2008 PLP 1581 (MLD)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.1366 of 1999 filed by Naseer Ahmad alias Naseera, appellant, who was convicted and sentenced by learned Additional Sessions Judge, T.T. Singh vide his judgment, dated 22-12-1999 to death under section 302(b), P.P.C. with the further direction to pay Rs.20,000 as compensation to the legal heirs of deceased or in default six months' S.I. Criminal Appeal No.262 of 2000 filed by Munir Ahmad against the acquittal of Muhammad Iqbal etc.' and Murder Reference No.26 of 2000 for confirmation of death sentence of the appellant or otherwise shall also be disposed of through this single judgment.

2. Brief facts of the case as disclosed by Munir Ahmad complainant are that Bashir Ahmad deceased used to live with his inlaws at Chak No.378 JB and complainant went there to see him. On 8-6-1998 at about 10-30 a.m. Bashir Ahmad deceased accompanied by Munir Ahmad complainant came to the shop of Muhammad Inwar tailor master to take his sewed clothes. Bashir Ahmad deceased went inside the shop whereas complainant stood outside. Nawaz Ali and Talib Hussain relatives of the complainant, on seeing him standing in the bazaar, came to him and started talking to him. In the meantime, Naseer Ahmad accused armed with pistol .30 bore and Muhammad Iqbal acquitted accused empty-handed, came there, Muhammad Iqbal acquitted accused raised lalkara that Bashir Ahmad deceased should not be spared alive. Naseer Ahmad fired with pistol .30 bore, which hit Bashir Ahmad at his back and in consequence of the same he fell down. On hearing the report of fire, the complainant party reached there. However, Naseer Ahmad accused and Muhammad Iqbal acquitted accused succeeded in running away from the spot. Motive behind the present occurrence was that Zafar Iqbal son of Bashir Ahmad deceased had illicit liaison with daughter of Naseer Ahmad accused and the latter was having grudge over the same. Bashir Ahmad while in an injured condition was removed to DHQ, 'Hospital, T.T. Singh where Medical Officer after giving him first aid, referred him to Allied Hospital, Faisalabad but he died in the way to the same.

3. After registration of the formal F.I.R., the investigation of the case was handed over by Muhammad Aslam S.-I. (P.W.12), who went to the place of occurrence, inspected the same, collected blood-stained earth which was taken into possession vide memo. Exh.PG., prepared site-plan without scale Exh. PI, prepared injury statement Exh.PB and inquest report Exh.PC. The investigation then was entrusted to Abaid ur Rehman S.-I. (P.W.11), who on 22-7-1999 arrested Naseer Ahmad appellant. On 29-7-1999 Naseer Ahmad appellant while in police custody led to the recovery of pistol .30 bore P.3 along with 7 bullets P.4/1 to 7, which were taken into possession, vide memo. Exh.PH. After completion of the remaining formal investigation, the accused were challaned to the Court to face trial.

4. At the trial, prosecution in order to prove its case produced 13 witnesses in all. Thereafter, learned A.P.P. tendered in evidence the report of Chemical Examiner Exh.PN, that of Serologist regarding the blood-stained earth Exh.P.O. and closed the prosecution case. The statement of the accused-appellant under section 342, Cr.P.C. was recorded, in which they pleaded innocence and false implication.

5. Learned counsel for the appellant after having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and other relevant material available on record submits that there is a delay of seven hours in lodging the F.I.R.; that both the eye-witnesses are closely related to the deceased; that no independent witness has been produced by the prosecution; that Muhammad Inwar tailor master in whose shop the occurrence took place was declared hostile; that no crime empty was recovered from the spot; that the recovery of pistol from the appellant is planted one; that no independent witness from the shop of tailor master has been produced in the evidence by the prosecution. As far as the motive is concerned, he submits that complainant had stated in the F.I.R. that the son of the deceased had illicit relations with his daughter; that the version of the appellant in reply to question No.10 of his statement recorded under section 342, Cr.P.C. is more plausible and convincing one; that the version of the appellant also gets support from the motive given in the F.I.R.; that in the circumstances of the case it is not a case of death sentence but there was mitigating circumstance in favour of the appellant as the motive is shrouded in mystery.

