DOST MUHAMMAD ALIAS DOSA Versus THE STATE Mehr Ghulam Ali Mubashir and Rafi Siddiqi , Aslam Shahid for the State.

MUHAMMAD MUNIR KHAN, J --This Criminal Appeal No.22 of 1985, Murder Reference No.145 of .1985 and Criminal Revision No.393 of 1985 filed by Muhammad Nawaz complainant for the enhancement of the fine and compensation arise from the judgment of learned Sessions Judge, Sargodha, whereby he on 8-5-1985, convicted Dost Muhammad (40) appellant under section 302 P.P.C. for the murder of Zafar Iqbal (24) and under section 307 P.P.C. for murderous assault on Tahir Iqbal P.W.(not produced) and sentenced him as under:-

Under Section 302 P.P.C.:

Death and a fine of Rs.5000, in default thereof one year R.I. with the direction that the fine when recovered be paid to the legal heirs of the deceased.

Under section 307 P. P. C.

Imprisonment for 7 years' R.I. and a fine of Rs.1,000, in default thereof six months' R.I. with the direction that the fine when recovered be paid to Tahir Iqbal injured P.W.

We propose to dispose of the three matters through single judgment.

2. The occurrence took place on 4-9-1984 at morning prayer time in the Haveli of Saw Machine of complainant situate in village Bhakkar Bar at a distance of 3 miles from Police Station Shahpur Saddar, District Sargodha. The FIR Ex.PM was lodged by Muhammad Nawaz, father of the deceased on the same day at 5-30 a.m. and was recorded by Sardar Bakhsh SHO, P.W.10.

3. Zafar Iqbal deceased was son of Muhammad Nawaz complainant. Dost Muhammad appellant is son of maternal-uncle of the complainant. Daughter of the complainant, is wife of 'Ata Muhammad, younger brother of the appellant. Sister of the appellant is wife of Umar Daraz, brother of the complainant. The parties are thus closely related to each other.

4. The motive for the murder was that 21 years before the occurrence, Zafar Iqbal deceased alongwith others had caused fire?arm wound to the appellant and a case under section 307 P.P.C. was registered against the deceased and his co-accused, who were subsequently acquitted, hence this occurrence.

5. As for the main occurrence, it has been stated that at the eventful time, Muhammad Nawaz complainant, Zafar Iqbal deceased Fakhar Iqbal, Tahir lqbal and Muzaffar Khan P.W.7 were sleeping in the Haveli of Saw Machine of the complainant in village Bhakkar Bar, when Dost Muhammad appellant armed with a gun came in the Haveli. By that time Muhammad Nawaz complainant had awoken for morning prayer and was standing near his cot. Dost Muhammad fired shot at Zafar lqbal who was sleeping on a cot hitting on his head. Muzaffar Khan P.W.7, Fakhar lqbal and Tahir lqbal also woke up. Fakhar Iqbal and Tahir lqbal started running to save their lives. On this Uost Muhammad appellant fired shot hitting on the back of the head of Tahir Iqbal P.W. Fakhar Iqbal remained unhurt- Dost Muhammad then re-loaded his gun and ran away. Zafar Iqbal expired on the spot.

5. On 4-9-1984 at 11-45 a.m., Dr. Malik Muhammad Khan P.W.6 conducted post-mortem examination on the dead body of Zafar Iqbal and found following injuries: -

(1) A round irregular wound 21/ x 21" above and front of right ear with inverted margins, cavity deep (skull cavity). There was singeing of hair, blackening around, tatooing and burning around the edges. It was wound of entry;

(2) A lacerated wound on the left side of skull (occipita' and temporal regions) and going to left side of face 7' x 5" with everted margins. Blood and brain-matter was coming out from this wound. It was wound of exit of injury No. 1. All the skull anal face bones were fractured. I had mentioned injury No.2 by mistake in the post-mortem report that injury No.2 was the exit of injury No.2.

