2002 PLP 294 (SCMR)

SYED DEEDAR HUSSAIN SHAH, J.‑‑‑This criminal appeal by leave of the Court is directed against the judgment of the Lahore High Court, Lahore, dated 20‑3‑2000, passed in Criminal Appeals Nos.523 and 795 of 1998.

2. Briefly stated the facts of the case are that Khalid Pervez complainant lodged F.I.R. No.649 Exh. PH, alleging therein that he along with his brother Attiqur Rehman carries out the business of Refrigerators and Televisions in the shop situated at Commercial Centre No. 1, Gulistan Colony, Faisalabad. On the day of incident, at 6‑00 p.m. Attiqur Rehman was working in his shop, whereas Qamaruz Zaman son of Talib Hussain and his cousin Muhammad Shabbir were sitting in the room situated at the top of the shop, the complainant was busy in the adjoining shop, when a. Toyota Corolla white colour car stopped in front of their shop and he found four persons, namely, Muhammad Akram son of Fazal Din, Ijaz alias Billa son of Muhammad Ashraf, Kaloo son of Ghulam Haider, all residents of Chak No.146/RB and Imtiaz son of Farzand resident of Chak No.7/GB, armed with 222 rifles alightened from the car and exhorted Attiq‑ur‑Rehman with dire consequences and coincidently entered the shop. On hearing the Lalkara, the complainant, Qamaruz Zaman and Muhammad Shabbir came in front of the shop. Muhammad Akram, appellant No.2, Ijaz alias Billa, appellant No.1, and Shafaqat alias Kala, appellant No.3, respectively, fired with their weapons at Attiqur Rehman, which hit him on the front part of his chest, who fell down on the ground. Irntiaz, appellant No.4, fired, which hit hits on his buttock. The accused persons also fired at the witnesses, but fortunately by running away they saved their lives. The assailants ran away from the place of occurrence in the same car. Qamaruz Zaman and Muhammad Shabbir witnessed the occurrence. Attiqur Rehman injured was taken to the Allied Hospital, but there he succumbed to his injuries.

3. Motive for the occurrence is stated to be the murder of Nadeem son of Muharnmad Akram. The complainant's cousins, namely, Muhammad Ashfaq and Nazir Mahmood were implicated as accused persons, but they were subsequently released being innocent. Two months ago, Muhammad Akram and others fired at their house for which a separate case was registered at Police Station Chak Jhumra, and due to the aforesaid enmity Muhammad Akram and others in furtherance of their common intention committed the murder of Attiqur Rehman.

4. Ashiq Ali, S.H.O./S.‑I. Police Station Sargodha Road, after receiving information about the murder of Attiqur Rehman, went to the Allied Hospital, where he prepared the injury statement, inquest report, and sent the dead body of Attiqur Rehman to the Civil Hospital for autopsy. From the place of occurrence he collected blood with cotton, 16 empties of 222 rifle and four pieces of lead. Thereafter the investigation was transferred to Muhammad Rafiq, S.‑I., who arrested Abdul Razzaq on 20‑2‑1995 and a mauser was recovered from him. On 22‑2‑1995 Imtiaz appellant was arrested and he got recovered 222 rifle P.8 and two magazines P.9 and P.10 and 15 bullets P.11/1‑15 and P.12/1‑15 alongwith a cotton bag. The Investigating Officer arranged for identification parade of Abdul Razzaq and he was identified by the witnesses. Abdul Ra7zaq was allowed bail and during that period he absconded and was declared a proclaimed offender. Dilmeer Javed, S.‑I. (P. W:13) also partly investigated the case. he received information that Ijaz alias Billa, who was by then declared a proclaimed offender, was present at Laghari Flour Mills, he arrested him, recovered 222 rifle P.G. and 10 live bullets P.7/1‑10 from his possession.

5. After completion of the investigation, the police submitted that charge‑sheet in the Court. At the trial the appellants were indicted, they denied the charge and pleaded not guilty. The prosecution in support of its case examined 16 witnesses.

6. The trial Court vide judgment dated 8‑6‑1998 convicted the appellants under section 302(b)/149, P.P.C. and each one of them was sentenced to death and ordered to pay compensation in the sum of Rs.50,000 to the legal heirs of the deceased, or in default to undergo six months' R.I. for committing Qatl‑i‑Amd of Attiqur Rehman. The accused‑appellants were also convicted under section 148, P.P.C. and each one of them was awarded three years' R.I. and a fine of Rs.5,000 each, or in default thereof to further undergo one year's R.I. each.

7. The appellants challenged their conviction and sentences in the Lahore High Court. The learned Division Bench of the High Court dismissed their appeal and maintained the conviction and sentences awarded by the trial Court.

