' The appellant Muhammad Ilyas son of Allah Din aged 23 years was tried by the learned Additional Sessions Judge at Shcikhupura on a charge under section 302 of the Pakistan Penal Code for having committed the murder of Muhammad Tufail aged 40 years. The learned Additional Sessions Judge vide his judgment dated 26th August, 1986 found the appellant guilty on the aforesaid charge, and hence, the appellant was convicted and sentenced to undergo life imprisonment, and to pay fine of Rs, ten thousand, or in default thereof, to suffer further rigorous imprisonment for a term of one year. The learned trial Judge also directed that in the event of recovery of fine, the same shall be paid as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.
2. Aggrieved by his conviction and sentences, the appellant has preferred Criminal Appeal No,628 of 1986 calling in question his conviction and sentence under section 302, P.P.C. While the complainant Ata Ullah has also filed a revision petition bearing No, Criminal Revision 342 of 1987 seeking enhancement of the sentence of the appellant from life imprisonment to death. This judgment shall dispose of both the aforesaid appeal and the revision petition.
3. The unfortunate occurrence resulting into the death of Muhammad Tufail took place on 20th of November, 1983 at 6-30 p.m. In front of the shop of Mehmood Ahmad a fruit-seller on Thana Road Narang Mandi at a distance of three furlongs from Police Station Narang Mandi. F.I.R. In this case was lodged at the police station by the complainant Ata Utah P.W.4 real brother of the deceased and the same was recorded at 8-00 p.m. On 20th of November 1983 by Muhammad Rafique, S.I./S.H.O. P.W.12. Initiatlly, the case was registered under section 307, P.P.C. But after the death of the deceased which took place on 28-12-1983 i,e, after a month and eight days of the occurrence, registration of the case was converted from sections 307 to 302, P.P.C.
4. The complainant briefly in the F.I.R. Stated that he was a resident of Narang Mandi, and was running a grocery shop. On the fateful day, at 6-30 p.m. The complainant alongwith Saeed Ahmad and his nephew Khalid Mehmood after closing the shop were proceeding towards their house, and when they reached at Thana Road near the shop of Mehmood Ahmad fruit-seller, the complainant noticed that his deceased brother Muhammad Tufail and Mchmood Ahmad son of Din Muhammad resident of Nangal Duna Singh were talking with each other. In the meanwhile, the complainant further noticed that the appellant armed with a carbine also reached there, and raised Lalkara in loud voice addressing the deceased, that he was responsible for the murder of his sister, and therefore, he would not spare him, and then the appellant fired a shot hitting the back of the deceased. On the receipt of this shot, the deceased fell down. Complainant and his companions proceeded forward to apprehend the appellant, but they were threatened with dire consequences. Thereafter, the appellant vanished into the streets. Deceased while injured was removed to Civil Hospital Narang, but in view of the dangerous condition bf the cieceased, the doctor directed the complainant to take the deceased to Mayo Hospital Lahore.
5. According, to the complainant, motive for the commission of this murder was that sister of the appellant Seema Bibi was married to one Muhammad Ilyas son of Labhu a brother of the wife of the deceased, and 3/4 years before the occurrence, on account of the quarrel, the aforesaid Seema Bibi had committed the suicide by burning herself. Appellant Muhammad Ilyas suspected that the deceased Muhammad Tufail had been instigating the brother of his wife to humiliate Seema Bibi, which led her to commit suicide. On account of this suspicion, the deceased was done to death by the appellant, as stated above.
6. On 20th of November, 1983 at 8-18 p.m. P.W.14 Dr. Zulfiqar Siddique, Medical Officer Mayo Hospital, Lahore medically examined the deceased and noticed the following injuries on his person:
(1) Lacerated circular wound 1/4 c.m. x 1/2 c.m. On left deltoid, directed anteriorly and slightly downward to the left. It was a wound of entry.
(2) Lacerated wound 1 c.m. x 1/2 c.m. Deep penetrating directed anteriorly and to the left and slightly downward with superficial lacerated wound 1 x 1/2 cm around but more on one side to the described wound on the back of left shoulder. It was a wound of entry.
(3) Lacerated wound 3/4 c.m. x 3/4 c.m. On the hack of trunk in the midline at the level of C7-T-1 penetrating deep to the anterior and to the left and downward. It was a wound of entry, resulting into parplegia probably due to spinal cord injury (to be confirmed on operation notes).
