2005 PLP 707 (YLR)

25. The two eye‑witnesses name above have consistently rendered the account of occurrence. According to them, they were working in the fields at the relevant time when the appellant Shafaqat alias Ashfaq alias Shaki and his brother Liaqat Ali came there. The learned defence counsel has submitted that the complainant party had leased out their land to some other persons and hence, there was no question with them to have worked there at the relevant time and this is a mere made up story and in this regard has made reference to the fact in the cross -examination of Muhammad Shakeel Patwari that in the days of occurrence the land of the complainant party was under the cultivation of one Aslam and Nazir. This fact no doubt is there in the cross -examination of the said Patwari but complainant Riaz Ahmad had stated that they were working in the fields near the tubewell. He nowhere had said that they were working in their own land: So, it does not make any difference that if the Patwari has said that their land was under the cultivation of the aforesaid persons.

26. Riaz Ahmad has very clearly explained that he was doing Godi in a Litchi Garden at that time, which is at a distance of about 150 feet from the place of occurrence. So, he has made it clear that he was working in the said garden, which is close to the place of occurrence. The place of occurrence is situated in the land owned by Safdar and others. He has nowhere said that the land where the occurrence had taken place belonged to him. So, the plea of the appellant's side that the witnesses have no occasion to work in the fields near the place of occurrence is without force.

27. It was a day time and the month of March on the relevant day. They both are cultivators by profession. So, it is not at all strange or abnormal, that if they had been working in the fields.

28. As regards the delay in lodging the F.I.R., the same no doubt is there but it fully stands, explained in the evidence on the record. The two eye‑witnesses as per their showing had carried the deceased to Mayo Hospital, Lahore in an injured condition. It is in the evidence that the deceased was unconscious at the time of his admission there. He had received number of injuries on his person. The complainant is his father. He definitely could be interested in saving his life first and then to attend any other' matter. It is in his evidence that he remained attending his injured son till the next day when he went to the police to report the matter. This was quite a natural conduct on the part of a, father to be more concerned about the safety of the life of his son and then to look for any other matter. So, the delay in lodging the F.I.R., in the above circumstances of the case, stood' fully explained on the record with all reasonableness. It, has no adverse effect qua the veracity of the version of the eye witnesses.

29. It has also been argued from the appellant's side that the name of the complainant did not figure in the MLR of the deceased and this suggests that he was not present at the spot and had he been present there, he would have accompanied the deceased to the hospital and his name figured in the MLR as the person, who brought him to the hospital. This contention is based upon mere supposition. The name of one Junaid, who is said to be the maternal nephew of the deceased is recorded in the initial MLR of the deceased as the person who brought him to the hospital. This does not necessarily mean that the complainant was not accompanying his son at that time. Muhammad Junaid Khan being close relative of the deceased might have got mentioned his own name as the person, who brought him to the hospital. The mentioning of his name in that context does not necessarily exclude the possibility of Riaz Ahmad complainant having accompanied his injured son to the hospital. This contention, therefore, is without force and the same is repelled.

30. There is complete harmony in the testimony of the eye‑witnesses as regards all the material and major details of the incident like the day, time, venue and the manner of happening of the incident. There has not been pointed out any material or significant discrepancy or contradiction in them on any such aspect of their testimony. This fact has inspired confidence with us as regards the probability of their presence at the spot and having witnessed the occurrence themselves, The contention that they were not present at the spot and had not witnessed the occurrence, thus is not without any basis or at least is not supported from any evidence on the record. The contention, therefore, is repelled being without force.

31. They have appeared us to be the reliable witnesses. They, therefore, have rightly been relied upon by the learned trial Court.

32. As regards the plea of sudden grave and sudden provocation of appellant Shafaqat Ali alias Ashfaq alias Shaki, the same seemingly is devoid of force.

33. The appellant did not stick to one version at the trial. He is a way has also taken the plea of self‑defence. It was suggested to the eye‑witnesses that the deceased had intended to fire at him and he but had snatched the pistol from him and fired at him. He on the other hand has also stated to have acted under grave and sudden provocation. According to him, he seeing the deceased attempting to commit Zina‑bil- Jabr with his sister had fired at him.

34. He in order to support his such plea had produced his sister Mst. Shahnaz Bibi (D.W.1), who has deposed on the similar lines. This plea and her evidence, when had been examined, it has appeared that her version was not based on truth. It is because of the fact that none else than her has come forward to support her in that regard. She is the only witness in support of her such story. She neither herself nor any of her relative had reported that matter to the police, I.O. Abdul Rashid, S.‑I. has denied that the deceased had attempted to commit Zina‑bil‑Jabr with her on the relevant day. This was his opinion as a result of the investigation by‑ him in the matter. So, this is her mere bald and bare assertion and without any substantiation or corroboration from any other material or circumstances in the evidence on the record. This, thus appears to be a made up story just to save the skin of the appellant. She appears to have given the sacrifice of her grace and honour by narrating such story to save the life of her brother. Anyway, the story narrated by her in the given facts and circumstances of the case has appeared us to be not appealing. This plea, therefore, was liable to rejection and the same has rightly been rejected by the learned trial Court. In this regard reliance has been placed upon the case of Muhammad Nasrullah v. The State (2003 SCMR 189).

35. Appellant Shafaqat alias Ashfaq alias Shaki had killed the deceased at the given date, time and place as has appeared from the testimony of the eye‑witnesses. According to them, he had fired four successive shots at the deceased hitting on the above mentioned parts of his body.

