MUHAMMAD AMIR MALIK, J.--- Muhammad Hanif (18/19) appellant was convicted for an offence under section 302, P.P.C. For the murder of Muhammad Inayat (30/35), the deceased, of his village and sentenced to death and a fine of Rs,5,000 or in default thereof one year's R.I. And a compensation of Rs,5,000 under section 544-A, Cr.P.C. Or six months' R.I. In default thereof as well as under section 452 with five years' R.I. And a fine of Rs,2,000 or three months' R.I. By the learned Addl. Sessions Judge, Gujrat, vide judgment dated 17-2-1987. His co-accused Nadir was acquitted.
The matter is before us under section 374, Cr.P.C. (Murder Reference No,61 of 1987). The convict has also filed an appeal (Criminal Appeal No, 156 of 1987). This judgment will dispose of both the matters.
2. The occurrence took place at the house of the deceased and his broth,r Fazal Hussain complainant (P.W.1) at 7 a.m. On 25-6-1984 in village Musa, at a distance of four and a half miles from Police Station Kunjah, District Gujrat. Muhammad Zulfiqar, S.H.O. (P.W.13) was passing from near the village at 10 a.m. And Fazal Hussain compiainant made a statement (Exh.P.A.) to him which was sent to the Police Station and on its basis formal F.I.R. (Exh.PA./1) was registered at 11 a.m.
By Muhammad Afzal, Moharrir Head Constable (P.W.2).
3. The complainant, vide F.I.R., informed the police that his bother Inayat deceased was an employee in the Pakistan Army and posted at Karachi. He had come on two months' leave on the third of the month of Ramadan. He was reciting Holy Qur'an while sitting in his courtyard on a cot at 7 a.m. While his wife Mst. Safiya (given up P.W.) was engaged in the household work. The complainant along with Sadiq Hussain (P.W.4) was cutting fodder at the fodder cutting machine in the courtyard. At once, Muhammad Hanif appellant, armed with a .12 bore gun, and Nadir co- accused with a carbine, entered the courtyard. Hanif appellant fired and hit on the back chest of the deceased who fell down while the shot fired by Nadir missed due to the fall of the deceased.
Inayat expired at the spot. On the report of fire many people of the village collected and the two culprits ran away.
4. The motive given was that there was a dispute between the deceased and Muhammad Hanif appellant over Shamlat land of the village. The deceased wanted to raise a house over the said land which was not liked by Hanif appellant.
5. Muhammad Zulfiqar, S.H.O. (P.W.13), the investigator, after recording the statement of the complainant (Exh.PA) and sending it to the police station for the registration of the case, reached the spot. He prepared injury statement and inquest report (Exhs.PJ. And P.K.) and sent the dead body to the mortuary for autopsy. He inspected the spot and took into possession blood-stained earth and crime empty (P.1) vide memoes Exhs.P.C. And P.D. And sealed the same into parcels. He prepared the site plan of the place of occurrence (Exh.P.O.) and examined the witnesses. After the post-mortem examination, Abdul Ghani Constable (P.W.10) produced the last-worn clothes of the deceased (P.2 and P.3) and a sealed Phial (P.4) which he secured vide memo Exh.P.W. He got prepared site plans (Exhs.P.B. And P.B./1) from Akhtar Naqqash, Draftsman (P.W.3). He arrested Nadir co-accused on 4-7-1984 who got recovered the carbine (P.5) which was secured vide memo Exh.P.F. Hanif appellant was arrested on 5-7-1984 and on that very day he It l to the recovery of .12 bore gun (P.6) from his house vide memo Exh.P.G. Which was sealed into a parcel.
6. The gun recovered from the appellant and the crime empty were sent to the Forensic Expert in due course, but the report of the Firearm Expert (Exh.P.N.) is in the negative. The blood-stained earth recovered from the spot was reported to be stained with human blood vide Chemical Examiner and Serologist's reports Exhs.P.L. And P.M.
7. The post-mortem examination on the dead body of the deceased was performed by Dr. Riffat Amin Niazi (P.W.12) on the very day of occurrence at 4-30 p.m. The following injury was found on the dead body:- ' Multiple fire-arm wounds, eight in number in the middle of the back of chest on left side, circular in shape, with inverted margins.
' On radiological examination, eight metallic pieces were seen in the left part of the abdomen, three with metallic dust. In the opinion of the doctor the injury was ante-mortem, by a fire-arm and sufficient to result in death in the ordinary course of nature. The death was immediate and the time between death and postmortem was stated to be six to eight hours.
8. At the close of the trial, the appellant pleaded that he was present at Karachi during the days of occurrence, was sick and admitted in the hospital on the very day of occurrence. He produced Muhammad Saleem Butt (D.W.1) and Dr. Pervez Sarwar (D.W.2) in defence.
9. At the trial, the ocular account of the occurrence was furnished by Fazal Hussain (P.W.1), the brother of the deceased, and Sadiq Hussain (P.W.4), a first cousin of the complainant and tie deceased. They also deposed about the motive part of the version. The recovery of crime empty (P.1) from the spot and the _blood-stained earth was stated to by Muhammad Zulfiqar, S.H.O.
