' SAJJAD AHMED SIPRA, J.--- The present criminal appeal has been preferred against the judgment, dated 1-11-1989, by Syed Muhammad Mumtaz Hussain Shah, Additional Sessions Judge, Bahawalpur, whereby the appellant was convicted and sentenced as follows:--
(i) Under section 302, P.P.C.
' Death and a fine of Rs,4,000, or in default thereof to one year's R.I. And was also ordered to pay compensation of Rs,2,000 to the legal heirs of the deceased, or in default thereof to suffer six months' R.I.
(ii) Under section 307, P.P.C.
' 7 years' R.I. And a fine of Rs,2,000 or 6 months' R.I. In default thereof, with the further direction that the appellant shall pay Rs,1,000 as compensation to the injured P.W. Mst. Ghulam Zohran, or in default thereof shall further undergo 3 months' R.I.
(iii) Under section 452, P.P.C.
' 4 years' R.I. And a fine of Rs,2,000, or in default thereof to further 6 months' R.I.
2. The present judgment shall also dispose of the Murder Reference No,1 of 1990/BWP.
3. The brief facts of the case are as follows:-- ' That an F.I.R. Exh.P.D. Was lodged by Jind Wadda son of Sher Ali (P.W.7) at Police Station Qaimpur, District Bahawalpur, at 3-45 p.m., under the provisions of section 302, P.P.C. On 28th March, 1988, recorded by P.W.12 Muhammad Ashraf, S.I./S.H.O. According to the F.I.R. On the fateful day at 3-00 p.m. The appellant/accused had trespassed into the house of Ghulam Rasool, while armed with .12 bore pistol, and had fired with his .12 bore pistol, killing the deceased Zaib Elahi and injuring P.W.10, and that at the stated time the complainant alongwith the said Ghulam Rasool, Muhammad Murad, Muhammad Yar, Mst. Ghulam Zohra and his wife, Mst. Zaib Elahi were sitting under a "Keekar" tree and were talking among themselves, when all of a sudden the appellant/accused Jind Wadda alias Bhattal entered the house, armed with .12 bore pistol raised a Lalkara that the complainant and his wife Mst. Zaib Elahi had manoeuvred the divorce of his wife. Mst. Naziran and that, therefore, he shall teach them a lesson and had fired upon them with his pistol, as a result of which his wife, Mst. Zaib Elahi was hit on her chest, whereas his paternal-aunt, Mst. Ghulam Zohran P.W.10 (was) hit upon her face. It was further stated therein that on the alarm of the complainant and on hearing the fireshots, Muhammad Ramzan and Allah Bakhsh were attracted to the spot and had witnessed the occurrence; and that the accused had run away alongwith his pistol at the side of the P.Ws. And that Mst. Zaib Elahi had died at the spot, whereas Mst. Ghulam Zohran was injured as stated above.
4. Challan against the appellant had been submitted under section 452/307/302, P.P.C. And he was charged accordingly. He had pleaded not guilty, and therefore, was subjected to trial and convicted and sentenced, as stated above.
5. To prove its case, the prosecution had produced 13 witnesses in all and had tendered in evidence the report of the Chemical Examiner, Exh.P.M. The report of the Serologist Exh.P.N., the report of the Fire Arms Expert, Exh.P.O. And had given up Muhammad Bakhsh, Muhammad Yar, Ghulam Rasool, Allah Yar and Muhammad Ramzan P.Ws. As unnecessary, whereas Ahmed Khan P.W. Was given up as won over by the accused.
