1999 PLP 2686 (SCMR)

SH. RIAZ AHMED, J.

Petitioner Muhammad Hussain alias Hussaina seeks leave to appeal against the judgment, of the Lahore High Court, dated 23-9-1997 whereby an appeal -preferred by the petitioner assailing his conviction and sentence as recorded by the Additional Sessions Judge was ordered to be maintained.

2. The brief facts of the case are that the petitioner alongwith his 3 brothers, namely, Muhammad Yasin, Muhammad Aslam and Muhammad Ali and one Muhammad Ayub alias Kala was tried by an Additional Sessions Judge at Faisalabad on charges under section 302/148/149, P.P.C. for having committed the murder of Muhammad Zahid deceased. Vide judgment, dated 20-7-1992, the learned Additional Sessions Judge acquitted Muhammad Yasin, Muhammad Aslam and Muhammad Ayub and found only the petitioner and his brother Muhammad Ali guilty on the charge under section 302, P.P.C. read with section 34, P.P.C. Accordingly, they were convicted and sentenced to death and to pay a fine of Rs.10,000 each or in default thereof to undergo R.I. for a term of 2 years. The learned Trial Judge also directed both the convicts to pay compensation in the sum of Rs.50,000 each under section 544-A, Cr.P.C., to the legal heirs of the deceased or in default thereof to suffer R.I. for 6 months each.

3. The petitioner as well as Muhammad Ali convict assailed their convictions by preferring an appeal before the Lahore High Court while the case was also referred by the Additional Sessions Judge under section 374, Cr.P.C. Before the appeal could be heard, convict Muhammad Ali died in jail and, thus, his appeal stood abated. Vide judgment, dated 23-9-1997 and a Division Bench of the Lahore High Court dismissed the appeal of the appellant and confirmed the death sentence and the murder reference was answered in affirmative. Aggrieved by the said judgment the same is impugned by this petition seeking leave to appeal.

4. The occurrence resulting into the death of Muhammad Zahid deceased took place on 22-5-1990 at 10.00 a.m. within the area of Mohallah Farooqabad situated at a distance of 2-1/2 kilometers from the Police Station Sargodha Road in the District of Faisalabad. Tahir Pervaiz complainant proceeded to lodge F.I.R. when he came across Ch. Saifullah, Inspector Police on Shadman Road, who recorded his statement at, 12-30 p.m. and sent the same to the police station where Muhammad Din scribed the F.I.R. In his statement the complainant stated that he was running a shop of electric goods in Mohallah Rasoolnagar and on the fateful day he fell sick and, thus, returned to his house. At about 10.00 a.m. Abdul Majid, a resident of the same Mohallah and Abdul Majid resident of Zubair Colony, Jaranwala Road, came to his house to inquire about his health. According to the complainant his deceased brother Muhammad Zahid was in the house when in the meanwhile the petitioner passed from near the house of the complainant, but was checked by the deceased Muhammad Zahid, who told the petitioner not to roam near his house. The petitioner was infuriated and left the scene while remarking that the deceased would be taught a lesson for checking him. Soon thereafter the deceased also proceeded towards Street No.14 whereupon the complainant and his two friends both by the name of Abdul Majid described above, fearing that the deceased Zahid may not be attacked, also followed Zahid deceased. In their sight, when the deceased reached near the Malik Khata Power Looms, they saw the petitioner armed with a 12 bore gun, Muhammad Ali since dead armed with a revolver, Muhammad Aslam armed with a 12 bore gun and Muhammad Ayub alias Kala armed with a 7 mm rifle reaching there. The petitioner fired a shot with his 7 mm rifle hitting the head of Zahid deceased followed by a shot fired by Muhammad Ali with his revolver hitting the left flank of the deceased. On the receipt of these injuries, Zahid fell down whereupon Yasin, Aslam and Ayub started giving blows with the butt of the guns on the right side of the chest of Zahid. The motive for the occurrence as narrated by the complainant in his statement that in 1988 his real brother Muhammad Shahid was murdered by Muhammad Aslam and Muhammad Ali, but a compromise took place resulting into acquittal of both. The compromise took place on the condition that the accused side would leave Mohallah Farooqabad and would not live there, but having committed to do so, the accused side did not honour their obligation. After having attacked Zahid, while brandishing their arms, they left the scene of occurrence. Zahid, who was in a precarious condition was removed to the Civil Hospital, Faisalabad, where he died.

