P L D 1984 Lahore 484 (PLP)

Sharifan Bibi.‑(Not produced) 1. (a) Penetrating lacerated wound .7 c. m. x .7 c. m. with inverted margin and collar of abrasion over lower front inner part of left thigh. (b) Penetrating lacerated wound .8 c. m. x .6 c. m. with averted margin over lower inner back part of left thigh. 2. (a) Penetrating lacerated wound .8 c. m. x .7 c. m. with in‑everted margin and collar of abrasion over lower front outer part of left thigh. (b) Penetrating lacerated wound .7 c. m. x .6 c. m. with everted margin over lower back outer part of left thigh. 3. (a) Penetrating lacerated wound with inverted margin measuring 1.3 cm. x .7 cm. over inner front middle part of left forearm. (b) Penetrating lacerated wound with everted margin over back upper inner part of left forearm .1 c. m. x .6 c. m. All the injuries were simple in nature caused by firearm. Naziran Bibi (P. W. 10). "Penetrating lacerated wound 1 c. m. x .8 c. m. over upper right part of abdomen near the umblicus with ineverted margin and a collar of abrasion around." The injury was simple in nature caused by a firearm. SaHvab Bibi.‑(Not produced). (1) Penetrating lacerated wound .9 c. m. x 7 c. m. over upper outer part of left shin with inverted margin and collar of abrasion. A metallic foreign body was palpable under the skin in the left half. (2) Penetrating lacerated wound .8 c. m. x .8 c. m. over upper most part of right thigh on the front with inverted margin and collar of abrasion around. Both the injuries were simple in nature caused by a firearm. P. W. 1 Dr. Muhammad Siddique, Medical Officer, Office of the Surgeon Medico‑Legal Punjab. Lahore, on 26‑3‑1981 at 12 noon held the autopsy on the dead body of Muhammad Latif and found the following injuries on it: ‑ "(1) A circular firearm wound of entry 1 c. m. x 1 c. m. on front left chest 2 c.m. from the mid sternal line. Missile penetrated through the second intercostal space pierced the margin upper lobe left lung, ascending aorta internal surface with a wound 1 " c. m. x l c. m. then entered the hilium lung piercing the lung through and through and causing fracture of the third rib. The pellet was loged under the skin back chest which was extracted. (2) A circular firearm wound of entry 1 c. m. x 1 c. m. on right side from chest below the clavical in the middle. The pellet was found lodged in the head of right humerus. (3) A circular firearm wound 1 c. m. u 1 c. m. on front upper part of abdomen 8 c. m. above the umbilicus. The missile pierced the peritonium and made exit at the back lumber region right side causing wound 1 c. m. and 9 c. m. from the mids spine. Stomach was full of undigested rice. Small intestine contained chyme, and large intestine was empty. Death in his opinion was due to shock and heamorrhage caused by extensive injuries by firearms. The injuries were sufficient to cause death in the ordinary course of nature.

4. The four accused were arrested on 28‑3‑1981. Din Muhammad produced Dang P. 12 which was taken into possession vide Memo. Exh. P.R. attested by P. W. 12 Chiragh Din and Lal Din (given up) Siddiq produced hatchet P.

13. It was taken into possession vide Memo. Exh. P. J. attested by the same aforesaid witnesses. On 29‑3‑1981 gun P. 11 was recovered at the instance of Muhammad Rafiq, accused, from a bush situated in a field, it was made into a sealed parcel vide Memo. Exh. P. G. attested by P. W. 11 Muhammad Ashiq and Bashir (not produced). After completing the investigation, the accused were sent up for trial.

5. All accused denied guilt and ascribed the case to enmity. Accord ing to Muhammad Rafiq accused, it was a blind murder. In his view, deceased's enemies Ahmad Din or Ismail son of Abdullah may have killed him. Moreover, the dead body was found at the threshold of Ismail's house. Further according to Rafiq, the complainant party being influential and inimical towards him, had planted the gun on him and have got him falsely roped in this case. The remaining accused supported the statement of Rafiq who produced Exh. D. 1, a certified copy of Judg ment of the District Tribunal, Lahore, dated 30‑4‑1977, to prove that the deceased was proceeded against under the Goonda Act and had a number of enemies.

