1994 PLP 2044 (MLD)

Muhammad Ashraf son of Muhammad Baksh was tried by the learned Sessions Judge, Bahawalpur for the murder of Asghar All and Mst. Manzooran deceased, who vide his impugned judgment dated 14-44992 convicted him under section 302, P.P.C. on two counts and sentenced him to undergo imprisonment for life on each count and a fine of Rs.2,000 on each count, in default whereof to suffer further R.I. for 6 months. He was also directed to pay Rs.2,000 as compensation under section 544-A, Cr.P.C. on each count, in default whereof to suffer further R.I. for 6 months. The amount of compensation, if realized, was directed to be paid to the legal heirs of the respective deceased. He was also extended the benefit of section 382-B, Cr.P.C. To assail his conviction and sentence he has come up in appeal.

2. The prosecution case in brief as unfolded in F.I.R. No.102/90 Exh.PD registered at Police Station Qaimpur, District Bahawalpur on 23-5-1990 on the complaint of P.W.5 Ahmad Yar recorded by P.W.9 Muhammad Yaqoob, Inspector, was to the effect that the appellant's niece Mst. Zahoor Mai was married with Allah Yar, brother of the complainant and due to relationship he was on visiting terms. The appellant permanently lived in the Kotha of Ehata of Allah Yar and had also brought his luggage. Mst. Manzooran deceased, sister of the complainant was previously married with Munir Ahmad in Old Hasilpur and 2 years earlier to the present occurrence Munir Ahmad had divorced Mst. Manzooran, who alongwith her son Muhammad Ijaz aged about 4/5 years was living with the complainant. The appellant demanded the hand of Mst. Manzooran from the parents of the complainant, which was refused and thereafter the appellant started propaganda in? the brotherhood of the complainant that after the promise of the hand of Mst. Manzooran they had refused. Due to this grievance Muhammad Ashraf appellant was 'turned out of the house about two days earlier to the present occurrence, who went away alongwith his luggage. Deceased Asghar All had also helped the complainant PdrtY in turning out Muhammad Ashraf, who while proceeding had threatened that as they had refused to give the hand of Mst. Manzooran to him and had twined him out from the house after insulting him, he would teach them and Asghar Ali a lesson. On the night of occurrence the complainant alongwith Allah Yar, Manzoor Ahmad, P.Ws. (given up), Mst. Manzooran deceased was sleeping in the courtyard of the Ehata and about 1-00 a.m. on the barking of the dogs the complainant was awakened and witnessed the appellant holding carbine in his hand and standing beside the cot of Mst. Manzooran deceaseda who was identified in the light of the lantern. The complainant made hue and cry, on which Allah Yar and Manzoor Ahmad P.Ws. (given up) were awakened and the appellant immediately fired with carbine near the chest of Mst. Manzooran and ran. The fire hit near the heart of Mst. Manzooran deceased The P.Ws. ran after the appellant. He also fired on the chest of Asghar Ah deceased, who was sleeping in his Dera, was awakened and ran out of the Dera and at some distance fell. Muhammad Ashraf appellant ran towards the western side. Muhammad Aslam (P.W.7) and Maqsood Ahmad P.W. (not produced) were watering the land of Asghar Ali deceased, who tried to catch hold of the appellant and raised Lalkara, on which the appellant fired on them which missed. Meanwhile Allah Yar, Manzoor Ahmad P.Ws. (given up) and Noor Ahmad (P.W.6) alongwith Muhammad Aslam (P.W.7) and Maqsood Ahmad P.W. (not produced) apprehended the appellant alongwith a carbine and from his right side pocket of the shirt took out four live cartridges SG of .12 bore. They found Asghar Ali smeared in blood outside his Dera and there was blood on the cot and bedding of Asghar Ali. The motive behind was that the appellant Muhammad Ashraf due to not giving the hand of Mst. Manzooran and Asghar Ali for helping the complainant party had killed them. Muhammad Ashraf appellant alongwith the carbine and cartridges was present at the spot. The appellant alongwith the dead bodies was left behind under the guard of Allah Yar, Maqsood Ahmad and Manzoor Ahmad P.Ws. (given up) and P.W.7 Muhammad Aslam, and the complainant Ahmad Yar (P.W.5) reached the police station and lodged the F.I.R.

