' FALAK SHER, J.--- Appellant Ali Sher (31) along with Ins younger brother Muhammad Nawaz (27) and two others namely Sarfraz and Muhammad Nawaz sons of Bakhsha were tried for the murder of Zulfiqar (28) and murderous assault on the latter's mother Mst. Karam Bhari, by Learned P Additional Sessions Judge, Sheikhupura, who, vide judgment dated 25-8-1986 acquitting all the accused persons on the second count, convicted the appellant on the capital charge under section 302, P.P.C. And sentenced to death with a fine of Rs,2,000 in default to serve 2 months' R.I., together with compensation of Rs,5,000 to the legal heirs of the deceased or in default to serve another term of 5 months' R.I. The matter of confirmation of death sentence has been referred vide Murder Reference No,232 of 1986 while the appellant has impugned his conviction and sentence by virtue of Criminal Appeal No,577 of 1986 which are being disposed of hereinundcr.
2. Mst. Karam Bhari P.W.7 aged 60/62 years mother of Zulfiqar deceased on 29-9-1984 at 4 p.m.
Lodged F.I.R. Exh.P.E. At Police Station Sayedwala, District Sheikhupura, 9 miles from the place of occurrence viz., village Pindi Chari, recorded by Nazir Ahmad S.I., Additional S.H.O. P.W.11 alleging that while the complainant and her deceased son were engaged in cutting Swang crop, the appellant (.12 bore gun) alongwith his brother Muhammad Nawaz (pistol), Sarfraz alias Sharfa gun) and the latter's brother Muhammad Nawaz (pistol) mounted on three mares appeared on the scene; on the exhortation of his brother, the appellant fired gun shot at the deceased, as a consequence whereof he collapsed on the ground, whereafter the assailants causing ineffective firing at the complainant and the deceased, attracting Muhammad Yousaf P.W.8 and Allah Ditta (given up P.W.) to the scene, disappeared. As to motive it was alleged that about a year prior to the incident the appellant and others had lifted certain cattle heads of the complainant recovery whereof was sought through Panchayat.
3. Nazir Ahmad P.W.11 after registration of the case proceeded to the hospital whereupon learning that the deceased had passed away prepared injury statement Exh.P.L., inquest report Exh.P.M. And despatched the dead body to the mortuary through Rashid Ahmad F.C. P.W.1; on the next day i,e, 30-9-1984 secured into possession blood-stained earth from the spot vide memo. Exh.P.F., last worn clothes of the deceased shirt P.1, loin cloth P.2 and Saafa P.3 vide memo. Exh.P.A. And a sealed phial containing card wad vide memo. Exh.P.B., tendered by Rashid Ahmad F.C. P.W.1; on 12-10-1984 got prepared site plan Exh.P.C. From Muhammad Riaz, Patwari P.W.4; effected arrest of the appellant on 15-10-1984, who on 20-10-1984 led to the recovery of single barrel gun P.4 from his house which was taken into possession vide memo. Exh.P.G. Attested by Haji Muhammad Hussain P.W.9 and Abdul Aziz (given up).
4. Dr. Farooq Aslam P.W.6 at 7-30 a.m. On 30--9-1984 conducted autopsy on the dead body, identified by Mulla given up P.W. And vide post-mortem report Exh.P.D., sketch whereof is Exh.P.D./1 found the following:--
(1) Lacerated punched in wound of entry 5 c.m. x 4-1/2 c.m. x bone deep on fronto medials sides of the right thigh at upper part.
(2) Six punched out wound of exit with a diameter 2 c.m. x 1-1/2 c.m. On back and upper part of right thigh; ' on dissection, femoral artery completely damaged under injury No,1; veins and muscles cut making its way out at back of the right thigh; one card wad recovered from the wound; whereas injury No,2 was just the exit wound; stomach contained undigested food; large intestine contained faecal matter; lungs, heart, liver spleen and kidneys deeply pale; death opined to have been caused due to severe shock and hemorrhage by injury No,1 having been caused by fire-arm causing destruction of major blood vessels alongwith thigh bone; was ante-mortem and sufficient to cause death in the ordinary course of nature; probable duration between the injury and death was 6 hours while between death and post-mortem about 12 hours. Responding questions he opined that injury to the deceased was caused from a lower pedestal, it could not have been caused by a horse mounted assailant, with the deceased standing on the ground, and, that distance between the deceased and end of the muzzle was about two feet.
