GHULAM SARWAR Versus THE STATE Muhammad Asghar Khan Rokhri , Sh. Afzal Hussain, M. Farooq Bedar, A.A.G.

ZIA MAHMOOD MIRZA, J.‑‑-- Ghulam Sarwar son of Ghulam Khan appellant was tried by the learned Sessions Judge, Mianwali on a charge under section 302, P.P.C. for committing the murder of Ghulam Sarwar son of Shaikh Sultan and was convicted and sentenced to death and a fine of Rs.2,000; or in default to undergo two years' R.I., vide judgment dated 12‑1‑1981. Convict has filed an appeal (Cr. A.No.81 of 1981) to challenge his conviction and sentence. Learned Sessions Judge has also referred the case for confirmation of death sentence. Both the criminal appeal and the Reference (Murder Reference No.17 of 1981) shall be disposed of by this judgment.

2. Prosecution case in nutshell is that on 27‑8‑1979 at about 10 a.m., Ghulam Sarwar deceased accompanied by his brother Ghulam Qasim Khan P.W.10, Abdul Karim, complainant P.W.9 and Muhammad Nawaz Khan son of the complainant (not produced) were returning to their Village Tari Khel after offering 'Fateha' of one Abdur Rehman of Wandah Arsalawala. When they reached near the Abadi of their village, the appellant armed with a gun got up from a Bajra field of Kamran Khan and others, raised a Lalkara and fired at Ghulam Sarwar. Shot hit him on the left side of the head. After receiving the injury, Ghulam Sarwar fell down and became unconscious. On the alarm raised by the complainant and others, the accused ran away: Shaikh Sultan, father of Ghulam Sarwar and his other relatives, on hearing the alarm, reached the spot and took Ghulam Sarwar injured to the civil hospital, Mianwali.

3. After the injured was brought to the hospital, Doctor Ashiq Ali P.W.4 medically examined him and wrote a Ruqqa Exh.P.C. to the police. Ata Muhammad A.S.I. P.W.11 of police post city, Mianwali reached hospital and inquired from the doctor, vide Exh.P.H. whether the injured was capable of making a statement. Doctor gave reply Exh.P.H./1 in the negative.

4. In the meantime, Rehmat Ali A.S.I. of Police Station Mochh P.W.6 came to the hospital in connection with some other official business. He met Abdul Karim complainant P .W.9 and recorded his statement Exh.P.K. in respect of the occurrence at ,2 p.m. On the basis of this statement, formal F.I.R. Exh.P.K/1 was registered at Police Station Mochh at 3‑30 p.m.

Abdul Karim complainant P.W.9 gave the aforementioned account of the occurrence. Motive alleged in the F.I.R. Exh.P.K/1 was that Shaikh Sultan, father of the deceased, had appeared as a prosecution witness against the accused in a case under section 458, P.P.C. Appellant nursed a grudge on that account and attacked the deceased.

5. On the same day, information about the occurrence was also sent to Police Station Mochh through wireless message. On receiving the information, Muhammad Jameel A.S.I. P.W.12 of P.S. Mochh reached civil hospital Mianwali at 3 p.m. and took over the investigation of the case from Rehmat Ali A.S.I. Ata Muhammad A.S.I. also handed over to him Ruqqa of the doctor Exh.P.C, application Exh.P.H. and doctor's opinion Exh.P.H/1. Muhammad Jameel A.S.I. P.W.12, thereafter, proceeded to the spot, prepared the rough site‑plan Exh.P.N. and also took into possession blood‑stained earth, vide memo. Exh.P.J. which was attested by Abdul Aziz P.W.5.

6. On 1‑9‑1979, Ghulam Sarwar injured died in the hospital. Muhammad Jameel A.S.I. P.W.12 prepared the injury statement Exh.P.O. and inquest report Exh.P.Q. He sent the dead body for post‑mortem examination. Investigation was then taken over by Abdul Wahid S.H.O. P.W.8. He arrested the accused on 4‑9‑1979. The accused while in custody led to the recovery of gun P‑1 on 10‑9‑1979 which was taken into possession, vide memo. Exh.P.L. It was attested by Ghulam Haider P.W.7.

7. Dr. Ashiq Ali P.W.4 conducted the post‑mortem examination on the dead body of the deceased on 1‑9‑1979 at 9‑30 a.m. and found the following injury on the dead body:‑

(1) ??????? A healed scabbed fire‑arm wound of entry 3/4 c.m. x 3/4 c.m. on the left parietal area 4 c.m. above the left pinna and 9 c.m. to the left of mid‑line, 4 c. m. above the left tample. The wound was dressed.

