RAJA MUHAMMAD KHURSHID, J.-- The appellant/convict was sentenced to death under Section 302 PPC for the murder of Malik Dalail Khan and was further burdened with the payment of Rs. 50,000/- as compensation to the legal heirs of the aforesaid deceased or in default to undergo 6 months' R.I.
Vide judgment dated 12.7.1994 passed by Mr. Azhar Hafiz Sheikh, the then learned Sessions Judge, Chakwal.
2. The appellant/convict. Feeling aggrieved of the impugned judgment, has preferred an appeal as according to him, the prosecution had failed to prove its case against him. Yar Muhammad, a son of the deceased. And one of his heirs filed Criminal Revision No. 83 of 1994 with the prayer that the amount of compensation awarded to the legal heirs of the deceased being inadequate be enhanced. The learned trial Judge also made a reference under Section 374 CrPC for the confirmation of death sentence passed upon the appellant/convict.
3. All the three matters mentioned above will be disposed of together as those have arisen from the same impugned judgment.
4. The facts are that the appellant/convict was arrested for the murder of Malik Dalail Khan at the report of Captain (R) Muhammad Iqbal Malik for an occurrence which took-place at about 4:30 p.m. On 6.6.1993 in the are of village Pichnand situated at a distance of 27 Km. Towards North of police station Lawa, District Chakwal. The FIR about the occurrence was registered on the same day at about 5:45 p.m. The complainant stated in the FIR that his maternal cousin Malik Dalail Khan deceased was Chairman of village Pichnand and was residing in a haveli adjacent to Ahmedia Bait-ul-Hamd. The complainant was on way to the aforesaid Ahmedia Bait-ul-Hamd 'from his house at about 4:30 p.m. That on reaching near the haveli of the deceased, the saw the appellant/convict standing in the door-way while armed with a pistol. The deceased was lying at a cot in the 'Deyorhi' of his haveli at that time. The appellant made four shots from his pistol one after the other within the view of complainant; out of which one bullet hit under the left eye of the deceased, whereas, the other struck on the right side of the abdomen. The deceased got up from the cot in injured condition and ran towards the inner court-yard of his house but he could hardly come out of the 'Deyorhi' and had fallen in the court-yard. He succumbed to the injuries at the spot, The occurrence was seen by Lal Khan son of Ajaib' Khan and Ghulam Raza son of Muhammad Khan residents of Pichnand in addition to the complainant. All three of them tried to apprehend the appellant but in vain as the latter managed to escape while brandishing his pistol r The bone of contention for the murder dated hack to the year 1989 when Allah Yar a real maternal uncle of the appellant was murdered. In that murder case, relatives of the deceased namely Muhammad Younas, etc. Were challenged to the Court. In retaliation, the appellant had injured one Abdul Qayyum from the opposite side with a fire shot. A case under Section 324 PPC was. Registered against the appellant on account of the aforesaid incident and he was sent to the Court to face the trial. The deceased was pursuing both the aforesaid cases against the appellant and his co- culprits. About to months prior to the unfortunate occurrence, the appellant returned to home on bail. On the fateful day, the deceased with Imtiaz Ali son of Lal Khan set out for Talagang in the morning time. The appellant confronted them in the street and challenged the deceased that he should give up pursuing the cases against him otherwise, it will not be good for him. In pursuance of that threat the appellant had murdered the deceased.
5. The prosecution examined to out of three eye-witnesses namely Muhammad Iqbal complainant (PW-9) and Lal Khan son of Ajaib Khan (PW.10) respectively. Both of them corroborated each other while rendering the ocular account of occurrence in which the deceased was done to death. The recovery witness namely Ameer Khan (PW.7) was examined to prove the recovery of weapon of offence i.e. Pistol (P.7) vide recovery memo. (Ex.PJ), The crime empties (P.6/1 to 4) were recovered vide recovery memo (Ex.PH) for which Lal Khan son of Painda Khan (PW.6) was examined at the trial. Imtiaz Ali Khan (PW.8) was examined to show that he was with the deceased at 7:00 a.m.
When the appellant had extended threat to the former for pursuing the cases against him. The medical evidence was brought on record through Dr. Muhammad Aftab who was examined as PW.
