NAZIR AHMAD BHATTI, J.--Jiand appellant in the present appeal, has been convicted under section 302, P.P.C. By the Additional Sessions Judge, Usta Muhammad and sentenced to death. By this appeal he has challenged his conviction and sentence. Simultaneously the Additional Sessions Judge has forwarded Murder Reference No.6 of 1986. Judgment in the present Criminal Appeal No.26 of 1986 will also dispose of the aforesaid Murder Reference.
The prosecution story, as disclosed in the F.I. R. No.76 of 1984 of P.S. Usta Muhammad, recorded on 10-11-1984 at 1205 hours at the instance of Niaz Muhammad P.W.2 states inter alia that the complainant along with P.W.3 Wali Muhammad had gone to village Hamidullah Buledi on 9-11-1984 to attend funeral ceremonies of Mst. Bakhtiar and spent the night there. On the next day at about 8-00 a.m. The complainant, P.W.3 Wali Muhammad Kalu Khan, P.W.7 Mst. Lala, P.W.4 Muhammad Ayub and deceased Allah Bakhsh, Cousin of the complainant and brother of P.W.7 Mst. Lala, were proceeding towards village Usta Muhammad for making some purchases. At about 9-00 a.m., when they reached near village Muhammad Panah Mengal, they saw two persons, appellant Jiand and absconding accused Arbab emerging from the bushes armed with shot guns. Appellant Jiand challenged (his cousin) Allah Bux that he would not be spared and both the appellant and the absconding accused fired indiscriminately at Allah Bux who sustaining gun-shot injuries fell down and died at the spot and P.W.3 Wali Muhammad also sustained gun-shot injuries. The motive for the offence, as disclosed in the F.I. R. , was that there was matrimonial dispute between the appellant and the absconding accused with the deceased Allah Bakhsh.
3. The appellant Jiand was already under custody in Jacobabad from where he was formerly arrested in this case, on 26-1-1985. The appellant was charged by the learned Additional Sessions Judge on 11-4-1985 under sections 302/307/34, P.P.C. For committing the murder of Allah Bakhsh and attempting at the life of P.W.3 Wali Muhammad along with his absconding co-accused Arbab in furtherance of their common intention. The appellant pleaded not guilty and claimed trial. The State produced nine witnesses in proof of the prosecution case. Out of whom P.W.2 Niaz Muhammad, P.W.3 Wali Muhammad P.W.4 Muhammad Ayub and P.W.7 Mst. Lala are eye-witnesses of the occurrence. P.W.8 Tajamul Hussain, Sub Inspector police partly investigated the case, prepared the inquest report of deceased Allah Bakhsh and the injury sheet of P.W.3 Wali Muhammad, inspected the spot and prepared the site plan, secured blood stained earth from beneath the dead body of deceased Allah Bakhsh and from beneath injured P.W.3 Wall Muhammad, recovered six empties of .16 bore cartridges and two of .12 bore cartridges from the spot, recorded the statements of P.W. Ayub, Kalu, Mst. Lala and the injured at the spot, despatched the dead body to mortuary for post-mortem examination and sent injured Wali Muhammad to Civil Hospital Usta Muhammad for medical examination. P.W.9 Muhammad Yaqub, Inspector police took over the case on 18-1-1985, partly investigated the case arrested the appellant on 26-1-1985, and recovered a single barrel shot gun of .12 bore on 7-2-1985 at the pointation of the appellant who was under police custody at that time, sent the said shot gun to the Chemical Examiner and Ballistic expert. P.W.5 Dr. Mushtaq Ahmad performed post-mortem examination of the dead body of Allah Bakhsh on 10-11-1984 at 2-00 p.m. And found the following external injuries:- "(1) 13 wound entrances were present over right side back of chest.
(2) Wound of entrance one in number on the right side of the abdomen.
(3) Wound of entrances 3 in number were present on the right side of the face.
(4) Wound of entrances 9 in number were present on the right thigh.
(5) Wound of exit 6 in number were present on the front of chest on left side.
(6) Wound of exit 6 in number were present on medial side of right thigh."
The doctor found the following internal injuries:- "Thorax--Ribs: 6th and 7th right posterior ribs were fractured 4th interior rib on the left side fractured. Wall lacerated.
Pleurae:-Lacerated.
Right Lung:-Lacerated.
Left Lung: Lacerated.
Heart:-Lacerated.
Abdomen: Wall lacerated.
