1993 P Cr (PLP)

MUHAMMAD DOGAR, J.

Muhammad Nawaz (30) was tried by the Additional Sessions Judge, Mianwah, for having murdered Muhammad Hayat, his cousin, on 28-5-1983 at 12-00 noon in his house; in the area of village Pacca Wattakhel, Wandha Shahu, Khelanwala, at a distance of 2 miles from Police Station, Sadar, Mianwali. His father Muhammad Azeem (60) was also tried along with him for having abetted the crime. Vide judgment dated 23-4-1988, Muhammad Nawaz was convicted under section 302, P.P.C. and sentenced to death plus to pay a fine of Rs.5,000 in default whereof to undergo R.I. for one year. Whole of the fine, on recovery, was directed to be paid as compensation to the heirs of the deceased. Muhammad Azeem was acquitted vide same judgment

2. The appeal filed by the convict and the Reference made by learned trial Judge for confirmation of death sentence, are being disposed of together.

3. F.I.R. Exh.P.J. was registered at the Police Station by Muhammad Ashraf, A.S.I. (P.W.13) on 28-5-1983 at 1-15 p.m. on the statement of Mst. Anar Bibi (P.W.10). According to F.I.R., Muhammad Hayat (deceased) was sleeping on a cot under a Shisham tree on the southern side of his house. Mst. Anar Bibi (his wife) and Aman Ullah his son were also there and cleaning wheat. Ata Muhammad (given up P.W.) brother of the deceased was standing near them and talking to them. The appellant, holding a pistol in his hand, came there at 12-00 noon, hulling abuses and raising Lalkaras. He asked Muhammad Hayat to get up as he had come to teach him a lesson, for asking for the share from inheritance of his (deceased's) mother. Muhammad Hayat woke up and had hardly come to the sitting posture, when Muhammad Nawaz fired at him. The shot struck Muhammad Hayat on the right shoulder, right upper arm and ribs above the right flank. He fell on the cot. The complainant, her son Aman Ullah and Ata Muhammad tried to catch Muhammad Nawaz, whereupon he fired a shot at them, saying - that he will not spare them. Aman Ullah and Ata Muhammad escaped unhurt but the shot struck the complainant on her head. Even thereafter, she tried, to catch him, whereupon Muhammad Nawaz grappled with her. During grappling he pulled her ear-rings as a result of which she suffered injury on the ear. Muhammad Hayat died on the spot. The appellant ran away.

4. About motive for the occurrence, it is stated in the F.I.R. that a dispute had occurred about the inheritance of mother of the deceased, who was sister of father of the appellant. Muhammad Hayat (deceased) was tenaciously pressing his right of inheritance, as a result of which Muhammad Nawaz murdered him at the instigation of his father Muhammad Azeem.

5. Muhammad Ashraf, A.S.I. after registering the case went to the spot and despatched the dead body for post-mortem examination after preparing necessary papers. He collected blood-stained earth from there and also took into possession bloodstained cot and pillow vide memo. Exhs.P.F. and P.H. respectively. Crime empty P.3 lying at the spot, was also taken into p session by him vide memo. Exh.P.G.

6. The investigation was taken over by Nisar Ali, S.I./S.H.O. on 29-5-1983, on return from leave. He arrested the appellant on 31-5-1983. On search, at the time of arrest, he found the appellant carrying his licensed pistol P.6, along with live cartridges P.7/1-2 and took the same into possession vide memo. Exh.P.K. Muhammad Azeem was arrested by him on 18-6-1983. Challan was submitted to Court after completion of necessary investigation.

7. Statements of thirteen P.Ws. were recorded at the trial. Dr. Khurshid Sarwar Malik, who had medically examined Mst. Anar Bibi on 28-5-1983, at 2-00 p.m. appeared as P.W.1. He had noted following injuries on her person:- (1) A small linear wound obliquely upward on the left side of the top of forehead having 1/2 c.m. x 0.3 c.m. directed upward, 0.7 c.m. above and lateral to the centre to the eye-brow. (2) A wound measuring 2 c.m. x 1 c.m. lacerated on the lobule of the right ear. Both the injuries were opined to have been caused within 6 hours, by a hard and blunt object. The injuries were declared simple.

