' This criminal appeal has been directed against the judgment, dated 1-3-1989 passed by the learned Additional Sessions Judge-III, Bahawalnagar, whereby the appellant was convicted under section 302, P.P.C. and sentenced to imprisonment for life and a fine of Rs,10,000, in default whereof to suffer further R.I. for two years. The fine, if realized, was ordered to be paid to the legal heirs of the deceased. The appellant was extended the benefit of section 382-B, Cr.P.C.
2. Briefly the prosecution case is that P.W.6 Mst. Waziran complainant on 19-11-1986 at 5-45 a.m. lodged F.I.R. Exh.PF at Police Station Sadar, Chishtian to the effect that sister of the complainant Mst.
Zahooran was married about 10/11 years ago with the appellant and due to strained relations she left the house of the appellant and came to the complainant. A suit for dissolution of marriage was filed against the appellant which was decreed and three months earlier to the present occurrence her Nikah was performed with one Usman. The appellant had a grievance against the deceased husband of the complainant. On the previous night, the deceased husband of the complainant Rab Nawaz alongwith Mst. Nasreen aged 7/8 years P.W.9 (given up) slept on one cot in the cattleshed. At about mid-night suddenly a fireshot was heard, on which P.W.6 alongwith her mother P.W.7 Mst. Bakhtawar Mai came out of the residential Kotha in front of the cattleshed and witnessed that the appellant after coming out from the eastern window was running away, who was witnessed in the moonlit night and had a gun with him. After hearing the fireshot and on the hue and cry of P.W.6 Mst. Waziran, P.W.8 Munir Ahmad, a neighbor reached and tried to stop the appellant, who loudly threatened that he had killed his enemy and if somebody would come near, he would also be killed and in the moonlit night while brandishing his gun succeeded in running away. Many persons assembled there. Due to the fire the daughter and husband of the complainant were injured. They were being taken in a wagon to Chishtian Hospital when Rab Nawaz succumbed to his injuries on the way. After leaving behind the dead body of Rab Nawaz and injured Mst. Nasreen in the Hospital at Chishtian, the complainant alongwith Allah Ditta Dadpotra (P.W.4) and Munir Ahmad (P.W.8) reached the police station and made statements.
P.W.6 further stated that her husband had been done to death with firing of gun by the appellant due to Mst. Zohran's divorce. P.W.10 Syed Abdul Rehman, S.H.O. recorded F.I.R. Exh.PF, and proceeded to the hospital, prepared Inquest Report Exh.PH and injury statement Exh.P1. Dead body of Rabnawaz deceased was despatched. P.W.10 also prepared injury statement of Mst. Nasreen Exh.PG. He recorded the statements of P.Ws. and thereafter proceeded to the spot, secured blood- stained earth vide memo. Exh.PJ and made it into a sealed parcel. The appellant absconded. P.W.10 after completion of the investigation had challaned the appellant and shown him as absconder.
Proceedings under section 512, Cr.P.C. were initiated. The learned Sessions Judge after recording the statements of P.Ws. under section 512, Cr.P.C. had consigned the file to the record room. The appellant was arrested on 13-2-1988 by P.W. 15 Ali Akbar Inspector, C.I.A. Staff of Police Station Khairpur Tamewali. After arrest of the appellant he was sent for trial before the Additional Sessions Judge, Bahawalnagar, who on 14-1-1989 framed charges under two heads i.e. under section 302, P.P.C. and section 307, P,P.C. to which he denied and claimed trial.
3. The prosecution examined 15 P.Ws. in all to substantiate its case. The learned Sessions Judge, Bahawalnagar had already recorded statements of 12 P.Ws. and thereafter vide his order dated 14- 11-1987 had consigned the record of the case under section 512, Cr.P.C. The P.Ws. were again summoned and their statements were recorded.
4. The motive behind the occurrence has been stated by P.W.6 Mst. Waziran complainant that the appellant had killed the deceased due to the grievance of divorce of Mst. Zahboran, his wife. The deceased was husband of sister-in-law of the appellant. P.W. 7 Mst. Bakhtawar Bibi stated that Mst.
