P L D 1958 (W (PLP)

Ghulam Nabi (P. W. 6) said that he was at his shop when this incident took place. His attention was drawn to it when a shot rang out. He looked up and saw one of the four persons in front of his shop falling down. He saw the accused as well, who was at a distance of about 10 or 15 paces. His face was not muffled He fired three more shots from his double barrelled shot‑gun which hit Fazal Muhammad. He then left the scene, An identi fication parade was held on the same day at 4 p m. and this witness picked up the accused as the person who had fired at the deceased and others. What this witness said which could benefit the accused was that. (a) Mehrullah and others went to the otaq of Sardar Allah Rakhyo before lodging the report. This conveys a suggestion that Sardar Allah Rakhayo was consulted and charge against Qutub was preferred on his advice; (b) the accused while he was being taken from Sardar Jaffar Khan's otaq to the police station passed in front of his shop and this afforded an opportunity to him to identify him beforehand; (c) he made enquiries from Hayat and Fazal Muhammad as to who the accused was and they said that they did not know him but they would tell that later on. This enquiry was obvi ously meaningless because this witness says that he himself saw the accused firing at the deceased and later identified him. If he was to his knowledge the author of this crime there was no meaning in enquiring as to who had killed the deceased. From the medical evidence it transpires that the deceased died of gunshot wounds which were present on his body. He had fifteen pellet wounds in the back side of the chest and other places. As the injuries were in the back, he must have been shot from behind as the witness indicated. Fazai Muhammad had eight pellet wounds on right hand and left forearm. Misri sweeper and Faiz Muhammad a boy of about ten years were also examined. They had pellet wounds too but they were not produced for giving evidence in Court. Ghu~am Mustafa, Police Sub‑Inspector (P. W. 9) said that he was sent 'after the accused when the occurrence was reported in the Police Station but before the writing was complete. While he was on his way he learnt that the accused had gone to the otaq of Sardar Jaffar Khan. He went there and found him sitting in a garage, the door of which was closed but not chained from inside. He had a double barrel shotgun which gave smell and contained deposits of gun‑powder in the barrel which indicated that it had been recently used. There were three shells of spent cartridges with him as well. The accused denied the commission of this offence and said that he too went to the Court of Session in connection with the same case in which Mahmood deceased was interested and saw him there. He started for the residence of Sardar Jaffar Khan and was arrested from there. He denied that he was at the time of his arrest in possession of the shotgun stated to have been recovered from him. He said that the witnesses including the Police Officers had given evidence against him out of enmity. He further said that Sardar Allah Rakhayo and Sardar Jaffar Khan had enmity with each other, and as he belongs to Sardar Jaffar Khan's camp and the deceased and Hayat belonged to Sardar Allah Rakhayo's group, he has been charged at Sardar Allah Rakhayo's instance and has been prosecuted with his support. He produced six witnesses in defence. The presence of two of them Barkhurdar (D. W. 4) and Tagio (D. W. 5) near the scene of occurrence was admitted by Hayat (P. W. 4). All the defence witnesses said that they heard and saw the firing but the person who fired at the deceased and left the scene of occurrence had muffled his face and was not in fact the accused Qutub who was under trial. Out of the six defence witnesses. Barkhurdar and Tagio, whose presence at the scene of occurrence was admitted by Hayat (P. W. 4), belong to Sardar Allah Rakhayo's faction. The deceased had been shot dead at about 9 in the morning on a main road in front of Ghulam Nabi's shop at a place where other people were moving about. Ghulam Nabi, who is in no relationship with the deceased was in a position to witness the occurrence, saw the tragedy from beginning to end and deposed to it in Court. He said in clear terms that it was the accused Qutub who had fired four shots, two of which hit the deceased and the other two struck Fazal Muhammad and two other persons. He did not know the accused by name and had no acquaintance with him otherwise, but he picked him up in the identification parade when he was presented to him amongst ten other strangers. This witness later on made a few statements which could be used for the benefit of the accused. If he had not seen the accused committing this offence he would not have sworn to his guilt in the manner in which he did. His evidence alone is enough to condemn the accused. We have also the evidence of three other witnesses whose presence on the scene of occurrence cannot be denied. They are Hayat, Mehrullah and Muhammad. They have been mentioned in the F. I. R. and their presence has been admitted by Ghulam Nabi as well. One of them Fazal Muhammad bore firearm wounds on his hand which is a badge of his presence on the scene of occur rence at the time of the commission of this offence. They in clear terms said that they saw the accused firing at the deceased and also at other members of deceased's party. The story of the muffled face was invented to cast suspicion on the identity of the accused. None of the witnesses mentioned in the last two preceding paragraphs said that the face of the assai lant was muffled. The accused is so well known to Mehrullah, Hayat and Fazal Muhammad that even with muffled face he could not have evaded detection by them. There is also most clear and cogent evidence of the existence of motive which has not