1. He had performed the autopsy on the dead-body of the deceased and had also prepared the post-mortem report (Ex.PA), whereas, Ex.PA/1 and Ex.P A/2 were drawn up as pictorial, diagrams of the injuries. He had also signed the injury statement (Ex.PB) and the inquest report (Ex.PC) when they were produced before him by the police alongwith the dead-body at the time of autopsy. The motive of, the occurrence was substantiated through the statement of the complainant (PW.9) and Imtiaz Ali (PW.8). The circumstantial evidence consisting of the recovery of blood-stained earth and crime empties from the spot was relied upon to pin point the place of murder. The crime empties (P.6/1-4) and the weapon of offence i.e. Pistol Were sent through sperate parcels to the Ballistic Expert for examination. The analysis conducted by the Ballistic Expert led to the conclusion that the crime weapon recovered from the accused was wedded to the crime empties picked up from the place of murder.
6. In the light of the above evidence, the learned trial Judge recorded the finding of conviction as aforesaid.
7. Learned counsel for the appellant has contended during the arguments that the case against the appellant was quite doubtful as it was tried to be proved through the witnesses who were related to the deceased and were also interested being inimical to the accused/appellant; that the medical evidence was in conflict with the ocular account of occurrence as according to the PWs four shots were made at the deceased, whereas, the post-mortem report shows four fire-arm injuries, out of which three are entry wounds and one is exit wound, hence one shot remained un- accounted, making the case highly doubtful; that the weapon of offence was recovered from the house of the appellant in presence of interested witnesses; that the recovery of weapon of offence itself was doubtful because it will be somewhat unnatural that an accused after committing a capital offence would keep the weapon of offence in his on house so as to be linked with the occurrence, the natural conduct would be converse as in such a situation, the accused would try to destroy the weapon of offence or to dispose it of in such a manner that it should not be available to any one; that the FIR though tried to be drawn up promptly but infact the time was gained after stopping the case diary to give an impression that the case was registered without any delay; that infact, there was no motive with the appellant convict to murder the deceased as the latter was admittedly never involved in any case against him nor he was an eye-witness in any q the cases relied upon by the prosecution; lastly, it was contended that the eye-witnesses though related, were also -not present at the spot to see the occurrence as their statements were contradictory regarding the number of shots and the injuries found on the body of the deceased as pointed out above.
8. In the light of the aforesaid submission, it was contended that the case against the appellant was highly doubtful and the conviction against him was not liable to stand being an innocent person as claimed by him in his statement under Section 342 CrPC.
9. Learned counsel for the State resisted the appeal and supported the impugned judgment on the ground that though the eye-witnesses were related to the deceased but at the same time, they were natural as they were residing in the same village and it was not unnatural that they would be present when the occurrence had taken place; that they were corroborated by the medical evidence with shows that the deceased had three fire-arm injuries and the fourth was an exit wound; that the occurrence had taken place in a flash of moment and it would not be a material difference if three shots had hit the deceased, whereas, the eye-witnesses had mentioned that four shots were fired; that it would not amount to any contradiction because usually an exit wound gives an impression to a naked eye that it was the result of fire shot. It was only after the post- mortem examination that a perception could be made whether it was an entry wound or an exit wound of a fire-arm shot. Hence, there could be no contradiction on that score between the eye- witnesses and the medical evidence, rather they supported each others. Likewise, the recovery of the pistol, used during the occurrence, at the instance of the appellant/convict would further support the eye-witnesses particularly when it was found wedded to the crime empties, picked up from the spot; the mere fact that the pistol was hidden by the accused in his house would not give any premium to him because it is always a whim of an offender to deal with the weapon of offence in a manner, he thinks fit. In some cases, an offender may destroy and in other cases, he may hide it in rather safe place like home lest it may come into the hands of some stranger while throwing it away after the commission of offence. It was, therefore, alleged that there was nothing unusual if the recovery of the pistol was effected from the house of the appellant/convict. The motive was allegedly proved through reliable evidence as none of the witnesses was inimical to the appellant nor they were interested in sending him to gallows if the was innocent. The natural instinct of the witnesses who were related to the deceased would compel them to bring a real culprit to the book who had killed their blood relation. Hence the mere relationship would hot make any difference until and unless some enmity is brought on record to show that the witnesses had rendered themselves unreliable and inimical qua the accused. In the instant case, no such material was brought on record. Hence, mere relationship of the witnesses would not render their testimony worthless.
10. We have considered the submissions made at the bar. First of all, it is to be seen whether or not the prosecution has been successful to prove its case beyond any reasonable doubt against the accused. The cardinal principle of criminal law lays heavy duty upon the prosecutor to bring home guilt of an offender against him beyond any reasonable doubt. In the instant case, the occurrence had taken place at 4:30 p.m.. Whereas, the FIR was lodged at 5:45 p.m. On the same day although the police station was at a distance of 27 K. Ms. From the place of occurrence. The prompt lodging of the FIR would rule out any possibility of padding, deliberation or concoction of the facts relating to the occurrence. Although the eye-witnesses and Imtiaz Ali, another Witness touching the point of motive and the threats given to the deceased by the appellant on the unfortunate day at 7:00 a.m.
