2009 PLP 54 (MLD)

MUHAMMAD AHSAN BHOON, J.

This judgment shall dispose of Criminal Appeal No.630 of 2003 filed by Muhammad Anwar alias Billa, appellant and Murder Reference No.337 of 2003 submitted by the learned trial Court for confirmation of death sentence of the appellant-accused or otherwise, as both arise out of same judgment, dated 10-4-2003.

2. The appellant Muhammad Anwar alias Billa through this appeal has challenged the judgment passed by the learned Additional Sessions Judge, Silakot, whereby he convicted the appellant Muhammad Anwar alias Billa under section 302(b), P.P.C. and sentenced him to death for the murder of Muhammad Ashfaq, deceased along with compensation of Rs.50,000 and in case' of default to undergo S.I. for six months, in case F.I.R. No.334, dated 24-9-2000, offence under sections 302, P.P.C. with Police Station, Cantt. Sialkot.

3. The prosecution story in brief is that younger brother of the complainant Muhammad Ashfaq deceased had contracted marriage one month before the occurrence with Mst. Halima Bibi who was divorcee of brother of the accused-appellant Muhammad Anwar; that Muhammad Anwar had proclaimed that he would not let alive the person who would contract marriage with her; that on 24-9-2000 at about 2-30 p.m. the complainant along with his father Muhammad Sharif and Bhanja Muhammad Naeem were present in the street when his deceased brother Muhammad Ashfaq along with his wife Mst. Rehana left towards Dolowali on a motorcycle. On the way he slowed down the speed of his motorcycle on account of jump in front of house of Muhammad Nazir and stopped the same; that Mst. Raihana deboarded from motorcycle; that meanwhile Muhammad Anwar alias Billa armed with rifle .222 bore came running from behind while reaching nearby he made fire at back side of left shoulder of Muhammad Ashfaq which made exit on the left side; that Muhammad Ashfaq fell down and the complainant along with other persons reached at the spot. It is narrated that the occurrence was witnessed by his father Muhammad Sharif, Bhanja Muhammad Naeem, Mst. Rehana and other persons besides him. The motive behind the occurrence is stated to be that Muhammad Ashraf deceased had contracted marriage with divorcee of brother of the accused.

4. After due investigation, report under section 173, Cr.P.C. was submitted in the learned trial Court. Charge was framed against the appellant who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. The appellant was examined under section 342, Cr.P.C. In answer to question No.9 he stated as under:-- "It is a false case against me. I have been made scapegoat in the case, otherwise I had no connection whatsoever with the murder incident." The appellant did not opt to appear as his own witness in disproof of the allegation levelled against him as required under section 340(2), Cr.P.C. but he did produce in his defence D.W. 1 to D. W.3. The learned trial Court after hearing the learned counsel for the parties, passed the above said conviction and sentence, which is being assailed through this criminal appeal.

5. We have heard the learned counsel of the parties, scrutinized the evidence available on record with their able assistance.

6. The ocular account in this case was furnished by the complainant Muhammad Razzaq, brother of the deceased, (P.W.3), Mst. Rehana Bibi, first wife of the deceased, (P.W.4) and Muhammad Sharif, father of the deceased, (P.W.5). Firstly we would like to discuss the evidence of Muhammad Razzaq P.W.3. complainant, brother of the deceased and Muhammad Sharif P.W.5, real father of the deceased. Although Muhammad Razzaq, complainant while appearing before the Court reiterated the story of F.I.R. yet he stated that he was standing at a distance of 100 feet away from the place of occurrence/point of commission of murder. He also admitted the fact the place where he along with P.W.S. was standing, if someone stands on their gate at point of their presence, one cannot see the persons standing on point of commission of this murder. Another important fact, which was deposed by him, was that distance between the house of P.W.3 and P.W.5 situated in village Pataiser and Dolowali was less than one K.M. and similarly was the position of P. W.5, father of the deceased and complainant. P.W.4. Mst. Rehana widow of the deceased Muhammad Ashfaq at the time of her statement before the Court even did not mention about the presence of both the eye-witnesses i.e. P.W.3 and P.W.5 so in our considered view both the eye-witnesses P.W.3 and P.W.S. were chance witnesses and they were unable to justify their presence at the place of occurrence at the time of commission of murder of Muhammad Ashfaq. So their testimony is discarded.

