MUHAMMAD SIDDIQUE, J.-According to the prosecution the brief facts of the case are that on 20- 3-1970 Muhammad Mubarik alias Sain Muhammad deceased took his goats in the morning for grazing at a distance of about 200 yards from his house. At that time his brother Muhammad Razzak (P. W. 8) was sitting in the verandah of his house alongwith his wife Mst. Zaitoon Bibi and Habibullah P. Ws. On hearing the report of a gunshot, they stood up and proceeded towards the place from where the sound of the gunshot had come. After covering a short distance they heard the shouts of Muhammad Mubarik deceased saying that "MUJHAY MARA HAI" (appellant).
"MUHAMMAD KHALIL" The second shot was fired by the accused to the view of the witnesses and it hit the deceased on the belly. The deceased fell down. The witnesses rushed to the spot but they were threatened by Muhammad Khalil appellant that if they tried to go near him, he would also kill them. The accused then ran away alongwith his gun. The witnesses then reached the place of occurrence and found two gunshot wounds one on the belly and the other on the back of the shoulder. Muhammad Razzak P. W. Put his hands on both the wounds to stop bleeding. The deceased after some time became unconscious. Muhammad Razzak P. W. Then went to Police Station, Kotli which is at a distance of about three miles from the place of occurrence and lodged the F. I. R. Exh. P. A. At 12 noon on the same day. The report was recorded by Rab Nawaz Head Constable. He immediately reached the spot and found Muhammad Mubarik alias Sain Muhammad lying dead there. He prepared the injury statement (Exh. P. F.) and the inquest report (Exh. P. G.) of the deceased. He sent the dead body to the mortuary for post-mortem examination under the escort of Mushtaq Ahmad P. W. The Head Constable then inspected the spot and collected empty cartridges of '12 bore gun (Exhs. P. 9 and P. 10) and sealed them into a parcel vide Memo. Exh. P. B. He also secured excrements of goats vide memo Exh. P. C. And blood-stained earth and grass were sealed into a parcel vide Memo. Exh. P. D. He also recorded the statements of the witnesses under section 161, Cr. P. C. On 21-3-1970 he handed over the investigation to Mumtaz Hussain Shah, Sub-Inspector of Police (P. W. 6) who partly investigated the case. On the same day F. C. Mushtaq Ahmad P. W. Produced before him the clothes of the deceased, which had been given to him by the doctor alongwith the sealed phial containing pellets. The doctor also had given him two iron bangles of the deceased. The Police Officer secured all these articles vide memo. Exh.
P. F. According to this officer the accused had absconded and, therefore, proceedings under sections 87 and 88, Cr. P. C. Were initiated against him and he was sub--sequently declared a proclaimed offender. He submitted a challan against the appellant under section 512, Cr. P. C. So that proceedings could be taken against him under that section in the absence of the accused.
The accused was ultimately arrested on 13-6-1970. After usual formalities the appellant was challaned under section 302, P. P. C. For the murder of Muhammad Mubarik alias Sain Muhammad deceased. He was tried by the Additional Sessions Judge, Rawalpindi who found him guilty and convicted him under section 302, P. P. C. And sentenced to death. The appellant has challenged his conviction and sentence through the present appeal. The case is also before us under section, 374, Cr. P. C. For confirmation of the sentence of death. This judgment will dispose of both the Criminal Appeal as well as the Murder Reference.
2. Dr. Muhammad Aslam Arshad P. W. Performed the post-mortem examination on the dead body of the deceased on 21-3-1970 at 2.15 p.m. And found the following injuries on it:-
(1) Multiple circular wounds of entrance, 1/8'x 1/8' in an area of 7' x 6' on the lower part of right side of abdomen with a large wound, --' x --' in middle. There was no blackening of skin.
(2) Five circular wounds of entrance, 1/2' x 1/2" on the back of right shoulder.
(3) An oval abrasion, 1'x 1/2' on the top of right shoulder alongwith an oval wound of entrance 3/4' x 1/2' in the space between right shoulder and neck.
Third rib on nigh; side near axilla was fractured. Pleura was con--gested on right side upper part.
Right upper lobe of right lung was congested. Wall of abdomen and paritoneum on right side was perforated. Small intestine on right side and first part of large intestine were also per--forated and congested. Rest organs of abdomen, thorax and skull were all healthy. Stomach contained I pound of semi-digested bread diet. Bladder contained 4 ozs. Of urine. Ten shots were removed from the right side of abdomen and two shots removed from the axilla deeply and one shot from the space between left shoulder and neck. In the opinion of the doctor the deceased died due to shock and haemorrhage caused by injuries Nos. I and 2 which were sufficient to cause death collectively. All the injuries were ante-mortem and caused by afire-arm. Time between the injuries and death was about 1/2 to 3/4 hours, while between death and post-mortem examination was about 30 hours.
