' MIAN ABDUL KHALIQ, J.--- Basharat. Ahmad son of Noor Muhammad, Khadim Hussain son of Hassan Din and Noor Muhammad son of Miran Bakhsh were tried for the murder of Mst. Azra Bibi by the learned Additional Sessions Judge, Shcikhupura, who vide his judgment, dated 26-7-1990 acquitted Khadim Hussain and Noor Muhammad, but convicted and sentenced appellant to death under section 302, P.P.C. And a fine of Rs,25,000 in default whereof to suffer R.I. For 2 yeaRs, He was also convicted under section 452, P.P.C. And sentenced to 7 years' R.I. And a fine of Rs,5,000, in default whereof to undergo further R.I. For six months. The fine, if realized, fifty per cent. Of it was ordered to be paid to the legal heirs of the deceased. It was also ordered that if the sentence of death is altered to life imprisonment, the sentences of imprisonment shall run concurrently and the appellant shall also be entitled to benefit of section 382-B, Cr.P.C. The convict has appealed to this Court. Case is also before us for confirmation of death sentence. Both these matters shall be disposed of by this judgment.
2. Briefly, the prosecution case is that P.W.6 Khadim Hussain on 16-2-1987 at 6-30 p.m. At the gate of Mayo. Hospital, Lahore, made statement Exh.P.C. Before P.W.9 Muhammad Fazal, S.I. To the effect that he was resident of Allama Iqbal Town, Lahore and was a driver. His sister Mst. Azra Bibi was married in Mauza Dhamkey, Police Station Sharaqpur, District Sheikhupura. On the fateful day he alongwith his father Muhammad Ramzan, P.W. (given up) went to see his sister Mst. Azra Bibi deceased at Mauza Dhamkey. At about 12 o'clock (noon time) after taking lunch they were sitting in the Baithak and there P.W.7 Mubashar Ali, younger brother of the complainant reached. Mst. Azra Bibi deceased was knitting sweater on a cot in the courtyard of the house and from the outer gate accused Basharat armed with a gun .12 bore single-barrel, Khadim Hussain and Noor Ahmad (acquitted co-accused) empty-handed while raising Lalkara entered the courtyard of the house, Noor Ahmad, acquitted co-accused, abused Mst. Azra Bibi and asked where her husband Asghar Ali was, he would not be spared on that day. Mst. Azra Bibi deceased replied that he had gone on his work, on which Basharat Ahmad appellant fired with his gun, which hit on her left arm-pit. The blood oozed out and she fell down smeared with blood. The occurrence was witnessed by P.W.6 Khadim Hussain complainant himself, P.W.7 Mubashar Ali and Muhammad Ramzan P.W. (given up), who due to fear did not go near the accused. The accused continued raising Lalkara and threatened that who would come near, would not be spared. The complainant further stated that the accused after injuring her sister while raising Lalkara went towards the street. Meanwhile Asghar Ali, husband of Mst. Azra Bibi deceased reached and the P.Ws. Took her in injured condition to the Mayo Hospital, Lahore, but after reaching the hospital she succumbed to her injuries. The motive behind the occurrence was that a month earlier to the incident, Khadim Hussain etc. Accused had injured Waris and Rafiq, residents of the village and a case was registered against them. The accused suspected that Asghar Ali, husband of the deceased in collusion with the complainant party had got registered a case against them and due to that grievance the accused after making mutual consultation, entered the house and injured Mst. Azra Bibi seriously, who later on succumbed to her injuries. P.W.6 was proceeding to the police station when P.W.9 Muhammad Fazal, S.I. Met him and recorded his statement Exh.P.C. And sent the same to the police station, where P.W.3 Muhammad Akbar, Head Constable on its basis correctly scribed the formal F.I.R.
Exh.P.C./1.
