' Rehmat (29) son of Meraj Din, caste Arain, r/o Saghian Khuda Yar, Khadim Hussain (22), son of Said Muhammad, caste Arain, r/o Kukripur, Nazir Ahmad (30) son of Bagh All caste Muslim Sheikh, r/o Jalalpur and Ashraf (24) son of Muhammad Sharif, caste Muslim Sheikh, r/o Samolana, were tried under sections 302 and 307 read with section 34 P.P.C., by the learned Additional Sessions Judge, Lahore, who, by his judgment, dated 15th September 1981, acquitted Khadim Hussain, Nazir Ahmad and Ashraf of the charges but convicted Rehmat accused under sections 302 and 323 P.P.C. Under section 302, P.P.C. He was sentenced to imprisonment for life and a fine of Rs,2,000 or in default in the payment thereof to undergo further R.I. For two months. The fine, if recovered, was ordered to be paid to the complainant as compensation. As the appellant remained in Jail as under trial since his arrest on 28-9-1980, no further sentence was passed under section 323, P.P.C.
The convict has appealed.
2. The occurrence took place on 24-9-1980, at 11 p.m., in the house of Fazal Karim complainant, situate in Nai Abadi, Qazi Park, Shandara Town. The F.I.R. Version is that about one year and nine months prior to the occurrence, Fazal Karim complainant performed the Nikah of his daughter Mst.
Asmat deceased with Rehmat appellant. She was, however, not sent to live with the appellant as he was not having good character. Five months prior to the occurrence. Mst. Asmat deceased filed a suit for dissolution of marriage against the appellant which was pending at the time of occurrence.
The appellant approached the complainant several times but he refused to send Mst. Asmat with him. On 24-9-1980 at 11 p.m. The complainant and the other members of his family were sleeping in his house when the appellant along with three other persons came there. The appellant was holding a pistol in his hand. He asked the complainant to send Mst. Asmat with him or to face death but the complainant refused to do so, upon which he gave him beating with the butt of the pistol. On the alarm of the complainant, his wife Mst. Hanifan, his son Muhammad Nawaz P.W. And his daughter Mst. Asmat deceased, rushed towards him. The appellant fired a pistol shot hitting Mst. Asmat deceased on her left shoulder. The companions of the appellant of whom one was having a pistol also gave beating to the complainant. Besides the inmates of the house, the occurrence was also witnessed by Jamil P.W. (not produced) who was staying as a guest.
' Mst. Asmat was taken to Mayo Hospital, Lahore, where she was medically examined. Fazal Karim complainant reported the occurrence to Ashiq Hussain, A.S.I. In the hospital at 1-45 a.m. On 25-9- 1980 vide Exh. P.A. On the basis of which formal F.I.R. Exh. P.A/1 was recorded at Police Station, Shandara at 2-15 a.m.
3. The case was partly investigated by Ashiq Hussain, A.S.I. Who secured some blood-stained earth from the spot and made it into a sealed parcel vide memo. Exh. P.B. On 26-9-1980 Muhammad Masud Khan, S.H.O. Police Station, Shandara, took over the investigation. He arrested the accused on 28-9-1980. Khadim Hussain, Nazir Ahmad and Ashraf accused were sent to the judicial lock-up where an identification parade was held on 1-10-1980. Fazal Karim complainant could identify only Ashraf accused while Mst. Hanifan, Muhammad Jamil (not produced) and Nawaz P.W. Correctly identified all the aforementioned three accused. On the same day Rehmat appellant, while in custody, led to the recovery of carbine from near the brick-kiln of one Muhammad Riaz Khan, vide memo. Exh.P.C. On 5-10-1980, acquitted accused Khadim Hussain led to the recovery of revolver (Exh.P.2) from near the Tomb of Asif Jah, vide memo. Exh.P.E. After the investigation the accused persons were challenged.
4. On 29th September, 1980 at 11-50 p.m. Dr. Muhammad Aslam Casualty M.O., Mayo Hospital, Lahore, examined Mst. Asmat deceased, when alive, and found a lacerated penetrating invagination wound 3 c.m. x 2.8 c.m. With inverted margin on outer aspect of upper part of left upper arm just below the shoulder. The wound was surrounded by multiple pellet wounds over an area of 15 c.m. x 13 c.m. On upper arm, shoulder, anterior axillary wall and left upper part of the chest. There was slight tattooing of the margins of the wounds which were profusely bleeding. The injury had been caused by a firearm was kept under observation.
' On the same night the same doctor examined Fazal Karim complainant and found eight injuries on his person, simple in nature caused by blunt weapon.
