' The criminal appeal has been filed by the appellant against the judgment dated 3-4-1990 made by the learned Additional Sessions Judge, Rahim Yar Khan whereby the appellant was sentenced and convicted as follows:--
(i) Under section 452, P.P.C. To five years' R.I. And a fine of Rs,5,000 in default whereof to further undergo six months' R.I.
(ii) Under section 302, P.P.C. To imprisonment for life and a fine of Rs,10,000 in default of payment of fine to further undergo one year's R.I.
' The fine if recovered, was ordered to be paid to the complainant as compensation. Both the sentences were to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended.
2. The appellant alongwith Rashid Ahmad and Lal Bakhsh acquitted co-accused were tried for the murder of Riaz Ahmad, deceased in case F.I.R. No, 51/87 registered at Police Station Bhong, District Rahim Yar Khan on 27-4-1987 at 6-30 a.m. On the complaint of P.W.3, Muhammad Bakhsh, complainant, father of the deceased. The complainant had alleged that he was resident of Basti Mulla Pawali of Mauza Ghulam Ahmad Abad and was a cultivator. He had five sons and the deceased Riaz Ahmad was the eldest who worked as a tailor in Bhong and after getting free from his work, used to return daily to his house via Mumdani. The deceased developed illicit,relations with Mst. Anwar Mai (sister of the appellant). The deceased used to sew the clothes of said Mst.
Anwar Mai. About 5/6 months earlier to the present occurrence, Riaz Ahmad, deceased had abducted Mst. Anwar Mai due to his relations and on the second day through Punchayat, she was restored to her brother, the appellant.The appellant had threatended the complainant that the deceased was their Kala and he would not spare him and according to the custom through Jirga a decision was tried to be made but the appellant did not agree. On the fateful day, i,e. 27-4-1987, early in the morning before going for harvesting the wheat P.W.3 alongwith Rahim Bakhsh P.W.4 and Bashir Ahmad P.W.5 resident of the village was smoking Huqqa whereas the deceased was sleeping on the cot in the courtyard on one side of his body when suddenly from the back side of the house while scaling over the hedge the appellant alongwith Lal Bakhsh and Rashid, acquitted co-accused all armed with 12 bore pistols entered the house. The appellant fired on the back of Riaz Ahmad, deceased whereas the co-accused stood while pointing their pistols at the P.Ws. And made Lalkara and also threatened P.Ws. That if anybody would come near, he would not be spared. Thereafter the appellant had raised a Lalkara that he had finished the deceased and had taken the revenge of his insult. On the hue and cry of the P.Ws. The accused while firing and scaling 'over the hedge ran away. The deceased succumbed to his injury at the spot. The appellant alongwith the acquitted co-accused after making consultations had entered the house and due to previous enmity had murdered the deceased.
3. The appellant alongwith the acquitted co-accused was challaned and sent up for trial. A charge under section 452/302/34, P.P.C. Was framed against the accused to which they denied and claimed trial.
4. The prosecution had examined twelve P.Ws. In all to substantiate its case.
5. The motive behind the occurrence was stated by P.W.3 in F.I.R. Exh.P.E. i,e. That about 5/6 months earlier to the present case, the deceased had abducted Mst. Anwar Mai, sister of the appellant but she was restored on the second day due to the appellant through Punchayat. The appellant had threatened that the deceased was their Kala and he would not be spared. P.W.3 had stated that Mst. Anwar Mai was abducted by the deceased and he kept her at Haq Farm but she was restored to her parents on the second day and was handed over to her father. The appellant had threatened the deceased that he would be done to death.
' P.W.4, Rahim Bakhsh had stated that Riaz Ahmad, deceased used to work as tailor-master in the town of Pawali and had developed illicit relations with Mst. Anwar Mai, sister of the appellant and took her away to some unknown place and complainant P.W.3 restored her on the next day of taking away.
6. The ocular account was furnished on record by the statements of P.W.3, complainant, Rahim Bakhsh P.W.4, and Bashir Ahmad P.W.S. P.W.3, Muhammad Bakhsh is the father of the deceased who had lodged F.I.R. Exh. P.E. And narrated the facts mentioned by him in Exh. P.E. At the trial. P.W. 4, Rahim Bakhsh had stated that he was resident of Basti Malla Pawli (where the occurrence took place) and on the day of occurrence at about 5-00 a.m he alongwith Bashir Ahmad P.W. 5 was sitting in the house of P.W. 3 (complainant) and they were smoking Huqqa. They had gathered there in order to harvest wheat. P.Ws.3 and 5 were sitting in the courtyard while the deceased was lying on a cot in side the courtyard when all of a sudden, the appellant alongwith the acquitted co- accused, all armed with .12 bore pistols trespassed into the house. The appellant fired with his pistol at the deceased which hit him. The acquitted co-accused had pointed their pistols at P.Ws. And threatened them that they should keep silent otherwise they would be murdered. The deceased succumbed to the injury at the spot. The appellant had stated that he had taken the revenge of his honour by murdering Riaz Ahmad, deceased. The accused, ran outside the house.
