1998 PLP 624 (SCMR)

CH. MUHAMMAD ARIF, J.‑‑‑This petition under clause (3) of Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973 by the first informant of a murder case in which his son, Muhammad Rafique, was done to death on 16‑12‑1989 in his presence, is directed against judgment dated 17‑9‑1995 whereby a learned Division Bench of the Lahore High Court, Lahore had disposed of Murder Reference No.383 of 1991, Criminal Appeal No.880 of 1991 (brought by respondent No.1 Haider Zaman) and Criminal Revision No.577 of 1991 (brought by the petitioner/first informant) challenging acquittal of the remaining four accused by maintaining the conviction of respondent No.1 but commuting sentence of death to imprisonment for life and upholding the acquittal of the rest of the accused.

2. Complainant/petitioner reported the case under sections 302, 307, 336, 148/149, P.P.C. i.e. alleging murder of his son Muhammad Rafiq as also an attempt on his own life and indiscriminate firing by the accused. The occurrence took place on 16‑12‑1989 at about 5.00 p.m. in the area of Village Shahjehania which is located at a distance of 4 miles from Police Station Karianwala. F.I.R. (Exh.P.A./1) is based upon his statement made at 7.45 p.m. at Bus Stand of Village Bhagowal before A.S. I. Shahbaz Ahmed (P.W.11) of Police Post Tanda. According to the first informant, he alongwith his son Muhammad Rafiq were present in their "Haveli Muveshina". They had collected. fire‑wood a top the roof of their Haveli. Towards south of the Haveli, the house of late‑Tassadaq Hussain is situated. Muhammad Rafiq went to fetch fire‑wood from the roof‑top and was followed by the petitioner. Petitioner saw respondents‑Haider Zaman, Kahlid Zaman, Muhammad Bashir, Sadiq and Shafique, already present at the roof of the house of late‑Tasadaq Hussain. They were duly armed and seeing Muhammad Rafiq, Muhammad Saiq raised Lalkara that fire be made at petitioner's son whereupon respondent‑Haider Zaman did make fire from his fire‑arm hitting Muhammad Rafiq who fell down on the roof. Petitioner was also fired at by Khalid Zaman but he did not received any injury as he hid himself behind the stairs. Kahlid Zaman raised Lalkara asking any one from their side to come forward and as none did so, the accused came down from roof of the house of late‑Tassadaq Hussain and going through its courtyard, ran away. The occurrence was alleged to have been witnessed by the complainant and Riaz Ahmed (P.W.4), Fazal, Sadiq and Muhammad Bashir P.Ws. (not examined). The motive behind the occurrence was stated to be a quarrel having taken place one month prior thereto, between respondent‑Haider Zaman and Muhammad Rafiq‑deceased, latter of whom had given fist‑blows to the former. It was this quarrel which was alleged to be cause for the occurrence dated 16‑12‑1989.

3. ASI Shahbaz Ahmed proceeded to the spot after sending petitioner's statement to the Police Station. He prepared injury statement of deceased Muhammad Rafiq Exh.P.F., inquest report Exh.P.G. and sent his dead body for postmortem examination. He also secured blood‑stained earth from the spot vide Memo. Exh.P.B. Last worn clothes of the deceased were also produced before him by Constable‑Muhammad Siddique on 17‑12‑1989. A.S.I. Shahbaz also got prepared site plans of the place of occurrence from the Draftsman and the same are Exhs.P.E. & P.E./1.

4. Inspector‑Dildar Ali (P.W.8) took up the investigation of the case on 17‑12‑1989. He recorded the statements of Constable‑Muhammad Siddiq and Moharrir‑Muhammad Anwar on 30‑12‑1989. He arrested accused‑Haider Zaman, Muhammad Bashir, Muhammad Sadiq and Muhammad Shafique whereafter investigation was transferred to S.I. Muhammad Hanif (P.W.5) on 29‑1‑1990. P.W.5 interrogated Haider Zaman‑accused and got recovered 12 bore Gun Exh.P.I with license Exh P.2 from the house of respondent‑Harder Zaman and toak them into possession vide Memo.Exh.P.C. and also prepared rough site plan Exh.P C./1. This happened on 29‑1‑1990. On the same day, accused Muhammad Bashir led to the recovery of Rifle EXh.P.3 and license Exh.P.4, which were taken into possession by him, vide Memo. Exh.P.D. The site plan of the place of recovery 'is Exh.P.D./1.

