P L D 1984 Lahore 378 (PLP)

Ijaz NISAR, J.‑Muhammad Ashraf son of Barkat Ali (24), caste Jat Cheema, resident of Chak No. 136/RB, Police Station, Chak Jhumra, District Faisalabad, has been convicted by the learned Additional Sessions Judge, Faisalabad, on 31‑7‑1980 under section 302, P. P. C., for the murder of Wali Muhammad and Mst. Fazal Bibi deceased on 23rd March, 1973, at about Degarwala, in the area of Chak No. 136/RB, with a gun, and sentenced to death on two counts and to pay a fine of Rs. 5,000 on each count or in default to undergo R. I. for one year. Half of the fine, if raalized, has been ordered to be paid to the legal heirs of the two deceased as compensation under section 544‑A, Cr. P. C. The appeal filed by Muhammad Ashraf and the connected murder re ference are before us.

2. About 22 years before the occurrence Barkat Ali paternal‑uncle of the appellant was murdered by Allah Ditta and Akbar Ali real brothers of Wali Muhammad deceased. They were tried and ultimately acquitted. About three years prior to the occurrence the appellant was murderously assaulted by Nazar and Akbar the maternal‑cousins of Wali Muhammad deceased for which a case under section 307, P. P. C. was registered against them and they were acquitted. On the day of occurrence i.e. 23‑3‑1973, the appellant accompanied by Inayat, Sharif, Fateh Muhammad and Muhammad Rafiq while armed with guns and sticks attacked Wali Muhammad deceased when he was coming out of the village mosque after saying Asar prayer. The appellant fired the first shot from his gun hitting the abdomen of Wali Muhammad deceased. Inayat Ullah and Muhammad Sharif also fired gun shots at him hitting the deceased on his right arm and hand. Fateh Muhammad and Muhammad Rafiq accused who were carrying Sotas did not inflict any injury on the deceased but kept on raising Lalkaras. Mst. Fazal Bibi deceased who was present near the spot was also hit by a pellet from the shot fired by the appellant. The occurrence was witnessed by Ghulam Rasul P. W. 1, Muhammad Aslam P. W. 2 and Muhammad Hussain P. W.

3. Wall Muhammad deceased was carried to the Civil Hospital, Chak Jhumra The Medical Officer sent Ruqqa Exh. P. Q. to Police Station, Chak Jhumra about the admission of Wali Muhammad deceased in the hospital. On receipt of the intimation Muhammad Khan, A. S.

1. P. W. 12 enquired from the Doctor about the fitness of Wali Muhammad to make a statement. On obtain ing reply in the affirmative, he recorded the statement Exh: P. N. of Wali Muhammad deceased who thumb marked the same in token of its correctness. Wali Muhammad died in the hospital on the following day. During investi gation the said A. S. 1. learnt that Mst. Fazal Bibi had also been injured and was admitted in the same hospital. Consequently, he contacted the Doctor who was attending her and on getting a reply in the affirmative that she was fit to make a statement, be proceeded to record her statement Exb. P. Y. on 28‑3‑1983. She died in the hospital on 1‑4‑1973. According to the prosecution, the appellant absconded after the occurrence and was arrested on 31‑1‑1977. However, in his absence his co‑accused, namely, Inayat Ullah, Muhammad Sharif, Fateh Muhammad and Muhammad Rafiq were tried. Inayat and Muhammad Sharif were sentenced to death by Syed Sibtain Naqvi, the then Additional Sessions Judge, Faisalabad on 7‑10‑1974 while Muhammad Rafiq and Fateh Muhammad were acquitted. They filed an appeal in the High Court (Cr. A. No. 780‑MR/206/74 which was dismissed on I‑10‑1975. However, their sentence was altered from death to imprisonment for life. They filed a petition for Special Leave to Appeal (412‑413 of 1975) which was dismissed on 29‑i0‑1979. After arrest the appellant was tried by late Malik Muhammad Ramzan, Additional Sessions Judge, Faisalabad.

