' MIAN ABDUL KHALIQ, J.---Karim Bakhsh (45 years), son of Fazal Din was tried for the murder of Jindwadda by the learned Sessions Judge, Rahimyar Khan, who vide his impugned judgment dated 20-4-1992 had convicted and sentenced him under section 302, P.P.C. To death and a fine of Rs,2,000, in default whereof to suffer one year R.I. The fine, if realised, half of it was directed to be paid as compensation to the legal heirs of the deceased. The convict has assailed his conviction and sentence through this appeal as also through Criminal Appeal No, 80-J of 1992/BWP, while the learned Sessions Judge has sent a reference under section 374, Cr.P.C. For confirmation of death sentence. All those shall be disposed of by this judgment.
2. The prosecution case as unfolded in the F.I.R. Exh.PG recorded on 1-6-1990 at 11-30 p.m. At Police Station Abadpur, District Rahimyar Khan by P.W.9 Sanaullah, Inspector/S.H.O. On the statement of Ghulam Qasim (P.W.8) was to the effect that the complainant alongwith his brother was residing in Mauza Rajanpur Khurd and as tenant they used to cultivate the land for earning their livelihood.
The appellant resident of Mauza Kohr Man Singh, Tehsil and District Rahimyar Khan had herd of goats and a few days earlier of the present occurrence his goats had entered in their Loosin field and damaged the same, whereupon the appellant and the deceased had abused each other, but the complainant intervened and pacified them. Appellant Karim Bakhsh nourished grudge and on the day of occurrence i,e, on 1-6-1990 at about 8-00 p.m. When the complainant alongwith his deceased brother went in the Basti to Ahmad Din Kamboh for obtaining tractor who ploughing the land of Dr. Ismatullah outside the Basti in the area of Mauza Kohr Man Singh near the house of the appellant. The lights of the tractor were on, where P.W.11 Khan Bahadur and P.W. All Khan (given up) were present and P.W.6 Shakil Ahmad was driving the tractor. Meanwhile appellant while calling bad names, reached there, took out the pistol from his Dub and asked Jindwadda deceased that he had insulted him on the previous day and he would teach him a lesson. The appellant fired a pistol shot at Jindwadda which hit on the front side of his forehead and nose, who was seriously injured, and fell down on the ground. The complainant Ghulam Qasim (P.W.8) alongwith the P.Ws tried to apprehend the appellant, but he succeeded in running away. The P.Ws tried to hold the injured, but he succumbed to his injuries at the spot. The complainant went to Rahmatullah Kamboh, Zamindar, informed him and with him reached the police station leaving behind Khan Bahadur (P.W.11) and Shaldl Ahmad (P.W.6) to guard the dead body. The appellant had murdered the deceased with the pistol fire.
3. The appellant was challaned and sent up for trial. A charge under section 302, P.P.C. Was framed against the appellant, to which he denied and claimed trial.
4. The prosecution examined 11 witnesses in all to substantiate its case. The prosecution examined P.W.8 Ghulam Qasim complainant as a witness for the motive; P.W.6 Shakil Ahmad, P.W.8 Ghulam Qasim and P.W.11 as eyewitnesses. P.W.1 Dr. Shabbir Ahmad had conducted the post-mortem examination of the deceased, and P.W.5 Haji Muhammad and P.W.9 Sanaullah, Inspector/S.H.O.
Stated about the recovery aspect of the case. The other P.Ws are of formal nature.
5. The appellant pleaded not guilty to the charge and denied the prosecution evidence against him. When asked "Why this case against you and why do the P.Ws. Depose against you? He replied:- "All the private P.Ws. Are interested and inimical to me. I am a poor cultivator and lived in a house which Dr. Asmatullah wanted to get vacated from me against my will. Faqeer Bux Kamboh maternal-grandfather of Shakeel P.W. Who is closely related to Rehmatullah P.W. And Dr. Asmatullah murdered his wife Mst. Sairan due to the suspicion of illicit relations with Hafiz Abdul Malik Mochi, the son of my real maternal-aunt, therefore, the Kamboh Baradari nursed a deep grudge against members of my family and they were awaiting a chance to grip any member of my family to revenge their Ghairat. It was a blind murder and complainant party, who had close relations with Rehmatullah, Asmatullah and Shakil, consulted with their Kamboh well-wishers who finding a good chance to revenge, nominated me as murderer. Thus, my name was incorporated in the F.I.R. And I have been involved due to above said enmity with my elders from maternal side and I am suffering the consequences for the disobedience of the orders for vacation of house of Kambohan."
