' RASHID AZIZ KHAN, J.-- Sohail Azam son of Muhammad Azam (23) along with his father Muhammad Azam and uncle Muhammad Iqbal was sent up for trial under section 302, P.P.C. For the murder of Raheel Anjum (consanguine brother of Sohail Azam) by Police Station Koh Murree, District Rawalpindi. Muhammad Azam died during the trial. Muhammad Iqbal was acquitted under section 265-K, Cr.P.C. Sohail Azam was, however, found guilty and sentenced to death under section 302, P.P.C. And a fine of Rs,5,000 or in default undergo R.I. For one year by the Additional Sessions Judge, Lahore, vide his judgment, dated 14-2-1987. The fine, if recovered, the whole of it shall be paid to the legal heirs of the deceased as compensation. Sohail Azam has appealed to this Court. The case is also before us for the confirmation of death sentence.
2. The prosecution story, in brief, as given by Mst. Naz Anjum, wife of the deceased, is to the effect that she got married to Raheel Anjum about 3-1/4 years back. She had no issue from the said wedlock. Her husband's mother Dr. Nasim remarried one Azam Butt and from that wedlock two sons namely, Sohail Azam and Races Azam were born. Sohail Azam is elder. There was a dispute regarding property between said Sohail Azam and the first informant's husband Raheel Anjum.
Later on, the dispute was patched up but they were not on speaking terms. Sohail Azam used to live with his mother, lady doctor Nasim, whereas the first informant and her husband used to live in an adjoining house. First informant along with her husband Raheel Anjum came to Murree on 26th of June, 1979 and started living in the house of Lady Doctor Nasim. On 22-7-1979 at about 7 a.m.
When the first informant and her husband Raheel Anjum were in their bedroom, Sohail Azam, her husband's stepbrother, came and asked for tea. Mst. Rafiqa, a nurse, gave him tea; after having tea, he sat on the dining table which was in front of their bedroom, and started abusing her husband. The commotion attracted Rehmat, Mst. Rafiqa, Mst. Alam Bibi, Mst. Rehana, Aura gzeb and Javed. At about 9 a.m. Raheel Anjum came out of his bedroom. In the presence of all the eye- witnesses, Sohail Azam took out a revolver and fired hitting Raheel Anjum on the left side of his heart and the second shot hit on his head, whereupon he fell down. The first informant ran downstairs and entered into a room and bolted it. Said Sohail Azam tried to break open the door.
The commotion attracted the people living around, whereupon Sohail Azam ran away. Raheel Anjum died at the spot because of the injuries. The motive for the commission of the offence is that Raheel Anjum and Sohail Azam are step brothers and a dispute regarding property was going on between them. Sohai Azam thought that in the presence of Raheel Anjum he would not get an property, therefore, he killed him.
3. F.I.R. Exh.P.C. Was lodged by Mst. Naz Anjum, wife of Raheel Anjum on 22-7-1979 at 10 a.m. It was recorded by Arif Hussain, A.S.I. Police Post Sunm Bank, Murree. Formal F.I.R. Exh.P.C./1 was recorded by Fateh Muhammad Muharrir/A.S.I., P.S. Murree on the same day at 10-30 a.m. The distance between the place of occurrence and the police station is 2 miles.
' Arif Hussain A.S.I., after recording the statement Exh.P.C., prepared the injury statement Exh.P.L. And inquest report Exh.P.M. Of Raheel Anjum deceased. Thereafter, he sent the dead body to the mortuary. Mst. Naz Anjum produced articles P.9 to P.11 of Raheel Anjum which were secured vide memo. Exh.P.H. Two crime empties P.8/1-2 were secured from the spot vide memo. Exh.P.G. Blood- stained earth was taken into possession vide memo. Exh.P.F. He recorded the statements of the witnesses under section 161, Cr.P.C. And thereafter he also got their statements recorded by a Magistrate under section 164, Cr.P.C. On the same day. He arrested Sohail Azam accused on 22-7- 1979 and took pistol P.6 with 4 live cartridges P.7/1-4 into possession vide memo. Exh.P.D. On 25-7- 1979 he got prepared the site plan Exh.P.E. And Exh.P.E/1 from the draftsman, gave his notes in red ink thereunder.
