2007 PLP 1614 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

This judgment will dispose of Criminal Appeal No.685 of 2002 filed by Muhammad Khan, who along with Muhammad Ramzan, Ejaz Ahmad, Muhammad Shafi, Muhammad Saeed and Rab Nawaz faced trial in case F.I.R. No.22, registered at Police Station Piplan, District Mianwali, on 14-2-2001, for offences under sections 302/148/149/109, P.P.C., before learned Additional Sessions Judge-I, Mianwali, who after conclusion of trial, vide his judgment dated 25-4-2002, while acquitting rest of the accused, convicted the appellant under section 302(b), P.P.C. and sentenced him to Death with compensation of Rs.1,00,000.

2. Murder Reference No.327 of 2002 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.

3. Brief facts of the case as mentioned in F.I.R. Exh.PK are that the complainant Farooq Ahmad along with his brother Muhammad Nawaz was going to village Hafizwala to see their uncle Ghulam Shabbir. At about 1-30 p.m., the complainant party stopped at hotel of Muhammad Hanif at Adda Hafizwala for taking tea. Meanwhile, Muhammad Khan armed with .12 bore double barrel gun, Muhammad Saeed and Ejaz both armed with .8 mm rifles, Rab Nawaz armed with .30 bore pistol, and Muhammad Ramzan empty handed reached there. Muhammad Shafi raised Lalkara that Muhammad Nawaz would not be spared today for the insult of his father. Thereafter, Muhammad Khan caused fire with his gun, which hit Muhammad Nawaz below his left armpit. Muhammad Nawaz fell down. On the hue and cry of complainant party, Ghulam Shabbir and Muhammad Rafiq reached there. Thereafter all the accused fled away from the spot. The injured was taken to Civil Hospital, Hafizwala but the injured succumbed to the injury by the time he reached the Hospital.

4. The motive behind the occurrence was the enmity between Ghulam Shabbir uncle of the complainant and father of Muhammad Shafi.

5. After registration of formal F.I.R., the investigation of the case was taken over by Qaisar Raza Zaidi, S.-I./P.W.11, who conducted thorough investigation, arrested the accused and after effecting recovery of weapons .used during the occurrence, sent them to face trial.

6. At the trial, the prosecution in .order to prove its case produced 11 witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.PM and that of Serologist Exh.PQ closed its case. The accused in their statements recorded under section 342, Cr.P.C. pleaded their innocence and false implication. They did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court, while acquitting rest of the accused, convicted and sentenced the appellant as stated above.

7. The learned counsel for the appellant 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 in support of this appeal has contended that the witnesses were not only related to the deceased but also chance witnesses, who could not plausibly explain .their presence at the time of occurrence; that the witnesses have been disbelieved qua five of the accused, who were shown to be present at the time of occurrence; that the ocular account is not supported by the medical evidence, as according to medical evidence the deceased had received two injuries while according to P.Ws. only one fire was caused at the deceased; that the prosecution failed to prove the motive which was set in the F.I.R. and it is available on record that Ghulam Shabir, uncle of the complainant, who was named as witness in the F.I.R., was inimical towards the accused; that the P.Ws. had contradicted each other on all the material points by not correctly stating the direction of bench and sequence of seating; that if the witnesses would have been present there they must have received injuries; that the recovery of weapon cannot be used against the appellant as no empty was recovered from the spot nor the gun was sent to any expert; that the appellant was innocent and has been roped in this case due to existing enmity between Ghulam Shabbir and the appellant, who was pursuing the case against Ghulam Shabbir.

8. On the other hand, the learned Additional Prosecutor-General submits that both the eye-witnesses had no personal enmity against the appellant, so as to depose against him falsely; that the ocular account was fully supported by the medical evidence and corroborated by the circumstances of the case like lodging of F.I.R. promptly and conducting of post-mortem within 3/4 hours of the death; and that no mitigating circumstance exists in favour of the appellant. He supports the judgment passed by the learned trial Court.

9. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely.

