SARDAR MUHAMMAD DOGAR, J.--- Muhammad Iqbal alias Bala, aged 30 years was tried by the Additional Sessions Judge, Faisalabad, for having murdered Muhammad Ramzan on 6-8-1987 at 3-00 p.m. In the fields in the area of Chak No.395/G.B. At a distance of 11 k.m. From Police Station Tandlianwala, District Faisalabad.
Learned trial Judge held him guilty under section 302, P.P.C. Vide judgment, dated 30-8-1989, convicted him thereunder and awarded sentence of --death plus to pay a fine of Rs.5,000 in default whereof to undergo R.I. For one year. He was also directed to pay a sum of Rs.5,000 as compensation to the heirs of the deceased, in default whereof to suffer R.I. For 3 months.
2.The convict has filed appeal through jail.
3. F.I.R. Exh.P.D./1 was registered at the police station by Muhammad Arif, M.H.C. (P.W.2) at 7-00 p.m.
On 6-8-1987, on receipt of statement Exh.P.D. Of Malla (P.W.5) recorded by Arshad Mehmud, Inspector/S.H.O. (P.W.9) at Gandasswala Chowk at 6-00 p.m. On the same day.
According to F.I.R. The appellant had fired a shot from carbine, hitting the deceased on the abdomen and both arms, in the fields. The father of the deceased, i.e. The complainant who was carrying meals for the deceased, witnessed the occurrence. Zulfiqar and Bashir P.Ws. Were also attracted to the spot and witnessed the occurrence on the noise raised by the complainant.
4. Muhammad Iqbal appellant wanted to marry Mst. Bibi daughter of Amir. Her engagement was performed with the deceased, on which the appellant felt annoyed and so he launched attack on the deceased and fired at him.
5. Arshad Mahmud, S.H.O. After despatching statement Exh.P.D. To the police station for registration of case,. Reached the spot and recorded statements of the P.Ws.
6. The S.H.O. On receipt of information on 29-9-1987 about expiry of the deceased in Civil Hospital, Samundri, reached there and despatched the dead body for post-mortem, after preparing inquest report Exh.P.I. And injury statement Exh.P.J. Challan was submitted to Court by him after completion of necessary investigation.
7. Statements of nine P.Ws. Were recorded at the trial.
Dr. Mumtaz Ahmad Bajwa who had medically examined the deceased whilst alive, on 6-8-1987, appeared as P.W.1. He had noted following injuries on his person:--
(1) Two lacerated gunshot wounds about 1 c.m. x 1 c.m. x bone deep on medial and posterior part of right forearm: No exit.
(2) A lacerated gunshot entrance wound 3/4 c.m. x 3/4 c.m. On medial and posterior lower part of the left forearm. There was exit of 1 c.m, on posterior and outer lower part of left forearm.
(3) Three lacerated gunshot wounds each about 1 c.m. x 1 c.m. (probing was not done) on abdomen. There was no tatooing or blackening on or around the wounds.
All the injuries, which were opined to have been caused by a fire-arm, within 6 hours, were kept under observation. During cross-examination he stated that as the deceased was in serious condition, he had referred him to D.H.Q. Hospital, Faisalabad for medical treatment. He stated that he had done so after giving the first aid. He had not removed blood-stained clothes of the deceased.
8. Dr. Anwar Saeed Saqib, who had performed autopsy on 29-9-1987 at Smundri, appeared as.
P.W.8. He had noted following injuries on the body of the deceased:--
(1) An incisional scar 16 c.m. x 2-1/2 c.m. Wide in the central part starting from epigastrium and few c.m. Below umblicus in poor healing stage.
(2) Two injuries scars on medial part of right forearm.
(3) An injury scar on medial and lower part of left forearm. .
(4) An injury scar on posterior and outer lower part of left forearm.
(5) An injury scar over abdomen little below epigastric plance.
On internal examination he observed that left pleura was adherent to chest wall and lung and peritonium was adherent to inside of abdominal cavity. Peritonium and omentum were adherent with each other and with coils of intestine. Small quantity of blood was present in the right side of heart. Small intestines were found adherent to each other with kidney and liver, while large intestines were found adherent with each other. One or two ounces of pus was present in the peritoneal cavity.
According to his opinion, death had occurred due to toxemia, resulting from septecemia, which was due to gunshot wound on the abdomen.
Time between injuries and death was opined to be within months while the time between death and post-mortem was opined to be within 12 to 16 hours.