5. At the trial the complainant reiterating the prosecution story explained that the appellant and his brother were on one mare hack while the remaining two accused were riding separate mares, the appellant fired the shot after demounting from the mare; she proceeded to the police station in the company of Muhammad Yousaf P.W.8 after dispatching the deceased in injured condition to Nankana Sahib Hospital. In cross-examination she admitted that two years prior to the occurrence case under section 326, P.P.C. Was registered against the appelfant, his brother Muhammad Nawaz, the acquitted accused and others for having caused injuries to the acquitted accused's uncle and denied the suggestion of their being on inimical terms inter se; that the lifted cattle were a mare, a buffalo with a young one, and two sheep, which was not reported to the police; however, three Panchayats were convened; her residence is at a distance of two squares from the land where the occurrence took place which she as well as the deceased used to visit frequently; admitting that other persons including Sikandar and Muhammad Amir were then working in their fields, pleaded ignorance as to whether their statements were recorded by the police or not; however, vehemently controverted the suggestion that the latter was dropped out since he did not support their version; they went to the place of occurrence after breakfast and in between they did not take any meals; out of 4 Kanals of Swang crop they had cut three which was lying on the spot alongwith the sickle; when the police arrived the cut Swang crop was lying on the spot but the sickles were missing; that the deceased was standing by her side where the appellant fired at him from a distance of about 5 feet; that no fire was shot prior to the demounting; the appellant did not fire second time nor the weapon was reloaded; she escaped hurt since she lie down on the ground; Yousaf P.W.8 and Allah Ditta (given up) had come to the spot since it was their turn to irrigate lands; a bed was fetched from `Dhari' of Muhammad Amir; en route to the hospital she accompanied the injured up to Sayedwala from where after shifting him into the Lorry she proceeded to the police station on foot, situated at a distance of 9 miles, where she reached before sunset, volunteered that no quick transport could he procured from the village.
6. Muhammad Yousaf P.W.8 testifying to the same effect and admitting the relationship viz., his sister is married to Muhammad Nawaz the acquitted accused, whose sister in return is married to his maternal-uncle; in cross-examination affirming that it was his turn to irrigate succeeding the appellants, from Government tube-well from 6 p.m. On Friday to 6 a.m. On Saturday, stated that his statement was recorded for the first time on the next day.
7. Shaman P.W.10 admitting his relationship with both the parties vouched the theft of cattleheads and the factum of holding Panchayats wherein he also participated. Haji Muhammad Hussain P.W.9 deposed to the recovery of gun P.4 together with Nazir Ahrnad P.W.11 who, testifying to the investigation, in cross-examination stated that the place of occurrence is situated at a distance of 9-1/2 miles from the police station where the complainant arrived at 4 p.m.; subsequently he left for Civil Hospital where he reached at 7/7-30 p.m. By which time the deceased had already breathed his last; vehemently denying the suggestion of having recorded the F.I.R. After preliminary investigation, stated that Swang is also known as Harwan which was not taken into possession nor the sickles; during investigation he did not learn of Sikandar and Amir having witnessed the occurrence, nor tracks of horses' steps were noticed near the place of occurrence and, volunteered, that since the place was pucca, therefore, the track was not followed.
8. Rashid Ahmad F.C. P.W.1 deposing to the escorting of the dead body and entrustment of the last- worn clothes of the deceased and a sealed phial, stated that the dead body was handed over to him in village Pindi Chari at 5-30/6 p.m. And on the latter count he was corroborated by Muhammad Sher P.W.3; positive report of the Chemical Examiner Exh.P.Q. And that of the Serologist Exh.P.R. Qua the blood-stained earth and that of the Ballistic Expert Exh.P.E. Vouching the gun P.4 to be in working condition were tendered in evidence by the Public Prosecutor while rest of the evidence was of formal nature, whereas the appellant in his statement under section 342, Cr.P.C.
Denying the allegation pleaded false involvement due to enmity.
