P L D 1965 (W (PLP)

H. T. RAYMOND, J.‑

The appellants Ali Muhammad, son of Dalel Korai, aged 30 years, and his cousin Soomar, son of Dost Muhammad Korai, aged 31 years, have been convicted of the murder of deceased Amir Bux and have each been sentenced to death. The appellant Ali Muhammad's conviction is under section 302, P. P. C. and that of appellant Soomar under section 302/34, P. P. C. The appellant Ali Muhammad has further been convicted of an offence under section 19‑E of the Arms Act and has been sentenced to one year's R. I. They have appealed from these convictions. The death sentences imposed upon them are also before us for confirmation under section 374, Cr. P. C. Both the appeals as well as the reference will be disposed of by this judgment.

2. Deceased Amir Bux was the son of complainant Muhammad Uris P. W.

4. Muhammad Uris had four sons by name Amir Bux, Haji, Rasool Bux and Punhoon. Some 18 months before the murder in this case deceased Amir Bux, Rasool Bux, Punhoon together with their uncle Doulat and cousin Hakim were challaned for the murder of one sumo, brother of the appellant No. 2 Soomar Rasool Bux alone was convicted it this case whereas the co‑accused were acquitted. On appeal Rasool Bux was also acquitted. It is the case for the prosecution that in respect of this murder of Jumo, brother of the appellant No. 2 Soomar which mad thus gone unavenged, the two appellants harboured a grudge against Amir Bux and his brothers.

3. Now, on the day of the murder of deceased Amir Bux, namely the 9th March 1963, complainant Muhammad Uris accompanied by his two sons, Amir Bux anti 1‑lair set out from their village in the afternoon for village Pir Shahmir, three miles away to attend the fair that was then being held in this village. At this fair they met Sher Muhammad P. W. 5 and Mir Hajam P. W. 6 who joined their company. At about 5. p. m. they were proceeding towards the wrestling ground, deceased Amir Bur and Mir Hajam walking together some 6 or 7 paces, ahead of complainant Muhammad Uris, his son Haji and Sher Muhammad P. W.

5. A11 of a sudden complainant Muhammad Uris observed the two appellants making their way through the shops at this fair towards them, the appellant Ali Muhammad wearing an Ajrak and appellant Soomar carrying a hatchet. The appellant Ali Muhammad whipped out a pistol from underneath his Ajrak and fired at deceased Amir Bux from behind as a result of which he fell to the ground. On hearing the pistol shots the companions of deceased Amir Bux saw the two appellants armed respectively with a pistol and a hatchet brandishing these weapons and threatening them not to come near for fear of suffering the same fate. Three other persons by name Muhammad Siddiq Jamali, Ramzan Machi and Wali Muhammad Khaskheli were then approaching in the opposite direction and were asked by the companions of deceased Amir Bux to apprehend the two appellants. But, these two threatened them with similar consequences and were thus able to make good their escape. The complainant Muhammad Uris and the others then ran up to deceased Amir Bux and found him lying dead with a pistol shot in his back. The complainant leaving his son Haji and others with the dead body proceeded to lodge a report with the police but in as much as some members of the police force of that area were already on duty at this fair the complainant was fortunate in meeting the A. S. I. P. of Pubjo Police Outpost who recorded his F. I. R. on a blank sheet of paper there and then.

4. This A. S. I. P. Muhammad Sulleman P. W. 8 straight away took up the investigation of this case. He prepared a mashirnama of the scene (Exh. 21) and an inquest report (Exh. 22). He then sent the dead body for post‑mortem examination and himself examined the companions of deceased Amir Bux who were all present there. He despatched two Head Constables for securing the appellants accused and later that same night he himself set out for the village of the accused accompanied by mashirs Pir Abdur Rehman and Muhammad Khan (P. W. 7). Both the appellants; accused could not be found in their respective houses and hence the police party passed the following day in the appellants village and were able to secure both the appellants/accused at about 5 P. M. on that day as per mashirnama Exh.

23. After arrest and interrogation the appellant Ali Muhammad volunteered to produce his pistol and leading the police party and mashirs to a survey number one Athas away from his house he took out a 12‑bore country made pistol from a stock of rapeseed lying there as per mashirnama Exh.

24. The pistol was found to contain one empty cartridge and its barrel smelt of fresh gunpowder. Both the pistol and cartridge were secured then got the statements of the witnesses examined by him at the scene of offence recorded under section 161, Cr. P. C., sent the pistol together with the empty cartridge to the Ballistic Expert at Lahore and on completing his investigation he challaned the two appellants in the Court of the Resident Magistrate, Moro, on 25‑3‑1963.