7. P.W.4. Mst. Rehana Bibi widow of the deceased, is another eye-witness of the occurrence of the murder of Muhammad Ashfaq, her husband and she has given very natural and confidence-inspiring account of the occurrence while appearing before the trial Court. She appeared in the Court and deposed in examination-in-chief in the following words: "Ashfaq deceased of this case was my husband. On 24-9-2000 at 2-30 p.m. I along with my kid and husband Ashfaq was going to Dolowali on a Bike. When we had just reached near the house of Muhammad Nazir P.W. accused present in Court Muhammad Anwar came with rifle from his shop and fired at my husband which hit him on back of his chest and my husband fell down on the ground at once. My young boy aged 5 years was also with me and accused present in Court had tried to snatch that boy but I went with my boy to the house of Muhammad Nazir P.W. It is evident that accused present in the Court wanted to snatch my son with the intention to kill him. Police recorded my statement under section 161, Cr.P.C. during investigation." During her cross-examination she remained quite consistent about the story narrated by her despite lengthy cross-examination and the defence was unable to fetch even a minor contradiction from her statement. She has categorically stated that when her husband was attacked by the appellant she along with the deceased and minor kid was available on motorbike on rear seat near the place of occurrence. It is available in the evidence that due to speed breaker, speed of motorcycles was slowed down and she got alighted from the motorcycle and then fire made by the appellant-accused hit on the back chest of her husband who fell down on the ground and succumbed to the injury. The very presence of P.W.4 at the place of occurrence is admitted by the appellant in his statement under section 342, Cr.P.C. Similarly, D.W.2 Muhammad Razzaq, who was defence witness also stated in his cross-examination that P.W.4 was on motorcycle when the same passed before him and he stated that no other eye-witness was present except Mst. Rehana P.W.4 and even during the cross-examination presence of P.W.4 has also been admitted by the defence. So ocular account furnished by Mst. Rehana Bibi is quite natural and confidence-inspiring. P.W.4. Rehana Bibi also stated in her cross-examination that the appellant opened fire from a distance of 10 feet, that fact is further corroborated by the medical evidence furnished by P.W.11. Dr. Muhammad Nafees who found that blackening was present around the entry wound. During the investigation blood-stained earth Exh.PB was taken into possession by Safdar Ali, P.W.7 and attested by P.W.5. Muhammad Sharif but the place of occurrence in this case is not disputed one, hence no need to dilate upon the same. During the course of investigation recovery of rifle .8 mm, Exh. P. D. was effected at the behest of Muhammad Anwar appellant. The same was proved through evidence of Shamas P.W.6 and Safdar Ali, S.-I. P.W.7. Report of Forensic Science Laboratory Exh. P. R. shows that gun was found in working condition but no empty was recovered from the spot, hence that is of no consequence. However, it would not affect the probative force of confidence-inspiring account given by P.W.4.

8. Dr. Muhammad Nafees, P. W.11 conducted post-mortem examination on the dead body of deceased Muhammad Ashfaq on 24-9-2000 i.e., the next day of occurrence and he found following injuries on his body:-- (1) A lacerated punctured wound 2.5 x 1 c.m. over the back of left side of chest. 4 C.M. away from mid line towards the left shoulder joint. Margins inverted. Blackening present around the wound, entry wound. (2) An extensive lacerated punctured wound 10 x 9 c.m. in front of upper part of left chest extending to the left shoulder. Margins were everted, exit wound. Injury No.1 was an entry wound and the seat of injury is the same, which has been deposed by P.W.4. Similarly, the blackening available on the wound also furnishes corroboration qua the ocular account furnished by P.W.4. So the medical evidence further supports the prosecution case.