' The case was also partly investigated by Muhammad Mushtaq Khan, Inspector Crimes Branch, Lahore, who recorded the statements of some witnesses on the basis of which he prepared the challan against Sohail Azam, Iqbal Butt and Azam Butt.
4. Dr. Abdul Majeed, Medical Officer, Civil Hospital, Murree, conducted the post-mortem examination on the dead body of Raheel Anjum on 22-7-1979. On examination he found the following injuries:-
(1) Semi-circular lacerated wound on the left side of scalp 2-1/2" above and slightly behind the left ear. The wound was 1" x 1/2" bone deep.
(2) Circular wound of about half inch diameter on the left side of the body 6" away from the midline and 4" above the iliac bone about 7" below the axilla, the surrounding tissues of the wound were burnt and blackish in color, the margins were inverted.
(3) Blackish lacerated wound semi-circular on the margin of left eye, close to the root of nose, the wound was about 1/2" long.
(4) Some blackish discoloration of the tissues of the lower eye-lid of left eye. The blackish tissues of the lower eye-lid were due to injury No,3 due to the burning of the tissues.
' In the opinion of the doctor, the death had occurred due to shock and hemorrhage because of injury No,2 caused by fire-arm. This injury was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. Injuries Nos. 2 and 3 were with fire-arm and injuries Nos. 1 and 4 were with blunt weapon.
5. The prosecution in support of its case has produced 18 witnesses in all.
' P.W.1 Dr. Abdul Majeed had conducted the post-mortem examination. Muhammad Hanif, F.C.
P.W.3, took the parcels of .32 bore pistol and 2 crime empties to the concerned office for examination on 30-7-1979. Fateh Muhammad, A.S.I. P.W.4, recorded the formal F.I.R. Sher Muhammad, Constable No,1135, P.W.5, arrested Sohail Azam appellant on 22-7-1979 at 5-30 p.m.
Muhammad Akram, Draftsman, P.W.6, prepared the site plan Exh.P.E. And Exh.P.E/P of the spot. The eye-witness account has been furnished by Mst. Naz Anjum, P.W.7, wife of the deceased, Aurangzeb, P.W.8, son of the first informant, and Javed Akhtar, P.W.9, son of the first informant, and Mst. Rehana, P.W.10. The case was investigated by Arif Hussain A.S.I. P.W.11 and Muhammad Mushtaq Khan, Inspector Crimes Branch, P.W.18. The rest of the witnesses are of formal nature, therefore, need not be discussed.
6. At the conclusion of the trial, the appellant was examined under section 342, Cr.P.C. Without oath, wherein he has denied the prosecution allegations and has submitted that the first informant Mst.
Naz Anjum had married his consanguine brother with a view to grab the property of his mother Dr. Nasim. He has further stated that he had no motive to kill his brother because his mother Dr. Nasim had made a will on 5-12-1970, whereby she gave her entire property to the appellant, his brother Raees Ahmad and their father. The said will (Exh.D.E.) was duly registered. He has further stated that Mst. Naz Anjum got his brother murdered and has falsely involved him. He also produced 6 witnesses in his defence. The appellant, however, did not appear in his own defence on oath under section 340, Cr.P.C. He produced 6 witnesses in defence.
' The learned trial Court while convicting the appellant has relied upon the ocular evidence corroborated by medical evidence, motive and the recovery of pistol and two crime empties which had matched as well.
7. It is contended by learned counsel for the appellant that the case is extremely doubtful. Submits that no reliance can be placed on the ocular testimony as it consists of interested witnesses.
Submits that there is a contradiction between the medical evidence and the eye-witness account.
Urges that the motive as set up by the prosecution has not been proved at all. Contends that the recovery of pistol and of crime empties is highly doubtful, therefore, may not be relied upon. The submissions of the learned counsel for the appellant have been controverted by learned counsel for the State.
