws who were working at the Bailna, they could not be produced as they had been won over. If the defence were so very sanguine about their testimony, they could have produced them in their defence, which they did not do. In these circumstances, nothing turns on the non- production of these two witnesses,. The ocular account as given by Noor P.W.10 and Muhammad P.W.11 is summarised in para. 2 above and need not be repeated. The F.I.R. was lodged promptly within 3 hours of the occurrence by Noor P.W.10 himself. The occurrence is a broad day light occurrence and no question of mistaken identity arises. Their evidence is straightforward, natural and convincing and has a ring of truth. They bear no enmity against any of the appellants. Their evidence, therefore, alone is sufficient to bring home the guilt to the appellant.
10. The recovery of the three crime empties from the spot, which have been found to match with the licensed gun P.3 recovered at the instance of Sharaf Khan, appellant, is proved by Ghulam Muhammad P.W.6, Noor Muhammad P.W.10 and Asghar All Gondal S.I. P.W.12. Now of the three witnesses has any enmity against the appellant. It is true that both the guns P.3 and the three crime empties `weresent to the Forensic Science Laboratory together on 13-2-1979, which can throw some doubt as to whether the real empties were sent to the Forensic Science Laboratory but in view of the ocular account, which we have found to be sufficient by itself to convict the appellant, the recovery of the gun and the crime empties, which match, is not without significance.
11. The medical testimony furnished by Dr. Imtiaz Ahmad Gill P.W.7 and Dr. Abdul Hamid P.W.8 conclusively show that Murad, deceased, received two pellet injuries on his buttocks, which ultimately ruptured his intestine and urinary bladder, leading to his death. The said injuries corroborate the ocular account to the extent that the deceased was fired at from the back as he was attempting to save his life.
12. The evidence as regard the dying declaration marked "A" of Murad, deceased, recorded under section 161, Cr.P.C., is given by Asghar Ali Gondal S.I. P.W.12. It is submitted on behalf of the appellant that since the said statement is neither signed by the deceased nor authenticated by Dr. Abdul Hamid P.W.8 as having been recorded in his presence, the same is inadmissible and cannot be acted upon. The testimony of Asghar Ali Gonda] S.I. P.W.12 is very clear to the effect that before he recorded the dying declaration marked "A", he first submitted an application Exh. P.H. to Dr. Abdul Hamid P.W.8 to certify whether Murad, deceased, was fit to make a statement and that only after the said doctor certified his ability to do so, vide his endorsement Exh. P.H./1 that he recorded the said statement. Dr. Abdul Hami P.W.8 confirms having verified the ability of the deceased to make the statement, whereupon he scribed the endorsement Exh. P.H./1. Both these witnesses have no enmity against the appellant. The testimony o the police officer that he correctly recorded the dying declaration marked "A" of Murad, deceased, cannot, therefore, be discarded. At the timeB when the statement was recorded, there was no serious apprehension of the deceased's immediate death. In these circumstances, there was no necessity to send for a Magistrate to have the statement recorded as a formal dying declaration. Taking all circumstances into consideration, the statement marked "A" is relevant and admissible under section 32(1) of the Evidence Act and corroborates the fact that the deceased met his death as a result of the gun shot fired by Sharaf Khan, appellant.
13. The upshot of the above discussion is that the motive, the ocular account, the recoveries, the medical testimony and the statement marked "A" of the deceased, conclusively prove the-guilt of the appellant. He appears to have been properly convicted and sentenced. There being no mitigating circumstances in favour of the appellant he is not entitled to lesser penalty.
14. For the foregoing reasons this appeal is dismissed. The death sentence of Sharaf Khan, appellant, is hereby confirmed.
1984 MLD 1430 [Lahore] Be fore Gulbaz Khan and Muhammad Rafiq Tarar, JJ MUHAMMAD MANSHA--Appellant versus THE STATE--Respondent Criminal Appeal No, 1402 of 1980 and Murder Reference No, 46 of 190, decided on 19th March, 1984.
