' MUHAMMAD ASIF JAN, J.--- Naik Muhammad aged about 36 years an employee of Carriage Shop Sansi Quarters, Mughalpura, Lahore, stood his trial in the Court of Hakim Syed Akhtar Irshad, Additional Sessions Judge of Lahore on the allegation that he alongwith his brother Gul Khan (absconder) murdered Ghulam Sarwar on the 29th of October, 1987 at about 6-45 a.m.
2. The learned trial Judge came to the conclusion that the prosecution had proved its case beyond all reasonable doubts and, therefore, convicted Naik Muhammad appellant under section 302, P.P.C. And sentenced him to death subject to confirmation by this Court.
In addition a fine of Rs,1,00,000 (Rupees one lac) was also imposed and in default in the payment of fine further rigorous imprisonment for two years was imposed. Half of the fine, if realized, was ordered to be paid as compensation to the legal heirs of the deceased in equal shares.
3. Naik Muhammad has appealed against his conviction and sentence while the trial Court has referred the matter to this Court for confirmation of the sentence of death.
' By this judgment we shall be deciding both matters together.
4. The matter was reported by complainant Muhammad Nabi (P.W.9) whose statement Exh.P.D.
Was reduced into writing by Sub-Inspector Ghulam Din (P.W.17) near the sewerage pond, Wheatman Road, Lahore on the 29th of October, 1987 at 8-15 a.m. The formal F.I.R. (Exh.P.D./1) was drawn by A.S.-I. Muhammad Yousaf (P.W.11) at Police Station Mughalpura of District Lahore on the same day at 8-25 a.m.
5. The occurrence took place on the 29th of October, 1987 at 6-25 a.m. Near the sewerage drain of P.M.G. Quarters of Railway Colony of Wheatman Road which is about 2-1/2 kilometers from the Police Station Mughalpura, Lahore.
6. According to complainant Muhammad Nabi (P.W.9) on the fateful day i.e, the 29th of October, 1987 at about 6.45 a.m., complainant Muhammad Nabi alongwith his elder brother Ghulam Sarwar deceased and Safdar Khan (P.W.10) son of Ghulam Sarwai deceased were proceeding together on foot in order to go to their respective places of duty. When they reached near the sewerage point in the area of P.M.G. Quarters of Wheatman Road, Naik Muhammad appellant alongwith his brother Gul Khan (absconder) both armed with pistols arrived at the scene. Naik Muhammad appellant alongwith his brother Gul Khan (absconder) started firing with their respective pistols. The first shot fired by Naik Muhammad appellant, hit Ghulam Sarwar deceased on the upper lip towards the right side. The second fire by Naik Muhammad appellant hit Ghulam Sarwar deceased on the chest and pierced his body. The third shot hit him in the abdomen. Gul Khan (absconder) fired at the deceased Ghulam Sarwar and hit him on the left thigh. Ghulam Sarwar deceased fell down. Gul Khan (absconder) tired two more shots on Ghulam Sarwar deccased which hit him on the hands.
One Abdul Majeed, a passerby was also injured on account of indiscriminate firing of. Naik Muhammad appellant and Gul Khan (absconder). However, the said Abdul Majeed did not appear at the trial as a prosecution witness and was given up as having been wonover.
7. The occurrence was witnessed by complainant Muhammad Nabi (P.W.9), a brother of Ghulam Sarwar deceased, Safdar Khan (P.W.10), son of the deceased and Sher Bahadar (P.W.8). Sher Bahadar (P.W.8) is not related to the parties,
8. The motive for this occurrence was that Mst. Rehmania (P.W.5) wife of one Ghani-ur-Rehman had a case registered under section 365, P.P.C. At Police Station Mughalpura, Lahore regarding her husband Ghaniur-Rehman's abduction against Naik Muhammad appellant and his brother Gul Khan (absconder). In the said case Ghulam Sarwar deceased was cited as a witness alongwith complainant Muhammad Nabi (P.W.9). A couple of days prior to the occurrence appellant Naik Muhammad alongwith his brother Gul Khan (absconder) came to the neighbourhood of the complainant and asked him as also his deceased brother to refrain from giving evidence in the said case or otherwise to face dire consequences.
9. Besides the eye-witnesses who appeared at the trial one Malik Asif also witnessed the occurrence but he too had to be given up by the Prosecutor as having been "won over".
10. Dr. Ahmad Saeed (P.W.16) conducted the post-mortem examination on the dead body of Ghulam Sarwar deceased on the 30th of October, 1987 at 11-00 a.m. And found the following injuries on his person:--
(1) Fire-arm wound of entry measuring 1 x 0.7 c.m. On the right side of the face just above the upper lip.