During cross-examination he explained that by months, he meant two months. He denied the suggestion that the deceased had died due to lack of medical attendance. He did not deny the suggestion that while being in Samundri Hospital, the deceased was fit to make a statement.
9. Ghulam Sarwar, Head Constable who had arrested the appellant on' 23-8-1987 and taken into possession carbine P.1 alongwith 2 live cartridges P.2/1-2, appeared as P.W.4 and verified that fact.
He also claimed to have recorded the statement (Exh.P.G) of the deceased under section 161, Cr.P.C.
Whilst alive on 26-8-1987 in Tandlianwala town. During cross-examination he admitted that he had not made any attempt to produce the deceased/injured, before any higher officer or Magistrate for recording the statement. He denied the suggestion that the carbine and cartridges were not recovered from the appellant and he had planted the same to strengthen the prosecution case.
10. Malla P.W.5 while giving the ocular account and -motive for the occurrence repeated the facts given by him in the F.I.R. He explained that a constable had accompanied Muhammad Ramzan injured to the civil hospital for medical examination. He stated that after the deceased had been discharged from the D.H.Q. Hospital he had taken him to Samundri and got admitted there. He claimed that the appellant was his nephew. During cross--examination he stated that he had mentioned that fact in Exh.P.D. The same, however, was not found recorded on confrontation. He admitted that Bashir and Amir P.Ws. Were sons of his sister. He also admitted that Amir and Bashir P.Ws. Were nephews of Mst. Khano mother of the appellant, but he expressed ignorance whether she had instituted any suit against them for getting share of her husband from the land. While denying that Zulfiqar P.W. Was related to .Him, he admitted that he had appeared as a P.W. In the murder case of his (Zulfiqar's) brother. He stated that as a result .Of the injuries caused to the' deceased his blood had fallen on the earth and his clothes were also stained with blood. He gave out that he was landless and was cultivating the land of someone as a tenant.
11. Zulfiqar P.W.6 corroborated the statement made by P.W.5 in so far as that pertained to the actual occurrence. During cross-examination he stated that he owned land near the fields where the occurrence had taken place and had gone there for cutting fodder. He stated that he had not accompanied the deceased to D.H.Q. Hospital, Faisalabad. While admitting that Malla P.W. Had appeared as a P.W. In the murder case of his brother he denied the suggestion that he had become a witness in this case in return for that or that he had made a false statement.
12. Amir, who had identified the dead body and had witnessed the recovery of carbine at the instance of the appellant, appeared as P.W.7. He also stated that Muhammad lqbal appellant was his first cousin and he had given his daughter in Nikah to Muhammad Ramzan. He stated that the appellant had also asked for the hand of his daughter but he had refused. Although during cross- examination he was suggested that he had not made statement to the police about the motive but on his assertion that he had done so, he was not confronted with the statement before police to show that he had not done that. He admitted that Mst. Khano mother of the appellant was his paternal-aunt and she had instituted a civil suit against his father, but added that the suit had ended in compromise and Mst. Khanu had been given her share of landed property. In answer to another question he stated that Muhammad Ramzan had returned to his house for some time about 15 days after the occurrence and from there he had gone to Civil Hospital, Tandlianwala after some time. He denied the suggestion that nothing was recovered from the appellant.
13. Arshad Mahmud, S.H.O. Who had recorded statement Exh.P.D. And had got the dead body post- mortemed (after death) after preparing necessary documents, appeared as P.W.9 and deposed those facts.
During cross-examination he stated that when he had gone to the spot, Muhammad Ramzan was not there as he had already been sent by Rafaquat A.S.I. To the hospital for mt.Dical examination.
He stated that he had not collected blood-stained earth from the spot as he had not found any. He produced letter Exh.D.A. Received by him from the Medical Officer, Samundri about the expiry of Muhammad Ramzan in Samundri hospital. The certificate is dated 22-9-1987. He also owned that he had prepared visual site plan Exh.D.B. He explained that he had handed over the investigation to Ghulam Sarwar, Head Constable as during investigation of the case he had met with an accident.
He denied the suggestion that he had gone to the spot after receiving information and recorded statement Fxh.P.D. At the spot after consultations and deliberations.
14. The appellant during his statement under section 342, Cr.P.C. Denied, the prosecution case and pleaded innocence. He denied that he had ever wanted to marry Mst. Nasim Bibi. He *set up the plea that he had been implicated in the case on account of enmity. He produced in defence Exh.D.C.--Khasra Girdawari. He declined to make statement on oath in. Defence.
