RAJA MUHAMMAD KHURSHID, J.- This appeal is directed against the judgment dated 2-6-1991 passed by Mr. Abdul Razzaq Bhatti, the then learned Addl. Sessions Judge, Faisalabad, whereby, he convicted the appellant under section 302 PPC for the murder of Ghulam Ali deceased and sentenced him to death, subject to its confirmation by this Court. The appellant was also sentenced to a fine of Rs. 10,000/- or in default to undergo further R.I. For one year. The half of the fine, if realised, was directed to be paid to the legal heirs of the deceased as compensation under section 544-A Cr.P.C. A reference was also made by the learned trial Court under section 374 Cr.P.C, for the confirmation of the death sentence passed upon the accused.
2. The appeal as well as the connected Murder Reference No. 432 of 1991 shall be disposed of together through this judgment.
3. The brief facts are that the appellant was arraigned alongwith one Riaz Hussain for committing the murder of Ghulam Ali at 6:45 a.m. On 10-7-1989 in the area of Chak No. 34 J.B. Within the territorial jurisdiction of P.S. Thikriwala District Faisalabad. The FIR No. 281/89 was registered initially under section 307/34 PPC which was later on converted to an offence under sections 302/34 PPC.
The FIR was lodged by Rab Nawaz, a brother of the deceased in which it was contended that the deceased was done to death by Ghulam Abbas alias Mazhar Abbas i.e. The appellant at the behest and Lalkara of Riaz Hussain since dead. According to the FIR, Ghulam Abbas alias Mazhar Abbas appellant was armed with a ..12 bore gun, whereas, Riaz Hussain was armed with 7 MM rifle.
Both of them in furtherance of their common intention committed the murder of the deceased after reaching the place of occurrence. Riaz Hussain had raised lalkara that the deceased should be taught a lesson for abetting the fire at him through one Muhammad Rafique son of Inayat about 1-1/2 year back. In pursuance of the lalkara, the appellant opened fire at the deceased from his gun which hit at the lower pan of his abdomen. The occurrence was seen by Sabir Hussain, Muhammad Hayat and Muhammad Akbar but no one went near the deceased out of fear. Later on, the deceased was taken to the hospital where he died on 20-7-89 on account of septicemia and cardio vascular failure.
4. The prosecution relied upon the ocular account of the occurrence rendered by Rab Nawaz complainant (PW-7) and Sabir Hussain (PW.8). The circumstantial evidence such as motive and recovery of gun P.2 vide memo. Exh.PG from the appellant was also relied upon to provide corroboration to the eye-witnesses. The medical evidence consisting of Dr. Abdul Sattar (PW.5), Dr. Rasheed Maqbool (PW.12) and Dr. Muhammad Arshad (CW.I) was relied upon to show that the injuries caused to the deceased due to the fire of the appellant were sufficient to cause death in the ordinary course of nature. It was also found by the doctors that the injuries were caused by the fire-arm.
5. The appellant/accused was examined under section 342 Cr.P.C. He contended that he was falsely implicated in the case on account of interested and inimical evidence.
