1. HAMOODUR RAHMAN, C. J.---The appellant in this case was charged with paving caused the death of one Nizam Din at about 1-00 p.m. Of the 24th of September, 1966, at the letter's shop at Eminabad Mor in village Adbo Rai, District Gujranwala, within Police Station, Kamoke, by firing at the latter with a shot-`tin. The incident was said to have beets witnessed by Ali Nawaz (P. W. 9), a partner of the deceased. Muhammad Ishaq (P. W. 9). Allah Ditta (P. W. 8) and Mushtaq (P. W. 10) who were all then present at the shop. One of them even tried to apprehend the appellant and to snatch away the gun from him but he dropped the gun and fled away on a mare which was being held by his brother Muhammad Ali at a little distance out side the shop of the deceased.
2. The motive for the crime was alleged to be a quarrel over the repay meat of a loan of Rs. 2,000 given by the deceased to the appellant. Five to seven days before the fit, the deceased, it is said, had demanded repayment of the loan and over " an altercation had taken place.
3. The deceased was after the incident, first carried to the Civil Hospital at Gujranwala in a truck and then the first information report was lodged at Kamoke Police Station between 3-00 and 4-00 p.m.
4. By Ali Nawaz (P.W. y) In this it was stated that the appellant, after leaving his mare outside with his brother Muhammad All, entered the shop of the deceased and fired a shot with his gun at Nizam Din standing in the door-way. The shot hit the deceased, who was then resting on a thara inside the shop, on the stomach; the informant tried to catch hold of the appellant but the left the gun and ran away. The eye-witnesses examined in this case were ell names in the first information report.
5. The evidence of the Medical Officer(P. W.1) discloses that Nizam Din was brought to the hospital at 10:30 p.m. In an injured conditions. Finding his condition serious the Medical Officer rang up the Civil Lines Police Post and asked the Police Officer for the recording of his dying declaration. Since no one turned up from the Police Post and the condition of the deceased being deteriorating the doctor himself recorded the statement of the deceased in the operation theatre. The deceased was at the time of his senses and fit to make a statement. It was read over to him, he admitted it to be correct and then his thumb-mark was obtained on it but eight minutes after the recording of the statement, Nizam Din expired.
6. The statement which was recorded at 10:30 p.m. Is a brief one which given only the name of the victim the name of the assailant the weapon used and the place of occurrence. The name of the assailant is given as Barkat Ali son of Khushi Muhammad resident of Chandisla and weapon described is a gun.
7. The post-mortem examination revealed only one injury which has been described as follows :-- "A lacerated wound, 4' x 5', on right half of the abdomen. Margins were inverted and blackened. The upper part of the abdomen wall near the wound showed swelling and black colouring. Intestines and omentum were protruding out through the wound."
8. From the abdominal vacity, a large number of pellets and a piece of caret-board were removed and further examination showed that the tenth rib of the right side was fractured near the coastal part, the liver and multiple openings in its left and appeared to be completely lacerated.
9. The doctor opined that the injury was by itself sufficient in the ordinary course of nature to cause death and that the injury had been caused about two hours before death and the cartridge used appeared to be a No. 4 cartridge.
10. The doctor was searchingly cross-examined and it was suggested to him that the deceased was already dead when lie was brought to the hospital, but he denied this suggestion. It was also suggested to him that the dying declaration said to have beets recorded by him was subsequently crown up at the instance of the Police. He, however, repudiated the suggestion and maintained that the dying declaration was recorded by him in the presence of another doctor while the deceased was still in his senses. The deceased became unconscious only after his thumb- impression had been obtained.
11. It appears that investigation was taken op by the S. H. O. (P. W. 13) se soon as he received a copy of .Cps first information report at Chianwala Rest House where be was investigating another caw. He proceeded to the place of occurrence immediately and reached there at 3-40 p.m. The gun (Exh: P.
12. 1) as produced before him by Allah Dicta (P. W- 2) and was taken into posses--sion with the crime empty (Eah. P. 2) still in its chamber. The S. I, also took into possession bloodstained earth and a blood-stained matters on which the deceased was said to be resting at the time. Thereafter he visited the hospital at Gujranwala and prepared the inquest report. The Postmortem was performed on the next day, namely, the 21st of September, 1966 and the appellant was taken into custody on the 22nd of September, 1966. After this, Subylnspector Rabbani (P. W. 13) Was transferred and he banded over the investigation to his successor Mack Sher Muhammad (P. W. 11).
