' JUSTICE MUHAMMAD RAFIQ TARAR (CHAIRMAN).---This appeal by Abdul Jabbar and Muhammad Akram appellants is directed against the judgment of the learned Special Court for Speedy Trials, Multan, dated 19-1-1993, whereby they were convicted under section 302/34 of P.P.C. For the murder of Muhammad Usman deceased, and Abdul Jabbar was sentenced to death and Muhammad Akram to imprisonment for life with a further direction to pay Rs, 25,000 each to the legal heirs of the deceased as compensation.
2. The brief facts of the prosecution case are that Abdus Salam P.W. Was running a petrol pump within the area of Chak No,28/M after taking it on lease from one Zafar Hussain Shah. Muhammad Usman deceased was his employee at the said petrol pump. On 1-6-1992 Abdus Salam accompanied by Muhammad Jamil P.W. And Jang Sher (not produced) went to the petrol pump in order to check the accounts. They all stayed for the night at the petrol pump. At about 3-30 a.m.
(on 2-6-1992) Abdus Salam P.W. Woke up and saw Abdul Jabbar and Muhammad Akram appellant armed with a gun and revolver present there. He identified them in the tube-light of the petrol pump. Both of them fired their weapons at Muhammad Usman deceased from a very close range hitting his chest. Abdus Salam and his companions tried to apprehend them but they threatened them with dire consequences and fled away from the spot with their weapons.
Muhammad Usman succumbed to his injuries at the spot.
3. Motive alleged by the prosecution was that Muhammad Afzal, elder brother of Muhammad Akram appellant, had borrowed Rs,25,000 from Muhammad Usman deceased. On account of that he started visiting the house of Muhammad Afzal. The accused party had a suspicion that Muhammad Usman had developed illicit relation with the daughter of aforesaid Muhammad Afzal.
Leaving the dead body at tke spot, Mithammad Jamil P.W. Went to Police Station Dunyapur and reported the occurrence to Muhammad Amir Inspector/SHO at 7.45 a.m. Vide F.I.R. Exh. PE.
4. After recording the F.I.R. Muhammad Amir S.H.O. Reached the spot and despatched the dead body to the mortuary after preparing the injury statement and the inquest report. Then he secured some blood-stained earth from there and made it into a sealed parcel vide memo. Exh. PF. He also secured blood-stained cot P5 and shoes of the deceased P6/1-2 vide memo. Exh. PG. He arrested both the accused on 5-6-1992. On 9-6-1992 Abdul Jabbar accused produced his licensed gun before him alongwith its licence vide memo. Ex. PJ. On the same day Muhammad Akram, while in custody led to the recovery of revolver P7 with three live bullets P8 to P10 which were made into a sealed parcel vide Exh. PK. After the usual investigation both the accused were challaned.
5. On 2-6-1992 at 2-00 p.m. Dr. Muhammad Munir conducted autopsy on the dead body of Muhammad Usman deceased and found the following injuries on it:
(1) A lacerated wound 3.5 x 3 x 3.5 c.m. On the front of right chest 6 c.m. From right nipple,edges are inverted, there is blackening of the edges, it is wound oftntry.
(2) A lacerated wound 1 x .7 x .5 c.m. On the back of right chest along the medial border of the scapula it is 5 c.m. From interior angle of the right scapula, edges of the wound are everted, it is exit wound.
(3) A lacerated wound 1 x 1 x 1.5 c.m. On the front of right chest 2 cm from medial end of right clavicle 6.5 c.m. From injury No,1, there is jet blackening of the all edges of wound, edges are inverted, it is a wound of entry.
(4) A lacerated wound. 5 c.m. x 3 x 1.5 c.m. On the back of the left side of abdomen 17 c.m. From inferior angle of the left scapula.
(5) A swelling 18 x 16 c.m. On the back and lower part of the left chest and upper part of abdomen.
' The doctor described the course of the projectile causing injury No,1 as under: "Bullet entered through injury No,1, after fracture of third rib at anterior end. This caused injury to the middle lobe and upper part of lower lobe. A part of cartridge removed from middle lobe. Right side of pleural cavity was full of blood. After injuring the lung, bullet entered in the heart. It caused a lacerated wound 4 x 2.5 x 6 c.m. On the back and upper part of the heart. A -part of cartridge removed from the left chamber of heart. There were three more injuries present on the back and upper part of the heart. Injury No,1 is 1.5 c.m. From major heart injury. It measures 5 x lx 1. c.m. Injury No,2, 2 x 1.5 c.m. On the upper part of heart is close to injury No,1 Injury No,3. Is 2.5 x 1.5 c.m. On pericardial cavity 0.5 c.m. From injury No,2, so bullets caused four injuries to the heart. After injuring the heart bullets passed through the lower lobe of the left lung. Each wound has following measurement:
(1) A lacerated wound 1.3 x .5 x 1 c.m. On the lower lobe of the left lung.
(2) A lacerated wound 1.5 x 1 x 1 c.m. On the left lung 1.2 c.m. Form injury No,l.
(3) A lacerated wound 1.5 x 1 x 1 c.m. On the lower lobe of left lung 3 c.m. From injury No,2.
(4) A lacerated wound 1.5 x 1 x .8 c.m. On the left lung 3.4 c.m. From injury No,3.