5. The appellants in their statements in the two Courts below deny having committed any offence and attribute their implication in this case to one Ghulam Muhammad Jamali who, according to them, is on terms of enmity with them and in whose service the prosecution witnesses are employed as Haris. The appellant Ali Muhammad denied having produced the pistol in question and asserted that it had been foisted upon him by the police. The appellant Soomar when questioned about the murder of his brother by the deceased Amir Bux and his relations replied that they had compromised their differences on the Holy Quran. He examined two witnesses in defence in support of his alibi that on that day his daughter had died of smallpox in his village and he was there attending to her burial.

6. Now, the fact that deceased Amir Bux died of a gunshot wound is beyond dispute. Apart from the oral evidence of eye?witnesses available on the record of this case there is also the evidence of Dr. S. Khawaja Hassan who performed the post?mortem on his dead body the very next morning. On external examination he found nine gunshot wounds each 4? in diameter on the back 1Pft side in the scapular region within a circle of 31J" in diameter. He opined that these injuries, were less than 24 hours old and were definitely ante‑mortem. On internal examination he found the left and third ribs fractured in the middle, the left pleura perforated at nine places, left lung perforated at four places and the left chamber of the heart perforated at three places and the right chamber at one place. In his opinion, the death of deceased Amir ‑Bux was due to shock and haemorrhage as a result of the gunshot injury which was sufficient in the ordinary course of nature to cause death.

7. The sole point of importance for determination in these appeals is whether the two appellants are responsible for the murder of deceased Amir Bux. The case for the prosecution against them rests upon the evidence of the three eye‑witnesses Muhammad Uris P. W. 4, Sher Muhammad P. W. 5, Mir Hajam P. W. 6 and the corroborative evidence of Zamindar Muhammad Khan P. W. 7 who arrived at the scene soon after the shooting incident had occurred. There is also on the record of this case the evidence of the Ballistic Expert Khan Saheb Shah Jehan P. W. 3 who examined the empty cartridge recovered from the barrel of the pistol in question and opined that it had been fired from that very pistol. Finally, so far as the appellant Ali Muhammad is concerned, there is the production by him of his pistol as deposed to by the mashir Muhammad Khan P. W. 7, the Investigating Officer Muhammad Sulleman P.W.8 and supported by the mashirnama Exh. 24.

8. In considering and assessing all this evidence we deem it advisable to deal with the case of each appellant separately. We would first take up for consideration the case of the appellant No. 2 Soomar. It is admitted on all hands by the eye‑witnesses examined for the prosecution that although this appellant Soomar accompanied the appellant No. 1 Ali Muhammad that evening and that he was armed with a hatchet, yet, he did not use this hatchet and inflicted no blow with it either upon the deceased Amir Bux or upon any body else. According to the prosecution evidence, the utmost use to which he put this hatchet is that he brandished it in the air to warn off his pursuers. The prosecution eye‑witnesses are also unanimous on the point that the appellant Ali Muhammad was then wearing an Ajrak under which he had his pistol concealed. On approaching the deceased he suddenly whipped out this pistol from its place of concealment and fired at him. We find that there is not an iota of evidence on the record to show that the appellant No. 2 Soomar knew that his companion Ali Muhammad was then carrying a pistol at all and much less that he would use it with such tragic consequences. In this state, then, of the evidence available on the record of this case, so far as the appellant No. 2 Soomar is concerned, we find it difficult to hold that he had a common intention with his companion Ali Muhammad of causing the death of deceased Amir Bux by shooting at him. We have bestowed our careful and anxious consideration upon the case of this appellant No.

2. It is no doubt true that he is the appellant who had the motive because it was his brother Jumo who had been murdered by deceased Amir Bux and his relations. Nevertheless, we are to decide this case upon the evidence available on the record uninfluenced by any exterior considerations. The learned Advocate appearing on behalf of the Additional Advocate‑General conceded that the shooting of deceased Amir Bux in this case was the individual act of the Appellant No. I Ali Muhammad and that appellant Soomar cannot be held constructively liable for it. We have, therefore, reached the conclusion that the case against the appellant Soomar is not free from a reasonable doubt and giving him the benefit of that doubt we acquit him and set aside the death sentence imposed upon him in this case. We direct he be set at liberty unless wanted in some other case.