Zahooran was married with the appellant and due to strained relations she had come to their house, and she got a decree of dissolution of marriage prior to this occurrence. The appellant bore a grudge against the deceased that he had manoeuvred to get the divorce. The appellant tendered in defence decree of dissolution of marriage Exh.DA, copy of written statement Exh.DB, judgment of the Family Court Exh.DC, statement of Mst. Zahoor Mai Exh.DD, statement of Allah Bakhsh Exh.DE, copy of statement of Muhammad Nawaz Exh. DF and copy of list of witnesses Exh.DG respectively. P.Ws.6 and 7 corroborated each other in regard to motive and the documents tendered in defence by the appellant are also in consonance with the motive alleged by the said P.Ws. Thus the motive is proved against the appellant: 5.
5. P.W.6 Mst. Waziran, P.W.7 Mst. Bakhtawar Bibi and P.W.8 Munir Ahmad are eye-witnesses. They had identified the appellant at the time of occurrence when he was coming out from the cattleshed through a window after causing injuries to Rabnawaz deceased and his minor daughter Mst. Nasreen. P.W.6 Mst. Waziran narrated the facts mentioned by her in the F.I.R. Exh.PF. P.W.7 Mst.
Bakhtawar Bibi stated that on the fateful night she along-with her daughter P.W.6 Mst. Waziran Bibi complainant was sleeping in their Kotha. Rabnawaz deceased and the daughter Mst. Nasreen P.W.9 (given up) were sleeping in the adjoining Kotha/cattleshed. At about mid-night they heard a fireshot and rushed to that place alongwith her daughter Mst. Waziran and saw that Khaliq Dad appellant was running out of the window of cattleshed with a gun. P.Ws. 6 and 7 raised hue and cry on which P.W.8 Munir Ahmad, P.W.4 Allah Ditta and others also reached there. They followed the appellant to apprehend him, but he threatened them with dire consequences and succeeded in running away. P.W.8 Munir Ahmad stated that on the relevant night he woke up to ease himself. He heard a fireshot from the house of Rab Nawaz deceased, and rushed to the place of occurrence.
He saw P.W.6 Mst. Waziran Bibi and P.W.7 Mst. Bakhtawar Bibi raising alarms. He also witnessed Khaliq Dad appellant having a gun in his hand coming out of the house of Rab Nawaz deceased.
He alongwith other P.Ws. tried to apprehend the appellant, but he threatened them with dire consequences, and succeeded in running away alongwith the gun. P.W.8 witnessed the deceased Rab Nawaz lying in injured condition near the Charpai and Mst. Nasreen P.W.9 (given up) was also injured. P.W.8 arranged for a wagon to take the injured persons to the Hospital, but on the way to the Hospital Rab Nawaz expired. The wagon was taken to the Hospital. Mst. Nasreen was admitted in the Hospital. P.W.8 alongwith P.W.6 Mst. Waziran went to the police station where P.W.6 lodged the F.I.R.
6. Medical aspect of the case has been furnished on record by the statement of P.W.11 Dr. Irshad Ahmad, who on 19-11-1986 at 10-00 a.m. conducted autopsy on the dead body of the deceased Rab Nawaz and found a gunshot wound at right side of front of chest 1-1/2 c.m. diameter .5 c.m. deep. The direction was downward towards left side. Burning and tatooing was present around the margins. This was wound of entry. There were six exit wounds at right side of back of chest each 1/2 c.m. in diameter. Margin was everted, wade and broken pieces of ribs were recovered. On dissection right lung was ruptured and right pleural cavity was full of blood. The Doctor opined that the cause of death in this case was haemorrhage and shock caused by injury No,1, which was sufficient to cause death in the ordinary course of nature. The injury was inflicted by a fire-arm.
Injury on the front side was of entry of cartridge while injury on the back of chest was exit of pellets.
All injuries were ante-mortem and homicidal in nature. The probable time which elapsed between injury and death was about within 2-1/2 hours while the time spent between death and post- mortem was about 6 to 9 hours. Exh.PA is correct carbon copy of post-mortem report.
' P.W.11 on the same day medically examined Mst. Nasreen Bibi daughter of Rab Nawaz and found six injuries which were collectively grievous in nature inflicted by gunshot. P.W.9 Mst. Nasreen was produced by the prosecution. As she could not understand the questions put to her being minor of 7/8 years, her statement was not recorded by the Court.