6. P.W.1, Noor Muhammad, H.C. Had testified that on 30-3-1988 he had handed over the last-worn clothes of Mst. Zaib Elahi to the S.H.O. P.W.12 i,e. Shirt P.1, vest P.2, Shalwar P.3, all blood-stained, Paranda P.4, two nasal pins P.5/1-2, and one pair of ear-rings P.6/1-2 belonging to the deceased and a packet of sealed pellets P.7, which were taken into possession vide memo., Exh.PA., duly signed by him. P.W.2, Dilawar Hussain F.C. Is another witness who had testified the said Exh.PA., and had further testified that he had escorted the dead body of the deceased for post-mortem to the hospital at Hasilpur on 28-3-1988. P.W.3, Muhammad Sadiq, F.C. Had deposed that on 9-4-1988, the Moharrir had given him one sealed parcel of blood-stained earth for transmitting the same to the office of the Chemical Examiner, Lahore, and that he had deposited the said parcel intact in the said office. P.W.4, Muhammad Ali, Revenue Patwari had submitted that on 2-4-1988 he had prepared the site plan Exhs.P.B. And P.B./1 on the pointation of the P.Ws. And on the instructions of the police, and that the marginal notes Nos.1 to 10 were in his hand and bore his signature. P.W.5, Abdul Majid H.C. In his deposition had corroborated the statement of P.W.2, Dilawar Khan and P.W.3 Muhammad Sadiq, Foot Constables in respect of the articles of the deceased and the blood - stained earth respectively and had further stated that on 13-5-1988, the S.H.O. (P.W.12) had handed over a sealed parcel of the weapon of offence i,e. Pistol which he kept in the Malkhana for safe custody and that on 22-5-1988 he had handed over the said parcel to Waris Ali, F.C. For onward transmission to the Forensic Science Laboratory. P.W.11, Waris Ali, Foot Constable had confirmed the same in his testimony and had further submitted that he had deposited the said parcel intact in the said office on 23-5-1988. P.W.6, Ahmad Yar was the witness of the recovery of pistol .12 bore and had deposed that the accused while in the police custody had led to the recovery of the said pistol from under "date tree" near "pay" Kabir Wah, which had been taken into possession vide recovery memo. Exh.P.C. And that he had thumb-marked the same. He had further identified the .12 bore pistol P.8 alongwith the empty cartridge P.9 in the Court. In his cross-examination, he denied ever having been witness against the accused in any case under section 13 of the Arms Ordinance, 1965 or in the suit for dissolution of marriage instituted by the wife of the accused or in a case previously registered under section 302, P.P.C. Against the accused, and had further denied ever having had dispute with him or being related to the complainant, Jind Wadda or to Ahmed Khan P.W. The next P.W.7, Jind Wadda, the complainant of the present case had supported the version stated by him in the F.I.R. In his testimony, he had reiterated that at 3-00 p.m. On the relevant date he was present in the house of Muhammad Murad, P.W.8, under a "Keekar" tree, when the accused, present in the Court, had come there with a pistol and had stated that he had come to take revenge of the decree of dissolution for marriage of his wife and that thereafter he had fired his pistol hitting the deceased, Mst. Zaib Elahi on her chest and Mst. Ghulam Zohran, P.W.10 on her face. He had further stated that Mst. Zaib Elahi had died at the spot instantaneously and that on his alaim, Allah Bakhsh and Muhammad Ramzan P.Ws. Had been attracted to the spot and witnessed the occurrence and that the accused had run away. He had further stated that he had gone to Police Station Qaimpur and lodged the report, Exh.P.D. And had thumb-marked the same after it had been read over to him. In his cross-examination, he had stated that the accused had fired one shot and that Mst. Zaib Elahi and Mst. Ghulam Zohra were sitting together on a cot and that all the eye-witnesses were related inter se. He had denied having been a witness in the suit for dissolution of marriage by the wife of the accused or having any hand in the said suit. He had denied any relationship with P.Ws.
Allah Bakhsh and Muhammad Ramzan and had stated that they were sitting together for the purpose of arranging the circumcision of his grandson. He had denied having appeared as a witness against the accused in the previous murder case and had refuted the suggestion that he had falsely implicated the accused in the present case because a scuffle had taken place in the house of Pirzada Mian Zaffar between his relatives and the accused.