' P.W.5, Bashir Ahmad stated that on the day of occurrence at about 5-00 a.m. He was present in the house of P.W. 3 alongwith P.W. 4 in order to harvest the wheat and were smoking Huqqa. All of a sudden, the appellant alongwith the acquitted co-accused, all armed with .12 bore pistols trespassed into the house by crossing "Lorah". Riaz Ahmad, deceased was lying on a cot in side position. The appellant fired at Riaz Ahmad who died at the spot. The acquitted co-accused had threatened the P.Ws. At pistol point to keep quiet, otherwise they would be murdered. The appellant had stated that he had taken the revenge of his honour and they ran away. The accused while running again fired in the air after crossing the "Lorah".
7. The medical evidence had been furnished on record by the statement of P.W.11, Dr. Mehmood Ahmad Mirza who on 27-4-1987 at 11-00 a.m. Conducted autopsy on the dead body of Riaz Ahmad, deceased and had found a circular lacerated wound 1-1/2" x 1-1/4" on the back of the chest on the left side of the spine at the level of inferior angle of the scapula. The doctor had opined that the cause of death was shock and haemorrhage, caused by injury No,1 which was inflicted by fire-arm, was sufficient to cause death in the ordinary course of nature and was ante-mortem. The death occurred soon after the injury whereas the post-mortem examination was conducted within about 12 hours of the death.
8. The appellant was arrested by P.W. 12, S.H.O. On 5-6-1987 and had led to the recovery of pistol P.1 which was secured by P.W. 12 vide memo. Exh. PA. Attested by P.W.1, Amir Bakhsh and Langer P.W.
(given up). P.W. 12 on the day of occurrence i,e. 27-4-1987 at the spot had secured empty P.2 vide memo. Exh. P.C. Attested by P.W.2 Swali (given up) and P.W.
12. P.W.12 had prepared the sealed parcels of P.1 and P.2 and sent the same to the Forensic Science Laboratory but the report Exh. P.G. Is not positive.
9. The appellant when examined under section 342, Cr.P.C. Denied the prosecution evidence against him and had stated that the case against him was due to enmity and suspicion, he was innocent and it was an unseen occurrence. He neither made statement on oath as envisaged under section 340(2), Cr.P.C. Nor produced defence evidence.
10. I have heard learned counsel for the parties and perused the record.
11. The evidence of motive has been furnished on record by P.W.3 and P.W.4 who had stated that about 5/6 months earlier to the present occurrence, the deceased had abducted Mst. Anwar Mai, sister of the appellant and after two days, she was restored to the appellant. The appellant had refused to accept "Jirga" convened by them in order to compensate him and had stated that since the deceased was their Kala, so he would be done to death. P.W.3 being father of the deceased had got restored Mst. Anwar Mai to the appellant. Rahim Bakhsh P.W.4 is the maternal-uncle, of the deceased and had the prior knowledge of the motive behind occurrence. It was urged on behalf of the appellant that according to F.I.R. Exh.P.E. That the abductee was restored to the appellant but contrary to it P.W.3 at the trial had stated that she was restored to her father. P.W.3 also stated that the appellant's tribe had surrounded their Basti so he had restored the abductee to them whereas he was contradicted by Rahim Bakhsh P.W.4 who stated that their Basti was never surrounded for that purpose. P.W.3 complainant is father of the deceased whereas P.W.4 Rahim Bakhsh is maternal-uncle of the deceased and being so closely related, knew about the motive behind the occurrence and both of them have made consistent corroborative version of the motive part of occurrence against the appellant.
12. The ocular testimony has been furnished on record by P.W.3 complainant, P.W.4 and P.W.5, Bashir Ahmad who have given consistent version about the occurrence. P.W.3 is the father of the deceased and the occurrence took place in his house. P.W.4 is maternal-uncle of the deceased and P.W.5 Bashir Ahmad were present in the house of the deceased at the relevant time and were smoking Huqqa. They were present in the house as they had to proceed for thrashing of wheat.
They have unanimously stated that on the fateful day at the relevant time, the deceased was sleeping on a cot in the courtyard of the house and they were smoking Huqqa nearby. The appellant had fired a shot from the north side which had hit the deceased at the back of his chest.