13. The latter only got the site plan prepared and then submitted the challan before the Committing Court.
14. The appellant was at the trial defended, amongst others, by Mr. Hakeem Chiragh Ali, who usually cross-examines each witness very searchingly and exhaustive. The defence set up by him was that the murder of Nizam Din has been procured by Mushtaq (P. W. 10) and the other witnesses through a servant of the deceased who too was named Barkat but his father's name was Khushi Muhammad and that the murder had actually been committed under a cluster of trees near the culvert from where the road bifurcates to Eminabad. Thereafter as suggested to Ali Nawaz (P. W. 9), the appellant had been falsely implicated, pause, imam Din, the grandfather of Mushtaq (P. W. l0) had a grudge against Khushi Muhammad the father of the appellant, who bad not delivered possession of a land mortgaged by him with Imam Din in consideration of a loan of Rs. 18,000.
15. The appellant in his own statement under section 342. Criminal Pro--cedure Code, set up the following defence :- "I have been falsely implicated by the prosecution witnesses due to enmity. Ali Nawaz P. W. And Imam Din strand-fattier of Mushtaq P. W. Obtained land, from my father and my aunt on mortgage, but my father and my aunt refused to give them possession, or to get the mutation of the mortgage entered in the revenue papers. They also refused to pay any rent, as a result of which Ali.
16. Nawaz and Imam Din became inimical with my family and persisted to get the principal as well as the interest from my father which we refused. Even Principal was partly paid by my father and the mortgage deed was got back. This was their grievance for which they had impli--cated me. There is another grievance with the P. Ws. Against me and my family Mst. Sharifan daughter of my brother Muhammad Ali is married to Bashir the brother-in-law of Mushtaq P. W. And, relation of Allah, Ditta P. W. She bas deserted bar husband and refused to live with him for which the P. Ws.
17. Several times brought a deputation but she refused."
18. He also denied that the gun said to have been recovered from the place was his.
19. In support of his version, he also produced certain documents to established the relationship of the Prosecution witnesses with the doted and to proved that the mortgage obtained by Imam Din from his father Khushi Muhammad was never entered in to the Jamanbandi. He also produce a cutting from a local newspaper called `.Qunmi Dalair" to above that the deceased Nizam Din, according to this report was said to have been killed under a cluster of trees at the place where the road bifurcates to Eminabad.
20. The relationship with the deceased of all the eyewitnesses examined by the prosecution, except Muhammad Iahaq (P. W. 7), is admitted. Allah Ditta (P. W 8) was a maternal cousin of the deceased but he was also distantly related to the appellant, as a daughter of Muhammad Alt, the brother of the appellant. Was marred to Bashir, his sister's son. He also admitted that this daughter of Muhammad Ali was living in separation from her husband, for the Last 8 or 4 years. But in the next breath corrected himself and said that she was living separately from heir husband since after the inci--dent. He also admitted that Mst. Tehham Bibi was his mother and that in 1958 she had sold her properties, which she had inherited from her brother Yar Muhammad, to her nephews and thus deprived witness from inheriting the said properties from his mother. This does not, however, show what connection, if any, the sale had to do with the appellant or why on this account this witness should be hostile to the appellant.
21. Ali Nawaz (P. W. 9) was a partner of the deceased along with Mushtaq (P. W. 10). The latter, namely.
22. Mushtaq, was also related to the deceased being a grand son of Imam Din, a brother of the deceased.
23. The prosecution claimed that Ishaq (P. W. 7) was a completely indepen--dent witness, as he belonged to a different caste and lived in a different village. The defence, however, suggested that he too was a partner of Allah Ditta (P. W. 8) in the latter's tube-well, as had .Been admitted by Allah Ditta before the Committing Court. The statement of Allah Ditta in the Committing Court was not, however, transferred to the trial Court file under section 288, Cr. P. C. But only a portion of it was used for contradict--ing Allah Ditta under section 145 of the Evidence Act.
24. The defence also managed to elicit from the S. H. O. (P. W. 13) that he did c;)me to know during investigation that the mare on which the assailant is said to have escaped from the place was held by Nazir Ali son of Barkat Ali Ghumar and not Muhammad Ali, the brother of the appellant. This Nazir Ali was at that time employed as a leader in the shop of the deceased. His statement was recorded under section 161, Criminal Procedure Code, and he was also cited as a Prosecution witness but later given up without any explanation whatsoever.
25. The defence also succeeded in obtaining from Muhammad Aslam (P. W. 6), who had been examined by the prosecution only to prove that he identified the dead body of the deceased at the mortuary, an admission that Ghulam Rasul son of Nizam Din (not the deceased) was also present at the shop at the time but he too was not examined. This witness also admitted that Nazir son of Barkat Ali Ghumar was another employee in the shop of the deceased.