6. Learned counsel for the appellant submitted that the motive mentioned in the FIR was not proved as both the eye-witnesses contradicted each other on the question of motive. In this regard, it was alleged that according to PW.7, about 1^2 year back Muhammad Rafique had fired at Muhammad Riaz accused since dead but the later entertained his suspicion that firing upon him was' made at the' investigation of the deceased Ghulam Ali. However, PW. 8 deposed that Rafique had fired at the aforesaid accused about one year prior to the present occurrence on account of some suspicion of illicit relations with his sister. It was, therefore, contended that both the witnesses gave different stories regarding the motive and as such, they could not be believed qua the motive alleged in the FIR. Secondly, it was contended that the recovery of gun P.2 was extremely doubtful for the reason that it was evidenced by interested and inimical witnesses and secondly because no empty was recovered to connect it with the crime weapon. The veracity of the FIR was also challenged on the ground that it was registered after preliminary investigation because the occurrence allegedly took place at 6:45 a.m. Whereas, the FIR was registered on the same day at 8:05 p.m. Thereby giving a sufficient time to the complainant side and the police to hatch up a concocted version regarding the occurrence to implicate the appellant with whom there was a trail of enmity from deceases's side. The ocular account of occurrence was alleged to be interested and inimical because both the witnesses belonged to the opposite camp to the brotherhood of the appellant. It was alleged that these witnesses had been appearing against Baloch Group to which the appellant belongs in some murder and criminal cases. As such, their evidence was required to be corroborated through a source of unimpeachable and independent character which, in the present case, was none. It was. Therefore, contended that the ocular account was of no avail in this case. The medical evidence was allegedly of no help to the prosecution because the appellant/accused had allegedly made a single shot and that to on the non-vital part of the body of the deceased. It was also contended that assuming for the sake of arguments that the fire was attributed to the appellant/accused, it would not indicate that in fact he had intention to kill the deceased. In this connection, it was pointed out that death of the decease had occurred after about ten days of the occurrence and that to because of septicemia and cardiac arrest. These elements in no way could be attributed to the injuries allegedly ascribed to the appellant/accused and it was probably 'due to the negligence of the doctors that the deceased had expired. Learned counsel for the appellant contended that had the deceased been given proper treatment at appropriate time by the doctors, dreadful consequences could have been avoided. It was.
Therefore, contended that coming to the worst situation, the Appellant/accused could only be connected with an offence under Section 304 PPC. In the end, it was submitted that in any case, sentence of death was very harsh under the present circumstances and that the appellant/accused could only be held, if at all, for the commission of an offence under section 304 PPC.
7. The learned prosecutor submitted that the prosecution had proved its case beyond any reasonable doubt through the evidence of unquestionable eyewitnesses out of whom one is the real brother of the deceased and he would not like that the real offender should be allowed to go scot-free and an innocent person should be substituted in his place. The allegation that the eye- witnesses were interested or inimical was alleged to be devoid of force because there was nothing to show that in fact there was such type of enmity between the to sides so as the witnesses will be blinded to go all out to get the appellant convicted bn a charge of capital punishment. The mere fact that they were cited as witnesses in some of the criminal cases against the appellant's side would not make them inimical ipso facto until and unless it was shown that it had turned them so badly against the appellant that they would got to the extent of telling lies. The place of occurrence was alleged to be a village which was inhabited by heterogeneous tribes such as Rajputs, Pathans, Balochis, Burhans, Sials and Tiwanas, etc. As such, the witnesses from above tribes will not only be natural but would carry convicting credentials about their truthfulness being from the same village.
Any stranger of the village would be considered as a chance witness. Hence it was unred that mere citing of eyewitnesses of this case in some other cases against the appellant/accused would not make them necessarily interested or inimical witnesses. Further contended that such eye- witnesses would not even call for corroboration from any other quarter, but if any such corroboration- was required, it was available in the form of motive, whereby, it was proved that Riaz (dead accused) entertained suspicion against the deceased that the latter had instigated Rafique to fire at him. .The mere fact that one of the witnesses had sated that the firing was made by Rafique because he suspected Riaz for keeping relations with his' sister would make no difference when the incident of firing is unanimously supported by both the witnesses; that it being a day time occurrence there could be no doubt regarding the identification of the assailants; that the witnesses clearly stated that the occurrence was committed by the appellant and as such there could be no doubt about his role in the occurrence; that the recovery of gun P.2 further linked the appellant/accused with the occurrence; that the FIR was not only true but also fit in the circumstances, thereby eliminating even. The remotest chance of concoction. Finally, it was urged that the appellant/accused was rightly convicted for the murder of the deceased because the injuries caused by him were sufficient to cause his death in the ordinary course of nature. As such, the development of septicemia or cardiac arrest would in no way mitigate the offence committed by the appellant/accused.
8. We have considered the foregoing arguments. First of all, it is to be seen whether the prosecution has been successful to prove its case as required by law. In this connection, evidence of the eye- witnesses namely Rab Nawaz (PW.7) and Sabir Hussain (PW.8) would required intrinsic evaluation.
