1. GHULAM MUJADDID MIRZA, J.---Muhammad Zubair son of Abdul Wahid, caste Awan, resident of Nari, Tehsil Khushab, District Sargodha, was tried for the murder of Dost Muhammad by the Additional Sessions Judge, Sargodha. The trial Judge by judgment, dated 13-6-1982 held him guilty and, sentenced him to death and fine of Rs.5,000 or in default of payment of fine to undergo further R.I. For one year. The fine, if realised, was ordered to be paid to the legal heirs of the deceased.
2. The convict has appealed to this Court through jail. Reference for confirmation of death sentence is also before us. Both the matters shall be decided by this judgment.
3. The incident took place on 5-11T1980, at 12-00 noon in the area of village Nari, Tehsil Khushab, District Sargodha.
4. The case was registered on the same day at 2-00 p.m. On the statement of Muhammad Khan, brother of the deceased, at Police Station Katha Sanghral. The report Exh. P.E. Was recorded by Muhammad Riaz Khan A.S.I., on the basis of which formal F.I.R. Exh. P.E./1 was registered.
5. Muhammad Khan's statement was to the effect that on the day of occurrence at 12-00 noon, he and Dost Muhammad his real brother, were carrying fodder on donkey. They were coming from their land to their house situated in village Nari. When they reached in Barshi Nala opposite to the residential house of Dost Muhammad son of Mian Muhammad, Muhammad Zubair who was hiding himself behind the Sarkanda got up. He had carbine. He shouted and challenged Dost Muhammad that he would not be spared. He fired. Dost Muhammad was hit on the left side of the chest. On the hue and cry, Muhammad Amir and Nazar Muhammad who were passing nearby came to the spot.
6. They saw the occurrence. Dost Muhammad died at the spot. The accused ran away with the carbine.
7. Motive for this incident was that a month before the occurrence. Dost Muhammad deceased had some dispute with Zubair accused regarding the damage to his crop. He gave beating to Zubair with a stick.
8. Prosecution examined Muhammad Khan and Nazar Muhammad as eye-witnesses. Reliance was placed on the evidence of recovery of carbine and crime empty and finally medical evidence.
9. Muhammad Khan, whose statement has been referred to above repeated the same version on oath before the trial Court. He also deposed about the motive and said that when the accused got up from behind the Sarkandas he said that he would take revenge for his insult. Thereafter, he fired with his carbine. His brother was hit on the left side of the chest.
10. Nazar Muhammad corroborated the statement of Muhammad Khan. He stated that he was going from his house to his land. When he reached in Barshi Nala, Dost Muhammad deceased and his brother Muhammad Khan were coming from their land. They were carrying fodder on a donkey.
11. Accused had hidden himself behind Sarkandas near the house of Dost Muhammad towards eastern side. Dost Muhammad deceased and Muhammad Khan were at a distance of 21 Karams from the accused when the accused fired at the deceased. The witness even deposed about the Lalkara before the deceased was fired at. Nazar Muhammad stated that he alongwith Muhammad Amir tried to overpower Zubair, but he reloaded his carbine and threatened them with serious consequences in case they intervened. Muhammad Khan ran away towards the house of Sher Muhammad on account of fear. Zubair accused ran away with his carbine. Dost Muhammad succumbed to the injuries at the spot.
12. Muhammad Riaz A.S.I. Investigated the case. On 5-11-1980, he went to the place of occurrence and prepared injury statement and inquest report of the deceased. He took into possession blood- stained earth and crime empty from the place of murder. On 11-11-1980, he arrested Zubair accused. On 17-11-1980, the accused while in custody led to the recovery of carbine laying in an old cloth in an almirah in his house, which was taken into possession, vide memo. Exh. P.C.