3. Dr. Iqbal Abmad Javaid P. W. 4 conducted autopsy on the dead body of Wali Muhammad deceased and found the following injuries thereon (1) A fire wound of entrance in middle of front of the lateral aspect of the right forearm " x ". Not probed passed through and through to the wound of exit. The edges were inverted in acchymosed. (2) A firearm wound of exit " x "stitched situated 2" posterial to injury No.

1. The edges were everted. (3) A circular lacerated wound which was stitched in front of the right forearm. About 4" above the right wrist " x " X muscle deep. (4) A stitched circular lacerated wound in middle of the back of the right forearm about 41" above the right wrist. (5) A stitched firearm wound of entrance in lateral aspect of the right forearm 1" above the right wrist " x ". Not probed passed through and through into the wound of exit. (6) A stitched firearm wound of exit situated I" posterial to injury No.

5. The edges were everted. (7) A circular lacerated wound " x " x muscle deep which were stitched on the lateral aspect of the right wrist. (8) A firearm wound of entrance which was stitched J' x y in front of the right forearm 1 above the right wrist. Not probed passed through and through to the wound of exit. (9) A stitched firearm wound of exit " x "situated 1 1/2 " posterial to injury No. 8. (10) A stitched circular lacerated wound " x "muscle deep in front of the lateral in front of the right wrist. (11) A stitched circular lacerated wound " x " x muscle deep on the middle of posterial surface of the right wrist. (12) A stitched firearm wound of entrance " x "into not probed passed abdomenal cavity situated 1 " below umblicus. (13) A stitched firearm wound of entrance f x j' into not probed passed into the abdominal cavity situated in front of the abdomen on lateral and left side of the abdomen 1 f away from the umblicus: (14) A stitched firearm wound of entrance " x " x not probed passed into the abdomenal cavity in front of the middle of the left hyposchondrium of abdomen. Cause of death was shock and haemorrhage resulting from injuries Nos. 8, 12, 13 and 14 which were sufficient to cause death. All the injuries were caused with firearms and were ante‑mortem. Probable time between injuries and death was about 14 hours and between death and post‑mortem examination was about five hours. Exb. P. C. is the post‑mortem report and P. C./1 is diagram of the injuries.

4. Bashir Ahmad Kalhon, P. W. 5 conducted the post‑mortem examina tion on the dead body of Mst. Fazal Bibi (50/55) and found the following injuries thereon: ‑ (1) A firearm wound " x "x abdomenal cavity on the left side of the abdomen. (2) A laprotomy wound 8" stitched on the right side of the abdomen. Death was caused due to shock and peritonitis as a result of injury No. 1 which was sufficient to cause death. The probable time between the injury and death was about 9 days and that between death and post‑mortem examination about 8 hours. Exh. P. J. is the post‑mortem report while Exh. P. J./1 is the sketch of the injury.

5. The appellant in his statement recorded under section 342, Cr. P. C. admitted the murder of his uncle by the brothers of Wali Muhammad deceased and their ultimate acquittal. He, however, denied his participation in the occurrence. He attributed the case to enmity and stated that his uncle Fateh Muhammad and cousin Muhammad Rafiq (since acquitted) had also been falsely involved. He denied having absconded after the occurrence and stated that he had permanently settled in District Thatta, Sind and on learning about the registration of the case he voluntarily appeared before the police on 31‑1‑1977. He examined four witnesses in defence. Bashir Ahmad D. W. 1, Muhammad Anwar D.W. 2, Nasir Ahmad D.W. 3 and Rashid Abmad D.W. 4 stated that the appellant and his father had permanently settled in Gote Shah Nawaz, District Thatta, Sind.

