' ZAHID HUSSAIN BOKHARI, J.--- Since Murder Reference No,137 of 1992 and Criminal Appeal No,51/J of 1992 arose out of the judgment and order, dated 28-1-1992 passed by Additional Sessions Judge-II, Dera Ghazi Khan by which appellant Ghulam Haider was convicted under section 302-A, P.P.C. And was sentenced to death by way of Qisas. We propose to dispose of the Murder Reference and Criminal Appeal by this single judgment.
2. Muhammad Bilal complainant P.W.7 brother of Ghulam Mustafa deceased, made statement Exh.P.B. On 19-12-1990 at 4-30 p.m. Before Muhammad Azeem, S.-I, S.H.O., P.W.10 in Hospital Dera Ghazi Khan and stated that on 19-12-1990 at about 1-30/2 p.m. The complainant and Ghulam Mustafa deceased were returning from their lands situated at Chah Bahadur Wala in Mauza Shah Saddar Din and when they reached near Chah Miran .Wala Dakhli, appellant Ghulam Haider armed with .12 bore pistol suddenly appeared there from the front side and raised a Lalkara that he was there to make him to taste the fruit of demolishing the Banna. He also raised a Lalkara that Ghulam Mustafa deceased be prepared for that. On hearing the Lalkara Lal Khan given up P.W. And Ghulam Shabbir P.W. Came near. Before their arrival but within their view Ghulam Haider appellant fired with his .12 bore pistol which hit on the front of the chest of Ghulam Mustafa who fell down.
Complainant alongwith Ghulam Shabbir and Lal Khan P.Ws. Tried to apprehend the appellant who threatened them that if anybody came near, he would also be killed. The witnesses being empty- handed became frightened and. Did not go near him. Appellant made good his escape alongwith the pistol. Complainant and his companions took Ghulam Mustafa in an injured condition to the hospital by means of a wagon but he succumbed to the injury near the gate of the hospital, Dera Ghazi Khan.
2. The motive as stated was that about 1-1/2/2 years prior to the occurrence Ghulam Haider appellant purchased 10 Marlas of land from Allah Ditta a relative of the complainant situated contiguous to the land of the complainant party and raised a Banna on the side of the land of complainant and the deceased. The Banna was demolished by Ghulam Mustafa deceased on the morning of the day of occurrence and appellant felt aggrieved on demolition of the Banna by the deceased and on account of the same reason he committed the murder of Ghulam Mustafa deceased.
3. Muhammad Azim, S.-I., S.H.O., Police Station Kot Mubarak on receiving the information reached the hospital where he recorded statement of the complainant Exh.P.B. And sent the same to the police station for registration of formal F.I.R. Through Fazal-ur-Rehman, Constable No,447. Inayat Ullah, M.H.C. P.W.2 recorded formal F.I.R. Exh.P.B./1 on the same day at 5-45 p.m. S.H.O. Prepared the injury statement Exh.P.G. And inquest report Exh.P.H. And sent the dead body for post-mortem examination. Dr. Ghulam Haider Saqib, Medical Officer, District Headquarters Hospital, Dera Ghazi Khan P.W.6 conducted the post-mortem examination of the dead body of Ghulam Mustafa on 19- 12-1990 at 4-45 p.m. And found the following injury:-- ' A lacerated wound 1-1/2" x 1-1/2" showing the muscles and ribs of the right side of chest wall. 5th and 6th ribs were fractured. Injury was situated on right upper chest (i,e, front side) 2" inner to the right nipple at 3 O'clock position. The pleura of right side was ruptured and the right lung was visible through the injury hole. There were multiple small circular holes around the big central hole in the right lung extending towards right ventricle of the heart, after piercing and tearing it, and the percadium. Right pulmonary artery and vein were ruptured. The hole extended to the right lobe of liver up to its middle, where the part of cartridge containing small multiple metallic pellets were lying and were recovered and sealed in a jar which was handed over to the police. The injury was the wound of entry.
' This injury was dangerous to life and was ante-mortem in nature and proved fatal. This was caused by fire-arm. In the opinion of the doctor, the death occurred due to haemorrhage and shock caused by injury to the vital organ i,e, lung, heart, liver diaphragm, pulmonary artery and vein. The probable time that elapsed between injury and death was immediate and between death and post-mortem was 2 to 4 hours. Exh.P.F. Was the carbon copy of the postmortem report prepared by the doctor and P.E./1 was the diagram showing location of the injury prepared by him.
The doctor also signed the injury statement Exh.P.G. And inquest report Exh.P.H. During the cross- examination doctor stated that the shot was fired from a close range and some pellets were recovered from the dead body. There was no blackening on the shirt of the deceased.
