2008 PLP 2352 (YLR)

ZIA-UD-DIN KHATTAK, J.--Noor Zaman son of Habib Khan was tried by learned Additional Sessions Judge-III, Bannu in case F.I.R. No. 151, dated 13-12-1997 under section 302/324, P.P.C. registered at Police Station, Township, Bannu. By virtue of his judgment dated 15-7-2006 the learned trial Judge found him guilty of the said charge, and sentenced him as under: Under section 302(b), P.P.C. Convicted under section 302(b), P.P.C. to the normal penalty of death of committing Qatl-i-Amd of his real mother Gul Bano Bibi, and to pay compensation of Rs.100,000 (rupees one hundred thousand) to her legal heirs, in default to undergo six months simple imprisonment. Under section 324, P.P.C. Convicted under section 324, P.P.C. for attempt at the life of complainant Rasool Zaman and sentenced to five years' rigorous imprisonment with fine amounting to Rs.20,000, in default to suffer further six months simple imprisonment.

2. The learned trial Judge has sent Murder Reference No.5 of 2006 under section 374, Cr.P.C. for confirmation of the death sentence awarded to Noor Zaman, whereas the convict has filed Criminal Appeal No.94 of 2006 through the Superintendent Jail, Bannu and has called in question the conviction and sentence passed against him. We propose to dispose of both the matters together through this single judgment.

3. The prosecution story as narrated by the complainant Rasool Zaman in F.I.R. lodged on 31-12-1997 at 7-30 hours is to the effect that on the fateful night he along with his mother Gul Bano Bibi and brother Noor Zaman accused were present in their house. Noor Zaman being a vainglorious fellow was given advise by his mother to mend his ways due to which he was infuriated and fired at her with his D.B. shotgun with which she was hit on her face and died on the spot. The accused then fired a second shot on the complainant but luckily he escaped unhurt. Thereafter, the accused ran from the house saying that if he (the complainant) went out of the house for making report, he would be killed. Thus out of fear, the complainant remained hidden in the room and closed the door. On arrival of the co-villagers on the following morning, he came out of the room and made the report about the occurrence where he charged the accused Noor Zaman for committing the murder of his mother Gul Bano Bibi due to her giving advice to him. Besides the complainant, the occurrence was stated to have been witnessed by his nephew Shawer Gul.

4. After the occurrence, the accused decamped from the spot and thus complete challan was put in Court for proceedings against him under section 512, Cr.P.C. Subsequently, when he was arrested on 9-11-2003, supplementary challan was submitted against him in the trial Court whereafter observing requisite formalities the accused was formally indicted under sections 302/324, P.P.C, but he did not plead guilty to the charge and claimed trial.

5. Therefore, the prosecution in order to prove its case against the accused produced eight witnesses including the complainant. The learned trial Judge after recording evidence of the prosecution witnesses along with Shawer Gul (C.W.1), statement of the accused under section 342, Cr.P.C. and evaluating the same found the accused guilty for committing Qatl-i-Amd of his real mother deceased Gul Bano Bibi and attempting at the life of his brother/complainant Rasool Zaman and thus on conviction sentenced him as mentioned at para. 1/ante.

6. Learned counsel representing the convict/appellant impugned the conviction and sentence of the appellant on the grounds that the charge is mala fide; that there is a considerable delay in lodging the report; that the occurrence is of dark night when identity of the accused was impossible and that there are material contradictions in the statements of the witnesses. He, therefore, submitted that the prosecution had not been able to prove its case against the convict/appellant beyond a shadow of reasonable doubt. The learned counsel further argued that the appellant is heir of the deceased and, as such, the offence of Qatl-i-Amd committed by him is riot punishable under section 302, P.P.C. and, therefore, the learned trial Court had no legal authority to convict the appellant under section 302, P.P.C. and award him sentence of death. Reliance was placed on the dictum laid down in the case reported in PLD 1994 SC 885.

7. Learned Deputy Advocate-General appearing on behalf of the State and learned counsel representing the complainant defended the impugned judgment on the grounds, inter alia, that the appellant has committed the murder of his real mother Gul Bano Bibi in his own house and the occurrence is duly witnessed by his real brother Rasool Zaman and nephew Shawer Gul. He is directly and singularly charged for the offence. The witnesses are natural being son/grandson of the deceased having no previous personal ill-will with the accused; the prosecution version duly gets support from the medical examination of the deceased; the convict/appellant had also tried to commit murder of the complainant by firing at him but luckily he escaped unhurt and from the facts and circumstances of the case, the prosecution had successfully brought home guilt to the appellant and, therefore, he deserves no leniency.

