' M. JAVED BUTTUR, J.--- The appellant Ali Nawaz was tried under sections 302/392/34, P.P.C. By the Judge, Punjab Special Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975 Dera Ghazi Khan, Multan and Bahawalpur Divisions, Camp at Multan. Learned Trial Court vide its judgment, dated 24-1--1995 convicted the appellant under section 302/34, P.P.C. And sentenced him to death and a fine of Rs,4,00,000 or in default to further undergo seven years' R.I. Half of the fine, if recovered, was ordered to be paid to the legal heirs of the deceased, Shah Mir under section 544-A, Cr.P.C. The appellant was also convicted under section 392/34, P.P.C. And sentenced to ten years' R.I. And a fine of Rs,50,000 or in default to undergo two years' R.I. It was also ordered by the Trial Court that in the event the sentence was not confirmed by the High Court, the sentences passed against the appellant shall run consecutively.
2. The appellant has challenged his conviction and sentences through Criminal Appeal No, 10 of 1995. Learned Trial Court has made a reference (Murder Reference No, 7 of 1995) for the confirmation of the death sentence of Ali Nawaz. Both these matters are connected and we propose to dispose of the same through this single judgment.
3. The occurrence took place on 9-3-1987 at 'Assay' time in the area of Mauza Faiz Jilaniabad.
District Rahim Yar Khan at a distance of 30 k.Ms. From the Police Station Machhka. F.I.R. No,13 of 1987 (Exh.P.A.) was registered at Police Station Machhka at 5-00 p.m. On 10-3-1987 by Allah Rakha. A.S.-I.
P.W.5 on the statement of Rahim Bakhsh P.W.8, brother of the deceased Shah Mir.
4. According to Rahim Bakhsh complainant P.W.8 on 9-3-1987, he alongwith his brother-in-law Bangul went to Basti Miranpur, Tehsil Ghotki to receive the sale consideration of a cow amounting to Rs,2,000 from Mohib Chachar which had already been sold to him. They spent the following night there and on 9-3-1987 after receiving the said amount they reached Ghotki City. They purchased some household articles from there, they returned to Pul Bangoon Draha in a wagon at about 3.00 p.m. And after alighting from the said wagon, they proceeded on foot towards their house in Chak Bhara. At about late Asarwela, they had gone towards the bank of old river in the area of Mauza Faiz Jillani and were proceeding towards the "Langa" to cross the river when they saw four persons armed. With kalashinkovs, two of them had muffled their faces while the remaining two had not and those were Ali Nawaz and Gul Nawaz sons of Beerbal, caste Chachar. The two persons with muffled faces were wearing Shalwar/Qameez, as also Sindhi caps. Both of them were strongly built youth. They stopped his brother Shah Mir and Ali Nawaz tried to search the person of his brother Shahmeer but on his resistance Ali Nawaz accused fired burst of kalashinkov which hit his brother on left arm and left side of the chest of deceased who collapsed on the ground and expired at the spot. Then Ali Nawaz accused robbed away Rs,2,000 from the pocket of the deceased and the other three persons made search of the person of complainant and his brother-in-law. They kept quite due to fear. Their cries did not attract any body as none was residing close to the scene of occurrence. The accused persons vanished away from the spot alongwith their respective weapons and the Booti. Leaving his brother-in-law Mangal for the protection of the dead body, the complainant went to his house and disclosed the incident before his relatives including Ahmad and Khair Muhammad and in their company, reached the place of occurrence crossing the river.
Due to odd hours of night and due to non-availability of conveyance, the complainant could not come to police station. He went to the house of Khamya Khan Councilor, narrated the occurrence and in his company came to the police station.
5. Allah Rakha, A.S.-I. P.W.5 after recording the F.I.R. Exh.P.A. Visited the place of occurrence, took into possession blood-stained earth, empties of kalashinkov Exh.P.5/1-2 vide recovery memo. Exh.P.G.
And made them into a sealed parcel; prepared injury statement Exh.P.D./1 and inquest report Exh.P.D. On 11-3-1987 sent the dead body of Shamshir deceased to the mortuary for autopsy under the escort of Muhammad Iqbal, P.W.6 who later on produced before him the last worn blood- stained clothes of the deceased shirt P.1 and Chaddar P.2; collwcted blood-stained earth P.3 from the place of occurrence vide memo. Exh.P.B. Got prepared site plans of place of occurrence Exhs.P.H. And P.H./1 from Patwari and then handed over the file to Muhammad Yaqub, Inspector P.W.4.
6. Dr. Muhammad Ahmad Mirza, Surgeon P.W.2 conducted postmortem examination of the dead body of Shah Mir deceased on 11-3-1987 at 10.00 a.m. Identified by Ahmad P.W.7 and found the following:--- "(1) A circular lacerated wound 1-1/2 x 1 on the left side of the chest at the level of posterior auxiliary line, margins were burnt, this was the wound of entry.
(2) A lacerated wound 2-1/2 x 1-1/4 on the left side of the front of the chest just below the nipple, this was the wound of exit.
