2017 PLP 188 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Ashiq Hussain appellant and his co-accused had allegedly trespassed into the house of Khadim Hussain complainant in village Latti in the area of Police Station Seetpur, District Muzaffargarh at about 12.30 A.M. on 25.06.2003 and had murdered one Haji Ghulam Nabi besides injuring three others with the use of firearms, etc. and for commission of the said offences they were booked in case FIR No. 94 registered at the above mentioned Police Station at 01.30 A.M. during the same night. The motive set up in the FIR was that Ashiq Hussain appellant was a vagabond, he used to associate with criminals and he used to bring those criminals to the house of the complainant party upon which he was reprimanded by Haji Ghulam Nabi deceased and it was on the basis of such insult that he committed the alleged offences in this case. After a regular trial Ashiq Hussain appellant was convicted by the trial court for an offence under section 302(b), P.P.C. read with section 34, P.P.C. and was sentenced to death and to pay compensation and he was also convicted and sentenced by the trial court for an offence under section 452, P.P.C. read with section 34, P.P.C. An appeal filed by the appellant was subsequently dismissed by the High Court and his sentence of death was confirmed by it. Hence, the present appeal by leave of this Court granted on 11.02.2011.

2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have gone through the record of the case and have also attended to their submissions.

3. The occurrence in this case had taken place inside the house of the complainant party at about 12.30 A.M. and it had been mentioned in the FIR that a tubelight was alight at the relevant time and on account of availability of such electric light the complainant party had been able to identify the appellant and his co-accused. Availability of a tubelight at the spot had specifically been mentioned in the site-plan of the place of occurrence and during the investigation a tubelight had indeed been secured from the spot by the investigating officer. Apart from that Ashiq Hussain appellant was related to Khadim Hussain complainant as well as to Haji Ghulam Nabi deceased and the parties were on visiting terms. In the incident in issue firearms and sotas had been used from very close proximity and, thus, it would not be difficult for the complainant party to identify the assailants including the present appellant. During the trial court the prosecution had produced three eye-witnesses of the occurrence and they were Khadim Hussain complainant (PW9), a son of Haji Ghulam Nabi deceased, Ghulam Akbar (PW10), a maternal grandson of the deceased, and Liaqat Ali (PW11), another maternal grandson of the deceased, and all the three above mentioned eye-witnesses were injured witnesses vouchsafing their presence at the scene of the crime at the relevant time. The said eye-witnesses had made consistent statements vis-a-vis the role played by the appellant and the medical evidence had provided full support to their statements. The medico-legal examinations of the said eye-witnesses as well as the post-mortem examination of the deadbody of Haji Ghulam Nabi deceased had been conducted quite promptly leaving no room for deliberations or fabrication of a story. The motive set up by the prosecution was such that the above mentioned eye-witnesses were expected to have personal knowledge of the same as the said eye-witnesses lived with Haji Ghulam Nabi deceased in the same compound. During the investigation the appellant had made himself scarce and had, thus, been declared a Proclaimed Offender and such conduct on the appellant's part had provided further corroboration to the ocular account. A co-convict of the appellant namely Allah Wasaya, sentenced to imprisonment for life on the charge of murder, has not challenged his conviction and sentence before this Court meaning thereby that he has accepted the case of the prosecution. It may be true that two co-accused of the appellant had been acquitted in this case but we have noticed that one of such co-accused was acquitted because he had not been nominated in the FIR and the other co-accused had been acquitted because the case against him could not receive independent corroboration. The said considerations were surely not relevant to the case against the present appellant. Both the courts below had undertaken an exhaustive and in-depth analysis of the evidence available on the record and had then concurred in their conclusion regarding guilt of the appellant having been established beyond reasonable doubt and upon our own independent evaluation of the evidence we have not been able to take a view of the matter different from that concurrently taken by the courts below.

4. We have particularly attended to the sentence of death passed against the appellant and have noticed in that context that the appellant was a desperate person who used to associate with serious criminals and on the basis of such conduct of the appellant he had been rebuked and reprimanded by Haji Ghulam Nabi deceased who was otherwise a relative of the appellant. On the basis of the said rebuke and reprimand the appellant not only killed Haji Ghulam Nabi deceased but also, in the company of his co-accused, injured three others. Such conduct displayed by the appellant surely detracts from any sympathy to be extended to him in the matter of his sentence.

5. For what has been discussed above this appeal is dismissed. MWA/A-38/SC Appeal dismissed.