been denied by the accused. This murder was in retaliation of Laldino's murder whose death the accused, who is Laldino's sister's son, was honour bound to avenge. There is also on the record the evidence of Ghulam Mustafa Sub‑.Inspector of Police that within half an hour of the occurrence the accused was brought under arrest, and at the time of his arrest he was in possession of a double barrel shotgun. This was the type of the gun which Ghulam Nabi and other witnesses had attributed to the perpetrator of this crime. That gun, at the time of seizure, gave smell which indicated that it had been freshly dis charged, and contained deposits of powder in the barrel which also pointed to the same conclusion. There is no ground to suspect that this Government official is abusing his power and authority and is giving false evidence to implicate an innocent person. Nothing has been brought on record to show that Sardar Allah Rakhyo had a hand in this affair. If he was interested in securing the conviction of the accused he would not have allowed two of his supporters, Barkhurdar (D. W. 4) and Tagio (D. W. 5) to give evidence in his favour as defence witnesses. There is not only ample strength in the prosecution evidence to sustain a verdict against the accused, but in our view no better evidence could, in the circumstances of this case, have been adduced against the accused. The witnesses who could speak to this occurrence have been produced and their evidence in so far as the actual firing on the deceased by the accused is concerned, is consisent and above reproach. We are satisfied that the accused was seen by the three companions of the deceased in whose presence he was fired upon. He was also seen by Ghulam Nabi in front of whose shop the deceased was killed. The accused was arrested within half an hour of the commission of this offence with the weapons of offence in his hand. Those weapons, the gun and three spent cartridges, bore marks of their having been recently used. These are pieces of evidence which place the guilt of the accused on firm foundation. The learned counsel for the accused said with great emphasis, that the way in which the accused has been said to have conducted himself after the offence is incompatable with the conduct of a person guilty of such an offence. It has been said that he knew that by walking into the house of Sardar Jaffar Khan from where he was arrested, with a recently fired gun and cartridges, he would be inviting his arrest and providing evidence against himself. No accused, it has been said, would resort to a conduct which would furnish evidence of his guilt. But we find nothing in his conduct which may be considered to be not in conformity with the conduct of a person in his position. He had committed a murder with a gun and he could not run with it, in a public street of a crowded city like Jacobabad, for a long distance. He made for the house of his chief which was about 250 paces away, where he and his weapon`s could be concealed, and where he could be in safe asylum. As the police was close at his heels he had no time to conceal himself and his weapon. We uphold the convic tion of the accused under section 302, P. P. Code. The sentence for death is we11 deserved and is hereby confirmed. The accused is also the author of the crime committed against Fazal Muhammad which falls under section 307, P. P. Code. On that count the sentence of five years' R. I. and a fine of Rs. 100 is also maintained. He was also found in possession of an unlicenced shotgun and conviction and sentence under section 19, Arms Act is also maintained. The sentences of imprisonment on these charges will run concurrently with the sentence of imprison ment under section 302, P. P. C. if the sentence of death by any chance falls short of execution, and is converted into one of impri sonment. But the sentence of two months' R. I. in default of fine should run after the sentence of imprisonment. The Sessions Judge was in error in ordering the sentence of two months' R. I. in lieu of fine to run concurrently with the sentence of impri sonment. Section 64 of the P. P. Code permits two substantive' sentences to run concurrently, but the sentence of imprison‑I went in lieu of fine has to be served out separately. That sentence cannot run concurrently with any other sentence of imprisonment. This is clear from the language of section, 64, P. P. C. There are also decided cases in support of that view. They are Emperor v. Ebrahim (A I R 1931 Rang. 51 (1)) and Emperor v. Subrao Sesharao (A I R 1926 Bom. 6). If that had been) permissible the penalty attaching to non‑payment could be ren dered sterile. In that event the convicted accused would in effect suffer no imprisonment in lieu of fine and no punishment for his failure to pay the money due from him. The intention of section 64, P. P. C. is that punishment in lieu of fine must be borne so that the convict may be under compulsion to pay the fine and there may be some deterrent to default. Apart from the above if a sentence in lieu of fine is allowed to run along with the sentence on another charge, adjustment of imprisonment on part payment: of fine contemplated by section 69 of the Pakistan Penal Code would become impossible. For these reasons sentence in lieu of fine should be served separately. The order of the Sessions Judge in this respect needs alteration. But we cannot at this stage order that the sentence of two months' R. I. in lieu of fine should run after the sentence of imprisonment on other charges has been served, because after confirming the sentence of death, the question has lost its importance. Apart from this it will amount to enhance ment of sentence and a notice for that is necessary and we do not want to prolong the proceedings. The sentence of death is con firmed and the appeal is dismissed. A. H. Appeal dismissed.