Penal Code (XLV of 1860)-- ---S. 302--Sentence, reduction in--Relations between accused and his wife becoming strained and she went back to her parents' house--Accused visiting his in-laws off and on to bring his wife back and trying to convince deceased, his mother-in-law but on day of occurrence on her flat refusal inflicting her knife blows, resulting in her death--Sentence of death reduced to imprisonment for life, in circumstances.--[Sentence]. [p. 1434] A Arif Iqbal Husain Bhatti for Appellant.
1 Hafiz Ghulam Bari for the State.
Date of hearing: 19th March, 1984.
' GULBAZ KHAN, J.--Muhammad Mansha was convicted under section 302, P.P.C. and sentenced to death and a fine of Rupees five thousand or in default in payment of fine to undergo R.I. for three yeaRs, He was also directed to pay Rupees five thousand as compensation to the legal heirs of the deceased and in default in payment of compen sation to undergo R.I. for six months. The judgment was delivered by the learned Sessions Judge, Gujrat on 1-12-1980. The criminal appeal filed by Muhammad Mansha and the murder reference are being disposed of together.
2. Muhammad Mansha appellant was married to the daughter of Mst. Raj Begum deceased named Mst. Zahida Nasreen (P.W.11) about two years prior to the present occurrence. Mst. Zahida Nasreen lived in the house of her husband in village Kot Bhattian for eight/nine days. She fell out with her husband and returned to the house of her parents in village Barsai Khurd. The appellant made several attempts to take his wife to his house but remained unsuccessful. On 9-6-1979, at Degrawela, he again visited the house of his in-laws. His father-in-law Barkat Ali (P.W.8) was away to village Agowal where he had gone to enquire after the health of his relative Nawab Khan. Mst.
Raj Begum deceased was present in the house with her sons Muhammad Nawaz (P.W.12), Muhammad Fazil (not produced) and daughters Mst. Zahida Nasreen (P.W.11) and Mst. Shahida Parveen (not produced). Rehmat Khan complainant (P.W.10) an uncle of Zahida Nasreen P.W. who had a 'house in the same Haveli, joined the family of Mst. Raj Begum at about 10.00 p.m. The appellant, the deceased and others continued talking till after mid-night. A lantern was lit near their cots. At about 2.00 a.m. the appellant addressed his mother-in-law Mst. Raj Begum in harsh tone enquiring if she was willing to send her daughter with him or not, whereupon the deceased flatly refused. The appellant took out knife from his Dub and inflicted two blows with it to the deceased on her neck. The deceased withered and fell down from the cot. The occurrence was witnessed by Rehmat Khan complainant (P.W.10), Mst. Zahida Nasreen (P.W.11), Muhammad Nawaz (P.W.12), Muhammad Fazil and Shahida Parveen (both not produced). They tried to apprehend the appellant, who threatened them with death. The appellant fled away from the spot. The deceased expired immediately.
3. Rehmat Khan reached Police Station Jalalpur Jattan, on 10-6-1979, at 6-15 a.m. after covering a distance of eight miles and lodged the F.I.R. Exh. P.A. which was recorded by All Asghar S.H.O. After recording the F.I.R. the S.H.O. reached the courtyard of Barkat Ali and prepared injury statement and inquest report and despatched the dead body for post-mortem examination. He took into possession the blood-stained earth from the spot and sealed it into a parcel. He took into possession blood-stained cot, blood-stained Dhoti and blood-stained pillow. He took into possession blood-stained clothes of the deceased which were produced by Muhammad Younis F.C. after post-mortem examination. He arrested Muhammad Mansha appellant from near G.T.S. Bus-Stand, Gujrat, on 10-6-1979 and recovered one currency note of the denomination of Rupee five and four currency notes of the denomination of Rupees one each during personal search of the appellant. He interrogated the appellant on 12-6-1979, who produced blood-stained knife P.1 from underneath a culvert. It was sealed into a parcel vide memo. Exh. P.E. The memo was attested by Muhammad Khan (P.W.7) and Mian Khan (not produced).