' He further stated that he was innocent. The appellant neither made statement on oath nor produced evidence in defence. After examining the evidence on record, the learned trial Court relied on the testimony of the P.Ws., and convicted and sentenced the appellant.
6. The learned counsel for the appellant vehemently contended that the appellant has been falsely involved in the present case and it was a blind murder.
7. We have carefully considered the submissions made by the learned counsel for the parties in the light of the evidence available on record. The motive behind the occurrence has been stated by P.W.8 Ghulam Qasim complainant, brother of the deceased in F.I.R. Exh.PG was that the appellant had a herd of goats and a few days earlier to the present case the goats had damaged the Loosin fodder of the deceased, on _which the appellant and the deceased had exchanged abuses and he had patched up the matter. He also reiterated the motive behind the occurrence before the trial Court. P.W.11 Khan Bahadur had also stated that the appellant within his view had brought out pistol from his fold and fired at the deceased and while firing at the deceased the appellant told the deceased that he was teaching him a lesson for having quarrel with him. P.W.6 Shakil Ahmad at the relevant time was ploughing the land with the tractor at about 8-00 p.m. And the lights of the tractor were on and in the light he had witnessed P.W.8 Ghulam Qasim and Jindwadda deceased coming towards his side. He also witnessed the appellant Karim Bakhsh in the light of the tractor running towards their side and while reaching close to the deceased immediately took out a pistol from his Dub and fired at Jindwadda hitting on his face. He stopped the tractor and alongwith P.Ws.
Chased the appellant, but he succeeded in running away alongwith the weapon of offence. P.W.8 Ghulam Qasim complainant had narrated in the F.I.R. Exh.PG as well as before the trial Court that he alongwith his deceased brother Jindwadda went to Ahmad Din for hiring his tractor to plough his land. They went to the land of Asmatullah where P.W.6 Shakil Ahmad was ploughing his land and at about 8-00 p.m. They witnessed P.W.6 Shakil Ahmad ploughing the land with the tractor and its lights were on. P.W.11 Khan Bahadur and All Khan P.W. (given up) were also present at the Banna of the land and in the light of the tractor he witnessed the appellant coming towards them and on coming near he hurled abuses at the deceased who looked towards the appellant and the latter fired from his pistol hitting Jindwadda on the face near nose and forehead. Jindwadda fell down and succumbed to his injuries. The appellant ran away alongwith the pistol. P.W.11 Khan Bahadur stated that he was present at the place of occurrence at the relevant time when P.W.6 Shakil Ahmad was ploughing the land of Dr. Asmatullah with a tractor, the lights of which were on. P.W.8 Ghulam Qasim complainant alongwith deceased Jindwadda passed near them. Karim Bakhsh appellant came close to them from the side of his house. The appellant started abusing Jindwadda deceased and P.W.8 Ghulam Qasim complainant. P.W.11 got up and proceeded towards them and in the light of the tractor he witnessed that the appellant had brought out a pistol from his fold and fired at the deceased and while making fire at the deceased the appellant had told the deceased that he was teaching him a lesson for having quarrelled with him. The deceased fell down and succumbed to his injuries. The appellant ran away alongwitb his weapon of offence. No doubt P.W.8 complainant is the brother of the deceased, but his statement has been corroborated by P.W.6 Shakil Ahmad and P.W.11 Khan Bahadur, who had witnessed the occurrence. It was suggested to the eye-witnesses that it was a blind murder and the evidence was concocted. The substitution is a rare phenomenon P.Ws. 6, 8 and 11 had no motive whatsoever to falsely involve the appellant Karim Bakhsh in the present case. They have made their statements in a straightforward manner and implicit reliance can be made on their testimony.