3. P.W.9 Muhammad Fazal, S.I. After recording statement Exh.P.C. Of P.W.6 reached the Emergency Ward of the Mayo Hospital, prepared inquest report Exh.P.E., injury statement Exh.P.F. And despatched the dead body of Mst. Azra Bibi to the mortuary. Thereafter, he proceeded to the locale, inspected the spot, secured blood-stained earth vide memo. Exh.PA. And prepared a sealed parcel.
He completed all the formalities at the place of occurrence and recorded the statements of the prosecution witnesses. On 21-2-1987 he arrested appellant Basharat Ahmad, who while in police custody led to the recovery of .12 bore gun, which was secured by him. On completion of the investigation, the appellant alongwith the acquitted co-accused were challaned and sent up for trial. They were charged under sections 452/34 and 302/34, P.P.C. Which they denied and claimed trial.
4. The prosecution examined 11 P.Ws. In all to substantiate its case. The evidence of motive was furnished on record by Khadim Hussain complainant (P.W.6) and Mubashar Ali (P.W.7). Dr. Rizwan Mahmud Mufti, Lecturer/Demonstrator, King Edward Medical College, Lahore, who conducted the autopsy on the dead body of Mst. Azra Bibi had proceeded to America. P.W.11 Muhammad Shah, Record Keeper worked with him as Record Keeper and had identified his handwriting and signatures i,e. The postmortem examination report Exh.P.I., diagram of injuries P.I./1 of Mst. Azra Bibi which were in the hand of the said doctor and bore his signatures. Dr. Rizwan Mahmud Mufti had found the following injuries on the dead body of Mst. Azra Bibi deceased:-- 1(a) A fire-arm wound of entry 8 c.m. x 9 c.m. With inverted margins on the left arm posteriorly 13 c.m. From the left shoulder top.
(b) Fire-arm exit wound 8 c.m. x 12 c.m. With everted margins placed posterio-medially on the left arm in communication with injury No,1(a).
(c) Fire-arm wound of entry 7 c.m. x 6 c.m. With inverted margins present in the left axilla. ' and had opined that injuries 1(a) to 1(c) were ante-mortem caused by fire-arm. In his opinion the cause of death was injuries to the heart and left lung leading to haemorrhage and shock which were sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was soon after and between death and post-mortem examination within 11 to 14 houRs,
5. The appellant when examined under section 342, Cr.P.C. Denied the charge against him and stated that in fact none of the P.Ws. Was present at the place of occurrence at the relevant time.
They were closely related to the deceased and had falsely deposed against the appellant. He did not make any, statement on oath as envisaged under section 340(2), Cr.P.C. The appellant only produced D.W.1 Asghar Ali in defence.
6. It is argued by the learned counsel for the appellant that the prosecution has failed to establish its case, and the witnesses examined by it are interested and that the motive also does not stand proved. Khadim Hussain (P.W.6) and Mubashar Ali (P.W.7) eye-witnesses are real brothers of the deceased and their statements have not been corroborated by any person from the vicinity nor the recovery of incriminating gun has been proved against the appellant.
7. No doubt P.Ws.6 and 7 are real brothers of the deceased, who have corroborated each other in minute details. They were present at the relevant time in the house of their deceased sister as they had gone to see her. They unanimously stated that the appellant had fired at the deceased. They had no motive whatsoever to falsely involve the appellant in the present case. They were cross- examined at length, but nothing favouring the defence could be brought out. The learned counsel appearing for the appellant has vehemently urged before us that P.W.6 had stated that the deceased was taken to the hospital in a car, whereas P.W.7 stated that she was taken in an ambulance. P.W.7 also stated that the dead body was brought back in an ambulance from the Mayo Hospital. It was also urged that five persons alongwith the deceased in injured condition could not be taken to Mayo Hospital, Lahore in a car. The deceased Mst. Azra Bibi was real sister of P.Ws.6 and 7 and real daughter of Muhammad Ramzan P.W. (given up). The deceased could easily be seated in the lap of either one of her brothers or her father. It was stated that the deceased succumbed to her injuries after her arrival in the hospital. In the circumstances, there is no force in the abovementioned arguments of the learned counsel for the appellant. The learned counsel for the appellant laid great stress that P.Ws.6 and 7 had not witnessed the occurrence and they were called from their house and made complainant and witness respectively. Nothing was brought on record to substantiate the same.
