' MAZHARUL HAQ, J.--Asghar Ali (20) and Ghulam Mustafa are accused of the murder of Rafiq. On 8-2-1983 both accused were convicted under section 302/34, P.P.C. Asghar Ali was sentenced to death. Ghulam Mustafa was sentenced to imprisonment for life. Both were also fined Rs, 5,000 in default to undergo six months' R.I. Half of the fine if realized was ordered to be paid as compensation to the heirs of the deceased. Appeals of the convicts and the connected murder reference are before us.
2. About 10/12 years before the occurrence in this case, Rafiq (deceased) was married to Mst.
Sughran sister of Asghar Ali (accused). Mst. Sughran bore no child and was also quarrelsome.
Three years before the occurrence in this case, Rafiq divorced her. A year later, Rafiq married another woman Mst. Nasim. Nur Muhammad, Mst. Sughran's father, Asghar All and relations of Mst.
Sughran bore a grudge against Rafiq. They asked for return of her dowery. The claim not being justified, Rafiq did not accede to it. According to the prosecution on 6-11-1981 at 'Chothi digerwala'
Rafiq was carrying a bundle of cotton on his head and was on his way back home from the fields.
His wife Mst. Nasim and his uncle Abdullah (informant) also followed him; when they reached near the sugar-cane field of Khushi Muhammad, Asghar Ali carrying a .12 bore pistol and Ghulam Mustafa raising lalkara that Rafiq should not be spared, the two emerged out of the sugar-cane field. Asghar Ali went near Rafiq and fired a shot which hit Rafiq in the left flank who fell dead at the spot. Mst. Nasim and Abdullah raised an alarm and tried to apprehend the accused but Asghar Ali went in the cotton field, reloaded the pistol and-threatened them with dire consequences.
Thereafter, the accused fled away. P.W.6 Muhammad Abdullah went to Police Station Gagu situated at a distance of 14 miles away from the place of occurrence. The same day, he made F.I.R.
Exhs. P.1 to P.W.11 Abdul Sattar, S.1. At 10-30 p.m. After registering the case, the S.I. Went to the place of occurrence, collected blood-stained earth through memo. Exh. P.E. Took into possession a bundle of cotton through memo. Exh. P.F., empty cartridge through memo. Exh. P.G. And cycle P.7 through memo. Exh. P.11 attested by P.W.S. Muhammad Rashid, Ikhtiarul Haq (given up) besides the Sub-Inspector. Ater preparing the necessary documents, the S.I. Sent the dead body for its post- mortem examination.
3. P.W.9 Dr. Akhtar Hussain Jafri, Senior Medical Officer, Burewala on 7-11-1981 held the autopsy on the dead body of Rafiq and found the following injury on it:-- "An lacerated wound 3 c.m. x 3 c.m. x going deep with burnt, blackened and abraded area of 7 c.m.
Radius surrounding the wound all around. On the left lateral surface of chest 23 c.m. From the mid- line in front of 25 c.m. From the left anterior, superior iliac spine.
' The injury caused fracture of 10th and 11th ribs. Pellets pierced through the diaphragm perforating the plural cavity in the left side of the chest. The wad was found in pieces in the spleen. The pellets tore the omentum and peritoneum. The stomach was perforated. After passing through the stomach, the pellets had gone into the liver and perforated the gall bladder. Four of the pellets were recovered from the skin and subcutaneous tissues of the abdomen. A number of pellets were recovered from the abdominal cavity and omentum mesentery. Death in his opinion was due to shock and internal haemorrhage caused by the fire-arm injury which was sufficient to cause death in the ordinary course of nature.
4. P.W.11 Rao Abdul Sattar, S.I. Arrested the accused on 10-11-1981. At the time of Asghar Ali's arrest on his personal search a .12 bore pistol and three live cartridges were recovered from the Dub of his loin-cloth. These were made into sealed parcel vide memo. Exh. P.C. Attested by P.W.5 Muhammad Rashid, P.W. Haji Muhammad Shafi (given up) besides the S.I. After completing the investigation, the accused were prosecuted in due course.
5. At the trial both accused denied guilt. Asghar Ali accusd also denied the recovery but could not explain as to why the witnesses had deposed against him. He led no evidence in defence. Ghulam Mustafa produced D.W.1 Umer Hayat Teacher of Primary School, Burewala to prove that he had been a student in the school since 3-6-1973 to 27-10-1977. The witness produced Exh. D.B. School Leaving Certificate and the date of birth entered therein was 1-9-1967.
