1999 PLP 2752 (SCMR)

NASIR ASLAM ZAHID, J.

The above appeal arises out of a petition sent from jail by convict/appellant Muhammad Ashraf son of Allah Wadhaya against the judgment, dated 10-1-1993 of the Lahore High Court whereby his conviction and capital sentence awarded to the appellant by the trial Court was confirmed. Leave was granted by order, dated 14-1-1996 on merits and on the question of sentence. We have heard the arguments of Sh. Muhammad Naeem, learned Advocate Supreme Court for the appellant, and Mr. Altaf Elahi Sheikh, Additional Advocate-General, Punjab, and Ch. Muhammad Akram, Advocate Supreme Court for the Respondent. With the assistance of the learned counsel, we have gone through the record.

2. The prosecution case has been described in the impugned judgment of the High Court as follows:-- "The unfortunate occurrence resulting into the death of Mehr Khan took place on 12th of October, 1987 at about 2.15 p.m. in the house of the complainant Allah Razi P.W. son of the deceased within the area of village Chokhandi situated at a distance of nine miles from Police Station Tala Gang. The F.I.R. in this case was lodged at the Police Station by Allah Razi son of the deceased at about 3.05 p.m. and the same was recorded by Muhammad Safdar, S.I. P.W.

12. In brief, the prosecution case as unfolded in the F.I.R. by the complainant was that on the fateful day at about 2.15 p.m. the complainant alongwith Ghulam Sarwar was sitting in the northern room of his residential house while his father Mehr Khan (deceased) and Mst. Gulab Bano his wife were sitting in the courtyard of the house. While sitting in the room, the complainant heard remarks made by his deceased father to the appellant Muhammad Ashraf that "Bayghairat", you have again visited the house. On hearing these remarks, the complainant as well as Ghulam Sarwar PAS'. came out of the room and as soon as they came out within their sight, it as alleged that the appellant fired a shot from a .12 bore pistol hitting the chest of Mehr Khan who fell down and succumbed to the injuries at the spot while the appellant waving the pistol in his hand escaped from the scene of occurrence. The motive for the commission of offence as disclosed in the F.I.R. was that appellant in the absence of the complainant and his father used to visit their house with a view to develop illicit connection with the wife of the complainant Mst. Gulab Bano and, thus, the deceased Mehr Khan had restrained the appellant from visting his house, on account o1 which, a few days earlier, an altercation had taken place between the deceased Mehr Khan and the appellant and allegedly, the appellant had threatened the deceased Mehr Khan with dire consequences and, thus, it was stated that on the fateful day, the appellant with the intention to kill Mehr Khan entered the house with a pistol and killed him." The case against the appellant rested upon the ocular testimony o1 complainant P.W.1 Allah Razi son of the deceased, P.W.10 Mst. Gulab Bane wife of the complainant and P. W.11 Ghulam Sarwar; motive; medical evidence and recoveries. On his examination by the trial Court under section 342, Cr.P.C., the appellant denied the charge stating that he had been falsely involved in the case due to enmity.