9. Place of occurrence in this case is not disputed one. Similarly, the mode and manner of occurrence also not disputed rather the only twist even by the defence was that in fact Rehana P.W.4 committed the murder of her husband when she was going along with her husband by Motorcycle due to the reason that the deceased contracted second marriage but nothing surfaced in evidence that the spouses were having any strained relations with each other. So the defence version is also seemed to be very absurd. Ashiq Hussain, D.W.1 and Muhammad Razzaq, D.W.2., the evidence produced by the defence, does not help the defence case rather same also supported the prosecution version qua the mode and manner of occurrence and the presence of P.W.4 at the time of occurrence and involvement of appellant in the crime.

10. The motive alleged in the F.I.R. is admitted one and proved through cogent evidence that the deceased married with Mst. Haleema Bibi, who was the ex-wife of the brother of the appellant and appellant was not happy on the second marriage of his Bhabi. It would be pertinent to mention here that it is most unfortunate aspect of the case that Mst. Haleema Bibi, the second wife of the deceased was divorced by her husband as she was issueless and later on she contracted marriage with Muhammad Ashraf deceased and now she had no relation with the family of the appellant but still accused committed murder of Muhammad Ashfaq without any fault on his part or his second wife Mst. Haleema Bibi. The above discussion would show that the prosecution has successfully proved its case beyond any shadow of doubt against the appellant through confidence-inspiring evidence and natural story given by the prosecution through statement of P.W.4. Mst. Rehana Bibi along with evidence of motive and medical which fully proved the details of mode and manner of occurrence. Although the story of ocular account furnished by P.W.3 and P.W.5., both eye-witnesses, has been disbelieved yet it is settled proposition of law that it is not the quantity of evidence rather it is a quality of evidence which is to be considered for just conclusion of a matter. So the solitary statement of the eye-witnesses i.e., P.W.4., who has furnished true account of the occurrence, would be sufficient to maintain conviction and sentence recorded by the learned trial Court.

11. Another aspect of the case is that the learned counsel for the appellant has contended that Mst. Haleema Bibi, widow of the deceased Ashfaq made statement before the learned trial Court that she had forgiven the accused in the name of Almighty Allah and also waived her right of Qisas and Diyat and she had no objection for acquittal of the appellant-accused, hence that would be considered as the mitigating circumstance in favour of the appellant-accused. Argument advanced by the learned counsel for the appellant is devoid of any force as partial compromise in a murder case is not permissible as per law laid down by the Hon'ble Supreme Court in Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others (1997 SCMR 1307), relevant portion is re-produced as under:-- "Criminal Procedure Code (V of 1898), S.345

Qisas

Waiver and compounding

Principles

If the victim has more than one Wali and if any one of them waives his right, the right of Qisas cannot be enforced

Wali who has not waived or has not entered into Badl-I-Sulh will be entitled to receive his share of Diyat subject to section 311, P.P.C.

Where however, accused person has been awarded sentence for murder as Tazir and not Qisas, the legal heirs cannot waive or accept Badl-e-Sulh

Sentence awarded for murder as Tazir can be compounded by all the legal heirs of the deceased with permission of the Court concerned." Reliance can also be had to Hamid v. The State (2003 SCMR 416), wherein it was laid down that, reduction of sentence on the ground that the husband of the deceased had compounded the offence with the accused though other legal heirs had not joined the compromise, was least impressive as the conviction of the accused was recorded under Tazir in terms of section 302(b), P.P.C. and not for Qatl-i-Amd liable to Qisas within the contemplation of section 302(a), F.P.C. and the witnesses examined at the trial were not subjected to Tazkiyah-al-Shahood; and accused having been found solely responsible for the callous murder of the deceased, he was not entitled to any leniency in the matter of sentence

Appeal was dismissed accordingly." The above quoted law laid down by the Hon'ble Supreme Court would show that in case of more than one Wali, all the legal heirs are required to forgive whereas in the present case it is an admitted position even from the statement of the said Mst. Haleema Bibi, that there are Mst. Rehana Bibi and three other legal heirs of the deceased including his father and sons etc.

12. In our view the appellant has committed the murder of innocent person in the daylight occurrence absolutely without any -legal and plausible justification and we do not see any mitigating circumstances in favour of the appellant.

13. For what has been discussed above, this appeal having no merit is dismissed. Murder Reference is answered in affirmative. N.H.Q./M-376/L Appeal dismissed.