Ataullah Sajjad, J.--Bahadur aged 17 years has been convicted by Ch. Ghulain Hussain, Sessions Judge, Bahawalpur, for the murder of his first paternal cousin, namely, Khanu and has been sentenced to death. He has appealed to this Court and there is also a murder reference in this connection for confirmation of the sentence of death passed on him. This judgment will dispose of both the matters.
2. The occurrence took place on 26th of April 1968, in Chak No. 4/Ford, Police Station Chishtian. The prosecution story is that the daughter of the maternal uncle of the deceased, namely, Yusaf, was betrothed to one Saddu of village Alisher. In exchange for the hand of Yusaf's daughter it was agreed that Nura the brother of aforesaid Saddu will give the hand of his own daughter to Khanu deceased who was married but had no son from his first wife. About four months before the occurrence Yusaf married his daughter to Saddu but Nura the brother of Saddu refused to abibe by his commitment and betrothed his daughter elsewhere. About one and a half months before the occurrence Khanu deceased, his three first cousins, namely, Arif, Siddiq and Bahadur appellant, Yusaf (P. W. 9) and his brother Ahman Jalluka went to the house of aforementioned Nura in village Alisher Police Station Sadiqpur and tried to forcibly abduct Mst. Lalan, the daughter of Nura whose hand had been promised to Khanu deceased earlier. There was interference and the design to abduct the girl did not fructify. Nura the father of the girl and one Shahu got injuries by gun fire at the hands of Khanu etc. A case was registered. While Siddiq and Arif the brothers of Bahadur were arrested, Khanu deceased, Bahadur appellant, Ahman and Yusaf P. W. evaded arrest and tried to get a bail order in their favour.
On the day of occurrence the appellant at about late peshiwela went to the house of the deceased which is near his own house. He was then armed with his single-barreled licensed gun. Mst.
Maryam (P. W. 8) who is a widow, lives with her father Ghulain Qadir (P. W. 7), and the deceased used to live separately in the adjoining house. Mst. Maryam also went to the house of her brother.
The appellant complained that he and his brother had joined Khanu to forcibly abduct Mst. Lalan but while Khan was at large the appellant's brothers were in jail, He furth asked Khanu deceased to bear the expenses of the case. Khanu retorted that the expenses of the case should be borne proportionately. On this the appellant suggested that they should go to uncle Qadu i.e. Ghulam Qadir (P. W. 7) for the settlement of the dispute. Mst. Maryam (P. W. 8) also followed them. Ghulam Qadir was in his thrashing-floor. The appellant repeated his demand before Ghulam Qadir and said that the deceased should surrender himself to the police and also bear the expenses of the case. The deceased replied that he would appear before the police after getting bail before arrest from the High Court and that he would bear the expenses only proportionately. This led to an altercation between the two and Ghulam Qadir suggested that they will go to the thrashing-floor of Yusaf P. W. to get the matter settled. The party consisting of Ghulam Qadir, Mst. Maryam, Khanu deceased and the appellant started towards the thrashing-floor of Yusaf. While Khanu was going ahead, Bahadur fired a shot from behind. Ghulam Qadir and Mst.
Maryam were following him. Khanu fell down and Bahadur appellant went near and fired another shot on his face. He was going to load a third cartridge when Mst. Maryam clasped him from behind. Yusaf who had seen this party coming and had angry voices, started from his thrashing- floor towards them. He saw the appellant firing at the deceased. Yusaf snatched the gun from Bahadur and took him in custody. Khanu died at the spot. Hassan and Imamu sons of Ramzan, Zaki and Allah Bakhsh etc. were attracted to the spot. Ghulam Qadir went to the police station and lodged the first information report Exh. P. E. at 8-30 p.m. The distance between the police station and the place of occurrence is only two miles.
3. The Sub-Inspector after reaching the spot took possession of two empty cartridges P. 3 and P. 4 vide memo. Exh. P. C. He also took possession of the blood-stained earth from the spot vide memo.
Exh. P. D. The licensed gun P. 1 along with bandolier containing six live cartridges was produced by Yusaf P. W. which was taken into possession vide memo. Exh. P. F. and was sealed into parcel. The dead body of Khanu was sent for post-mortem examination.
4. Dr. Riaz Ahmad (P. W. 1) Medical Officer, Civil Hospital, Chishtian, conducted the autopsy on the dead body on 27th of April 1968, at 11-30 a.m. He found two injuries on the dead body. There was one lacerated wound of entry l"xl* with lacerated margins at the upper part of the lumbar region and another lacerated wound of entry 2" x x 4' on the right cheek between right side of upper lip which had disappeared due to injury and right side of nose. There was charring on the surrounding skin. Base of skull and the frontal right parietal bones were fractured. Right axillary bone was also fractured in a commutative way. Brain had also been injured and five big size of grain gun shot pellets were removed with a cork like material of the cartridge. The injuries had been caused by a fire-arm from a close range and were sufficient in the ordinary course of nature to cause death.
Death was instantaneous after the receipt of the injuries and the time between death and postmortem was 18 to 20 hours.