(3) A circular lacerated wound 1-1/2 x 1-1/2 on the ocular aspect of the left upper arm, this was a wound of entry.
(4) A lacerated wound 3 x 2 on the inner side at left upper arm (wound of exit) humourous was found broken.
(5) A circular lacerated wound 1 x 1 on the left side of injury No,2, this was the wound of entry. All were found healthy"
' The doctor observed that the stomach was containing digested rice and small intestine was containing semi-digested food. Death, in the opinion of the doctor, occurred due to shock and heamorrhage resulting from injuries Nos.1 to 5, caused by fire-arm, all the injuries were ante- mortem and were sufficient to cause death in the ordinary course of nature. The duration between injuries and death was immediate while that between death and postmortem was about 24 hours.
' At the trial, the prosecution examined as many as 10 witnesses to prove its case,
8. Rahim Bakhsh complainant appeared as P.W.8 and reiterating the prosecution story explained in cross-examination that they only once went to receive the price from the person who purchased the cow from Shah Meer deceased, that they accompanied the deceased as he requested to them for the same; that the accused persons suddenly appeared from the bushes and came from their front side, his person was searched by Ali Gul; that Ali Nawaz first of all killed the deceased Shah Meer with kalashinkov and then he searched his person; that the accused persons left empties of the kalashinkovs at the spot while decamping from the place of occurrence that the empties were taken into possession by the Thanedar and that they had no enmity with the accused persons Ali Nawaz and Ali Gul both the accused formerly resided in their Basti for about 4/5 years. The complainant P.W.8 denied the suggestions that they had enmity with Chachar family, that he suspected Ali Nawaz accused had illicit relations with the wife of Sona Chachar, that he did not witness the occurrence of murder and due to enmity they had falsely and maliciously involved Ali Nawaz and Ali Gul accused persons.
9. Bangal P.W.9 stated that Shah Meer deceased was brother of his wife that he did not remember the exact colour of the cow which was sold by the deceased as long time had passed that they saw the accused persons from the distance of about one mile; that firstly they did not recognize them whether they were police officials or other persons that there was a jungle around the place of occurrence; that Ali Nawaz and Ali Gul were recognized and identified by them whereas two other accused persons could not be identified as they had muffled their faces; that the accused persons used to reside at about 15/20 miles away from their village and as they had been visiting their village, therefore, he was familiar with their faces; that there was no person of the same of Sona in their brotherhood; that they had no enmity with anybody in the area and that in the murder case of Lal Chachar. Rahim Bakhsh and Shah Meer deceased were accused and they were acquitted from that case. He denied the suggestions of Sona Chachar being maternal uncle of the deceased and his wife Mst. Ashraf Mai had illicit relations with the accused Ali Nawaz that they had murdered Mst. Ashraf Mai as Kali; that Shah Meer deceased was not murdered in their presence and that due to suspicion of illicit relations of Ali Nawaz with Mst. Ashraf Mai, he had been implicated in the case falsely.
10. Muhammad Yaqub, Inspector P.W.4 stated that in June, 1987, he was posted as S.H.O. At Police Station Machhka and he obtained written proclamation orders Exh.P.E. And Exh.P.F. Against Ali Nawaz and Ali Gul which could not be served upon the accused persons. He partly investigated into the case and submitted the challan under section 512, Cr.P.C. Against the accused persons.
11. Allah Rakha, A.S.-I., P.W.5 explained in cross-examination that the two empties recovered from the spot were of the kalashinkov and were lying near the bush at the spot; that the colour of the empties was Halka Khaki that the empties were visible at a distance of 2/3 Karams from the dead body that they stayed at the spot for the whole night and the dead body was taken from there in the morning in a tractor trolley to Sadiqabad Hospital for its post-mortem that he completed the whole proceedings at the spot and nothing was done at the police station; that he did not remember the time of their arrival at the spot; he also visited the site alongwith Patwari for preparation of site plan; that Chak Bhara, the village of Raheem Bakhsh complainant may be 30/35 k.Ms. From the police station, wagons and other transport were not available on the route between the said village and the police station but special arrangements were made at the spot and there was no Pakka road from the police station towards the place of occurrence and that there was a Langa (way of crossing the river) about 6/7 Karams from the place where the dead body was lying which was not a Pakka' earth. He denied the suggestion that the accused person was innocent who had been falsely involved on the asking of the complainant party.
12. Muhammad Iqbal, Head Constable P.W.6 explained in cross-examination that the dead body was taken on a tractor trolly from the spot; they left the police station on a private wagon; that they reached the spot at about 7-00/8-00 p.m.; that he did not remember the names of the persons who were sitting/present at the spot with the dead body; that he did not sleep for the whole night; that the dead body was produced before the doctor at about 12-00/1-00 after-noon on 11-3-1987; that the empties were found at the spot; that he did not remember the site where the empties were lying which were found from the open place and were also visible to every body present there that the empties were probably of yellow colour; that he had seen Chak Bhara during the investigation of this case; that there was no usual traffic towards Chak Bhara from Machka; that Chak Bhara was at a distance of about 50/60 k.Ms. From police station Machka but the distance was about 20/25 k.Ms. In the event one adopted straight passage.
