SARDAR MUHAMMAD DOGAR, J: -- Muhammad Arshad son of Muhammad Ismail had returned home after having taken the Intermediate Examination. On 16-5-1987 he was sitting in his house in Chak No.769/G.B. At a distance of 2 miles from Police Station Aroti, District Toba Tek Singh. His father (deceased) and mother Mst. Niamat Bibi (P.W.8) were also sitting there. It was 5 p.m. Suddenly Muhammad Ashraf armed with a gun, Munshi Khan armed with a revolver, Muhammad Akram, Sultan Sardar Muhammad and Wali Muhammad armed with Sotas came there. They raised a Lalkara that they will teach a lesson for not vacating the possession of land. Simultaneously, Muhammad Ashraf fired a shot which struck on the left thigh of Ismail just below the inguinal lagament near the sexual organs. He was fasting. On receipt of gunshot, he fell down. Qutab Din and Muhammad Ramzan came there hearing alarm. They also witnessed the occurrence. The accused went away firing and raising Lalkaras towards the land of the deceased. While leaving they threatened that if anybody dared do something, he will meet the fate of Ismail. Ismail died on the spot. The accused went to Killa No.23 of Square No.11, where they set on fire wheat crop filled in gunny bags, as a result of which wheat weighing about 400 gunny bags was burnt. Thereafter the accused went to their houses.
2. The motive for the crime was that 8 acres of State land had been allotted to Sardar Muhammad and Wali Muhammad. They had migrated from the village, as a result of which the allotment from their names was cancelled, and the land was allotted to Ghulam Muhammad maternal-grand- father of Muhammad Arshad in 1958. They were in possession of the land and were cultivating the same since then, as legal heirs (JAIZ WARSSAN ). The accused wanted to take the possession forcibly.
3. The occurrence was reported by Muhammad Arshad on the same day at 4-110 p.m. At the police station. The F.I.R. Was recorded by Ali Ahmad, S.H.O. (P.W.1.1) under section 302/435/148/149, P.P.C.
4. Ali Ahmad, S.I. After registering the case, reached the spot. He despatched the dead body for post-mortem examination, after preparing injury statement EARL and inquest report Exh. P.J. Blood- stained earth was collected by him from the spot vide memo. Exh. P.B. Empty P.1 lying near the dead body, empty P.2 lying near the door in the Ihata and empty P.3 lying in the street, were picked up by the S.I. During spot inspection and taken into possession vide memo. Exh. P.C. He had also collected crime empties P.4 to P.7 from the place where the wheat was burnt, vide memo. Exh. R.D.
All the accused were arrested on 3-6-1987. Gun P.11 got recovered by Muhammad Ashraf on 17-6- 1987 from his house was taken into possession vide memo. Exh. P.M. After completion of necessary investigation, the challan under section 302/148/149, P.P.C. Was submitted to the Court of Session.
Separate challan was submitted against the accused under section 435/148/149, P.P.C. To the Court of Magistrate.
5. The accused were tried under section 302/148/149, P.P.C. By the Sessions Judge, Toba Tek Singh.
After recording the prosecution evidence and the statements of the accused under section 342, Cr.P.C. Learned trial Judge convicted Muhammad Ashraf under section 302, P.P.C. Vide judgment, dated 2-8---1988 and sentenced him to death plus to pay a fine of Rs.10,000 in default whereof to undergo S.I. For 2 years. Rs.8,000 out of the fine, on realisation, was directed to be paid as compensation to the legal heirs of Muhammad-Ismail (deceased). All other accused were acquitted vide same judgment.
6. The convict has filed appeal. Learned trial Judge has made a reference for confirmation of death sentence. Both the matters are being disposed of together.
7. Statements of eleven P.Ws. Were recorded at the trial. Dr. Ghulam Dastgir, who had performed autopsy at 7-00 a.m. On 17-5-1987, appeared as P.W.5. He had noted following injuries on the body of the deceased;
(1) A punctured fire-arm wound 6 c.m. x 4 c.m. On the anterior of the left thigh just below the left inguinal lagament near the sexual organ. This wound was going into the thigh and crossing through and through damaging the greater vessels of the leg and muscles. Blackening and tattooing was also present.
(2)A punctured wound of fire-arm 1-1/2 c.m. x 1 c.m. x penetrating into the leg just near injury No.1.
(3)A punctured fire-arm wound 1 c.m. x 1 c.m. x deeper tissues just near the injury No.1.
(4)Exit wound. Two big exits (a) 4 c.m. x 3 c.m., (b) 3 c.m. x 2-1/2 c.m. On the posterior side of the thigh. Edges everted 20 c.m. Below the iliac crest of pelvis.
(5)An exit wound 1 x 1 c.m. On the posterior of left thigh. Injuries Nos. 1 to 3 were entry wounds caused by a fire-arm, while the remaining injuries were exit wounds.
On dissection, muscles and femoral vessels of the left leg were found absolutely torn.
