' MUHAMMAD MAHMOOD Blum, J.-Fazal Haq appellant was tried by the learned Additional Sessions Judge, Rawalpindi, for offences under section 302, P. P. C. And under section 307, P. P. C. On the charges that on 30th August, 1974, at about sunrise time within the area of Khanna Dak, he committed the murder of Mansabdar and also attempted to murder Mania Bakhsh P. W. With a '12 bore gun. The learned Additional Sessions Judge, who tried the appellant held that the charges against the appellant were fully made out. He found him guilty and convicted him under section 302, P. P. C. For causing the death of Mansabdar deceased and sentenced him to death. He also convicted him under section 307, P. P. C. For the attempted murder of Maula Bakhsh P. W. And sentenced him to seven years' rigorous imprisonment. No fine has been imposed although imposition of fine and compensation under section 544-A, Criminal Procedure Code, is a mandatory provision and compensation should have been awarded to the heirs of the deceased and the injured Maula Bakhsh P. W.
' The appellant has appealed against his conviction and sentence and the case is also before the High Court for the confirmation of death sentence under section 374, Criminal Procedure Code.
Both the Criminal Appeal No. 1050 of 1975 as well as the Murder Reference No.' 105 of 1976 shall be disposed of by this single judgment.
2. Briefly the facts of the prosecution, case are that one Mst. Gulzar Begum, daughter of the appellant, was married to Muhammad Younus, son of the deceased. After sometime the relations between the spouses became very strained, which led Mst. Gulzar Begum to file a suit for dissolution of marriage, which was pending adjudication. Muhammad Younus also filed a suit for restitution of conjugal rights in the Court of Family Judge, Rawalpindi. Another application relating to the execution of the maintenance order passed by the Union Council in favour of Mst. Gulzar Begum and against Muhammad Younus was also pending in the Court. The appellant was trying that his daughter Gulzar Begum should get divorce from the son of the deceased, but the latter and his son were reluctant.
3. On 30-8-1974 at about 5 a.m. The appellant fired three successive shots at Mansabdar deceased with a 12 bore gun, which hit the deceased at his chest, flank and buttock and on receipt of these injuries, he fell down and died on the spot instantaneously. Ghulam Mustafa (P. W. 12), Meharban (given up P. W.), Muhammad Yousuf (P. W. 14) and Mst. Banni Begum (given up P. W.) were also present, who had come to ease themselves in a nearby field, saw the occurrence. All these witnesses mentioned above raised alarm, whereupon the appellant ran towards the northern aide alongwith his gun. Maula Bakhsh tried to apprehend the appellant, who also aimed at Mauls Bakhsh and fired at him hitting him at the back of his right arm. After witnessing this occurrence Ghulam Mustafa (P. W. 12) went to Police Station Saddar Behrooni and lodged the F. I. R. (Exh. P. A.)
Tahir Ali S. H.
0. Police Station Saddar Behrooni, Rawalpindi, after recording the F. I. R. Came to the spot alongwith S. I. Nur Muhammad and A. S. I. Mazhar Hussain with some constables. He prepared the inquest report (Exh. P. H.) and injury statement (Exh. P. J.) of the deceased and sent the dead body under the escort of Muhammad Aslam and Muhammad Hussain constables to the mortuary for post- mortem examination. Some bloodstained earth was collected from the scene of occurrence and taken into possession vide Memo. (Exh. P. C.) and made into a sealed parcel. He also collected empty cartridges (Exh. P. 1/1-3) from the spot and they were taken into possession vide Memo. (Exh.
P. B.) and were also made into a separate sealed parcel. He also collected blood-stained earth from the place where Maula Bakhsh P. W. Had fallen down in an injured condition and was taken into possession vide Memo. (Exh. P. D.) and was made into a sealed parcel.
' The appellant was arrested near Highway Bridge at Khanna Road, while he was carrying 12 bore gun. Alongwith the gun eight live cartridges (Exh. P-3/1-8) from his person were recovered. The liceuce of the gun Exh. P. 4 was also recovered. All these articles were taken into possession vide Memo. (Exh. P. E.). The gun was made into a sealed parcel. Muhammad Hussain Constable produced last worn clothes of the deceased after the post-mortem examination consisting of shalwar (P. 5), shirt (P. 6), jacket (P. 7) and chaddar (P. 8) and a phial which was sealed. All the clothes were blood-stained. The shirt and jacket had corresponding pellet marks on them. These articles were taken into possession vide Memo (Exh. P. L.).
' Ghulam Hussain son of Maula Bakhsh P. W. Produced before him the medico-legal report (Exh. P.