6. The prosecution examined Ghulam Rasul P. W. 1, Muhammad Aslam P. W. 2 and Muhammad Hussain P. W. 3 to prove the occurrence. Reliance was also placed on the dying declarations made by the two deceased and the circumstance of the abacondence of the appellant. Relying upon the dying declarations of the two deceased, namely, Wali Muhammad and Mst. Fazal Bibi, the ocular testimony furnished by Ghulam Rasul P. W. 1, Muhammad Aslam P. W. 2 and Muhammad Hussain P. W. 3 the motive and the abscondence of the appellant, the learned trial Court convicted and sentenced the appellant as stated above. Criticising the impugned judgment, the learned counsel for the appellant contends that the eye‑witnesses being interested and inimical should not have been relied upon, that the dying declaration of Wali Muhammad deceased does not ring true for having been made in the presence of his relatives and not attested by the doctor and for the reason that it is silent about Mst. Fazal Bibi having been injured during the occurrence. It is further argued that the defence evidence negating the abscondence of the appellant has not been given due weight. No doubt, Muhammad Aslam P. W. 2 had admitted that his family had criminal litigation with the appellant but his evidence cannot be thrown out merely on this score because he stands corroborated by Ghulam Rasul P. W.‑1, and Muhammad Hussain P. W. 3 who are independent and natural witnesses. There is nothing to indicate that they had any motive to falsely implicate the appellant., Ghulam Rasul P: W. had offered his prayers alongwith the deceased in the same mosque while Muhammad Hussain P. W. was proceeding towards his house when the occurrence in question took place. No importance can be given to the minor discrepancies appearing, in the statements of the ‑B eye‑witnesses because they were examined after a period of 7J years of the occurrence. As the appellant was known to the P. Ws. and the deceased, therefore they would not have felt any difficulty in identifying him particularly when the occurrence had taken place during the day time. The dying declaration Exh. P. 5 of Wali Muhammad provides further corroboration to the ocular testimony. Muhammad Anwar Khan S. I. had taken all the necessary precautions in recording it. It was recorded after obtaining a certificate of fitness from the doctor and the omission of Mst. Fazal Bibi deceased as having been injured during the occurrence appears to be quite natural. After receiving 14 gun‑shot injuries he could not be expected to D observe or notice as to who else bad been injured and as to where the pellets bad struck. The dying declaration Exh. P. Y. of Mst. Fazal Bibi also fully implicates the appellant. She bad no malice or ill‑will against the appellant to falsely implicate him. The motive lends further corroboration to the prosecution story. The appellant has not denied the same and has admitted that he was murderously assaulted by the maternal‑cousins of Wali Muhammad deceased for which a case under section 307, P. P. C. was registered against them. He has also E admitted that his paternal‑uncle Nawab was murdered by the real brothers of Wali Muhammad deceased who were ultimately acquitted. The abscondence of the appellant, however, does not stand established. No documentary evidence has been led in this behalf. Neither the proclamation, nor the warrants to arrest nor any report about the abscondence of the appellant has been produced. On the other hand, it stands established from the prosecution F evidence as well as defence evidence that the appellant had permanently settled in Sind with his father. But at the same time the defence evidence is not sufficient enough to cast doubt on the prosecution story that the appellant was not present at the spot on the day of occurrence. In the above circumstances, we are of the view that the prosecution has fully succeeded in bringing home the guilt to the appellant beyond all shadow G of doubt. He was therefore, rightly convicted. As regards sentence, We consider that there are mitigating circumstances in withholding the death penalty to him for the reasons that firstly his uncle had been murdered by the real brothers of Wali Muhammad deceased and secondly he himself had been murderously assaulted by the maternal‑cousins of the deceased prior to the occurrence and both the cases had ended in acquittal of the accused persons. We think that the ends of justice will be met if the death sentence awarded to him is altered to imprisonment for life. We order accordingly. The sentence of fine is however, maintained. The entire amount of fine shall be paid to the heirs of the two deceased in equal shares. The appellant shall also be given benefit of section 382‑B, Cr. P. C. in commuting the period of imprisonment. With the above modification, the appeal is dismissed. The sentence of death is not confirmed. M.Z. M. Appeal dismissed.