Are related to the deceased but they appear to be truthful witnesses because they would nurse a, keen instinct that they should bring the real culprit to face the trial. A such, there is not the remotist possibility of for substitution of the accused particularly when only one assailant was nominated in the FIR by the eyewitnesses. Even otherwise, there is a back-ground in the light of the motive and the threats delivered by the appellant/convict to the deceased early in the morning of the day of murder. The deceased was a Chairman of the local Council and when he was asked by the appellant/convict to desist from pursuing the cases against him. The deceased replied that he will speak the truth because it was his duty to do so being a respectable man and a Chairman of the village council. Thus the taste of the reply given by the deceased to the appellant was not playable for the latter which instigated him to kill the deceased. The motive thus stands proved as alleged by the prosecution.
11. The recovery of the pistol, hidden in the house of the appellant, at his instance further linked him with the occurrence particularly when through a scientific analysis it was found by the Ballistic Expert that the same was wedded with the crime empties picked up from the place of murder. The crime empties were sent earlier to the Laboratory and were deposited there on 14.6.1993 through Muhammad Anwar (PW.5), whereas, the pistol was deposited on 26.6.1993 through Abdul Qaddus, Constable (PW.4) respectively. Since both the items were sent in sperate parcels through sperate persons to the Laboratory and recovered on different dates, therefore, it had become impracticable to fabricate them against the accused as alleged by the learned counsel for the appellant during the arguments.
12. It is true that the eye-witnesses and the witnesses of occurrence regarding threats were related to each other and to the deceased but they were amply supported by the recovery of weapon of offence which as said above had matched with the crime empties in view of report (Ex.PM) of the Ballistic Expert. In such a situation, the corroboration rendered by this piece of evidence would make the testimony of the eye-witnesses quite plausible to sustain the conviction of the appellant safely. Likewise, the objection raised from the defence side has no substance that since there were three entry wounds and one exit wound from firearm, therefore, the presence of the eye-witnesses was rendered doubtful at the spot. In this respect, it was contended that if they had been present to see the occurrence then they should have stated that three fires were made on the deceased that one fire was missed in order to corroborate the medical evidence. Understandibly an attempt is made to make-up the discrepancy about the fourth shot by introducing the supplementary statement after the registration of the case. Even if this supplementary statement is ignored, it will have to be kept in mind that the human eye has a limitation to watch such type of occurrence which takes place in flash of moments without giving much time to a naked eye to preserve a photographic or cameralike recording with computerised exactitude about the shots fired and the injuries produced by such shots at the victim. One has to visualise that such occurrence which happens so quickly in an awe-inspiring atmosphere, even the witnesses have to watch such tragedies with conscious feeling about their on safety and security. Even otherwise every one has a different power of observation under such stressing situation and if an exit wound has been considered to be an entry wound under such a tragic situation, it would not produce any substantial lacuna so as to mar the whole evidence which otherwise stands test of truthfulness by the supporting evidence, collected against the offender. The instant case is no exception to be treated differently.
13. In the light of the above discussion, we have come to an irresistable conclusion that the prosecution has been able te, prove its case beyond any reasonable doubt against the appellant/convict.
14. Before parting with the judgment, we would like to say that the appellant/convict was examined under Section 342 CrPC on the conclusion of the trial. He advanced a Plea of bald denial regarding the occurrence and took up topsy-turvy plea while replying question No. 12 that he had illicit affairs with Riaz Begum D/O Noor Khan, a brother of Lal Khan PW, being a niece of Ghulam Raza, given up PW and for that reason, both of them had allegedly involved him in a taise case with the connivance of the complainant. However, there is nothing on recoil to support this plea which seems to be a cooked up story without having its bottom.
15. In view of the above facts, we find no merit in Crl. Appeal No. 90/94 which is dismissed and the death sentence awarded to the appellant by the learned trial Court under Section 302 PPC is maintained and CONFIRMED.
16. Murder Reference No. 208/94 made by the learned trial Judge under Section 374 CrPC is answered in affirmative.
17. The compensation of Rs. 50,000/- awarded to the legal heirs of the deceased appears to be resonable and adequate and calls for no interference. The same is, therefore, maintained and the Crl. Revision No. 83/94 filed by Yar Muhammad, a son of the deceased for enhancement of compensation is accordingly dismissed being without merit.