1. BASHIR A. MUJAHID, J.---Arshad Ali alias Achhu has challenged judgment dated 26-3-1996 passed by learned Additional Sessions Judge.. Gujranwala, whereby he was convicted under section .302, P.P.C. for commission of 'murder of Muhammad Rasheed and sentenced to death and was ordered to pay compensation of Rs,50,000 under section 544-A, Cr.P.C. to the legal heirs of Muhammad Rasheed, in default of payment of the same, he was directed to undergo six months'
2. R.I.
3. The brief facts of the case are that F. I.R. No,151 Exh.P.H. was recorded at the . Police Station on the statement of Muhammad Rafiq, P.W.10, with Hameed Ullah, A.S.I. P.W.12 at 9.00 p.m. on 9-11-1995 about the occurrence took place at 2.30 p.m. on the same day wherein it was stated that he was cultivator by profession and had purchased rice straws (;),1,7) from Noor Din Gujjar and in order to 'check the same, two days before he alongwith his brother's son Muhammad Rasheed (deceased) had gone where Arshad alias Achoo (appellant) who was residing with Ghulam All had a quarrel .with Muhammad Rasheed alleging that he had come to spy against them as Ghulam Ali had enmity with Barkat Ali Rajput deceased gave beating to the appellant and Muhammad Arshad had extended threats 'to Muhammad Rashid that he will take revenge of this insult. On 9-111995 at 2.30 p.m. the complainant alongwith Muhammad (deceased) and Faqir. Muhammad and Muhammad Akram, P.W.11 were collecting rice straws when Arshad Ali alias Athoo accused armed with 12-bore shotgun double barrel arrived there and after abusing Muhammad Rasheed raised Lalkara that he had come to take revenge. Muhammad Rasheed returned the abuse. Arshad alias Achoo all of a sudden fired at Muhammad Rasheed hitting at his front left side at abdomen who after receiving the injury fell on the ground. The complainant and the P. Ws. rushed towards him and the accused/appellant fled ,away brandishing his gun. Muhammad Rasheed was taken to R.H.C. at Qila Deedar Singh in, injured. condition where he was examined by the Medical Officer and was referred to Civil Hospital, Gujranwala due to his serious condition where he succumbed to the injuries at 6.55 p.m.
4. Hameed Ullah, P.W- 12 after registration of the case arrived at D.H.Q, Hospital Gujranwala and took the dead body of Muhammad . Rasheed into possession and prepared inquest report through memo. Exh. P.J and recorded the statements of the prosecution witnesses under section 161; Cr.P.C. and handed over the dead body to Muhammad Rafiq F.C, P.W.1 for postmortem examination. On 10-11-1994 he arrived at the place of occurrence and secured the blood-stained earth through memo. Exh.P.0 and prepared the site plan of place of occurrence Exh.P.K. On the same day, at Kot Ladha Muhammad lqbal, Constable handed over him last worn clothes of the deceased which were taken into possession through memo. Exh.P.B. On 16-11-1994 he arrested the accused, who on 17-11-1994 while in police custody led to the recovery of gun p.3 with 5 live cartridges P.4/1-5 .which were taken into possession through memo. Exh.P.F. He completed the investigation and submitted the challan. The trial Court framed the charge. The accused denied the allegations and claimed trial During the trial, the prosecution examined as many as 14 witnesses to prove the, guilt of the accused.
5. Dr. Shabbir Hussain P.W.8 medically examined Muhammad Rasheed in injured condition on 9-11- 1994 at 4.15 p.m: and found four injuries through medico-legal report Exh.P.G.
6. Dr. Rao Asif All Khan, P.W.3 on 10-11-1994 conducted the post-mortem examination on the dead body of Muhammad Rasheed and found the following injuries on the dead body:-
(1) Multiple fire-arm lacerated wound of entry in area measuring 20 x 8 c.m. in circumference, 15 in number each measuring .3 x .3 c.m. alongwith a central mass entrance measuring 5 x 4.5 c.m. with an abrasive collar on the medial side, on the left side of abdomen. Abdominal contents were coming out from the central mass entrance.
(2) A glancing fire-arm lacerated wound with blackening of margin measuring 13 c.m. x 3 x muscle deep on the front and inner lett forearm lower part.
7. (3)A glancing fire-arm lacerated wound measuring 5 c.m. x 1.5 c.m. x skin deep on the back of left hand, starting from the base of left thumb to the front of wrist.
8. In the (Onion of the doctor, the cause of death was due to excessive loss of blood causing shock, which was sufficient to cause death in ordinary course of life. All injuries were ante-mortem and caused by fire- arm. Probable time between injuring and death was 4/5 hours and between death and post-mortem was about 15 hours.