8. P.W.9 Sanaullah, Inspector/S.H.O. On 2-6-1990 i,e, on his first visit to the place of occurrence had secured empty cartridge .12 bore P.4 from the spot vide memo Exh.PE attested by P.W.5 Haji Muhammad and had made a sealed parcel thereof and deposited the same with P.W.4 Abdul Ghafoor H.C., who sent the same on 3-6-1990 to the concerned office through P.W.3 Mulazim Hussain, F.C., and P.W.3 delivered the same in the office of Forensic Science Laboratory, Lahore intact. The appellant was arrested by P.W.9 Sanaullah Inspector/S.H.O. 11-6-1990 and during interrogation he made a disclosure and led to the recovery of .12 bore pistol P.5 from his residential Kotha which was secured by P.W.9 vide memo Exh.PF attested by P.W.5 Haji Muhammad and prepared the sealed parcel of the same. P.W.9 deposited the sealed parcel of Pistol P.5 with P.W.4 Abdul Ghafoor, M.H.C., who sent the same to the Forensic Science Laboratory through Arif Hussain Constable (P.W.7) and P.W.7 delivered the same to the said office on 14-7-1990 intact. The report of the Technical Services, Crime Branch, Punjab, Lahore Exh.PL in respect of the crime empty and pistol .12 bore was positive. The learned counsel for the appellant was unable to point out any infirmity in the statements of P.Ws. 5 and 9. P.W.5 and P.W.9 have no animus against the appellant. During cross-examination P.W.5 Haji Muhammad refuted the suggestion that the house of the appellant was situated in the main Abadi of village Kurman Singh, and the sisters and brothers of the appellant lived with him. He also refuted the suggestion that he had not gone into the residential house of the appellant and he was made to stay outside and the police alone went inside the house to effect the recovery. The report of the Forensic Science Laboratory is positive. The recovery aspect of the case has been proved on record.
9. P.W.1 Dr. Shabbir Ahmad on 2-6-1990 conducted autopsy on the dead body of Jindwadda deceased and found one fire-arm injury wound of 4 x 4 c.m. x brain substance at the junction of the forehead bridges. Edges were inverted, blackening and tatooing of the wounds and underlying tissues were present. No exit wound was present. He opined that after conducting the external/ internal post-mortem, the injury to vital organ (brain) and haemorrhage was sufficient to death in the ordinary course of nature. The injury was ante-mortem and the kind of weapon was fire-arm.
The probable time between injury and death was within minutes and death and post-mortem was within about sixteen hours.
10. F.I.R. Exh.PG recorded on the statement of P.W.8 Ghulam Qasim complainant contains the motive behind the occurrence, the names of the witnesses, the name of the accused, the weapon carried by him and the manner in which the occurrence took place, all are given therein. The occurrence is stated to have taken place at 8-00 p.m. At a distance of 15 kilometres from the police station and the F.I.R. Exh. PG was lodged at.The police station at 11-30 p.m. On the same night. Nothing has been brought on record by the defence that F.I.R. Exh.PG was recorded after preliminary investigation and deliberations, rather it was lodged with promptitude.
11. The ocular testimony furnished on record by the statements of P.Ws. 6, 8 and 11 is in consonance with the medical evidence as stated by P.W.1 Dr. Shabbir Ahmad. The recovery of weapon of offence pistol .12 bore P.5 is wedded to the empty P.4. The motive has also been proved on record and excepting minor discrepancies here and there, nothing was brought on the file that he had made dishonest material improvements in their statements.
12. From the facts and evidence on record, we are of the view that the prosecution had succeeded in establishing and proving its case beyond doubt against the appellant. No mitigating circumstance existed either. The appeals filed by the appellant are, therefore, dismissed and the murder reference is answered in the affirmative. The death sentence is confirmed.