5. The empties recovered from the spot were not sent to the Serologist.
6. The appellant at the trial denied the charge against him. He admitted that he had joind Khanu deceased in an attempt to abduct Mst. Lalan but expressed his ignorance whether or not Khanu was an absconder in the case. His case was that Yusaf P. W. suspected illicit liaison between him and his daughter and had involved him on account of that grudge in this case. The other witnesses who appeared against him were, according to him, under the influence of Yusaf. He admitted that the gun was his and stated that it had been taken by the police from his house. He denied that the live cartridges and the bandolier belonged to him. He produced two witnesses in defence. One is Mst. Imam Sain a sister of the deceased but is married to Muhammad Siddiq the brother of the appellant. The other is Hassan son of Ramzan and was described in the F. I. R. as one of the persons who were attracted to the spot at the time of the occurrence. Mst. Imam Sain stated that about eleven months ago, at about Isliawela while she was in her house at Bhaini Jalluka, she heard some gun shot reports. Mst. Maryam P. W. was also with her at that time. They were told by Ahnii Machhi who is also a resident of the Bhaini that some dacoits were firing the shots. Ahmi further informed these two women that Khanu had been shot dead by the dacoits. On this her father Ghulam Qadir, her maternal uncle Yusaf P. W. and many others set out in the search of the dead body of Khanu and they found it at a distance of two or three acres from the Bhaini. She further stated that among others, Hasan and Yusaf also came to the spot. She admitted in cross- examination by the Public Prosecutor that there were two empties lying near the dead body and the dead body was lying on the way from the thrashing-floor of her father to that of Yusaf P. W. The learned Sessions Judge who observed the demeanour of this witness was of the opinion that while making her statement she looked intimidated and harassed. Hassan, the other defence witness stated that on the day of the occurrence at Isliawela he heard 15/16 gun shot reports and after the firing ceased, he went out and saw the father and some relatives of the deceased looking for some footprints. The witness further stated that they were also searching for Khanu deceased. One Shamir Josar happened to come there and informed them that he had seen the dead body of Khanu at a particular place.
The witness admitted that he had seen two empties lying at the spot where the dead body of Khanu was lying. He further stated that the appellant was not there and that the police arrived at the spot at about midnight and took away the dead body and Ghulam Qadir, Mst. Maryam, Yusaf and others to the police station. According to this witness, there was no information till then as to who had killed Khanu.
In cross-examination this witness admitted that he had come to the Court without any summons and had been brought there by the brothers of the appellant. He also admitted that the dead body was lying on the way between the thrashing-floor of Ghulam Qadir and that of Yusaf P. W.
7. The learned counsel appearing for the appellant submitted that the story that the appellant was apprehended at the spot was incorrect. He in this connection referred to the evidence of Maulvi Faiz Muhammad (P. W.
6) who claimed to have gone to the spot after hearing the shots and the statement of S. I. Ch. Rehmat Ali (P. W. 10), and pointed out that none of these witnesses had stated that the appellant was present at the spot when they reached there or that the appellant was arrested at the spot.
The learned counsel in order to reinforce his argument, referred to the first application of the police for grant of remand of the appellant which is at page 53 of the original file and pointed out that the date of arrest in that application had been mentioned as 27th of April 1968, and remand was granted on 28th. He argued that if the appellant had been arrested on 26th, he would not have been produced for remand on 28th. The learned counsel further submitted that the occurrence took place at Ishawela and the assailant remained unidentified. He in this connection referred to the evidence of Mst. Imam Sain (D. W. 1) and that of Hassan (D. W. 2).
8. It is correct that the Sub-Inspector failed to state that he found the appellant at the spot in the custody of Yusaf P. W. and had arrested him there. We find the same omission in the evidence of Maulvi Faiz Muhammad (P. W. 6). The date and manner in which an accused is arrested is a very important factor but we have noted in a number of cases that the prosecutors do not think it necessary to elicit this important information from the mouth of the Investigating Officer. We have the same sad experience in this case. It is, however, established from the evidence of Ghulain Qadir, Mst. Maryam and Yusaf P. Ws. that the appellant had been overpowered at the spot. Ghulain Qadir and Yusaf definitely stated that he was arrested at the spot by the Sub-Inspector.
9. We have seen the application for remand and wc find that the factual contention of the learned counsel is correct but we further find that figure 26th had been overwritten as 27th and 27th had been overwritten as 28th. Perhaps, the Investigating Officer failed to produce the appellant in time for remand and after having stated that he had arrested the appellant on 26th, changed the date into 27th to escape any possible objection regarding legality of the detention of the appellant. This is, however, a guess because no cross-examination was addressed on this aspect of the case and it cannot be said with certainty as to what was the reason for the overwriting of the date in the application for remand and on what particular date the appellant was actually produced for remand.
10. Mst. Imam Sain is married to Muhammad Siddiq who is the real brother of the appellant. We find from the evidence of Ghulain Qadir P. W. that she had come back to the house of her father after the murder of her brother but a day before he appeared for evidence in the Court of Session, she was forcibly taken by her husband and her relatives. So far as the other defence witness is concerned, he was not served for the date on which he appeared to give evidence and had come to Couit with he brothers of the appellant. We have no hesitation in coming o the finding that both these witnesses appeared at the trial under he influence of the relatives of the appellant.
