' SARDAR MUHAMMAD, J.-- Appellant Abdul Razzaq, aged 45 years, was tried by Additional Sessions Judge, Rawalpinid, for having murdered Sher Zaman at 7 p.m. On 2-11-1978, at the latter's hotel, in Gujar Khan Town, District Rawalpindi. He was convicted by the trial Court under section 302, P.P.C.
And sentenced to death. A fine of Rs,10,000 has also been imposed upon him, in default he has been directed to undergo two years' R.I. Whole of the amount, on realization, has been directed to be paid as compensation to the heirs of the deceased. Judgment is, dated 27-5-1980.
2. The convict has filed appeal and the learned Additional Sessions Judge has sent up murder reference for confirmation of death sentence. Both the matters are being disposed of by ensuing judgment.
3. The motive for the occurrence was that Lahrasab Khan, a brother of the deceased, had deposed against the appellant in a complaint filed by Muhammad Sadiq son of Pehlwan, under section 448, P.P.C. Against him (appellant) and others.
4. The prosecution case is, that the appellant had gone to the hotel of the deceased at 7 p.m. On 2- 11-1978 and had fired two shots on Sher Zaman after raising Lalkara, that he was going to teach him a lesson for his brother Lehrasab having deposed against him (appellant) in the complaint filed by Muhammad Sadiq under section 448, P.P.C. The first shot had hit the deceased on the right wrist while the second shot had struck the deceased at his chest. The occurrence was witnessed by All Shan (P.W.11), Bostan Ali (P.W.12) and Mubarak Khan (given up P.W.).
' F.I.R. (Exh. P.M.) was recorded by Sher Bakhsh, S.I./S.H.O. (P.W.13) on the same night at 7-15 p.m. On the statement of All Shan (P.W.11).
' During spot inspection Sher Bakhsh (P.W.13) had taken into possession empty cartridge (P.2) from the place of occurrence, vide memo. Exh.P.E.
' Appellant was arrested by Niaz Muhammad, S.I. (P.W.14) on 4-11-1978. Gun (P.3) and live cartridges (P.4/1-15), which the appellant was carrying at that time, were taken into possession vide memo.
Exh.P.F.
5. The autopsy on the dead body of the deceased Sher Zaman was conducted by Dr. Shamsuddin (P.W.1). The doctor noted three fire-arm wounds of inlet and two fire-arm wounds of exit on the body of the deceased. Three pellets each about the size of a big pea were found lodged in posterior abdominal wall, at different places, which were removed at the time of autopsy.
' According to the opinion of the doctor the deceased had died due to injuries to liver, stomach, small and large intestines, caused by injury No,1, which has been described as under:- "Five fire-arm wounds of inlet each about 3/8" circular at the epigastrium in an area of 34" x 24", margins were inverted, contused, not blackened or scortched. There were corresponding holes on the worn blood-stained shirt and jersey.
6. At the trial, prosecution in addition to the ocular account, medical evidence and evidence of recovery of empty cartridge from the spot and gun from the appellant, have also tendered in evidence opinion (Exh.P.T.) of the fire-arm expert. According to the report (Exh.P.T.) the empty was found fired from the gun. Reports (Exhs. P.S. And P.R.) of the Serologist and that of the Chemical Examiner were also tendered in evidence.
7. All Shan (P.W.11) stated that he was present at the hotel of Sher Zaman deceased on 2-11-1978. At about 7 p.m. Abdur Razzaq came there armed with a gun. He raised a Lalkara to Sher Zaman deceased, that he would teach him a lesson, for his brother Lehrasab Khan having made a statement against him, in complaint under section 448, P.P.C. Filed by Muhammad Sadiq son of Pehlwan. He fired two shots, one hit on the left arm of the deceased and the second on his chest and then ran away. According to him, the occurrence was witnessed in addition to himself by Bostan Khan (P.W.12) and Mubarak Khan (given up P.W.).
' About the motive, he stated that there was some dispute between Muhammad Sadiq and Abdur Razzaq appellant regarding a house and deceased Sher Zaman had given evidence in favour of Muhammad Sadiq, due to which the appellant had fired at him. In cross-examination he has stated that there are shops in front of hotel of Sher Zaman deceased, so also on both sides and that the occurrence had taken place outside the hotel and not inside. He has denied the suggestion that he was not present at the spot and that he had not seen the occurrence.
