SH. KHIZAR HAYAT, J.--- Muhammad Hassan son of Ghulam Rasool aged 27/28 years caste Jat resident of Chak No.297/HR, Tehsil Fort Abbas, District Bahawalnagar, has been convicted for the murder of Abdul Haq, aged 23/25 years, his co-villager, by Additional Sessions Judge, Bahawalnagar, vide judgment, dated 18-7-1987, and sentenced to death and a fine of Rs.10,000 or in default of payment of fine to undergo 2 years' R.I. No compensation under section 544-A, Cr.P.C., was, however, awarded. The convict has appealed and the trial Court has submitted the proceedings of the trial to this Court under section 374, Cr.P.C., for confirming the death sentence.
We propose to dispose of the appeal as well as the murder reference by this single judgment.
2.The occurrence took place on 17-8-1986 at 10-00 a.m., in a street of village (Chak No.297/HR) in front of the house of Irshad Ahmad Arain. It was reported by Faqir Muhammad (P.W.7), father of the deceased, to S.I. Najamuddin (P.W.9) at Bus-stand Maroat City, the same day at 12 noon vide statement Exh.P.E., about 25 k.m., away from the spot. Formal F.I.R. Exh. P.A. Was drawn on the basis of statement Exh.P.E. By A.S.I. Muhammad Sarfaraz (P.W.1) at Police Station Maroat at about 12-20 p.m.
3. Motive for the offence was stated to be that the appellant abducted Mst. Kubra, sister of the deceased, about 3 years before the occurrence and took her to Sindh where he married her. About a year before the occurrence the appellant alongwith Mst. Kubra returned to the village and started living firstly at his Dera and then in village Abadi. Some days prior to day of occurrence the deceased restrained the appellant from visiting the Mohalla in which their houses were situate. The appellant challenged the authority of the deceased to restrain him from visiting his Mohalla, and resented it. As a sequel therto, it is alleged, the instant occurrence had taken place.
4. On the fateful day which was Eid-ul-Azha day, Abdul Haq (deceased) alongwith his father Faqir Muhammad, complainant (P.W.7), his uncle Sardar Muhammad (P.W.8) and his brothers Muhammad Ashraf and Abdul Rahman was returning home after saying the Eid prayer at about 10-30 a.m. The deceased was going a few paces ahead of his companions. When the deceased reached in front of the house of Irshad Ahmad Arain, Muhammad Hassan (appellant) who was standing there armed with a gun threatened the deceased that he would not spare him. Abdul Haq (deceased) hearing this threat turned towards the accused to avert the attack but the appellant fired at him hitting in the lower part of his abdomen. As a result of the injury the deceased fell on the ground. Faqir Muhammad, Sardar Muhammad and others tried to apprehend him but the appellant threatened them at the gunpoint, to keep away, and decamped from the scene. Abdul Haq was immediately removed in a car to Civil Hospital, Fort Abbas but he died before any medical aid was rendered to him. Leaving the dead body in the care of the P.Ws. At the hospital Faqir Muhammad went for making report to the police and having met S.I. Najamuddin (P.W.9) at Bus Stand Maroat City lodged report with him, as stated earlier.
5. S.I. Najamuddin (P.W.9) after recording the statement Exh. P.E. Sent it to the police station for registration of formal F.I.R. And himself went to the hospital. He prepared inquest report Exh. P.H. Of the deceased and sent the dead body to the mortuary for post-mortem examination under police escort. He then visited the sport and secured blood-stained earth from there vide memo. Exh. P.F.
He arrested the appellant on 19-8-1986. The appellant while in custody led to the recovery of double-barrel gun (P.3) with its licence (P.4), an empty (P.5); a live cartridge (P.6) from his residential house. These articles were seized under memo. Exh. P.G. In the presence of Sardar Muhammad (P.W.8) and Muhammad Ashraf (P.W., not produced). According to the Forensic Science Laboratory's report Exh. P.K., empty (P.5) was found as fired through gun (P.3). Blood- stained earth removed from the spot was found as stained with human blood vide Chemical Examiner's report Exh. P.J. And that of the Serologist Exh. P.L.