10. The occurrence took place in broad daylight at 1-30 p.m. The matter was reported to the police at Police Station, which was at a .distance of 5/6 k.m. at 2-30 p.m. i.e. within an hour. Meanwhile, Muhammad Nawaz while injured was taken to R.H.C., Hafizwala. However he lost his life by the time he reached Hospital. In the promptly lodged F.I.R. the appellant alone was attributed fatal shot caused to Muhammad Nawaz, brother of the complainant. The post-mortem was also conducted promptly within 3/4 hours of the death. Both the P.Ws. though related to the deceased had no previous enmity or ill will against the appellant so as to rope him in a false case. Both the eye-witnesses were grilled to very lengthy cross-examination but intrinsic value of their evidence could not be shaken. They have given natural, consistent and confidence inspiring account of the occurrence so far as the appellant is concerned. The objection of the learned counsel for the appellant that the P.Ws. had contradicted each other on material point is not valid. The learned counsel has referred to the statements of P.Ws. about the placing of the bench and sequence of sitting of deceased and the complainant. According to him, one witness had stated that the deceased and the complainant were sitting opposite to each other while other witness stated that they were sitting side by side. We are afraid that such-like discrepancies are not only immaterial rather they naturally crop up when the evidence is recorded after lapse of considerable time.

11. The statements of the witnesses are also fully supported by the medical evidence. Injury No.1, which was-on the 1 outer aspect of left chest just below the left axilla is according to seat of injury mentioned in the F.I.R. Doctor observed blackening of margins, card wed seen inside the injury, which also supports the prosecution case. According to which, the fire was caused from a very close distance of four feet. However, according to learned counsel for the appellant, the medical evidence contradicts the prosecution case as according to post-mortem report there were two injuries on the person of the deceased; one which has been described above, while the other consists of seven other wounds of entry with blackening of margins on lateral aspect of left chest below left axilla. All the injuries were 11 c.m. away and leftward from the left nipple. In order to appreciate the arguments of the learned counsel we have minutely gone through the post-mortem report, cross-examination of Dr. Hafiz Bashir Ahmad/P.W.2 and diagram of injuries Exh.PB/1. During cross-examination P.W.2 stated that Injury No.2 might have been caused from a distance of 5/6 feet. That would be almost the same distance from where Injury No.1 was caused. It was not put to the Doctor at all that both the injuries were the result of two different fires. We have seen diagram, wherein Injury No.2 is exactly behind Injury No.1. Injury No.1, which is entry wound is smaller in size while Injury No.2 is larger in size. If Injury No.2 would have been the result of second fire-shot from the said close distance then it would not consists of seven wounds of entry rather it would have been a compact wound like Injury No.1. The witnesses could easily attribute the second injury to brother of the appellant or to any other accused but their stand was consistent that one fire was caused by the appellant, which hit on the left armpit of the deceased. In our opinion the Doctor has given dishonest concession to the complainant party and no benefit can be given to the appellant on this account, as already noted above the direct evidence was consistent and confidence inspiring. It was observed by the apex Court in the case of Sarfraz alias Sappi and 2 others v. The State (2002 SCMR 1758) that "where there is variation between ocular and medical evidence, the latter does not overweigh the former type of evidence if otherwise the ocular evidence is coherent and trustworthy". In this case, reliance in support of this principle was placed on the case of Muhammad Hanif v. The State (PLD 1993 SC 895). Similar view was expressed by the Honourable Supreme Court in the Amrood Khan's case (2002 SCMR 1568).

12. The learned counsel for the appellant has laid much stress on the point that the prosecution failed to prove motive as set in the F.I.R. and that Muhammad Khan appellant belonged to a different caste and was under no obligation to react to Lalkara raised by Shafi. Further point raised by the learned counsel do not help him at all, as there was no reason for the witnesses to implicate the appellant in a false case as principal accused, if he had not fired at the deceased. The defence plea on this point is too far fetched and would not be enough to implicate an innocent man in case entailing capital sentence. It is settled law that substitution was a very rare phenomenon. In the instant case the occurrence took place in a broad daylight. The identity of the assailant was not in question, so no reason existed for a brother and uncle to substitute a killer by an .innocent person.

13. The acquittal of the rest of the accused would not benefit the appellant at all as none of them had caused any fire to the deceased and Rab Nawaz co-accused was not even present at the time of occurrence. In our considered view the prosecution has successfully proved its case against the appellant through direct evidence, which was supported by the medical evidence and was fully corroborated by the circumstances of the case like lodging of F.I.R. promptly at Police Station and post-mortem examination on the same date within 3/4 hours of the occurrence.

14. Having come to this conclusion we have given our considerate thought to the quantum of sentence in the circumstances of the case. The appellant while armed with gun reached the spot and took life of an innocent person. No mitigating circumstance exists in his favour. Reliance is place on Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others (2005 SCMR 427). Consequently, this appeal is dismissed. Murder Reference is answered in the affirmative and the sentence of death is confirmed. N.H.Q./M-92/L Appeal dismissed.