' MALIK MUH AMMAD ASLAM KHAN, J.-Mehrban appellant was convicted and sentenced to death under section 302, A. P. C. By the Sessions Judge, Mirpur on 6.4-1973 for shooting to death one Lal Khan with a 12 bore gun on 19th May 1972 at 7-30 a.m.
2. The motive for the murder, as put forward by the prosecution, was that a year before the incident, one Mushtaq belonging to the faction of the appellant and his relative, was wounded with a pistol in a quarrel over a piece of land and Lal Khan deceased was one of the persons challaned in that case. The appellant killed Lal Khan for avenging the incident of Mushtaq. The story, as unfolded by prosecution, is that Lal Khan was an army pensioner and had been running a small shop in his house from whom, the appellant used to purchase on credit etc. Prior to Mushtaq's incident. The deceased had been recalled by the Army about six months ago and had come home on leave on the 16th of May 1972. The appellant, also an army personnel too had come home on a day's leave on the 18th of May 1972. On the morning of 19th May 1972, the appellant sent his brother's wife, Mst. Maqsooda Begum, to the deceased, a next door neighbour, with the message to come to his house to settle the shop accounts. As the deceased did not agree to going to his house, the appellant himself came to the house of the deceased and after checking the register, went home to bring the outstanding amount of Rs,
40. But instead of bringing the debt money, he appeared with a '12 bore gun while the deceased was engrossed with his accounts register in his courtyard.
On seeing the appellant coming with a gun, deceased's wife, Mst. Fatima, his sister Mst. Karim Jan and his cousin Aziz Khan P. Ws. Alerted the deceased about the appellant's having appeared with the gun but the appellant gave no chance to the deceased and shot him on the spot before he could escape. After being hit by the shot, the deceased ran towards the verandah of his house where he fell down. The gun fire attracted Soofi Said Mohammad P. W. a village school teacher, and Mst. Mashhoor Jan, a neighbour. On his enquiry, Said Mohammad was told by the deceased that he had been fired at by the appellant with a gun. The deceased then told him and those present, to recite `kalma' and he himself died while reciting the same. F. I. R. Was lodged with the police on the same day by one Chunnu Khan. The police recovered the gun with an empty cartridge at the instance of the appellant (gun belongs to his father). The blood-soaked clothes of the deceased as well as blood-stained earth was seized by the police from the person and verandah of the deceased respectively.
3. Prosecution examined Mst. Fatima Jan, Mst. Karim Jan, Mohammad Aziz Khan as eye-witnesses and Soofi Said Mohammad School Teacher, who had reached the scene of occurrence immediately after the gun-fire and before whom the deceased had made the 'dying declaration naming the appellant as the person who had shot at him. Mst. Mashhoor Jan was declared as hostile witness but was tendered for cross-examination. All that could be extracted from her in cross-examination was to the effect that Aziz Khan P. W. Was not present on the scene when she reached there. Dr. Ghazanfar Ali, who performed the post-mortem examination and gave the result Exh. P. G., stated the deceased had gunshot wounds on the right side of the chest which had caused considerable damage to his lungs resulting in his instantaneous death. He also found semi-digested food material in the stomach and little faecal matter in his large intestines.
According to him, the cause of death was shock and extensive haemorrhage (internal) resulting from the intensive damage to the right lung which was punctured and converted into a pool of blood.
4. When examined, the appellant denied that he had killed Lal Khan and expressed his ignorance about the incident alleging that he had been implicated because of enmity. However, as appears from the cross-examination, the suggestion put forward by the defence was that the deceased had illicit relations with P. W. Aziz Khan's wife and it was Aziz Khan who had killed him in the verandah. Some defence evidence was also led to show that Mst. Fatima had told the defence witness Mohammad Asghar that the deceased had gone out to urinate at `Sehri time and some body had shot him to death about whom she did not know. The trial Court accepting the prosecution version convicted and sentenced the appellant to death as stated above. On reference and appeal, the High Court upheld the judgment and order of the trial Court and rejected the appeal of the accused appellant vide its judgment dated 6-10-1973. It is against this judgment and order of the High Court that an appeal was lodged before the then Judicial Board which appeal was later on transferred to the Supreme Court on its inception and the cessation of the Judicial Board.
5. The learned counsel for the appellant has contended that the original F. L R. Was written by one Chunnun Khan which not contain the name of the appellant. That report, according to him, was destroyed and another report was written afterwards implicating the appellant and other persons.