6. Dr. Muhammad Mushtaq (P.W.5) on 17-8-1986 at 2-30 p.m., conducted post-mortem examination on the dead body of Abdul Haq and found a gunshot wound of entrance above the pubic region which was oblique in direction measuring 10 c.m. x 12 c.m. There was bleeding, burning and tatooing around the wound. The edges were lacerated and inverted. There was an exit wound 1 c.m. x 1 c.m. On the upper part of the right buttocks with everted margins. One pellet was found from the abdominal cavity. There were corresponding multiple tears with bleeding on the shirt and loin-cloth of the deceased. In the opinion of the doctor, the deceased had died of haemorrhage and shock produced by the fire--arm injury which was sufficient in ordinary course of nature to cause the death. Time between injury and death was immediate and between death and post--- mortem examination within 12 hours.
7. At the trial 9 witnesses were examined by the prosecution in support of the charge. Of them Faqir Muhammad, complainant (P. W.7) and his brother Sardar Muhammad (P.W.8) supported the prosecution story as narrated in paras. 3 and 4 above. Sardar Muhammad also stated about the recovery of licensed gun (P.3) alongwith its empty (P.5) and live cartridge (P.6) made at the pointation of the appellant. Dr. Muhammad Mushtaq (RW.5) proved that the deceased had died of gunshot injury and S.I. Najamuddin (P.W.9) stated about investigations made by him in the case.
8. The appellant in his statement under section 342, Cr.P.C., stated that deceased's sister Mst. Kubra was engaged with him but her parents refused to give him her hand. He shifted to Sindh and Mst.
Kubra came over to him of her own accord where he married her. They returned to the village a year before the occurrence. He denied that the deceased had ever restrained him from passing near their houses or there was any quarrel between them on this account. He owned gun (P.3) to be his licensed arm from which he admitted to have fired at the deceased in self-defence under the following circumstances:-- "I am innocent. I was engaged with Mst. Kubran Bibi before the occurrence and the father of Mst.
Kubran Bibi refused to fulfil his obligation and did not marry his daughter. Disappointed by this gesture I went to Sindh and Mst. Kubran Bibi deserted her parents and came to me on her own accord. I was married with her and after two years of the marriage and one year before the occurrence came back to Chak No.297/H.R., as I had landed property in this Chak. We started living in our Dera where 'the complainant party used to threaten us. Thinking unsafe to be at our Dera we shifted to the Chak Abadi. Abdul Haque deceased and the others continued to threaten me for dire consequences on account of, elopement of Mst. Kubran Bibi. I always tried to avoid any scuffle. My were and myself reported the matter several times to the police but the local police of Marote Police Station did not pay any heed to our complaints. For instance my were lodged a report Exh.
D.B. On 20-3-1986 about the highhandedness of the complainant party. Similarly, I called on the D.S.P. Raja Imtiaz Ahmad on 24-10-85 and at)prised him that the complainant party was bent upon killing me and I have apprehended danger of my life, an application was moved photo copy of which I produce. The deceased Abdul Haque had a licensed gun and he used to threaten me that whenever he would find me alone he would kill me. 3/4 months prior to the occurrence for the safety of my own life 1 also purchased a licensed gun. Because of the aforesaid threat of the deceased and the complainant party I used to keep my gun with me. On the day of occurrence I was standing on the door of Irshad Arain when the deceased armed with his gun threatened me of dire consequences. I fearing from the deceased went into the house of Irshad Arain to take, refuge but 'the deceased alongwith his gun entered the house and from the threshhold fired at me which missed. When the deceased was on the verge of firing a second shot, I for my own safety of life and in self---defence I fired at near legs of the deceased who fell on the ground. Then I went to the police station and requested for the registration of the case against, the deceased. None of the P.Ws. Was present at the spot. The Marote Police in spite of my repeated requests did not record the evidence of the independent P.Ws. Muhammad Irshad son of Fazal Din, Mushtaq Ahmad Councillor, Hakim Ali and Mehmood and so many others. They also did not recover the gun of the deceased and openly supported the complainant party and have suppressed the facts."