8. Bostan Khan (P.W.12), who is brother of the deceased, has corroborated the statement of Ali Shan (P.W.11), about Abdur Razzaq appellant having come to the spot armed with a gun and having fired two shots at the deceased, after raising a Lalkara. He has stated that he was standing in the doors of his house and had reached the spot after hearing Lalkara. The suggestion that he had not witnessed the occurrence and that he had deposed against the accused-appellant on the asking of Ajaib P.W. Has been denied by him.
9. The gist of the medical evidence has already been noted above. Ajaib Khan (P.W.8) has deposed regarding empty cartridge (P.2) having been taken into possession from the spot by Sher Bakhsh, S.I. (P.W.13). Sher Bakhsh P.W. Has corroborated his statement on this account. The suggestion put to this witness that in fact he had murdered Sher Zaman and Muhammad Sadiq deceased of the other case has been denied by him. He, however, has admitted in cross-examination that he is nephew of Ali Shan (P.W.11) and that one Sher Afzal, who was maternal grandson of Sher Zaman deceased had got a case registered against him and his other relatives under section 307, P.P.C.
' This witness has also deposed regarding gun (P.3) having been taken into possession from the appellant at the time of his arrest on 4-11-1978 by Niaz Muhammad, S.I. (P.W.14). This finds corroboration from the statement of S.I. (P.W.14).
10. The appellant during his statement under section 342, Cr.P.C. Stated that all disputes about the property had been resolved in his favour and that he had taken possession of the property through process of Court. He stated that the case registered under section 448, P.P.C. Against him had been cancelled by the police and that he did not know of any complaint having been filed against him or Lehrasab Khan having made a statement, as he had not been summoned in complaint case. He has denied to have murdered the deceased and has also denied the recovery of gun (P.3) from him. His stance at the trial was that the deceased had many other enemies and that he was killed during dark of the night by someone else.
11. Learned counsel for the appellant contended that the prosecution has failed to establish motive in this case. He argued that the appellant had not been summoned in the complaint case and that according to record Lehrasab Khan P.W. Had made statement in that complaint, only a day before the occurrence and so he could not possibly have any knowledge of Lehrasab having deposed against him. The other point raised by him in this regard was that even if this was to be granted, the motive was against Lehrasab and not Sher Zaman deceased.
12. It is appellant's own stance that a case under section 448, P.P.C. Had been registered against him, which later on, according to him, had been cancelled on investigation. The complaint (Exh.
P.J.) had been filed by Muhammad Sadiq in the Court of Assistant Commissioner, Gujar Khan on 13- 9-1978. Statement of the complainant and that of Lehrasab both were recorded on 1-10-1978. We cannot visualise that the appellant would have been unaware of the complaint having been filed against him. Apart from the fact that the complaint was filed in the Court of Assistant Commissioner, Gujar Khan, where the appellant and the complainant both lived, the other important factor is that the complaint had been filed in September, 1978 and the appellant must have come to know that after the cancellation of the case by the police, the complainant of that case had initiated proceedings against him by lodging a complaint. He would naturally have been pursuing the matter so as to remain in touch about the progress of the case and thus it is difficult to draw presumption that he had no knowledge that Lehrasab Khan P.W. Had deposed against him in the Court of A.C., Gujar Khan.
13. The contention that the motive in that case would have been against Lehrasab Khan alone does not seem to be so significant and substantial so as to exclude the possibility of the appellant feeling aggrieved against the family of Lehrasab Khan. Sher Zaman was real brother of Lehrasab Khan and the appellant must have felt equally infuriated against him for these reasons. We, therefore, do not agree with the learned counsel for the appellant that the prosecution has not been able to prove motive against the appellant.
14. We do not feel carried by the contention of the learned counsel for the appellant that in spite of the fact that the occurrence had taken place in the Bazar, no person from the vicinity has been produced and that the non-production of the witnesses from the vicinity casts doubts on the veracity of prosecution evidence. It is in evidence that shops at the time of occurrence had been closed. In fact, it has been stated at the trial that at the time of occurrence, the deceased was winding up to close the hotel. It was already 7 p.m. And thus was time to close the business for the day. The defence has not been able to elicit from the prosecution that any other shop was open, at the time of occurrence or that anybody was passing by or that any customer was present in the hotel of the deceased.
Apart from what has been observed above, Bostan Khan (P.W.12) was a resident of vicinity. The mere fact that he is brother of the deceased is no ground to hold that he must have made a false statement.
' The contention of the learned counsel for the appellant that Bostan Khan P.W. Did not reside near the place of occurrence, does not find corroboration from any piece of evidence. According to him, he had reached the spot after hearing Lalkara whilst standing in the door of his house, which obviously means that his house was nearby.
