GUL MUHAMMAD KHAN, J.-- Murid Ahmad aged 20 years, has brought this appeal against the order of the learned Sessions Judge, Mianwali, who convicted him under section 302, P.P.C. And sentenced him to death, with a fine of Rs.3,000 or in default three years' R.I. The fine if realized shall be paid to the heirs of the deceased as compensation. He has also filed another appeal against his conviction -under the Arms Act, by which he was sentenced to two years' R.I. And a fine of Rs.300 or in default to undergo three months' R.I. The learned Sessions Judge has also sent up a reference under section 374, Cr.P.C. For confirmation of the death sentence awarded by him. This order shall dispose of all the cases referred to above.
2. The occurrence took place at 11-30 a.m. On the Bus-stand in the city of Mianwali. The complainant who is the father of the deceased Ahmad Khan had gone to attend a case, under section 304, P.P.C., in the Court of a Magistrate, in respect of the death of Qasim, a brother of the appellant in which the complainant and his two sons i.e. Ahmad Khan (deceased) and Muhammad Amir and 3 other persons were the accused. After the hearing of the case, Ahmad Khan (deceased) along with Ahmad son of Mohammad (P.W.7) and Shamir son of Mohammad, resident of Waanbachran left together for the Bus-stand in order to catch a bus to go home. The complainant and others stayed back in the Court of Sessions Judge to see somebody. Soon after the complainant reached the Bus-stand to find that his son Ahmad Khan had been murdered by the appellant with a .12 bore pistol. The account given to him by his son's companions was that the first shot hit the deceased on the upper part of his back. On receiving that injury, Ahmad Khan sat down when a-second shot was fired. It hit a little lower than the first shot. The assailant then ran along with his pistol but was got by two constables Mohammad Aslam (P.W.8) and another. Two other persons namely, Ghulam Qadir and Ahmad Khan were also present near the appellant when he committed the offence. The motive stated was that the appellant murdered Ahmad Khan to avenge the death of his brother Qasim. The occurrence was seen by Ahmad (P.W.7) and Shamir, who were accompanying the deceased.
3. The F.I.R. Was lodged by Ghulam Hussain son of Sultan, father of the deceased at 12-00 noon on 26th March, 1979 at the police station which is 1-1/2 miles towards south of the place of occurrence in accord with what he had been told by the two companions of his deceased son.
4. On that very day, Muhammad Aslam F.C. (P.W. 8) and Ghulam Qadir F.C. Produced Murid Ahmad accused before Muhammad Sadiq, S.H.O. (P.W.9) along with the pistol (Ex.P.6) and one crime empty (P.7) which was still in the chamber and 2 live cartridges (P.8 and P.9) at the police station.
They were taken into possession vide Ex.P.G. He then arrested the accused and started investigation.
5. Dr. Muhammad Akram Khan (P.W.1) Medical Officer, District Headquarters Hospital, Mianwali, performed the post-mortem examination on the body of Ahmad Khan deceased, aged 30/32 years and found the following injuries:-
(1) Nine fire-arm wounds of entry each 1/4" x 1/4" in an area of 1-3/4" and 1-1/2" on the back between the two shoulder blades, 2" below the prominence of second cervical vertebra.
(2) A fire-arm wound of entry 1-1/2" x 1-1/2" with blackening on the right side of back, 2-3/4" from the mid-line 1" below right scapula.
On opening the thorax, right back chest wall was perforated, 1st rib under injury No. 1, 4th under injury No. 2 were fractured, pleura was perforated under both injuries, right lung was perforated and left lung was smashed.
One pellet was found lying under the skin between left nipple and sternum. One pellet was found under the skin, just above left side of sternum. One card-board and Namda and two pellets were found on the right side of the vertebral column of the thorax and two pellets were found in the left lung.
In his opinion, both the injuries were ante-mortem, by a fire-arm and dangerous to life. They were sufficient to cause death in the ordinary course of nature collectively.
