KHALI L-UR-REHMAN RAMDAI', J.--- Seven persons namely, Jahan Khan, Tariq son of Jahan Khan, Ghulam Haider, Salahuddin, Mazhar Iqbal, Saifuddin and Tariq son of Abdul Ghani were tried b)- a learned Additional Sessions Judge at Sialkot for the murder of one Nazir,
2. All the accused persons above-mentioned except Jahan Khan were found entitled to the benefit of doubt and were accordingly acquitted Jahan Khan was however found guilty of the said charge; was convicted under section 302, P.P.C. And was sentenced to death with a fine of Rs.30,000 or to suffer two years' R.I. In default of payment of the said fine. The entire amount of fine was directed to be paid to the legal heirs of the deceased, as compensation.
3. Murder Reference No.83 of 1988 seeks confirmation of death sentence imposed on Jahan Khan convict who, in turn, challenges the above-mentioned conviction and sentences recorded against him through Criminal Appeal No.465 of 1988.
4. Both these matters are being disposed of together through this single judgment.
5. The F.I.R. Of this case bearing No.886 dated 22-9-1983 of Police Station City Sialkot which was registered on the statement of Muhammad Bashir who is a brother of Nazir deceased, disclosed that in pursuance of an earlier occurrence of June, 1983 both the parties of the present case stood accused of murder and attempted murder through cross-cases registered against each other and the two parties thus happened to be present outside the Court of Sheikh Mumtaz Ali, Additional Sessions Judge at Sialkot in connection with their pre-arrest bail petitions.
6. Bashir complainant had alleged further through this F.I.R. That he spotted all the accused persons above-said standing in an open place outside the above-mentioned Court room who appeared to be conspiring with each other whereafter on seeing Nazir deceased all of them set their eyes on him. Jahan Khan, Mazhar Iqbal and Ghulam Haider then advanced towards Nazir deceased at which time Jahan Khan convict was holding a Carbine in his hand.
7. Bashir complainant claimed that on apprehending danger he and his deceased brother tried to rush into the Court room to take shelter at which Ghulam Haider accused raised a Lalkara whereupon Mazhar Iqbal accused caught Nazir deceased from his right hand and Jahan Khan convict fired a shot which hit Nazir deceased on his back who stumbled and fell in the Court room.
8. Nazir deceased was then carried to the Civil Hospital in an injured condition from where he was referred to the General Hospital at Lahore the very next day and was received back in the said hospital at Sialkot on 14-10-1983 where he stayed till 18-11-1983 and then left the hospital. The deceased returned to this hospital on 24-11-1983 where he died on 2-12-1983 and the offence under section 307, P.P.C., in the above-mentioned F.I.R., was converted to one under section 302, P.P.C.
9. Not that it is relevant any longer, nevertheless for the purpose of record, it may be mentioned here that Jahan Khan appellant is the father of Tariq accused. Salahuddin and Saifuddin accused are brothers inter se and Mazhar Iqbal accused is the son of this Salahuddin. The other Tariq accused who is anon of one Abdul Ghani is a brother-in-law of Salahuddin. Jahan Khan, his son Tariq and Ghulam Haider are Jats by caste while the other accused persons are Pathans.
10. Through his statement under section 342, Cr.P.C. Jahan Khan appellant admitted the earlier occurrence of June, 1983 which already stands mentioned above as the motive for the present occurrence. He also admitted that Nazir deceased was the complainant in the F.I.R. Registered against them in connection with this occurrence and further that on the day of the present occurrence he and his co-accused as also Nazir deceased and the complainant were present outside the Court room of Sh. Mumtaz Ali, the learned Additional Sessions Judge of Sialkot in connection with their bail applications.
11. He, however, claimed that he was innocent, had been falsely implicated in the murder of Nazir deceased on account of his enmity with the deceased party and with one Javed Ghumman. His explanation for Nazir's murder, as mentioned in his statement under section 340, Cr.P.C., was that the deceased had been killed through a shot fired by the assailant who had managed to escape without being identified and that he and his co-accused had instead been involved on account of enmity as abovementioned.
12. The learned counsel for the appellant argued that Bashir complainant was an interested witness; that Mubarak (P.W.11) was a chance witness of the occurrence in question who had not even been mentioned in the F.I.R. As a person who was present at the place of occurrence and who had witnessed the same; that three persons mentioned specifically in the F.I.R. As eye-witnesses had been withheld at the trial; that no recovery of any weapon from the appellant or of any crime empty from the spot had been affected and finally that the motive alleged for the present occurrence was a double-edged weapon and it was in fact this motive which had prompted the complainant to falsely implicate the appellant.