13. Ahmad P.W.7 stated that on 11-3-1987 he identified the dead body of Shah Meer deceased before the doctor in T.H.Q. Hospital. In cross-examination, he stated that Shah Meer deceased was his nephew, his statement was recorded at the police station and all the articles were taken into custody in the police station.
14. Bashir Ahmad Jamoo, S.-I. P.W.10 stated that on 30-6-1988 he arrested Ali Nawaz accused in the instant case.
15. As per report of the Chemical Examiner Exh.P.T. The earth was found to be stained with blood, human origin of the blood was determined by the Serologist vide report Exh.P.U.
16. After the closure of the prosecution evidence, the appellant got recorded his statement under section 342, Cr.P.C. And while denying the allegations levelled against him by the prosecution stated that the complainant being inimical towards him, created the instant case with the connivance of the police. He also elected to appear on oath within the contemplation of section 340(2), Cr.P.C. Wherein he stated that he had animosity with the complainant who suspected him being ' Kala' and they themselves murdered the woman while he ran away from the spot; that they did not come to compromise and thereafter the complainant involved him in the instant case. In cross-examination he admitted that many other criminal cases were registered against him in various police stations. The appellant also produced in evidence the statement (Exh.D.A.) of Rahim Bakhsh recorded under sections 161, Cr.P.C.
17. Learned Trial Court has pronounced the abovementioned verdict, legality whereof has been assailed by the learned counsel for the appellant contending that the testimony of P.W.7 Ahmad has rendered the recoveries doubtful, the medical evidence does not support the ocular account, that Exh.D.A. Shows previous enmity and due to it the appellant was falsely involved, that it is a blind murder. F.I.R. Was recorded with pre-meditation to falsely involve the appellant.
18. Learned counsel for the State has supported the impugned conviction and sentences recorded by the trial Court against the appellant.
19. With the assistance of the learned counsel for the appellant and of the State, we have carefully gone through the entire evidence available on the record and have also heard their arguments at length.
20. We have gone through the statement of P.W.7 Ahmad. He stated in cross-examination that all the articles were taken into custody in the police station. The statement does not explain as to which articles were taken into custody in the police station. The defence failed to further cross- examine the witness so that the true facts could be elicited. The pointed out contradiction in the post-mortem report and the F.I.R. As to the period of death is also of no avail to the appellant because the doctor gave only probable time which elapsed between the death and post-mortem report. Learned counsel for the appellant has contended that Exh.D.A. Shows that previous enmity between the parties and that is why the appellant has been falsely implicated. In this regard, it is concluded that previous enmity may be a sufficient reason for false implication, it can equally serve as a reason for commission of the offence. Learned counsel for the appellant has laid much stress on the argument that the F.I.R. Was lodged with an inordinate delay after premeditation. In this context, it is observed that no doubt F.I.R. Was lodged belatedly 'but the explanation of so doing is given in the F.I.R. Itself. As per complainant, after the murder of his brother Shah Mir, having left behind his brother-in-law to protect the dead body, he went to his relations in the village to apprise them of the incident. He further narrated in the F.I.R. That A due to odd hours of night and due to non-availability of conveyance, he could not come to lodge the report and he established contact with Khamya Khan, Councillor, with whom he went to police station for report. It is a matter of common knowledge that the people in rural areas with symbolic rate of education very often try to narrate the factum of commission of heinous offences before their elected representatives and some other persons in authority and take them along to the police stations. This is what was done by the complainant of the present case. The complainant's going to his relations as well as the local Councillor before approaching the police is nothing but natural and the appellant cannot reap any premium out of fully explained delay in lodging the F.I.R. There is yet another reason why the complainant did not lodge the F.I.R. With fare degree of promptitude. It has been proved by the prosecution that the place of incident was located so awkwardly that there was no metalled road or even passage connecting the place of occurrence to the police station or the complainant's village which might have rendered the complainant incapable to rush to the police station promptly. So far as the relationship of eye-witnesses with the deceased is concerned, it suffices to observe that mere relationship of any witness with the deceased does not exclude former's testimony from consideration if the truthfulness has been proved sufficiently before the Court.
Having reviewed the evidence, we are of the firm view that in the instant case, the ocular account is unanimous and straightforward which is in consonance with the medical evidence as well as the recoveries and is worthy of explicit reliance. Despite putting Rahim Baldish (P.W.8) and Bangal (P.W.9) to lengthy cross-examination, the defence was unable to make any hole in their confidence inspiring testimony. They have fully explained their presence at the time and venue of occurrence.
The complainant is real brother of Shah Meer deceased and obviously he had no consideration to falsely implicate the appellant in such a heinous offence. It is established on record that the appellant is a man of desperate character, he himself admitted that he was involved in many other criminal cases including murder cases, he committed the brutal murder of Shah Meer deceased and even the extenuating circumstances in his case are lacking.
21. The upshot of the above discussion is that we uphold the conviction and sentence as recorded against Ali Nawaz appellant by the Trial Court and dismiss his appeal. The death sentence is confirmed. The Murder Reference is answered in the affirmative.