7. The other witness of the occurrence, namely Muhammad Murad, P.W.8 had supported the version of P.W.7. He had deposed that he alongwith Jind Wadda, Mst. Ghulam Zohran, Mst. Zaib Elahi, Muhammad Yar and ' Ghulam Rasool were sitting under the "Keekar tree" in the compound of his house and were discussing about the circumcision of the grand-son of Jind Wadda, complainant when the accused armed with a pistol came there and challenged Jind Wadda and his wife for having got his wife divorced, and had stated that he shall be taking revenge for the same and that he had fired with his pistol which hit Mst. Zaib Elahi on her chest and on the face of Mst. Ghulam Zohran. He had further stated that on hearing the alarm, P.Ws. Muhammad Ramzan and Allah Bakhsh had reached the spot and witnessed the occurrence while the accused had made good his escape from the spot. He had further testified that Mst. Zaib Elahi had succumbed to her injuries at the spot, and that Jind Wadda, complainant had gone to the police station for lodging the F.I.R. He had further deposed that the police had collected the blood-stained earth and made into a sealed parcel which was taken into possession vide memo. Exh.P.E., thumb-marked by him, and that he had gone to the hospital on the following day and identified the dead body of Mst. Zaib Elahi at the time of its autopsy, and that she was his sister-in-law. During his cross-examination, he had stated that the accused had fired one shot while Mst. Zaib Elahi and Mst. Ghulam Zohran were sitting near each other. He had further stated that in his statement under section 161, Cr.P.C. He had stated that they were not sitting in the courtyard of Ghulam Rasool, and that the house of Ghulam Rasool and his house were adjacent, and that the compound was the same; and that Jind Wadda was the husband of his sister-in-law, whereas Allah Bakhsh and Muhammad Ramzan P.Ws. Were not related to him and that their houses were at a distance of 2 acres from his house. He had acknowledged that the accused and his wife were related to him but denied being a witness in the suit of dissolution for marriage instituted by the wife of the accused or to have accompanied her during the said suit but that Jind Wadda had supported the wife of the accused and for that reason he had a grudge against him. He had repelled the suggestion that he had deposed falsely or that the accused had not murdered Mst. Zaib Elahi and injured Mst. Ghulam Zohran.
8. P.W.9, Allah Bakhsh had testified that he had seen the accused, present in the Court running away armed with a pistol at 3-00 p.m. On the fateful day as he was cutting the fodder alongwith Muhammad Ramzan, when he heard the alarm and reached the house of Mst. Zaib Elahi deceased and that he had seen Mst. Zaib Elahi lying murdered with injuries upon her chest and Mst. Ghulam Zohran in an injured condition with injuries upon her face and had further testified that Jind Wadda, Muhammad Murad, Ghulam Rasool, Muhammad Yar and others were present at the spot and that Jind Wadda, complainant had gone to the police station. In his cross-examination, he had stated that he knew the accused previously and that the accused had fired one shot but he was not aware of the house of the accused, and that he had seen the accused 3/4 times previously. He had further stated that he did not know as to why the complainant party had gathered; and that Mst.
Zaib Elahi and Mst. Ghulam Zohran were on the same cot and that they had seen the accused running away at a distance of 5/6 Karams immediately after firing, and that they were cutting the fodder at a distance of 9/10 Karams from the spot and had further stated that the persons sitting in the house of the complainant party were visible to him from where he was cutting the fodder, and that the complainant party were his neighbours and on his visiting terms. He had denied to have deposed falsely or that he had not seen the accused running away.
