2006 PLP 1887 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

This judgment will dispose of Criminal Appeal No.992 of 1998 filed by Muhammad Iqbal, who was convicted and sentenced by the learned Additional Sessions Judge, Gujranwala, vide his judgment, dated 19-10-1998 as under:

Death with compensation of Rs.50,000 or in default six months' R.I. under section.302(b), P.P.C. Murder Reference No.337 of 1998 for confirmation or otherwise of death sentence of appellant shall also be replied through this single judgment.

2. Brief facts of the case as disclosed in F.I.R. Exh.P.A. are that marriage of Muhammad Iqbal appellant took place with Mst. Shazia Bibi daughter of Muhammad Latif, brother of Saif Ullah/complainant. Muhammad Latif was working out of country and his wife also died. Mst, Shazia Bibi for looking after her brothers and sisters was living in the house of her parents and her husband Muhammad Iqbal also used to live with her. On 13-8-1996 Muhammad Iqbal had a quarrel with Mst. Khurshid Bibi, mother of complainant and grandmother of Mst. Shazia Bibi. He went back to Gujranwala to his parents house. At evening time, Muhammad Iqbal along with his father Ghulam Rasool, brother Irshad and mother Amna Bibi came back and they started quarrelling with Mst. Khurshid Bibi. They also insisted that they will take with them Mst. Shazia Bibi to Gujranwala. On her noise complainant along with his brother Muhammad Hanif, Muhammad Sharif and Muhammad Ishaq reached in the house of Muhammad Latif. Muhammad Sharif tried to patch up the matter between the parties. At about 9-00 p.m. Mst. Amna Bibi, Ghulam Rasool and Irshad grappled with said Muhammad Latif. The complainant and P.Ws intervened, Muhammad Iqbal took out a pistol from his folder, made fire shots hitting Muhammad Sharif on his chest and left arm. After receiving injuries Muhammad Sharif fell down. Thereafter accused fled away from the spot. Muhammad Sharif was shifted to Civil Hospital, Wazirabad, thereafter he succumbed to the injuries.

3. After registration of formal F.I.R., the investigation of the case was taken over by Liaqat Ali Gorrya, Inspector/P.W.7. He proceeded to the Civil Hospital, Wazirabad, took over the dead body, prepared inquest report Exh.P.F. Thereafter, he reached the spot and took into possession blood through cotton from the spot, two crime empties P-1/1-2 and one Sikka Goli P-2 vide memo. Exh. P.D. On 2-9-1998 he arrested Muhammad Iqbal appellant. While in custody, Muhammad Iqbal led to the recovery of .30-bore pistol Exh.P.D. While the Investigating Officer arrested Irshad accused on 16-9-1996. He also arrested Ghulam Rasool and Mst. Amna Bibi on 18-9-1998. After completion of investigation, the accused was sent up to face trial.

4. At the trial, the prosecution in order to prove its case produced 7 witnesses in all. The prosecution after tendering in evidence the reports of Forensic Science Laboratory Exh.P.K., Chemical Examiner Exh.P.L. and that of Serologist Exh.P.M. closed its case. The accused in his statement recorded under section 342, Cr.P.C. pleaded his false implication. The accused did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial the appellant was convicted and sentenced as stated above.

5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and other relevant material available on record, the learned counsel for the appellant in support of this appeal submits that both the witnesses are brothers of the deceased; that the witnesses lived in a different house; that they were chance witnesses and they have failed to plausibly explain their presence at the time of occurrence; that the appellant had no motive whatsoever to kill Muhammad Sharif, who was not his father-in-law; that the inmates of the house, like mother of the deceased and wife of the appellant Mst. Shazia Bibi were not produced; that the ocular account is not supported by the medical evidence; that no independent witness was associated with the recovery proceedings; thus, the prosecution failed to prove the recovery to the judicial satisfaction; that in any case it was not a case of capital sentence, as the origin of fight was not known to the P.Ws. who reached the spot after hearing the noise; and that despite best efforts of the appellant, who was a youngman, his wife was being detained by his in-laws.

6. The learned counsel appearing on behalf of the State and the complainant have submitted that both the witnesses had no previous enmity or ill will against the appellant, so as to depose falsely against him; that both the P.Ws. have given natural account of the occurrence, which was supported by the medical evidence as well as recovery of weapon at the instance of appellant; that the crime empty recovered from the spot wedded with the weapon recovered at the instance of the appellant; that except for the motive set down in the F.I.R. there was no other motive behind the occurrence; that it was within the right of the prosecution to produce witnesses of its choice and the prosecution could not be forced to produce each and every witness; and that no mitigating circumstance exists in favour of the appellant, who has taken the life of an innocent person. Both the learned counsel support the judgment passed by the learned trial Court.