7. On 21st of November, 1983 P.W.12 Muhammad Rafique S.I./S.H.O. Visited Mayo Hospital Lahore, and on the basis of his written request Exh.P.L., he obtained the opinion of the doctor with regard to the fitness of the injured, and recorded the statement of deceased Muhammad Tufail Exh.P.M.
8. On 29th of December, 1983 P.W.8 Dr. Khalid Jamil Akhtar, Resident Medical Officer, Medical Unit 5 Mayo Hospital, Lahore conducted the postmortem examination on the dead body of the deceased, and noticed the following injuries on his person:--
(1) A healing lacerated wound circular in shape measuring 1 c.m. x 1 c.m. Located at the hack of chest in the midline at the level of the inferior border of scapula.
(2) An old healed scar circular in shape located at the posterior aspect of the left shoulder joint on the deltoid muscle.
' Under injury No,2 pellet had entered the chest cavity, and was lodged in the left supraclavicular fossa from where it was recovered. Pellet had caused laceration in the apical part of the left lung.
Death in the opinion of the doctor had occurred on account of injury to the spinal cord and the left lung, which was sufficient to cause death in the ordinary course of nature.
9. In cross-examination, P.W.8 Dr. Khalid Jamil Akhtar stated that jaundice could develop in any person of all ages independent of any injury. Jaundice could occur due to infection in the body along with other causes. The doctor was further cross-examined on the nature and kind of jaundice, and the doctor stated, that he could not state that the jaundice suffered by the deceased could alone cause his death apart from the injury found on the dead body. The doctor further stated that apart from the complications of jaundice, injuries to the spinal cord and left lung would have ultimately resulted into the death of the deceased after the lapse of some time. Chances of survival might have been there, but ultimately, the deceased would have died of the injuries suffered by him.
10. On 9th of January, 1984 P.W.13 Gul Shcr Khan Sub-Inspector arrested the appellant, and on 16th of January, 1984, the appellant while in police custody led the police, and by digging out the earth from near a Mazar, got recovered a carbine P.6, the same was taken into possession, vide memo, Exh.P.G. Attested by Qasim Farooq P.W.6, Muhammad Akram Butt (not produced) besides the Investigating Officer P.W.13.
11. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by complainant Ata Ullah a brother of the deceased, Khalid Mehmood P.W.-5 son of the deceased, Saeed Akhtar, Mchmood fruit-seller and the other Mchmood resident of Duna Singh Nangal were given up by the prosecution.
12. In his statement under section 342, Cr.P.C., the appellant denied the charge, and stated that he had been involved in this case on account of enmity.
13. With the assistance of the learned counsel for the appellant, the complainant and the State, I have carefully perused the record of this case, and have heard the various contentions raised by them at length.
14. Learned counsel for the appellant argued that the F.I.R. In this case had been lodged after considerable delay, which remained unexplained, therefore, the prosecution case was doubtful.
Learned counsel further contended that the occurrence in this case had taken place at 6-30 p.m.
And thc F.I.R. Was lodged at 8-00 p.m. The occurrence had taken place near the police station, and while going to thc hospital, one has to pass through the gate of the police station, it was strange, that no effort was made to lodge the F.I.R. Before proceeding to the hospital. It was thus contended that the F.I.R. In this case was lodged after deliberations, and this was the case of substitution.
15. Learned counsel further argued that according to the police at the lime of the lodging of the F.I.R.
Complainant Ata Ullah was accompanied by Khalid Mehmood P.W.5 and Saeed (not produced), while according to the statement of P.W.5, he denied to have gone to the police with him, and according to the statement of the complainant he had gone to the police station only with Saeed.
It was thus attempted to argue, that none of the eye-witnesses was present, nor had seen the occurrence.
16. The learned counsel further argued that the deceased was examined at 8-18 p.m. In the Mayo Hospital, and all the three witnesses did not claim to have gone to the Mayo Hospital, but only Tariq a son of the deceased had gone to Mayo Hospital, therefore, it was doubtful if the eye-witnesses were present and had seen the occurrence.
17. Learned counsel further contended that only a plot of two kanals of land was situated between the place of occurrence and the police station, and this distance could have been covered within five minutes, and the F.I.R. Could have been lodged immediatley after the occurrence, Occurrence was alleged to have taken place at 6-30 p.m., and according to the complainant, the police had reached there within half an hour, while the deceased was medically examined at 8-18 p.m. Thus, the learned counsel argued, that the occurrence did not take place at 6-30 p.m. But long before.
