2015 PLP 864 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Muhammad Javed petitioner was alleged to have murdered one Khalid Javed at about 3-00 p.m. on 10-1-2010 in village Dhaniala and FIR No. 3 in respect of that incident was lodged on the same day at 9-00 p.m. at Police Station Mangla Cantonment, District Jhelum by Basharat Javed complainant, a brother of Khalid Javed deceased, for an offence under section 302, P.P.C. read with section 34, P.P.C. The petitioner was tried by the learned Additional Sessions Judge, Jhelum and upon conclusion of the trial the petitioner was convicted for an offence under section 302(b), P.P.C. vide judgment dated 21-10-2010 and was sentenced to death and to pay a sum of Rs, 1,00,000 to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. The petitioner challenged his conviction and sentence before the Lahore High Court, Lahore through Criminal Appeal No, 148-J of 2010 which was heard and dismissed by a learned Division Bench of the said Court vide judgment dated 12-1-2015, the sentence of death passed by the learned trial Court was confirmed and the connected Murder Reference No. 126 of 2010 was answered in the affirmative. Hence, the present petition before this Court.

2. We have heard the learned counsel for the petitioner at some length and have gone through the record of the case with her assistance.

3. According to the prosecution the petitioner was married to Basharat Javed complainant's sister namely Mst. Zaitoon Fazal but on account of strained relations she had left the house of the petitioner about three years prior to the present occurrence and had then filed a suit for dissolution of marriage which suit had been decreed by a Family Court about one year prior to the present incident. According to the FIR lodged by the complainant, shortly before the present occurrence some members of the accused party had approached the complainant party for a reconciliation between the petitioner and his spouse but those efforts had failed to yield any positive result and within half an hour of those failed negotiations the present occurrence had taken place wherein the petitioner had fired at Khalid Javed deceased twice hitting him on his chest and abdomen whereafter the petitioner was overpowered by the members of the complainant party and was apprehended at the spot along with the weapon of offence and was subsequently handed over to the local police. The said version of the prosecution was deposed about before the learned trial court by as many as three eye-witnesses who were natural witnesses and they had consistently pointed their accusing fingers towards none other than the present petitioner as the sole perpetrator of the alleged murder. The ocular account furnished by the said eye-witnesses had received full support from the medical evidence. The motive asserted by the prosecution was admitted by the petitioner in so many words at every stage of the investigation and the trial. Two crime-empties secured from the place of occurrence had matched with the pistol recovered from the petitioner's custody at the spot. Although the learned counsel for the petitioner has tried to dig holes in the positive report of the Forensic Science Laboratory in respect of matching of the crime-empties with the recovered pistol yet the case of the prosecution based upon the ocular account corroborated by the motive and supported by the medical evidence is so strong that even if the recovery of pistol and its matching with the crime-empties are omitted from consideration still the strength of the prosecution's case against the petitioner is not materially affected. As if this were not enough, the petitioner had admitted his presence and participation in the incident in issue and had also admitted his having fired twice at the deceased at the spot but in his statement recorded under section 342, Cr.P.C. he had tried to advance a case of exercise of private defence through a story which had never been established by him through any independent evidence. According to the provisions of Article 121 of the Qanun-e-Shahadat Order, 1984 the onus to prove his plea of exercise of private defence was squarely upon the petitioner but he had utterly failed to discharge that onus inasmuch as he had neither made any statement on oath under section 340(2), Cr,P.C. nor had he produced any witness in his defence who could support the version of the incident advanced by him. The learned courts below had undertaken an exhaustive analysis of the evidence available on the record before concurrently concluding that the prosecution had succeeded in establishing the petitioner's guilt to the hilt. Upon our own independent evaluation of the evidence we too have reached the same conclusion.

4. While canvassing for reduction of the petitioner's sentence from death to imprisonment for life the learned counsel for the petitioner has submitted that the straining of relations between the petitioner and his wife was an admitted fact in this case and in that backdrop frustration of the petitioner upon failure of return of his spouse to his matrimonial fold was a factor which could have some bearing upon the matter of his sentence. We have, however, remained unable to subscribe to this submission of the learned counsel for the petitioner because of the simple reason that in this case the marriage between the petitioner and his spouse had been terminated through a judicial decree about one year prior to the present occurrence and, thus, there was hardly any scope of any reconciliation left in the field. At that stage if the petitioner still wanted his divorced spouse to come and live with him then he was asking for something which was not only bizarre but impossible to be acceded to by the complainant party and the former spouse. If the petitioner had felt frustrated over refusal of the complainant party and his former spouse in that regard then he had shown extreme highhandedness by launching aggression against the complainant party and killing his former brother-in-law namely Khalid Javed by firing not once but twice at him hitting him at the most vital parts of his body, i.e. chest and abdomen. The petitioner had been apprehended red-handed at the spot and was handed over to the local police along with the weapon of offence soon after the incident in issue and, thus, there was very little scope left for him to deny his presence and participation in the said occurrence. What is disturbing in this case is that the petitioner belonged to the police force and as a member of a disciplined force a responsibility heavier than normal was placed upon his shoulders to abide by the law and not to take the law in his own hands. Alas, the petitioner had not only failed to bother about that responsibility lying upon his shoulders but he had also considered himself to be above the law and had tried to take undue advantage of his being a member of the police force by pressurizing the complainant party on the issue of his failed matrimony. For all these reasons the petitioner has failed to evoke our sympathy in the matter of his sentence and even otherwise we have remained unable to find any circumstance warranting mitigation of his sentence of death.

5. For what has been discussed above this petition is dismissed and leave to appeal is refused. It is, however, clarified that in default of payment of compensation the petitioner shall undergo simple imprisonment for six months. MWA/M-20/SC Petition dismissed.