The appellant also appeared under section 340(2), Cr.P.C. In disproof of the allegations and to support his plea. Learned trial Court rejected the defence version and believing the prosecution story convicted and sentenced the appellant, as indicated above. Hence this appeal.
9. Learned counsel appearing on behalf of the appellant submitted that it was complainant party, which had motive to attack the appellant as Mst. Kubra, daughter of the complainant and sister of the deceased, had eloped with him (appellant) who married her against former's wishes. He emphasized that report Exh. D.B. Lodged b7 Mst. Kubra with the police on 20-3-1986 shows that the complainant party had tried to attack them even earlier, therefore, appellant's plea that he was attacked by the deceased on the day of occurrence and that he acted in self-defence appears to be nearer to truth as compared to the prosecution story which is not supported by any witness of independent character. The eye-witnesses, namely, Faqir Muhammad and Sardar Muhammad P.Ws. Are close relations of the deceased and the trial Court has erred in believing their version without any independent corroboration and as such the conviction recorded on its basis is liable to be set aside. Alternately, he submitted, that in case conviction is upheld then the death sentence be commuted to imprisonment for life as the immediate cause of attack is shrouded in mystery.
On the other hand, learned State counsel has defended the impugned judgment.
10. We have carefully considered the facts and circumstances of the case in the light of the contentions of learned counsel for the parties and also perused the record.
11. It is a case of two versions. Both parties are at one as to the time and place of occurrence. Even the fact that the deceased was killed with a gun-fire is not disputed. Each party dubs the other as "aggressor". This is the point where they actually differed. According to the prosecution, the appellant armed with his licensed gun stood in wait of the deceased outside Irshad Arain's house and when the deceased passed that way he (appellant) fired at him in the presence of Faqir Muhammad and Sardar Muhammad P.Ws. Contrarily, the appellant's version is that he was present at the door of the house of Irshad Arain where the deceased came armed with a gun and fired at him to avenge Mst. Kubra's abduction, but he was not hit. And that to prevent him from firing second shot he fired at the deceased in self-defence. He denied that any of the prosecution witnesses was present at that time. We have examined the entire evidence to find out as to which of the two versions is correct?
12. Admittedly the occurrence took place on the day of Eid-ul-Azha and at the relevant time people were returning to their houses after saying Eid prayer. It is common knowledge that the members of one family go together for saying Eid prayer and return home together. It is in evidence that house of the deceased is 67 Karams from the place of occurrence. It is not denied that the street of occurrence does not lead to the house of the complainant party. Therefore, it is quite probable that the deceased with his father (P.W.7) and uncle (P.W.8) was returning home after saying Eid prayer when this occurrence took place. On the other hand, the appellant in his statement under section 340(2). Cr.P.C. Admitted that there are other routes leading to his house than the street of occurrence. Again, in his statement under section 342, Cr.P.C., he stated that he was standing in front of Irshad Arain's house at the relevant time. It is not understood why he chose this route and then why he stood at Irshad Arain's door instead of going to his home and enjoy Eid celebrations with his family. It is legitimately inferable that he being sure that the deceased would pass that way to reach his house he stood in wait of him near house of Irshad Arain for attacking him. Further, ordinarily the appellant could not be expected to be present there, so the defence story that the deceased came duly armed towards house of Irshad Aram for attacking the appellant does not stand to reason. The story told by Faqir Muhammad (P.W.7) and Sardar Muhammad (P.W.8) is quite convincing and fits in with attending circumstances. It inspires confidence. They did not make any departure from the story told to the police in promptly lodged F.I.R. We are quite convinced that these witnesses are the witnesses of truth and can be safely relied upon.
