' SALEEM AKHTAR, J.---The appellant with the leave of the Court challenges the judgment of the learned Judges of the High Court, whereby death sentence under section 302, P.P.C. Was confirmed.
2. Briefly the facts are that on 29-9-1988 at 11 a.m. Deceased Muhammad Anwar Khan was proceeding to attend "Dars" of Holy Qur'an in Chak No, 519-GB and he was being followed by Sarwar Khan complainant, Mushtaq Ahmad and Asghar Khan. The deceased was ahead of them. When he reached near the house of Nazir son of Karam Din appellant Bashir Khan armed with revolver alongwith other co-accused Altaf alias Papoo emerged from a narrow lane raising Lalkara that deceased would be taught a lesson for helping Bootey Khan. It was alleged that Altaf held the deceased in Japha and made him flat on the ground while Bashir Khan fired two successive shots with his revolver at Muhammad Anwar hitting him on the right side of the head and near the left eye. The complainant alongwith Mushtaq and others tried to rescue Muhammad Anwar but the appellant raising Lalkara threatened them with dire consequences and thereafter the assailants escaped. Muhammad Anwar died of injuries at the spot. It was further alleged that murder was committed at the instance of Abdul Majeed and Asghar Khan son of Fateh Muhammad, near relations of Siddique Khan who are complainant and witness in case under sections 307, 325, 148, 149, P.P.C. As regards motive, it was alleged that a month before the occurrence Siddique son of Sultan a resident of the village and others were assaulted by Bootey Khan and others whereupon a case under section 307/325 read with section 148/149, P.P.C. Was registered against Bootey Khan and others and they were challaned in the aforesaid case. According to the complainant, deceased Anwar Khan had supported Bootey Khan which was resented by Bashir Khan appellant and Altaf.
3. The learned trial Court sentenced Bashir Ahmad to death while Altaf was acquitted by giving him benefit of doubt. Abdul Majeed and Asghar were also acquitted. By the impugned judgment the death sentence passed against the appellant has been confirmed. Leave was granted to consider the contention whether the learned Judges were justified in observing that Sarwar A Khan P.W. 6 was not cross-examined and his statement was to be accepted. A further contention that according to the prosecution the occurrence took place at 11 a.m. While the medical evidence shows that dead body was received at the mortuary at Toba Tek Singh situated at a distance of 12 miles from the place of occurrence at 11 a.m., therefore, the claim of the eye-witnesses having seen the incident at 11 a.m. Does not seem to be correct. The complainant had cited three eye-witnesses namely Sarwar Khan P.W. 9, Asghar Khan P.W. 10 and Mushtaq Ahmed P.W.
6. P.W. 9 is the real brother of the deceased while P.W. 10 is the first cousin. P.W. 6 did not support the prosecution and was declared hostile. It is the veracity of P.Ws. 6, 9 and 10 which has been attacked by the learned counsel for the appellant. Sarwar Khan P.W. 9 is the real brother but there does not seem to have been any direct or serious enmity with the appellant. The learned counsel contended that Sarwar Khan was defending a civil suit filed by Zafar against him for malicious prosecution which was fixed for hearing on 29-9-1988 at Toba Tek Singh and, therefore, his presence at 11 a.m.
At the time of incident was not possible. The appellant has filed copy of the plaint but the main document namely; order sheet of 29-9-1988 has not been produced which could have proved whether the appellant and Sarwar had attended the case on the date of hearing. Even in cross- examination such suggestion was not given. Therefore, merely because the civil suit was fixed on the same day at Toba Tek Singh which was about 12 miles away from the place of incident it does not mean that the appellant necessarily would not be in a position to be at the place of incident.
He would not have gone to the Court or he may have been free much earlier and would have come back to Toba Tek Singh. It was further contended that Sarwar Khan is a resident of Lahore and his presence at the place of incident is quite unnatural. In support of this contention the learned counsel has referred to a sale-deed by which Sarwar Khan's father had sold his land in the village.