4. Thereafter, S.H.O. Inspected the place of occurrence prepared rough sketch of the place of occurrence Exh.P.F. And took into possession bloodstained earth vide memo. Exh.P.C. And sealed the same into a parcel. He also took into possession the last-worn clothes of the deceased vide memo. Exh.P.E., produced before him by Constable Allah Bachaya P.W.9 after the post-mortem examination. He arrested the accused on 29-12-1990 and on his personal search recovered .12 bore pistol P.1 alongwith two live cartridges P.2 and 3 from inside the right Dub of his loin cloth and took the same into possession vide memo. Exh.P.D. Site plan of the place of recovery Exh.P.E./1 was also prepared. This recovery was witnessed by Khadim Hussain P.W.4 and Ghulam Abbas give up P.W.
Khaliq and Patwari Halqa P.W.1 prepared the site plan Exh.P.A., in triplicate and S.-I. Recorded his note with red ink, upon it. After the completion of investigation the challan was submitted to the Court.
5. The charge against the appellant was framed under section 302-A, P.P.C. And prosecution in order to prove its case produced as many as 10 witnesses and tendered in evidence report of Chemical Examiner Exh.P.J. And that of the Serologist Exh.P.K. Complainant Muhammad Bilal P.W.7 narrated almost the same facts which were set up in the F.I.R. Exh.P.B. He was corroborated in all material aspects by Ghulam Shabbir P.W.8 who saw the occurrence and narrated the details of the occurrence in his statement before the trial Court. He has also stated that appellant purchased the land from his brother Allah Ditta. The deceased etc. Filed a suit for possession by way of pre- emption but the suit was decided in favour of the appellant. Appellant then put a Banna on the side of the land of the deceased and deceased Ghulam Mustafa on the morning of the day of occurrence had demolished the Banna which resulted in the present unfortunate incident.
6. The appellant when examined under section 342, Cr.P.C. In reply to the question No,7, why this case against you? Stated that:-- "About four months next before the occurrence I had seen Mst. Waziran wife of Allah Dewaya and the deceased committing sexual intercourse. One Murid Hussain Dasti had also seen this incident and he then went and informed the brother of Allah Dewaya about this fact. The male family members of the family of Allah Dewaya had then given beating to Mst. Waziran on account of that fact. Mst. Waziran then told the deceased that it was me, who had told the above fact to her family members. On the day of occurrence, I had gone to Chah Darkhan Wala to cut fodder. When I was returning with bundle of fodder at my head on the road, one Muhammad son of Allah Bakhsh and the deceased Ghulam Mustafa appeared from the turn of the road, where I was going, and Mustafa deceased uttering the abuses to me, raised the Lalkara that he would not spare me on account of defaming him and Mst. Waziran, and I leaving the bundle of fodder there started running away. While jumping over a Kassi I fell into it. In the meantime, deceased Ghulam Mustafa came on my front side with Chhurra and directed further to Muhammad Khan to fire a shot at me.
He then accordingly fired the shot with pistol at me, but the same missing the aim, it hit the deceased Ghulam Mustafa, as a result of which he fell down. But on account of above stated enmity and to save the actual culprit, this false case had been got registered against me. He further stated that the witnesses were interested and closely related to the deceased, therefore, they have given false evidence."
7. The leased appellant's counsel argued that the eye-witnesses were related, inimical and interested; that they could not be believed without independent corroboration which according to him was lacking in this case; that the evidence prosloced by the prosecution was discrepant and not worth reliance. He further argue* that the appellant had exercised his right of self-defence and had not committal any offence.
8. Learned State Counsel argued that the appellant had a very serious motive to launch attack; that F.I.R. Was promptly lodged and full detail of the occurrence has been given in the F.I.R. That evidence produced by the prosecution was worth reliance and that the prosecution has succeeded in proving its case against the appellant beyond reasonable doubt.
