1983 P Cr (PLP)

Raja Muhammad Anwar for Appellant. Malik Muhammad Akbar for the State. Date of hearing : 4th December, 1982. JUDGMENT , MUHAMMAD ZAFARULLAH, J.-On 19th April, 1976 at Degarwela in the abadi known as Sadiqabad located in Rawalpindi city, Muhammad Rafiq and Zarat appellants and Banaras their co-accused attacked Ata Muhammad deceased and Muhammad Aslam P. W. and caused injuries to both of them. Rafiq appellant shot six times with a revolver at Ata Muhammad deceased who died of the injuries later the same day in hospital. Zarat caused simple injuries to Aslam P. W. with a soti. Banaras was empty handed and had only raised a lalkara. A short while before this occurrence, an incident took place at the fodder stall of Muhammad Aslam P: W., where Rafiq appellant used to buy fodder and owed some money to Aslam P. W. On refusal of further credit, hot words were exchanged between Rafiq appellant and Ata Muhammad deceased, a friend of Aslam, who was present at the shop. Rafiq appellant then went away to his house which is about 35 yards away and reappeared armed with a licensed revolver accompanied by Zarat, armed with a soti and Banaras empty handed. Rafiq appellant emptied his revolver at Ata Muhammad deceased in seeking revenge of the earlier insult while Zarat gave a soti blow on the head of Aslam P. W. resulting in lacerated wound 1" x " x bone deep, 3 ' above left ear. Aslam also received an abrasion on the front of left knee, but this may have resulted due to fall on the ground. Five of the shots hitting the deceased entered the body while injury No. 4 was a grazed abrasion in front of the chest left side below the nipple. After recording the evidence the trial Court found Muhammad Rafiq appellant guilty of the charge of murder. He was convicted accordingly and sentenced to death and a fine of Rs. 5;000 or in default to undergo one year R. 1. it was directed that the fine if realised be paid as compensation to the heirs of the deceased. Zarat appellant was acquitted of the charge under section 302, P. P. C. but was convicted under section 323, P. P. C. for causing simple injuries to Aslam P. W. He was sentenced to one year R. I. Banaras their co-accused was, however, acquitted. The case of the appellants has been, of total denial, all along. This is their principal ground in their appeal against conviction and sentence. This judgment will dispose of the appeal as well as the reference seeking confirmation of the death sentence of Muhammad Rafiq appellant.

2. The prosecution cit6d three eye-witnesses but produced only two. Aslam P. W. 9 was injured during the occurrence. The occurrence took place at his fodder stall. He later on, lodged the F.

1. R., which was formally registered at the Police Station as P. H./1 at 7-10 p. m. on 19th April, 1976. It was based on the statement of Aslam P. W. made to Muhammad Zar S.-I., P. W. 13 at 7-00 p. m. in the hospital. The Sub Inspector had gone to the hospital on receiving at telephonic message from the doctor incharge. The deceased was removed from the place of occurrence in a wagon to the hospital in an injured condition but he died there soon after. Zamir P. W. 10 is another eye-witness of the occurrence. He supports the story of Aslam P. W. 9, but the learned counsel argues that he is not worthy of reliance as he is the nephew of the deceased. Muzaffar Khan, the third eye-witness was given up as unnecessary.

3. The prosecution also produced evidence to show that three empties recovered from the place of occurrence by Muhammad Zar S.-I., P. W. 13 in presence of Zamir P. W. 10, were found to have been fired from the licensed revolver P. 5 recovered froth Muhammad Rafiq appellant on23rd April, 1976. This evidence, however, does not inspire confidence(for the reason that even though the empties were recovered from the place of occurrence immediately after the occurrence they were kept in the police station until 25th April, 1976 two days after the revolver seas recovered from Muhammad Rafiq appellant. The fact that the crime empties and a the crime weapon were both m the possession of the investigating Officer at the time, the possibility that these pieces of evidence were interfered with cannot be excluded. Again, the chances of empties ejecting from a revolver are remote. The report of the Firearms Expert is positive, but in view of the above circumstances this is of no consequence.

4. As discussed above, the occurrence took place at the fodder stall of Aslam P. W.

9. He is, therefore, a natural witness. He even received injuries during the occurrence. Therefore, his presence at the spot cannot be doubted. There is no previous history of enmity between this witness and Muhammad Rafiq appellant. In fact they had comfortable relationship between them, which is evident from the fact that this witness used to sell fodder to Muhammad Rafiq appellant on credit. It is true that Aslam' P. W. was friendly towards Ata Muhammad deceased, but there was no previous enmity between Ata Muhammad and Muhammad Rafiq appellant either. The story narrated by Aslam P. W. 9, therefore, cannot be doubted. Zamir P. W. 10 is a nephew of the deceased but this alone need not discount his testimony for the reason that there is no previous bad-blood between him and the appellants. The learned counsel has argued that Zamir's presence at the spot is not proved, but this argument carries no weight as there is no reason for Zamir to tell a lie.

5. The learned counsel for the appellant argued at considerable length that this was not a case of an offence under section 302, P. P. C. but is covered by Exception I of section 300, P. P. C. Relying on the case of Nusrat and 4 others v. The State (P L D 1967 S C 18) he has argued that the first incident and the second incident were separated by 15/20 minutes only and there fore, there was no time for tempers to cool down when the present occurrence took place. The facts of the present case are a title different. In the present case there is no evidence of any beating. All that happened 15/20 minutes before the present occurrence was the exchange of the ho words and a few pushes given to Muhammad Rafiq appellant by At B Muhammad deceased. This does not show that the provocation if any, was grave or even sudden, as Muhammad Rafiq took time for going home, picking up his revolver and collecting friends, before coming back 'for seeking revenge. The appellant's case, therefore, does not come within the exception of section 300, C. P. C.

6. As regards Zarat appellant, the learned counsel has prayed only for reduction in the sentence, but there is no justification for it. It is true that he caused injuries only to a witness, but it was in the course of an occurrence involving a murder and therefore, does not call for any special leniency.

7. In view of the above considerations, the appeal is dismissed. The death sentence of Muhammad Rafiq is confirmed. While calculating the sentence of Zarat appellant, the period spent by him in custody shall be counted as sentence in the light of section 382-B of the Cr. P. C., Zarat is on bail. He shall be taken into custody to undergo his remaining sentence. Death sentence confirmed.