Peritoneum:-Lacerated Stomach:-Healthy and empty.
Large intestine:- Lacerated: According to the opinion of the doctor Allah Bakhsh died as a result of damage to vital organs, heart and both lungs and death was instantaneous. The doctor recovered four pellets from the dead body and sent them to the police. On the same day the doctor examined injured P.W.3 Wali Muhammad and found the following injuries on his person:- .
"(1) 4 fire arm wound of entrances` on the right side of chest.
(2) One fire arm wound of exit on the left side of chest.
(3) 6 fire arm wounds of entrances on the right arm.
(4) One fire arm wound of entrance on the right fore arm.
(5) 6 fire arm wounds of entrance on the lateral side of right leg.
(6) 6 fire arm wounds of exit on the medial side of right leg."
X-Ray examination of the injured was also done and it was found that multiple pellets were present in the right arm and in chest, and there was communicated fracture of shaft of right fumerous bone. --According to the opinion of the doctor the injuries were grevious in nature and caused by fire-arm.
4. There are four eye-witnesses of the occurrence, P.W.2 is the complainant. He has corroborated the contents of the F.I.R. From the spot he went on foot to P.S. Usta Muhammad which is at al distance of three miles from spot and reached there at about 1200 noon. He has further stated that the appellant and the absconding accused had fired shots from a distance of 10-12 paces and they had fired about 8/10 shots in all. He has further stated that Allah Bakhsh was hit with four shots at his face, back, abdomen and thighs, and P.W.3 Wali Muhammad was also hit by four shots and he sustained injuries at his arm, foot and his front side. P.W.4 Muhammad Ayub has generally corroborated the contents of the F. I. R. And the testimony of P W.2 Niaz Muhammad. He has further stated that they started from village Hamidullah at 8-00 a. m. And when they covered a distance of 1i miles and were at a distance of about 200 yards from village Muhammad Panah, `they were confronted by the appellant and absconding accused who came out of the bushes armed with guns and fired gun shots with which Allah Bux sustained injuries at his face, on his right back side, stomach and thighs and died at the spot, P.W.3 Wali Muhammad also sustained injuries. He is also a marginal witness to the recovery of eight empties from the spot. He has further stated that the jungle from where the assailants had come out was on their right side and the assailants fired from the north side and ran away towards south. The complainant party was going from east to west.
P.W.7 Mst. Lala lives in village Muhammad Panah Mengal which is at a distance of about 200 yards from the spot. She has also corroborated the prosecution story as disclosed in the F.I.R. And as narrated by the other P.Ws. She is sister of the deceased Allah Bux. P.W.3 Wali Muhammad is the person who was injured at the spot along with deceased Allah Bux. He has also corroborated the prosecution story as narrated by the other witnesses, as disclosed in the F.I. R. He has stated that they all were going to village Haji Karim Jan from village Hamidullah Buledi, when they reached near village Muhammad Panah the appellant and the absconding accused Arbab emerged from the jungle armed with shot guns. Appellant Jiand challenged deceased Allah Bux and thereafter fired at Allah Bux who was hit on the face. Absconding accused Arbab also fired at deceased hitting him on the stomach and thighs and back side. Then absconding accused fired at this witness injuring him on the right leg, right side of chest and right fore-arm at two places. Allah Bux died at the spot while this witness fell down and became unconscious. His statement was recorded by the police at civil hospital Usta Muhammad. Both the accused had fired from a distance of about 12 paces. All the eye-witnesses have stated that there was a matrimonial dispute between the deceased and the appellant and that was the motive for the commission of the offence.
5. The appellant was examined under section 342 Cr.P.C., on 22-6-1986. He denied the commission of the offence. He also denied that the .12 bore shot gun, EX.P.1, was recovered at his pointation and instance. He also made a statement on oath on the same date wherein he again denied the commission of the offence. He also denied that he had any matrimonial dispute and any motive to kill deceased-- Allah Bux and injure Wali Muhammad. He further stated that the witnesses are residents of village Hamidullah Buledi which is at a distance of 8/9 miles away from the spot and they have given false evidence.