9. We have heard the learned counsel for the parties and have gone through the record.
10. No doubt Muhammad Bilal complainant is brother of Ghulam Mustafa deceased and Ghulam Shabbir eye-witness is his maternal cousin. Mere relationship per se is no ground to discard the evidence of the witnesses. The evidence recorded by the learned trial Judge does not disclose that the complainant or Ghulam Shabbir P.W. Had any enmity of the nature which would prompt them to falsely involve the appellant in the commission of offence. There is nothing on record which would lead the Court to hold that eye-witnesses produced by the prosecution are inimical. Further a related witness cannot be A termed as an interested witness unless he had certain personal ends to achieve the conviction of the accused. No suggestion was put by the learned defence counsel to these eye-witnesses to establish that they were the interested witnesses. P.W.8 Ghulam Shabbir admitted that his uncle Ramzan was murdered but he did not know if he was murdered by the father of the appellant and Muhammad Bilal P.W.7 stated that he had heard that father of the accused-appellant Massu Khan had murdered the maternal uncle of P.W. Ghulam Shabbir and Ghulam Abbas long ago. Ghulam Shabbir P.W. Is a young man of 20 years and Muhammad Bilal who is also a young man of 26 years had not categorically admitted that any such murder was committed by the father of the appellant. The statement of Muhammad Bilal to the extent of commission of murder of maternal uncle of Ghulam Shabbir and Ghulam Abbas by rather of the appellant is hearsay, which is not admissible in evidence. Learned defence counsel has not further cross-examined the witnesses on this fact. So we conclude that the eye-witnesses though related were not inimical or interested witnesses.
11. Now we shall examine whether the eye-witnesses were present at the time and place of occurrence. Muhammad Bilal complainant stated that he and his brother Ghulam Mustafa deceased were returning to their house from their lands at about 1-30/2 p.m. And when they reached near the place of occurrence they met across the appellant. It is important to note that occurrence took place in the middle of December and it was not unusual for the villagers to come back to their houses after performing their agricultural activities. It is admitted by both the parties that the accused had purchased 10 Marlas of land adjacent to the land of the complainant party which was situated at a distance of 8/9 acres towards south-east of the place of occurrence. So the movement of deceased may well in the knowledge of the appellant. During the cross- examination it was not suggested to the complainant that he had not seen the occurrence.
Ghulam Shabbir P.W.8 is the resident of the same locality and was coming from Abadi Shah Sadar Din alongwith Lall Khan given up P.W. On a Katcha road leading to their houses. It was not suggested that such Ka.Tcha road did not exist there or that road did not lead to the houses of the P.Ws. We have perused the site plan Exh.P.A. Which clearly indicates that a Katcha path is running east-west at a distance of 54 Karams from the place of occurrence. The present occurrence took place near the Katcha road and in such like cases, the passerby would be the natural witness. We hold that Muhammad Bilal P.W.7 and Ghulam Shabbir P.W.8 were the natural witnesses who had sufficiently explained the reasons for their presence at the time Of occurrence.
11. The contention of the learned defence counsel that the statements of the witnesses are discrepant and contradictory in nature is not established from the record. He could not point out any such contradiction which would create a reasonable doubt in the mind of a man of ordinary prudence.
12. The motive as alleged by the prosecution is fully proved by the statement of Muhammad Bilal and corroborated by Ghulam Shabbir P.W.8. Muhammad Bilal complainant stated that Ghulam Haider appellant had purchased land adjacent to their land and they filed a suit for possession by preemption and their suit was dismissed and then the appellant constructed a Banna in their land and on that very morning of the day of occurrence his brother Ghulam Mustafa deceased had broken that Banna made by the appellant and being aggrieved the appellant had committed murder of his brother Ghulam Mustafa. This would show that except the dispute of land and the litigation in respect thereof, the parties had no other enmity. Ghulam Shabbir P.W.8 stated that the appellant had purchased the land from his brother Allah Ditta. The deceased filed a suit for possession through pre-emption and the suit was decided in favour of the appellant and then the appellant erected a Banna on the land of the deceased and on the morning of the day of occurrence deceased had demolished that Banna and due to that grievance the appellant had committed the murder of. Ghulam Mustafa deceased. In reply to question No,7:-- "My father had murdered Ramzan, the maternal-uncle of Ghulam .Shabbir and Ghulam Abbas P.Ws. I had purchased 10 Marlas of land from Allah. Ditta, brother of P.Ws., Ghulam Shabbir and Ghulam Abbas, the maternal-cousin of deceased. They demanded that land back from me, and Muhammad Khan, the father of deceased, then filed the suit for possession by pre-emption against me. His that suit had been dismissed. That land being in possession of Muhammad Khan, the father of the deceased on the morning of the day of occurrence, I got its possession through brotherhood and Panchayat."
' The transaction of sale of the disputed land and the filing of preemption suit and its dismissal are admitted by the appellant himself in his statement quoted above.