26. On the basis of these admission and the medical evidence, the defence maintained that the prosecution bad suppressed the truth tend, therefore, not succeeded in establishing the guilt of the appellant beyond reasonable doubt. They also relied on the site plan to show that the witnesses were not present there; and had not seen the shot being fired from the threshold of the shop of the deceased, who was lying down on the away, then there would have been no possibility of any blackening or black colouring teeing found around the wound, as stated by the doctor. In support of this contention, reliance was also placed on the opinion given by Sir Gerald Durrand in his book on "Identification of Fire-arms and Forensic Ballistic-" that blackening around the wound could not occur In the case of a shot tired from a range of more than four feet.
27. The conduct of the prosecution in withholding as Nazir, who, according to the Investigation Officer was holding the mare on which the assailant escaped, was severely commented upon and it was suggested that the inves--tigation had dishonestly substituted the brother of the appellant.
28. Muhammad Ali in place of Nazir Ali son of Barkat Ali Ghumar, but even then not joined Muhammad Ali in the investigation of the case. Therefore, from the very beginning, the Investigating Officer knew that Muhammad Ali, the brother of the appellant had nothing whatever to do with the incident, but be had been falsely shown as holding the mare, in order to conceal that it was Nazir Ali, an employee of the deceased himself who was holding the mare. In the circumstances the defence suggested that the murder was committed by Barkat, the son of Khushi Ghumar, another employee of the deceased, at the instance of Mushtaq (P. W. 10) and the other prosecution witnesses, who had all combined to falsely implicate the appellant due to the enmity over the mortgage and the separation of the daughter of Muhammad Ali, the brother of the appellant, from her husband.
29. The non-examination of Nawab, son of Mir, another eye-witness named in the F. I. R. Was also relied upon to show the dishonesty of the prosecu--tion.
30. The defence also maintained that the went had occurred at another place, namely, at Eminabad Mot, as stated in the dying declaration (Exh. P. C.) itself. This Eminabad corner could not possibly refer to the shop, even though the Investigation Officer (P. W. 13) did try to explain out that the place where the shop was situated was also known as Eminabad Mot". The statement of the deceased in the dying declaration was that he was sleeping tit "Eminabad Mor" when he was shot at. It is significant that the deceased did not say that he was sleeping in his shop at "Eminabad Mor".
31. Notwithstanding these infirmities and other discrepancies in the evidence the trial Course took the view that, in spite of these defects and discrepancies in the evidence here and there, there was no reason to disbelieve Muhammad Ishaq (P. W 7) who appeared to he an independent and disinterested witness The admission of Allah Ditta (P. W. 8) n the Committing Court that Muhammad Ishaq was his partner in a tube-well, was not taken into account as his committing Court statement was not put in under section 283, Cr. P. C. And Muhammad Ishaq had himself denied this suggestion. The appellant was, accordingly, convicted under section 302, Pakistan Penal Code, and sentenced to death.
32. The High Court, on appeal and reference, agreed with this conclusion and confirmed the death sentence.
33. The ocular evidence was not found to have been seriously contradicted by the Medical evidence, in view of the fact that the spread of the pellets supported that the shot was fired at from a distance and the witness bad given only a rough estimate thereof. The witnesses did maintain that the assailant had entered the shop and then fired. If that be so, then the High Court thought that the distance between the door and the tharra given by the draftsman who prepared the site plan. As 13 ft., would tie considerably shortened. It may well be that the appellant was a few feet inside and then if allowance is made for the length of the barrel of the gun, which is 32 -- it was, quite possible that a smokeless cartridge may produce some amount of blackening if fired from a distance of 3 to 10 feet and that a card-board disc from a cartridge may even have entered the wound, because, in a powerful cartridge, the discs may be 4eoted up to a distance of 8 or 10 ft.
34. The defence suggestion that the gun had been fired by somebody else, was not accepted, because the gun was round, on the testimony of the Arms License Clerk, to be the licensed gun of an uncle of the appellant and, therefore, the High Court concluded that whatever the eye- witnesses had stated as regards the use of the gun by the appellant for the commission of the offence was substantially true.
35. The High Court also agreed with the trial Court that Muhammad Ishaq was on the whole a disinterested and independent witness who bad no particular reason to falsely implicate the appellant. The High Court feat no doubt about the place of the incident, because, that had bean sufficiently established by the recovery not only of blood-stained earth from the place but also of the blood-stained mattress. The report to the local newspaper "Qunni Dalair" could not, therefore, be taken to be correct particularly since the correspondent who had given that report to newspaper, though cited as a witness by the defence, was not examined.
36. Leave was granted in this case mainly bemuse it was felt that the medical evidence went counter to the ocular testimony.
37. Learned counsel appearing in support of this appeal has now taken us through the evidence and advanced the same arguments that were advanced in the High Court by the late Mr. Saleem who appeared for the appellant at that stave. 'We have examined the evidence of Muhammad Ishaq (P.