The deformed pellet was also found embedded in the right hemisphere of brain matter, which was taken out, sealed in a packet and handed over to the police.

In the opinion of the doctor, death was due to damage to the brain matter due to the aforesaid injury which was sufficient to cause death in the ordinary course of nature. The injury was ante‑mortem. Time between injury and death was 5 days and between death and post‑mortem examination about 8 hours.

8. Prosecution rested its case on ocular evidence, motive, evidence pertaining to the recovery and medical evidence.

Ocular account was given by Abdul Karim P.W.9, and Ghulam Qasim P.W.10. Abdul Karim P.W.9 also gave evidence pertaining to the motive. Ghulam Haider P.W.7 deposed about the recovery. Dr. Ashiq Ali who had performed the post‑mortem examination appeared as P.W.4.

9. First of all, we would like to discuss the eye‑witness account of the occurrence. Abdul Karim appearing as P.W.9 fully supported the prosecution case. He also deposed about the motive by stating that six months prior to the present occurrence, appellant was involved in a case for having trespassed into the house of Ghulam Qasim, butcher. In that case, Shaikh Sultan father of the deceased and one Muzaffar Khan were witnesses for the prosecution. Muzaffar Khan did not appear but Shaikh Sultan appeared as a witness against the appellant. Case resulted in the conviction of the appellant.

Abdul Karim P.W.9 fully implicated the appellant. He stated that it was the appellant who was responsible for the murder of Ghulam Sarwar. He was subjected to lengthy cross‑examination but the defence did not succeed in bringing anything on the record to create doubt either about the presence of this witness on the spot or with regard to his testimony about the occurrence. A suggestion was put to this witness that on the day of occurrence, cross‑firing had taken place between Gulrang Khels and sons of Manzoor on the one side and Shaikh Sultan, father of the deceased and his companions on the other. This was denied by the witness. Similarly, he denied the suggestion that Mst. Shalamme Khatun, daughter of Shaikh Sultan, came over to the house of the appellant six months before the occurrence and the father of the appellant returned the girl to her parents on the same day. Another suggestion that there was long‑standing enmity between the complainant ?party and Abdur Rehman from whose 'Fatehkhawani' the deceased and others were returning when the occurrence took place was also denied by Abdul Karim P.W.9. He emphatically denied that the deceased was hit by a stray pellet in the aforementioned cross‑firing. He also denied that a compromise was effected between Gulrang Khels and the complainant‑party and the appellant was falsely involved.

10. Ghulam Qasim Khan P.W.10 is the brother of the deceased. He supported Abdul Karim P.W.9 and stated that the deceased died due to the fatal shot fired by the appellant. We do not think it necessary to repeat the rest of his evidence.

11. The appellant when examined by the trial Court denied the prosecution case. His version was that the deceased was hit in the cross‑firing between Gulrang Khels and sons of Muzaffar on the one hand and Shaikh Sultan and his companions on the other and he had been falsely implicated. His detailed statement before the trial Court was to the following effect:‑

"Mst. Shalamme the sister of the deceased one day had come over to my house and my father returned her on that very day. This created enmity between us and we shifted our residence to Dera Balochan Wala from the village Abadi. On the day of occurrence there was cross‑firing between Gulrang Khels and sons of Manzoor on one side and Shaikh Sultan the father of the deceased and his companions on the other. The deceased was standing in a pit with a gun in the firing and was hit by some pellet. These parties reconciled in the very evening of the day of occurrence and got me falsely involved."

12. Learned counsel appearing for the appellant, submitted that the prosecution has failed to prove the motive. If, at all, there was any motive, then the best witness to support it was Shaikh Sultan who was not examined.

It was next contended that there were hot feelings between the parties due to the incident of Mst. Shalamme Khatun having come over to the house of the appellant. Learned counsel also argued that it had been established from the evidence on the record that the complainant party and Abdur Rahman for whose 'Fatehkhawani', the deceased and his companions had gone and were returning at the time of occurrence, were not on good terms. As a matter of fact, they were inimical to each other. Learned counsel submitted that in view of this, it was not believable that the deceased and the prosecution witnesses would have gone for 'Fatehkhawani' of their enemy.

Yet another contention raised by the learned counsel for the appellant was that the medical evidence was in conflict with the ocular version. The position as alleged by the prosecution from where the deceased was fired at was not supported by the medical evidence. According to the learned counsel, if the appellant had fired shot from the place where he was allegedly standing, then keeping in view the distance and the location where the deceased was present, the nature and dimension of the injury would have been different from the one sustained by the deceased. In this sequence, our attention was drawn to the inspection note of the learned trial Judge. Learned counsel also referred in this behalf to the evidence of Ghulam Ahmad Patwari P.W.3 who had prepared the site‑plan.