13. The cause of the attack, according to the prosecution, was that few days earlier there was a quarrel between the appellant and the deceased when the latter had restrained him from visiting his Mohalla, hence this occurrence. On the other hand, learned counsel for the appellant has laid great stress on certified copy of report Exh. D.B., dated 20-3-1986, to show that the deceased and his family were incensed because of Mst. Kubra having married the appellant of her own and, therefore, they had the motive to attack the appellant and the deceased actually attacked him on fateful day as was done earlier. There is no denying the fact that Mst. Kubra had brought bad name to her family but there is nothing on record to show that after appellant's return alongwith Mst.
Kubra to the village, the complainant party had ever tried to bring Mst. Kubra back forcibly or to have made any attempt on the life of appellant. Even in the report Exh. D.B. Which, to our mind, is inadmissible in evidence (for Mst. Kubra, its maker, has not entered the witness-box) the complainant party allegedly expressed their resentment to Mst. Kubra and did not attack the appellant. Had the appellant been threatened or attacked by the complainant party earlier then the appellant would have himself lodged its report with the police. Admittedly, the complainant did not get a criminal case registered against the appellant for the abduction of Mst. Kubra by him. It shows that the complainant party had compromised with the situation knowing that their own girl was to blame for all this. The appellant seems to have emboldened by this lukewarm attitude of the complainant party and started visiting complainant's Mohalla to add insult to their injury with impunity and if the deceased objected to this behaviour of the appellant it would not mean that the appellant had any justification to waylay and kill the deceased.
14. Having considered the defence version by placing it in juxtaposition with the prosecution story, we have found that the defence story is not only unreasonable and improbable but is afterthought and false. As stated earlier, the appellant had not been able to justify his presence duly armed with a gun at the door of Irshad Arain. Secondly, had the deceased fired at the appellant and the latter escaped unhurt then the pellets must have hit the door or walls around Irshad Arain's house. But it is not so. Again, Irshad Arain has not come forward to support the defence plea. On the top of it, had it happened as stated by the appellant that he shot down the deceased in self-defence after deceased's shot went amiss then why did not he get hold of the gun of the deceased and produce it before the police when, according to him, none of the P.W's. Was present there. He has not even suggested to the investigator that he had picked up the gun of the deceased and produced it before him. This circumstance weighs very heavily against the appellant and demolishes the defence plea completely. It is further noteworthy that the wound of entry found on the person of the deceased has blackening and tattooing marks. It suggests that he was fired at from a point--blank range. It is quite in keeping with the prosecution story, i.e., that when the appellant shouted a Lalkara to the deceased that he shall not be spared the latter turned towards the appellant and in order to avert the attack tried to get hold of the gun so in a bid to save himself his hand would have touched the barrel of the gun as a result the direction of the barrel was lowered and the shot hit the lower part of the abdomen of the deceased. It was not because the appellant had aimed the shot at his legs. The appellant's assertion that his defence witnesses, namely, Muhammad Irshad, Mushtaq Ali Councillor, Hakim Ali and Mahmood appeared before the police but their evidence was not recorded has no substance in. It. Firstly, the Investigating Officer stated that some of them appeared before him on 14-9-1986 but he did not believe their story. Secondly, if their statements were not recorded by the police then the appellant could still produce them at the trial in his defence. But nobody from amongst them has been produced by the appellant to support his plea.
For all these reasons we find that defence story is not at all reasonably probable, rather it is baseless and absurd and the trial Court had rightly rejected it. It follows that the case set up by the prosecution is proved to the hilt and the conviction recorded by the learned trial Court under section 302, P.P.C. Is justified and proper and we uphold the same. The appellant committed deliberate, cold-blooded and calculated murder of the deceased. There is no extenuating circumstance in favour of the appellant whatsoever. He, therefore, richly deserves the extreme penalty of death and we hereby confirm the death sentence awarded to him by the trial Court. The sentence of fine is, however, maintained. The appeal and the murder reference both are disposed of accordingly.