IJAZ NISAR, J.~ Chan Baig (49)S/0 Behrman Khan and his brother Muhammad Rashid son of Abdul Khan were tried for the murder of Abdul Hameed (30) by the learned Addl. Sessions Judge, Rawalpindi. By judgment dated 2.2.1987 he convicted Chan Baig appellant under section 302 P.P.C, and sentenced him to death plus a fine of Rs.15,000/- or in default to undergo two years' R.I. Half of the fine was ordered to be paid to the legal heirs of the deceased as compensation. Muhammad Rashid was given the benefit of doubt and acquitted.
2. Chan Baig has filed Crl. Appeal No.179/1987 while Mst. Safaidan Bibi has filed a revision for enhancement of the amount of compensation payable by Chan Baig appellant. The learned trial Court has made a reference under section 374 Cr.P.C, for confirmation of death sentence. All the matters shall be disposed of by this judgment.
3. The prosecution case is that on 27.8.1985 at about 6.00 A.M. Chan Baig appellant visited the house of Abdul- Majeed complainant and abused his mother Mst. Safaidan and sister-in-law Mst.
Banaras Bibi. When he complainant and Abdul Hameed deceased returned to the house, they were informed by their mother of the above incident. On the same day at about 10. A.M. Chan Baig appellant and Muhammad Rashid accused were proceeding towards their house after offering Eid Prayer. Abdul Hameed deceased followed them. He asked Chan Baig appellant as to why he had maltreated his mother and sister-in-law upon which he whiped out a .12 bore carbine while Muhammad Rashid took out a revolver. The latter shouted that the deceased should not be spared whereupon Chan Baig appellant fired two shots at the deceased hitting him on his right shoulder and right thigh. The occurrence was witnessed by Abdul Majeed complainant, Abdul Qaddus PW.3 and Khalid Mahmood (not produced). On the alaram raised by them the accused fled away. The deceased died soon thereafter. The occurrence was sequel to land dispute between the parties.
4. Abdul Majeed reported the matter to the police by lodging FIR Exh.PA at 12.15 Noon i.e. Two hours and fifteen minutes after the occurrence.
After recording the FIR Muhammad Zar Inspector PW.14 proceeded to the spot, prepared the inquest report Exh.PL and injury statement Exh.PM of the deceased. He secured blood stained earth from the spot vide memo Exh.PB. He also took into possession two crime empties P.2 and P.3 vide memo Exh.PL. He examined Mst. Banaras Bibi P.W and prepared her injury statement on 27.8.1985.
He arrested Muhammad Rashid accused on 2.9.1985. On 13.9.1985 Muhammad Rashid accused led to the recovery of revolver P.I vide memo Exh.PD. Muhammad Sadiq Inspector PW. Ll arrested Chan Baig appellant on 20.10.1985 from Rahim Yar Khan. On 5.11.1985 Chan Baig led to the recovery of carbine P.S from his house vide memo Exh.PJ. The carbine P.8 and crime empties P.2 and P.3 were sent to the Firearm Expert and vide his report Exh.PU the crime empties were found to have been fired from the said carbine.
Dr. Basharat Hussain PW.4 conducted the post-mortem examination on the dead body of Abdul Hameed deceased and found the following injuries thereon:
1. A contused swelling over the outer side of left forearm 5 cm x 4 cm.
2. Tenderness and swelling measuring 8 cm x 3 cm. Over the front of left thigh.
3. Swelling 5 cm x 3 cm over the front or right thigh.
4. Pain and tenderness over the lower part of right side of chest in front.
All the injuries were caused by firearm. Injury No.1 was fatal. Probable time between injuries and death was immediate and that between death and postmortem examination about 24 hours.
He also examined Mst. Banaras Bibi P.W on 28.8.1985 and found four blunt weapon simple injuries on her person. Exh.PE is the copy of her M.L.R. Probable duration of the injuries was 36 hours.
6. The prosecution examined I6 P.Ws to prove its case. The main witnesses are Mst. Banaras PW.1 who deposed about the earlier incident in which Chan Baig appellant had belaboured her and Mst.
Safaidan on the day of occurrence. Abdul Majeed PW.2 and Abdul Qaddus PW.3 furnished the ocular account. Muhammad Nawaz PW.10 and Abdul Ghani AS1 PW.15 proved the recovery of carbine P.8 at the instance of Chan Baig appellant while Abdul Majeed PW.2, Abdul Qaddus PW3 and Muhammad Zar SHO PW.14 proved the recovery of revolver P.I at the instance of Muhammad Rashid accused.
7. The learned trial Court disbelieved the recoveries and matching of the crime empties with the carbine P.8 of Chan Baig appellant but relying on the ocular testimony of Abdul Majeed PW.2 and Abdul Qaddus PW.3 corroborated by the circumstance of his abscondence as also on the evidence of Mst. Banaras Bibi PW.1 about the earlier incident, convicted and sentenced Chan Baig appellant as described above.
8. At the trial, the accused denied the prosecution legations. Muhammad Rashid stated that he had been falsely roped in. Chan Baig appellant made the following statement: "Actually on the day of occurrence I was attacked by the deceased and his brother-in-law Mushtaq. Mushtaq fired at me but I ducked down and the shot hit the deceased. I was attacked because I insulted the women folk of the deceased when they came to my house and insulted and abused my wife on fateful day in the morning."
9. Learned counsel for the appellant contends that both the eyewitnesses examined by the prosecution wee closely related to the deceased and should not have been relied upon without any independent corroboration. The recoveries of the weapon of offence which could have provided corroboration to their testimony was not accepted by the learned trial Court. As regards motive he contends that if the evidence of Mst. Banaras Bibi is accepted it was the complainant party who could have nursed a grudge against Chan Baig appellant. Learned counsel stated that if his contentions were not accepted, it is a case of lesser sentence because the occurrence had taken place at the spur of movent and the appellant had not acted in a cruel or unusual manner.
10. Both the parties are closely related to each other. Mst. Banaras Bibi has fully proved the earlier incident taking place in her house in which she and Mst. Safaidan were belaboured by Chan Baig appellant. She was medically examined and four injuries were found on her person which were of the same duration as that of the deceased. The incident narrated by her, finds mention in the FIR which was promptly lodged. There is nothing on the record to indicate that she had made a false statement. No doubt Abdul Majeed PW.2 is brother of the deceased and Abdul Qaddus PW3 is his cousin but in the absence of an background of enmity with the appellant they cannot be termed as interested witnesses. They had no motive to implicate the appellant in a case involving capital sentence. They are natural witnesses because they were following the deceased when he was attacked by the appellant. They could not have helped the deceased, for the appellant was carrying a firearm. Their evidence fits in with the medical evidence. The abscondence of Chan Baig appellant after the occurrence is another strong circumstance against him.
11. We have considered the defence plea advanced by Raja Muhammad Anwar, Advocate for awarding lesser sentence to Chan Baig appellant but do not find any force in it. It was quite natural for Abdul Hameed deceased to have asked the appellant as to why he had abused and maltreated his mother and brother's wife and under no circumstance the appellant was justified to take such an exception to it so as to take his life. Since the appellant had acted in a brutal manner we do not consider him entitled to any leniency in the matter of sentence. Accordingly, we maintain his conviction and sentence and dismiss the appeal.
The fine awarded to hin by the learned trial Court appears to be quite adequate and we do not feel inclined to enhance it. While maintaining the same we direct that the entire amount of fine shall be paid to the legal heirs of the deceased as compensation.
The death sentence is confirmed.
The revision for the enhancement of the amount of fine/compensation is dismissed.