38. W. 7) with great care but are unable to agree with the learned counsel that it suffers from such material contradictions that it cannot to relied upon at all. It is not without significance that, in spite of the very elaborate cross-examination, there was no suggestion to this witness that be was in any way hostile to the appellant or had any particular reason to falsely rope him in. All that Ass suggested to him was that he had been introduced as a false witness in this case by Allah Ditta (P.
39. W. 3) whose particular was it, the tatter's tube-well. Even assuming that the witness was a partner of the said Allah Ditta in the tube-well that was not a sufficient reason fur hint to falsely implicate an absolutely innocent person in such a heinous crime. It was not shown that he was under the control of Allah Ditta or that he was obliged to do whatever Allah Ditta asked him to do, even tai the extort of giving false evidence charging an innocent person with murder.
40. The discrepancies on which reliance has been placed are only with regard to default and not with regard to the main incident itself. We are inclined, therefore, to agree with the Courts below that the veracity of this witness was not materially shaken and on the, whole he could safely be relied upon In so far as his evidence corroborated the evidence of the whet eye-witnesses who were related to the deceased, their testimony too could to that "tent also relied upon.
41. A great deal has been said of the alleged contradiction said to have been established on the basis of the Medical evidence. The description of the injury, as given by the doctor, has already been noted. The doctor it has to be pointed out, has now here stated that the margins of the wound were scorched and blackened. All that he said is that there was a swelling rind black colouring around the wound. He was not cross-examined on this aspect at all, nor was he asked to explain what this black colouring c0ttld have been due to was this blackening caused by the burning of gun-power to or was this blackening due to the drying up of the blood. We are unable to know. At any rate, the size of the injury is inherent evidence of the act that the shot must have been fined at from a range of more than 4 or 5 ft. The pellets had been spread over a distance of 4` x 5" and, therefore. It was not a case of a shot having been Stud frond such close range as to produce blackening or scorching. In the arise of a shot fired from a blackening range, the shot would have entered almost on masse sack not spread out over an area covered by 4' x 5'. The medical evidence, therefore, rather support the ocular testimony that the shot was fired from such a distance as to enable the pellets to spread within this area.
42. Learned counsel had also a great deal to say about the admission of the investigation Officer (P. W.
43. 13) that be had come to know during the course the investigation that the mare was held by Nazir Ali, and not by Muhammad Ali, the brother of the appellant, as suggested by the prosecution. This Nazir Ali was cited as a witness but not examined without any explanation for such non- examination.
44. In these circumstances, we are certainly entitled, as suggested by the defence, to presume that Nam Alt was a material witness and that he had been withheld, because, he would not have supported the prosecution. But even assuming this to be so, does this demolish the prosecution story altogether. We think not. There is no suggestion by anyone that Nazir Ali was inside the shop when the fatal shot was tired or that he saw who bred the fatal shot. All that be could say, if the defence suggestion be true, was that when Barkat Ali the appellant, came there, he left him outside holding the mare. He could also perhaps say whether at that time Harkat Ali was carrying any weapon or not, or that after a while tie beard a shot being fired and then Harkat Ali came back and rode away on the mare. He could also perhaps say which Barkat Ali was who ran away on the mare, but not more than that.
45. On the other hand, if we accept the ocular testimony that it was Barkat Ali, the appellant, and not Barkat Ali, the son of Khushi Ghumar, who fired the fatal shot, then that evidence is not rendered unreliably by the non---examination of Nazir Ali. The value of Nazir Ali's evidence would have been of a corroborative nature only and no more. Because, even according to the defence suggestion, he was not an eye witness of the occurrence. In the circumstances, we are unable to agree that the non-examination of Mazir Ali has cast such a doubt on the prosecution evidence that it cannot at all be relied upon. We see no meson, therefore, to disagree with the Courts below that the witnesses this case had not completely absolved the real culprit and roped in a solitary innocent person in a broad day light incident, purely out of grudge over an incident with regard to a mortgage in which the appellant was nit himself directly interested or due to the separation of the daughter of his brother from her husband the sister son of one of the witnesses. None of these reasons appear to us to he of a sufficiently strong nature of impel a person to go to the extent of falsely implicating an innocent person in a murder caw. We gyre, therefore, of the view that the appellant was rightly convicted and sentenced.
46. 'Learned counsel at this stage urged that, as nearly five years bad elapse since the appellant's conviction, the sentence of death should be reduced. Vie regret our inability to accede to this request, for, this Court does not, as a rule, interfere with a legal sentence. The sentence in the present case is in every way legal. It was a cold blooded murder and there were no extenuating circumstances. However, this doer not preclude the appellant from applying to the Government if he is so advised, for the commutation of his sentence on the ground that more than three years have now elapsed since his conviction. If this is a valid ground for commutation, we have no lout" that the application of the appellant will receive due consideration.
47. With this observation, however, we dismiss this appeal. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.