(P.W.13), the recovery of gun at the instance of the appellant was stated to by Muhammad Asghar, Muhammd Sharif and Muhammad Zulfiqar, S.H.O. (P.Ws.8, 9 and 13) and the medical evidence was provided by Dr. Riffat kmin Niazi (P.W.12). Believing the motive part of the story, the eye-witness account and the medical evidence, the learned trial Judge concluded the charge against the appellant.
10. Learned counsel for the appellants has contended that there was no motive for the appellant to commit the murder, the recovery of gun and the crime empty had no corroborative value and the ocular account was given by the relatives and interested witnesses and so the conviction could not have been recorded.
11. After hearing the learned counsel for the appellant as well as the learned State counsel and having gone through record, we are not impressed with the arguments (of the defence counsel).
Of course, the report of the Fire-arm Expert being in the negative, the recovery of the gun from the appellant and of the crime empty from the spot, is of no avail to the prosecution. However, Fazal Hussain (P.W.1) and his cousin Sadiq Hussain (P.W.4) are independent as well as natural witnesses.
The house in which the occurrence took place belongs to the deceased and on its south is the house of the complainant. The fodder cutting machine was installed on the western corner of the house. The deceased was reciting the Holy Qur'an in the verandah in front of his room. The house has walls on three sides, but its north side was open. Fazal Hussain complainant deposed that there is Abadi of the village on three sides of the house of occurrence while on the north there is Shamlat land of the village which is owned by all the villagers. He denied that it was exclusively owned by Gujjars. According to him. There are about one hundred and fifty families of Gujjars. He also informed that Sultan Ali Gujjar of their village was murdered and Khawaja son of Nizam Din etc. Were challaned and acquitted. He also told that the house of said Khawaja adjoined his house, but he showed ignorance whether Khawaja Gujjar was murdered in the Shamlat which was disputed. He denied that they were the party-men of said Khawaja. He also informed that the house of the appellant was on the east of the deceased's house. He himself had no disputed with the appellant over the Shamlat land. According to him, the deceased had reached the village on the 8th of the month of Ramadan and the murder took place on the 25th. The deceased had not yet started constructing the house on the disputed land, but bricks had been brought there only four days before the occurrence. He clearly deposed that the dispute started with the placing of bricks on the spot. He was candid enough to say that they were inimical towards the accused for the last about two years, and this period of two years was to be counted from the day his statement was recorded in Court (2-4-1986). This would clearly mean that as between the deceased and the appellant's families there was no ill-will or enmity or estrangement of any sort before the occurrence. The dispute developed between them over the placing of bricks by the deceased on the north of his house on the Shamlat land where he wanted to extend his house. He had still not started construct ion of the house, but the very bringing of the bricks there seems to have ignited the trouble. The motive part of the story is more than proved. The occurrence took place at about 7 a.m. And it was the holy month of Ramadan. It is the case of the eye-witnesses that the deceased was reciting the Holy Qur'an. We don't think that for showing the presence of the deceased at the house and that too in the early morning a false story would have been thought of even to the effect that he was reciting the Holy Qur'an. It was candidly admitted by the complainant that the deceased was not fasting on the day of occurrence. He and Sadiq (P.W.4) were cutting fodder at the machine. The presence of the complainant is most natural. A fodder cutting machine cannot be run unless there are at least two persons: one working on it and the other feeding it the fodder. The two witnesses produced at the trial are natural, independent and disinterested. They were, therefore, correctly relied upon by the learned trial Judge.
12. The appellant claimed that he was at Karachi during the days of occurrence and there admitted in a hospital on the very day of occurrence. This last part of his plea is falsified from the statement of Dr. Pervez Samar (D.W.2) who only told that one Muhammad Hanif son of Ramdan had visited their hospital as an outdoor patient on 23-6-1984, meaning thereby that somebody bearing the name of Muhammad Hanif son of Ramzan had visited the hospital two days before the occurrence as an out door patient. Muhammad Saleem Butt (D.W.1) stated that the appellant was employed with him from 1-1-1984 to 30-6-1984 whereafter he left for Punjab, but he is having a small business and this is not believable that he was keeping records of his employees marking their attendance.
The evidence clearly seems to be cooked up. The defence plea was rightly rejected.
13. Thus the evidence as to the motive, the ocular account and the medical evidence clinch the matter against the appellant. His conviction is maintained and the appeal against the same, therefore, stands dismissed. Argument has been raised by the learned counsel for the appellant at the end that in view of the age of the appellant the extreme penalty of death may not be imposed.
However, we are not impressed with the argument. The appellant was aged 18 years at the time of occurrence and there seems to be no evidence that the dispute of the deceased was with some elder of the appellant's family over the intended construction on the Shamlat land and the appellant acted under his influence to mount the assault. The murder was committed in broad daylight over a minor affair and there is no extenuating circumstance in favour of the appellant.
14. The death sentence is confirmed.