It has rightly been pointed out by the learned Advocate-General that this point was neither raised in the High Court nor in the memorandum of appeal filed before the Judicial Board and as such, it cannot be agitated at this stage. We quite agree with it, but otherwise too, do not find any substantial support from the record to the alleged substitution of the written F. I. R. Finding this argument without any substance, we, therefore, reject it.
6. Another point pressed by the learned counsel for the appellant is that the alleged eye-witnesses, Mst. Fatima Jan, Mst. Karim Jan and Mohammad Aziz Khan are closely related to the deceased and their factional enmity with the appellant is established. On this basis it is argued that these witnesses should not have been relied upon without material external corroboration.
' We have gone through the judgment of the High Court and find that this aspect of the case has been thoroughly discussed and properly considered, by the learned Judges. The mere fact that a witness is related to the deceased, is not per se enough to discredit the witness if it is found that in the circumstances of the case such a witness's presence and witnessing the occurrence was natural. Similarly, an eye-witness evidence cannot be rejected outright merely because such a witness belongs to one party or the other involved in factional dispute; if otherwise such a witness establish his veracity. Of tours= these factors may put the Court on alert for close scrutiny of the evidence o such witnesses, but this by itself is not sufficient to discard their evidence otherwise they are found to be witnesses of truth. In the instant case, w find that Soofi Said Mohammad, a School Teacher belonging to other baradari, is quite an independent witness. He neither belongs to the village of the parties nor to any of their faction. His presence is , natural as he w. Posted in the school of that village. This witness has fully supported the prosecution version as given by the eye- witnesses, before whom not only the prosecution eye-witnesses had named the appellant as the culprit but the deceased had also indicated the appellant as the person who had shot at hi with the gun. Apart from this unimpeachable evidence we have the corroborative medical evidence, the motive, the recovery of the blood-stained earty from the verandah, which the Serologist has found not only human blood but also of the same group as the blood stains on the clothes of the deceased In the presence of the above-mentioned evidence, we cannot agree with the contention of the learned counsel for the appellant that there is no corroboration to the statement of the eye- witnesses even if at all such eye-witnesses need external corroboration. The evidence led by the prosecution, in our view, has been rightly relied upon for arriving at the conclusion that it was the appellant alone who had shot to death the accused on the morning of 19th of May 1972, in the manner as stated by the prosecution witnesses. Thu finding no force in this plea of the learned counsel for the appellant, we repel it.
7. Another contention of the learned counsel for the appellant is that the case is not free from doubt. For this, the following factors have been listed:-
(i) that as the blood-stained earth was recovered from the verandah the probability is that Lal Khan was killed at night while asleep by some unidentified person while he was in the verandah and not in the courtyard at 7-30 a.m. As narrated by the prosecution witnesses. Support is sought to this averment from the report of the doctor that the death was instantaneous. On this basis, it is argued that it was not possible for the deceased to have run to the verandah after receiving the gun shot wound.
' After considering the evidence of the doctor, and the post-mortem report, we find little force in this plea. Neither it was suggested in cross-examination nor any medical authority has been cited before us to show that after receiving such a gunshot wound, the deceased could run even up to his nearby verandah from the close courtyard. All the eye-witnesses and Soofi Said Mohammad, School Teacher, are unanimous on the point about the time, person and place, where and by whom the deceased was shot at. Therefore, the story sought to be built by the defence counsel before us on this basis that some unidentified person had killed the deceased in the verandah cannot be accepted.
(ii) That since the stomach of the deceased contained, according to the statement of the doctor, some semi-digested food material and large intestine faecal matter, the death occurred at night and not at 7-30 a.m. As alleged by the prosecution. The learned Advocate. General has rightly pointed out that from these two facts, it cannot be reasonably argued that the death of Lal Khan took place at night as the doctor had given the definite view that the death had taken place within 36 hours of the post-mortem which substantially tallies with the time of the death given by the prosecution witnesses. Moreover, Dr. Ghazanfar Ali was never cross-examined by the defence about this matter. We also find that the doctor has shown the deceased as a stout and healthy person of 42 years who, according to the prosecution version, had taken his meals early in the morning. According to Mst. Fatima P. W. Lal Khan had taken his meals before the sunrise. The occurrence is of 19th May and according to the diary of that year, the time of the sunrise in Lahore on that date was 5-04 hours, in the morning. If we add four minutes more in consideration of the distance of place of occurrence, then apporoximately, the morning food must have been taken by the deceased before 5-08 hours in the morning. The death is stated to have taken place at about 7-30 a.m. Thus for a stout and healthy man, who had taken his meals before the sunrise in the month of May the mere presence of some faecal matter in the large intestines or some semi- digested food material contained in the stomach, does not repudiate the prosecution version that Lal Khan had died at the time stated by the prosecution witnesses. It may also be stated that the eye-witnesses are simple village folks who are not expected to give exact timing of the occurrence.
