RAJA AFRAS1AB KHAN, J.-Bashir Masih (25) son of Lakha Masih was convicted under section 302 PPC for the murder of Faryad Ali(18) and was sentenced to death plus a fine of Rs.5,000/- and in default thereof to suffer R.I. For a period of one year by the learned Additional Sessions Judge on 20.1.1987.
Vide the same judgment, it was directed that in case of recovery of fine, half of it shall be paid to the legal heirs of the deceased. The learned trial Judge has sent a reference under section 374 Cr.P.C. (No.42 of 1987) for confirmation of death sentence whereas the appellant has challenged his conviction and sentence by filing an appeal. (No.93 of 1987). We propose to decide both the matters together by this judgment as they arise out of the same judgment.
2. Shortly stated, the prosecution story is that on 21.5.1985 at 7.00 a.m., Bashir Ahmad son of Barkat Ali and his son Faryad Ali (deceased) were driving their cattle from the Chak to their land. They had hardly covered a distance of about \\ kula from their village when suddenly the appellant came in front of them from behind a protective wall of melon crop. He shouted at Faryad Ali declaring that the would be taught a lesson of giving help to Niamat Masih. He fired from his carbine 12-bore, the pellets of which hit Faryad Ali on his head, fore-head and eyes. On receipt of the injuries, Faryad Ali died at the spot. Bashir Ahmad and Ghulam Murtaza witnessed the occurrence as they were present near the place of .Occurrence. The appellant ran away from the spot with his weapon.
The motive is that about 15/20 days ago, Niamat Masih abducted Aziz Masih's daughter. Niamat and Aziz both are related interse. However, the girl was later on returned to Aziz Masih on account of a compromise between the parties. In this case of abduction, Faryad Ali deceased helped Niamat Masih. The appellant gave threat to Faryad Ali that shortly he would face the consequences of giving a helping hand to Niamat Masih in his ordeal. Precisely, on account of this grudge, Faryad Ali was subjected to attack and was done to death by the appellant with his weapon.
3. Muhammad Yar S.I. PW10 investigated the case. The F.I.R. Ex.PG was recorded by the Police Officer on the statement of Bashir Ahmad PW8. Spot was visited by him. The injury statement Ex.PH and inquest report Ex.PI of the deceased were prepared by the witness. Bloodstained earth from the place of occurrence was collected and was taken into possession vide recovery memo Ex.PC. Last worn clothes of the deceased, Shirt PI, Shalwar P2, and Safa P3 were taken into possession vide- recovery memo Ex.PA, a sealed parcel P4 containing therein pellets was also taken into possession vide the same recovery memo. Investigating Officer got prepared site-plan Ex.PE and duplicate site-plan Ex.PE/1. The appellant was arrested on 1.6.1985. At the instance of the appellant carbine P5 was recovered from his residential place by the police officer vide memo Ex.PD. The said recovery was attested by Muhammad Yousaf and Wali Muhammad PWs. In cross-examination, the witness disclosed that the place of occurrence was at a distance of about six miles from the Police Station and that the said place is connected with a Pacca road. The positive reports of Chemical Examiner Ex.PK and that of Serologist Ex.PL were tendered in evidence by the prosecutor.
4. Dr. Muhammad Riaz Ali PW2 conducted the post-mortem examination on the dead body of Faryad Ali on 21.5.1985 at 1.00 p.m. And found the following injuries on his person:-
1. Six lacerated wounds each 1h c.m. x 1h c.m. x deep on the left side on the forehead and in the area of 7 c.m. x 5 c.m., the margins were inverted.
2. A lacerated wound 1-1/2 c.m. 1-1/2cmx deep on left eye ball.
3. A lacerated wound 2-1/2 c.m. x 2 c.m. 1-1/2x bone deep on left ear.
4. A lacerated wound 3 c.m. x 2 c.m. x skin deep on left ear.
5. A lacerated wound 3 c.m. x 1-1/2 c.m. x bone deep on left side of the head.
6. A lacerated wound 2 c.m. x 1-1/2 c.m. Bone deep on left side of the head behind injury No.5.
On opening the skull, it was found by the Doctor that the frontal bone had been fractured into pieces. The left occipital bone was also found fractured. The fracture line went downward up to the base of skull. The orbital and left occipital bones were also found fractured. The brain was badly injured on left side. Death in the opinion of the Doctor had occurred on account of haemorrhage and shock as a result of injury to brain which resulted from multiple injuries. Injuries No.1 to 6 were sufficient to cause death in the ordinary course of nature. It was opined that injury Nos.1 to 4 were caused by fire-arm while the rest were more likely to be caused by fractured bone pieces, all the injuries were ante-mortem. Injuries No.1 to 3 were wounds of entrance while injury No.4 was wound of exit. Injuries No.3 and 4 communicated with each other. No blackening was found around the wounds. Three pellets were found in the skull. The probable time between injuries and death was spontaneous and that between death and post-mortem was about six hours.
