SALEEM MAZHAR, J.----Kharait Elahi (35) son of Rehmat Ealhi has been convicted under section 302, P. P. C. For the murder of Abdul Ghani arias Kala and sentenced to death and a fine of Rs. 2,000.
The fine, if realised, was to be paid to the legal heirs of the deceased as compensation, as directed in his judgment dated 18-7-1974 of the learned Sessions Judge, Rawalpindi.
2. The convict has filed this appeal against his conviction and sentences and we have also usual reference for the confirmation of his death sentence. This judgment shall dispose of the appeal as well as the reference.
3. The occurrence took place on 20th of July, 1972 at 6 p. m. In a lane near T. B. Centre, at a distance of three furlongs from Police Station `D' Division, Rawalpindi. Statement (Exh. P. A) was made by Abdul Karim (P. W. 10) father of the deceased and was recorded by S. I. Muhammad Hayat (P. W. 15) at 8-30 p.m. On ;be same day, at D. H. Q. Hospital, Rawalpindi. Formal F. I. R. (Exh. P. A. /1) was recorded at the Police Station on the same day at 8-45 p.m. By A. S. I. Muhammad Yaqub (P. W. 9).
4. The motive for the crime as set up by the prosecution is that the accused was a man of bad character and used to extract money from the deceased on one pretext or the other. The deceased refused to pay money to the appellant and there was some quarrel a day to the occurrence which led to this unfortunate murder.
5. In the F. I, R. The occurrence is reported gave taken place in the following manner. On 20th of July, 1972 at G p.m. Abdul Karim (P. W. 10), his cousin Abdul Jabbar (P. W. 11) alongwith Abdul Ghani (dec- -eased) left in a taxi to see the children of Abdul Ghani (deceased). The taxi was stopped at some distance. The deceased got down from the taxi and proceeded towards his house. The complainant and his cousin Abdul Jabbar P. W. Were making payment to the taxi driver. The deceased had hardly gone a few paces when all of a sudden the appellant emerged from a wall and gave a Lalkara that he was going to teach him a lesson for the abuses hurled at him yesterday and also fired a revolver shot at the deceased but it missed. The deceased fell down on the ground with his back towards the ground and when he again got up the appellant fired the second shot hitting him on the right shoulder at his back near the neck. Abdul Ghani after receiving the injury went inside his house, at a distance of 25/30 Karams. These complainant and his cousin Abdul Jabbar also proceeded to the house a of the deceased. The deceased was struggling for his life and death. His wife Mst. Nagina (P. W. 13) told them that the deceased had told her that he has been fired at by Kharait Elahi appellant. Abdul Ghani (P. W. 12), who was also near the soot witnessed this occurrence. The accused threatened the witnesses not to come near him and left the spot waiving his revolver. Abdul Ghani could not speak. He was placed in a taxi and carried to Civil Hospital but on the way he succumbed to the injury.
6. Dr. Khalid Javed, C M.O., D.H.Q. Hospital, Rawalpindi on 21-7-1972 at 9- 45 a. m. Conducted the post-mortem examination on the dead body of Abdul Ghani and found the following injuries:-
(1) A rounded wound of entrance of a bullet, --' round, with burnts inverted margins on the back of right shoulder.
(2) A laceration, ----- x ----- right lumber region.
(3) A laceration, -- --- x ----- near injury No. 2.
Injury No. 1 was caused by a firearm and was sufficient to cause death in the ordinary course of nature. The other injuries were simple caused by a blunt weapon. Death was due to shock and haemorrhage as a result of injury No. 1. Time between death and injuries was one hour and between death and post-mortem teas about 15 hours. The post-mortem report has been proved by Azizur Rehman Dispenser (P. W. 6) because the doctor had left for London to attend some course.
One crime lead bullet was recovered from the dead body of the deceased and its examination revealed that the crime bullet had been fired from the .32 bore revolver in question as is clear from the statement of Muhammad Sarwar (P. W. 4), Fire-arms Expert.
7. The appellant was arrested on 22-7-1972 by S. I. Muhammad Hayat (P. W. 15) and on the personal search of the appellant revolver (P. 1) along-- with three live-bullets and one missed bullet were recovered and were secured ride memo. Exh. P. C. The memo. Was attested by Hakim A.I (P. W. 3), Gul Zaman (P. W. 14), besides the Sub-Inspector.
8. At the trial the appellant denied anything to do with the occurrence. He also disowned the recovery of the revolver. He did not produce say defence.
9. We have heard learned counsel for the appellant and also the State Counsel and have gone through the record carefully. It was urged by the learned counsel for the appellant that none of the eye-witnesses, namely, Abdul Karim (P. W. 10), Abdul Jabbar (P. W. 11) and Abdul Ghafur (P. W. 12) had seen the occurrence because if they toad seen the occurrence the report should have been lodged promptly with the police because the Police Station was hardly at a distance of three furlongs from the spot. It was also urged that Abdul Karim and Abdul Jabbar are close relations of the deceased as stated earlier while Abdul Ghafur P. W. 12 is a chance witness because he has admitted in his cross-examination that his house is situated at a distance of two miles from the spot and he worked as a manager on a hotel in Fawara Chowk and that the spot is 2J miles from his hotel. He had no specific business to be present at the spot at the relevant time. He had also admitted that his father is a vegetable seller since about 20/25 years in Sabzi Mandi and he had visited Sabzi Mandi many a times. Abdul Karim complainant is also a vegetable seller having his business in the Sabzi Mandi. Abdul Ghafur P. W. Has stated that he did not know if his father runs business jointly with Abdul Karim for the last many years and he tried to conceal this fact. The complainant has himself admitted that the place of occurrence was in the midst of shops and houses and many persons of that locality also witnessed the occurrence but none of them was cited as a witness. To us it appears that the deceased was fired at by the appellant when he was near his house and he immediately informed his wife Mst. Nagina (P. W. 13) that it was the appellant alone who had fired at him. We are not going to place any reliance on the testimony of the eve-witnesses mentioned above for the reasons stated earlier. But in view of the oral dying declaration made by the deceased to his wife Mst. Nagina P. W., we are of the opinion that as Mst.
Nagina P. W. Had no enmity with the appellant and thus there appears to be no false implication.
However, the immediate cause for this attack remains a shrouded mystery.
Another circumstance which goes against the appellant is the recovery of the revolver which matched with the crime bullet recovered from the body of the deceased. Hakim A.I (P. W. 3) and Gul Zaman (P. W. 14) had no enmity with the appellant. Their testimony stands corroborated by the testimony of the Investigating Officer. Thus we believe the recovery of the revolver.
10. The upshot of the above discussion is that as the prosecution has failed to establish the immediate cause for the attack, therefore, it is a case A where lesser penalty should be awarded to the appellant. We, therefore, maintain the conviction of the appellant but alter the sentence from death to imprisonment for life. The sentence of fine is however maintained. The appeal stands accepted to the above extent. The sentence of death is not confirmed.