' SARDAR MUHAMMAD DOGAR, J.--Mst. Nawab Bibi and her husband Muhammad Khan had gone to see Muhammad Altaf, their ailing son-in-law, in village Kala Chak on 24-8-1981. On 26-8-1981, at Chahwela, they started for their village. They had gone about one furlong from the village. They saw Muhammad Nawaz Lambardar, Munshi Ghulam Rasul and Piran Ditta sitting near the millet (Bajra) crop of Muhammad Nawaz. Muhammad Khan moved towards them. In the meantime, Muhammad Zahur alias Zahuri came there. He gave a Lalkara to Muhammad Khan that he will not be spared. When Muhammad Khan turned to look back he (Muhammad Zahur) fired a shot from the carbirie, which hit Muhammad Khan on the face. Whereafter, Muhammad Zahur ran away alongwith the carbine. Muhammad Khan died on the spot. The occurrence was witnessed by Mst.
Nawab Bibi, Muhammad Nawaz, Ghulam Rasui and Piran Ditta.
2. Mst. Nawab Bibi lodged F.I.R. Exh. P.F.Police Sadar, GUjrat, same day, at 10-30 a.m. It was recorded by Muhammad Bashir, A.S.I.
' Motive for the occurrence disclosed in the F.I.R. Was that Muhammad Zahur, who had sold his share of land to his brother Muhammad Altaf, wanted to take back the same. Muhammad Altaf had refused to return the land, Muhammad Zahur suspected that Muhamrhad Khan was not allowing Muhammad Altaf to return his land.
3. The A.S.I. After registering the case went to the spot. After completion of necessary papers, he despatched the dead body, of Muhammad Khan for post-mortem examination, which was performed by Dr. Ghulam Mujtaba Malik P.W.1, on the same day. Following injuries were noted by him on the body of the deceased:-
(1) A fire-arm wound of entrance 4 c.m. x c.m. On the tip of the nose.
(2)A fire-arm wound of entrance, just to left side of the nose, 1/3 c.m. x # c.m.
(3) A fire-arm wound of entrance, 1/6 c.m. x 1/6 c.m., just below injury No,2.
(4) A fire-arm wound of entrance 1 c.m. x 4 c.m. Left of the mouth.
(5) A lacerated wound 2 c.m. x 1 c.m. Just above injury No,4.
(6) A lacerated wound 4 c.m. x # c.m. Just below middle of lower Up.
' On dissection, the skull of the deceased was found pierced. A metalic foreign body found lodged there was removed.
' The doctor opined that injuries which were caused by fire-arm were sufficient to cause death in the ordinary course of nature.
' The A.S.I. Had also taken into possession blood-stained earth from the spot vide memo. Exh. P.C.
' Muhammad Zahur alias Zahuri was arrested by Muhammad Bashir, A.S.I. On 31-8-1981. On search carbine (P.5) was recovered from him. It was taken into possession vide memo. Exh. P.E., which was attested by Mushtaq Ahmad (P.W.7) and given up P.W. Muhammad Akram, apart from 'Muhammad Bashir, A.S.I. (P.W.11).
4. Muhammad Zahur was tried by Sessions Judge, Gujrat. Learned Sessions Judge convicted him under section 302, P.P.C., vide judgment dated 12-6-1982, and sentenced him to death, plus a fine of Rs, 2,000, in default whereof to undergo two years, R.I. Whole of the fine, on realization has been directed to be paid as compensation to the heirs of the deceased.
5. The convict has filed appeal and the learned Sessions Judge has made reference under section 374, Cr. P.C. For confirmation of death sentence. As both the matters arise from one judgment, they are being disposed of by one judgment.
6. Eleven witnesses in all were examined at the trial. Gist of the evidence of Dr. Ghulam Mujtaba Malik (P.W.1), who had peformed the autopsy, has been noted in para. 3 ante.
' The ocular account was deposed to by Mst. Nawab Bibi (P.W.9) and Muhammad Nawaz (P.W.10).