8. We have heard the learned counsel for the parties and with their assistance, minutely perused the record of case.

9. Before going into the merits of the case, it would be appropriate to dilate upon the objection of learned counsel for the appellant who strenuously argued that since appellant is heir of the deceased and as such the conviction under section 302, P.P.C. and sentence of death awarded to him by the trial Court is coram non judice, in the light of judgment of the apex Court (ibid).

10. We are not persuaded to agree with the learned counsel for the appellant. The judgment relied on by him is not applicable in this case inasmuch as it relates to Qatl-i-Amd liable to Qisas under section 302(a), P.P.C., whereas the appellant's case falls under section 302(b), P.P.C. as "Tazir". Moreover, after committing Qatl-i-Amd of his real mother the appellant is debarred from succeeding to the estate of victim as an heir under section 317, P.P.C.

11. On merits, the main thrust of the arguments of learned counsel for the appellant was that the occurrence had taken place at dark night when identity of the accused was impossible and that the report was lodged after a considerable delay. It may be observed that the occurrence had taken place on 30-12-1997 at 20-00 hours in the house of the complainant Rasool Zaman. He is brother of the appellant and son of Gul Bano Bibi deceased, therefore, there is no question of mistaken identity.

12. The prosecution case rests on ocular account of complainant Rasool Zaman (P.W.6) and Shawer Gul (C.W.1). The former is brother of the accused, while the latter is his nephew. They in their statements before the trial Court charged the accused for Qatl-i-Amd of his real mother. They both are consistent in their statements and urged that on the fateful night they along with the deceased were present inside the house and at "Isha prayer" time the accused got annoyed over the giving of advice, took .12 bore shotgun and fired upon his mother which proved fatal. The complainant Rasool Zaman also charged the accused for attempt at his life by ineffective firing the occurrence took place inside house of the accused and that of the complainant at a night time and as such their presence at such time is natural. The accused has been charged as a sole accused for Qatl-i-Amd of his real mother aid for attempting at the life of his brother/complainant. The complainant has no previous enmity for false implication or substitution by letting off the real culprit.

13. As discussed above, the presence of complainant (P.W.6) and Shawer Gul (C.W.1) was very much established and both of them have given consistent and natural account of the incident and stood firm to the test of cross-examination and further the intrinsic worth of their statements, could not be shaken, therefore, in our considered opinion, the testimony of both the witnesses can be safely relied upon.

14. The complainant explained the delay in lodging the report that he was threatened by the accused of dire consequences and due to fear he could not come outside the house. The accused was not of good character. The complainant and his nephew could not come outside the house due to fear of accused particularly when he did not spare his own mother.

15. The ocular account furnished by the complainant and Shawer Gul (C.W.1) , has been fully corroborated by the medical evidence and recovery of empty of .12 bore shotgun and pellets from the spot and, therefore, after reappraisal of evidence we find that the prosecution case against the appellant has been established beyond any shadow of doubt.

16. It may be pointed out that appellant remained absconder for a very long period of six years and no plausible explanation has come on record, regarding his abscondence. It may be noted that the real mother of appellant was killed, but throughout till his arrest, appellant never appeared and enquired about her death. The factum of abscondence of the appellant further lends corroboration to his guilt. As no explanation has been offered by the appellant' for remaining absconder till his arrest, therefore, it supports guilt of the appellant 2001 SCMR 177.

17. On the question of sentence, we equally do not find any mitigating circumstance to help the appellant in reducing his sentence from death to life imprisonment. The appellant has committed Qatl-i-Amd of his real mother and acted desperately by making attempt at the life of his brother/complainant due to giving advice to mend his ways and leave bad company which demonstrates that he was having no respect for human life, therefore, the cumulative effect of all the circumstances justify the awarding of normal penalty of death, hence the sentence awarded is accordingly maintained and the reference sent by the trial Judge is confirmed. The appeal fails which is accordingly dismissed. H.B.T./102/P Appeal dismissed.