6. Trial Court did not accept the defence version. Relying on the evidence of three eye‑witnesses P. Ws. Ghulam Muhammad, Allah Rakha and Mst. Naziran, trial Court came to the conclusion that the prosecution case was satisfactorily proved against Muhammad Rafiq accused only. Acquitting the remaining accused trial Court observed that Din Muhammad and Muhammad Siddiq accused were attributed Lalkara only. The weapons with which they were armed were not said to have been used. Further, Muhammad Ashraf who was armed with a pistol was said to have rushed towards the informant, but he too did not use the weapon. It further observed that had Muhammad Ashraf been there with the pistol, he need not to have rushed towards the informant, because he could have effectively used the weapon. Trial Court also did not rely on the recoveries of the weapons for sound reasons. There was a material contradiction in the statements of P. W. 12 Chiragh Din and the Investi gating Officer. According to the S. I. Din Muhammad and Siddiq accused produced their respective weapons at the time of their arrest, whereas P. W. 12 Chiragh Din had said that these were recovered from their houses. As to the recovery of .12 bore gun of Rafiq, trial Court observed that P. W. 11 Muhammad Ashiq, a witness of its recovery did not belong to the locality. It may, however, be mentioned here that this recovery was effected froth within a bush in an open field and not from within a building, as such the provisions of section 103, Cr. P. C. may not be strictly applic able. Nevertheless since there is no evidence to connect the gun with the commission of the crime, it has rightly been kept out of consideration.

7. Learned counsel for the appellant contended that out of four accused, three have been acquitted and the evidence of the eye‑witnesses has not been considered reliable against them. It was, therefore, unsafe to rely on their testimony against the appellant. He next contended that P. Ws. Ghulam Muhammad, Allah Rakha and Mst. Naziran were interested witnesses and there was no independent corroboration of their testimony.

8. We have considered the submissions. The contention that the ocular testimony has not been relied upon against the three accused, therefore, it should also not have been relied upon against the appellant, was not a sound argument, because the eye‑witnesses have not attributed any major role to the acquitted accused, so much so, that P. W. 8 Ghulam Muhammad who had said in the F. I. R. that Muhammad Ashraf rushed towards him with a pistol, had not mentioned that the pistol had been fired at him. At the trial, not only that P. W. 8 Ghulam Muhammad had not attributed the part which he had in F. I. R. to Ashraf, the other two witnesses namely P. W. 9 Allah Rakha and P. W. 10 Mst. Naziran Bibi also did not attribute this role to Ashraf. With regard to the other two accused, it has been noted earlier that they were said to have raised a Lalkara. It is noteworthy that these circumstances would not affect the prosecution case against the appellant, because the three eye‑witnesses have attributed the fatal shots to Rafiq and none‑Else. The acquittal of the three accused as such would not reflect on the ocular testimony, which has to be weighed and assessed on its own evidentiary value.

