' This jail appeal is directed against the judgment, dated 1-4-1991 passed by Mr. Azhar Hafeez Sheikh, Sessions Judge, Mianwali whereby Ghulam Qadir appellant was convicted under section 302, P.P.C. For the murder of Abdul Sattar and sentenced to undergo imprisonment for life with a fine of Rs,10,000 or in default of payment to undergo further R.I. For four years. The fine, if recovered, half of it was ordered to be paid to the heirs of the deceased as compensation under section 544- A, Cr.P.C. Benefit under section 382-B, Cr.P.C. Was extended.
2. Brief facts of the prosecution case are that Ghulam Munir complainant's sister Mst. Bashiran was married to his cousin Ghulam Qadir appellant. The relations between the spouses remained strained and often there were disputes between them. A day prior to the occurrence that is on 30- 10-1989 the appellant had a dispute with the sister of the complainant and gave her beating. To advise and admonish the appellant, Abdul Sattar deceased/brother of the complainant went to his house. At that time the complainant and his brothers Madat Khan and Abdul Ghaffar Khan were working in the nearby field. They heard the noise of some dispute between the appellant and Abdul Sattar deceased. They rushed towards the house of the appellant to intervene. When they entered the house, the appellant took out a .12 bore pistol from the fold of his loin cloth and fired a shot hitting Abdul Sattar on the right side of his chest who succumbed to the injuries soon thereafter.
3. The occurrence took place on 30-10-1989 at 7-00 a.m. And the matter was reported at Police Station Kamar Mashani, District Mianwali on the same day at 7-40 a.m. By Ghulam Munir complainant (P.W.6) on the basis of which F.I.R.- (Exh.P.D.) was recorded by Ghulam Muhammad, Inspector/S.H.O. (P.W.8).
4. After registration of the case, Ghulam Muhammad, Inspector/S.H.O. (P.W.8) proceeded to the place of occurrence. He found the dead body of Abdul Sattar deceased lying the courtyard of Ghulam Qadir appellant. He prepared the injury statement Exh.P.G. And inquest report Ddi.P.H. The dead body was handed over to Budha Khan and Muhabbat Khan constables for getting its autopsy. Blood-stained earth was lifted from the place of occurrence and secured vide memo.
Exh.P.E. Attested by Madat Khan and Abdul Ghaffar P.Ws. He prepared the rough 'site plan and subsequently got prepared site plans Exhs.P.B. And P.B./1 from Muhammad Hassan Patwari. He gave marginal notes in red ink on the same. The last-worn clothes of the deceased were taken into possession after post-mortem examination. He effected arrest of the appellant on 6-11-1989 who during interrogation led to the recovery of .12 bore pistol (P.4) from a box lying in his residential room which was taken into possession vide memo. Exh.P.F. The recovery memo. Was attested by Madat Khan and Abdul Ghaffar P.Ws. After completion of the investigation, the appellant was sent up to face trial.
5. At the trial, the appellant pleaded not guilty and the prosecution in order to establish its case examined eight witnesses in all. Dr. Sher Ali Khan, Medical Officer, D.H.Q. Hospital, Mianwali (P.W.4) conducted post-mortem examination and found the following injuries on his person:-- "Six circular fire-arm wound of about equal diameter 1 c.m. x c.m. Having equal distance between them on front of right side of chest and epigastrium, in an area of 10 c.m. x 7 c.m. Between sternum and right nipple, 2 c.m. Below the right nipple, well-illustrated in Diagram. The edges are blackened (but blackness is removable by rubbing) red and hard. On dissection there is burning and blackening below the wound in skin and muscles."
' On opening the thorax, wounds were found on 6th, 7th and 8th intercostal space on the right side.
Sternum was also injured. Right side of pleura had four injuries and the cavity was full of blood.
Right lung had shrunk, whereas the left lung was healthy and normal. There was an injury on lower lobe of the right lung. Right ventricle and atrium of heart were injured and so was pericardium. In the abdomen, peritoneum was injured. Diaphragm was injured at the right dome on its superior.
Liver had been badly injured at four places. Three pellets were recovered from the skin on the back of right side of chest whereas one pellet was found in the peritoneum. These pellets were sealed in a phial. Learned D.D.A. Tendered in evidence the Chemical Examiner's Report Exh.P.M. And Serologist's Report Exh.P.N. And closed the prosecution case. The appellant when examined under section 342, Cr.P.C. Denied the allegation and pleaded innocence. In answer to question No,9 as to why this case against him, the appellant made the following statement:-- "The case is false and has been set up on distorted facts. In reality, Abdus Sattar deceased and his brother Bashir armed with .12 bore pistol and .12 bore gun respectively came to my house at about 6 a.m. On the day of occurrence. Sattar deceased entered the courtyard followed at about 6 feet by Bashir, his brother, I was then feeding the cattle. Bashir exhorted Sattar deceased to kill me.
Sattar deceased turned around, but Bashir had fired in the meantime which accidently hit Sattar deceased, who fell down and died. I came out of my Haveli and started running towards North.
Bashir also came after me out of the Hawaili and fired thrice towards me although ineffectively. I had no dispute with my wife. Abdus Sattar deceased wanted to kill me because his wife was in illicit liaison with one Mumtaz and I had seen both of them in an objectionable position and had also told about it to the brother of Sattar deceased, namely, Ghulam Muneer P.W."