Furthermore, it was an unwitnessed crime, and the appellant was falsely implicated.
18. Learned counsel further argued that the best possible evidence in this case was withheld, inasmuch as, the fruit-seller in front of whose shop the occurrence took place was not examined, therefore, it could not be safely inferred that had he been produced, he would not have supported the prosecution case. Same arguments were addressed with regard to Saeed P.W. Given up by the prosecution.
19. Learned counsel further contended that the medical evidence in this case was in conflict with the ocular testimony, because nature of the injuries show that the same were not caused with carbine. Direction of the injuries also belie the ocular account.
20. It was further argued, that the injuries were not proximate cause of death, because the jaundice had intervened, which was the cause of death, therefore, the appellant could not be convicted under section 302, P.P.C., and the offence would fall within the ambit of section 307, P.P.C.
21. I have considered all these contentions in the light of the evidence available on the record. I am afraid that I do not find any substance in the same. As far as recovery of carbine is concerned, the same cannot be taken into consideration, because no empty was recovered from the spot to show, that the same carbine had been used. Similarly, dying declaration recorded in Mayo Hospital by Muhammad Rafique Sub-Inspector P.W.12 cannot be taken into consideration inasmuch as, the doctor was not present at the time of the recording of the statement of the deceased in the Mayo Hospital. Therefore, both these pieces of evidence were rightly discarded by the learned trial Judge.
22. Adverting to the ocular testimony and the criticism thereon by the learned counsel, I am of the view, that the discrepancy highlighted by the learned counsel for the appellant as to who had accompanied the complainant to the police station has no bearing upon the case. Parties are closely related to each other, it is a case of single accused, and the occurrence had taken place at 6-30 p.m. In the month of November, therefore, question of mistaken identity does not at all arise.
Occurrence had taken place on a thoroughfare, therefore, the assailant could not have gone unidentified. Furthermore, on account of the relationship, the real culprit would not be allowed to go scot free.
23. So far as the conflict between the ocular testimony and the medical evidence is concerned, the same does not carry any weight, because beyond a distance of four feet, there would be a spread of pellets, and the nature and dimension of injuries was that a cartridge was used, therefore, I do not find any conflict between the medical evidence and the ocular testimony. Since the occurrence had taken place in a Bazar, and it could not be an unwitnessed crime. Had it been the case of substitution or false implication, there would have been uproar.
24. As far as quality of ocular testimony is concerned, I do not find any flaw in the same. No doubt, both the witnesses are close related to each other but this alone is not a sufficient ground to discard their testimony. The complainant after closing his shop was proceeding towards his house, while the other witnesses, vis-a-vis the son of the deceased, and his presence at the spot in a Bazar in a small town like Narang in the evening time cannot be doubted. I have carefully perused their statements, and the cross-examination, and in my view they have stood their test successfully, and the evidence qua them is creditworthy. Therefore, in my opinion, both the witnesses arc truthful witnesses.
25. Adverting to the proximate cause of death, I have carefully perused the statement of the doctor and the cross-examination conducted thereon. According to the doctor, there was laceration in the left lung and injury in the spinal cord, both these injuries were sufficient in the ordinary course of nature to cause death. Disease of jaundice had intervened, and per opinion of the doctor, the same could have occurred because of various reasons. Doctor opined that both these injuries would have ultimately caused the death of the deceased. ... These injuries were sufficient to show that the death had occurred on account of these injuries. There is no evidence qua the negligence in treatment, and if there had been so, that could not have changed the offence of murder. In this view of the matter, offence under section 302, P.P.C. Is clearly made out
26. Upshot of the above discussion is that the prosecution has proved its case against the appellant beyond any reasonable doubt, therefore, this appeal must E fail. Accordingly, this appeal is dismissed. The conviction and the sentences of the appellant are hereby maintained.
27. Adverting to the Revision Petition filed by the complainant seeking enhancement of sentence to death. There is no substance in it, because the motive could not be proved by the prosecution, it is not known, what immediately preceded the occurrence. Therefore, in such like circumstances, the maximum F sentence cannot be awarded. The learned trial Judge was justified to impose the lesser penalty. Therefore, circumstances of the case do not warrant any interference by this Court.
In this view of the matter, this Revision is also dismissed.