8. The same doctor had performed autopsy on the dead body of Muhammad Hayat, on the same day at 5-00 p.m. and noted following injuries thereon:-- (1) An entry wound 1 c.m. x 1-1/2 c.m. and 6 c.m. below the tip of right shoulder on its back side. (2) An entry wound 1 c.m. x 1-1/2 c.m. and 3 c.m. below injury No. 1. (3) An entry wound 1 c.m. x 1-1/2 c.m. and 2 c.m. below injury No.2. (4) An entry wound 1 c.m. x 1 c.m. and 10 c.m. below the injury No.3, on the right lateral wall of chest, 25 c.m. away from the right vertebral column and 16 c.m. away lateral side of right nipple. (5) An entry wound 1 c.m. x 1-1/2 c.m. on the back side of the right arm, 15 c.m. above the elbow joint: (6) An exit wound 1 c.m. x 1 c.m. on the inner side of arm, 16 c.m. above the elbow joint (right side). The doctor had removed 3 pellets from the body. During internal examination, both pleurae, both lungs and Iorta wall were found punctured. Death was opined to have occurred due to shock and haemorrhage, resulting from injuries Nos.l to

4. All the injuries were opined to have been caused by firearm. Probable time between the injuries and death was opined to be within half an hour while the between death and post-mortem was opined to be about 5 hours. Ocular account was deposed to by Mst. Anar Bibi (P.W.10) and Aman Ullah (P.W.11). Mst Anar Bibi while repeating the facts given by her in the F.I.R., stated specifically that the occurrence had taken place on the South-Western side in the courtyard. On confrontation, with the F.I.R., she was not found to have specifically stated that the occurrence had taken place to the courtyard. During cross-examination she stated that litigation about the inheritance had been decided in their favour, prior to the occurrence. She, however, expressed inability to state whether any case was pending at the time of occurrence or not? She admitted that the suit for share in the inheritance was filed by the deceased, his brothers Ata Muhammad and Ghulam Muhammad, along with their sisters against Muhammad Azeem and his brothers Ayub, Shah Alam and Isab Khan. She denied the suggestion that she was not living at the place where the occurrence had taken place and that her husband alone had gone to the place of occurrence and was murdered in their absence. The suggestion that during the days of occurrence, she was residing in mauza Wattakhel and was called from there after the occurrence to become a complainant, was also denied by her.

10. Aman Ullah (P.W.11) corroborated the statement made by her mother. Like her mother, he also denied the suggestion that he had not witnessed the occurrence.

11. Muhammad Hayat Khan son of Rabnawaz Khan who had witnessed the recovery of crime empty from the spot as well as collection of blood-stained earth and blood-stained cot from there, appeared as P.W.7. He gave out that the deceased was his maternal-uncle while Muhammad Azeem accused was his maternal-grandfather. The suggestion put to him during cross examination that Azeem accused was not his maternal-grandfather, was denied by him.

12. Nisar Ali, S.H.O. who had partly investigated the case and submitted challan to Court, and Muhammad Ashraf A.S.I. who had registered the case and initially investigated the same, appeared as P.W.12 and P.W.13 respectively and gave the details of the investigation conducted by them. Nisar Ali, S.H.O. denied the suggestion that he had fabricated the recovery of crime empty, from the spot.

13. Positive reports Exhs.P.Q., P.R. and P.S. from the offices of the Chemical Examiner, Serologist and the Forensic Science Laboratory were also tendered in evidence.

14. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. He stated as follows in answer to the question, Why this case and why the P.Ws. have deposed against You :- Due to enmity, I have been falsely implicated in this case. The deceased has no house near about the place of occurrence. He used to reside with his family at Wattakhel which is at a distance of two miles from the place of occurrence. He produced in defence, certified copies of the judgment and decree, dated 3-7-1980, as well as copies of the Khasra Girdaw His father Muhammad Azeem, like him, also pleaded innocence and stated that he played no role in the commission of murder. Both had declined to make statement on oath under section 340(2), Cr.P.C.