3. The appellant when examined under section 342, Cr. P. C. Denied the allegations of the prosecution. He stated that he had left the village long before the occurrence. When asked abort abscondence he replied as under:- "It is not correct. I had gone away from the village much before the occurrence. I voluntarily appeared before the police on learning about the case."
When asked why the prosecution witnesses deposed against him, he replied as under:- "Muhammad Razzak, Mst. Zaitoon Bibi, Habibullah and Rafiq Lambardar P. Ws. Are closely related.
Muhammad Razzak and his brother got the deceased killed for inheriting his property because he was joint owner with them. I am a co-owner of land with MO. Rahim Jan, my collateral, and P. W.
Rafiq Lambardar. Mst. Rahim Jan is the wife of P. W. Habibullah's paternal uncle Dost Muhammad.
In order to get my land they have falsely involved me in this case. During the days of occurrence I did not reside in the village".
However, no defence evidence was produced by the appellant.
4. In support of its case the prosecution has produced three eye--witnesses, namely, Muhammad Razaak (P. W. 8), Mst. Zaitoon Bibi (P. W. 9) and Habibullah (P. W. 10). The various recovery memos are supported by Muhammad Rafiq Lambardar (P. W. 12) apart from the Investigating Officer.
Muhammad Masood Patwari (P. W. 4) prepared the site plan Exh. P. H. Riaz Hussain Shah Sub- Inspector (P. W. 5) took the accused into custody oil 13-6-1970, while he was on patrol duty. He was brought before him by Lambardar Gul Zaid and Chowkidar Muhammad Azam. The other witnesses are more or less formal.
5. Out of the eye-witnesses Muhammad Razzak (P. W. 8) is the real brother of the deceased, while Me. Zaitoon Bibi is the wife of this witness. The third eye-witness Habibullah is also distantly related to the deceased. According to Muhammad Razzak P. W., he was employed as a Naik in the Army and at the relevant time he was posted at Lahore. His other brother Muhammad Ashraf was employed at Rawalpindi. However, the families of both these brothers generally remained in the village. In the absence of these two brothers Muhammad Khalil appellant used to visit their house with evil intentions towards their ladies. Muhammad Mubarik deceased, their third brother, remained in the village, interdicted tire appellant from going to their house. The appellant got annoyed and told the deceased that he would let him know the consequences of interdiction.
About four months before this occurrence the appellant and the deceased had an exchange of slaps and fist blows on this issue. Even four days before the present occurrence the deceased had told the appellant not to visit their house. It was again at this time that the appellant said that he would let the deceased know the consequences of interdiction. This, according to the prosecution, is the motive for the present murder. Muhammad Razzak P. W. Has deposed that he went to the village on 14-3-1970 on leave for one and a half months. He then narrated the occurrence of the 20th March 1970, as mentioned above. He is fully supported by his wife Mst. Zaitoon Bibi (P. W. 9) and Habibullah (P. W. 10). It is not denied that the house of Muhammad Razzak P. W. Is at a distance of about 40 karams from the place of occurrence as shown in the site plan Exh. P. H. Their presence in their house at the relevant time, therefore, cannot be doubted. In any case, the defence has not been able to bring out any material to doubt their presence in their own house at about 9 or 10 a.m.
In the morning. After carefully going through their statements we are fully convinced that at the relevant time these two eye-witnesses were present in their house. The place of occurrence is, as stated earlier, at a distance of about 40 karams from their house and there is nothing to intervene between the two places. Their statements are quite natural when they say that they heard the first gunshot. They do not claim to have seen the appellant or anybody else firing that shot. It was after hearing the first shot that like ordinary human beings they got up and came out of the house to see what happened and. Heard the shouts of the deceased that he was being killed by the appellant. It was at this stage that they saw the second shot being fired by the appellant at the deceased. In the circumstances they would be the first persons to reach the place of occurrence. It is nobody's case that the assailant had muffled iris face or otherwise had taken any precaution to conceal his identity. The witnesses, therefore, will clearly be in a position to Identify the assailant who was previously known to them as he also belonged to the same village. After careful scrutiny of their statements we find that these witnesses were present near the spot and have witnessed the occurrence. The mere fact that they are closely related to the deceased is not sufficient to discard their testimony. In the circumstances of the case, we are fully convinced that these two witnesses are quite natural and truthful ones. We have, there--fore, nor doubt ire our mind to believe their testimony. Although there is nothing against Habibullah (P. W. 10), yet even if as an abundant caution we exclude his statement from consideration, the testimony of Muhammad Razzak and his wife Mst. Zaitoon Bibi P. Ws. Is sufficient to maintain the conviction of the appellant.