3. P.W.9 Muhammad Yaqoob, Inspector/S.H.O. after drafting the F.I.R. Exh.PD reached the spot and secured blood-stained cot P.6, blood-stained bedding P.7, Chadar P.8 which contained a fire shot vide memo. Exh.PE attested by P.W.9 Hidayatullah. He arrested the appellant from the spot and on his personal search secured purse P.9, National Identity Card P.10, wrist-watch P11, and an amount of Rs.1,200 P.12 vide memo. Exh.PF attested by P.W.B. Hidayatullah. P.W.7 Muhammad Aslam produced before him carbine P.12 alongwith 4 live bullets P.13 to P.16, which he had recovered from the appellant and the same were secured by P.W.9 vide memo. Exh.PD attested by P.W.7, and he had prepared the sealed parcels. He also secured blood-stained earth vide memo. Exh.PH from under the cot of deceased Mst. Manzooran. He secured blood-stained cot P.17 of Mst. Manzooran deceased vide memo. Exh.PK. The above memos. were attested by P.W.8 Hidayatullah. He recovered from the verandah of house of the complainant from near the cot of Asghar Ali and Mst. Manzooran 3 empties P.18, P.19 and P.20 and secured the same vide memo. Exh.PL. He also secured lantern P.21 from the place of murder of Mst. Manzooran vide memo. Exh.PM. He prepared the sealed parcels and the memos were attested by P.W.8 Hidayatullah. After completion of investigation he had challaned the appellant.

4. The appellant was sent up for trial. A charge under section 302, P.P.C. on two counts was framed against him, to which he denied and claimed trial.

5. The prosecution examined 10 P.Ws. in all to substantiate its case P.W.10 Dr. Muhammad Iqbal Javed on 23-5-1990 at 9-30 a.m. conducted autopsy on the dead body of deceased Asghar Ali and found the following njuries on his person:

(1) Lacerated wound measuring 3 c.m. x 3 c.m. x going deep with punched in black margins situated on seventh inter-costal space 5 c.m. lateral to the mid-line. (2) Rim of oval laceration four in number each measuring about 1-1/4 x 1 c.m. x going deep situated below and lateral to injury No.1. There was rupture of muscles corresponding to the injuries fracture of sixth rib near costal margin. Diaphragm was perforated. Liver was ruptured at multiple places. Chest cavity was full of blood on right side, and abdominal cavity also contained blood. Wad was recovered from the wound of entry as well as five pellets from the skin and muscles at the level of tenth rib posteriorly on the right side. The Doctor was of the opinion that the injuries were ante-mortem and caused by some fire-arm. The injuries caused destruction of liver resulting excessive bleeding, haemmorhage and shock. Such type of injury is sufficient to cause death in the ordinary course of nature. The time elapsed between injury and death was within half an hour and between death and post-mortem was within 12 hours. On the same day P.W.10 Dr. Muhammad Iqbal Javed also conducted autopsy on the dead body of Mst. Manzooran and found the following injuries on her person:

(1) Laceration measuring about 3 c.m. x 3 c.m. x going deep with punched in black margins situated on the left costal cartilage. (2) Rim of oval laceration four in number situated alongwith the lower lateral and medial border of injury each measuring 1-1/4 c.m. x 1 c.m. going deep. In the opinion of the Doctor the injuries were ante-mortem caused by fire-arm resulting haemorrhage, cardiogenic shock and death. Such type of injury is sufficient to cause death in the ordinary course of nature. The time elapsed between injury and death was few moments, and between death and post-mortem was within 12 hours. 6 P.W.5 Ahmad Yar complainant and P.W.6 Noor Ahmad stated the motive behind the incident that they refused the hand of Mst. Manzooran deceased to the appellant and further stated that Asghar All deceased had helped them in his ejectment from the Ehata of their brother Allah Yar P.W. (given up). P.W.5 Ahmad Yar and P.W.6 Noor Ahmad also stated the ocular account of the occurrence. P.W.5 is the complainant, who on the barking of the dogs was awakened and witnessed the appellant holding a carbine in his halide and standing near the cot of deceased Mst. Manzooran, who had fired at her. P.W.6 awakened on the commotion and was told by P.W.5 Ahmad Yar that the appellant after causing murder of their sister Mst. Manzooran was running. They chased the appellant and witnessed him firing a shot at Asghar deceased, who was sleeping in his Ehata. They chased the appellant raising alarm, who ran towards the west. Muhammad Aslam (P.W.7) and Maqsood ahmad (not produced) ran after the appellant who was encircled. The appellant fired at them which did not hit. P.W.7 grappled with him and the appellant was apprehended by the P.W.s. The recoveries of empties, blood-stained earth, blood-stained cots, carbine, live cartridges were witnessed by P.W.8 Hidayatullah vide memos.