5. Autopsy conducted on the dead body of Zahid deceased by Dr. Altaf Pervaiz revealed the following injuries on his person:-- (1) A lacerated wound 1/2 c.m. x 1/2 with inverted margins on the left side of ahead, about 7 c.m. about the level of tragus of left ear. On probing there was fracture of skull on the left side under the wound. (2) A contused swelling 2-1/2 c.m. x 2 c.m. on the right side of head, about 8 c.m. above the pinna of right ear, on palpation, there was sensation of foreign body pointing outward under the scalp. But scalp was intact. (3) A lacerated wound 1/2 c.m. x 1/2 on the outside of left lower chest about 22 c.m. below the axilary fold, margins of the wound were inverted, there was a bluish black circular discolouration around the injury, involving the area of 4 c.m. x 4 c.m. (4) Multiple abrasinos and contusions in the anterolateral aspect of right chest, involving the total area 10 c. m. x 11 c. m. (5) Multiple abrasions and contusions on anterolateral aspect of left chest, in vertical fashion on a total area of 12 c.m. x 10 c.m. about 12 c.m. away from midline. Under injury No. 1, the bullet entered the skull by piercing the scalp and caused fracture of the skull. It had crushed the brain, ruptured the anterior of brain through its course. Under injury No.3, the metallic foreign body entered the lower and outer wall of chest and abdomen and ruptured the upper pole of left kidney, peritoneum. Under injury No. 1, skull was fractured on the left side and right side as a result of entry and exit wound of injury No.

1. In the opinion of the doctor, the death had occurred as a result of haemorrhage, shock and due to the brain injury. On 31-5-1990 the petitioner was arrested. At that time he was carrying his rifle P.3 alongwith life bullets P.4/1-4, which were taken into possession vide memo. Exh.P.E.

6. With the assistance of the learned counsel for the petitioner we have carefully perused the entire evidence on record. The prosecution had mainly relied upon ocular testimony furnished by Tahir Pervaiz complainant and Abdul Majid P.W.6. In addition to the ocular testimony, reliance was placed upon the evidence as to the motive, recoveries and the medical evidence. Tahir Pervaiz complainant reiterated the prosecution version as stated by him in his statement, which became the basis of the F.I.R. However, he admitted that the place of occurrence was at a distance of 1 acre from his house and was in third lane from his house. A careful perusal of his statement and cross-examination reveals that he had seen the occurrence and his statement inspires confidence. It is further noteworthy to mention that despite searching cross-examination, the defence failed to elicit anything to shake the credit of the complainant. Furthermore, the presence of the complainant stands established on account of the F.I.R. having been lodged with promptitude and there was hardly any time to deliberate. In his anxiety to save the life of his brother, he removed him to the hospital and then proceeded to lodge the F.I.R. when he 'came across inspector Saifullah, who recorded his statement. It was a broad daylight occurrence and the question of mistaken identity does not at all arise. The statement of the complainant in our view stands fully corroborated by the statement of other eye-witness Abdul Majid P.W.6. No doubt, his place of business is at a distance of 5/6 miles from Mohalla Farooqabad, but he had satisfactorily explained his presence at the scene of occurrence inasmuch as he had come to Mohallah Farooqabad to inquire about the health of the complainant. In our view, he is an independent person having no enmity with the petitioner and he had no axe of his own to grind and he could not have been imported within a very short period because his name finds mentioned in the F.I.R. and there is nothing odd about his presence in Mohallah Farooqabad where he had gone to inquire about the health of the complainant.

7. It was strenuously argued that the ocular account cannot be relied upon because the same has been disbelieved qua the acquitted co-accused. The contention is devoid of force because the principle of "falsus in uno, falsus in omnibus" is unknown to our Jurisprudence. It was further argued that a shot by 7 mm rifle should have made an exit wound and could not have been found in the brain. The argument is also repelled because the fire was shot from a considerable distance and it was not necessary for the bullet to have made an exit wound. An attempt was made to argue that since there was no exist wound, therefore, both the shots could be attributed to Muhammad Ali, since dead. We are afraid, we cannot believe such argument.

8. Old enmity exists between the parties and immediate motive leading to the occurrence has also been established. The ocular evidence is above board and medical evidence corroborates the same and the complainant's testimony cannot be discarded merely because he happens to be real brother of the deceased. The occurrence in this case took place at a distance of 1-1/2 kilometers from the house of Tahir Pervaiz, and therefore, his presence at the scene of occurrence having witnessed the same cannot be disbelieved.

9. For the foregoing reasons, we hardly find any material warranting interference by this Court. Hence this petition is dismissed and leave to appeal is refused. N.H.Q./M-284/S Leave refused.