6. It was contended by Mr. Muhammad Aslam Chishti learned counsel for the appellant that all the eye-witnesses in this case, except Kalu Khan, were related to the deceased and interested witnesses, and Kalu Khan was the only independent witness not related to the deceased or the other witnesses and he was mentioned in the F.I.R. But was not produced. It was further urged by Mr. Chishti that the witnesses who were produced during the trial were not only interested witnesses but their evidence also did not ring true and was inconsistent with the circumstantial and medical evidence. It is correct that the four P.Ws., who have been produced as eye-witnesses, are related inter se. P.W.2 Niaz Muhammad is cousin of the deceased, P.W.4 Muhammad Ayub is a relation of P.W.2 Niaz Muhammad and P.W.7 Mst. Lala is real sister of the deceased while injured P.W.3 Wali Muhammad is caste fellow of the deceased and cousin of P.W.4 Muhammad Ayub.
However, the relationship of the witnesses inter se or with the deceased per se is no ground to discard their evidence. It is not denied that Mst. Bakhtiar who was a cousin of the deceased had died a day earlier at village Hamidullah Buledi and it was natural for the eye-witnesses and the deceased, being closely related to her, to be present at her funeral. They must have spent the night at the said village. It is also natural that on the next day the persons gathered at the funeral were to leave and it is also natural that they may be leaving in groups. As such it cannot be denied but on the contrary in all probability all the eye witnesses and the deceased were proceeding together after having finished the funeral ceremony. Moreover Mst. Lala lives close to the place of occurrence and she might have accompanied her real brother. It cannot be denied that the witnesses and the deceased were present a day before in village Hamidullah in connection with the funeral ceremony. Similarly it can also be presumed without any fear of contradiction that they had departed in a group on the next day. Even otherwise the most important circumstance in this case is that P.W.3 Wali Muhammad was also injured at the spot in the occurrence. Although this witness is also a relation of the deceased but his presence cannot be excluded from the spot at the time of occurrence. He has given a very natural and true account of the occurrence and the fact that he had also sustained injuries in the same transaction, there is no reason and not an iota of evidence on record to exclude his presence from the spot. We have very anxiously considered the contention of the learned counsel for the appellant to the effect that the witnesses were not present at the spot but we cannot agree with him for the simple reason that one of them was also injured along with the deceased at the same time in the same occurrence and at the same spot.
The presence of the other witnesses is also very natural when we take into consideration the factum of funeral ceremony of a close relative of theirs taking place a day earlier than the occurrence in a village which was only a mile and half away from the place of occurrence. In so far as the contention about their evidence being not true and inconsistent with the circumstantial and medical evidence is concerned we have considered this aspect as well very carefully and we do not find any inconsistency in the ocular testimony of the four eye witnesses. They have all unanimously stated that they were proceeding on the way and when they reached near the jungle they were confronted by the appellant and the absconding accused Arbab. The appellant challenged the deceased and then both started firing at Allah Bux as a result of which he was injured by shots fired by both of them and died at the spot whereas P.W.3 Wali Muhammad also sustained injuries. In so far as the aforesaid circumstances are concerned all the eye-witnesses are unanimous in toto. There are only very minor variations in their evidence and the same are with regard to the distance from where the assailants had challenged the deceased or from the distance which was between them and the deceased. Actually there is no inconsistency worth the name in the ocular testimony of these witnesses. Their evidence is also not contradicted by any circumstantial evidence. All the eye witnesses have stated they were proceeding towards the jungle from east to west and they were confronted by the assailants who appeared from their right side. There is no other circumstance which belies the ocular testimony. The medical evidence is also not inconsistent with the eye witnesses account, on the contrary it is in support of the latter.