(3) An abrasion left side uppermost part of nose (nose and left eye) J x

Injuries Nos. 1 and 2 were with fire-arm whereas injury No.3 was caused by blunt weapon. On internal examination, the doctor found that skull bones and face bones were fractured. Two cards, wads were recovered from the brain-matter. The stomach contained little greenish fluid and the large intestines were full with foecal matter.

In his opinion, the death was due to intra-cranial haemorrhage and shock as a result of fire-arm injury. The injury was sufficient to cause death in the ordinary course of nature.

6. On the same day, the doctor examined Tahir Iqbal (10) and found following injury: -

"(1) A lacerated wound right side of occipital region upper part 4 x 1 c.m. x bone deep. A small piece of glass -was removed from the wound."

The injury was caused by fire-arm and was declared simple.

7. On 11-9-1984 Dost Muhammad appellant was arrested by Sardar Bakhsh, Inspector, P.W.10. At the time of his arrest, his licensed gun Exh.P.10 was lying near him. So .it was taken into possession vide memo Exh.P. K. attested by Riaz Hussain Shah P.W.8,Ata Muhammad (not produced) and Sardar Bakhsh, Inspector, P.W.10. It may- be noted that on 4-9-1984, two crime empties Exh.P.9/1-2 were recovered from the place of occurrence and were taken into possession vide memo Exh. P. J. attested by Muzaffar Khan P.W.7, Fakhar Iqbal (not produced) and Sardar Bakhsh, Inspector P.W.10. The Forensic Science Laboratory Report Ex. P. T. reveals that the crime empty was fired from gun Exh.P.10 recovered from the appellant. So far as the other crime empty is concerned, since the same was without percussion cap, therefore, it could no; be, said as to whether it had been fired `nom gun Exh.P.10 or not.

8. To prove its case, prosecution produced 101 witnesses. Muhammad Nawaz P.W.9, and Muzaffar Khan P.W.7 have given the ocular account of the occurrence. They supported the prosecution version of the occurrence in material particulars. Muhammad Nawaz claims to have seen Dost Muhammad appellant firing shot from his gun on Zafar Iqbal and Tahir Iqbal P.W. Muzaffar Khan P.W.7 stated that since he was asleep and woke up on the report of fire-arm, therefore, he could not see the first shot fired by Dost Muhammad appellant. He, however, saw, the appellant armed with a gun 'present in the haveli and firing shot hitting Tahir Iqbal P.W. (Tahir Iqbal was given up by District Attorney because of his tender age). Muhammad Nawaz P.W.9 also deposed about the motive of the appellant to kill the deceased. Muzaffar Khan P.W.7 has also supported the recovery of two crime empties Exh.P.9/1-2 from the place of occurrence. Riaz Hussain Shah P.W.8 stated that gun Exh.P.10 was recovered from Dost Muhammad appellant at the time of his arrest. Dr. Malik Muhammad Khan P.W.6 has proved the medico-legal report of the injury of Tahir Iqbal P.W. and the post-mortem examination report of Zafar Iqbal deceased. Dr. Altaf Hussain P.W.1 has proved the X-Ray report Exh. P. A. of the injury of Tahir Iqbal. Sardar Bakhsh Inspector, P.W.10 had recorded the FIR, effected recoveries of crime empties and gun Exh.P.10 from the appellant and investigated the case. The rest of the evidence is more or less of formal nature.

9. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He raised plea of false implication on account of enmity. In reply to Q.No.10, he stated: --

"I am innocent. The complainant has many enemies. He has turned out his son Nazra from his other wife Mst. Sardaran from his house. He had given me no property, but instead the deceased was put in the charge of the saw-machine. Said Nazra was laso aggrieved on this point against the deceased, who was killed all alone during the dark hours of the night."