9. With regard, however, to the appellant Ali Muhammad we find that there is abundant evidence available on the record of this case to support his conviction. Apart from the three eye?witnesses Muhammad Uris P. W. 4, Sher Muhammad P. W. 5 and Mir Hajam P. W. 6 there is the corroborative evidence of Zamindar Muhammad Khan P. W. 7 who is in no way related to or connected with the deceased or the prosecution eye?witnesses. The three prosecution eye‑witnesses examined in this case are at one in their testimony that it is the appellant Ali Muhammad who fired at deceased Amir Bux from behind killing him on the spot. At that time deceased Amir Bux was being accompanied by P. W. 6 Mir Hajam while his father Muhammad Uris P. W. 4 was following close behind in the company of Sher Muhammad. The appellant Ali Muhammad came close up behind deceased Amir Bux‑according to the complainant at a distance of only 2‑3 paces‑and then fired at him. Dr. S. Khwaja Hassan has also stated that in his opinion the fire‑arm was fired from an approximate distance of more than six feet. Thus, the assailant of deceased Amir Bux approached within a few paces of him and was, therefore, easily visible to the companions of Amir Bux. Moreover, the F. I. R. of the complainant and the police statements of the companions of deceased Amir Bux were recorded there and then at the spot by A. S, I. P Muhammad Sulleman who happened to be on duty at the Mela that evening. This witness has said that he was 25‑30 paces away from the scene when he heard the gunshot report and ran up there immediately. He straightaway embarked upon the investigation and there and then recorded the statements of the eye‑witnesses. In these circumstances, then, it can hardly be urged that there was any time for fabrication or for sub?stituting the name of Ali Muhammad for that of the real assailant.

10. In addition to the evidence of these three eye‑witnesses and here we think it necessary to remark in parenthesis that the Public Prosecutor in the Court below has erred in failing to examine the remaining three eye‑witnesses namely. Muhammad Siddiq Jamali, Ramzan Machi and Wali Muhammad Khaskheli whose names appear in the F. I. R. there is the fact that the appellant Ali Muhammad immediately after his arrest led the police party to a Survey Number one Athas away from his house and produced from beneath a stock of rape‑seed a 12 bore country made pistol which appeared to have been recently fired and which contained one empty catridge. This is a piece of conduct on the part of accused Ali Muhammad which can certainly be taken into consideration when assessing the evidence available against him in this case. This pistol and the empty cartridge were at once sealed and were sent to the Ballistic Expert Khan Shah Jehan, P. W. 3 for examination. He has given it as his opinion that this empty cartridge had been fired from this very pistol. It is true that the evidence of this Ballistic Expert does not help the prosecution case because this particular cartridge was not recovered from the scene of offence. Neverthe?less, it seems to us that the production of this pistol by appellant Ali Muhammad so soon after his arrest on the evening after the murder is a circumstance that can be considered when appreciating the evidence available against him on the record of this case.

11. Mr. Hayat Junejo the learned Advocate appearing on behalf of the appellants argued that the F. I. R. in this case is not a genuine document because the complainant Muhammad Uris had admitted in the lower Court that it was recorded at Pubjo Police Station some 5 or 6 miles away from the scene. But, this statement of the complainant in the lower Court has been denied by him in the Sessions Court, where the witness affirms that he had not been taken to Pubjo Police Station, Besides, the F. I. R. itself bears an endorsement at its foot indicating that it was first written on a piece of white paper at the vardat, and was then sent to the S. H. O., Doulatpur for recording under section 157, Cr. P. C. The writer of this document Muhammad Sulleman P. W. 8 who was then attached as A. S. I. P. to the Pubjo Police Outpost has also maintained that he recorded this report on an ordinary piece of paper at the Mela as he happened to be there on duty that evening.

12. Mr. Hayat further contended that the prosecution eye?witnesses in this case are the haris of Zamindar Ghulam Muhammad Jamali who is on terms of enmity with his clients. But, we observe from the cross‑examination of the three eye‑witnesses that this suggestion has been put to each one of them by the defence Advocate in the Court below and that each one of them has denied that he has anything to do with Zamindar Ghulam Muhammad Jamali. An extract from the statement of complainant Muhammad Uris in the Committal Court has been produced as Exh. 14 to show that since a year ago he had left cultivating the lands of Ghulam Muhammad Jamali. In his evidence in the Sessions Court the complainant has stoutly denied that he had ever been a hari of Ghulam Muhammad Jamali and also that he had made such a statement in the committal Court. This complainant Muhammad Uris is an old man of 60 years or more. It seems to us to be quite possible that when cross‑examined in the committal Court he may have got somewhat confused and hence he made the two admissions there of visiting Pubjo Police Outpost for the recording of his F. I. R. and of having left the service of Ghulam Muhammad Jamali a year ago. Whatever be the value of these admissions made in the committal Court we, at least, are not in any way affected by them and, in our view, they do not serve to weaken the prosecution case against appellant Ali Muhammad in the slightest measure.

13. We are satisfied that this appellant has rightly been convicted of the murder of deceased Amir Bux. It was cold ?blooded attack, in broad daylight and from behind. The shot was aimed at a vital part of the body so much so that deceased Amir Bux collapsed and fell dead on the ground instantaneously. We can find no reason for imposing the lesser penalty and, therefore, while dismissing the appeal of Ali Muhammad, we confirm the death sentence imposed upon him. K.B.A.???????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.