9. Learned trial Court on the basis of the foregoing evidence pronounced the impugned judgment which has been assailed by the learned counsel for the appellant by contending that both the eye- witnesses being close relation of the deceased are interested and have deposed out of enmity; it is an witnessed occurrence for the reason that it is an unnatural conduct for a mother not to accompany her dying son to hospital; that neither any bundle of Swang nor sickle was secured into possession by the Investigating Officer, to the contrary Patwari P.W.4 has categorically deposed that according to Khasra Girdawari, Swank was not sown in the field, rather Shaftal was shown to be the last cultivated crop though roots of some cultivation were present in the land in question ocular testimony stands controverted by the medical evidence of the seat of the injuries, for which improvements were made at the trial viz. Causing fire after demounting from the horse, and as to the stomach contents; no independent witness from the locality including Sikandar and Amir, whose presence has been admitted, were examined; not only the motive set up by the prosecution is too weak but also neither any case was registered in this behalf nor even the Panchayat's Sarpanches were produced in evidence; that recovery of gun P.4 is of no avail in the absence of any matching crime empty; that in view of the solitary injury intent to murder is lacking; while learned counsel appearing on behalf of the State has supported the judgment.
10. We are not persuaded by the contentions urged by the learned counsel for the appellant having minutely gone through the evidence on the record, and are convinced that presence of both the eye-witnesses on the spot at the time of occurrence is natural and has been convincingly explained. According to the complainant the place of occurrence is situated at an arm's length from her place of abode i,e, 2 squares, which she has been frequently visiting and at the time of occurrence her engagement at the site viz. Cutting of the crop in the ordinary course of husbandry is quite natural. Likewise, Yousaf P.W.8 was present to irrigate his lands within close proximity to the spot as it was his turn which remained uncontroverted, and in the context of things, the incident was promptly reported at the police station after covering 9/9-1/2 miles on foot, initially under section 307, P.P.C. Which charge was subsequently amended the same night. The theory advanced by the learned counsel for the appellant, of the deceased having expired on the spot and not in the hospital stands belied by the fact that the inquest report has been prepared in the hospital to which no exception could be taken. Non-securing of a bundle of Swank or the sickle is insignificant in the attending circumstances and noting of their presence in the inspection note Exh.P.D.
Adverting to the motive, it suffices to mention that it is not always the governing factor to determine guilt or otherwise of an accused person but in the instant case it stands proved through the testimony of Shaman P.W.10, who is equally related to the parties and non-reporting thereof to the police is not an uncommon event in the rural set up.
' Regarding the alleged improvements and contradictions as to seating arrangements of 4 assailants and demounting of the appellant before firing of the gun, we are of the view that strict senso these cannot be termed as contradictions or improvements rather are explanatory in their juridical classification.
' Similarly the stomach contents do not further the appellant's case because of the fact that it depends on the quality of food-stuff having been consumed by the deceased at breakfast time, since he was to undertake strenuous exercise, therefore, naturally the intake must have been heavy, furthermore according to the complainant, the deceased did not take regular meal after the breakfast, but there is nothing in evidence to show that he did not munch anything e.g. Ranwan, which he was harvesting.
' Regarding location of the wound of exit it may be observed that the fire was shot from fairly close range, card wad got stuck within the body after striking against the femur bone whereafter the pellet got deflected which is a natural phenomena; consequently, no advantage could be reaped out of that.
' The weapon of offence has been found to be in working conditon, recovery whereof has been witnessed through an equally independent witness i,e, Haji Muhammad Hussain P:W.9 who has no motive against the appellant for falsely deposing against him.
11. It is a broad daylight occurrence, report whereof was lodged fairly promptly by the two eye- witnesses, who though admittedly are closely related to the deceased but at the same time equally admittedly save for the motive occurrence, had no enmity with the appellant; consequently had no motive to falsely implicate him, whose testimony is confidence inspiring, corroboration whereto is lent.By the medical evidence not only as to seat of injury, weapon of offence as well as the timing viz., according to the doctor the duration between injury and death has been opined to be about six hours and that between death and post-mortem between 12 hours which was conducted at 7-30 a.m. On 13-9-1984.
12. In view of the aforegoing it is fully established on the record that the appellant with premeditation equipped with fire-arm has caused murder of the deceased by causing fire-arm injury; however, since only solitary injury has been caused with no repetition, therefore, taking a lenient view in the matter, the sentence of death is converted to that of imprisonment for life while that of fine and compensation is maintained and the latter is directed to be recovered as arrears of land revenue. He would be entitled to the benefit contemplated by section 382-B, Cr.P.C.
Accordingly the appeal is dismissed and the sentence of death is not confirmed.