13. These recoveries were attested by Nazar Muhammad and Muhammad Amir.
14. On 6-11-1980, Dr. Muhammad Riaz Ali performed the post-mortem examination on the dead body of Dost Muhammad. He noticed four lacerated wounds on the left side of the chest, three below the left nipple and fourth below and outer to the left nipple about 1 --" away. The edges of the wounds were inverted and burnt. Each was 1/3" x 1/3" into deep.
15. According to the doctor, death was due to haemorrhage (internal and external) shock and injury to vital organs.
16. The doctor found one pellet in the left side of the back. He took it out and handed over to the police in a sealed bottle. He further testified that the deceased had died immediately after being hit.
17. The appellant when examined by the trial Court denied all the allegations. He said that no such incident took place as alleged by the prosecution. The case against him was due to enmity with Muhammad Amir (P.W.). He said that he was innocent. The deceased was killed by some unknown enemy.
18. The appellant stated that he was a sick person and had been discharged from any on medical grounds. He produced Muhammad Aslam and Muhammad Ishaq, Head Constables in defence.
19. The former produced a register pertaining to the F.I.R. For the year 1978, registered on the statement of Ata Muhammad son of Fateh Khan. It was regarding the abduction of Mst. Rasoolan daughter of Ata Muhammad. Six persons including Muhammad Khan and Sahib Khan sons of Ahmad were challaned in that case.
20. Muhammad Ishaq produced police file of F.I.R. No. 228, dated 5-12-1977 to prove that a case under section 302/149/148 was registered at Police Station Khushab on the report of All Muhammad son of Muhammad Amir regarding murderous assault on Fateh Muhammad and Ghaus Muhammad.
21. Originally, the case was registered under section 307/149, P.P.C. Later on, the offence was altered to section 302, P.P.C because of death of Fateh Muhammad. Accused in that case included Muhammad Hayat son of Phulla Khan. On 7-4-1979 the accused in that case was acquitted.
22. Another document tendered was Exh. D.F. Showing that Aft Muhammad father of Nazar Muhammad P.W. Was a nephew in the second degree of Alamsher, grandfather of Muhammad Khan complainant.
23. Learned counsel for the appellant after taking us through the entire evidence argued that there was no mention of crime empty or of reloading of carbine in the F.I.R. Crime empty was also not mentioned in the inquest report. This created doubt about the genuineness of the F.I.R.
24. While dealing with the ocular version, it was submitted that the same was not free from doubt. The first informant was the brother of the deceased. The other witness Nazar Muhammad also belonged to the same brotherhood. Moreover, his explanation for his presence at the spot was not acceptable.
25. Evidence pertaining to the recovery was also challenged on the ground that it was fake. Attempt was made to establish that the complainant side was inimical towards the appellant. Hence, he had been falsely implicated.
26. Counsel appearing on behalf of the State supported the impugned judgment and submitted that the decision of the trial Court was in accordance with law.
27. First of all we would like to deal with the evidence of recovery. The occurrence took place on 5-11- 1980. The accused was arrested on 11-11-1980. On 17-11-1980 he led to the recovery of carbine which was taken into possession. It remained with the police till 24-11-1980. The period during which it remained with the police has not been explained. We agree with the learned counsel that this piece of evidence is not worth evidence are sufficient in law to uphold the conviction and sentences ejected.
28. We are now to make sure whether the ocular version and medical evidence are sufficient in law to uphold the conviction and sentence.
29. Although the witnesses were cross-examined at length but unfortunately the defence did not succeed in making out a point so as g to create either doubt about their testimony or that they were not present at the spot.
30. An attempt was also made to establish that the parties were inimical to each other but in that, too, the counsel did not succeed. As such we are left with no option but to accept the ocular version which finds support from the medical evidence.
31. We have also considered the defence evidence. It is not of much help to the appellant.
32. We are, therefore, of the view that the accused has been rightly convicted and sentenced under section 302, P.P.C.
33. We have not come across any extenuating circumstance which would provide legal ground for reducing the sentence.
34. The appeal is accordingly dismissed.
35. Death sentence is confirmed.