The learned Advocate-General has also referred to Modi's Medical Jurisprudence, p. 136, where the author has expressed the following view :- ' `It must also be remembered that the process of digestion in normal, healthy persons may continue for a time after death'."
' The victim is reported to be of stout build and of 42 years army man. Therefore, in his case the process of digestion could be expected to continue for some time even after his death to account for the semi-digested food material. In view of these factors, we cannot agree with the contention of the learned counsel for the appellant that the death of Lal Khan had taken place at night at the hands of some unidentified person especially when the ocular evidence is conclusive that the time of occurrence was 7-00 or 7-30 a.m.
8. Another point which has been much stressed upon by the learned counsel for the appellant is that between the death sentence passed by the Sessions Judge and the final hearing by the Supreme Court, a period of more than four years has elapsed which, according to him, justifies the commutation of death sentence to that of transportation for life. It is also contended that the President had commuted the death sentence of the appellant thereby giving him expectancy of life which should not be taken away now by maintaining the death sentence passed by the Court below.
' The learned Advocate-General has controverted the fact that the President had commuted the death sentence of the appellant. We also, at the request of the counsel for the appellant, called for the available file from the Secretary Home and perused it. This file does not show that any order was issued or communicated to the appellant commuting his death sentence. Therefore, we find no support for the contention of the learned counsel for the appellant about the death sentence of the appellant having been commuted by the President and thereby creating an expectancy of life for the appellant.
' So far as the commutation of death sentence on account of delay is concerned, the stand of learned Advocate-General is that delay by itself is not a D legal or justifiable ground for a Court to commute the death sentence to transportation for life. For this proposition he has referred to PLD 1951 FC 142, 1973 SC M R 324, 1973 SCM R 344 and 1974 SCM R 324. The learned counsel for the appellant has referred to 1973 SCMR 300. The authorities cited by the learned Advocate-General lay down the general principle that mere lapse of long time between the occurrence and the sentence of death does not entitle the culprit to a lesser sentence of life imprisonment, instead of death sentence, if there are no other mitigating circumstances and the case under section 302, A.
P. C. Is proved against him. These authorities in our view lay down the correct principle in this respect and we respectfully agree with him. 1973 SCMR 300 cited by the learned counsel for the appellant is distinguishable as in that case, the High Court had altered the death sentence passed by the Sessions Judge under section 302, A. P. C. To 7 years' rigorous imprisonment under section 304, A. P. C. On appeal, the Supreme Court restored the conviction of the accused under section 302, P. C. But in view of the fact that the High. Court had given the accused the expectancy of life, the death sentence was altered to that of sentence for transportation. Such is not the case here and as such 1973 SCMR is not helpful to the appellant.
' We have also anxiously gone into the facts of this case and the authorities cited by the learned counsel for the parties. Our view is that this is not a case where the life expectancy was given to the appellant, as both the Sessions Judge and the High Court had passed the sentence of death against the accused. The delay in the final disposal of the accused's case was due also to the fact that for a pretty long time neither the Judicial Board nor its successor, the Supreme Court, were completed. We cannot therefore, agree to the argument of the learned counsel for the appellant that because of the delay in the final disposal of the appeal, it will be in the interests of justice that the death sentence of the appellant be substituted for that of life imprisonment. If a person commits cold-blooded murder for which there are no mitigating circumstances, he cannot escape the punishment of death if the case is proved against him under section 302, A. P. C. Merely on the ground that there had been delay in final disposal of the case. Because in law, if a case is proved under section 302, A. P. C. Against a culprit and there are no extenuating circumstances for awarding lesser sentence, the normal sentence provided in E law is death sentence and delay in the disposal of the case, per se is not a. Legal ground for awarding lesser sentence. In the present case, we find that the appellant with a view to wreaking vengeance had committed cold-blooded murder without any provocation or justifiable cause and, as such, we do not feel persuaded to interfere in the discretion of the Courts below who have awarded death sentence to appellant.
However, if so advised, the appellant can approach the proper executive authority to consider this fact for commutation of his death sentence as provided under law. So far as this Court is concerned, we find little force in the plea of the learned counsel of the appellant and accordingly repel it.
9. The upshot of the whole discussion is that finding no force in the appeal, we reject it.