G.) of Maula Bakhsh P. W., his blood-stained clothes i.e. One shirt (P. 10), one dhoti (P. 11). Which were taken into possession vide Memo. (Exh. P. K.). The site plan (Exh. P. M.) and its copy (Exh. P. Mil) were prepared by Amir Hussain Shah, Patwari. On completion of the investigation the challan was submitted in the committing Court.
4. Dr. Muhammad Sadiq conducted the post-mortem examination on the dead body of Mansabdar deceased on 3Qth August 1974, at 3-45 p.m. And found the following injuries
(I) 6 pellet wounds of enterance 4 on front of right "shoulder one above the collar bone and one in the right margin of body of sternum in an area 7' x iv corresponding holes were present on the shirt.
(2) A pellet palpable under the skin on back of chest upper part scapular area which was dissected out, the scapular bone was broken underneath.
(3) Two pellet wounds of exit 1/3' each on top of back of right.
(4) 3 pellet wounds of exit adjacent to each other on the lower part of back of right shoulder axilla, injuries Nos. 2, 3 and 4 are exit wounds of Injury No. 1 and on the sketch are rked under the head, 2, cut holes on shirt and slug(' were present,
(5) A circular lacerated wound of entrance with marked blackening around 1r diameter on left side of lower part of chest. Cut holes on shirt and Aga.
(6) A pellet w und of exit 1/3 diameter lam below and outer to right nipple.
(7) A pellet wound of exit 1 f below and right side of chest,
(8) 3 pellet wounds of exit and a pellet palpable on right side of back of chest outer area 4' x 4'. The pellet was dissected out. Injuries Nos. 6, 7 and 8 are exit wounds of injury No. 5 which in marked as No. 3 and exit as No. 4.
(9) Circular lacerated wound of entrance If on inner side of lower part of right buttock with marked blackening around.
(10) A circular lacerated wound of exit of 9 on outer upper part of right buttock below the crest. Both the wounds are communicated through and through under the muscle.
' No cut hole was present on shalwar. The injury is marked as 5 and 6 on sketch. The right arm bone was found broken under exit wound of injury No. I. Under injury Nos. 1 to 8 many ribs on right side upper and posterior part and on left side, the right collar bone and shoulder blade were found broken. The right and left lungs and plurae were badly lacerated particularly the left lung and piece of gatta were removed from it. The left side of heart and p-ricardium were punctured through and through. The arch of aorta was also punctured through and through, The left dome of diaphragm was badly lacerated. The spleen and left kidney were badly lacerated. Paritonial cavity contained blood. Rest of the organs were healthy. Stomach was empty and urinary bladder was also empty.
' 4n the opinion of Doctor the cause of death was due to severe shock and haemorrhage as a result of injuries to heart, lungs, left kidney, spleen, aorta and diaphragm under injury No. 3 of sketch. This injury was sufficient to cause death of a person. Injury No. 1 was also fatal. All the injuries were caused by fire-arm and ante-mortem. The time between injuries and death was instantaneous at the spot. The time between death and post-mortem examination was 12 hours. On the same day at about 6-15 a.m. He examined Maula Bakhsh P. W. And found the following injuries :-
(1) 6 wounds of entrance each with some tattooing around each wound in an area of 2' x 1.2/10' on right side of back of chest 9' from the top of shoulder and 2' from the posterior axillary line.
(2) 6 wounds of exit each diameter on right side of chest 3r below the axillary pit in an area of 21 x 3r, the most lateral wound of entrance is continued with a wound of exit under the skin whereas rest have passed chest cavity. The wounds are Imost at the level entrance wound.
(3) A wound of exit 2' x 4' x 1}" muscle deep on inner and front of right arm at the level of wound exit a small tag of skin is intact on front.
5. The prosecution has based its case on the following evidence :-
(1) Motive,
(2) Ocular evidence,
(3) Medical evidence, and
(4) Recovery.
' Motive- ' As far as the motive is concerned, Ghulam Mustafa (P. W. 12) and Muhammad Yousuf (P. W. 14) have clearly stated that the relations between the spouses i.e. Mst. Gulzar Begum, daughter of the appellant, and Muhammad Younus, son of the deceased, were very strained and litigation was pending between the parties. Basharat Ali (P. W. 6) is Reader in the Court of Mr. Muhammad Ashraf Butt, Judge Family Court, Rawalpindi, who has supported the fact of litigation going on between the parties. The appellant. Was examined by the trial Court under section 342, Cr. P. C. And he has also admitted that the relations between the spouses were very strained. There is a sufficient evidence to support the motive and that stands proved and the learned Sessions Judge has rightly relied on motive.