P.W.3 is resident of the house where the occurrence took place and P.Ws.4 and 5 had reached the house of the deceased. They wanted to leave for harvesting the wheat crop. P.Ws.4 and 5 had given probable cause of their presence at the place of occurrence at the relevant time. The medical aspect of the case has been stated by P.W.11, Dr. Mahmood Ahmad Mirza who on 27-4- 1987 at about 11-00 a.m. Conducted dm autopsy on the dead body of the deceased and had found one injury i,e. Circular lacerated wound 1-1/2" x 1-1/2" on the back of the chest on the left side of the spine at the level of inferior angle of the scapula, caused by fire-arm and was sufficient to cause death in the ordinary course of nature and was ante-mortem. The death occurred soon after the receipt of injury and postmortem examination was conducted after about 12 hours of the death.
During cross-examination P.W.11 had stated that he had given the time between the death and post-mortem examination about 12 hours, it might fluctuate one to two hours on either side. The injury inflicted upon the deceased was on the back side.
13. It was urged on behalf of the appellant that the deceased was lying east to west while his face was towards north as he was fired at from north side but P.W.11 had stated that the fire was hit to the deceased from his back side and the same could not the result of fire made from north side.
The occurrence took place at about 5-00 a.m., the post-mortem examintion was conducted at 11 a.m. On the same day whereas P.W.11 had stated that time which elapsed between the death and post-mortem examination was 12 hours which according to P.W. May fluctuate one to two hours on either side and the time of death given by P.Ws.3, 4, 5 and P.W.11 do not coincide and the ocular account was not in consonance with the eye-witness account. The deceased was lying east and west but it is not expected from the P.Ws. To give photographic description of the posture of the deceased. P.W.11 had given an approximate time of the death of deceased which would not be a valid reason to discard the sworn testimony of the eye-witnesses. The ocular testimony furnished by the statements of P.Ws.3, 4 and 5 is in consonance with the medical evidence furnished on record by the statement of P.W.11. The weapon used, the seat of injury on the person of the deceased corroborate the statements of eyewitnesses and the doctor.
' The recovery aspect of the case has been furnished on record by the sttements of P.W.1, Amir Bakhsh and P.W.12 Muhammad Tufail, S.H.O. Investigating officer and in their presence the appellant had led to the recovery of pistol .12 bore P.1 which was secured by P.W.12 vide memo.
Exh.P.A. Attested by P.W.1 Amir Bakhsh and Ankar P.W. (given up). P.W.12 had secured crime empty P.2 from near the place of occurrence vide memo. Exh.P.C. On 27-4-1987. The appellant was arrested on 5-6-1987 and on the same day, had led to the recovery of pistol P.1. The report of the Forensic Science Laboratory Exh.P.Q. Is not positive. The recovery aspect of the case has not been proved on record. It was vehemently urged before me that F.I.R. Exh.P.E. Was recorded after preliminary investigation and deliberations. The occurrence took place on 27-4-1987 at about 5-00 a.m. And P.W.3 lodged F.I.R. Exh.P.E. At police station which was at a distance of 4-1/2 kilometres from the spot at 6-30 a.m. On 27-4-1987. The post-mortem examination Exh.P.G. Was conducted by P.W.11 on 27-4-1987 at 11-00 a.m. On the basis of injury statement Exh.P.G./2 and inquest report Exh.P.G./3 which bear F.I.R. No,51/87. Nothing was brought on record by the defence to substantiate its contention that F.I.R. Exh.P.E. Was recorded after preliminary investigation and deliberations. The F.I.R. Was recorded with promptitude on the given time, place without deliberations and preliminary investigation.
14. Learned counsel for the appellant has argued that it was an unseen occurrence and the appellant had been substituted for real culprit. The substitution is a rare phenomenon. P.Ws.3, 4 and 5 have no motive whatsoever to falsely involve the appellant in the present case. They have no animus against the appellant and on the other hand the appellant had the motive to commit the murder:of the deceased.
15. The appellant had raised the plea of false involvement due to enmity and suspicion. He neither made a statement on oath as envisaged under section 340(2), Cr.P.C. Nor produced any defence.
The statements made by P.Ws.3 and 4 cannot be thrown away or brushed aside on account of their close relationship with the deceased i,e. P.W.3 who is father of the deceased whereas P.W.4 is maternal-uncle of the deceased and their statements have been fully corroborated by P.W.4.
16. The motive behind the occurrence has been proved on record. P.Ws.3, 4 and 5 had made their statements in a straightforward manner and every reliance can be placed on their testimony. They had no animus against the appellant to falsely involve him in the present case. The ocular testimony furnished on record by the statements of P.Ws.3, 4 and 5 is in conformity with the medical evidence furnished by the statement of P.W.11 and excepting few contradictions here and there, nothing has been brought on record by the defence that the P.Ws. Have made dishonest improvements in their statements.
17. Pursuant to the above discussion, I hold that the prosecution had succeeded in establishing its case beyond doubt against the appellant and no exception can be taken to the impugned judgment.
18. Resultantly, the appeal filed by the appellant fails and the same is dismissed.