SARDAR MUHAMMAD DOGAR, J.---Appellant Muhammad Khan aged 30 years son of Ghulam Muhammad Awan has been convicted under section 302, P.P.C. For having caused the murder of Mst. Ghulam Aisha, daughter of Hap Abdur Rehman's (P.W. 9), by the learned Sessions Judge, Bahawalnagar, vide orders, dated 22-10-1980, and sentenced to death. He has also been sentenced to .Pay a fine of Rs.15,000 in default whereof to undergo 6 months' R.I. Whole of the fine, if recovered, has been ordered to be paid as compensation to the heirs of the deceased. The learned Sessions Judge has sent up murder reference for confirmation of the death sentence. Co-accused of the appellant, namely Dost Muhammad (45) and Khan Muhammad (38) who are his real brothers, were acquitted, vide same order. Hap Abdur Rehman's complainant (P.W. 9) has filed Criminal Revision No. 29 of 1981 (BWP) against their acquittal. All the three matters are being disposed of, vide same order.
2. The occurrence in this case took place at 11 a.m. On 7-3-1979 in the house of Hap Abdur Rehman's complainant who is father of the deceased in the Abadi of Chak No. 115/6-R at a distance of 5 miles from Police Station Faqirwali, District Bahawalnagar. F.I.R. Exh. P.1 was recorded on the statement of Hap Abdur Rehman's (P.W. 9) at 1.30 p.m. On the same day by Bashir Ahmad, S.I./S.H.O. (P.W. 12) at Police Station Faqirwali.
3. The motive for the occurrence was that 8/9 years before the occurrence Mst. Ghulam Aisha (deceased) was betrothed to the appellant. Four years prior to the occurrence Hap Abdur Rehman's complainant father of the deceased broke the betrothal because of reputation of bad character of the appellant. Four months prior to the occurrence Mst. Aisha was engaged to Muhammad Sadiq of the same village and the marriage date was fixed as 19-3-1979.
4. According to the F.I.R. On the fateful day Liaquat Ali P.W. (not produced), a servant of the complainant was making fodder with the fodder cutting machine. Mst. Aisha (deceased) was helping him by inserting the fodder in the machine which was being run by Liaquat Ali P.W. (not produced). Haji Abdur Rehman's complainant P.W. 9 was present in his house in the Veranda while Abdur Rehman's son of Sher Muhammad (P.W. 11) and Mst. Khurshid Bibi (P.W. 10) were sitting in the courtyard. Hearing gunshot from the side of the fodder cutting machine, Mst. Khurshid Bibi P.W. 10 and Abdur Rehman's P.W. 11 ran towards the fodder cutting machine. Immediately thereafter Mst.
Khurshid Bibi returned weeping, to her father and told him that the appellant has murdered Mst.
Aisha by firing 3 shots with a gun at her and that he (the appellant) was accompanied by his two brothers Khan Muhammad and Dost Muhammad (acquitted co-accused) who were also armed with guns, but the deceased has been murdered by the appellant by firing shots from his gun. It is further stated in the F.I.R. That the complainant Hap Abdur Rehman's came to the spot and saw Mst. Ghulam Aisha (deceased) lying murdered with gun injuries on her head, right cheek, right wrist and back.
5. Bashir Ahmad, S.I./S.H.O. (P.W. 12) after recording the F.I.R. Reached the spot. After preparing injury statement Exh. P.A. And inquest report Exh. P.A./1 on the dead body of the deceased despatched the same for post-mortem examination which was conducted by Dr. Hafiz Abdul Wahid (P.W. 1). The S.I.
Took into possession 3 empty cartridges P. 5 to P. 7 from the spot, vide memo. Exh. P.F. And sealed the same into a parcel. The recovery memo. Was attested by Muhammad Nawaz P.W. 7, Khan Muhammad P.W. 8 and by the Sub-Inspector himself.
6. Muhammad Khan appellant was produced before the S.I. On 9-3-1979. The appellant produced gun P. 8 at the time of his arrest which was taken into possession, vide memo. Exh. P.H. The memo.
Was attested by Muhammad Nawaz P.W.7 and Khan Muhammad P.W. 8 besides Bashir Ahmad S.I.
P.W. 12;. After completion of necessary investigations the challan was submitted to Court.
7. Dost Muhammad and Khan Muhammad (acquitted co-accused) were found innocent during the investigation and were not arrested. Their names are placed in column No. 2 of the challan.