9. P.W.10, Ghulam Zohran was the injured P.W. Of the instant case and had stated that she alongwith Muhammad Murad, Jind Wadda, Mst. Zaib Elahi and Muhammad Bakhsh were sitting under the "Keekar tree", talking about the circumcision of the grandson of Jind Wadda, complainant at 3-00 p.m. On the day of the occurrence when the accused, present in the Court, armed with a pistol had come there and said to us that he shall take revenge of the divorce of his wife, and that the accused had fired his pistol hitting the deceased upon her chest and upon her face, and that she had lost her right eye due to the same. She had further testified that Muhammad Ramzan and Allah Bakhsh P.Ws. Had also come to the spot on hearing the alarm where the accused had run away; and that she was medically examined at the hospital where she remained about 3 months. During her cross-examination she had stated that the accused had fired only one shot and that Mst. Zaib Elahi was sitting towards the east and she was sitting towards the west at a distance of 2/3 spaces from Mst. Zaib Elahi. She had further stated that the accused had no enmity with us and had denied that she had deposed falsely or falsely implicated the accused and had further stated that they were sitting in the house of Muhammad Murad. P.W.12, Muhammad Ashraf, S.I./S.H.O. Had testified that on 28-3-1988 while posted as S.H.O., P.S. Qaimpur, he had recorded the F.I.R. Exh.P.A. On the statement of Jind Wadda, complainant and read over the same to him, who had thumb-marked the said F.I.R. In token of its correctness; and that he visited the spot, collected the blood-stained earth from there and made into a sealed parcel, vide memo.
Exh.P.E., prepared the injury statement, Exh.P.F. Of the deceased and the inquest report Exh.P.G. And had further prepared the injury statement of Mst. Ghulam Zohran, Exh.P.H. And had got her medically examined. He had further testified that he recorded the statements of P.Ws. Muhammad Murad, Mst. Ghulam Zohran, Muhammad Ramzan, Allah Yar, Muhammad Yar and the supplementary statements of Jind W adda and Muhammad Murad; and that he had prepared rough site plan of the place of the occurrence, Exh.P.J. And had got prepared the site plan Exh.P.B.
And its copy, Exh.P.B./1, by the Revenue Patwari and the marginal notes and the marks thereupon in red ink were in his hand and signed by him. He had further testified that he had arrested the accused, Jind Wadda, present in the Court, on 3-5-1988, and that on 13-5-1988 the said accused had led to the recovery of pistol P.8 containing an empty cartridge P.9, and that he had taken into possession, vide memo.
' Exh.P.C. And that the said recoveries had been witnessed by P.W. Ahmed Yar and Ahmed Khan P.W., and that Exh.P.C./1, the site plan of the occurrence was in his hand and bore his signatures. He had further deposed that Dilawar Hussain, FC had handed over the last-worn clothes i,e. P.1 to P.6 and a sealed parcel P.7, which were taken into possession vide memo. Exh.PA. During his cross- examination, he had stated that the complainant had appeared before him firstly after 3-45 p.m.
And that he had recorded his statement within half an hour and that he had reached the spot within 15/20 minutes, and that the dead body was lying on a cot, and that the deceased and Mst.
Ghulam Zohran were sitting on the same cot at the time of occurrence. He had further stated that he did not record the distance between the dead body and the place where Mst. Ghulam Zohran was sitting nor had he inquired about the pistol where from the accused had fired at the deceased and injured the P.W., and that he did not take the cot into possession as it was not blood-stained; and that he pistol was recovered from the cluster of "date trees" situated on the bank of minor Kabir Wah in Mauza Sh. Wahin, and that the recovery P.Ws. Had accompanied him from Hasilpur, and that Mst. Ghulam Zohran had sustained two pellet injuries on her face.
10. P.W.13, Dr. Muhammad Mohsin, Medical Officer, T.H.Q., Hasilpur, had testified that on 29-3-1988 at 9-30 a.m., he had performed the post-mortem examination on the dead body of Mst. Zaib Elahi, wife of Jind Wadda, brought by the Constable Dilawar Hussain of P.S. Qaimpur, and that the dead body had been identified by Muhammad Bakhsh and Muhammad Murad. His observations were as under:-- "There were 5 fire-arms (pellets), exit wounds of different sizes with averted edges on the posterior aspect of the right of the chest at a variable distance from each other. There were also 3 palpable subcutaneous pellets in the same area at a variable distance from each other, which were recovered and sent to Science Laboratory.