9. The ocular account was furnished by Muhammad Rafiq, P.W.10 and Muhammad Akram, P.W.11.
10. Muhammad Rafiq was complainant of the case and paternal uncle of the deceased. He supported the version of the F.I.R. and also stated the motive of the occurrence. Muhammad Akram, P.W.11 supported Muhammad Rafiq complainant P.W.10 as an eye-witness of the occurrence. He stated that on the day of occurrence he alongwith Muhammad Rafiq and Muhammad Rasheed deceased and his father Faqir Muhammad were present at the place of occurrence, collecting the rice straws when appellant fired at Muhammad Rasheed deceased and fled away from the spot.
11. Muhammad Rasheed was taken to the hospital by him. his father and Muhammad Rafiq complainant and thereafter shifted to Civil Hospital, Gujranwala where he succumbed to the injuries. Muhammad Rafiq P.W.1 had attested the recovery memo. Exh.P.A whereby the last worn clothes of the deceased were taken by the Investigating Officer. Zafar Iqbal, P.W.4 had prepared the site plan of the place of occurrence. Tariq Mahmood, H.0 P.W.5 had kept the sealed parcel is safe custody in the police Maalkhana. Hafeez Ullah, H.0 P.W.6 had deposited the sealed parcels of blood-stained earth and of gun at the office of Chemical Examiner and Forensic Science Laboratory, Lahore. Saif Ullah, P.W.7 had attested the recovery memo. of Exh.P.E. whereby the accused had got recovered gun used in the commission of crime. Muhammad Iqbal, F.0 P.W.9 escorted the dead body for post-mortem examination. Syed Mazhar Ali, P.W.13 was Fire-arm Expert posted at Forensic Science Laboratory. Lahore and examined the double barrel shotgun and verified the report Exh.P.W.13/1 which was in working condition. Mst. Aqeela Tariq Bhutta was examined as P.W.14. She had examined the blood-stained earth and issued report Exh. P. L. The statement of the accused/appellant was recorded under section 342, Cr.P.C. towards the end of trial, who denied the allegations and claimed his innocence and false involvement and in reply to Question No,8 as to why the case against him and P.Ws. deposed against him, he replied as under:-- "Ilyas alias Tonda resident of Soorat Abad is maternal nephew of Barkat Ali mentioned in F.I.R. My maternal grand parents and my paternal grand-mother were residents of village Bago Dial, Police Station Narong Mandi, District Sheikhupura, Akhtar and Asghar since murdered son of Sharaf Din are my maternal cousin. A sister of said Akhtar is married to my brother. Karamat son of Fareed Bukhsh is first cousin and brother-in-law of Akhtar and Asghar. Akhtar etc. have land dispute with Akbar Ali etc. Karamat Ali brother in law of Akhtar etc. was helping Akbar Ali etc. Karamat Ali made a murderous assault on said Asghar as a result of which I sustained injuries. Thereafter, Asghar was murdered by Karamat Ali. I was pursuing the murder case of Asghar alongwith Akhtar. The paternal grand mother of Ilyas Tonda namely Mst. Sobi also belongs to village Bago Dial. Mushtaq is the son of paternal aunt of Karamat Ali and is related to Ilyas. Tonda. Ilyas Tonda was involved in numerous cases, and has committed various crimes alongwith Mushtaq etc. in their area and Mushtaq were committing crimes in the company of Ilyas Tonda in his area. Ilyas. Tonda was helping the accused in the murder case of Asghar at Sheikhupura. I had given beating to Ilyas Tonda at Sheikhupura and also in village Bago Dial and forbade him for pursuing the case of Karamat Ali as he was visiting our village in the company of notorious persons and even at Sheikhupura. Karamat Ali was sentenced to death for the murder of Asghar by the Additional Sessions Judge, Sheikhupura and Ilyas Tonda was heir of Karamat Ali threatened me to punish me because Karamat Ali has been sentenced due to my efforts. Ilyas Tonda, Mushtaq and Barkat Rajput abovementioned have involved me falsely in this case in connivance with the complainant party. I was not present at the spot nor any gun was recovered from me. Police had challaned me against facts after arresting from my village." He also examined Manzoor Ahmad, Akhtar Ali and Muhammad Yaqoob as D.W- I, D.W-2 and D.W-3 respectively in his defence to prove his innocence. The trial culminated into conviction of the appellant as mentioned above. He has challenged his conviction and sentence through Criminal Appeal No,320 of 1996, while the trial Court has sent up Murder"