Death was opined to have occurred due to injuries Nos.1 to 4. A cork was removed during dissection and was handed over to the police. Death was opined to have occurred between 5 and 15 minutes of the infliction of injuries, while the time between death and post-mortem was opined to be about 16 hours.
8. The ocular account was deposed to by Muhammad Arshad P.W.6, Qutab Din P.W.7 and Mst.
Niamat Bibi P.W.8.
Muhammad Arshad complainant while repeating the facts given by him in the F.I.R. Added that Munshi Khan had also continued firing from the revolver. During cross-examination he admitted that Haji Ali Muhammad (P.W.4) was brother of husband of his mother's sister. He stated that their house was surrounded from three sides by the inhabited houses. According to him the house of Qutab Din P.W. Was at a distance of 2 Killas while the house of Ramzan was a quarter of square away.
He did not admit any specific relationship with Qutab Din P.W., but conceded that he was Yakjaddi of his father. He gave out that Ghulam Muhammad his maternal-grandfather who was allotted the land, had only three daughters including his mother but had no son. According to him, his father was nephew of Ghulam Muhammad. Although he admitted that the investigation was conducted by D.S.P. Kamalia and D.S.P. Gojra also, apart from the S.H.O., yet he denied the suggestion that the five accused (excluding the appellant) during investigation in his presence had offered to have the matter decided on oath on Holy Quran and that he had refused to accept that. The suggestion that he had not witnessed the occurrence was denied by him.
9. Qutab Din P.W.7 corroborated the statement made by Muhammad Arshad. He explained that he had entered the house of the deceased while on way of Aroti to purchase fertilizer, on having seen the accused entering the house of the deceased. After having admitted during the cross- examination that his mother was a cousin of Jiwa's grandfather of the deceased, he denied that his mother had any relation with Jiwa. He stated that he was passing by the place of occurrence by chance. He gave out that he had not gone to purchase fertilizer on the day of occurrence because of murder. He denied the suggestion that he had not appeared before the other Investigating Officers for being afraid that he would be asked to make statement on Holy Quran.
10. Mst. Niamat Bibi P.W.8 were of the deceased corroborated the statement made by her son with regard to the occurrence that took place in her house. During cross-examination she stated that the land in dispute had been mutated in her name and in the name of her sister Mst. Sakina Bibi and their uncle Ranjha. She denied the suggestion that she was not in her house at the time of occurrence and had made a false statement.
11. The statement made by Ghulam Sarwar Head Constable (P.W.2) that he had despatched the parcel of crime empties received by him on 17-5-1987 alongwith the parcel of gun handed over to him on 17-6-1987 through Ghulam Shabbir Constable on 26-6-1987, was corroborated by Ghulam Shabbir, Constable, while appearing as P.W.3.
12. Haji Ali Muhammad resident of Chak No.294/J.B. Who appeared as P.W.4, claimed to have witnessed the collection of blood-stained earth from the spot, alongwith empties P.1 and P.2, and that of empty P.3 from the street outside the Ihata, during spot inspection. He also claimed that he had witnessed the collection of empties P.4 to P.7 from the place where the wheat was burnt.
During the cross-examination he stated that when he had reached the spot the police was already there. He stated that he did not know that there was a Lumberdar and a Councillor of Chak No.769/G.B. i.e. The place of occurrence. He admitted his relationship with the deceased, as given by P.W.6.
13. Ghazanfar Hayat, D.S.P. Gojra who had also investigated the case, while appearing as P.W.10 stated that he had submitted the challan against all the accused. During cross-examination he stated that Akram, Sultan, Munshi Khan, Wali Muhammad and Sardar accused had offered Nian to the satisfaction of the police and the complainant and had examined some witnesses also in defence. He admitted that the complainant party had not accepted the offer of Nian.
14. Ali Ahmad, S.I. Who had recorded the F.I.R. And initially investigated the case, appeared as P.W.11.
While giving the details of the investigation, he stated that he had picked tip 2 empties from the residential Ihata of the deceased, one from the street in front of the Ihata and 4 from the place where the wheat was burnt. According to him, Muhammad Ashraf had led to the recovery of gun P.11 during custody on 17-6-1987 after arrest on 3-6-1987. The other accused were also arrested by him on 3-6-1987. He denied the suggestion that he had fabricated the evidence of recoveries or that all the accused had been found not guilty and were challaned unjustly. However, he admitted that Bashir Hussain Shah, D.S.P. Kamalia had found the co-accused of Muhammad Ashraf as not guilty.
15. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case and pleaded innocence. He stated as follows in answer to the question, `why this case against you?':-- "It was an occurrence not seen by anyone. On suspicion I was falsely nominated as an accused in this case. My father, brothers and the co---accused were also falsely implicated:"
He denied to have led to the recovery of gun P.11. He did not produce evidence in defence and declined to make statement on oath.
