' IJAZ NISAR, J.-- Amir Ahmad son of Abdul Malik (40) and Abdul Rashid son of Kamal Khan (24) were tried for the murder of Abdul Rahim deceased (25). The learned Sessions Judge, Jhelum, vide his order, dated 4-2-1984 convicted them under section 302/34, P.P.C. And sentenced them to death and a fine of Rs,6,000 each or in default to undergo six months' R.I. Each. Half of the fine was ordered to be paid to the legal heirs of the deceased.
' We have before us, the murder reference and the appeal filed by Amir Ahmad and Abdul Rashid appellants. Both the matters shall be disposed of by this order.
2. Both the appellants are related to each other. A cousin of Abdul Rashid appellant is married to Amir Ahmad appellant. Abdul Rashid appellant wanted the hand of Mst. Kalsoom, a cousin of the deceased, who after the death of her father was under the care of Muhammad Zaman complainant, father of the deceased. The deceased and his father were not willing to give her in marriage to Abdul Rashid appellant and instead married her to one Khalid. This caused annoyance to them and hence the occurrence.
' Abdul Rahim deceased was living in the house of his aunt Mst. Mehr Bhari in village Mohra Biddar.
Muhammad Zaman, father of the deceased was running fever he sent his son Abdul Karim P.W.8 to call the deceased from the house of his aunt as his help was needed in sowing wheat crop. On 30- 10-1982 at Kachi Rotiwela i.e, 9-10 a.m. Abdul Rahim deceased, his brother Abdul Karim P.W.8, Muhammad Nawaz P.W.10 and Abdul Hamid (given-up) were proceeding towards their village from village Mohra Biddar. The deceased was ahead of his companions by 15/16 Karams when he reached the field of Noor Hussain situated near the village both the appellants emerged from behind the Haveli of Amir Ahmad appellant. Amir Ahmad appellant was armed with a gun while Abdul Rashid appellant carried a pistol (carbine). The latter raised a Lalkara whereafter both of them fired at the deceased as a result of which he fell injured and died instantaneously. The occurrence was also witnessed by Muhammad Zaman and Mst. Rahim Noor who were on their way to the fields. Leaving the dead body at the spot Muhammad Zaman P.W.7 proceeded to the police station but on way met A.S.I. Awais Muhammad P.W.11 at bus-stand village Biddar and reported the matter to him vide statement Exh.P.H. The said statement was sent to the police station Sohawa where the formal F.I.R. Exh.P.B. Was drawn on its basis. The A.S.I. Then proceeded to the spot, prepared the injury statement Exh.P.K. And inquest report Exh.P.L. Of the deceased. He took into possession blood-stained earth from spot, He also took into possession three empties P.5/1-3 from there and sealed them into a parcel through memo. Exh.P.E. Bahadar Shah, Inspector P.W.12 arrested the appellants on 8-11-1982. Amir Ahmad appellant while in custody got recovered gun P.6 and its licence P.7 through memo. Exh.P.F. The gun was sealed into a parcel. On the same day Abdul Rashid appellant got recovered carbine P.8 through memo. Exh.P.G. It was also made into a sealed parcel. Sakhi Muhammad P.W.6 and Muhammad Shabbir (not produced) attested the memos.
' The gun and carbine were sent to the Forensic Science Laboratory and according to the report Exh.P.O. Of the examiners of fire-arms, the crime empties had been fired from the gun and the carbine. One crime empty was found to have been fired from the gun while two empties were found to have been fired from the carbine.
3. Dr. Khalid Parvez Bhatti P.W.9 conducted the post-mortem examination on the dead body of Abdul Rahim deceased on 30-10-1982 at 4-30 p.m. And found the following injuries thereon:-
(1) A gun-shot wound on front of chest 1/4" of size, near xiphisternum, on its left side.
(2) A gun-shot wound over pubic region 1" in size.
(3) A gun-shot wound over left elbow with wound of exit over back aspect of left upper arm.
' Left side of stomach and pleura were damaged. Left lung left mid lobe were damaged. The shot had pierced through both the ventricular chambers and had teared the walls of ventricular muscles. In the opinion of doctor, the gun-shot wound which pierced through the chest wall and penetrated through heart chambers and lungs was sufficient to cause death. All the injuries were ante-mortem. The probable time between injuries and death was immediate and that between death and post-mortem examination within 6 hours. Exh.P.J. Is the post-mortem report while Exh.P.J./1 is diagram of the injuries.
4. The appellants pleaded not guilty to the charge and denied the prosecution allegations. They admitted their relationship inter se. They admitted that Mst. Kalsoom Begum was the niece of Muhammad Zaman complainant but denied if she was under his care. Abdul Rashid denied that he wanted the hand of Mst. Kalsoom which was refused by the deceased. They also denied the recoveries. Abdul Rashid denied the recovery of carbine at his instance. Amir Ahmad appellant, however, admitted that gun P.6 and licence P.7 belonged to him. He tendered a statement in writing Exh.D.C. Likewise Abdul Rashid appellant submitted his written statement Exh.D.D. No oral evidence was, however, called by them in defence.