1.5 c.m. Below right nosalabil afold and 11 c.m. From the right ear. Bullet piercing the maxillary bone and anterior wall of posterior coranial fossa and causing fracture of the skull with fracture line involving right temporal prietal and expital bone entered the brain matter and reached the median sulcus of brain tearing the brain matter, and was recovered from there.
(2) Fire-arm wound of entry measuring 1.5 x.
0.8 c.m. On left side of chest 5 c.m. Lateral to midline and 7 c.m. Below the left nipple. On exploration bullet travelled through the chest wall caused fracture of left 7th rib, near the stranum. Pleura of the right side and lower lob of right lung was injured and right cavity was containing about 700 cc of flued blood. Bullet fracturing the lateral part of 4th right rib entered the muscles of right arm and recovered from the right shoulder 8 c.m. Below the shoulder top.
(3) Fire-arm wound of entry measuring 1 x 0.5 c.m. On the right side of abdomen 2.5 c.m. From the midline and 5 c.m. Above the umbilicus. Bullet tearing the left lobe of liver and penetrating through spine at L-1 made its wound of exist measuring 0.7 x.
0.7 c.m. On the back of right side of abdomen, 3.5. c.m. From midline and 17 c.m. Below the inferior angle of right scapula.
(4) Fire-arm wound of entry measuring 0.6 x 0.6 c.m. On the interior aspect of left thigh 16 c.m, above knee. On exploration, muscles were injured and femur bone found fractured and bullet piece recovered from posterior aspect of left thigh.
(5) Fire-arm wound of entry measuring 1 x 0.7 c.m. On left thigh 14 c.m. Above the left knee. Bullet was recovered from gluteal muscle from upper and outer aspect of left buttock.
(6-A) Lacerated wound measuring 1 x 0.5 c.m. On the dorsal aspect of left hand near the ring fingers 10 c.m. Below the left wrist.
(6-B)Lacerated wound 2.5 x. 1 c.m. On the palmor surface of left hand on the junction of thumb and index finger 10 c.m. Below the wrist joint. 6-B is wound of exist of 6-A.
' Three metallic bullets and one bullet piece were recovered from the dead body, sealed and handed over to the Police by the Doctor. However, these have not been exhibited at the trial.
' In the opinion of the Doctor all the injuries were antemortem and were caused by a fire-arm. The, cause of death was injuries Nos.1, 2 and 3. Each of them individually as well as collectively were sufficient to cause death in the ordinary course of nature. Death occurred almost instantaneously.
Probable time between death and post-mortem examination was 24 to 36 hours.
11. After recording the statement of complainant Muhammad Nabi (P.W.9), Sub-Inspector Ghulam Din (P.W.17) sent the same to the Police Station for registration of the formal F.I.R. (Exh.P.D./1). He secured 7 crime empties from the spot (Exh.P.8/1-7) and took into possession vide recovery memorandum Exh.P.C. Which was attested by Sharif Khan (P.W.7) and Wazir Khan (not produced).
' The same Police Officer also took into possession blood-stained earth from the spot where Ghulam Sarwar deceased was murdered vide recovery memorandum (Exh.P.B.) which was attested by the same witnesses.
12. On receiving information that Naik Muhammad appellant was already under arrest in a case registered at Police Station Timmer Ghran of District Dir, Sub-Inspector Faiz Ullah Khan (P.W.18) after obtaining permission from the Home Secretary, Government of the Punjab on the 9th of July, 1988 proceeded to District Dir and took Naik Muhammad appellant into custody on the 1st of August, 1988.
13. On the 6th of August, 1988, Naik Muhammad appellant led to the recovery of .30 bore pistol (P.6) alongwith 5 live bullets (P.7/1-5) from his residential quarter which were taken into possession vide recovery memorandum Exh.P.A. And was attested by A.S.-I. Muhammad Younas (P.W.3) and A.S.-I.
Muhammad Ali (not produced).
14. According to the report of the Chemical Examiner for .The Punjab, Lahore, the earth in question was stained with blood and according to the Serologist to the Government of Punjab, the blood was human blood.
15. Naik Muhammad appellant pleaded total denial and false implication due to enmity. In his statement under section 342, Cr.P.C., in reply to the question "why this case against you and why the P.Ws. Have deposed against you?", Naik Muhammad appellant replied as follows:-- ' "Qeemat Khan son of Itbar Jan was my friend. Said Qeemat Khan had given Rs,60,000 to Ghani- ur-Rehman for obtaining visa. Ghaniur-Rehman did not deliver the visa. Said Qeemat Khan demanded the amount from Ghani-ur-Rehman but Ghani-ur-Rehman postponed the matter.