6. In his cross-examination, the doctor stated that it was possible that the assailant was at a little higher level than the victim. There was also possibility that the victim was sitting and the assailant standing at the time of shot of injury No.2. Injury No. 1 was straight, from the point of striking so the assailant and the victim were at the same level. The shots, in his opinion, had been fired from a distance of 4 to 8 feet and there was no possibility that the two injuries were caused by two different types of weapons. The weapon used was. 12 bore.
7. Before the trial Court, the prosecution supported its case by producing Ahmad (P.W.7) who had witnessed the occurrence, Muhammad Aslam F.C. (P.W.8) who had apprehended the appellant while he was fleeing after committing the offence, Muhammad Sadiq S.H.O. (P.W.9) and Muhammad Ashraf S.H.O., who investigated the case. The appellant in his statement under section 342, Cr.P.C. Admitted that his brother Qasim had been murdered a year before the occurrence and Ghulam Hussain complainant, his two sons Muhammad Amir and Ahmad Khan (deceased) along with three others had been challaned in that case which was still being tried at the time of occurrence. He, however, denied the murderous assault on Ahmad Khan and also denied that he was caught hold of by Muhammad Aslam (P.W.8) and Ghulam Qadir, constables, along with the pistol, while fleeing after the occurrence. He stated that he had been falsely involved in the case due to enmity and that he was in fact apprehended from his village Waanbhachran and brought to Mianwali. The appellant produced no defence.
8. The learned Sessions Judge believed the prosecution version beyond any shadow of doubt. The defence had challenged the statement of Ahmad (P.W.7), the only eye-witness of the occurrence, on the ground that he being admittedly, a sympathiser of complainant party, as he came with them to attend the criminal case, was also their relation. This relationship was admitted by the complainant to say that his niece Mst. Sardaran was married to Haji Ahmad Yar but showed ignorance whether this Ahmad Yar was a paternal-aunt's son of Ahmad P.W. Ahmad P.W. However, admitted that relationship. The learned Sessions Judge, however, concluded from all this that the presence of Ahmad P.W. Both as a sympathiser and a relation in the Court as well as at the Bus- stand so as to go back home would be natural and so he was a natural and competent witness. He found corroboration of his statement from that of Muhammad Aslam, constable and Muhammad Sadiq S.H.O. The constable had stated that he along with Ghulam Qadir, Constable was present at hotel outside the Bus-stand Mianwali, when they heard the fire-shots, alarm of the people that the murderer was running away and they proceeded to capture him.
9. The learned counsel for the appellant has contested the conviction of the appellant mainly on the ground that Ahmad (P.W.7) being admittedly a relation and a sympathiser was an interested witness and, therefore, should not have been believed unless there was a strong corroboration coming from an independent and unimpeachable source. He further stated that as the place of occurrence was a Bus-stand and as many other persons from the village of the complainant are stated to be there, there was no paucity of an independent witness and the fact that none was produced, should adveresly affect the pr,);ecution case. He also challenged the prosecution version about the apprehension of the appellant at the Bus-stand by the two constables. He referred in this regard to Ex.D.E. a copy of the daily diary report, wherein no mention of the capture of the appellant-assailant is given. The learned counsel also referred to the statement of Ghulam Hussain complainant (P.W. 6) who stated that nothing was recovered or taken into possession by the police in his presence during the investigation. He also referred to the omission in the statement of complainant (P.W.6), that the appellant had been brought in his presence to the police station.
10. The precise contention of the learned counsel is that according to P.W.7 the appellant was not known to him. The complainant himself was not present at the spot at the time of occurrence. He came to know of the murder of his son only after he reached the Bus-stand. He, thereafter, went to the police station to lodge a report and mentioned the name of the appellant as the assailant. The question raised was that if the assailant had actually been apprehended at the spot as stated, his particulars could have been known to the complainant, only if he was brought back to the place of occurrence, in his presence and that of P.W.7 so that the two would know his name and particulars.