' After injury to the lower lobe of left lung, bullets passed through pleural cavity and caused fracture of the tenth and eleventh ribs and there were two more openings between tenth and eleventh ribs and eleventh and twelfth ribs. After passing through the left pleural cavity, bullets entered in the abdominal wall posteriorly, four bullets were removed from posterior abdominal wall on the left side."
' The track of projectile entering injury No,3 was described as under: "Bullets entered through injury No,3, it caused fracture to the medial end of the first rib and passed through the upper lobe of right lung. After passing through the lung bullet came out of the pleural cavity after fracturing the third rib posteriorly. Injury No,2 is exit wound of entry wound No,3..."
' In the opinion of the doctor injuries Nos.1 and 3 were individually and Collectively sufficient to cause death in the ordinary course of nature.
6. In support of its case the prosecution examined 7 witnesses in all and its mainstay was the testimony of Muhammad Jamil complainant P.W.4 and Abdus Salam P.W.5 who furnished the ocular account of the occurrence. The prosecution also relied on the evidence relating to motive and recovery of weapons of offence from the appellants.
7. The appellants pleaded not guilty to the charge and denied the prosecution allegation against them. Abdul Jabbar appellant, when asked why this case against him, made the following statement: "It was a blind murder. The deceased was of dubious character. Some body had killed him and we were asked to trace the accused and on our refusal we have been implicated in this case falsely..."
' Muhammad Akram appellant also made a similar statement. Both of them chose not to make statements under section 340(2), Cr.P.C. No evidence was led in defence.
8. After examining the evidence on record the learned trial Judge came to the conclusion that the motive alleged by the prosecution stood proved and ocular testimony coming through two witnesses, who had no enmity against any of the accused, was consistent and received substantial support from the medial evidence which indicated that two weapons were used for killing the deceased. On the basis of the above observations he convicted and sentenced both the appellants as mentioned above.
9. Learned counsel for the appellants contended that presence of the eye-witnesses at the spot at the time of occurrence was highly doubtful; they had come to the spot from a distance of 60 KM after the incident and that was the reason for the delay in lodging the F.I.R. He further submitted that there is conflict in the ocular and medical evidence because both the entry wounds appear to have been caused by the one fire. It is submitted that, according to the prosecution, the occurrence took place at 3-30 a.m. Which was time for sound sleep and it being a dark night there was every possibility of mistake in identification of the culprits.
' Learned State Counsel supported the impugned judgment. He submitted that Muhammad Jamil and Abdus Salam P.Ws. Had given reasonable explanation for their presence at the petrol pump; they had absolutely no motive to come forward as false witnesses against the appellants because there was no background of any previous enmity between the parties.
10. We have considered the submission made at the Bar in the light of evidence available on the record. The claim of Abdus Salam that he had taken the petrol pump on lease two years prior to the occurrence was not seriously challenged by the defence. There is also no dispute that Muhammad Usman deceased was his employee at the said petrol pump. There was, therefore, nothing unusual or improbable about Abdus Salam going to petrol pump for checking the accounts and staying there for the night. Muhammad Jamil is the real brother of Muhammad Usman deceased. In cross-examination he stated that he used to visit petrol pump very often and had worked "at the said petrol pump" when he "went there before this incident". No enmity, ill will or grouse against the appellants was even suggested to the aforesaid eye witnesses, therefore, it is unbelievable that they would come forward as false witnesses against them. In that view of the matter the delay, if any, lodging the F.I.R. Would not be of much consequence. It will not be out of place to mention here that the investigating officer on oath denied the suggestion that the relatives of the accused were ready to take oath that the eye-witnesses were not present at the time of occurrence. Both the eye-witnesses supported the prosecution version as detailed above in the earlier portion of this judgment. Their evidence is consistent on the main features of the case.
They were cross-examined at length but nothing useful to the defence could be elicited from their statements.
' Admittedly the occurrence took place at the petrol pump situate on the national highway. It is a matter of common observation that at night the petrol pumps are kept illuminated. Both the eye- witnesses had stated that the tube-lights were on at the petrol pump. Abdus Salam, P.W. Asserted that since both the accused were previously known to him he could identify them even if there was darkness. In the circumstances there is no substance in B the contention that there was reasonable possibility of mistaken identification.
11. There is no conflict in the ocular and medical evidence either. The learned trial Court rightly held that the medical evidence was "indicative of the fact that two weapons were used in killing Muhammad Usman". The learned Judge, it appears, was referring to the dimensions of two entry wounds No,1 and 3. Perusal of the statement of Dr. Muhammad Munir reveals that due to poor expression the pellets were described as bullets and wad as "part of cartridge". Recovery of wad (in the statement of the doctor mentioned as part of cartridge) from injury No,1 leaves no room for doubt that it was caused by a gunfire. Injury No,3 of which injury No,2 was exit wound, was, in all probability, caused by a bullet.
The motive part of the prosecution version was not seriously D challenged in cross-examination.
The trial Court, therefore, rightly held that the alleged motive stood proved.
After considering the entire evidence on the record we are satisfied that the appellants were rightly convicted for the murder of Muhammad Usman deceased. As for Abdul Jabbar appellant, there is no mitigating circumstance in his favour to withhold the normal penalty of death imposed on him by the trial Court. In the circumstances there is no substance in this appeal and the same is dismissed.