' Mst. Nawab Bibi re-narrated the facts given by her in the F.I.R. Muhammad Nawaz corroborated her statement.
' In cross-examination she stated that the accused (appellant) had complained about land dispute to her daughter against the deceased and had told he'r that he will take revenge. She denied the suggestion that F.I.R. Was recorded after preliminary investigations at the spot.
' Both .Mst. Nawab Bibi and Muhammad Nawaz P.Ws. Admitted in cross-examination that All Ahmad son of the deceased, was married to Mst. Nazran daughter of Muhammad Nawaz P.W,, five years before the occurrence and she had given birth to only one daughter. They denied the suggestion that Ali Ahmad had turned out Mst. Nazran from his house, as he wanted to re-marry at the instance of Muhammad Nawaz.
' Mst. Nawab Bibi denied the suggestion that her husband was murdered by Muhammad Nawaz P.W. And that she had falsely involved the appellant in order to save Muhammad Nawaz. She also stated -in cross-examination that the appellant had no wife and no issue.
' Muhammad Nawaz (P.W.10) denied the allegation that he had got the land of the appellant mutated in the name of his son-in-law Muhammad Altaf (brother of the appellant) by producing some other person.. He also denied the suggestion that proceedings under section 107/151, Cr.P.C.
Were taken inter se him and the appellant. He also denied the suggestion that the accused had ever threatened that he will get a case registered against him and Altaf. The suggestion that the accused was involved falsely in this case at hip instance to save his skin was also denied by him.
He had explained in examination-in-chief that he was ploughing his field and had sat down in the field for a while with Ghulam Rasul P.W. For smoking Huqqa when the occurrence took place.
' Ghulam Rasul and Piran Ditta, the other two eye-witnesses mentioned in the F.I.R. Were given up as being unnecessary.
' It may be noted here that no question was put to either of these two witnesses that the appellant had filed any civil suit or had got any case registered against Altaf for having been alleged defrauded of land.
' The motive part of the occurrence deposed to by Mst. Nawab Bibi and Muhammad Nawaz, (P.Ws.9 and 10) respectively, was corroborated by Altaf (P.W.8), real brother of the appellant, who stated that the appellant had sold half of his land to him, ten years ago. He also stated that his father-in- law and mother-in-law had visited him on his ailment nine months ago. (His statement was recorded on 6-6-1982). Evidence of recovery of carbine P.5, on search of the appellant at the time of his arrest was deposed to by Mushtaq Ahmad (P.W.7) and Muhammad Bashir, A.S.I. (P.W.11).
7. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution allegations.
In answer to the question, why this case against him, he stated as under:- "I was a minor when my father died and I was brought up by my Ninhals, I became Lambardar during my minority, as my father was Lambardar of the village and Muhammad Nawaz P.W. Was working as my Sarbrah. Due to my minority and my residence at village Lange, during my absence, Nawaz P.W. And Altaf got mutated my land fraudulently in favour of Altaf by producing some other person before the Tehsildar, who was identified by Nawaz P.W. It is only about 11 years back that I came to know of this fact. Due to my close relationship with both of them I persuaded them to give back my land to me. But somehow or other they delayed it. At last, I asked them that I was going to get a case registered against them about that fraud etc. In addition to this, Mst. Nazar Begum daughter of. Nawaz P.W. Is the daughter-in-law of the deceased. She gave birth to a female child.
The husband of Nazar Begum wanted to have second marriage, but Nawaz P.W. And Mat. Nazar Begum did not allow him to do so. Muhammad Khan deceased and his son turned out Met. Nazar from their house and snatched away his ornament; and clothes. There were strained relations between the deceased and Muhammad Nawaz P.W. My mother died some times back and her land was also mutated in my favour as well as in the name of Altaf P.W. Altai has not so far given me the possession of that land. So my relations with Altaf and Nawas P.Ws became strained.