8. Asghar Ali (D.W.1) and Mst. Shehzadi were P.Ws. But were given up by the prosecution on an application moved by the complainant as they had been won over by the accused party. D.W.
Asghar Ali, husband of Mst. Azra Bibi deceased was real brother of accused Noor Muhammad whereas P.W. Mst. Shehzadi was niece of Noor Muhammad, acquitted co-accused. They were not eye-witnesses, as is apparent from the statement Exh.P.C., on the basis of which formal F.I.R.
Exh.P.C./1 was recorded. D.W.1 Muhammad Asghar stated that P.Ws.6 and 7 had not witnessed the occurrence. The defence could produce Mst. Shehzadi as D.W. Or could make an application for summoning her as C.W., but the same was not done with ulterior motives. D.W.1 stated that neither he witnessed the occurrence nor could state that the accused were assassins of his deceased wife.
He stated that after the death of his wife he went to his in-laws to inform them and in consequence thereof the P.Ws. Reached the hospital and they had not witnessed the occurrence. D.W.1 Muhammad Asghar is related to the accused and had favoured them, but he was not an eye- witness. Mst. Shehzadi P.W. Was given up as having been won over.
9. F.I.R. Exh.P.C./1 recorded on the basis of Exh.P.C. Statement of the complainant Khadim Hussain (P.W.6) contains the names of the witnesses, the names of the accused, the weapon carried by the appellant, the manner in which the occurrence took place, all arc given therein alongwith the role played by each of the accused. The co-accused of the appellant were acquitted by the trial Court as they were unarmed and no overt act was attributed to them.
10. The occurrence took place at Dopeharwela on 16-2-1987 at a distance of 8 miles, from Police Station Sharaqpur, whereas statement Exh.P.C. Was recorded on the same day at the gate of Mayo Hospital, Lahore at 6-30 p.m. Which was sent to the 'police station, where formal F.I.R. Exh.P.C./1 was recorded at 7-00 p.m. The deceased was taken in injured condition to the Mayo Hospital, Lahore and P.W.9 Muhammad Fazal S.I. Had reached the police station after receipt of information of the present occurrence. In the circumstances, the F.I.R. Was recorded with promptitude, without deliberations and preliminary investigation.
11. The ocular testimony furnished on record by the statements of P.W.6 and P.W.7 is in conformity with the medical evidence and excepting a few minor discrepancies in the statements of P.Ws.6 and 7 they have corroborated each other. The defence has failed to point out material discrepancies and dishonest improvements in the statements of P.Ws.6 and 7 and their statements cannot be brushed aside or thrown away on account of their relationship with the deceased. They had no animus against the appellant and no motive whatsoever to involve him in the present case.
They had made statements in a straightforward manner and every reliance could be placed upon their testimony.
12. The motive behind the occurrence was that about a month earlier to the present occurrence the accused had injured Waris and Rafique residents of the village and a case was registered against them. The accused suspected that Asghar Ali (D.W.1) in collusion with the complainant party had got registered the case. Nothing has been brought on the record by the prosecution to prove motive against the appellant. No doubt motiveless murders are committed and if motive is urged, it has to be proved, but in the instant case the prosecution evidence lacks to the extent of motive.
The motive in the present case is shrouded in mystery.
13. Pursuant to the above discussion, we dismiss the appeal of the appellant, but alter his sentence from death to imprisonment for life. The sentence of fine of Rs,25,000, in default whereof the appellant will suffer R.I. for 2 years, and the sentence of the appellant under section 452, P.P.C. To undergo R.I. For 7 years and a fine of Rs,5,000, in default whereof to undergo further R.I. For six months, are maintained and both the sentences shall run concurrently. The appellant shall be extended the benefit of section 382-B, Cr.P.C.
14. The death sentence is NOT confirmed.