Most of the injuries sustained by the deceased are on his right side and it has also been stated by the eye witnesses that the assailants appeared from their right side. The deceased saw the assailants emerging from the jungle from his right side and his natural impulse was to turn towards the left on seeing the attackers. In such a position naturally he would have received injuries on his right side. It shall thus be seen that the ocular testimony is not only not contradicted and not inconsistent but it is supported and corroborated by the circumstantial and medical evidence. We can also not ignore or by any stretch of imagination exclude from consideration the evidence of P.W.3 Wali Muhammad who was also injured there and then. We cannot, therefore, accept these contentions of Mr. Chishti. An attempt was made by Mr. Chishti to throw a shadow of doubt over the testimony of Wali Muhammad on account of the circumstance that the witness stated that after receiving the injuries he fell unconscious and was examined in the hospital whereas I.O. Had stated that he was examined at the spot. We have given our serious thought to this aspect also but we are of the opinion that this is a very trivial matter. It does not make any difference whether the injured was examined by the I.O. At the spot or in the hospital. The important point for consideration is whether his evidence rings true and his presence is established at the spot at the time of occurrence. From the minute perusal of the testimony of this witness and the fact that he had also received injuries there and then we cannot discard his evidence on the mere fact that there is some contradiction in the point of the place where his statement was recorded under section 161 Cr.P.C. Much stress was laid by Mr. Chishti on the point that Kalu Khan was the only independent witness of the occurrence and he had also been mentioned in the F. I. R. But he was not produced in evidence and the presumption is that had he been brought in the witness box he would not have supported the prosecution case, and in this connection he has relied upon the case of Inamul Haq versus the State 1981 SCMR 152. Although it is a fact that according to the F.I.R. Kalu Khan had seen the occurrence and also it is a fact that he was abandoned by the prosecution on the ground that his statement was to be the same as of P.W. Muhammad Ayub who had been examined, but we are convinced that the other witnesses were present and one of them was also injured and their evidence cannot be excluded from consideration. In such an event we are of the opinion that the abandonment of Kalu Khan has not made any dent in the prosecution story. It was then contended by Mr. Chishti that according to the prosecution story the shots were fired from 8110 paces but the other witnesses who were also in the company of the deceased at the relevant time escaped unhurt and as contended by him that this circumstance excludes the possibility of the presence of these witnesses. We have considered this argument as well but we think that this point is not so strong that it should be given a serious consideration. It generally happens that in a crowd which is exposed to fire-arm shots, some are injured while others escape unhurt. It is also possible that the other witnesses were not in the range of firing resorted to by the assailants. The mere fact that the other witnesses did not sustain any injury is not sufficient by itself to exclude their presence at the spot. It was also contended by the learned counsel for the appellant that it is admitted that the place of occurrence is situated in a jungle and some unknown persons fired at the complainant party from behind the bushes. This contention is also not acceptable for the reason that the assailants had to come out of the bushes to aim at the complainant party. Otherwise they could not have fired accurately at their opponents. It cannot, therefore, be said that the assailants could not be identified. The prosecution is not exceptionable on this ground as well.
7. It was then urged by Mr. Chishti that the occurrence took place at about 9-00 a.m. And the police station is three riles away from the spot but the report was lodged after three hours end this delay in lodging the F.I.R. Was utilized in procuring the attendance of witnesses and fabricating a prosecution story. No doubt the F.I. R was made three hours after the occurrence but it has also to be taken into account that P.W.2 Niaz Muhammad had to go on foot to the police station. It can also not be presumed that he left for the P.S. Immediately after the occurrence. They must have taken some time to collect their senses. There cannot be any appreciable delay when a man had to go on foot and had also to cover a distance of three miles. Even otherwise if there was any delay in lodging the F. I. R. It cannot be said that the time was utilized for making out a prosecution case because the presence of the witnesses at the time of occurrence has been established. We, therefore, do not find any delay in lodging the F. I. R. And we are also of the considered opinion that no time was utilized in making out a false case.
8. It was then urged by the learned counsel for the appellant that the appellant was arrested on 26-1-1985 and the shot gun was recovered on 7-2-1985 from the house which was not occupied by the appellant at the relevant time as he was already under custody at Jacobabad and it was, therefore, doubtful whether the shot gun belonged to the appellant. There is no doubt that the shot gun was recovered at the instance of the appellant from his house. Eight empty shells were recovered from the spot out of which two were found by the Ballistic Expert to have been fired from this shot gun. The mere fact that the recovery of the shot gun has been evidenced by two police officials only will not make the recovery doubtful especially when it has been found that at least two shots were fired from the said gun. It was further contended by Mr. Chishti that according to the prosecution case four shots were fired from this shot gun but only two empties matched with it and the recovery of the shot gun had become doubtful. This is such a trivial contention that it is not worthy of any serious consideration. It would have been a different matter if none of the empties had matched with the recovered shot gun. There could be many explanations for the circumstance that although four shots were fired from this shot gun but only two empties had matched with it. It is possible that other empties may have escaped the notice of the I.O. Or may have become untraceable for some other reason. In the same context it was urged by Mr. Muhammad Aslam Chishti that recovery of the empties was also doubtful because this factum was not mentioned in the inquest report. However, this is also a minor lapse. The non-mention of the recovery of empties in the inquest report is not fatal. We have come across many a case where the factum of recovery of incriminating material is not mentioned in the inquest report.