4. Dr. Rashid Ahmad, conducted post-mortem examination on the dead body of Mst. Raj Begum, on 10-6-1979, at 5-30 p.m. He found the following injuries on her person:-
(1) An incised wound 2" x 1" x muscle deep on the front side of the neck.
(2) An incised wound 24" x 14" x going deep on front of.neck. The trachia was cut,muscles (sterno- mastoid) were also cut partially. The big vessels on the right side of the neck were cut. The death occurred on account of shock, haemorrhage and asphysxia due to injury No,2. The time between injuries and death was immediate while between death and post-mortem about 12-18 houRs,
5. Rehmat Khan (P.W.10), Mst. Zahida Nasreen (P.W.11) and Muhammad Nawaz (P.W.12), who witnessed the occurrence, stated at the trial that in their presence after mid-night, Muhammad Mansha appellant inflicted two knife blows to Mst. Raj Begum deceased in her courtyard when the latter declined to send her daughter Mst. Zahida Nasreen with the appellant. They further stated that they tried to rescue the deceased but the appellant threatened them with death. The occurrence was also witnessed by Shahida Parveen and Muhammad Fazil (both not produced).
Rehmat Khan stated that the appellant had been coming to the house of the deceased for taking back his wife Mst. Zahida Nasreen but the deceased had not agreed to it. Muhammad Khan (P.W.7) and Ali Asghar S.H.O. supported the recovery of blood-stained knife P.1 at the instance of the appellant. The rest were the formal witnesses.
6. Muhammad Mansha appellant was examined under section 342, Cr.P.C. He admitted that he was married to Mst. Zahida P.W. He denied that she had returned to the house of her parents after having quarrelled with .him. He further denied to have gone to the house of his in-laws several times for bringing back his wife. He also denied to have gone to the house of his in-laws ')n 9-6- 1979, for the aforesaid purpose and when the deceased refused to send Mst. Zahida Nasreen, he inflicted knife blows to the deceased. He stated that he was arrested from his house. He did not admit the recovery of blood-stained knife P.1. He explained that he was involved in this case so as to obtain divorce from him. He was not aware of immorality of his wife. He did not lead any evidence in defence.
7. The learned counsel for the appellant contended that there was no light at the time of occurrence; that Mst. Zahida Nasreen and Muhammad Nawaz P.Ws were present but before they woke up, the assailant or assailants had run away; that Rehmat Khan P.W. was not present at the spot and he was called from his house after the occurrence; that injuries had not been inflicted with knife P.1 and appeared to have been inflicted with Chhury; that the deceased had put up resistance at the time of occurrence; that the appellant was arrested soon after the occurrence but no blood was found on his clothes; that the recovery of the blood-stained knife was falsely planted on the appellant; that even if the prosecution version was accepted, it was a case of provocation.
8. The learned counsel for the State contended that the appellant had come determined to commit the murder and he was carrying a knife with him; that the appellant had come to the house of the deceased at Degarwela and he had been talking to the family of the deceased till midnight; that Rehmat Khan P.W. who lived in the same Haven had joined the family talk and Was present at the time of occurrence; that the eye-witnesses were natural and their presence could not be doubted; that Mst. Zahida Nasreen, the wife of the appellant had made statement against her husband; that blood-stained knife had been recovered at the instance of the appellant; that the appellant was rightly convicted and proper sentence awarded.