7. The appellant when examined under section 342, Cr.P.C. denied the prosecution evidence against him and the recovery of incriminating articles at his instance. He also stated that he was arrested from Chishtian Bus Stand while he was proceeding to Bahawalnagar and police secured his purse P9, National Identity Card P10, an amount of Rs.1,200 P12 and wrist-watch P

11. In answer to the question "Why this case against you?" he replied:

"The complainant party with the connivance of police have registered a false case against me due to previous enmity. The wife of Allah Yar Mst. Manzooran is the daughter of one Muhammad Ramzan, who is father-in-law of complainant Ahmad Yar. Muhammad Ramzan and complainant Ahmad Yar had made this false case registered against me. The name of the wife of Muhammad Ramzan is Mst. Manzooran. Muhammad Ramzan had alleged that I had illicit relations with his wife Mst. Manzooran. Again Mst. Zeban and Soney Khan, the father of Mst. Manzooran Mai had got my son Abdul Ghani arrested in a case and he remained under custody for about 2/3 months. In these circumstances, it is impossible for me to live at the house of complainant party. In order to avenge the previous enmity, the complainant party had falsely involved me in this case. In fact, on the night of occurrence, the complainant party found both Asghar Ali and Manzooran in a compromising position and then they murdered them. No independent witness of the vicinity has been brought to prove the case, rather number of important witnesses have been given up by the prosecution. I was never apprehended at the spot and that on the other day, the complainant party arranged to arrest me while I was on a way to Bahawalnagar and was sitting at Bus Stand Chishtian Sharif." He had not made statement on oath, but produced in defence certified copy of The F.I.R. Exh.DB.

8. The learned trial Court after evaluating the evidence on record convicted and sentenced the appellant vide the impugned judgment. 9, I have heard the learned counsel for the parties at length, who have taken me through the record. The learned counsel of the appellant has criticised the evidence on record and stated that the deceased were done to death by complaint party as they had seen them in the compromising position and the appellant had been made a scapegoat.

10. P.W.10 Dr. Muhammad Iqbal Javaid during post-mortem examination had sent two vaginal swabs of Mst. Manzooran deceased to the Chemical Examiner and the sakme vide his report Exh.PT were found to be stained with semen. Mst. Manzooran deceased was divorced by her previous husband who was living with her brothers with her 4 years child. The appellant who was living with the brother of the deceased Mst. Manzooran, demanded her hand which was refused and thereafter he was turned out from the house and Asghar Ali deceased had helped the complainant party in turning him out from the house. The appellant was turned out from the house alongwith the luggage who had threatened the complainant party as well as Asghar Ali deceased. P.W.5 Ahmad Yar complainant and P.W.6 Noor Ahmad are brothers of deceased Mst. Manzooran and their evidence cannot be thrown away or brushed aside on account of their relationship with the deceased. They had no animus against the appellant and motive to falsely involve him. in the present case. The appellant had also fired at P.W.7 Muhammad Aslam and Maqsood P.W. (not produced) when they chased him while he was running away after the murder of Mst. Manzooran and Asghar All deceased. His fire missed. The appellant was apprehended alongwith pistol P12 and 4 live cartridges P13 to P16 on the arrival of P.Ws.5 and

6. P.W.9 Muhammad Yaqoob Inspector/S.H.O. secured 3 empties P18 to P20 from near the place of occurrence. He also secured Chadar P8 of Asghar Ali deceased which contained fireshot marks vide memo. Exh.PE. The report of the Forensic Science Laboratory Exh.PW is positive.