This fact by itself cannot lead to the conclusion that even after his father had sold the entire agricultural land he would have left the village. In his cross-examination he has stated that he owns no land in Chak No, 519 but had obtained 4 acres of land on tender and the same was under his cultivation. Although he had given his address of Lahore at the time of examination nothing has been brought out on record to show that on the date of incident he was not residing in that village.
From the fact that the entire land was sold by his father, no inference can be drawn as suggested by the learned counsel for the appellant. No doubt an observation has been made by the learned Judges that Sarwar was not cross-examined and his statement had remained unchallenged, the same does not seem to be factually correct. For this reason we have minutely examined the entire evidence, particularly the statement of Sarwar and P.Ws. 8 and 10. The defence counsel has cross- examined but it is not the fact that a witness was cross-examined but the effect of such cross- examination which has to be considered. It is to be seen how effective the cross-examination has been and whether it has discredited and unsettled the witness or such incriminating material in cross-examination has been brought on record which discredits the testimony of the witness.
Judging from this angle we find that the testimony of Sarwar has been consistent and there has not been any material contradiction which may discredit his testimony. This is sufficient to believe his e words.
4. The learned counsel contended that there is a material contradiction which discredited the testimony of eye-witnesses who possibly could not be said to have been present and seen the incident. He has referred to the F.I.R. In which the incident was alleged to have taken place at 11 a.m.
He has further referred to the statement of Dr. Nawazish Ahmad P.W.1 in which he had stated that the dead body of Muhammad Anwar Khan deceased was brought at the mortuary on 29-9-1988 at 11 a.m. By the police. The learned counsel contended that if the incident had happened at 11 a.m.
The dead body could not be delivered at the same time in the hospital and, therefore, the incident must have occurred much earlier which was not witnessed by the P.Ws. In order to ascertain whether this statement is correct we have examined the medical evidence and found that the time of incident has been described as 11 a.m. The post-mortem was conducted by P.W. 1 on 30th September, 1988 at about 8-30 a.m. If the dead body would have been received at 11 a.m. There was no need to postpone the post-mortem for the next day. Furthermore, P.W. 4 Akram the constable deposed that at about 3 or 4 p.m. He took the dead body from the place of incident to mortuary. From this fact it is clear that the statement of P.W. 1 regarding the time of receipt of dead body in the mortuary does not seem to be correct. There is nothing on record to show that the dead body was received at 11 a.m. On 29-9-1988. If P.W. 1 has been deposing by memory certainly he has defaulted or was trying to oblige the defence. There being no contradiction as alleged the presence of the eye-witnesses cannot be disputed on this account.
5. The learned counsel then contended that on post-mortem examination semi digested food was found which suggests that at least 2 or 3 hours before the incident the deceased had taken his meals. The learned counsel contended that in villages usually meal is taken by about sun rise time which may be 6 or 6-30 a.m. And therefore, the question of the deceased having been murdered at 11 a.m. Is not supported by the medical evidence. There is nothing on record to suggest that the deceased or his brothers had taken or used to take meals at sun rise. The contention raised is conjectural and inferential and has no merit.
6. The learned counsel then contended that Sarwar and Asghar were disbelieved against three accused and therefore there should be a strong corroboration for conviction of the appellant. So far Altaf alias Papoo is concerned the Court has given him benefit of doubt in the circumstances of the case holding that it was possible that the appellant could have shot the deceased without the help of Altaf. So far other co-accused are concerned the only allegation was that it was at their instance that murder has been committed. They were not alleged to be present at the site and therefore on such allegation conviction could not be made. The appellant as stated by the P.Ws.
Had nursed grudge against the deceased as he seems to be a supporter of Bootey Khan with whom he was engaged in criminal litigation. The eyewitnesses though related are not inimical to the appellant. Mere relationship with the deceased would not discredit particularly as they have made consistent statement and have not been shaken in cross-examination. In these circumstances we dismiss the appeal.