Qeemat Khan came to Lahore and took Ghani-urRehman to Bajaur Agency, and Qeemat Khan wrote a letter to Mst. Rehmania P.W. Wife of Ghani-ur-Rehman for payment of Rs,65,000 for the release of Ghani-ur-Rehman. Instead making the payment Mst. Rehmania P.W. Got registered the case against the present accused and his brother Gul Khan for the abduction of Ghani-ur-Rehman for the reason that Qeemat Khan was the friend of Naik Muhammad and both Naik Muhammad and Gul Khan accused would be under pressure and thus, Ghani-ur-Rehman would be released from Bajaur Agency. I and my brother were falsely involved in the abduction case for the above said reason. Mst. Rehmania P.W is the close relative of Ghulam Sarwar deceased of this case.
Ghulam. Sarwar deceased is the father-in-law of the son of Mst. Rehmania P.W. When I and my brother were bailed out in the abduction case then to take the revenge of the old enmity Mst.
Rehmania in privy with Muhammad Nabi P.W. And Safdar Khan P.W. Involved me and my brother in the murder case of Ghulam Sarwar. The P.Ws. Deposed against me due to enmity with me and their relationship with the deceased."
16. Learned counsel for the appellant contended that the prosecution had failed to prove its case beyond reasonable doubt and, therefore, the appellant should be acquitted because the eye- witnesses were closely related to the deceased; Abdul Majeed who was injured and was an independent eyewitness had not been produced by the prosecution; other natural eyewitnesses were not produced by the prosecution; the F.I.R. Was recorded after making preliminary investigation the motive was not proved and finally recoveries were not proved.
17. Conversely, the learned counsel for the State argued that the presence of the eye-witnesses was natural; the motive was not denied and, therefore. Submitted that the sentence of death should be confirmed because there were no extenuating or mitigating circumstances.
18. The evidence of motive had been furnished by Mst. Rehmania (P.W.5) and complainant Muhammad Nabi (P.W.9).
' Mst. Rehmania (P.W.5) stated that her husband Ghani-ur-Rehman was abducted by Gul Khan (absconder) and his brother Naik Muhammad appellant and that she had got a case registered against them at Police Station Mughalpura. The said case was registered vide F I.R. No, 503, dated the 29th of August, 1987. This fact has been proved by the defence itself by producing A.S.-I.
Muhammad Saleem of Police Station Mughalpura as D.W.2 who .Brought the register of case F.I.R.
No, 503, dated the 29th of August, 1987, registered at the complaint of Mst. Rehmania wife of Ghaniur-Rehman against Naik Muhammad and Gul Khan. The attested copy of the F.I.R. Was placed on record as D.W.2/A.
19. The version given by Mst. Rehmania (P.W.5) is further corroborated by the evidence of complainant Muhammad Nabi (P.W.9) who stated that Mst. Rehmania's husband Ghani-ur- Rehman was known to him since the last 10 years; that he was abducted by Naik Muhammad appellant and Gul Khan (absconder); that he alongwith his brother Ghulam Sarwar deceased was witness in the abduction case registered at the instance of Mst. Rehmania and that the accused persons were trying to prevent the complainant and his brother Ghulam Sarwar deceased from giving evidence in the said case.
' In his statement under section 342, Cr.P.C. Naik Muhammad appellant has not denied the abduction of Ghani-ur-Rehman and the registration of a case regarding his abduction by his wife Mst. Rehmania but has urged the same as a reason for false implication.
' As a matter of fact the prosecution has successfully proved the motive in this case, through the evidence of Mst. Rehmania (P.W.5) and Muhammad Nabi (P.W.9).
20. The occurrence took place at about 6.25 a.m. And was reported by 8-25 a.m. i.e, within two hours which rules out the possibility of preliminary deliberations because the F.I.R. Was lodged with reasonable promptness and there is no inordinate delay.
21. It is true that out of the eye-witnesses produced by the prosecution, Muhammad Nabi (P.W.9) is a real brother of deceased while Safdar Khan (P.W.10) is a son of the deceased but their close relationship is no reason per se for disbelieving their evidence. It would be a rare phenomenon indeed where witnesses before whom a close relative is being murdered would let off the real assailant and substitute him with a false one.
The presence of` the eye-witnesses at the place of occurrence is natural as they all live together in the same neighbourhood and were proceeding together to their place of work when the occurrence took place.
' The third eye-witness, namely, Sher Bahadar (P.W.8) is not related to the complainant party nor does he have any enmity with the appellant.
22. The eye-witnesses have given a straightforward and consistent account of the occurrence and we have no hesitation in holding that through their evidence the prosecution has proved its case beyond reasonable doubts against the accused.
23. Resultantly, this appeal is dismissed. The sentence of death is confirmed. The sentence of fine is also maintained.