' On 25th September, 1980, at 4-45 a.m. Mst. Asmat succumbed to her injury in the hospital. On the same day at 2 p.m. Dr. Sabir Ali, conducted the post-mortem examination on her dead body and found a firearm wound of entry in an area 15 c.m. x 11 c.m. Front top left shoulder extending to the anterior axillary fold. There was a lacerated central wound 3 c.m. x 24 c.m. Surrounded by numerous wounds. After fracturing the left shoulder joint, the pellets damaged the axillary branches and punctured the upper lobe of the left lung at seven places through and through. The pellets and wads were recovered from the wound.
' In the opinion of the doctor, death was due to shock and hemorrhage resulting from the aforementioned injury which was sufficient to cause death in the ordinary course of nature.
5. In support of its case the prosecution examined two eye-witnesses, namely, Fazal Karim complainant and Muhammad Nawaz P.W. The prosecution also relied on the evidence relating to recoveries of weapons at the instance of Rehmat appellant and Khadim Hussain accused.
6. The appellant pleaded not guilty to the charge. He admitted that one year and nine months prior to the occurrence he was married to Mst. Asmat and that she had filed a suit for dissolution of marriage against him which was pending at the time of occurrence. The defence version as suggested to the complainant and narrated by the appellant in his statement Exh.D.E produced in Court during his examination under section 342, Cr.P.C. Is that Mst. Hanifan, mother of the deceased, had developed illicit relations with him. The Mohalladar objected to his visits to her, upon which she performed his Nikah with her daughter Mst. Asmat whereafter he told Mst. Hanifan that he would no more lead an immoral life and that his wife should be sent with him. Mst. Hanifan retorted that she would see how he lives with Mst. Asmat and started arranging meetings between Mst. Asmat and Jamil P.W. (not produced). She also got a suit for dissolution of marriage instituted against him. He asked Fazal Karim complainant to send the deceased with him who told him to come again with his relatives upon which he visited his house at 8-9 O'clock along with his relatives. Leaving the relative outside, he himself went inside the house and found Mst. Asmat chatting with Jamil while sitting on the same cot. In the meantime the complainant also came there. He remonstrated with him and injured him with a Danda which was lying nearby. He told the deceased that she was doing the something with a stranger which her mother used to do. She replied that she would indulge in immorality with Jamil, upon which he advanced towards her and her mother with a Danda in his hand but Fazal Karim complainant, Jamil, Mst. Hanifan and Mst.
Asmat deceased surrounded him and in the meantime he heard a fire report. Later, he came to know that Jamil had fired at him but it missed him and Mst. Asmat was hit. The appellant professed innocence and further stated that the carbine used by Jamil was planted on him. No evidence was led in defence.
7. The learned trial Judge accepted the prosecution evidence against the appellant and convicted and sentenced him as mentioned above. He, however, acquitted the other three accused by giving them the benefit of doubt.
8. The learned counsel for the appellant contended that the prosecution has not been able to substantiate the motive, the statement of the medical witness is at variance with the pictorial diagram, the recovery of carbine from the appellant is fake and the eye-witnesses are interested and unreliable, therefore, conviction and sentence of the appellant is unsustainable. The learned State counsel, on the other hand, contended that the appellant had a very strong motive to do away with the deceased and the prosecution version is supported by the most natural witnesses.
9. In the F.I.R. The complainant had stated that one year and nine months prior to the occurrence he performed the Nikah of his daughter with the appellant but she was not sent to live with him despite repeated demands as he was not a person of good character. At the trial Nawaz P.W.4 stated that at the time of occurrence the appellant was asking his father to send his daughter with him or to face death. Relying on the above statements it was submitted that the grievance, if any, was against the complainant who was not sending Mst. Asmat with the appellant and the prosecution has not been able to show that the appellant had any motive to kill the deceased. The contention is wholly misplaced. There is no dispute that after the Nikah, Mst. Asmat was not sent with the appellant. It is also admitted that she had filed a suit for dissolution of marriage against the appellant and the same was pending at the time of occurrence. It is not the case of the defence that Mst. Asmat wanted to live with the appellant but his parents were not ,permitting her to do so. The very fact that she had filed a suit for dissolution of marriage against the appellant leaves no room for doubt that she was unwilling to live with him. The appellant, therefore, had a very strong motive against her.
10. The only argument addressed by the learned counsel for the appellant touching the medical evidence is that the pictorial diagram shows an exit wound but the doctor did not state that there was any exit wound. This contention is also misconceived. The pictorial diagram shows only one injury covering the front as well as the back side of the left shoulder. There is nothing on the record to show that the injury on the back shoulder, as shown in the diagram, was an exit wound. The attention of the doctor was not drawn to the pictorial diagram nor any question was put to him by the defence to get his explanation on this aspect. If it is assumed for the sake of argument that there was an exit wound but the doctor had not mentioned it in his deposition even then the defence cannot get any benefit as in the circumstances of the present case such an omission is of no consequence.