8. At the trial the prosecution examined in all twelve witnesses. Dr. Hafiz Abdul Wahid P.W. 1 at the time of post-mortem examination found the following injuries on her person:- (1)One oblique lacerated punctured wound (entrance) at the right outer angle of the mouth 3 c.m. x 2 c.m. x lower mandible teeth and brain deep.
(2)One oblique lacerated wound at the right back of the skull 1-- c.m. x 1 c.m. x skull bone fractured.
(3)Two oblique lacerated wounds at the front aspect of right forearm 3 c. m. x 2 c. m. And 2 c. m. x. - - c. m. x skin and muscles deep connected to each other.
(4)Six rounded lacerated punctured wound (entry) at the middle of the back just above and over the vest level varying from 1 c.m. x 1 c.m. To 1 c.m. x 1-- c.m. x muscles, bone and abdomen deep.
(5)Two lacerated wounds at the left front of the abdomen more at the outer side 1 -- c.m. x 1 c.m. x skin muscles and abdomen deep. Two pellets were removed from the outer skin (imbedded over there).
According to his opinion all the injuries were caused by fire-arms. Injury No. 3 was simple, injuries Nos. 5 and 2 were exit wounds of injuries Nos. 4 and 1. Injuries Nos. 1 and 4 were sufficient to cause the death individually and collectively in the ordinary course of nature.
9. The eye-witness account has been furnished by Mst. Khurshid Bibi P.W. 10 sister of the deceased and Abdur Rehman's (P.W. 11) son of Sher Muhammad. His (P.W. Ills) son is married to Mst. Bakhat Bhari, another daughter of Haji Abdur Rehman's P.W.
9. He is resident of District Mianwali and had come to take back Mst. Bakhat Bhari who had come to her father's house 8/9 days before the occurrence. He is also Khalazad of the deceased. Mst. Khurshid Bibi has stated that her sister Mst.
Aisha was betrothed to Muhammad Khan appellant but later on her father broke the engagement because of bad character of Muhammad Khan appellant and 4 months prior to the occurrence he had engaged Mst. Ghulam Aisha with one Muhammad Sadiq and 19-3-1979 was fixed as the date for marriage. She has stated that on the day of occurrence she was present in the courtyard of his father's house alongwith Abdur Rehman's P.W.
11. His father Haji Abdur Rehman's was sitting in the Verandah. Mst. Ghulam Aisha was inserting the fodder in the fodder cutting machine which was being plied by Liaquat Ali P.W., a domestic servant (given up by the prosecution but examined as C.W. 1), when the appellant Muhammad Khan accompanied by his two brothers Khan Muhammad and Dost Muhammad (acquitted co-accused) came and fired at Mst. Aisha. She has stated that the appellant in all fired three shots at Mst. Aisha and hat his brothers had exhorted him to fire. She has further stated that after the occurrence, all the three ran away and she narrated his father. The whole occurrence. Her statement is corroborated on all material points by Abdur Rehman's P.W. 11.
Haji Abdur Rehman's P.W. 9 has also corroborated the statement of Mst. Khurshid Bibi P.W. 10 regarding the motive part and also her statement that she had told him that the appellant has murdered Mst. Aisha by firing three shots and that at the time of occurrence the, appellant was accompanied by his two brothers, namely Khan Muhammad and Dost Muhammad (acquitted co- accused).
10. The recovery evidence regarding the taking into possession of crime empties P. 5 to P. 7 from the spot and gun P. 8 from the appellant, has been furnished through the statements of Muhammad Nawaz P.W. 7 and Khan Muhammad P.W.
8. The details of their evidence need not be re-capitulated for the reason that the learned trial Court has disbelieved the recoveries of crime empties from the spot. He has given good reasons. Apart from that, crime empties and the gun P. 8 recovered from the appellant were delivered in the office of the Forensic Science Laboratory on 19-3-1979.
Obviously, the crime empties and the gun remained in the custody of the Police and the possibility of substitution of the crime empties cannot be ruled out. So in view of this fact even if the recoveries were relied upon, the report from the Forensic Science Laboratory that the said empties were found to have been fired from gun P. 8, was of no consequence.
11. The appellant in his statement under section 342, Cr.P.C. Denied to have produced gun P.
8. He has admitted that Mst. Ghulam Aisha (deceased) was engaged with him some 718 years prior to the occurrence but he has expressed lack of knowledge whether 2/3 months before the occurrence, the father of Mst. Aisha having changed his mind has engaged her with Muhammad Sadiq. In answer to question, 'can you say why this case has been brought against you', he stated: "I have been involved due to enmity. Actually we had refused to marry Mst. Ghulam Aisha. My brother Shah Jahan was fired at by Muhammad Nawaz the husband of the sister of Khan Muhammad son of Ata Muhammad."