One of them namely Rab Nawaz is the real brother of the deceased. It is true that he is a blood relation of the deceased but that would not adversely tell upon his evidentiary value if it is shown that he was present at the time of occurrence and that he had no ulterior end to involve the appellant/accused falsely in this case. It will be his natural instinct to see that the real killer of his brother is brought to the book. That instinct would prevent him to substitute an innocent person for the actual killer. He has clearly stated that the dead accused Riaz alongwith the appellant came to the spot while they were armed with rifle and .12 bore gun respectively. Riaz accused raised Lalkara whereupon, the appellant opened fire thereby causing fire-arm injuries to the deceased. This story is supported by the other witness namely Sabir Hussain (PW.8). The aforesaid witness has also no axe to grind for involving the appellant/accused falsely in this case. As such, both the eye- witnesses are consistent to say that the appellant/accused had fired upon the deceased. Their evidence is corroborated by medical evidence brought on record. Dr. Abdul Sattar (PW.5) had conducted the post-mortem examination and had given the opinion that the death was caused due to haemorrhage and shock produced by injuries No. I and 2 which were anti-mortem in nature, caused by fire-arm and were sufficient to cause death in the ordinary course of nature. These injuries were stated to be the result of a single shot from the fire-arm. This sufficiently corroborates the version given by the eye-witnesses that the deceased was done to' death by the appellant/accused by firing a single shot from .12 bore gun. Similarly, the statement of Dr. Rasheed Maqbool (PW. 12) would show that upon the medico legal examination of the deceased, he has found to fire-arm injuries on the person of the deceased which were fresh in nature and could have been caused within one minute to three hours. The medico-legal report was Exh. PJ and the diagram of the injuries was Exh. PJ/1. This also corroborates the eye-witnesses that the deceased was done to death on account of fire arm injuries and that to, through a single 'shot because the nature .Of the injury No. 1 showed that it was the entry wound out of which intestines were protruding. The second injury having everted margins was an exit wound and as such, both of them could be the result of one shot as stated by the doctor who had conducted the post-mortem examination. The evidence given by Dr. Muhammad Arshad (CW.I) shows that the deceased was admitted in the hospital on 10-7-1989 and remained there till 20-7-1989. He had conducted the operation on the deceased on 10-7-1989 as-an emergency case after he was brought there in injured condition. According to him, the death of the deceased had occurred due to cardio respiratory failure and on account of septicemia. It, therefore, follows that the. Medical evidence was consistent with the statement of the eye-witnesses that the deceased was done to death through a single shot by fire-arm injuries.
9. Likewise, the motive given in the FIR shows that Riaz dead. Accused had suspected that he was fired at about one or 1-1/2 years ago by Muhammad Rafique at the instance of the deceased. The mere fact that PW. 8 had stated that the firing was made tis a consequence of suspicion that Riaz dead accused had allegedly illicit relations with the sister of Rafique would be of no consequence because both the witnesses were consistent to say that Riaz dead accused suspected Ghulam Ali to have instigated Rafique to make the firing. It may be remarked that the FIR though a foundation of the case, is not expected to be an encyclopedia so as to provide the minor details about every thing connected with the occurrence. As such, if it was not mentioned in the FIR that Rafique fired at Riaz because of some illicit intimacy with his sister by Riaz accused, it will not effect the credentials of the evidence of the aforesaid witnesses or the evidence of Rab Nawaz (PW) as the latter was likely to know better as to what had happened qua his deceased brother regarding that incident. It cannot be, therefore, said that the motive remained unproved by the prosecution.
10. The recovery of gun P.2 from the accused cannot be taken as a corroborative piece of evidence because no empty was recovered from the spot nor the gun of any empty was sent to the Ballistic Expert to determine as to whether it was a crime weapon or not. The recovery of the gun P.2 from the appellant/accused would be of no avail in this case.