11. The carbine allegedly recovered at the instance of the appellant is not shown to be connected with the commission of the murder. Moreover, the recovery was made from an open and accessible place, therefore, I am not placing reliance on the evidence relating to the recovery of the carbine.
12. Now I proceed to consider the ocular evidence furnished by Fazal Karim complainant and his son Muhammad Nawaz. Both of them are very closely related to the deceased but this fact by itself is not a sufficient ground to discard their evidence. The occurrence took place in their house therefore, they are the most natural witnesses of the same. The presence of Fazal Karim is admitted even by the accused. Some suggestions were hurled on Muhammad Nawaz P.W. That he was not present in his house at the time of occurrence but he denied them as incorrect. He is a young lad of 13 and his presence in the house of occurrence at 11 p.m. Was most natural.
' The learned counsel for the appellant pointed out some discrepancies in the statements of the eye-witnesses and further submitted that Fazal Karim had admitted that he named Khadim Hussain accused at the instance of the police and other persons, therefore, ocular evidence is not worth reliance. He maintained that since the complainant had named Khadim Hussain at the instance of the police, the possibility cannot be ruled out that the appellant was also falsely implicated by him. The discrepancies pointed out by the learned counsel are minor. It is true that in cross-examination Fazal Karim complainant stated that he had "given the name of Khadim.
Hussain at the instance of the police and other people" but it seems to be an erroneous admission because Khadim accused is not named in the F.I.R.
' The learned counsel vehemently argued that at the identification parade the eye-witnesses had stated before the Magistrate that they had come to identify the assailants of Mst. Asmat and the said statements give a clearance chit to the appellant. This contention is also devoid of force.
According to the prosecution the appellant and his three companions who were not named in the F.I.R. Had participated in the commission of crime. The aforesaid statements of the eye-witnesses before the Magistrate at the identification parade do not in any way exonerate E the appellant.
13. Both the eye-witnesses have supported the prosecution version. The gist of their evidence is that on the fateful night at 11 p.m. The appellant and his co-accused caused injuries to the complainant and that the appellant fired at the deceased. On the other hand, the defence version is that the appellant went to the house of the complainant at 8-9 O'clock along with his relatives for reconciliation and when he entered the house, leaving his relatives outside, he found his wife chatting with Jamil on the same cot and there was a verbal altercation between the appellant on one side and Mst. Hanifan and the deceased on the other. The appellant advanced towards Mst.
Hanifan and the deceased with a Danda in his hand but he was surrounded by Fazal Karim, Jamil, Mst. Hanifan and the deceased and in the meantime he heard a fire report. Later on he came to know that Jamil had fired at him but the fire missed him and hit the deceased.
14. There is reliable evidence on the record to show that the occurrence had taken place at the time alleged by the prosecution and not at O'clock, as alleged by the accused. Mst. Asmat deceased and Fazal Karim complainant were medically examined in Mayo' Hospital on the same night at 11-50 p.m. They were taken to Mayo Hospital, Lahore, from the place of occurrence situate in Shandara Town. The wound of Mst. Asmat was profusely bleeding even at the time of medical examination. These facts unmistakably show that the occurrence had taken place at about 11 p.m.
And not at 8-9 O'clock, as alleged by the defence. The appellant admits that at the time of occurrence he was present in the house of the complainant. It is also an admitted fact that prior to the occurrence the parties had strained relations. It is unbelievable that the appellant had gone there along with his relatives at that odd hour of the night for reconciliation. He has not bothered to produce any of his relatives in support of his plea. The time chosen by him rather suggests that his visit was in pursuance of some design. The learned counsel laid much stress on the presence of Jamil P.W. (not produced) in the house of the occurrence and contended that he was having an intrigue with Mst. Asmat and it was he who fired at the appellant but it missed him and hit the deceased. The visits of Jamil to the house of the complainant do not in any way show that he was having illicit relations with Mst. Asmat. He is a real brother of the husband of the sister of the deceased and his presence in the house of occurrence cannot be made a basis for the argument that he was carrying on with Mst. Asmat. According to appellant's own showing he was surrounded by Mst. Hanifan, Jamil, Fazal Karim complainant and the deceased when he heard the fire report. If Jamil had fired at him from such a close range, the fire would not have missed the target. Having juxtaposed the prosecution and defence versions I am of the confirmed view that there is no possibility of the defence version being true and the ocular evidence can be safely relied upon. In the circumstances, the appellant was rightly convicted.
14. For the foregoing reasons there is no merit in this appeal and the same is dismissed.