The appellant and his two co-accused opted to produce evidence in defence. Inamul Haq, M.I.C.
D.W.1 and Faqir Muhammad D.W. 2 were produced in defence. Both of them made statement regarding the plea of alibi taken by the co-accused of the appellant that they at the time of occurrence were in Chak No. 173/7-R and not at the place of occurrence. No evidence was produced by the appellant.
12. On an application of the appellant and his co-accused, Liaquat Ali son of Channu was examined as C.W.
1. He has stated that during the days of occurrence he was working as a domestic servant with Haji Abdur Rehman's P.W. 9 (complainant) and that on the day of occurrence he was cutting the fodder on a Toka machine and that the fodder was being put in the machine by Mst. Ghulam Aisha deceased. Suddenly, he heard a fire shot. Frightened by it he fell down. Thereafter two more shots were also fired. After about 15 minutes he got up and informed Haji Abdur Rehman's P.W. 9 of the occurrence who raised hue and cry. Mst. Khurshid Bibi P.W. 10 arrived at the spot after about twenty minutes. On cross-examination by the District Attorney he has stated that during the days of occurrence his brothers Yaqub and Boots were working as domestic servants with Muhammad Khan appellant. He has further stated that one month after the occurrence Haji Abdur Rehman's P.W. 9 had dispensed with his service and that he remained unemployed for six months, and that during the trial he was in the service of one Bagga. He denied the suggestion that after he was turned out from service by Haji Abdur Rehman's complainant (P.W. 9) he had also took up service with the appellant.
13. Learned counsel for the appellant has inter alia contended that the eye-witnesses being related are interested and that both the eye-witnesses Mst. Khurshid Bibi P.W. 10 and Abdur Rehman's P.W.
11 were chance witnesses as Abdur Rehman's admittedly is a resident of some village in district Mianwali while Mst. Khurshid Bibi P.W. 10 is married in District Mianwali to the son of Abdur Rehman's P.W.
11. It is further contended that the only independent witness P.W. Liaquat was given up by the prosecution. He, in his examination as Court-witness has not corroborated the prosecution story. It is further argued that since the prosecution evidence was disbelieved regarding the co-accused of the appellant it does not inspire confidence, particularly in view of the fact that the learned trial Court has disbelieved the evidence of recovery of gun and empties. It is contended that the evidence of motive is not worth reliance as according to the appellant, he himself had refused to marry the deceased after the registration of case by Muhammad Nawaz, against his (appellant's) brother Shahjahan. Lastly, it is contended that the appellant who is aged 30 years, is an old patient of T.B. He was released on bail during the trial on 2-9-1979 on the ground of his being a T.B. Patient after the report of the Medical Board consisting of Dr. Badaruddin Chaudhry, Medical Superintendent, Dr. Bilal Asghar, Associate Professor of Medicine, Dr. Shahbaz Munir, Raja, Associate Professor and Consultant, T. B. And Chest Diseases Unit and Dr. Abdul Haq Nizami, Radiologist, all posted at B.V. Hospital, Bahawalpur, dated 12-8-1979. It is stated at the Bar that even now the appellant is admitted in the Jail Hospital as a T.B. Patient. It is urged that the patient who is already living under the shadows of death because of serious illness deserves lenient treatment and that the sentence of life imprisonment as against the sentence of death will meet the ends of justice.
Reliance is placed on Bodhi alias Faqir Hussain etc. v. The State PLD 1976 Lah. 1418 and Muhammad Ibrahim v. The State 1979 P Cr. L J 275.
14. Learned counsel for the State/complainant have controverted the arguments advanced by the learned counsel for the appellant and have defended the judgment of the learned trial Court. It is argued that the marriage of the deceased was fixed for 19-3-1979 and as such the explanation given by Mst. Khurshid Bibi P.W. 10 that she had come in connection with the arrangements for the marriage of her sister is plausible and for the same reasons the explanation put forth by Abdur Rehman's P.W. 11 sounds reasonably true. It is further contended that the eye-witness account finds corroboration from the evidence of motive and the medical evidence. With regard to the last contention of the learned counsel for the appellant for mitigation of sentence, learned counsel for the complainant particularly, supported by the learned counsel for the State opposed the prayer contending that mere suffering from tuberculosis is no ground for not confirming the death sentence. Reliance was placed, on Zarin Khan v. The State 1980 SCMR 305. Learned counsel for the complainant also contested that the condition of the appellant was serious in any manner and that even if the appellant was found to be suffering from tuberculosis during the trial there is nothing on the record to indicate that he is still suffering from the disease and has not improved.