7. We have heard the learned counsel for the parties at length and scanned the entire record of the case.

8. The occurrence took place in the house of Muhammad Latif father-in-law of the appellant, who was brother of Muhammad Sharif deceased. As Muhammad Latif was abroad and his wife had died, Mst. Shazia Bibi (wife of the appellant) was living in the house of her father to look after her younger brothers and sisters. Mst. Khurshid Bibi, grand mother-in-law of the appellant was also present in the house. All the above noted facts and time of occurrence have not been challenged. Saif Ullah P.W.1 and Muhammad Hanif P.W.2, who are brothers of the deceased, have furnished the ocular account. There is nothing on record that both these witnesses had any ill-will, enmity or grouse against the appellant to involve him in a false case. Both of them have given a very consistent and confidence inspiring account of the occurrence as far as the appellant is concerned and their statements are corroborated by the factum A of promptly lodging of F.I.R. as the occurrence took place at 9-00 p.m. and the matter was reported at the police station, which was at a distance of nine furlongs, at 9-30 p.m. within half an hour. The deceased was immediately taken to the Hospital and after confirmation of his death within five minutes the matter was reported to the police station, which was at a distance of 2-1/2/3 furlongs from the Hospital.

9. The argument of the learned counsel for the appellant that Saif Ullah and Muhammad Hanif P.Ws were not present at the time of occurrence, as they lived in a different house is devoid of any force. Muhammad Hanif has stated during cross-examination that the distance between the house and that of his brother Muhammad Latif was about 20/25 feet. He further stated that he, Saif Ullah (P.W.1) and Muhammad Sharif deceased lived together in the same house. It is also noteworthy that he explained that his wife informed him that Muhammad Iqbal appellant was quarrelling with their mother at 8-00 p.m. and therefore, it was not unnatural for the sons to go to the house where their mother was present and look into the matter but most importantly it was suggested to P.W.1 Saif Ullah that in fact Muhammad Iqbal grappled with Muhammad Sharif and his brother and Muhammad Hanif made a fire shot at Muhammad Iqbal, which inadvertently hit Muhammad Sharif and he died as a result of fire-arm injury. After that suggestion, which was duly rejected by the P.W., it could not be said that Muhammad Hanif or appellant was not present at the time of occurrence.

10. Statements of eye-witnesses are also supported by the medical evidence. It may be noted here that while describing Injury No.2 inadvertently words "averted margins" were typed. We have perused the post-mortem report Exh. P.E. wherein words "inverted margins" have been mentioned. We have also looked into the Urdu record wherein said injury has been described as "". So number of injuries and` seat of injuries are in consonance with the statements of the eye-witnesses.

11. Strong corroboratory evidence in the shape of recovery of weapon and its tallying with one of the crime empties recovered from the spot is also available against the appellant. Two crime empties were collected from the spot, which were deposited with the Forensic Science Laboratory on 4-9-1996 while the pistol recovered at the instance of the appellant on 13-9-1996 and deposited with the Laboratory on 25-9-1996. According to report Exh. P. K. , one of the empties wedded with the recovered pistol, while no opinion could be given about the second empty as it was without percussion cap.

12. The argument of the learned counsel for the appellant that no independent witness was associated during recovery of pistol and that the recovery of pistol was effected from the house of father-in-law of the appellant, does not help the appellant, as undeniably the pistol belonged to the appellant, who held its licence.

13. Except for the motive set down in the F.I.R. there was no other motive behind the occurrence. The appellant, while armed with pistol, went to the house of his father-in-law and took life of Muhammad Sharif, who being brother of the deceased was trying to explain to the appellant that in the absence of father and due to death of mother of Mst. Shazia Bibi it was advisable that Mst. Shazia Bibi should be allowed to stay in the house of her father so that she could look after her younger brothers and sisters. It is also in evidence that Muhammad Iqbal appellant oftenly stayed in the house of his in-laws and it could not be said that he was not allowed to stay with his wife.

14. In the light of the above noted circumstances, we do not find any mitigating circumstance in favour of the appellant. Hence, this appeal is dismissed and the judgment passed by the learned trial Court is upheld with slight modification that in default of realization or payment of compensation the appellant would suffer six months' S.I.

15. Murder Reference. is answered in the affirmative. Death sentence is confirmed. H.B.T./M-191/L Appeal dismissed.