' The contention of the learned counsel that the house of Bostan has not been shown in the site plan and so it cannot be granted that he was residing near the place of occurrence is not well- founded. The fact that it was suggested to this witness that during the days of occurrence he was not living in his house near the place of occurrence is obviously indicative of the fact that the witness had his house near the place of occurrence. No suggestion has been put to the witness that he had any other house in the town or that he was residing at so and so place. The mere fact of the house of the P.W. Having not been shown in the site plan cannot be considered enough to hold that the witness had no house nearby. Even otherwise, the site plan shows that there was a shop under construction belonging to Bostan Khan P.W. And may be that his house was at the back of the shop or in the street shown beside the eastern side of the hotel of the deceased.
15. The contention raised by the learned counsel for the appellant that both the eye-witnesses being relatives of the deceased cannot be considered to be reliable witnesses, has not impressed us. Mere fact of relationship is no ground to discard the evidence of a witness. Ali Shan P.W. Was not in any manner inimical to the appellant. No such thing has been suggested to him. The question put to him that he alongwith his wife had poisoned some persons as a result of which a case under section 302, P.P.C. had been registered against him and that one Sher Afzal had got a case registered under section 307, P.P.C. Against him, Ajaib P.W. And his son, does not advance the case of the defence in any manner because those cases had nothing to do, either with the appellant or the deceased in any significant manner. The only suggestion put to him that he was not present at place of occurrence and had deposed falsely at the instance of Ajaib P.W. Has been denied by him.
' We have gone through Bachal v. State PLD 1978 Kar. 710, cited by the learned counsel for the appellant and find that facts and circumstances of that case were different from the present case.
In that case the occurrence had taken place in a hotel and apart from the fact that no witness from the locality had been produced, the owner of the hotel was also not examined as an eye- witness nor produced at the trial. In the case in hand the unfortunate owner of the hotel, had himself been murdered and one of the persons present in the hotel had appeared as a P.W. The other fact which weighed in that case was about lack of medical evidence, as doctor had not been examined at the trial.
' In the circumstances enumerated above, we do not feel inclined to agree with the learned counsel for the appellant that the evidence of the two eye-witnesses be discarded.
16. It was next contended that the occurrence had taken place at dark hours of the night as the sunset time on the day of occurrence was 5-16 p.m. And so the possibility of the appellant having been involved, for suspicion only, without having been properly identified, cannot be ruled out, particularly, in view of the fact that the prosecution has not led any evidence that there was light at the time of occurrence.
The argument does not seem to be weighty, first, for the reason that the appellant and P.Ws. Were known to each other since long and were residents of the same locality. Secondly, no presumption can be drawn that there was no light in the hotel merely for the reason that no eye-witness has positively stated that there was light. Had the occurrence taken place at some place other than the hotel, the argument could have weight, that since the prosecution has not specifically proved regarding existence of light, presumption may be drawn that there was no light.
Apart from this, there was no question of involving the appellant merely for suspicion, because so far as the complainant party was concerned, they were not inimical to the appellant for any reason. The only thing which happened between the parties was the statement made by Lehrasab Khan P.W. In the complaint filed by Muhammad Sadiq against the appellant. The complainants could not have thought that for that reason alone, the appellant would murder one of them and as such if they had not actually identified the appellant as murderer at the spot, the appellant might have been the last person to be suspected.
17. Last of the arguments that the witnesses being related to the deceased their statements required independent corroboration and that the same cannot be looked for from the evidence of the Fire-arm Expert as the crime empty and the gun had been sent together, has also been considered by us.
18. Before expressing our opinion about the recovery of the empty, recovery of the gun and the report of the Fire-arm Expert, we would like to observe that we do not think that the evidence of the two eye-witnesses, if not corroborated by any other evidence, cannot be relied upon for maintaining the conviction in this case. As observed above, we have not been impressed by the argument of the learned counsel for the appellant that the witnesses being relatives of the deceased, their evidence should be discarded. Moreover, their statements find corroboration from the evidence of motive also. It is on record that Lehrasab Khan, brother of the deceased, had deposed against the appellant in the complaint of Muhammad Sadiq and we have not accepted the contention of the learned counsel for the appellant that the appellant could not have known by the time of occurrence that Lehrasab Khan P.W. Had made any such statement.