The arguments were concluded on 31-5-1982. Since the learned counsel for the complainant had contested the nature of the ailment of the appellant pleaded by the learned counsel for the appellant for mitigation of sentence we thought it proper that the appellant be got examined from a Board of Experts. It was, therefore, directed that the Medical: Superintendent, Nishtar Hospital, Multan should constitute a Board consisting of himself as well as two Specialists of turberculosis to medically examine the appellant and send report about the state and condition of his health. The report of the Medical Board was placed before us on 13-10-1982. On that day learned counsel for the complainant Sh. Ikramuddin, Advocate from Bahawalnagar was not present. The case wary adjourned to 3-I1-1982 so as to afford opportunity to the learned counsel to appear. When the case came up on 3-11-1982 learned counsel for the complainant /State strongly urged that the appellant be summoned to this Court so that the Court could see him and satisfy itself about his condition.
Although the learned counsel for the appellant objected, yet we thought it proper to summon the appellant so that we may have a look at him. The case was adjourned for today i.e. 24-11-1982. The appellant who has been produced in handcuffs looked pale and weary. Even the learned counsel for the State /complainant did not say that he did not look to be a sick person. None of the counsel appearing on behalf of the parties advanced any further arguments, in support of their contentions.
15. We have considered the arguments of the learned counsel fort; the parties on merits. The occurrence had taken place in the residential surrounded by walls. In the circumstances the only persons who could have witnessed the occurrence could be the inmates of the house and Ahata, as such we do not find any force in the contention of the learned counsel for the appellant that no independent witness was produced. We do not find any force in the contention of the learned counsel for the appellant that Mst. Khurshid Bibi P.W. 10 and Abdur Rehman's P.W. 11 being the residents of District Mianwali are chance witnesses and have been set up falsely, for the reason that had the complainant Haji Abdur Rehman's P.W. 9 any intention of setting up false witnesses he could himself have come out with a version that he had seen the occurrence by himself. He being the resident of the house and father of the deceased, no serious objection could have been taken to his being witness in the particular circumstances that the C occurrence had taken place in his house and Ahata. As such we do not find force that there was any plan of setting up false witnesses. The presence of Mst. Khurshid Bibi P.W. In the house having come in connection with the marriage of her deceased sister is also not something unnatural and so is the case of Abdur Rehman's P.W.
11. Looking at from the village way of life on such occasions like marriages of the girls we do not think that the presence of the two witnesses some 10/12 days before the marriage day, is not at all unnatural. In the circumstances we feel no hesitation in holding that P. Ws. Mst. Khurshid Bibi and Abdur Rehman's were natural witnesses in the circumstances oft this case. The motive story also stands proved. It finds support from the statement of the appellant also, who admits that he was engaged to I Mst. Ghulam Aisha deceased. It is not denied that the marriage of Mst.
Ghulam Aisha was not fixed for 19-3-1979. It can be imagined that the appellant would have nursed hatred and might have considered it intolerable to see that his fiancy is married to someone else particularly the resident of his own village. The eye-witness accused and the evidence of motive also find corroboration from the medical evidence. The statement of Liaquat P.W. Who has been examined as a Court-witness does not E inspire confidence. He has admitted that two of his brothers were working as domestic servants with Muhammad Khan appellant during, the trial and that he had been turned out from service by Hap Abdur Rehman's complainant (P.W. 9) only one month after the occurrence. In this view of the matter the reasons of his not supporting the prosecution F case and coming up in support of the appellant are understandable. The statement is not worth anything and so we attach no weight to his statement.
16. For the reasons enumerated above no doubt is left in our mind that the prosecution has been able to prove its case against the appellant beyond any reasonable shadows of doubt. We, therefore, upheld his conviction under section 302, P.P.C. For having committed the murder of Mst.
Ghulam Aisha.