9. The prosecution case was also challenged by the learned counsel for the appellant on the ground that there was no motive for the appellant to commit the offence and although a motive had been raised but it was not proved. From the prosecution evidence recorded in the case it shall be seen that virtually every eye witness stated that there was a matrimonial dispute between the appellant and the deceased for which the former committed the murder of the latter. This motive has also been mentioned in the F.I. R. During the trial every eye witness adverted to this motive. The denial simpliciter of the existence of this motive by the appellant is immaterial in the circumstances. From the perusal of the prosecution evidence we are convinced that there was a motive for the appellant to commit the murder of Allah Bux and the same had been successfully proved by the witnesses.
10. The learned counsel for the appellant next contended that both the assailants were not available and the record does not show if any proceedings under sections 87 and 88 Cr.P.C. Were carried out. Although this contention is borne out from the record of the prosecution case but this circumstance has nothing to do with the guilt or innocence of the appellant. It is possible that the I.O. Might have come to know that the appellant was already under custody and the I.O. Has in fact stated that when he took over investigation of the case he came to know that the appellant was already in custody at Jacobabad and he formerly arrested him. This circumstance cannot over- shadow the prosecution case in any way.
11. According to the prosecution case the appellant and his absconding co-accused had been charged for committing the murder of Allah Bux and causing injuries to Wali Muhammad in furtherance of their common intention but the trial Judge in his impugned judgment did not advert to this circumstance. Mr. Chishti has urged that the appellant is not guilty of vicarious liability. It is a fact that the appellant was originally charged along with his absconding co-accused for committing murder of Allah Bux and causing injuries to P.W. Wali Muhammad in furtherance of their common intention but the perusal of the impugned judgment will show that the learned trial judge has not adverted to this aspect of the matter. Taking advantage of this situation Mr. Chishti has urged that the appellant is responsible only for his act and injuries which were alleged to have been caused by him to the deceased were not on vital organs and fatal. We are mindful of the fact that the learned trial Judge has not taken into consideration this aspect of the matter and we have very anxiously taken into consideration this aspect but we cannot see eye to eye on this point with the learned counsel for the appellant. The appellant was originally charged not only in his own capacity but also in his vicarious liability. The prosecution case has also all along been that both the appellants had simultaneously fired shots at deceased and P.W.3 Wali Muhammad. The prosecution has successfully proved common intention between both the assailants. It is a fact that the learned trial Judge failed to advert to this aspect in his judgment but the perusal of the judgment will show that he was all along mindful of this aspect of the case. At the best it can be an omission on his part. It is not a fatal illegality in the case. The fact that the learned trial Judge has awarded the capital punishment to the appellant would amply prove that he had taken into consideration the provisions of section 34, P.P.C. The omission of this aspect in the impugned judgment is a mere irregularity and can be cured under section 537 Cr.P.C. The appellant has not suffered any prejudice on this account because the sentence awarded to him clearly proves that the learned trial Judge has taken into consideration the common intention of both the assailants.
The impugned judgment is not exceptionable on this ground as well.
12. It was next contended by Mr. Chishti that the examination of the appellant under section 342 Cr.P.C. Was not proper and proper questions were not asked from him. The perusal of the statement of the appellant recorded under section 342 Cr.P.C. Will show that the appellant was asked questions about the witnesses having attended the funeral ceremony of Mst. Bakhtiar, that the witnesses having left together along with the deceased on the day of occurrence, that the appellant and the absconding accused having fired at the complainant party and committing murder of Allah Bux and causing injuries to Wali Muhammad, that the witnesses having seen him and the absconding accused merging from the bushes and firing at the deceased, that the appellant had a matrimonial dispute with the deceased, that the shot gun having been recovered at his pointation and the empties having been fired from the said shot gun. It shall thus, be seen that all the important circumstances of the case were put to the appellant and his answers have been recorded. He had also volunteered to make statement on oath and in that statement he also deposed that the witnesses had given false evidence against him. We, therefore, fail to see as to what important circumstances of the prosecution case were not put to the appellant. The conviction of the appellant cannot be assailed on this ground.
13. It was lastly contended by the learned counsel for the appellant that the punishment was harsh.
The appellant had committed the murder of Allah Bux in the presence of witnesses after challenging him. There was a motive for the commission of this offence. He committed, a cold- blooded murder after pre-meditation. We do not find any mitigating circumstance to hold that the punishment was harsh.
14. We would, therefore, uphold the conviction and sentence of the appellant and would dismiss this appeal and would answer the murder reference in the affirmative.