' MAZHARUL HAQ, J.--Shaukat (18/19) was tried by the Sessions Judge, Sahiwal, for the murder of his co-villager Muhammad Sharif. On 12-9-1977, he was convicted under section 302, P.P.C. And sentenced to death with a fine of Rs,1,000 in default to undergo six months R.I. Fine if realized was ordered to be paid as compensation to the heirs of the deceased. Appeal of the convict and the connected murder reference are before us.
2. Abdullah (informant) lived in Chak No, 17/14-L. He had agricultural land at a distance of about 8 Killas from the village where he had installed a tubewell. His children including the womenfolk would go to the tubewell during the day. At about 3 p.m. On 24-12-1975, Shaukat, accused, who did not bear a good moral character was seen loitering about at their tube well. Informant's son Muhammad Sharif (deceased) stopped him from coming over to the tube well, there was an altercation between the two during which Muhammad Sharif also slapped him. Shaukat left holding out a threat to avenge the insult. On 26-12-1975 Muhammad Siddique son of the informant and Jhandey Khan were talking to each other near the sugar-cane field to settle the price of the sugar-cane. At that time Muhammad Sharif was irrigating the sugar-cane field, when Shaukat accused armed with a .12 bore gun appeared on the scene and enquired about Muhammad Sharif; on sighting him, he ran towards him. Abdullah, Siddique, and Jhandey Khan also ran after him. On reaching near Sharif, Shaukat fired at him hitting him in the head who died at the spot. The witnesses tried to apprehend Shaukat but he threatened them. The alarm also attracted Ismail, Fateh Muhammad, Imam Din and Muhammad Yaqoob. After covering a distance of 4 miles from the place of occurrence, Abdullah reached Police Station Kasuwal the same evening at 7-15 and made report Exh. P.H. To P.W.9 Awais Bakhsh, S.I./S.H.O. After registering the case, the S.I. Went to the place of occurrence where he reached at 8-30 p.m., prepared the necessary documents and sent the dead body for its post-mortem examination. He took into possession crime empty Exh. P. 9 from the place of occurrence which was made into a sealed parcel vide memo. Exh. P.G. Attested by P.W.
6 Jhandey Khan Muhammad Shafi (given up as unnecessary) and P.W.9 Awais Bakhsh, S.I.
3. P.W.1 Dr. Riaz Ahmad, Medical Officer, Rural Health Centre, Kasuwal on 27-12-1975 at 1 p.m. Held the autopsy on the dead body of Muhammad Sharif and made the following observations:- "A fire-arm lacerated wound 61" x 2" x brain deep on the left side of the head. The wound started from a point about 11" above and behind the upper end of the root of the left ear. This was the point from where fire-arm pellet entered lacerating the skull into a gap on the left side. Some of the pellets got exist from the gap and front and some remained inside. The edges on the back and left of head i.e, the point from where the pellets entered were inverted. The brain matter was visible and crushed on left side. The skull bones the upper part of left temporal bone, left parietal bone, frontal bone on left and right both sides, the right parietal bone and right temporal bone were fractured.
Due to the fracture of the frontal bone underneath there was a lacerated wound of the scalp on the left side of fore-head up to a point about 1" above the left eye brow and up to the point reaching the medial end of right eye brow. There was bleeding from both the nostrils. There was cingulated blood stuck in both the nostrils. Small multiple pieces of fractured bone were been inside the brain matter of the wound."
' Six pieces of pellets were found in the brain. One piece of pellet was found lying over the bed of the dead body near the head. In doctor's opinion, it was a combined wound of entrance and exit. There was no charring and blackening and no gun powder in the wound.
' In his opinion death was due to shock and hemorrhage caused by the injury to the brain which was sufficient to cause death in the ordinary course of nature. Death was immediate and post- mortem was performed within 18 to 24 hours of the death.
4. On 13-1-1976, Shaukat accused was arrested by the Investigating Officer and on 18-1-1976, he got recovered his, .12 bore gun P. 8 from within a room of his house. The room had been locked. The accused brought out key P. 6 from a stack of wood lying in his house with the key, he opened the lock P.
7. Both the key and the lock were taken into possession vide memo Exh. P.D. Gun P. S was made into a sealed parcel vide memo Exh. P.E. Besides the Investigating Officer, the two memos were attested by P.W. 5 Muhammad Yaqoob and Muhammad Ashraf (given up as unnecessary). On 29-12-1975, P.W. 4 Muhammad Majeed, Moharrir/A.S.I., received two sealed parcels from the S.I. He 'kept Ahem in the Mal Khana ,.And on 8-1-1976 passed them on to P.W.3 Zulfikar, F.C., for their onward transmission to Chemical Examiner and the Forensic Science Laboratory, Lahore. The F.C., delivered them accordingly. Again on 18-1-1976, the S.I., deposited the sealed parcel of gun P. 8 with the Moharrir who passed it on to P.W. 3 Zulfikar F.C., on 24-1-1976 for its onward transmission to Forensic Science Laboratory, Lahore. According to the Serologist's report Exh. P.M. The crime empty was wedded with the gun. After completing the investigation, the accused was sent up for trial.