17. So far as the sentence is concerned, we have considered the arguments advanced by both the parties. It is not denied that the appellant was released on bail during the trial on 2-9-1979 on the ground of his being a tuberculosis patient after the report of the Medical Board consisting of Dr. Badaruddin Chaudhry, Medical Superintendent, Dr. Bilal Asghar, Associate Professor of Medicine, Dr. Shahbaz Munir Raja, Associate Professor and Consultant, T.B. And Chest Diseases Unit and Dr. Abdul Haque Nizami, Radiologist, all posted at B.V. Hospital, Bahawalpur, dated 12-8-1979. This report and the order of bail are found to have been attached to the appeal filed by the appellant). On examination of the file we find that when the case was fixed for trial, a report was received that the appellant who is suffering from tuberculosis is admitted in the Chest Unit of B.V. Hospital, Bahawalpur. Learned trial Court had sent for a report from the Registrar, T.B. And Chest Diseases Unit, B. V. Hospital, Bahawalpur. Another report regarding the treatment and condition of the appellant by Dr. Shahbaz Munir Raja, Associate Professor and Consultant, B.V. Hospital, Bahawalpur, dated 5-10-1982 is also on the file. The report submitted by the Board consisting of Dr. Elahi Bakhsh Soomro, Medical Superintendent, Dr. S. Y. Bokhari, M.R.C.P., F.R.C.P., Professor of Chest Diseases, and Dr. Abdul Shakoor, I M. R. C. P., Associate Professor of Medicine, all posted at Nishtar Hospital, Multan, in pursuance of the order, of this Court, dated 31-5-1982 is also before us. In all these reports the doctors who were quite eminent and physicians of repute, have reported that Muhammad Khan (appellant) son of Ghulam Muhammad is suffering from tuberculosis. According to the latest report he is suffering from active T.B. Of lungs. Comparison of the reports shows that the condition of the appellant has deteriorated. The examinations conducted by the Board which submitted report in pursuance of the order of this Court show that the condition of the appellant has worsened since his last examination in 1979. The E.S.R. Of a normal person is supposed to be from 5-10 m.m. The E.S.R. Of the appellant in 1979 was found to be 30 m. m. While in the last examination conducted on 20-6-1982 it was found to be 96 m.m. The internal condition of the appellant vide X- Rays have also shown further deterioration. Keeping in view the different medical tests gone through by the appellant no doubt is left in our mind that not only the appellant is an old T.B.
Patient but his condition has continuously deteriorated. We ourselves have also observed that he is pale and weary. We are not Experts to predict death but having seen the pale face and weary condition of the appellant and having considered the reports of the Medical Experts which show the trend of deterioration since the last report, we feel that shadows of death are already overtaking him. Learned counsel for the State/ complainant have not been able to convince us in any manner as to how the sentence of death will be the only sentence to meet the ends of justice in the case of the appellant, the consumption of whom by a pernicious disease is fastly moving him towards end. The citation, Zarin Khan v. The State 1980 SCMR 305 referred to by the learned counsel for the complainant pertains to a bail matter.
18. In the case, Muhammad Ibrahim v. The State 1979 P Cr. L J 275 the sentence of death of the appellant was altered to imprisonment for life keeping in view the failing health and suffering from tuberculosis of the appellant. Similarly in the case entitled Bodhi alias Faqir Hussain etc. v. The State PLD 1976 Lah. 1418 the sentence of the appellant who was suffering from paralysis was converted from death to imprisonment for life. Although in both these cases the appellants were 70 and 80 years old, respectively while the appellant in the instant case is 33 years, still keeping in view the nature and sentence of the disease and persistent deterioration of the appellant in spite of continuous treatment, a case for altering the sentence of death to imprisonment for life is made out.
19. We have considered the arguments of the learned counsel for the complainant in Criminal Revision No. 29 of 1981, Even according to the prosecution case none of the respondents had fired any shot. There is no allegation of their having raised Lalkaras. The respondents had examined in defence Inamul Haq, M.I.C. D.W.1 and Faqir Muhammad D.W. 2 in support of their alibi of their having been in Chak No. 173/7-R at the time of the occurrence of this case. Inamul Haq, Magistrate and Faqir Muhammad D.W. 2 both have stated that respondents Dost Muhammad and Khan Muhammad were present in the gathering of the 'Qul' ceremony of the younger brother of Inamul Haq, M.I.C. D.W. 1 at 7-30 a.m. On 7-3-1979 in Chak No. 173/7-R and remained there till about 12.30 noon. Both of them have stated that they had also appeared before the Police during the investigation. Apparently there seems to be no reason to disbelieve the statements of these two D.Ws. One of whom is a Magistrate. We have also gone through the judgment of the learned trial Court and find that the acquittal of the respondents has been passed for sufficient and valid reasons. In the circumstances, no case for interference by way of ordering fresh trial is made out.
The revision petition stands dismissed.