9. The sole question for consideration would be whether the eye witnesses are interested witnesses. It may be straightaway mentioned that P. W. 10 Mst. Naziran Bibi has no connection with either party. However, during arguments, learned defence counsel condemned tier evidence, because she was a village Mueen; as such was bound to be under the influence of the influential Zamindars of the village. The argument is not sound at all because the status of a person is no criterion to judge his credibility. It is the evidence of a witness which is to be weighed and assessed, not the status. Evidence of Mst. Naziran suffers from no defect. She is a natural witness. She lives near the place of occurrence. It is evident from her evidence that she has not exaggerated her statement. According to her, on hearing the first shot, she came out of the house. She has not claimed to have witnessed the first shot. She claimed to have seen the deceased being hit by the second shot, just then, stray pellets also hit her and other women. True, the three injured woman have not been produced by the prosecution,' but this did not affect the evidence of Mst. Naziran. Even otherwise, we' find that the women who were given up as unnecessary witnesses have not been produced by the defence, nor the defence requested the Court to examine them as Court witnesses. It is the quality of evidence and not the quantity that matters. Three natural eye‑witnesses have been examin ed. Mst. Naziran, who is an unconnected witness, has corroborated the testimony of the other eye‑witnesses. This is not one of those cases in which non‑prosecution of a witness would lead to a presumption against the prosecution. 9‑A. P. W. 8 Ghulam Muhammad is father of the deceased. P. W. 9 Allah Rakha is a co‑villager. He has no relationship with them. He also has no enmity with the accused. Admittedly Wassan son of Nizam Din was his maternal uncle. . Said Wassan appeared as a witness against Rafique, appellant, in the Goonda Act proceedings against him. Since P. W. Allah Ravha had showed ignorance about these proceedings, Exh. D. 1 order of the Tribunal, dated 30‑4‑1977 was produced. A reading of this document would show that Wassan was a witness in that case, but this will not help the prosecution to establish direct enmity between P. W. Allah Rakha and Rafique, appellant. Said Wassan prosecuted Rafiq appellant under section 448, P. P. C. Ghulam Muhammad P. W. was suggested whether he appeared as a witness in that case, which he denied. The defence has not proved it to the contrary. P. W. Ghulam Muhammad denied whether Wassan son of Nazim Din was a witness in the present case. Recovery Memo. Exh. P. C. is attested by Wassan son of Noor Muhammad and not Wassan son of Nazim Din, as such Wassan, the maternal uncle of P. W. Allah Rakha is not a witness in this case. No doubt Rafiq, appel lant, got a case registered under section 307, P. P. C. against Sadiq a given up eye‑witness, P. W. Chiragh a recovery witness and three others, in which the accused were acquitted. This case had nothing to do with P. Ws. Ghulam Muhammad and Allah Rakha. There was another litigation between P. W. Chiragh and Rafiq, appellant. Security proceedings were drawn up against them, but this also did not directly concern P. Ws. Ghulam Muhammad and Allah Rakha. Another case was got registered by Rafiq appellant, against the four sons of Chiragh P. W. under section 324/325, P. P. C. but this again did not concern the two eye‑witnesses. Admittedly, one Hassan Din is brother‑in‑law of Chiragh P. W. Daughter of said Hassan Din was the wife of P. W. Ghulam Muhammad's son. It thus follows that like P. W. Allah Rakha; P. W. Ghulam Muhammad had also no direct enmity with Rafiq appellant. We are thus of the view that these two eye‑witnesses had no motive to falsely rope in the appellant on a capital charge. Their evidence is corroborated by the testimony of Mst. Naziran P. W. 10, who is completely unconnected with either side. We, therefore, see no reason to disbelieve the ocular testimony in this case. The location and number of injuries suffered by the deceased also indicate that he was fired at more than once. This further lends support to the testimony of the eye‑witnesses.

10. In the end, it was contended that the motive for the crime was considered too weak by the trial Court because, according to the prosecu tion, the quarrel which took place one month before the occurrence over 14 marlas of land was patched up by Ali Muhammad and Ismail but these two persons were not produced. Trial Court further observed that admittedly, the Investigating Officer did not collect any evidence with regard to the possession of this land. According to the learned counsel, in fact, the accused were in its possession. Their Haveli was also close by. It may be mentioned at the outset that it is for the first time during argu ments that possession of the appellant has been alleged. Neither Rafiq nor his co‑accused claimed ownership or possession over this land at the trial. There is also no suggestion to any of the witnesses with regard to its possession or ownership. True, prosecution has also not produced any documentary proof of its ownership but the statement of the complai nant was consistent in the F. I. R. and at the trial which remained unchallenged that they purchased this land from one Khushi Muhammad. Explaining as to why the Investigating Officer did not collect any documen tary proof with regard to the possession of land, he said that since be had interrogated several persons of the locality who maintained that the complainant party was in its possession, be, therefore, did not consider it necessary to collect documentary evidence. We find no fault in the explanation. As such, the submission that there was a sudden fight over the land dispute is not supported by any evidence. In fact, the case is overwhelming against the appellant that he had come prepared with a gun which he fired at the deceased who was not only unarmed, had even tried to escape but was hit at when he reached in front of the house of one Ismail where he fell dead and during the course of this transaction, the appellant also caused firearm injuries to four women out of whom Mst. Naziran bore testimony against him. We are, therefore, of the view that the prosecution has satisfactorily proved appellant's guilt. Dismissing his appeal, we confirm the death sentence because we find no mitigating circumstances, in this case. M. Z. M. Appeal dismissed.