' There were 9 fire-arms (pellets) wounds of equal size of about 1/2 or 1 c.m. On upper part of anterior aspect of chest above the nipples. Seven injuries out of nine were on right side while 2 injuries were on the left side. The injuries were at a variable distance from each other and circular collar, having blackening with inverted edges.
' The abovementioned injuries were found on walls of thorax and there were corresponding holes on pleura of the chest. There were also corresponding perforating wounds with colaps hm&s on both sides and there was blood in the pleural cavity. There was also a perforating wound in the right atrium of heart. Remaining organs of thorax were normal.
' Stomach contains a few CC of partially digested fluid material. Both small and large intestines were distendid with foul smelling gas. Bladder was empty. The remaining parts of abdomen were normal.
' There was no deformity or disease present. The injuries had already been explained.
' After thorough external as well as internal post-mortem examination, he was of the opinion that injuries Nos.1 and 2 were caused with firearms which damaged vital organs i,e. Heart and lungs, coupled with bleeding and shock. These injuries were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. The probable time that elapsed between injuries and death was within few minutes. The probable time between death and post-mortem was within 12 to 24 hours. Exh.P.K. Was the correct carbon copy of his post-mortem report which was in his hand and bore his signature. After post-mortem examination, he handed over the last- worn clothes of the deceased alongwith above-mentioned ornaments and "Paranda" as well as a bottle containing 3 pellets sealed with his seal to Dilawar Hussain Constable No,669. Inquest report Exh.P.G. Also bore his notes and signatures which were, Exh.P.G./1. Injuries statement of Mst. Zaib Elahi, Exh.P.F. Also bore his signatures."
' On 28-3-1988 he had examined Mst. Ghulam Zohran, wife of Abdullah, aged about 50/55 years who was brought by Dilawar Hussain for medical examination, and his observations were as under:- "The injured was received in an emergency and was bleeding from wound face. Her pulse was 84 per minute. Her blood pressure was 110/70 mm Hg. She was fully conscious but was in agonising condition with the following injuries:--
(1) A lacerated wound 5 c.m. x 3 c.m. x skin deep with a collar of abrasion on the nasal side of the wound. The wound was on the left cheek about 2 c.m. Inferolateral to the left ala of the nose, and was bleeding. Small rounded object was palpable under the lateral edge of the wound. The wound edge was bruised.
(2) There was a lacerated tear 2 c.m. x 1/2 c.m. On the right lower lid including lid margin in the centre with perforating injury on the right eye-ball. For detailed examination, management and result, patient was referred to B.V. Hospital, Bahawalpur.
' Both the injuries were caused with fire-arms within few hours, and they were kept under observation for X-ray and final report from B.V. Hospital, Bahawalpur. Exh.P.L. Was the correct carbon copy of his medical report, which was in his hand and bore his signature. He had enquired from M.S., B.V. Hospital, Bahawalpur about the result of injuries of Mst. Ghulam Zohran vide his letter, Exh.P.L./I but the same had not (been) received back so far. Exh.P.K./I and P.K./II were the pictorial diagrams of site of injuries of Mst. Zaib Flahi deceased. Injury statement of Mst. Ghulam Zohran, Exh.P.H. Sent by the police also bore his signature.
' During his cross-examination, he (P.W.13) had stated as follows:- "Mst. Ghulam Zohran was medically examined by me on 28-3-1988 at 8-30 p.m. The injuries of Mst.