11. The appellant's niece Mst. Zahoor Mai is married with Allah Yar, brother of the complainant, and the complainant party could not think of falsely involving the appellant in the case. In the alternative it was also vehemently argued by the learned counsel for the appellant that the deceased were done to death by the appellant under grave and sudden provocation, as he witnessed them in compromising position. The appellant was not closely related to deceased Mst. Manzooran and at the time of his formal arrest by P.W.9 Muhammad Yaqoob, S.H.O. he stated that he was innocent and was falsely implicated. It was also urged that the deceased were done to death by the complainant party and to save their skin they had falsely involved the appellant. Mst. Zahoor Mai, the niece of the appellant who was married with Allah Yar, brother of the complainant, neither protested nor made any comPlaint about the false involvement of the appellant as well as the relations of Asghar Ali deceased. P.W.7 Muhammad Aslam was serving with Asghar Ali deceased, even he or near ones of Asghar Ali deceased had not protested on the false involvement of the appellant that the deceased was done to death by the complainant party. The appellant was apprehended at the spot by the p.ws and produced before P.W.9 who secured carbine Exh.PD from him as well as 4 live cartridges from his pocket. P.W.9 also secured empties from the spot. The parcels of empties and pistol were sent to the Forensic Science Laboratory and the report Exh.P.W. there of was positive.

12. The vaginal swabs taken from Mst. Manzooran deceased were sent to the Chemical Examiner and whose report was Exh.PT as Mst. Manzooran deceased was a divorcee. She was murdered while lying on the cot in the house of her parents and nearby her brothers and other family members were sleeping. It was not possible for anyone to commit sexual intercourse with her in the presence of the P.Ws. who were sleeping nearby. The dead body of Asghar Ali deceased was found at a distance of 52 Karams. Asghar All deceased is stated to have been shot at by the appellant when he was sleeping on the cot in his Ehata and after the receipt of fireshot he ran and fell at some distance and succumbed to his injuries. There is no iota of evidence on record that the deceased Asghar Ali and Mst. Manzooran had illicit liaison or they were witnessed by anybody or suspected to have illicit relations. P.Ws. 5, 6, 7 and 8 had no animus against the appellant and no motive whatsoever to falsely involve him in the present case. They had made their statements in a straightforward manner. P.W.5 and P.W.6 are brothers of deceased Mst, Manzooran. They are inmates of the house where Mst. Manzooran was done to death and were awakened on the barking of the dogs as they were sleeping nearby. They are natural witnesses. They had chased the appellant who had escaped from the scene and thereafter fired at Asghar All deceased, who also succumbed to his injuries after crossing some distance. Asghar All deceased had also helped in turning out, the appellant from the house who while going away had threatened the complainant party as well as Asghar Ali deceased with dire consequences. In the last it was vehemently urged that the ocular account is not in consonance with the medical evidence as the Doctor had stated during cross-examination that after receipt of injury, deceased Asghar Ali could not run. It is pertinent to mention here that the appellant fired at Asghar Ali and ran away, and he was already being chased by P.W.5, P.W. and others from the side where Mst. Manzooran was fired at by the appellant. P.W.7 Muhammad Aslam P.W. Maqsood Ahmad (not produced) present at a sufficient distance also ran towards the spot and in the circumstances, they might not have exactly observed as to how Asghar All deceased behaved after having been shot at. The appellant was apprehended at the spot by the P.Ws.

13. F.I.R. Exh.PD contains the name of the accused, the witnesses, the weapon carried by the accused/appellant and the manner in which the occurrence took place, all are given therein. The motive behind the occurrence stands proved. The ocular account is supported by the medical evidence, which is further corroborated by the recovery of the crime weapon from the appellant, who was apprehended at the spot. The empties had matched with the pistol P12 and the report of the Forensic Science Laboratory Exh.PW is positive.

14. Pursuant to the above discussion, I am of the view that the appellant was rightly convicted and sentenced and no exception can be taken to the impugned judgment. Resultantly this appeal fails and is dismissed. N.H.Q./M-1686/L?????????????????????????????????????????????????????????????????????????????? Appeal dismissed.