8. We have heard the learned counsel and gone through the record with their assistance. As far as the time and place of occurrence are concerned, they have not been challenged by the defence.
Similarly it has not been challenged that the deceased was done to death by fire-arm. The prosecution in this respect has relied upon the statements of Mst. Naz Anjum, Aurangzeb, Javed Akhtar and Mst. Rehana, P.Ws.7, 8, 9 and 10, respectively. In the absence of any challenge they are relied upon, therefore, it is held that the deceased Raheel Anjum was done to death on 22-7-1979 at 9 a.m. In the house of Lady Doctor Nasim, in Murree hills.
' The ocular account of the occurrence has been furnished by Mst. Naz Anjum, her two sons namely, Aurangzeb and Javed Akhtar, and Mst. Rehana. Mst. Naz Anjum has given a detailed account of the occurrence and has corroborated the F.I.R. On all material aspects. She was cross-examined at length but the defense has not been able to bring anything on the record which could suggest that she was not present at the spot or had any motive to falsely involve the appellant. The suggestion given to this witness that she, in order to grab the property, has killed her husband cannot be relied upon because it is in evidence that the property was still in the name of her mother-in-law Dr. Nasim. In such circumstances on the death of her husband she becomes disentitled to the property. She is a natural witness because, being the wife of Raheel Anjum deceased, accompanied him to Murree and the occurrence took place inside the house where they were staying. Therefore, she is a natural witness who was present inside the house at the time of occurrence. Aurangzeb, aged 10 years, and Javed Akhtar, aged 12 years, are sons of Mst. Naz Anjum from her previous husband. Both of them have given detailed account of the occurrence. They were also put to the test of cross-examination which they withstood convincingly. The only suggestion given to them is that they reached Murree on the day of incident at 10 a.m. Which has been denied by them. The argument of the learned counsel for the appellant that no reliance can be placed on the statements of these witnesses because they have discredited themselves by describing Mst. Naz Anjum as their auntie and not mother. We have considered this submission of the learned counsel and hold that it is not a contradiction at all. The explanation given by both the witnesses is convincing as they were asked by Dr. Nasim, mother of the appellant, to call their mother auntie and they accordingly started doing that. In any case whether they called their mother 'auntie' or not would not change the fact that they, at the relevant time, were present at the spot with their mother. They are natural witnesses, being minors had to accompany their mother. In these circumstances, it is held that the statements of Aurangzeb and Javed Akhtar inspire confidence and can safely be relied upon. Mst. Rehana P.W.10 has stated that on the day of incident she was staying in the house of Dr. Nasim and her room was adjacent to the room of Raheel Anjum. She heard the appellant abusing Raheel Anjum and on hearing she came out in the dining room. Within her presence Raheel Anjum came out of his room, whereupon the appellant fired with pistol hitting Raheel on the heart and the second shot hit him on the head, whereupon he fell down and died. She has been cross-examined at length but the defence has not been able to bring on record anything to suggest that she is a tutored witness or she was not present at the spot. As a matter of fact, she has not been given any suggestion which could indicate that she had a motive to falsely involve the appellant. In these circumstances, we hold that this witness can safely be relied upon.
' All the eye-witnesses discussed above, also made statements under section 164, Cr.P.C. Before a Magistrate on the same day. This fact would show that they were present in Murree on the day of incident. The necessity to have their statements recorded under section 164, Cr.P.C. Must have been felt by the Investigating Officer because of the close relationship of the witnesses with the appellant. For what has been discussed above, we hold that the statements of the eye-witnesses inspire confidence and can be relied upon.