11. It is clear from the above that the motive existed for the occurrence and even in the past there were frequent quarrels which resulted into compromise between the deceased and the aforesaid Riaz dead accused. The reading of the statements of the eye-witnesses will show that though they have been cited as prosecution witnesses against the accused in some of the cases alongwith their relatives but most of those cases were compromised later on. Now the question would arise whether evidence of both the eye-witnesses should be discarded only for the reason that they have been cited in some of the cases as prosecution witnesses against the accused side or vice- versa. As already observed above, the parties come from the same village which is inhabited by different tribes. There is some son of rivalry between Balochi residents of the village with the members of other tribes residing therein. This type of rivalry is not very unusual in the. Rural side of our country. As such, it will not be considered to be a sound cause for discarding the evidence of both the PWs merely on the ground that they belonged to different tribes than the tribe of the appellant/accused who had some son of rivalry between them. The rivalry and enmity are to different things. The mere rivalry would not be sufficient to discard the evidence of the eye- witnesses until and unless it is shown that their statments were motivated by illwill or enmity towards the appellant/accused. Except, that they were cited as witnesses in some of the cases against the accused there is no other factor which would make us to believe that the witnesses were actually inimical to the appellant/accused. In such a situation and particularly when their evidence has been corroborated by the medical evidence, it would be well within the safer administration of criminal justice to rely upon their evidence particularly when one of them namely Rab Nawaz is the brother of the deceased and he would not like that a stranger should be sent to gallows, whereas, the actual offender should be allowed to escape scot-free. As observed above, it will be natural on his part to. Name the real culprit in the given situation. Likewise, evidence of other eye-witness namely Sabir Hussain also stands on sound footing so as to be believed regarding the offence committed by the appellant/accused.
12. Learned counsel for the appellant had submitted that the death of the deceased occurred after ten days of the occurrence due to cardio respiratory failure and on account of septicemia. It was, therefore, urged that the appellant never intended to cause death of the deceased and the injuries caused to him allegedly by the appellant were the remote cause of his death. In that situation, it was alleged that the provisions of section 304 PPC would apply to the facts of this case, even if it is proved.
13. We have considered the above aspect of the case. The location of the injuries on the deceased will show that those were fired at the vital part of his body such as lower portion of abdomen. The central part of the abdomen was also perforated as would be clear from injury No. 1 which showed that the intestines were producing out of the wound. The appellant had used the fire-arm to cause those injuries and, therefore, his intention was very clear to kill the deceased. Secondly, the death had occurred though after ten days but it was the direct result of those injuries. It was deposed by the Medical Officer while appearing as PW.5 that the cause of death was haemorrhage and shock due to" injuries No. 1 and 2 which were sufficient to cause death in the ordinary course of nature. It, therefore, follows that the magnitude and the damage done by those injuries was sufficient to take away the life of the deceased even when he was fired at. The mere fact that he had developed septicemia during the treatment would in no way lead to an inference that the injuries suffered by the deceased were of trivial nature and that the death had occurred on account of negligence of the medical staff while he was being treated in the hospital. The wounds were infected while the deceased was under treatment and this was not something very unusual because the present hygienic conditions are not enviable in our hospitals. Any incidental or casual factor may make the condition of a patient worse particularly when the wounds suffered by him were of fatal nature. In these circumstances, it cannot be successfully urged that the death of the deceased occurred on account of some remote cause and not due to the fire-arm injuries inflicted upon him by the appellant. We, therefore, come to an inescapable conclusion that since injuries No. 1 and 2 were sufficient to cause death in the ordinary course of nature, therefore, the appellant cannot escape his liability under the law to face the consequences in taking the life of deceased.. It was a day light occurrence and committed in heartless manner with the clear cut intention to kill the deceased.
The mere fact that a single shot was fired would not call for any leniency to depart from the usual sentence of death under section 302 PPC. The accused had achieved the object of killing the deceased by firing at him at the vital part of his body with a fire-arm and as such, even single shot had done the damage which he want only intended to cause to the deceased in taking his life.
14. We, therefore, come to an irresistible conclusion that the appellant was rightly convicted under section 302 PPC for committing the murder of the deceased. There is no extenuating circumstance for lesser punishment. Hence the formal sentence of death was rightly awarded to him by the learned trial Court.
15. We, therefore,, dismiss this appeal and uphold the conviction and sentence awarded to the appellant by the learned trial Court.
16. The death sentence of the appellant is confirmed.
17. The Murder Reference No. 432 of 1991 is disposed of accordingly.