36. Dr. Muhammad Obaidullah (P.W.14), who initially had examined the deceased had found following the injuries on his person. (i) One lacerated wound 1‑1/2 c.m. x DNP on front of the left knee. Wound was bleeding, corresponding hole on white Shalwar was present. X‑Ray was advised. (ii) one lacerated wound 1‑1/2 c.m x 1‑1/2 c.m. x DNP on the front of the lower most part of the left thigh. X‑Ray was advised. (iii) One lacerated wound 1 c.m. x 1 c.m. x DNP on the inner part of the left thigh lower part. (iv) One lacerated wound 1 c.m. x 1 c.m x DNP front of upper most part of the right thigh. X‑Ray was advised. (v) One lacerated wound 1 c. m. x 1 c.m. x DNP on upper part of right thing. X‑Ray was advised. (vi) Lacerated wound 1‑1/2 c.m. x 1‑1/2 c.m. x DNP on left side of abdomen. Corresponding hole on the shirt was present. (vii) Lacerated wound 1‑1/2 c.m. x 1‑1/2 c.m. x DNP on the back of the lower part of the left side of chest. X‑Ray was advised. These according to him were with fire‑arm.

37. Similarly Dr. Zulfiqar Ali, had found the following injuries on the dead body of the deceased: (i) A wound 1 x 1 c.m. below left costal margin approximately six inches away from the mid line. (ii) A wound 5 x 5 c.m. just below hip case posteriorly on the left side approximately 7 inches away from mid line. (iii) A wound 1 x 1 cm on the outer aspect of gluteel region on right side. (iv) A wound .5 x 1 c.m. on the upper of right thigh on antrolateral aspect. (v) A wound 1 x 1 c.m. on middle of right thigh on posterior aspect. (vi) A wound on lower part of left thigh anter‑material aspect 1 x 1 c.m. (vii) 5 x 5 c.m. wound on internal aspect of left thigh just above knee joint. (viii) A wound 1 x 1.5 c.m. on posterior aspect of left calf just below knee joint. (ix) Clinical and biological evidence of fracture of lower part of left femur. (x) No distal pulsation on left leg and no destial sensations left leg and thigh was tensd. This is all incomplete harmony and corroboration to the ocular testimony as regards the infliction of injuries by the appellant to the deceased. The learned counsel for the appellant has not thrown any challenge to the medical evidence. The same, therefore, was rightly received as corroborative to the ocular testimony. This was a correct approach towards the matter. The same is endorsable and we endorse the same.

38. In the above circumstances, when the ocular testimony has appeared to us to be confidence‑inspiring and reliable, the factum of motive having not been believed by the learned trial Court or not proved is hardly of an adverse effect to the prosecution because motive or not motive or weak motive or absence of motive hardly makes any difference when the other reliable evidence may be available on record against accused. It is clear from the above position that such evidence is available against the appellant. The contention of the appellant's side in this regard is without force and the same is repelled.

39. We are, therefore, from the above discussion fully convinced that the prosecution has brought home the guilt to the appellant beyond any shadow of reasonable doubt. He, therefore, was rightly convicted.

40. As regards the contention regarding the award of lesser penalty than death to him, we have examined this aspect of the matter with all care. The learned counsel for the appellant has in the alternative contended that he had acted under the commandment of his elder brother and so he deserved lesser penalty and in this regard the reference has been made to the above referred esteemed authorities.

41. The presence and participation of his brother Liaqat Ali in the occurrence has been found to be doubtful. He was acquitted of the charge by giving him the benefit of doubt. In such circumstances, it does not appear that he had acted under the commandment of his elder brother. He as per the ocular evidence on the record has appeared to have come to the spot armed with a weapon like the .30 bore pistol with all intention to kill the, deceased and had fired four successive shots at him resulting into his ultimate death. It appears to us to be his own act and not under the command of his elder brother. He had acted in a callous manner in that regard. He, therefore did not deserve any leniency in the matter of sentence. The sentence of death, thus was rightly awarded to him. The esteemed authorities referred to above, with all respect, are not aptly applicable to his case due to the said distinguishable reasons. The sentence of death awarded to him, thus is also maintained.

42. However, it is here made clear that the learned trial Court has mentioned that he in the event of failure to pay compensation to the legal heirs of the deceased shall suffer rigorous imprisonment for six months, while rigorous imprisonment in such an eventuality is not provided in the relevant law. He, therefore, shall suffer six months simple imprisonment in the event of his failure to pay the compensation instead of six months rigorous imprisonment.

43. As a result of above position, the appeal (Criminal Appeal No. 544 of 1999) brought by appellant Shafaqat alias‑Ashfaq alias Shaki fails and the same is dismissed. The Murder Reference is answered in the affirmative. The death sentence awarded to him is confirmed.

44. As regards the case of Liaqat Ali, he was not attributed any overt act qua the deceased. He allegedly had merely raised Lalkara at the time of occurrence. The I.O. had opined that he was not present at the spot at the relevant time as per his investigation. Though this is mere his opinion and can't be given much weight too but this as a fact when seen in conjunction with his role of raising mere Lalkara and being brother of the main accused Shafaqat Ali alias Ashfaq alias Shaki, his involvement in the case seems not above doubt. Because it is matter of common observation that there is growing tendency in our rural society to rope in ‑ maximum family members of accused to wreak vengeance.

45. We, therefom, find that the learned trial Court has rightly exercised care and caution in the matter of his acquittal. The impugned judgment to the extent of his acquittal seems unexceptionable. The appeal (Criminal Appeal No. of 1999) brought by complainant Riaz Ahmad against his acquittal, therefore, fails and the same is dismissed. Appeal dismissed accordingly. H.B.T./S‑237/L