6. For a number of reasons, trial Court did not rely on the evidence of the recoveries in this case.
The important reasons among those was that the crime weapon and the empty were sent together although they could have been sent separately to avoid any doubt. Further, it found discrepancies in statements of the recovery witnesses about the time and place of arrest of Asghar. We are satisfied with the finding. We need not dilate further on the evidence of the recovery. Relying on the evidence of the two eye-witnesses, trial Court came to the conclusion that the prosecution case was satisfactorily proved against both accused.
7. Criticizing the finding, learned counsel for the appellant contended that it was a blind murder which took place inside the sugar-cane field and the eye-witnesses being closely related to the deceased have stage managed their presence at the spot by putting us a false story that they were on their way home after picking the cotton. Moreover, picking of cotton is not mentioned in the F.I.R. In this regard a reference was made to the statements of P.Ws. Abdullah and Mst. Naseem pointing out a contradiction about the picking of cotton from the field of Abdullah. According to Mst. Naseem, no cotton was picked from Abdullah's land whereas according to Abdullah on the day of occurrence, cotton was picked from the 8 Killas of land which the witness and his. Brother Abdul Aziz owned jointly. Since it has not been brought out in the cross-examinations of both the witnesses that Abdullah owns no other land than the joint holding with his brother Abdul Aziz, therefore, it cannot be called a contradiction in the statements of the two eye-witnesses. Although picking of cotton is not detailed in the F.I.R. Nonetheless it is mentioned therein that coming from the field, the deceased carried a bundle of cotton on his head. As such the argument that picking of cotton is not mentioned in the F.I.R. Carries no weight.
8. In support of the submission that the occurrence took place where it was mark, it was argued that the informant left the village on a cycle for the police station after covering a distance of .7 miles, he reached Burewala where he left the cycle and boarded a bus bound for Gaggu where he reached within 10 minutes and made the F.I.R. At 10-30 p.m. Calculating the time spent by the informant, learned counsel argued that he could not have spent more than two hours in reaching the police station, as such the occurrence appears to have taken place at 8-30 p.m. And not at 'Choti digerwela'. The argument would have carried weight, had the informant been suggested during cross-examination the time of his departure from the place of occurrence. Since the time of departure has not been fixed it cannot, therefore, be argued that the occurrence took place when it was dark. Normally when a person is fatally wounded, keeping in view the caution and anxiety of his relations, it is not expected that immediately after the attack someone would straightaway so for a report of course, a margin of reasonable time under such circumstances has to be considered.
9. It was next argued that according to the prosecution witnesses, the accused had emerged out of the cotton field which was situate towards the .Right side of the deceased and they came towards his left and then fired at him. According to the learned counsel this turning over to the left by the accused was an improbable story. We do not see anything unnatural in the narration. In all probability by turning over to the left, the accused may have tried to obstruct the deceased from running away towards the cotton field which was more open than the sugar-cane field, situated on the right; probably, it was done to give the deceased no chance to escape and for this reason, the dead body was also found a few paces inside the sugar-cane circle. In all probability, the deceased must have tried to save himself by going inside the sugar-cane field. But before he could succeed he was fatally wounded. In this view of the matter, we are not inclined to accept the submission that the occurence in fact took place inside the sugar-cane field which none saw. We see no reason to disbelieve the testimony of the eye-witnesses. There is nothing in the evidence of this case to suggest whether the deceased had other enemies. It was a day time occurrence. Mrs. Abdullah and Mst. Nasim has no previous enmity with Asghar. Relying on their testimony, we are satisfied with the guilt of Asghar. No doubt appellant Asghar Ali's sister had been divorced by the deceased but this happened three years before the occurrence and in the absence of proof that some dowry was due to Mst. Sughran, it cannot be said that the alleged demand of the appellant was justified. There are no mitigating, circumstances in this case. Dismissing the appeal of Asghar Ali, we confirm his death sentence.
10. In so far as Ghulam Mustafa is concerned, he had no weapon with him. He is said to be a resident of different village. Having been seen with Asghar Ali twice or thrice was not enough proof of his close association with Asghar Ali. He had no motive against the deceased. Proverbial Lalkara is attributed to him that too is not mentioned in the charge report under section 173, Cr.P.C. Keeping in view these circumstances, we give Ghulam Mustafa the benefit of doubt and acquit him. He is on bail. He shall be discharged of liis bail bonds.