6. During the investigation, the local‑Police found accused‑Muhammad Sadiq, Muhammad Shaifa and Khalid Zaman as innocent and they were, put in Column No.2 of the challan white accused‑Haider Zaman and Muhammad Bashir were kept in Column No.3.

7. All the accused were duly charged for the offence alleged against them and on their denying the same, the case against them was tried by a learned Additional Sessions Judge, Gujrat.

8. After discussing the ocular‑account, evidence of motive, medical evidence, evidence of recoveries and the defence‑version, the learned Additional Sessions Judge, Gujrat proceeded with the decision in the case on 27-7-1991. Para. 37 of the judgment reads thus:‑‑ "During investigation of Sadiq, Shaifque, Khalid Zaman accused were found innocent wild; no overt act except firing in the air has been attributed to Muhammad Bashir accused, Moreover, it is common trend that the persons with rural background due to presence of previous enmity implicate maximum members of their opponents including the innocent persons, therefore, the benefit of doubt is extended to Muhammad Sadiq, Muhammad Shafique Kahlid Zaman and Muhammad Bashir accused. However, prosecution cast: to the extent of Haider Zaman accused is fully proved. Moreover, the only fatal injury is ascribed to this accused. Thus, the prosecution has fully proved its case against Haider Zaman accused on the basis of ocular account, medical evidence as well as motive part of the prosecution version, therefore, I held him responsible for murder of Muhammad Rafique deceased and he is convicted under section 302, P.P.C. and sentenced to death. He shall be hanged till he is dead. A fine of Rs.30,000 is also imposed on him. The fine if recovered shall be given to the legal heirs of the deceased. In case of default of payment of fine Haider Zaman accused shall undergo R.I. for five years. Haider Zaman accused is on bail. He shall be taken in custody and sent to jail for undergoing his sentence. All other accused are acquitted by extending them benefit of doubt. They are on bail. Their bail bonds are cancelled and sureties are discharged. As for as licenced rifle of Bashir accused is concerned that shall be returned to him, while District Magistrate shall be motivated to cancel the licnece of Haider Zaman accused, and his gun shall be confiscated in favour of the State after period of ‑ appeal/revision. Copy of this judgment shall be given to the accused free of cost. He can prefer appeal within seven days. File of this case be also sent to Honourable High Court for confirmation of death awarded to Haider Zaman accused. Copy of this judgment be also sent to District Magistrate as required under section 373, Cr.P.C. "

9. Raja M. Ibrahim Satti, learned counsel for the petitioner, has tried to argue that. the entire evidence of the case was sufficient to implicate all the accused in the matter. According to him, recovery of Rifle EXh.P.3 from Muhammad Bashir accused was sufficient to lead to his conviction as well. As regards the commutation of sentence of respondent‑Haider Zaman, his argument was that he was not entitled to any such indulgence at the appellate stage. Referring to the acceptance of the prosecution evidence in its entirety by the Trail Court and the High Court to the extent of involvement of respondent Haider Zaman he contended that similar treatment should have been meted out the other accused as welt.

10. We have considered the arguments of the learned counsel. The available material has also been perused. The reasons advanced by the Trial Court, which also found favour with the learned Division Bench of the High Court, have not been shown to be suffering from any taint in law whatsoever. The presence of the complainant (P.W,2) as well as Muhammad Riaz (P.W.41 at the place of occurrence as also the absence of any motive for the prosecution to Substitute the actual culprits for the real accused run throughout the length and breadth of this case. The remaining co‑accused of respondent‑Haider Zaman were held to have been involved in case in line with the common trend in the villagers/persons with rural background to swell the number ' accused to previous, enmity between the parties.

11. During the arguments, Raja M. Ibrahim Satti submitted to confine this petition to the extent of Muhammad Bashir respondent alone by contending that his case is at par with that of respondent‑ Haider Zaman. We are afraid even this j plea is devoid of any merit. Muhammad Riaz (P.W.4) had particularised the use k of a gun Exh. P.1 by respondent‑Haider Zaman and the description of the arm being carried by respondent‑Muhammad Bashir as Rifle Exh.P.3, has been rightly ignored by both the Courts below in extending the benefit of doubt to respondent‑Muhammad Bashir. For all that has gone before, this petition is dismissed and leave to appeal is refused. N.H.Q./M‑75/S Leave refused.