13. As far as the version of the defence as suggested in cross-examination and narrated in the remaining part of reply to question No,7, "Ghulam Mustafa deceased uttering the abuses to me raised a Lalkara that he would not spare me on account of defaming him and Mst. Waziran and I, leaving the bundle of fodder thereat, started running away. While jumping over a Kassi I fell into it, in the meantime, the deceased came on my front side with Chhura and directed further to Muhammad Khan to fire a shot at me. He then accordingly fired the shot with pistol at me but the same missing the aim, hit deceased Ghulam Mustafa, as a result of which he fell down. But on account of abovesaid enmity and to save the actual culprit, this false case has been got registered against me". This version of the appellant when put in juxtaposition to the story of the prosecution, does not ring true because neither any Kassi nor the Chhura was found lying near the dead body of the deceased and the appellant did not receive any injury during the occurrence. He did not get himself medically examined nor he claimed so during the trial. Strictly speaking the appellant has raised the plea of substitution. The substitution is a rare phenomenon as held in number of cases.
P.W.10 Muhammad Azeem, S.-I. Stated that in support of this version the appellant did not produce any evidence. During the trial the appellant has also not produced any evidence in support thereof.
P.W.1'0 has further stated in the cross-examination that during the investigation the motive stated by the prosecution was found to be correct. We have no doubt that the version of the C appellant is neither plausible nor borne out from the record of the case.
14. Ocular account in this case was furnished by Muhammad Bilal P.W.7 and. Ghulam Shabbir P.W.B.
All the eye-witnesses in their statements on oath corroborated the version given by them before the police. They were put to test of lengthy cross-examination but nothing could be brought on record to suggest that they were not present at the spot or had enmity of the nature which would prompt them to let the real culprit go and to falsely involve the appellant. The eye-witnesses have given a plausible explanation with regard to their presence at the spot which was challenged half- heartedly. We, therefore, hold that the eyewitnesses were present at the spot and did witness the occurrence. Examination of the statements of the eye-witnesses has revealed that they did not have any motive to falsely implicate the appellant, therefore, we hold that eye-witnesses are natural, their statements inspire confidence and can safely be relied upon.
15. Now we would examine whether the act of Ghulam Haider appellant on the established facts amount to Qatl-i-Amad liable to Qisas or not. Section 302, P.P.C. Is reproduced with all its clauses as hereunder:-- "302. Punishment of Qatal-e-Amd.--- Whoever commits Qatal-e-Amd shall, subject to the provisions of this Chapter be--
(a) punished with death as Qisas;
(b) punished with death or imprisonment for life as Tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is 'not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the injunctions of Islam the punishment of Qisas is not applicable."
16. According to Injunctions of Islam Qatl-i-Amd is liable to Qisas takes place only when a person murdered is not liable to be murdered or is Masoomud-Dam. According to the prosecution case 1- 1/2 - 2 years prior to the occurrence appellant Ghulam Haider purchased 10 Marlas of land from Allah Ditta brother of Ghulam Shabbir P.W.8, situated contiguous to the land of the deceased and raised a Banna on the side of the land of deceased. The transaction of sale was challenged through a pre-emption suit by the complainant party and the same was dismissed which certainly caused annoyance to the deceased/ complainant party and admittedly the Banna was demolished by Ghulam Mustafa deceased on the morning of the day of occurrence. The Banna was not erected by the appellant on the day of occurrence. Presumably by failing to get the possession of land purchased by the appellant through exercise of right of preemption, the deceased decided to take the law into his own hands. In our considered view, he was not authorised to demolish the Banna in question. He should have requested the revenue authorities for the demarcation of the land or he should have reported the matter to the police if any cognizable offence was committed by the appellant. It cannot be ruled out that the occurrence might have taken place at the spur of the moment at the time when the deceased demolished the said Banna. We hold that the deceased himself initiated the occurrence, took the law into his own hands by demolishing the Banna and F caused provocation to the appellant. The deceased was not Masoom-ud-Dam and the following is reproduced from the book "Islami Qawaneen Hudood, Qisas, Diyat Wa Taazirat by Dr. Tanzil-ur-Rehman:-- {{URDU TEXT}}
17. In our view the appellant exercised his right of defence of property and amplitude of right of self-defence and defence of property under Injunctions of Islam is far wider than is available under the Pakistan Penal Code. It was so held in 1992 SCM R 2047. The deceased in our view was not Masoom-ud-Dam and consequently the appellant cannot be convicted under section 302(a), P.P.C. Resultantly we set aside the conviction of the appellant under section 302(a), P.P.C. And convert the same under section 302(c), P.P.C., as according to the Injunctions of Islam the punishment of Qisas was not applicable in this case. He shall be sentenced to 25 years' R.I. With the benefit of section 382-B, Cr.P.C. The appellant shall pay Rs,50,000 to the heirs of the deceased as compensation under section 544-A, Cr.P.C. And in default thereof he shall further undergo S.I. For six months.
18. With the aforesaid modification the appeal is rejected. The death sentence is not confirmed.