Zohran were caused within a few hours, i,e. Within' 6 hours. Without the X-ray report and the report of an Opthalmologist I cannot tell the number of pellets which hit the injured and the nature of injuries. I cannot tell the distance from which the accused fired at the deceased and the injured P.W. Without knowing the type of weapon and the ammunition used. It is correct that the injuries of Mst. Zaib Elahi deceased were caused with a firearm. I cannot tell whether the type of pellets which hit the deceased and the injured P.W. Were of the same size and nature because I have not received the report of B.V. Hospital, Bahawalpur. 5 pellets had passed away from the body of Mst.
Zaib Elahi as there were 5 exit wounds. 3 pellets were recovered from her body while one pellet may have hit any bone and as such the same was not traceable."
11. After the prosecution case had been dosed, the statement of the accused was recorded under the provisions of section 342, Cr.P.C. Wherein he had denied the prosecution's case and had stated that he was innocent and had been falsely implicated due to enmity between the parties. He had produced D.W.1, Allah Rakha and D.W.2, Muhammad Nawaz in his defence, who had stated that they had come to know that the deceased, Mst. Zaib Elahi was killed and the injured P.W., Mst.
Ghulam Zohran had suffered injuries due to firing in the air to celebrate the circumcision ceremony of the grandson of the complainant. However, as they neither claimed to have witnessed the injured P.Ws. Sustaining injuries nor what they had been suggested to any of the P.Ws., therefore, their testimony is not worthy of any credence or consideration whatsoever.
12. We have heard the learned counsel for the appellant and the State at length and perused the record of the case with their assistance.
13. The learned counsel for the appellant argued that there is a contradiction between the testimony. Of the P.Ws. As to the place where the occurrence is alleged to have taken place thus raising serious doubts about the presence of the said P.Ws. At the place and time of the occurrence. In this respect, he pointed out that whereas P.W.7, Jind Wadda, the complainant had stated that he was sitting in the house of Muhammad Murad P.W.8, Muhammad Murad himself had stated that they were sitting in the compound of his house, whereas P.W.9, Allah Bakhsh has stated that the occurrence had taken place in the house of Mst. Zaib Elahi and he further supported his contentions and drew attention to the word "house" and argued that "the house of Murad" and the "compound of my house" as stated by Murad are two different places for the word "house" means inside the covered premises and thus the said testimony of the P.Ws. Contradicts each other, whereas the house of Mst. Zaib Elahi being at a distance from the place of occurrence was a different abode altogether, and in this respect referred to the site plan, Exh.P.B. Wherein the house of the deceased and the complainant is shown at No,5 which is not a part of the Haveli of Murad.
Further submitted that the presence of the appellant/accused had not been shown in the site plan and that such an omission should also go to his advantage. Further submitted that as it is the case of the prosecution itself that all the P.Ws. Were sitting together, therefore, the shot fired from a distance by the accused should have hit the P.Ws. At first as the deceased and the injured P.W. Are stated to have been sitting beyond the said P.Ws. In this respect, further pointed out that as there is blackening around the injury suffered by the deceased, therefore, the shot which hit them must have been from a close range as the pellets had not spread, as borne out from the pellet injury suffered by the deceased, and that it further contradicts the version of the prosecution and further argued that as the injured P.W. Mst. Ghulam Zohran has herself stated that she was sitting at a distance of 2/3 spaces from the deceased, therefore, her statement contradicts the statements of other P.Ws. Who had stated that she was sitting on the same cot as the deceased Mst. Zaib Elahi, and that it further gives rise to the possibility that the death of the deceased and the injury sustained by Mst. Ghulam Zohran may not have been caused by a single shot and may be the result of more than one shot and that as such serious doubts are created about the version of the prosecution and the same should be resolved in favour of the accused/appellant. In the alternative, the learned counsel for the appellant argued for lesser sentence on the ground of mitigating circumstances and submitted that as the motive set up by the prosecution pertains to the divorce of the wife of the accused, therefore, he was provoked due to his divorce by his wife on the instigation of the complainant party.
