1999 PLP 2526 (YLR)

KH. MUHAMMAD SHARIF, J.‑‑ This judgment will dispose of Murder Reference No:7 of 1997 and Criminal Appeal No.35 of 1997 filed by Babar Ali Raza, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Rahim Yar Khan on 17‑3‑1997 for the murder of Mst. Majeedan and her son, namely, Anwar Hussain and for causing injuries on the person of Alam Hussain Shah, complainant husband of Mst. Majeedan deceased and father of Anwar Hussain deceased. He was ordered to undergo death sentence on two counts under section 302(b); P.P.C. He was further convicted and sentenced under section 324, P.P.C. to undergo 10 years' R.I., with a fine of.Rs.5,000, in default two years' R.I. Benefit of section 382‑B, Cr.P.C., was also granted to the appellant.

2. The occurrence in this case took place on 6‑5‑1995 at 5‑30 a.m. in the area of Mohalla Islam Nagar in the house of the complainant at a distance of two K.Ms. away from the Police Station, City B‑Division, Rahim Yar Khan, while the matter was reported to the police on the same day through complaint Exh.P.C., which was recorded by Muhammad Yaqoob Sub -Inspector P.W.11 at Rahim Yar Khan, Civil Hospital, on the same day at 7‑30 a.m. and the formal F.I.R. EXh.P.C./I was recorded at Police Station, City B‑Division, Rahim Yar Khan at 7‑55 a.m.

3. Briefly stated, the facts of the prosecution case as narrated by Alam Hussain Shah, complainant in Exh.P.C., are that he lived in Mohallah Islam Nagar. His daughter Parveen Akhtar was married in Sialkot. Out of her wedlock a daughter Mst. Sanober Yasmeen was born and she was young at the time of occurrence. Complainant's maternal nephew Babar Ali Raza, accused (appellant) wanted to marry Mst. Sanober Yasmeen, maternal granddaughter of the complainant but complainant and his wife Mst. Majeedan were not agreeable to it, on which, Babar Ali Raza, accused (appellant) nourished a grudge in his heart. Some day prior to the present occurrence he had threatened Mst. Majeedan wife of the complainant with dire consequences, in case Mst. Sanober Yasmeen was not married to him. On the day of occurrence, at 5‑30 a.m., complainant alongwith Mst. Majeedan, Anwar Hussain, Ibrar Hussain sons of the complainant and one Shabbir Hussain son of Dilawar Hussain were present in the house. All of a sudden Babar Ali Raza, accused (appellant) duly armed with revolver entered into the house of the complainant and raised "Lalkara", that he would teach a lesson to them for creating hurdle in his marriage with Mst. Sanober Yasmeen and thereafter, fired a direct shot on the person of Mst. Majeedan, which hit on the back of her right shoulder, second fire was shot by Babar Ali Raza, accused (appellant; on the person of complainant, which hit on the back of his right leg and the 3rd fire was shot by the accused, which hit Anwar Hussain, the son of the complainant on his head. All the injured fell on the ground after receiving the injuries. The P.Ws. present there tried to apprehend Babar Ali Raza, accused (appellant) but he issued threats of dire consequences with his pistol, and ran away from the spot alongwith his revolver. Mst. Majeedan died at the spot while Anwar Hussain died later on.

4. After the registration of case, the Investigating Officer reached at the spot and took into possession blood‑stained earth from near the dead body of Mst. Majeedan deceased vide memo. Exh.P.E. He also took into possession blood‑stained earth from the place of murder of Anwar Hussain deceased vide memo. Exh.P.F. He also secured three crime empties P.1/1 to 3 from the spot vide recovery memo. Exh.P.G. He arrested the appellant on 22‑5‑1995, who got recovered pistol P.7, .30 bore alongwith sit live bullets P.8/1 to 6 and its licence P.9 vide recovery memo. Exh.P.K. Report of Fire‑arm Expert is positive in. nature, which is Exh.P.O. The report of Chemical Examiner is Exh.P.P., regarding the vaginal swab taken from the vagina of .Mst, Majeedan, which was not stained with semen, then there is two reports each of Chemical Examiner and that of Serologist regarding the blood‑stained earth, which are Exh.P.Q. Exh.P.Q./1, Exh.P.R. and Exh.P.R./1 respectively.

5. Prosecution in order to prove its case produced 11 witnesses in all, amongst them there are three eye‑witnesses, two were examined by the prosecution, namely, Alam Hussain Shah, complainant P.W.8 and Ibrar Hussain Shah, P.W.9 while Shabbir Hussain was given up as unnecessary. Thereafter, the statement of appellant was recorded under section 342, Cr.P.C.

6. Learned counsel for the appellant has read before us, the prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C., and makes the following' submissions. He submits that case against the appellant is a false one, that the occurrence took place in dark hours of early in the morning, that due to suspicion, appellant has been arrested in this case and recovery of revolver .30 bore has been planted on the appellant, that motive is shrouded in mystery and it is not a case of capital sentence.

7. On the other hand, learned counsel for the State supports the prosecution cage very vehemently.

8. We have heard the learned counsel for the parties and have also gone through the prosecution evidence. In the instant case, occurrence took place on 6‑5‑1995 at 5‑30 a.m. when sun had already risen. First the injured was taken to hospital and then within two hours, matter was reported to the police. The occurrence had taken place in the house of the complainant and complainant himself was injured, his wife and a young son have been murdered by the appellant in a very brutal and callous manner. Appellant was armed with revolver 30 bore, which has later on recovered from him and according to the report of Fire‑arm Expert Exh.P.O. three crime empties recovered from the spot matched with the revolver got recovered by the appellant. According to the reports of doctors, namely, Ashiq Hussain M.O. P.W.1 and Muhammad Akhtar, M. O., P.W.10, who had medically examined Alam Hussain Shah complainant, Anwar Hussain and also conducted post‑mortem examinations on the dead body of Mst. Majeedan deceased and Anwar Hussain deceased respectively. According to the doctors there were injuries with fire‑arm on their persons, which corroborates the ocular account in the instant case. Appellant was the real maternal nephew of Alam Hussain Shah complainant. There was no question of false implication in this case. The present case is of a single accused. There is no question of substitution as the substitution is a rare phenomena. In our view, I ocular account is corroborated by medical evidence, motive as stated by the complainant and the recovery of revolver which has been matched with crime empties recovered from the spot. In our view, prosecution has proved its case against the appellant beyond any shadow of doubt.

9. In this view of the matter, death sentence awarded to the appellant by the learned trial Court is confirmed. Conviction and sentence awarded to the appellant by the learned trial Court is upheld. Murder Reference is replied in affirmative. Appeal filed by the appellant through jail is dismissed. Death sentence awarded to the appellant is confirmed. Q.M.H./M.A.K./B‑65/L Appeal dismissed.