7. The appellant absconded after the occurrence and was arrested by P.W.15 Ali Akbar, Inspector/S.H.O. on 13-2-1988 i.e. after a period of one year and about three months. After initiation of proceedings under sections 87 and 86 (record not produced), the challan was submitted in the Court of learned Sessions Judge, Bahawalnagar showing the appellant as absconder. The learned Sessions Judge, Bahawalnagar after recording the statements of P.Ws. under section 512, Cr.P.C. consigned the record in the record room vide his judgment dated 14-11-1987. The appellant could not satisfactorily explain his absconsion.
8. The appellant after his arrest by P.W.15 led to the recovery of gun P.5 alongwith two cartridges from his Dera in heap of dung, which were secured by P.W.15 vide memo. Exh.PD attested by P.Ws. 13 and 14. No empty was secured by the Investigating Officer from the spot on his first visit to the place of occurrence on 19-11-1986. The gun P.5 was recovered at the instance of the appellant after one year and about three months. The recovery of P.5 has no evidentiary value.
9. The appellant when examined under section 342, Cr.P.C. denied the prosecution evidence against him as well as the factum of absconsion and had stated that he had been involved due to suspicion and enmity and for that the P.Ws. deposed against him. He did not make statement on oath as envisaged under section 340(2), Cr.P.C. He pleaded innocence and produced in defence documents Exhs.DA to DG.
10. I have heard the learned counsel for the appellant, learned counsel for the complainant assisted by the learned State Counsel and have perused the record: The appellant was married to Mst. Zahooran, sister of P.W.6 and daughter of P.W.7 and during the said wedlock three chidren were born, but due to strained relations, Mst. Zahooran secured a decree for dissolution of marriage against the appellant from the Court and about three months earlier to the present occurrence, her Nikah had been performed with one Usman. The appellant bore a grudge against the deceased as being husband of ex-sister-in-law. Even from the documents produced in defence by the appellant, the fact is proved on record that Mst. Zahooran obtained a decree for dissolution of marriage from the Court of competent jurisdiction. The motive behind the occurrence as stated by the statements of P.Ws.6 and 7 stands proved on record.
11. The eye-witness account has been furnished on record by the statements of P.Ws. 6, 7 and 8.
P.Ws. 6 and 7 were sleeping in the residential Kotha adjacent to the cattleshed where the deceased was shot dead by the appellant and at about mid-night they heard fireshots and raised hue and cry, which attracted P.W.8 to the spot. The appellant armed with gun escaped through a window of the cattleshed. The P.Ws. chased the appellant, but he threatened them and ran away.
12. The occurrence took place at about mid-night and it was 13/14 of the lunar night. Moreover, it has been brought on record that electricity bulb was on and the appellant /was witnessed by P.Ws.6, 7 and 8, who after fireshot made by him escaped from the spot with a gun in his hand. The appellant was previously known to the eye-witnesses and they had no motive to falsely involve the appellant in the instant case. The eye-witness account brought on record by P.Ws. 6, 7 and 8 is in consonance with the medical evidence furnished by P.W.11. The occurrence took place on the night between 18/19-11-1986, P.W.6 complainant went to the police station on 19-11-1986 at 5-45 a.m. and lodged F.I.R. The distance between the locale and , the police station was 18 kilometres. After the occurrence at first a wagon was arranged and the deceased .alongwith Mst. Nasreen was taken in injured condition to the Hospital and on the way the deceased succumbed to his injuries.
Thereafter leaving the dead body at the Hospital, P.W.6 accompanied by P.W.8 reached the police station and lodged F.I.R. Exh.PF with promptitude. Nothing had been brought on record that F.I.R.
Exh.PF was recorded after preliminary investigation and deliberations.
13. Statements of P.W.6, P.W.7 and P.W.8 cannot be brushed aside or thrown away on account of their close relationship and neighbourhood with the deceased. They had no animus against the appellant and had made statements in a straightforward manner. Implicit reliance can be placed on their testimony and excepting minor discrepancies here and there no dishonest improvements in their statements have been brought on record by the defence. Statements of P.Ws. 6, 7 and 8 are in conformity with the medical evidence furnished on record by the statement of P.W.11. The motive behind the occurrence has already been found confidence inspiring as stated by P.Ws. 6 and 7.
Absconsion of the appellant after the occurrence for a period of one year and about three months, supports his guilt.
14. Pursuant to the above discussion, I am of the firm view that the appellant was rightly convicted and sentenced by the trial Court. The appeal of the appellant fails and the conviction and sentence awarded to him by the trial Court is maintained. However, the appellant shall be given benefit of section 382-B, Cr.P.C.