5. Eye-witness account was provided by Bashir Ahmad PW8 and Ghulam Murtaza PW9. Both the witnesses supported the prosecution version in its details. Bashir Ahmad is the father of deceased and is also the first informant as already noted earlier. Ghulam Murtaza is not at all related to the complainant. Ghulam Murtaza PW9 stated that he was present in his field at the time of occurrence when Faryad Ali (deceased) was going towards his Dera with his cattle whereas Bashir Ahmad was following him. He deposed that all of a sudden the appellant Bashir Masih, by launching an attack fired from behind the wall of a melon field where he was lying in an ambush and injured Faryad Ali critically. The victim expired there and then on receipt of the injury.
The appellant while making a statement under section 342 Cr.P.C, denied the allegation levelled against him and pleaded his innocence. He stated that he had been implicated in the case on account of enmity and suspicion. The learned trial Judge believed the prosecution evidence while discussing it at considerable length and proceeded to convict and sentence the appellant as mentioned earlier.
6. It is contended by the learned counsel that the motive as set up by the prosecution has not at all been proved. He submits that neither the abducted girl nor her parents were produced in proof of motive as set up by the prosecution and as such the prosecution story should not be believed. It is next argued that Ch. Mehboob and Raja Aftab had enmity with each other and that the appellant has been implicated in the case as a result of the said enmity. Learned counsel maintains that it is established that the appellant belongs to Raja Aftab faction of the village. Learned counsel continues to argue that it was conceded by Ghulam Murtaza PW9 in his evidence that Ch. Mehboob attended the court on each date and that he was present out-side the court even on that day when his evidence was being recorded. On this basis according to learned counsel the appellant had been implicated in the case by Ch. Mehboob on account of his enmity with Raja Aftab. He, therefore, forcefully says that the prosecution evidence is certainly deficient and as such does not justify the conviction and sentence of the appellant.
7. We have heard the learned counsel for the parties at length and have read the record with utmost care. We have not been persuaded by the learned counsel to agree with him. His arguments are certainly devoid of force and are rejected by us. As would follow, the prosecution case has been proved beyond any reasonable doubt by natural and trustworthy evidence deposed by Bashir Ahmad PW8 and Ghulam Murtaza PW9. Bashir Ahmad PW8 is although the father of the deceased but his presence at the spot at the relevant time is undoubtedly natural as he was going in the company of his son Faryad Ali along with the cattle towards his fields naturally to work there early in the morning. Similarly, the evidence deposed by Ghulam Murtaza PW9 is convincing being natural inasmuch as he was also working in his fields at the time of occurrence.
Ghulam Murtaza was working in his fields just at a distance of 2/3 karams from the place of occurrence. Therefore, his evidence is of immense importance to the prosecution case. Both the witnesses were subjected to lengthy cross-examination by the learned defence counsel but no dent could be created in the truthfulness of the evidence deposed by them. The medical evidence given by Dr. Muhammad Riaz Ali PW2 also lends corroboration to the eye-witness account, referred to above. On opening the abdomen of the deceased, the doctor Muhammad Riaz Ali found undigested food therein. This piece of medical evidence demonstrates beyond doubt that deceased had taken his last meal early in the morning before his departure with his father for doing his day job on the day of occurrence. It is common knowledge that villagers generally do eat their food before they commence their work early in the morning in their fields. Thus, the medical evidence wholly sees eye-to-eye with the ocular account given by PW8 and PW9. The recovery of carbine P5 at the instance of the appellant was also proved by Wali Muhammad PW5 and Muhammad Yar PW10. Wali Muhammad PWS is an independent witness. The recovery of weapon was effected from the living room of the appellant and that it is in the evidence that the said room was chained. The recovery of weapon further corroborates the prosecution case. This is a broad daylight occurrence having taken place at 7.00 a.m. Just in the neighbourhood of the village on 21.5.1985. The F.I.R, was immediately lodged thereafter at 8.30 a.m. On the same day with Police Station which is at a distance of about six miles from the place of occurrence. The promptness with which the FIR was lodged shows beyond doubt that there was absolutely no time for deliberation for false implication of the appellant. We are not at all convinced with the argument that the appellant was involved in the case by Ch. Mahboob who was an enemy of Raja Aftab with whom the appellant was linked party wise. This was just a word of mouth and that there was not an iota of evidence produced by the appellant to prove his plea. We, therefore, discard the argument being wholly without substance. Similarly, motive has also been proved by evidence deposed by PW8 and PW9. We repel the argument of the learned counsel on that score also. This is a case of single accused and as such his substitution for some one else is not at all believable. This is not even the case of the appellant. The offence against the appellant stands proved beyond any shadow of doubt. The whole prosecution evidence is trustworthy, reliable and confidence inspiring. We, therefore, do not find any good reasons to disbelieve the motive as set up, the ocular account, recovery of weapon of offence and the medical evidence. The appellant is guilty of a gruesome murder pure and simple. In the circumstances, in our view, there are absolutely no mitigating circumstances for awarding lesser punishment to the appellant and that he does not deserve any leniency. As a consequence, we do not find any substance in the appeal which fails and is dismissed. The sentence of death of the appellant is hereby confirmed. The Murder Reference is answered accordingly.