14. On the other hand, the learned counsel for the State opposed the present criminal appeal and argued that the conviction and sentences awarded to the appellant should be maintained.
15. We have given our anxious consideration to the submissions made by the learned counsel for the parties, specially to those advanced by the learned counsel for the appellant to impugn the present judgment. However, we are constrained to point out that the contentions raised on behalf of the appellant are without any merit. Firstly, the injured P.W.10 had herself stated that she was sitting near the deceased, Mst. Zaib Elahi and that her having further said during her cross- examination, that she was sitting at a distance of 2/3 spaces from the deceased cannot be taken as material contradiction in the testimony of the prosecution. In this respect, it needs to be pointed out that the eyewitnesses, P.W.7, Jind Wadda and P.W.8, Muhammad Murad had categorically stated that the injured P.W. And the deceased were sitting near each other and that not a single question had been asked during their cross-examination to impugn the same. Whereas, in fact, on a question during the cross-examination P.W.7, Jind Wadda had categorically stated that the deceased and the injured P.W. Were sitting on a cot, therefore, a minor slip by a rustic and old lady during her cross-examination in a murder case can hardly be fatal to the entire case of the prosecution, as established through the unshakeable testimony of the rest of the P.Ws. We may further observe that the F.I.R. Had been lodged promptly, the accused had been named therein, that motive for his crime stated and the eye-witnesses duly named, and that there was nothing on the record to create any doubt about the recovery of the crime of offence i,e. Pistol .12 bore which had been recovered at the behest of the accused in the presence of eyewitnesses who had duly supported the said recovery in their testimony without the same being demolished. Furthermore, we have noticed that the defence had not put a single question to any one of the P.Ws. To the effect that the occurrence had not taken place at the time and spot as charged, and, therefore, the argument of the learned counsel for the appellant that there is contradiction in the testimony of the P.Ws. In respect of the spot where the occurrence had taken place is totally untenable. In this respect, we may further point out that even according to the site plan itself, it stands established that the P.Ws. Had a common courtyard and the said witnesses had duly corroborated each other by testifying that at the fateful time they were sitting in the said courtyard under a "Keekar tree".
Therefore, we are of the view that the testimony of the P.Ws. Is confidence inspiring and in spite of cross-examination the defence had failed to shake the same or to elicit anything in its favour; and that the present is a day time occurrence, duly witnessed by 'persons who were natural witnesses and to whom the accused was not a stranger, and as such there was no likelihood of mistaken identity and that the injured lady P.W. Had no reason to falsely implicate the accused. Furthermore, it is a case of single accused and the substitution in such a case is very rare phenomena and, in any case, it was not the case of the defence that any substitution had taken place. As the learned counsel for the appellant had neither referred to the statement of the appellant nor to the defence witnesses .Produced by him, therefore, it shall suffice to observe in respect thereof that they did not help the accused in any manner, not being worthy of credence as stated earlier.
16. Therefore, we hold that the impugned judgment is unexceptionable and that the present criminal appeal deserves to be dismissed for being without any merit. This brings us to the question of the lesser sentence on mitigating grounds as contended by the learned counsel for the appellant. However, even in this respect no case is made out as the appellant/accused was guilty of killing the deceased and inflicting grievous injuries that were dangerous to the life of injured P.W.10, Mst. Ghulam Zohran and the contention that as he was aggrieved due to divorce by his wife who had been assisted in the matter by the complainant party can hardly be termed as being sufficiently immediate cause of the occurrence in question to warrant the awarding of the lesser sentence for the crime of wanton killing and ruthless murderous assault by the accused/appellant after having committed house-trespass to do so.
17. Therefore, in pursuance to the above discussion, the present criminal appeal is hereby dismissed and the conviction and sentences awarded to the appellant by the impugned judgment, dated 1-11-1989 are hereby maintained. Resultantly, the Murder Reference NO of 1990 is answered in the affirmative and the death sentence awarded to the appellant is hereby confirmed.