13. The occurrence in question had taken place at about 9-00 a.m. In the premises of the Courts at Sialkot, just outside the Court room of a learned Additional Sessions Judge. The place of occurrence at such an hour of the day is obviously a crowded place and in the circumstances it is not believable that the assailant could have managed to escape from the place of occurrence without being identified. It is also on record that at the time when Nazir deceased was hit, he was in the Verandah near the door of the above-mentioned Court room. Dr. Syed Sajid (P.W.1) had found blackening on the margins of the wound, which indicates that the fatal shot had been fired from a very close range.
14. From these facts and circumstances it becomes evident that the assailant while firing the shot in question was present in the Veranda above-mentioned almost at the door of the said Court room and the above noticed facts and circumstances rule out the possibility of the assailant having escaped unidentified from such a place.
15. The place of occurrence was no private place. It is a place visited by a large number of persons from different places and areas. The occurrence in question would thus have been witnessed by a large crowd and .In the circumstances the complainant is not expected to name all the persons who had seen this occurrence except of course his own kith and kin or friends who were present with him at the place of occurrence.
16. Mubarak P.W. Was one such person who was present in Court premises in question accompanying a friend who had come there in connection with some personal matter mentioned in the evidence and in the circumstances the testimony of such an eye-witness cannot be discarded only on the ground that he had not been named in the F.I.R.
17. He is no relation of the deceased party nor does he have any animosity or ill-will against the accused party though he knows both the parties as belonging not to the village of these parties but belonging to the area in which this village falls.
18. No reason or grounds are available on record that Mubarak P.W., who had volunteered to state whatever he had seen of the occurrence, had any motive or axe to grind in implicating the present appellant in the occurrence in question.
19. It is apparent from the record that the two parties are quite well-known in the area and even the identification of appellant or the complainant party could not pose any real problem for Mubarak P.W. Who is running a hotel at Lori Adda of Pasrur.
20. Consequently, we hold that Mubarak P.W. Is an independent eye-witness of the occurrence in question whose testimony inspires confidence.
21. It is true that Bashir complainant is a brother of Nazir deceased but this relationship alone could not be sufficient to reject his testimony especially when his presence at the, place of occurrence stood admitted even by the appellant.
22. We have already rejected the appellant's claim that it was an unidentified assailant who had killed the deceased and had managed to escape unnoticed.
23. Bashir complainant was admittedly present at the place of occurrence alongwith his deceased brother. He was thus a witness to the proceedings of the murder in question whose assailant could not have slipped away without being noticed and in the circumstances it is not believable that Bashir P.W. Would let of the actual culprit and would substitute Jahan Khan appellant in his stead.
24. In this view of the matter, despite Bashir complainant's close relationship with Nazir deceased and despite his enmity with Jahan Khan appellant, his testimony inspires confidence and is believable.
25. There is yet another aspect of this case.
26. The occurrence in question had taken place on 22-9-1983. Jahan Khan appellant disappeared thereafter and could not be arrested till after almost two years of the said occurrence and that also after proceedings under sections 87 and 88 of the Cr.P.C. Had been taken against him. The appellant was, during his statement under section 342, Cr.P.C. Confronted with this long absconsion. He admitted this disappearance on his part but attributed the same to the fear of police. The ocular testimony offered by Bashir complainant and Mubarak P.W. Thus stands corroborated even by the absconsion of Jahan Khan appellant.
27. Having thus analysed the entire evidence available on record, we find that ne exception can be taken to the appellant's conviction as recorded by the learned trial Court and the same is accordingly upheld and maintained.
28. Jahan Khan appellant had taken the law into his own hands and had murdered Nazir deceased. Besides violating the sanctity of a human life, the appellant had even offended against the sanctity of the Court premises.
29. In the circumstances, he deserves no leniency. Nothing is available on record to justify the imposition of lesser penalty on Jahan Khan appellant.
30. Resultantly, even the sentence of death imposed on Jahan Khan appellant is upheld and the same is accordingly confirmed
31. Criminal Appeal No.465 of 1988 is, therefore, dismissed and Murder Reference No.183 of 1988 is thus answered in the above terms.