It is argued that as P.W. 6 did not state in his deposition that the appellant had been brought at the spot and as he had not mentioned his presence at the police station either while lie made the F.I.R., the entire prosecution version is belied. The learned counsel also referred in this regard to the absence of the production of the revolver, the crime empty and the live cartridges which were recovered from the appellant.
11. It is to be noted that the occurrence took place at 11-30 a.m.-The report was lodged at 12-00 noon at police station which is about 1-1/2 miles away. There was obviously no delay and no time to fabricate an incorrect version. The complainant also gave the name of the assailant and stated specifically that he had been apprehended and brought by the two constables. That was the information he got from Ahmad P.W. And Shamir Ahmad P.W.7,-also stated that he and Shamir told Ghulam Hussain how the occurrence had taken place. He also deposed that the appellant had also been caught hold of by the two constables. That would clearly mean that Ghulam Hussain had himself seen the culprit and knew the details of the occurrence before he went to lodge his report. Thus, the mere fact that the appellant had not been brought to the police station in his presence or otherwise will make no difference whatever.
12. If we accept the contention of the learned counsel that the appellant had not been apprehended at the spot and had run away, then firstly the father of the deceased would be taking a grave risk and the S.H.O. The two constables would also be risking their services. It would have been possible that the appellant, who, according to the learned counsel was not apprehended at the spot, had absconded and that would have created a fatal situation to the case which could not have been explained. In any case, it is too far-fetched. In this view of the matter, we are not persuaded to agree with the learned counsel that the appellant was not apprehended at the spot.
It is true that the pistol was neither sealed nor sent to the Forensic Science Laboratory but that would not advance the case of the defence because, it was a daylight occurrence, the appellant had been seen firing at the deceased by Ahmad P.W. And he was apprehended at the spot, by the two constables.
13. The ocular version given by P.W.7 is also corroborated by the type of the injuries caused.
According to him the first shot was fired by the appellant while he and the victim were standing.
The doctor (P.W.1) supported this position to say that one of the injuries was caused while the assailant and the victim were at the same level. As to the second injury, the P.W. 7 stated that the second shot was fired after the victim sat down on receiving the first shot. The fact that the fire had been shot from a very close range as deposed, is supported by the presence of card-board and `Namda' in the wound. The doctor also supported that the second injury was caused when the victim was at a lower level and the assailant at a higher. In this view of the matter, we do not find any infirmity in the case put forth by the prosecution.
14. It is further noted that the deceased was a co-accused, in the murder of Qasim, the brother of the appellant. The hearing of that case was fixed before the Magistrate also on the fateful day. The presence of all the parties in Mianwali is thus natural. The appellant also had a strong motive to kill.
On the other hand, there could be no reason for the prosecution to substitute the appellant for the real culprit who would go scot-free.
15. The learned counsel then prayed that the extreme penalty of death is not warranted in this case.
He pointed out that there was a mitigating circumstance inasmuch as that the appellant was over-powered by the impulse of avenging the death of his brother. The rule to be deducted from a number of judgments referred to by the learned counsel is that while private revenge cannot be regarded as a mitigating circumstance yet the Court, in its discretion, may award the lesser penalty, if the offender is found from the record before it, to have been compelled, according to the tradition of the family or the society in which he was brought up, to take revenge or to act, out of sense of honour and self-respect. The case of A jun Shah v. State PLD 1967 SC 185, Mehr Mohammad v. State 1970 SCM R 688 and Ali Khan v. State PLD 1980 SC 109 are relied on.
16. We have nothing on record, to show that either a tradition of taking revenge prevails in the family of the appellant or that, in the circumstances of the case, the appellant was obsessed, out of sense of honour or tradition to take revenge of the death of his brother, from the deceased who was facing trial for it.
For the reasons given above, we find no force in the appeals which are dismissed. The reference sent to us under section 374, Cr.P.C. By the Additional Sessions Judge, to confirm death awarded, is allowed and sentence of death is hereby confirmed.