11. The statement of these two witnesses regarding the time of occurrence is contradicted by the independent testimony of Maulvi Faiz Muhammad who is the Imam of the local mosque and does not appear to have any attachment with any of the parties, lie stated that he heard shots at about sunset and came to the spot.
12. We find that both the defence witnesses corroborated the prosecution story so far as the place of occurrence and the presence of two empty cartridges at the spot is concerned. They deposed to having heard a number of shots but they agreed that the dead body of Khanu was lying in between the thrashing-floors of Ghulam Qadir and Yusaf and there were only two empties lying near the dead body. The defence evidence was rightly rejected by the trial Court.
13. The learned counsel further submitted that the two empties found at the spot were not sent to the Ballistics Expert and we should draw an inference against the prosecution from this omission.
We find from the record that no question was asked from the Sub-Inspector regarding this omission and we are, therefore, not in a positiorrto say as to under what circumstances he failed to send the empty cartridges along with the gun to the Ballistics Expert, ln any case, the recovery of these cartridges has not been pressed into service by the learned Sessions Judge for coming to the conclusion of the culpability of the appellant. The recovery has, therefore, not in any way affected the merits of the case and the learned counsel has failed to show us how his client has been prejudiced by the failure of the prosecution to send the two empties to the Forensic Laboratory. It is not his case that the empties were sent to the Ballistics Expert but the opinion received has been withheld.
14. The fate of this case hangs on the oral testimony of three witnesses who, no doubt, are closely related to the deceased. They are, also closely related to the appellant. There is no background of enmity between the parties and it cannot be said that any of the prosecution witnesses was interested in falsely involving the appellant in this case. On the other hand, we find that the appellant and Yusaf had made a common cause in effecting the forcible abduction of the daughter of Nura and both of them had been named as accused persons in Exh. P. M. which is a copy of the F. I. R. in the abduction case. The allegation of the appellant that he had been invoked on account of the enmity of Yusaf who suspected a liasion between him and his daughter, appears to be an afterthought.
15. We do not agree with the observation of the learned Sessions Judge made in para. 14 of his judgment that as the witnesses are close relations of the deceased, their statements required corroboration from some independent sources. The mere fact that the witnesses are related to a deceased person will not be sufficient to brand them as interested witnesses as we understand this term in legal parlance. The subject of interested witnesses was dealt with by the Supreme Court in Niaz v. The State (1) and Nazir and others v. The State (2). lt was held in the first case that an interested witness was one who had a motive to falsely implicate an accused person. We do not find that the witnesses in this case are interested in that sense. On the other hand, we find from the evidence of Mst. Maryam that the conversation between the appellant and the deceased started in quite cordial manner. Ghulam Qadir also admitted that before the day of occurrence the deceased and the appellant had cordial relations. There was therefore, no estrangement between the parties immediately before this occurrence. All the three witnesses have given a graphic description of the incident in the manner in which it took place and the appellant was arrested. There is no material discrepancy in their statements and we find that they are witnesses of truth.
16. The learned counsel in the end urged that the extreme penalty of law should not be exacted from the appellant in the circumstances of the case. He said that the prosecution witnesses have deposed to an altercation having taken place between the appellant and the deceased but they did not actually disclose the nature of this altercation. The harshest thing that the appellant is said to have told Khanu deceased in presence of Mst. Maryam P. W. is that his mother was right in saying that Khanu will not bear expenses and will on the other hand get him convicted.
17. We find from the first information report that before proceeding to the thrashing-floor of Yusaf, the deceasad had abused the appellant. We also find that some altercation was still continiung between them immediately before the appellant fired from his gun. This fact was not brought out in the evidence of Ghulam Qadir but we quote the relevant portion of the F. I. R. which is very suggestive :-- jiU-j ai" ^ JjJ jjl -i " jjl* IS" i ^ S jL* A Yusaf also deposed that he saw Khanu deceased and the appellant coming to his thrashing-floor with the two witnesses and heard them quarrelling. The argument between the appellant and the deceased was still continuing and it is not unlikely that the deceased might have said something provocative to the appellant which is now being suppressed by the prosecution witnesses. The appellant was coming to seek solution of the dispute from Yusaf and, therefore, something might have been said which disturbed the peace of his mind, and he fired in the heat of the moment. We have also to keep this fact in view that the appellant had been earlier abused by the deceased at the thrashing-floor of his father. The age of the appellant at the time he made his statement at the trial is given as seventeen years. This was on 4th of March 1969. The occurrence took place on 26th of April 1968. The appellant was, therefore, slightly above sixteen years of age at the time of the occurrence.
18. In view of our finding that something provocative might have been said during the altercation and also in view of the youthfulness of the appellant, we think that the extreme penalty of death should not be exacted from him. We, therefore, substitute the sentence of transportation for the sentence of death. We do not confirm the sentence of death. The appeal and the murder reference are disposed of accordingly. .