3. On merits we are of the view that no case is made out for interference. It was a broad day light incident and the testimony of the 3 witnesses squarely involves the appellant. Complainant P. W.1 Allah Razi is the son of the deceased whereas P. W.10 Mst. Gulab Bano is the wife of the complainant but, despite these two witnesses being related to the deceased, nothing has been shown for challenging the veracity of their ocular account. Some doubts had been cast upon the evidence of P. W.1 1 Ghulam Sarwar, an independent witness, specially for the reason that he was termed as a chance witness and that he had stated in his cross-examination that his statement was not recorded by the police. However, this contention raised on behalf of the appellant before the High Court was rightly rejected as follows:-- "As far as the discrepancy as to how P. W. Ghulam Sarwar visited the house, we are of the view that the statements of Allah Razi P. W. and Ghulam Sarwar P. W. are not all discrepant. Per his own admission, Ghulam Sarwar was passing by when he entered the house to see the construction which had been raised by the complainant and to the same effect, Allah Razi, P. W. said that Ghulam Sarwar had entered the house by chance. Admittedly, Ghulam Sarwar was a chance witness but crucial question to be examined would be whether he visited the house and had seen the occurrence. Our answer to these questions is in affirmative. Ghulam Sarwar is an independent witness and is a resident of the same village and per his own admission, he was passing by. There is nothing odd on his part to have visited and saw the newly constructed house of the complainant. Therefore, we hold that Ghulam Sarwar was a truthful witness and he had seen the occurrence. We have perused the police file and we note that on the day of' occurrence Ghulam Sarwar's statement was recorded and, therefore, in cross-examination in answer to a question that he was not examined by the police has no bearing upon the issue, as he might have been confused by the cross-examiner. " It has also been noted that the F.I.R. was recorded with promptitude and this being a case of a single accused there was no reason for his false implication. The High Court has also considered this aspect as follows:-- "It is also pertinent to mention that the appellant is a Khal Zad of Gulab, Bano and therefore we cannot believe that Gulab Bano would falsely implicate her own cousin. Furthermore Allah Razi complainant is the son of the deceased and we cannot believe that he would substitute the real culprit responsible for the death of his father with the appellant. " We find no error in the judgment of the High Court confirming the conviction of the appellant to call for interference. In fact, Sh. Muhammad Naeem, learned counsel for the appellant, did not press this appeal on merits but argued that there were mitigating circumstances, as such it was a case where death penalty was not called for and the appropriate sentence would be life imprisonment. In this regard, learned counsel submitted two contentions. Firstly it was submitted that motive advanced by the prosecution had not been established and that, in any case, the appellant had acted on provocation. There is no substance in either of the contentions. In his evidence P.W.1 complainant Allah Razi stated as follows:-- "The accused wanted to develop illicit relations with my wife Gulab Bano and for that purpose he used to come in my house in my absence and that of my father. My father had asked the accused not to visit his house three days prior to the occurrence and the accused threatened him that he will kill him. They had also exchanged hot words." P.W.10 Mst. Gulab Bano wife of complainant Allah Razi in her evidence before the trial Court gave the same account stating that the appellant wanted to develop illicit relations with her and for that purpose he used to come to her house but was checked by the deceased and that she had told about the evil intention of the appellant to her husband and to the deceased (her father-in law) and the deceased had asked the appellant not to visit his house and also reprimanded him whereupon he threatened the deceased that he would kill him. From the evidence of these 2 witnesses, the motive for the offence had been proved as rightly held by the trial Court and confirmed by the High Court.

4. On the question of provocation, Sh. Muhammad Naeem, learned counsel for the appellant, submitted that the deceased had called the appellant 'Bayghairat' and this must have provoked the appellant to attack the deceased. As observed, there is no merit in this contention. Reference has already been made to the evidence of the complainant and his wife Mst. Gulab Bano to the effect that appellant had an evil eye on Mst. Gulab Bano and for that purpose he had been visiting the house of the decease on which he had been warned by the deceased. On the day of the incident appellant came armed with 12 bore gun, and when he entered the house of the deceased, the deceased call him 'Bayghairat' stating that why he had come again. On this, appellant fired directly at the chest of the deceased which resulted in death of the deceased. In the background of what had happened earlier and the appellant had having been warned not to come again to the house of the deceased, appellant having earlier threatened the deceased, came fully armed with the intention to kill the deceased. I E In any case, in the facts and circumstances narrated above, calling the appellant as Bayghatrat' by the deceased could not be accepted as sufficient provocation to bring the case of the appellant under the old section 304, P.P.C., on the statute book at the time the incident had taken place. We find no mitigating circumstances to commute the death sentence to life imprisonment. As result this appeal is dismissed. N.H.Q./M-288/S Appeal dismissed.