15. Learned counsel for the appellant after having taken us through the evidence, criticised the impugned judgment and contended that the prosecution had failed to prove the case against the appellant beyond reasonable shadows of doubt and that the learned trial Judge after having rejected the testimony of Aman Ullah P.W., wrongly placed reliance on the sole testimony of Mst. Anar Bibi for recording conviction. In the alternative, learned counsel prayed for alteration of sentence of death to imprisonment for life as the appellant appears to have acted under the influence of his father.

16. Learned counsel for the State defended the judgment of the trial Court.

17. There is no denying the fact that the deceased was first cousin of the appellant. There is amply evidence on record to hold that the parties had litigated about the inheritance of mother of the deceased, who was sister of father of the appellant. As such. it cannot be assumed on the strength of any argument that he prosecution had failed to prove motive for the occurrence.

18. Aman Ullah P.W. is son of the deceased. He was a young man. His mother claimed that she had tried to catch the appellant after he had fired at her husband and had even attempted to catch him after he had injured her. Had Aman Ullah been at the spot, he would have definitely helped his mother in catching the appellant. Had he done so, he would either have suffered injuries or would have succeeded in catching the accused. The learned trial Judge took note of these facts and in our view, came rightly to the conclusion, that Aman Ullah P.W. was not present at the spot. Resultantly, the prosecution is left with the testimony of Mst. Anar Bibi alone, so far as the ocular account is concerned. Nonetheless, we are not presuaded to hold that the appellant was involved falsely in this case, the reason being that the presence of Mst. Anar Bibi at the spot stands proved from the factum of stamp of injuries on her person, and her teny inspires confide

19. The argument that according to the opinion of the doctor, the injury on the head of Mst. Anar Bibi had not resulted from firearm, has not impressed us for the reason that the opinion seems to be misplaced. Actually the shape, in which the doctor found the injury, would have definitely made it possible for him to-say positively, that it was a fire-arm injury. In that regard the person who suffered injury, was in a better position to give the real picture. It is worth noticing that the occurrence in this case was reported within one hour and fifteen minutes, by a lady, whose husband was murdered and who herself had also suffered injuries during the occurrence. She could not have planned to lodge a false F.I.R. in such a short time. There was no time for exercise of evil influence on her. Had she not suffered the injury on her head, from a firearm, she would not have chosen to state that she had suffered injury as a result of the shot fired by the accused-appellant. If she could be blunt in saying that the injury on her ear had resulted due to the pulling of ear-ring by the appellant, she would not have made a false statement about the weapon with which she suffered the injury on her head. The presence of the lady at the spot not only stands proved by the factum of the injuries found on her person but, also stands proved by the prompt lodging of the F.I.R. Had she been not g with her husband at the time of occurrence, she could not have lodged the report within one hour and fifteen minutes, after covering a distance of 2 miles. The fact that she was medically examined at 2-00 p.m. and the fact that the post-mortem was performed on the same day at 5-00 p.m. also leave no room to doubt that the F.I.R. might have been wrongly shown to have been recorded at 1-15 p.m.

20. After having carefully scrutinized the evidence and considering all aspects of the case, we are convinced that the prosecution has been able to prove the charge against the appellant. His conviction under section. 302, P.P.C. is, therefore, maintained. The dispute of inheritance was not directly between the appellant and, the deceased. Actually the deceased alongwith his brothers and sisters had instituted a suit against father of the appellant, his uncles and aunts. Even if the deceased had not disputed, the appellant by himself, would have got a very negligible share out of the inheritance of the deceased lady: He apparently appears to have acted under the influence of his elders, including the father. Following the dictum laid down in Mukhtar Hussain and another v. The State 1985 S C M R 479 we are inclined to alter the sentence of death to imprisonment for life. Order accordingly. The sentence of fine is maintained. Benefit of the provisions of section 382-B, Cr.P.C. shall be extended to the appellant. N.H.Q/M-611/L Sentence reduced.