16. We have gone through the evidence with the assistance of learned counsel for the appellant and have considered the arguments advanced by learned counsel for tile parties.
The occurrence had taken place in the house of the deceased. Muhammad Arshad son of the deceased had returned home after having taken Intermediate Examination. Mst. Niamat Bibi were of the deceased was also living in the house. Possibility of anyone of them being out of the house on the afternoon of a day in the month of May, cannot be taken in routine. Normally they were supposed to be in their house. As such, we would say that they were the' most natural witnesses.
17. Qutab Din P.W. Although was residing at a distance of about 2 acres from the house of the deceased yet he gave a plausible reason for having been at the spot at the time of occurrence. He was related to the deceased quite distinctly. We do not think that he would have come up as a false witness under the influence of a young boy who was only a student of 1st Year. He was not inimical to the appellant in any manner. In the circumstances, the argument of learned counsel for the appellant that the eye-witnesses do not appear to have witnessed the occurrence, in our view, possesses no weight.
18. The deceased had suffered 3 inlet wounds by fire-arm. Blackening and tattooing was noted around injury No.1. The difference of impact of entry of pellets at the seats of injuries, is understandable for two reasons, one that a large number of pellets appear to have struck and entered the body, at the seat of injury No.1 while only single pellet appears to have struck at the seats of injuries Nos.2 and 3 (we have assessed the difference in tile number of pellets, looking to the dimensions of the injuries noted by the doctor). The other is that tile deceased was wearing Tehband at the time of occurrence. The layers of Tehband/Chaddar, may be more at the part of the body where the deceased suffered injury No.1 while tile Tehband may be in single layer at the part of the body where he suffered injuries Nos.2 and 3. The fact that the deceased was wearing Tehband/Chaddar, at the time of occurrence, is borne out from Exh. P.G., vide which the last-worn clothes of the deceased were taken into possession by the Investigating Officer after the post- mortem examination.
The situation enunciated above, explains tile argument of learned counsel for tile appellant about the difference in shape/colour around injury No.1 and injuries Nos.2 and 3. After having carefully examined the situation we do not find force in tile argument of learned counsel for the appellant that the difference in tile colour shows that the deceased might have been shot at twice, once from a close range and second time from a distance. The consequential argument of learned counsel for the appellant that the medical evidence was contradictory to the ocular account stands repelled in view of the above explanation.
19. It was never the case of the appellant that were of the deceased, his son or Qutab Din P.W., were inimical to him for any reason. In fact, no suggestion even was put to any of the eye-witnesses during the trial. The appellant while making statement under section 342, Cr.P.C. Stated that he had been involved due to suspicion. We fail to find any weight in that also, because nothing has been brought on record to consider that son of tile deceased or his were would have suspected the appellant to have committed the offence. In fact, they stated only) what they saw. The ocular account furnished, in the circumstances, in our view, conclusively fixes the responsibility of the appellant for having committed the murder of Muhammad Ismail.
20. No doubt the empties were not sent to the office of the Forensic Science Laboratory, till one week after the recovery of gun from the appellant, and as such rule of caution demands that implicit reliance be not placed on the positive report of the Forensic Science Laboratory, but the delay in despatching the empties before the recovery of gun, in the case in hand, appears to be for the reason that the investigation had been changing hands too swiftly, in that, the investigation, apart from the S.H.O., was conducted by two Deputy Superintendents of Police and was once in the hand of an Inspector also.
21. The evidence of recoveries of empties from the spot and gun at the instance of the appellant, also does not smack fabrication that rather seems to be confidence inspiring. For the aforesaid reasons the report of the Forensic Science Laboratory also carries weight for lending corroboration to the ocular account.
As a result of the above discussion, we are convinced that the prosecution had succeeded in proving the case against the appellant. His, conviction under section 302, P.P.C. Is, therefore, maintained.
22. No doubt, the argument of learned counsel for the appellant that the appellant had no pecuniary interest in the land inherited by the were of the deceased after having been allotted to her father on migration of Sardar Muhammad and Wali Muhammad, who were the first allottees, is attractive, and possesses some weight too, but one should not be oblivious of the fact that sometimes persons out of sadism and jealousy also cannot tolerate the other persons receiving fruits from some property and deriving benefits. The land in question had firstly been allotted to Sardar Muhammad and Wali Muhammad, who were co-tribesmen of the appellant. The deceased belonged to a different tribe. The appellant must have been constantly thinking that the deceased was taking the fruits of the land, which was once owned and possessed by his kith and kin/Bratheri fellows. Tile grievance must have lasted for all these years and so on the day of occurrence the appellant avenged that. It was tile month of Ramazan. The deceased was lying in tile house, alongwith his son and were. He was fasting. It was distardedly act on the part of tile appellant to have taken his life. He, therefore, deserves no leniency. No case of mitigation is made out. The sentence of death awarded to him is, therefore, confirmed. The sentence of fine and direction for payment of compensation, on recovery of fine, is maintained.