The appellant did not produce any witness in defence. He, however, tendered birth certificate Exh.D.C. to show that Nazra was son of Muhammad Nawaz complainant; certified copy Exh.D.D. of FIR No. 147 dated 9-11-1981; report Exh.D.E. under section 173, Cr.P.C. of the case F.I.R. No.147/81 to prove his enmity with Muzaffar Hussain P.W.; Exh.D.G., certified copy of the order in case 'State. v. Riaz', certified copy of his statement Exh.D.H. in case against Akhtar and Riaz, relatives of Muzaffar P.W. and age certificate Exh.D.F. of Tahir Iqbal issued by Headmistress Bhakkar Bar school to show that he was born on 4-5-1974.

10. The trial Court while believing the motive, ocular evidence, incriminating circumstances and the medical evidence, has convicted and sentenced the appellant as stated above.

11. Learned counsel for the appellant contended that the F.I.R. was recorded on the spot; that the two eye-witnesses, namely Muhammad Nawaz and Muzaffar Khan are not reliable, that they are interested witnesses; that Muzaffar Khan had not seen the shot hitting the deceased; that Muzaffar Khan was inimical towards the appellant on account of criminal litigation, that Muhammad Nawaz is a false witness, inasmuch as, he denied that Nazra was his son whereas birth certificate Exh. D. C. shows that Nazra was really the son of the complainant from his second wife Mst. Sardaran Bibi; that the eye-witnesses have made dishonest improvements and their statements are in conflict with the medical evidence; that the recovery of gun from the appellant is fake; that Riaz Hussain Shah P.W.8 is not a dependable witness in that he was not resident of the vicinity; that no Lumbardar or Chaukidar of the village was associated with the investigation at the time of the recovery: the fact that the crime empties were lying near the spot was neither mentioned in the F.I.R. nor in inquest report and that the crime empties and the gun were despatched after sufficient delay. Learned counsel for the State has supported the judgment of the trial Court. Learned counsel for the complainant /petitioner requested for the enhancement of the fine as well as compensation.

12. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statement made by the appellant under section 342 Cr.P.C., documents tendered by him in defence and the circumstances appearing in the case carefully. We do not feel persuaded to agree with the learned counsel for the appellant for the reasons that the two eye-witnesses namely Muzaffar Khan P.W.7 and Muhammad Nawaz PW.9 seem to be quite dependable witnesses. No doubt Muhammad Nawaz is father of the deceased but his evidence cannot be discarded on the ground of this relationship.' The occurrence took place in the Haveli of his Saw Machine where he used to sleep and as such he was the natural witness of the occurrence. The occurrence took place at morning prayer time. The appellant is son of his maternal-uncle. Muzaffar Khan P.W.7 is not related to the deceased. He had no animus against the appellant. He has given plausible cause of his presence on the spot at the time of occurrence. He used to sleep in the Haveli of Saw; Machine of Muhammad , Nawaz complainant to safeguard his truck and tractor which he used to park in the plot of his cousin adiacant to the Saw Machine of the complainant. The two eye-witnesses have successfully faced the test of cross-examination. The defence counsel failed to impeach their credit and injure their integrity and veracity. The statements made by them are in consonance with the probabilities and materially fit in with the rest of the evidence. The appellant was previously known to Muzaffar Khan, therefore, he could easily identify him at the time of occurrence. There is no conflict in the statements of the eye-witnesses and medical evidence. Muhammad Nawaz PW has also deposed about the motive of the appellant to do away with the deceased. In his statement under section 342, Cr.P.C. the appellant had admitted that Zafar Iqbal deceased and one Ghulam Abbas had launched murderous assault on him about two years and three months before the occurrence and on the conclusion of the trial, they were acquitted. The objections raised by the learned counsel for the appellant with regard to the credibility of the eye-witnesses are devoid of force and substance. Muzaffar Khan had no direct enmity with the appellant. The document Ex.DD shows that in a case lodged by one Muhammad Riaz against Dost Muhammad appellant, Kausar Hussain nephew of Muzaffar Khan was a witness. The document Exh.DH shows that Dost Muhammad appellant had made statement in a criminal case against Akhtar, a relative of Muzaffar Khan PW.7 but this does not mean that Muzaffar Khan was annoyed with the appellant. The statement of Muhammad Nawaz also cannot be discarded merely because he disowned. Nazra as his son from his second wife Mst. Sardaran Bibi. The documents Exh. D. C. to D. H. do not impeach reliability of the two eye-witnesses. There is nothing on record to show that the F.I.R. was recorded after preliminary investigation. Learned counsel has tried to make capital out of the statement of Abdul Ghafoor D.W. that the complainant had not accompanied the police from the Police Station and had met them on the spot. Learned counsel for the appellant wants us to infer from this statement of Abdul Ghafoor P.W.3 that the F. I. R. was recorded on the spot after preliminary investigation. It would be too much to draw this inference, particularly when Muhammad Nawaz complainant and Sardar Bakhsh Inspector/ S.H.O. P.W.10 were not cross-examined on this point. The complainant was not given any opportunity to explain as to how he happened to be present on the spot before the arrival of the police. Neither the complainant nor the S.H.O. has stated that the complainant had accompanied the police from the police station to the place of occurrence or that he was present before the police came to the spot. Furthermore, the possibility that after lodging the F.I.R. the complainant might have left police station for the spot before the police left the police station cannot be excluded. The ocular evidence finds support from the recovery of gun Exh.P.10 from the appellant. Riaz Hussain P.W.8 is quite an independent witness. He is neither related to the deceased nor inimical towards the appellant. He has faced the test of cross-examination successfully. Sardar Bakhsh Inspector had no reason to plant gun Exh.P.10 on the appellant. The recovery of the two crime empties from the spot is also prove; through reliable evidence of Muzaffar Khan P.W.7 and Sardar Bakhsh S. H. O. P. W.10. The empties were deposited in the Forensic Science Laboratory on 10-9-1984. Gun Ex. P.10 was recovered from the appellant on 11-9-1984 and was sent to the Forensic Science Laboratory on 17-9-1984 and as such there was no occasion for tampering with the empty or the gun. The Forensic Science Laboratory Report Exh.P.T. reveals that one of the two crime empties found from the spot was fired from the licensed gun of the appellant. The recovery of th i gun matching with the crime empty lifted from the spot is a strong circumstance which undoubtedly connects the appellant with the crime. The criticism of the learned counsel for the appellant with regard t the incriminating recoveries does not hold any water. The omission to mention the presence of the crime empties in the FIR, in the site plan and in the inquest report does not detract evidence of the recovery witnesses from correctness. Similarly, the failure on the part of the Investigating Officer to associate the Lumbardar, Chaukida or local Councillor with the investigation at the time of recovery does not damage or minimize the evidentiary value of the statements o Riaz Hussain P.W.8 and Sardar Bakhsh S.H.O., P.W.10. They have already been found to be confidence inspiring witnesses. It is not the requirement of law that Lumbardar, Chaukidar or Councillor should be associated to witness the recoveries. The credibility of a witness depends on the intrinsic value of his statement and not on his status in life. The trial Court has appreciated the relevant evidence on record properly and has given sound reasons in support of the conclusions arrived at by it. For all these reasons, we are convince that the appellant has rightly been convicted under section 302/307 P.P.C. for the murder of Zafar Iqbal- and murderous assault on Tahir lqbal P.W.

13. This brings us to the question of sentence. We have considered this question with utmost care on our part and have not been able to find out any mitigating circumstance in favour of the appellant for lesser penalty.

The upshot of the above discussion is that there being satisfactory basis to uphold the conviction and sentence of the appellant, the appeal is dismissed in toto and the sentence of death is confirmed. The connected revision automatically fails.

M.Y.H./D-24/L ??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.