5. Denying guilt at the trial, Shaukat took up the plea of alibi and said that when the occurrence took place, he had gone to Burewala to see his father's sister. On his return, he was arrested by the police in Kasuwal and at that time, Anwarul Haq and Zafar were already in police custody in connection with this case. He produced Exh. D.C. Copy of F.I.R. No, 51 of 1949 relating to a case under section 302, P.P.C. State versus Nazir Ahmad etc. Exh. D.D. Is the copy of statement of P.W. Jhandey Khan in that case. Exh. D.B. Is the copy of the judgment of case No, 110 of 1968 entitled State v. Fazal Din etc. Under section 302, P.P.C. Jhandey Khan is also a witness in this case. Exh. D.F. Is the copy of the judgment, dated 16-7-1973 delivered in Civil Appeal No, 78/ADJ-II of 1973. These documents were produced to show that P.W.6 Jhandey Khan was stock witness of the police and a partisan of P.W.8 Abdullah (informant). Further, in judgment Exh. D.B., he was not relied upon. The background of judgment in Civil Appeal of 1973 was that a suit was filed by one Mst. Bibi against Ramzan challenging a gift mutation entered in favour of Ramzan. Her suit was dismissed but decreed in appeal, which was also maintained by the High Court. Thereafter, P.W. 8 Abdullah, informant's sons namely Habib, Siddique and Shafi filed a declaratory suit that since they were the bona fide purchasers of the said land from Ramzan. Their suit was dismissal. They went up in appeal before the District Judge which was also dismissed by judgment, dated 16-7-1977, copy of which is Exh. D.F.
This judgment was produced to show that P.W. Abdullah informant had other enemies with whom his sons had land dispute. Besides these documents, no evidence in defence was led.
' Relying on the evidence of the eye-witnesses and the recovery of gun. Exh. P. 12 from the accused which was found wedded with the crime empty recovered from the place of occurrence, trial Court came to the conclusion that the prosecution case was satisfactorily proved against the accused.
Criticizing the finding, learned counsel for the appellant argued that P.W. 7 Muhammad Siddique was a brother of the deceased, P.W. 8 was his father while P.W. 6 Jhandey Khan was their partisan.
Moreover, he was a stock witness of the police and had appeared in two murder cases earlier and in the one decided in 1968, he was not relied upon. Further contended, that besides the relations of the deceased and Jhandey Khan other witnesses who were named in the F.I.R. Were not produced.
Learned counsel further argued that in fact it was a blind murder and the appellant had been roped in on suspicion because a few days earlier, the deceased had slapped him, after an altercation which took place when he was stopped from coming over to the tube well of the deceased. It was next contended that reloading of the gun was not mentioned in the F.I.R. Nor it was so stated by P.Ws. Muhammad Siddique and Jhandey Khan in their statement before the police. P.W. 9 Awais Bakhsh, A.S.I., did not mention about the crime empty in the inquest report Exh.
P.J. According to the defence these omissions indicated that the crime empty was planted later in order to create corroborating evidence.
7. We have considered the matter. F.I.R. Is never a detailed document. It may be mentioned here that it is the prosecution case that the witnesses tried to apprehend the appellant but he held out threats to them. This fact is also mentioned in the F. I. R. It is noteworthy that he could only effectively hold out the threat if he had reloaded the gun; as such the omission of reloading the gun in the statement of the witnesses before the police was not material. Failure to mention the recovery of crime empty in the inquest report would also not be material because all other details given in the F.I.R. Have been incorporated in the inquest report. Moreover, the recovery memo of the crime empty was prepared the same day when the inquest report was written. The recovery witnesses of the memo. Exh. P.J. Of the crime empty namely P.Ws. Jhandey Khan and the A.S.I. Have fully corroborated each other in supporting the recovery. We may also add here that the crime empty was taken into possession on the day of occurrence and it was sent to the fire-arm expert much before the arrest of the appellant. The accused got recovered the gun on 18-1-1976 and the same was sent for comparison without delay. The crime empty matched with the gun. On the other hand, we find that Abdullah informant and his son Muhammad Siddique had no motive to falsely rope in the appellant on a murder charge. Besides the earlier incident which took place two days before the occurrence in which deceased slapped the appellant, there was no previous enmity between the parties. The accused in order to avenge the insult had attacked the deceased. P.W.
Jhandey Khan is not related to the deceased. True, he has not been relied upon in judgment Exh.
D.B. But this would not discredit his testimony in this case which is corroborated by the testimony of P.Ws. Abdullah and Muhammad Siddique. At the time of the occurrence, Muhammad Siddique and Jhandey Khan were bargaining over the sale of sugar-cane crop and were standing near the crop.
Abdullah informant was also present there while Sharif (deceased) was irrigating the wheat field when he was attacked by the appellant. Presence of each one of them was natural. The time of occurrence also goes in favour of the prosecution. It was not dark, so there would be no question of its being a blind murder. Under these circumstances, there is no force in the submission that the appellant had been substituted for the real culprit. We find no reason to disbelieve the evidence in this case. The case in overwhelming against the appellant. We, therefore, maintain his conviction.
8. It was next contended that since the appellant was insulted and slapped by the deceased two days before the occurrence and that he was about 16 years of age, then it was, therefore, a case of lesser penalty. Accepting the submission, we reduce the sentence to imprisonment for life. The sentence of fine is maintained. With the above modification the appeal is, otherwise dismissed.
' The death sentence is not confirmed.