Last of all, learned counsel submitted that the possibility could not be safely ruled out that the deceased was not hit directly by the pellet and was hit by a stray deformed pellet which had already hit some hard substance and thereafter, it was embedded in the brain of the deceased.

13. We also heard the learned counsel appearing on behalf of the State. He supported the impugned judgment and submitted that the appellant had been rightly convicted and sentenced.

14. To start with, we would like to deal with the ocular evidence. The two eye‑witnesses, as noted above, fully implicated the appellant. Both of them attributed one shot to the appellant. There is, thus, no inconsistency in their testimony regarding the firing and the number of shot. Although both of them are related to the deceased but that does not mean that their evidence is to be rejected merely on the ground of relationship. The test is whether their testimony inspires confidence and finds some corroboration from any other direct or indirect evidence.

15. We are not impressed by argument of the learned counsel for the appellant that the prosecution did not prove the motive. Abdul Karim P.W.9 clearly deposed about the motive. His evidence on that point has not been rebutted. As a matter of fact, there is no material cross‑examination on that aspect. Similarly, we find no merit in the contention of the learned counsel for the appellant that there was any conflict between the medical and the ocular version. The argument with regard to the position of the deceased and the appellant as the time of occurrence is not very effective. We have perused the relevant evidence and the material on the record. Abdul Wahid S.I. P.W.8 who had inspected the spot stated that "it is incorrect that the place of occurrence was 4 feet lower than the surrounding fields and it had an embankment of 2 or 3 feet. It was at the level of the surrounding fields". Abdul Karim P.W.9 denied the suggestion that the land where the occurrence took place was 4 feet lower than the surrounding land. Similarly, Ghulam Qasim Khan' P.W.10 described as incorrect that the land where the deceased fell down was lower than the surrounding lands. Muhammad Jameel A.S.I. P.W.12 who had inspected the spot and prepared rough site‑plan Exh.P.N. deposed that the land of the field of occurrence was at level with the surrounding fields and was not 4 feet lower. We have also gone through the inspection note of the learned trial Judge. That, too, is of no help to the case of the defence. Deceased was hit when he was going on the north‑south running passage which was at the level of the surrounding lands.

16. We have also considered whether there was any possibility of the appellant being falsely implicated or being substituted for the real culprit. We have not been able to find out any valid basis for the contention raised by the learned counsel for the appellant. The incident took place in the broad‑daylight. It was a case of solitary accused and single shot. The injured was first taken to the hospital. He was provided medical aid. Right from the time the injured was taken to the hospital until Iris death, he remained unconscious. We are, therefore, not prepared to believe that the complainant‑party would have resorted to substitution, letting off the real culprit even in the case of serious enmity. In the instant case, the only enmity alleged is that sister of the deceased had come over to the house of the appellant and was returned to her parents the same day. This circumstance, even if true, was not enough for the complainant‑party to falsely involve the appellant. In the facts and circumstances of the case, we are not persuaded to accept the plea of substitution.

17. As regards the enmity, between Abdur Rehman and the complainant‑party no doubt it is brought on the record that one Ahmad Khan who was somewhat related to the complainant party was murdered in 1957 and in that case, Abdur Rehman and others were challaned and in 1964 one Lal Khan, a maternal‑uncle of the deceased. was murdered and Moazzam Khan, a cousin of Abdur Rehman and some others were challaned in that case, but it is also in evidence that niece of Muhammad Khan and Moazzam Khan was married to the son of Abdul Karim complainant. Thus, there was nothing extraordinary in the complainant and the deceased having gone for 'Fatehkhawani' of the said Abdur Rehman.

18. A contention was also sought to be raised that the F.I.R. was delayed but we find no force in this contention. As noted above, the injured was taken to the hospital soon after the occurrence and the statement of the complainant was recorded in the hospital on the basis of which formal F.I.R. was registered.

19. Evidence regarding the recovery of gun P‑1 need not be discussed because it is of no significance as no empty was recovered from the spot.

20. After considering the evidence and material on the record, we are of the view that the ocular evidence supported by medical evidence and coupled with the fact that the motive has been duly proved leave no room for doubt that it was the appellant who fired the fatal shot as a result of which Ghulam Sarwar died. The appellant has, therefore, been rightly convicted for the offence under section 302, P.P.C. As regards the sentence, we find no mitigating circumstance in favour of the appellant. The result, therefore, is that we dismiss the appeal and confirm the sentence of death.

S.G.D. ???????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.