The defence has failed to bring out any material against them as to why they should not be believed. In cross-examination the defence has suggested that Muhammad Razzak P. W. And his brother Muhammad Ashraf suspected the deceased of having illicit relations with their wives and, therefore, for that reason got him murdered. There is no material whatever available on the record to show that this version can even remotely be believed. If the brothers of the deceased got him killed then the time and place of occurrence would have been different. They could achieve their object by killing him during the night or at such time and place when the assailant could not be seen. Moreover, the defence has not indicated as to by whom these brothers got the deceased killed. If there has been any truth in this suggestion, the defence should have asked this question from the Investigating Officer as well, but no such question was put to him. After carefully going through the record we find no substance in this defence suggestion. Another suggestion made by the defence in cross-examination of Muhammad Razzak P. W. Is that he and Muhammad Ashraf got the deceased killed in order to inherit his property. It is clear from the material available on the record that apart from his two brothers namely, Muhammad Razaq and Muhammad Ashraf there is none else to inherit the deceased. It is not denied that the deceased had no issue. In such a circumstance there could tie no occasion for these brothers to murder the deceased, because even otherwise after his natural death, they alone were to inherit him. Even this defence suggestion is, therefore, without any substance.
6. There is another very material circumstance which goes against the appellant. It is an admitted fact that immediately after the occurrence on 20-3-1970, the appellant was not available to the police. According to the prosecution, he had absconded. It is not denied that proceedings under sections 87 and 88, Cr. P. C. Were initiated against him and he was declared a proclaimed offender.
Mumtaz Husain Shah, Sub-Inspector (P. W. 6) has further stated that he submitted a challan against the appellant under section 512, Cr. P. C. So that the proceedings could be taken against him tinder the said section in his absence. Perhaps it was after this that the appellant on 13-6-1970 surrendered himself before the police through the Lambardar Gul Zaid and Chowkidar Muhammad Azam. The learned counsel for the appellant tried to argue that the appellant had left the village three months before the occurrence. In this behalf he relied upon the following admission made by Muhammad Razzak (P. W. 8) in cross-examination:- "The accused had gone away three months before the occurrence."
According to us, this does not help the appellant. Even if it be admitted that he had gone away three months before the occurrence, it would not in any way nullify the proceedings subsequently taken against him under sections 87 and 88 of the Criminal Procedure Code. The abscondence is after the occurrence and his absence before the occurrence is not relevant for the purposes of this case. In these circumstances, the abscondence of the appellant, the initiation of proceedings under sections 87 and 88, Cr. P. C., declaring him a proclaimed offender and subsequently filing a challan against him under section 512, Cr. P. C. Go against the defence and support the prosecution version.
7. After taking into consideration the various facts and circumstances of the case, we have come to the conclusion that the guilt of the appellant stands proved beyond any shadow of doubt through the testimony of Muhammad Razzak and Mst. Zaitoon Bibi P. Ws. Corroborated by the abscondence of the appellant, declaring him as a proclaimed offender and filing a challan under section 512, Cr.
P. C. We have, therefore, no hesitation to maintain the conviction of the appellant under section 302, P. P. C. For the murder of Muhammad Mubarik alias Sain Muhammad deceased.
8. As regards the question of sentence, the learned counsel for the appellant has tried to argue that this is not a case of death sentence but of lesser penalty namely, life imprisonment. He further pointed out that the appellant was defended before the trial Court by a counsel at State expense and, therefore, his case has not been properly conducted. Even before this Court his counsel is appearing at State expense. We have carefully con--sidered this aspect of the case and find that this is no legal justification to justify lesser penalty. The appellant at the relevant time was armed with a gun for which he had no licence. There is no explanation why he was carrying such a gun at the relevant time. Moreover, the fact that he fired two shots at the deceased clearly demonstrates his intention. These circum--stances coupled with his abscondence clearly justify the imposition of normal penalty of death. We have examined the various aspects of the case and find no legal justification to interfere with the sentence of deaf--- imposed upon the appellant by the trial Court.
9. For the foregoing reasons, the appeal of the appellant fails, his conviction and sentence under section 302, P. P. C. For the murder of Muhammad Mubarik alias Sain Muhammad deceased are maintained. The sentence of death awarded by the learned Additional Sessions Judge is hereby confirmed.