12. Reference No,260 of 1996. Both the matters are being decided by this judgment.
13. Learned counsel for the appellant contends that it was an unwitnessed occurrence taken place sometime in the evening and the appellant has been implicated falsely due to enmity; that the F.I.R. was lodged with an unexplained inordinate delay; that Muhammad Akram, P.W.11 is real nephew (sister's son) of Muhammad Rafiq whose brother's son Muhammad Rasheed was murdered). They are closely related inter se and to the deceased, but their testimony has not been corroborated from any other independent source and conviction cannot be maintained on mere ocular account furnished by these two witnesses who were interested and inimical towards the appellant; that recovery of weapon of offence has got no evidentiary value as no empty was taken into possession from the spot; that the medical evidence is in conflict with the ocular account As per medical evidence, three independent injuries were found available on the deceased while both the eye-witnesses stated that the appellant caused only one fire-arm injury; that according to the medical evidence the stomach of the deceased was- empty which shows that he was murdered sometime late in the evening and nobody was present at the spot; that from the site plan no heap of rice straws 014 was shown at the spot which creates serious doubt about the prosecution case.
14. 'The motive alleged has not been proved.
15. Conversely, the appeal has been opposed by the learned counsel for the State. who has supported the impugned judgment.
16. Heard. Record perused.
17. The alleged occurrence took place, at 2-30 p.m. Muhammad Rasheed in injured condition was taken to Rural Health Centre, Qila Deedar Singh. where he was medically examined at 4-45 p.m. by Dr. Shabbir Hussain, P.W.8 and was referred to D.H.Q Hospital Gujranwala due to his serious condition' where he succumbed to the injuries at 6-55 p.m. on the same day i.e. 9-1 1-1994 and F.I.R. was got recorded at the police station at 9 p.m therefore, wefeel that first. preference for the complainant was to make efforts to save life of the victim and 'the conduct of the prosecution witnesses was natural and the delay 'it any In lodging the F.I.R. has been sufficiently explained. It was a daylight occurrence and the appellant is sole nominated accused in the F.I.R. Both the witnesses Muhammad Rafiq P.W.10 and Muhammad Akram, P.W.11 are consistent in their statements as appellant was working as Gunman of Ghulam Ali and some quarrel has been taken place between the deceased and the appellant two days before and the appellant to take revenge of his insult had committed this occurrence therefore the motive alleged has been proved by the complainant Muhammad Rafiq, P. W.10 and Muhammad Akram, P.W.-11. They have no previous enmity against the appellant for his false implication' or substitution by letting off the real culprit.
18. Learned counsel for the appellant has made reference to 1985 SCMR 1995 (Sheikh Muhammad v.
19. Ghulam Muhammad ) and 1985 SCM R 410 (Saif Ullah v.State) to argue that if the eye-witnesses are closely related inter se and to the deceased their statements cannot be relied, upon to maintain the conviction without independent corroboration. There is no cavil to the proposition laid down by the Honourable Supreme Court but the eye- witness must have some animosity against the appellant for his false implication to seek corroboration from independent source to their testimony. In the instant case eyewitnesses have not any kind of animosity against the appellant. Learned counsel for the appellant has vehementally argued that there is contradiction in medical evidence and the ocular account as according to the medical evidence 3 independent injuries are found on the deceased and injury No,2 in M.L.R. is lacerated wound with blackening which is result of fire shot from close range while injury No,1 which is 20 c.m. x 8 c.m. has been caused from a long distance and both .these injuries are result of two independent shots while according to the eye- witnesses only one shot was fired by the appellant, therefore, in' view of the clear contradiction of the ocular testimony with medical evidence the prosecution case is doubtful, 'but we do not find any such contradiction in the ocular account and in the medical evidence. In our considered view all the injuries are result of one shot which was fired from left side received by the deceased at back of his left hand and then causing lacerated wound on inner side of his left arm at lower' part pierced into left side of his abdomen. The wound at forearm being closer to the assailants has blackening, the pellets scattered before hitting the abdomen which was at more distance from the assailants, therefore, the arguments of the learned counsel that the injuries were caused by more than one shot has no force. We do not find any material discrepancy in the statements of the eye- witnesses Muhammad Rafiq P.W.10 and Muhammad Akram P. W.11. They stood to the test of lengthy cross-examination but nothing has been brought by the defence in favour of the accused from their statements. Their presence at the spot was natural and has been explained by them. Not mentioning of heap of rice straws in the site plan is not fatal to the prosecution case. After deep re- appraisal of the evidence, we are of the considered view that the prosecution has established its case against the appellant beyond any shadow of doubt by ocular account furnished by Muhammad Rafiq P.W.10 and , Muhammad Akram P.W.11 which is fully corroborated by medical evidence and the motive, and do not find any reason to interfere in the conviction recorded and sentence awarded against him. Resultantly, Criminal Appeal No,320 of 1996 filed by the appellant is dismissed. His conviction and sentence is maintained. Death sentence of Arshad Ali alias Achhu is confirmed.
20. Murder Reference is answered in affirmative.