' Ocular evidence- ' Following are the main eye-witnesses :- ' Ghulam Mustafa (P. W. 12), Maula Bakhsh (P. W. 13) and Muhammad Yousuf (P. W. 14), Ghulam Mustafa (P. W. 12) has witnessed the occurrence and lodged the F. I. R. He while supporting the prosecution story has also stated that the ' relations between the two families of the appellant and the complainant were very strained, P. W. 13 is Maula Bakhsh, who is injured witness. His presence at the spot cannot be denied. He has also supported the prosecution story. Muhammad Yousuf (P. W. 14) is the last eye-witness. He has also supported the prosecution story in every detail. ' medical evidence.- The ocular testimony of the above-mentioned witnesses finds comple support from the medical evidence with respect to nature and site of th injuries and the weapon of offence used. On the basis of this corroboration the ocular testimony of the witnesses has been believed by the learned Addi tional Sessions Judge.
' Recovery- ' The prosecution has produced Muhammad Yousuf (P. W. 10) and Ariz (P. W. 11) to prove the recovery of licensed gun from the appellant. P. W. 10 has stated that in his presence the appellant was arrested near Highway bridge at Khanna Road at about 4/5 furlongs from village Khanna Dak on its western side. And the gun was recovered and taken into possession. On his personal search eight live cartridges (P. 3/1-8) were also recovered from his person and they were taken into possession vide Memo. (Exh. P. E.) This Memo. Was attested by the witness. There is also a report of the Examiner of Fire-Arms, Forensic Science Laboratories, Punjab Police, Lahore, whereby it has been stated that the three crime empties marked C-1 to C-3 were actually fired from the 12 bore gun recovered by the police. This report of the Examiner of Fire-Arms Expert is Exh. P. Q. After appreciating the evidence placed on record the learned Sessions Judge came to the conclusion that the prosecution has successfully established the case against the appellant beyond any reasonable doubt and convicted the appellant under section 302, P. P. C. For the charge of murder of Mansabdar deceased and sentenced him to death subject to the confirmation by the High Court. He has also been convicted under section 307, P. P. C. For attempting murder of Maula Bakhsh P. W. And sentenced him to seven years' rigorous imprisonment.
7. The learned counsel appearing on behalf of the appellant has challenged the judgment on the following points
(i) That there is sufficient delay in lodging the F. I. R.,
(ii) That the ocular testimony of the witnesses should not be relied upon because they are interested witnesses,
(iii) That the motive is not proved, and
(iv) That the recovery cannot be believed.
' As far as the delay in lodging the F. I. R. Is concerned, the contention of the learned counsel for the appellant is completely devoid of force. The occurrence took place at 5-15 a.m. On 30-8-1974 and it was reported on the same day at 7 a.m. The distance between the place of occurrence and police station is six miles. In such circumstances the F. I. R. Appears to have been lodged very promptly and there is no question of any delay.
' Ocular evidence- ' far as P. W. 12 is concerned, the only objection against him is that the deceased was his maternal uncle. Mere relationship is not sufficient to discard the testimony of a witness. It has further to be proved that he had a motive to falsely implicate the appellant. Since there is no such eviden /4 the testimony of this witness cannot be brushed aside simply on the ground of his relationship with the deceased. It was further contended that he was living as Khana Damad in the house of the deceased but this fact in itself is not sufficient to discard the testimony of this witness. On the other hand, it would prove that he is a natural witness because he was living in the house of the deceased. He has promptly reported the matter to the police and there does not appear to be any occasion for the witness to fabricate a false case against the appellant as has been contended by the learned counsel for the appellant.
' P. W. 13 is Maula Bakhsh. His presence at the spot has not been denied even by the learned counsel for the appellant because the witness had received injuries from the appellant. In his examination-in-chief he has said that Ghulam Mustafa and Muhammad Yousuf were also present and witnessed the occurrence.
' Muhammad Yousuf (P. W. 14) has also supported the prosecution, but it has been stated that he is a relation of Maula Bakhsh because Maula Bakhsh is his mother's brother. This mere relationship, as stated earlier, is not sufficient to brush aside the testimony of the witness.
Under section 134 of the Evidence Act, although no definite number of Maul Bakhsh (P. W. 13) is fully supported by P. W. 12 and P. W. 14 and witnesses is required to prove a case yet in this case the statement of Maul evidence in itself is sufficient to warrant conviction.