' The next contention of the learned counsel for the appellants that the eye-witnesses have been belied by the medical evidence as the witnesses have stated that the deceased was fired at from a distance of about 7 feet. According to the medical evidence, the injury No,2 was burnt and blackish in color, therefore, it was fired at from a close range. We have considered this aspect of the case minutely. The statement of the eye-witnesses is that the appellant was sitting at the dining table and when the deceased entered the room he fired with his pistol. It is but natural that the appellant must have got up and then fired. In these circumstances, even if he had taken one or two steps towards the deceased, it is possible that any of the eye-witnesses could have noticed the same. A witness is not expected to notice such like details in such a situation. The distance given by the witnesses is guesswo rk. It can never be exact if measured in terms of feet because such minute details are not expected to be noticed. The appellant must have fired with the pistol while stretching his arm and this aspect explains the blackening. Similarly, the argument of the learned counsel that there are two injuries with blunt weapon not explained by the prosecution is also without force. According to the post-mortem report, injury No,4 was the result of injury No,3 which was caused with a fire-arm. Therefore, injury No,4 is not an independent injury. Similarly, injury No,1 has been described to have been caused with a blunt weapon but the doctor was not cross-examined whether it could have been with a fire-arm or not. In these circumstances, no adverse inference can be drawn.
' The submission of the learned counsel for the appellant that the motive, as set up by the prosecution, has not been proved requires some consideration. It is in evidence that Lady Dr. Nasim had drawn a Will Exh.D.E. In the year 1970, ' whereby she had given her entire property to the appellant, his younger brother and their father. In these circumstances, the motive for the commission of the murder being not available has some force. It will be discussed at a later stage.
' The defence examined 6 D.Ws. But none of them could possibly advance the case of the appellant. D.W. 1 Mrs. Rodgers, Principal Saint Mary, Magdalane School, Lahore Cantt, has simply stated that according to her register, Javed Akhtar and Aurangzeb, P.Ws., study in the school and their father is mentioned as Muhammad Shafi, D.W. 2 Ashiq Hussain Butt. Magistrate 1st Class has stated that on 22-7-1979 he recorded the statements of the eye-witnesses under section 164, Cr.P.C. Mst. Alam Bibi has appeared as D.W.3, though she was cited in the calendar of prosecution witnesses but was given up as having been won over. She has stated that on the day of incident at 9 a.m., she heard firing and when came to the room, found Raheel Anjum had expired. She has further stated that she did not see anybody firing at the deceased. In these circumstances, no reliance on her statement can be placed because she herself does not claim to be an eye-witness.
' Lady Dr. S.B. Nasim, mother of the appellant, has appeared as D.W.4. She does not claim to be an eye-witness of the occurrence. As a matter of fact, she has stated that on the day of incident she was in Lahore. She has further stated that she executed a will on 6-12-1977 in which she did not leave any property to Raheel Anjum. Since she is not an eye-witness of the occurrence, therefore, has not been able to advance the case of the appellant in any manner. Bashir Ahmad, D.W.5, Secretary Union Committe Ward No,32, Ghazi Abad, Lahore, has stated that according to his register. Mst. Nargus was divorced by Raees Azam on 11-3-1981. The divoce was given with the mutual consent of the parties. Said Mst. Nargus is younger sister of Mst. Naz Anjum, PW, who was married to Raees Azam younger brother of the appellant. The divorce took place after the murder, therefore, this DW cannot throw any light with regard to the incident. Parvaiz Ahmad, D.W.6, has simply stated that he married Mst. Naz, P.W., in 1971. In cross-examination, he has stated that he did divorce Mst. Naz but does not remember the date. This witness, for the purposes of just decision of this case is absolutely irrelevant. For what has been discussed above, it is held that the defence witnesses do not advance the case of the appellant in any manner whatsoever. None of them has claimed to have witnessed the occurrence.
In the light of what has been discussed above, we hold that the statement of the eye-witnesses is confidence inspiring and can be relied upon. As far as D quantum of sentence is concerned, we agree with the learned counsel for the appellant that the motive in the instant case has not been proved, therefore, it will not be a case for awarding capital punishment. The origin of fight is shrouded in mystery, and in these circumstances sentence of life imprisonment would adequately meet the ends of justice.
' Therefore, we dismiss the appeal, but convert the sentence of death to imprisonment for life with fine of Rs,10,000 or in default one year R.I. The appellant shall also pay Rs,10.000 as compensation to the legal heirs of the deceased, or in default undergo R.I. For one year. Death sentence is not confirmed.