' He summoned Hassan Patwari in his defence whose statement was recorded afresh as D.W.1. He stated that the place of occurrence was situated within Khasra No,4738 of Kacha Kamar Mashani No,1 and west of this Khasra Number was the land of Muzaffar Khan in Khata No,16. He further stated that although Ghulam Munir, Madat Khan and Abdul Ghaffar were not the tenants of Muzaffar Khan. Their brother Abdul Sattar, however, cultivated the land of Muzaffar Khan as tenant.
6. While challenging the conviction, learned counsel for the appellant submitted that Ghulam Munir (P.W.6) and Madat Khan (P.W.7) who were present on the land of Muzaffar Khan and reached the place of occurrence on hearing the noise from inside the house of the appellant is not cultivated by them, therefore, their presence at that place is doubtful; that according to the narration of the F.I.R.
The appellant had a dispute with his wife two days before the occurrence which led Abdul Sattar deceased to approach the appellant but during his statement at the trial, he did not state so; that Mst. Bashiran wife of the appellant who was present in the house at the time of occurrence, was sister of the complainant and the deceased was not produced as a prosecution witness; that Mst.
Bashiran who came to visit the house of her brother i,e, Abdul Sattar deceased two days prior to the occurrence, kept on living as wife of the appellant and continued doing so even after the murder of Abdul Sattar; that she was a necessary witness and her non-production by the prosecution makes the whole case as doubtful; that the recovery of incriminating pistol from the house of the appellant is not at all acceptable because he fled away after the occurrence and there was no possibility of concealing the pistol in the house thereafter; and that the defense version as put forth by the appellant in his statement under section 342, Cr.P.C. Is more plausible as compared to the prosecution version. Learned counsel for the State has supported the impugned judgment and stated that the matter was promptly reported; that the P.Ws. Are brothers-in-law of the appellant and also his first cousins, therefore, there is no possibility of false implication of the appellant as they have no reason to do so and their evidence has to be relied upon because they have no enmity against the appellant; and that the defense version is implausible and does not spell out in any manner from the facts and circumstances of the case.
7.. I have considered the contentions raised at the Bar and also perused the record. The first contention of the learned counsel that the statements made by both the eye-witnesses that they were present in the land of Muzaffar Khan as his tenants which according to him is contradicted by the statement of Patwari, does not carry any weight because the Patwari has stated that their third brother Abdul Sattar deceased was tenant of Muzaffar Khan. The presence of the P.Ws. On the land cultivated by ' their brother cannot be treated as implausible or unnatural. Secondly the contradiction with regard to non-mentioning of the dispute in between the appellant and his wife taking place two days prior to the occurrence is not of much significance. The fact that Mst.
Bashiran kept on residing in the house of the appellant even after the dispute does not, in any manner, affect the prosecution version because Mst. Bashiran admittedly has grown-up children from her husband/appellant and her living with her children is not something which can cast doubt on the prosecution version. Similarly, the omission to mention that she visited the house of her brother is also not of any significance. As regards the recovery of pistol (P.4) from the appellant, the same is inconsequential because no empty was recovered so as to be wedded with the said pistol. The recovery was not even treated as a corroborative piece of ' terms of the bail bond executed by him. In the instant case the applicant has executed a bail bond for accused Zulfiquar in the following terms:-- {{URDU TEXT}} From the above terms of the bail bond executed by the applicant it is clear that the applicant had not only undertaken and stood surety for appearance of the accused before the Court of the Resident Magistrate, Kandiaro but also before any transferee Court and in such circumstances there is no illegality in the orders passed by the two Courts below.
' Reverting to the question of reduction in the amount of penalty imposed by the trial Court, in a decision reported as Zeeshan Kazmi v. The State PLD 1997 SC 267 the Honorable Supreme Court of Pakistan while ordering forfeiture of full amount of bail bond executed by the surety in the sum of Rs,2,00,000 has observed as under:-- "We may observe that it has now become common that the accused persons involved in heinous offences, if succeed, in obtaining bail, jump the bail bonds. To Check the above tendency and to provide deterrent special provisions have been enacted and/or are being enacted in the special statutes prescribing the minimum amount of bail bond for example, under section 5(7) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, it has been provided that the bail amount would not be less than twice of the amount involved in the commission of the offence.
Keeping in view the above bleak scenario which has emerged, with the passage of time on account of the lack of respect of the rule of law, and because of the unprecedented continuous steep inflationary tendency resulting in the loss of money value, the Courts should not show any undue leniency while forfeiting bail bond amount. Their approach should be dynamic and progressive oriented with the desire to discourage the accused persons to jump bail bonds. There is no legal requirement that full bail bond amount should not be forfeited, on the contrary, once an accused person jumps bail bond, the entire surety amount becomes liable to be forfeited in the absence of any mitigating circumstances."
' In view of this position I am not inclined to order reduction in penalty amount imposed by the learned trial Court in the sum of Rs,40,000. Accordingly the orders passed by the learned Courts below are maintained and this criminal miscellaneous application is dismissed. These are reasons of my short order, dated 4-9-1998.