15. Learned counsel for the appellant after having taken us through the evidence criticised the impugned judgment and contended that the F.I.R. Appears to have been recorded after deliberations and consultations; that the eye-witnesses do not appear to have witnessed the occurrence and that the death does not seem to be the direct result of the injuries suffered by the deceased during the occurrence. Lastly, learned counsel contended that even if the conviction is maintained, it would be a case of capital sentence.
16. The statement made by the complainant that his son was engaged to the daughter of Amir (P:W.2), has been fully corroborated by Amir, who appeared as P.W.7. In fact Amir P.W stated that actually the Nikah had been performed. The claim of Amir that he had given his daughter in Nikah to the deceased, and had refused her hand to the appellant, was not challenged on behalf of the appellant even by way of suggestion. As such, there is nothing on record to hold that the prosecution had failed to prove motive for the occurrence.
17. It is a case of single accused. Statement Exh.P.D. Was made by the complainant to the Inspector/S.H.O. Shortly after the occurrence, when he had met him at Chowk Gandasswala. The F.I.R. Was lodged only against one person, who was alleged to have fired a single shot. The accused named in the F.I.R. Was real nephew of the complainant. In the circumstances it cannot be assumed by any stretch of imagination that any consultations or deliberations were done before lodging report. The complainant claimed that blood had fallen at the spot while the S.H.O. Stated that during the spot inspection which had been done in absence of the complainant, he had not found any blood--stains at the spot. Had Exh.P.D. Been recorded at the spot, the two witnesses would not have stated contradictory things. Moreover, if the Inspector had chosen .To help the complainant party by letting them make statement after consultations and deliberations, he would have created some evidence of collection of blood-stained earth from the spot. The complainant had lodged report against a single person who was his nephew. In the circumstances it cannot be assumed by any stretch of imagination that the F.I.R. Might not have been recorded as claimed by the prosecution and actually had been recorded after consultations and deliberations.
18. Except the motive for the occurrence given by the complainant, there was no other enmity or differences between the complainant and the appellant. In fact no suggestion was put on behalf of the appellant during cross--examination to the complainant that he was inimical to him or that his family was inimical to the family of the accused for any reason. The appellant was real nephew of the complainant. He would not have lodged a false F.I.R. Against his own nephew. The occurrence had not taken place, for away, from the village Abadi. The explanation given by the complainant for being at the spot is reasonable. In the circumstances it cannot be assumed that he might either have not witnessed the occurrence or might have falsely involved the appellant.
19. Zulfiqar P.W. Was not related to the complainant. Although the complainant had appeared as a witness in the murder case of his brother, yet the witness had no enmity with the appellant who also was a nephew of the complainant. It is difficult to believe that he would have become a party in the false prosecution of a nephew by an uncle. He owned land around the fields where the occurrence had taken place and so his claim of being present there, cannot be disbelieved.
20. The ocular account which finds sufficient corroboration from the evidence of motive and the medical evidence, in our view, is sufficient to hold A that it was the appellant who had fired at the deceased. Although the prosecution led the evidence of recovery of carbine also yet since the same had not been sent to the laboratory, perhaps on account of non-recovery of empty from the spot and non-recovery of pellets from the body of the deceased, the same is not of much value.
21. The argument that death was not the direct result of the injuries caused by the appellant, has not impressed us. The mere fact that some parts of the body were adherent to the other parts, is no ground to hold that the same might have led to death. The doctor who had performed autopsy, clearly stated that death had resulted due to toxemia, resulting from septecemia, which had occurred due to injuries to the abdomen. Even if the argument of learned counsel for the appellant, that the deceased, after being discharged from the D.H.Q. Hospital, had remained for some days in his house and had thereafter gone to the Civil Hospital, Samundri where he died later, is granted, g that hardly is a ground to hold that death was not the direct result of the I injuries suffered by the deceased at the hands of the appellant.
22. In the circumstances no case for altering the conviction of the appellant from under section 302, P.P.C. To any other section, is made out. The same is, therefore, maintained.
23. We do not find any mitigating factor to alter the sentence of death to lesser sentence of imprisonment for life. The deceased was first cousin of the appellant. It was not a choice of the unfortunate chap to marry the daughter of Amir P.W. The decision had been taken by his father and father of the girl. There is nothing on record to hold that the appellant might have acted under provocation because the girl engaged to the deceased, was never engaged to him (the appellant). It was his own desire which had not been adhered to by the father of the girl.
In the circumstances, we do not find any material to alter the sentence of death to imprisonment for life. The same is, therefore, confirmed.