Somebody at the instance of Muhammad Nawaz or Nawaz himself murdered the deceased and fabricated this case against me. It is, therefore, that none of the villagers of village Kale Chak have joined in the investigation and only the in-laws and the inhabitants of Gilliwala and Nawaz became witnesses against me. I am innocent and the whole case is fabricated against me in the connivance of the police as Nawaz P.W. Is a lambardar of the village and has got good relations with the local police I also contested the Lambardari with Nawaz P.W. Altaf and Nawaz are closely related."
' He did not produce any defence.
8. The argument of the learned counsel for the appellant that the prosecution has failed to prove the motive. Is not well-founded. Not only the motive part of the evidence has been deposed to by Mst. Nawab Bibi complainant and Muhammad Nawaz P.W.10, who is real uncle of the appellant, but also their statements in this regard have been corroborated by no less a person than Altaf P.W.8, real brother of the appellant. Yet the other important aspect is, that the appellant in his own statement also have referred to the land in dispute. The only difference is that according to him the land was mutated in the name of Altaf by fraud. If that was so, all the more reason for him to be aggrieved. In this view of the matter, we do not find any weight in this contention.
9. The contention of the, learned counsel for the appellant that no reliance can be placed on the statement of Mst. Nawab Bibi and Muhammad Nawaz being interested and inimical witnesses, particularly, in view of the fact that the other two independent witnesses, who were available, were withheld, has been examined by us in the light of their depositions and the other evidence on record.
' Muhammad Nawaz P.W.10, as mentioned earlier, is real uncle of the appellant. His relationship by blood, therefore, with Altaf P.W. Is of the same degree as with the appellant. The mere fact that his daughter is married to son of father-in-law of Altaf cannot be taken to mean that he would have become inimical to the appellant. The appellant in spite of assertion in his' statement under section 342, Cr.P.C. About -having been defrauded of the land by Altaf in connivance and with the help of Muhammad Nawaz P.W. Lacks credentials. The land had been transferred some ten years prior to the trial. He never filed any suit challenging the sale, nor he initiated any criminal proceedings. In fact no assertion has been made that he ever tried to have the land back through the good offices of his other relatives or Punchayat. He had no issues. Most of the time he used to live in village Lange (the village of his Ninhals). If there had been any truth in the allegations levelled by him about transfer of his land, he would have definitely taken up the matter either by way of approaching the Court or through Beradri. As such, the question of Muhammad Nawaz P.W. Having any animosity with him does not arise. His presence at the spot was most natural. The occurrence took place near his fields where he was ploughing. The presence of Mst. Nawab Bibi similarly, is also natural. Her son-in-law had fallen ill. It was but natural that she would hay gone with her husband to inquire about his health. Her accompanying the deceased was nothing unusual,. Both these witnesses, therefore, were natural witnesses. A reading of their statement inspires confidence. The non-production, therefore, of the other two witnesses did no damage the case of the prosecution.
Even otherwise, Ghulam Rasul was also a nephew of the deceased. Even if he would have been produced, the same objection would have been raised qua him also.
10. The occular account furnished by these two witnesses stands corroborated squarely by medical evidence of motive and recovery of carbine from the appellant. We have no doubt that the prosecution has succeeded in proving the guilt against the appellant. His conviction, therefore, under section 302, P.P.C. Is maintained.
11. The argument of the learned counsel for the appellant that the appellant having been deprived of the land must have got frustrated and so he caused the death of Muhammad Khan under the impulse o having been robbed should be taken as a mitigating factor for awarding lesser sentence, i.e: imprisonment for life, has not impressed- us.
' Apart from the fact that we do not subscribe to the contention of the learned counsel for the appellant that the sentence can be reduced on this account, even otherwise, the land dispute was not recent one. He had sold the land to his brother, some ten years prior to the occurrence and if after passage of such a long time he wanted to take back the land, his brother had every right to refuse that. B that as it may, the fact remains that he had no justification to committe the murder of Muhammad Khan, merely for the reason that he was father-in-law of his brother, who had taken the land from him and he suspected that the deceased was not allowing his brother to return the land. No case for mitigation has been made out. The sentence of death, therefore, awarded by the trial Court to the appellant is confirmed. The sentence of fine is also maintained. The appeal stands dismissed.