' So far the contention, that no reliance can be placed on the evidence of the Fire-arm Expert for the reason that the crime empty and the gun had remained in the Malkhana of the police station together, reference may be made to Mubarak v. State 1982 SCM R 531, wherein it has been held that mere delay in sending crime empty and weapon for comparison to Ballistic Expert, cannot by itself imply that the recovery was doubtful. In the quoted, case the crime empty and the gun were sent to the Ballistic Expert after about three months. It was observed that the inference of the recovery being doubtful, should not be drawn without examining the attending circumstances, such as, whether any doubt existed about the recovery of crime empty from the spot; whether any suspicion' arose that it has been substituted, etc. In the present case, we do not find anything to doubt the evidence of recovery of crime empty from the spot and of the gun having been taken into possession from the appellant at the time of his arrest.
' Sealed parcel containing crime empty was deposited in the Malkhana on 3-11-1978 by Sher Bakhsh, S.I. (P.W.13) and the sealed parcel of the gun recovered from the appellant was deposited in the Malkhana on 4-11-1978 by Niaz Muhammad, S.I. (P.W.14). The sealed parcel of the crime empty was delivered in the office of the Forensic Science Laboratory by a different constable than the one who had delivered the parcel of the gun in the office of the Forensic Science Laboratory.
The reason for sending these two sealed parcels through different constables has been deposed by Ghulam Haider, Moharrir A.S.I. (P.W.7). He had stated that as the docket for delivering empty, had already been prepared for 6-11-1978 by the S.P. Office, he could not send the parcel of the gun on that day as docket for gun had yet to be prepared.
' The view expressed in Muhammad Shafi etc. v. State PLD 1968 Lah. 869, relied upon by the learned counsel for the appellant, is in particular context of the fact, that crime empty had been taken into possession on 4th of July, 1965, the same was not sent to the office of the Forensic Science Laboratory till after 13-7-1965, when gun had been recovered from one of the accused, in spite of instructions that crime empty should invariably be sent to the expert immediately after the recovery so that the chances of concoction of empty alleged to have been used in the commission of crime are minimised to the extreme. It has further been observed therein that "he fired only once and there was no occasion for him to load the gun again or throw .Away the empty cartridge. In fact there was no necessity for it. The possibility of concocting the crime empty, therefore, cannot be ruled out to a moral certainty. We, therefore, attach no value to the recovery of crime empty as it was sent to the expert after the recovery of the weapon of offence."
' Now in this case the allegation is that the appellant had fired twice from single barrel gun. There was an obvious necessity for ejecting the first empty cartridge. The other significant factor in this case is that the sealed parcel of the crime empty had been deposited on 3-11-1978, i.e,, the day on which it was recovered from the spot. According to the rules and instructions no parcel can be sent to the office of the Forensic Science Laboratory, nor they are supposed to receive the same, without a covering letter in the form of a docket from the S.P. Of the district. So even if the S.I. Or concerned police officers had tried their best to send the crime empty before 4-11-1978, i.e,, the day on which the gun was recovered from the appellant and deposited in the Malkhana, they could not have done so. It was, in the circumstances, which were beyond reasonable control of the concerned police officers, that the two parcels remained together in the Malkhana of the police station for some time.
It is in the light of these facts that any possibility of the crime empty having been substituted has to be examined. There is no allegation in this case that the police was acting in any biased manner against the appellant. The other important fact is that the crime empty was taken into possession from the spot by Sher Bakhsh P.W. And was deposited by him in the Malkhana while the gun was recovered by Niaz Muhammad, S.I. P.W. From the appellant and by that time Sher Bakhsh, S.I. Had been transferred and investigation had been taken over by Niaz Muhammad, S.I. Who had effected the arrest of the appellant and recovered the gun from him.
' The fact of the two items having been recovered by two different police officers is of course no guarantee that there can be no substitution, but in the circumstances of this case, we do not feel inclined to agree with the learned counsel for the appellant that substitution might have been effected because the first Sub-Inspector had been transferred and he would have naturally lost all interests and the second Sub-Inspector could not have managed to have desealed the crime empty parcel, for substitution, by preparing a fresh sealed parcel with seals of the first Sub- Inspector, who had prepared the sealed parcel of the crime empty on 3-11-1978.
In the circumstances enumerated above, the possibility of substitution of the crime empty was non-existent to all reasonable extent L and so there is no ground to throw away the evidence of the Fire-arm Expert.
18. As a result of the above discussion, no doubt is left in our mind that the prosecution has been able to establish the case beyond any reasonable shadow of doubt. There is no merit in this appeal and the same is dismissed.
' The sentence of death is confirmed.