8. Learned counsel for the appellants, inter alia, contended that, according to the F.I.R., the occurrence had taken place on 28‑12‑1994 at 6‑00 p.m. when there was darkness and in the absence of any light emitting from any bulb it was not possible for the eye‑witnesses to correctly identify the culprits; the occurrence in question was not witnessed by the P. Ws., the eye‑witnesses were residents of distant places and were the chance witnesses, therefore, their evidence in any case could not be relied upon. It was further contended that the F.I.R. was recorded after due deliberations and preliminary inquiry, which reveals that the assailants were not known to the witnesses. The ocular evidence is in conflict with the medical evidence and the appellants had no direct motive against the deceased. The alleged recovery of weapon from Imtiaz appellant is also not free from doubt, as the same was recovered by the police from a graveyard and no independent witness was associated with the recovery. In support of their case learned counsel for the appellants have relied upon Allah Dad and another v. The State (1995 SCMR 142), Saee and others v. The State (1984 SCMR 1069), Muhammad Khan v. The State (1996 PCr.LJ 1767), Riaz Masib v. State 1995 SCMR 1730, Ahmad Khan v. The State (1998 PCr.LJ 1192) and State v. Salim Khan (1998 PCr.LJ 1636).

9. Sardar Muhammad Latif Khan Khosa, learned counsel for the complainant submitted that, according to the prosecution, the occurrence took place at 6‑00 p.m. and the F.I.R. was lodged at." 6‑40 p.m., which also shows the specific roles of the appellants for causing injuries with them respective weapons, and the medical evidence is in conformity with the ocular account. There was no pre‑consultation or fabrication in lodging of the F.I.R. He pointed out that Qamaruz Zaman P.W.12 is an independent witness and not related to any of the parties and his evidence was quite natural, convincing and trustworthy, which was even not shaken in the cross examination. Learned counsel further submitted that the empties recovered from the place of wardat were matched with the weapon used in the crime, which itself is a strong circumstantial evidence. Lastly submitted that the prosecution had proved its case against the appellants beyond any shadow of doubt and they were rightly convicted. In support of his contentions learned counsel has relied on Zafar and another v. The State (1999 SCMR 2028) and Muhammad Shafiq v. The State (2001 SCMR 1328).

10. Ch. Ghulam Ahmad, learned counsel for the State, supported the arguments advanced by the learned counsel for the complainant as ell as the impugned judgment.

11. We have given our anxious consideration to the arguments raised by the learned counsel for the parties and have also gone through the record with their assistance. Admittedly, Dr. Khalid Mahmood Fakhar (P. W.5) found 11 injuries on the person of the deceased, and according to him, cause of death was heamorrhage and shock as a result of injuries Nos. 1 to 5 and 11, which were ante‑mortem and sufficient to cause death in the ordinary course of nature.

12. It is also an admitted fact that the incident took place in a Commercial Centre, situated at Gulistan Colony, Faisalabad, which is hardly at a distance of 2 K.M. from the police station. The F.I.R. was lodged at 6‑40 p.m. The police secured empties from the place of Wardat, which were also found to be matched with the weapon recovered at the pointation of Imtiaz appellant. In this case ocular account has been furnished by Khalid Parvez P.W.11, who is complainant in the case as well as brother of the deceased and Qamaruz Zaman P. W.12. They have reiterated the case of the prosecution as mentioned in the F.I.R. We further found that Qamaruz Zaman P.W.12 is quite independent, natural witness, and not related to any party of the case. During evidence before the trial Court he unequivocally stated that he had come to purchase a Refrigerator, and the same was to be transported to his house in a vehicle, which had not vet arrived at the Wardat and was waiting for it. He also deposed that yet received a receipt of the Refrigerator but did not show the same when his statement was recorded in the trial Court. He, however, volunteered that he can produce the same which was lying in his house. This witness had no ill‑will, malice or enmity against the appellants. His evidence is in consonance with medical evidence referred hereinabove. The recovery was also proved through reliable evidence at the pointation of the appellant Imtiaz from the place, which was in his exclusive knowledge, and the same was rightly believed by the trial Court and. upheld by the learned High Court. It further transpires from the site plan that sufficient lights were available in the shop from where the witnesses were able to identify the appellants.

13. We have also minutely perused the evidence, but we are sorry to say that, in the lengthy cross‑examination of the prosecution witnesses not a single question was put to them, so that incident of firing at the deceased, and the presence of the witnesses at the spot, could be doubted or their evidence could be discarded. The witnesses have fully stood the test of cross examination.

14. The appellants duly armed with lethal weapons had come in the shopping centre with the sole intention to kill the deceased. This cold blooded, callous and premeditated murder has been proved by the prosecution with reliable and trustworthy ocular account, which also gets support from the medical as well as circumstantial evidence. The case‑law cited by the learned counsel for the appellants is quite different and distinguishable from the facts of the case in hand, which, in our considered opinion, is not helpful to their case. On the other hand, the case‑law relied on by the learned counsel for the complainant fully supports his contentions.

15. This Court has time and again observed that if a case is proves against the culprit beyond reasonable shadow of doubt and offence under section 302, P.P.C. is established, the‑ normal penalty of death should be awarded and leniency in any case should not be shown, except where strong mitigating circumstances for lesser sentence could be gathered from the evidence available on record.

16. The Courts below have properly analysed and examined the case in its proper perspective, and the brutal act of causing the death of the deceased in a busy shopping centre shows that the appellants created terror and insecurity in the minds of the people of the locality.

17. The result of the foregoing discussion is that the appeal is dismissed, and the judgment under appeal is maintained. N.H.Q./I‑38/S Appeal dismissed.