The learned counsel has further stated that Meharban and Mst. Banal Begum, the daughter of the deceased, have not been produced as witnesses and adverse inference should have been drawn against the prosecution. This contention is equally without force because it is the discretion of the prosecu tion to give up any witness and to produce a particular witness. It cannot argued that a particular witness should have been produced by the prosecution. If P. W. 12 and P. W. 14 have been criticised only on the basis of relationship, for Mst. Banai Begum was also daughter of the deceased and the same criticism could be raised against her. So in such circumstances no adverse inference could be formed merely because they were given up and the prosecution did not feel the necessity of producing them.
' Recovery - ' As far as the recovery of the gun, crime empties and eight live cartridges is concerned, it is vehemently contended by the learned counsel that it was a fake recovery. According to the prosecution crime empties were recovered on 31-8-1974 and the gun was recovered on 1-9-1974 from the appellant, when be was arrested near the Highway bridge at Khanna Road at about 4/5 furlongs from village Khanna Dak. The learned counsel contended that under rule 25.35 of the Punjab Police Rules, 1934, Volume III, the crime empties should have been mentioned in the inquest report in the relevant column but it was not mentioned nor it finds any mention in the f .
1. R. Which suggest that these crime empties were planted subsequently but were not actually recovered. It was further argued that the crime empties are alleged to have taken into possession a day earlier and the gun was taken intentionally after a day and the Police Officer must have fired the gun in order to obtain a positive result from the Examiner of Fire-Arms which he obtained. The learned counsel for the State has also refused to rely on the recovery, so there is no necessity to examine the objection raised by the learned counsel for the appellant.
A perusal of medical evidence would indicate that it fully corroborate the statements of the eye- witnesses with respect to the nature of injurie weapon of offence used and site of injuries. In such circumstances even I the recovery of gun or crime empties are not taken into consideration ye there is sufficient ocular evidence corroborated by the medical evidence to warrant conviction.
8. The learned counsel for the appellant has pointed out certain minor omissions. For example it was pointed out that every witness should have stated that after firing a shot, the 12 bore gun was reloaded and then a second shot was fired and similarly this evidence of reloading the gun must have been narrated by the witnesses otherwise this omission, according to the contention of the learned counsel, may be considered as material contradiction. The contention of the learned counsel cannot be accepted because every minor detail is not expected from a witness. The learned counsel, who cross-examined the witness, could get it clarified whether the gun was reloaded within the view of the witness or not but no such question was put to the witness. In such circumstances any minor omission while deposing before the trial Court cannot be considered as material contradiction.
After coming to this conclusion that the prosecution has successfully established the guilt of the appellant, we must hold that the appellant wa F rightly convicted under sections 302 and 307, P. P.
C. As far as the quantum of sentence is concerned it is to be seen that the prosecution has proved strained relations between Mat. Gulzar Begum, the daughter of the appellant, and Muhammad Younus, the son of the deceased, but there is no evidence on the record to show why Mansabdar was killed, because if it was the intention of the appellant that Younus should divorce his daughter then Younus should have been the victim of aggression and not his father. There is no such evidence to show that Mansabdar was responsible for making the life of the spouses miserable.
The commission of murder must have been preceded by some events between the assailant and the deceased, which have not been brought on record by the prosecution. When immediately the preceding circumstances of murder are shrouded in obscurity, then, extreme penalty of death is normally not imposed and sentence of life imprisonment is considered appropriate in such circumstances.
' It may be stated that under section 544-A, Cr. P. C. Compensation should have been awarded to the heirs of the deceased and the injured person but H the learned Additional Sessions Judge has not awarded any such compensa tion which is a mandatory provision and must have been awarded.
' In view of the above discussion we hold that the appellant has caused the death of Mansabdar and also injured Maula Bakhsh P. W. We therefore, maintain the conviction under section 302, P. P. C.
For causing the death of Mansabdar deceased and under section 307, P. P. C. For attempted murder of Maula Bakhsh p. W. 13 but the sentence of death wader the first count is reduced to life imprisonment with a fine of Rs. 5,000 (Rupees live thousand) or in default to undergo further R. I. For a period of three years. If fine is realised it should be paid to the heirs of the deceased as compensation under section 544-A, Cr. P. C. We also maintain the conviction of the appellant under section 307, P. P. C. For attempted murder of Maeda Bakhsh (P. W. 13) and maintain the sentence of seven years' R.
1. In addition to it, he is also sentenced to a fine of Rs. 2,000 or in default he snail undergo one year's R. I. The fine if realised shall be paid to Maula Bakhsh (P. W. 13) under section 544-A, Cr. P. C.
' As a result of the above discussion, the death sentence of the appellant is not confirmed but with the aforesaid modifications in the sentences the appeal of the appellant is otherwise dismissed.
Order accordingly.