5. The prosecution examined 12 P.Ws. In support of its case. Sakhi Muhammad P.W.6 deposed about the picking up of empties P.5/1-3 from the spot. He also proved the recoveries of gun and carbine at the instance of the appellant. He attested the relevant memos. Muhammad Zaman P.W.7 is a complainant in the case. He and his son Abdul Karim P.W.8 and Muhammad Nawaz P.W.10 furnished the ocular account. Awais Muhammad A.S.I. P.W.11 recorded the statement of Muhammad Zaman and carried out the initial investigation. Bahadar Shah, Inspector, P.W.12 arrested the appellants and effected the recoveries of guns at their instance.
6. Relying on the motive, ocular evidence and the recoveries, the trial Court convicted and sentenced the appellant as stated above.
7. Learned counsel for the appellants contends that the learned trial Court has misread and misappropriated the evidence and the judgment is not supported by the evidence on record. It is further stated that three eye-witnesses are closely related to one another and should not have been relied upon without any independent corroboration. The evidence of Sakhi Muhammad P.W.6, the recovery witness is also assailed on the ground of his relationship with the complainant party.
8. There is no denying the fact that the eye-witnesses are closely related to one another.
Muhammad Zaman P.W.7 is father of the deceased, Abdul Karim P.W.8 is his brother and Muhammad Nawaz P.W.10 is a cousin of the deceased. But it is a settled proposition of law that mere relationship of a witness with the victim is not sufficient to discard his testimony. They had no motive to falsely implicate the appellants. There was no serious background of enmity between the appellants and the A complainant party which could induce the latter to falsely implicate them in a case of the present nature. They stand corroborated by the medical evidence. The admission of the doctor that there was possibility of all the injuries having been caused by one shot has no adverse bearing on the prosecution case. The location of the injuries indicates that they were the result of more than one shot. Injury No,1 was on the chest, injury No,2 on the pubic region and injury No,3 on the left elbow with exit wound on the back of left upper arm. The matching of the empties with gun and the carbine recovered at the instance of the appellants goes a long way to show that more than one shot had been fired during the occurrence. Sakhi Muhammad P.W.6 and Awais Muhammad A .S.I. , P.W.11 have given a consistent account of the mode and manner of the recoveries of gun and carbine from the appellants. There is Nothing to doubt their testimony. The omission from the F.I.R. And the inquest report of the crime empties is not very material. The eye- witnesses must have been confused and lost over the un-expected incident resulting into the death of their close relative and thus in that state of mind might not have cared to note the empties lying at the spot. Even otherwise, it would be too much to expect from illiterate persons to take notice of such things before reporting the matter to the police. When they had seen with their own eyes the appellants murdering the deceased with fire-arms they might not have considered it essential to find out as to whether any crime empty was lying at the spot or not before proceeding to the police station. Likewise, the omission of this fact from the inquest report is also not fatal.
Awais Muhammad A.S.I., P.W.11 has given a cogent reason in this respect stating that he could not mention seizing of empties from the spot in Exh.P.L. As he had secured them after its preparation and despatch of the dead body for the post-mortem examination. It stands proved from the record that the crime empties had been sent to the Forensic Science Laboratory even before the recovery of gun and carbine. The motive set up by the prosecution was that Abdul Rashid appellant wanted the hand of Mst. Kalsoom but at the trial Muhammad Zaman P.W.7 stated that Abdul Rashid appellant had not come to him for the said prupose. According to him Kamal Khan and Amir Ahmad had come to him on behalf of Abdul Rashid appellant but it is not so mentioned in the F.I.R. Exh.P.H. According to Muhammad Zaman P.W. Kamal Khan and Amir Ahmad did not pick up any quarrel with them on their refusal to give the hand of Mst. Kalsoom to Abdul Rashid appellant and on the third or fourth day thereafter the Nikah of Kalsoom was performed with Khalid. Muhammad Zaman P.W. Admitted that he was not present at the Nikah ceremony of the girl and, therefore, could not give the details of the Nikah. According to him the appellant did not try to pick up any quarrel with them and after the said marriage they also did not try to quarrel with Khalid even. No independent evidence has been led to show that Mst. Kalsoom had been living under the care of Muhammad Zaman complainant, father of the deceased, nor does it stand established that Abdul Rashid appellant had demanded her hand in marriage which was refused to him by the complainant and his son Abdul Rahim deceased. The fact that Muhammad Zaman did not join the Nikah ceremony of Mst. Kalsoom throws a cloud of disbelief on his statement that she had been brought up under his care after the death of her father. Had it been so, he would not have missed her marriage ceremony and must have participated in it. The fact that even after her marriage with Khalid no incident took place between the complainant and the appellants further falsifies the motive. No harm was done to Khalid even who married Kalsoom against their wishes.
All these circumstances make the prosecution story doubtful.
' So far as the motive is concerned. It appears that the prosecution has suppressed the real cause leading to the murder of Abdul Rahim deceased but at the same time the version given by the appellants is also not acceptable. Abdul Rashid appellant, in his statement Exh.D.D. Stated that the deceased was fired at by his own companion because they suspected him to be on illicit intimacy with Mst. Hanifan Bibi. The motive is thus not clear and is shrouded in mystery.
9Having considered all the pros and cons of the case, we think that whereas the prosecution has failed to prove the motive it has fully succeeded in proving the occurrence having been committed by the appelants. In this view of the matter we are of the opinion that extreme penalty was not called for. We, therefore, while maintaining the conviction of the appellants alter their sentence from death to imprisonment for life. The sentence of fine is, however, maintained. The order regarding the payment of compensation to the heirs of the deceased is also maintained.
10The death sentence of Amir Ahmad and Abdul Rashid is Not confirmed.