9. Rehmat Khan Complainant and Mst. Raj Begum deceased lived in the same Ihata. There was an intervening wall four feet high in between the houses of the complainant and the deceased, There was a passage connecting their houses. Mst. Zahida Nasreen and Muhammad Nawaz P.Ws. were natural witnesses. Their presence at the spot could not be challenged. Rehmat Khan complainant who lived in the same Ihata was also a natural witness. He joined the family of the deceased at about 10-00 p.m. and remained with the family till the occurrence. The complainant mentioned in the F.I.R. and also stated at the trial that a lantern was lit at the time of occurrence. The mere fact that the lantern was not mentioned in the inquest report and was not taken into possession could not affect the testimony of the complainant regarding the presence of the lantern. The case had been registered prior to the preparation of the inquest report. The investigation started after the case was registered. It was clearly mentioned in the F.I.R. that a lantern was lit near the place of occurrence. Since the Investigating Officer reached the spot after sun-rise, he omitted to take into possession the lantern. Even if the presence of lantern was excluded, keeping in view the relationship of the appellant with the witnesses, it was not difficult for the witnesses to identify the appellant. The cots of the witnesses were quite close to the place where the deceased was attacked. In these circumstances, we hold that the eye-witnesses were in a position to identify the appellant. There is no reason for the eye-witnesses to involve the appellant falsely in the case. It was a case of solitary accused. The eye-witnesses could not substitute the appellant in place of the real culprit. The eye--witnesses were empty-handed and it was difficult for them to apprehend the appellant at the spot. They made an effort but were threatened with death. The three eye- witnesses fully corroborated each other. We have not come across any material discrepancy in their statements. They did not contradict their earlier statements made before the police. They gave correct account of the occurrence and there was no infirmity to reject their testimony.
10. The appellant was arrested on G.T.S. Bus-Stand, Gujrat, on 10-6-1979. He was interrogated about the weapon of offence. He produced blood-stained knife P.1 from underneath a culvert. The knife was foulid to be stained with human blood vide reports of Chemical Examiner and Serologist.
Muhammad Khan, a public witness supported the recovery. He was neither related to the deceased nor inimical towards the appellant. The recovery of blood-stained knife at the instance of the appellant stood proved through the evidence furnished by Muhammad Khan and the S.H.O.
11. There was ample evidence on record to come to the conclusion that Mst. Zahida Nasreen had left the house of the appellant after living for eight/nine days of the marriage and did not go back to the house of the appellant. The appellant had been visiting the house of his in-laws for taking back his wife but with little success. The suggestions put to the witnesses about the immorality of Mst. Zahida Nasreen were without any basis. In case the appellant had suspected his wife of immorality, he would not have gone to the house of his in-laws for bringing her back. In his statement also recorded under section 342, Cr.P.C. he showed ignorance about the immorality of his wife. The questions about the loose character of Mst. Zahida Nasreen appeared to have been put by the learned counsel without instructions. The trial Court did not keep in mind the provisions of section 151 of the Evidence Act. Indecent and scandalous questions had been put. The injuries to the deceased could result with knife P.1, recovered at the instance of the appellant. We find little force in the contention that the injuries had been caused with Chhury and could not result with knife in question. After having considered the entire evidence, we agree with the findings of the learned Sessions Judge that Muhammad Mansha appellant was guilty of committing the murder of his mother-in-law Mst. Raj Begum and the occurrence was seen by the three eye-witnesses and the recovery of blood-stained knife P.1 at the instance of the appellant also stood proved. The wife of the appellant had gone back to the house of her parents. The appellant had visited the house of his in-laws several times in order to bring back his wife. He last visited the house on 9-6-1979. He had been trying to convince the deceased to send back Mst. Zahida Nasreen but when the deceased gave flat refusal, he inflicted two knife blows as a result of which the deceased expired.
Keeping these circumstances in view we reduce the sentence of Muhammad Mansha to imprisonment for life and a fine of Rupees fifteen thousand or in default in payment of fine to undergo R.I. for three yeaRs, The order of compensation is also maintained. The entire amount of fine and the amount of compensation shall be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. shall be given to the appellant and the period spent by him as under trial prisoner shall be counted towards his sentence.
' The death sentence of Muhammad Mansha is not confirmed. Death reduced to life imprisonment.