6. On the other hand the learned counsel for the State assisted by the learned counsel for the complainant submits that it is a broad-daylight occurrence; that delay in lodging F.I.R. has been explained by the complainant in the F.I.R. because first of all the deceased was taken to District Hospital, Toba Tek Singh and after getting medical treatment doctor referred the deceased to the Allied Hospital, Faisalabad; that the deceased was being taken to Allied Hospital, Faisalabad but he died in the way and this was the reason for the delay in lodging the F.I.R.; that there is no question of substitution in the case; that if there was any illicit relation that was between the daughter of the appellant and the son of the deceased while the deceased had no concern with such offence; that the ocular account is supported by medical evidence; and that the version of the appellant is not plausible. Both the learned counsel supported the judgment of the learned trial Court.

7. We have considered the submissions made by the learned counsel for the parties and perused the record. The occurrence in this case had taken place on 8-6-1998 at about 10-30 a.m. so it was a broad daylight occurrence. The matter was reported to the police on 4-30 p.m. on the same day at Adda Chak No.295-GB. The reason of the delay in the lodging of F.I.R. has been fully explained in the F.I.R. i.e. firstly the deceased was taken to District Headquarter Hospital, T.T. Singh in an injured condition and there the doctor gave him medical_ aid and referred him to Allied Hospital, Faisalabad because he was in serious condition. Before reaching the Allied Hospital, Faisalabad the deceased met with his death in the way. So the delay in lodging the F.I.R. is fully explained.

8. As far as the motive is concerned the illicit relation, if any, was between the son of the deceased and the daughter of the appellant. The deceased had no concern with the motive. He had arrived in Pakistan from Saudi Arabia about 10/15 days before the occurrence. In our society it is not believable that father would join hands with his son in such-like matter. As far as the contention of the learned counsel for the appellant that Muhammad Anwar tailor master in whose shop the occurrence had taken place denied to have witnessed the occurrence. We have gone through his statement (P.W.8). He had not claimed to be an eye-witness in this case but had stated that the dead body was lying in his shop and the blood-stained earth was taken from there. The complainant and other witnesses were present there and he was informed that it was the appellant who had committed the murder of the deceased. In fact he has supported the statements of Munir Hussain and Talib Hussain eye-witnesses in this regard. The ocular account is fully supported by the medical evidence. Now the appellant has given his own version in reply to question No.10 of his statement recorded under section 342, Cr. P. C. which is reproduced below:-- "I am innocent. In fact on the day of occurrence, Ali Raza alias Zafar Iqbal who is son of Bashir Ahmad, deceased, Bashir Ahmad deceased and some other persons forcibly abducted my daughter namely Mst. Bano aged about 17/18 years and started taking her away on a Dala. I came to know about it whereafter in order to save the honour of my daughter, I accompanied by some neighbors, followed said Ali Raza etc. and fired at the tyres of Dala. Cross-firing was exchanged between both the parties in consequence whereof Bashir Ahmad deceased received one fire shot. During investigation of this case my daughter namely Mst. Bano and my wife told real facts to Muhammad Aslam Sub-Inspector the Investigating Officer of this case. Muhammad Aslam S.-I. fell in league with the complainant party and recorded F.I.R. against me and Muhammad Iqbal acquitted accused by distorting the real facts. He conducted dishonest investigation in this case. Munir Hussain the complainant is resident of Chak No.360 JB and is real brother of Bashir Ahmad deceased. Talib Hussain P.W. is husband of sister of Bashir Ahmad deceased. These P.Ws. had not witnessed the occurrence. The occurrence did not take place in the shop of Muhammad Inwar P.W. I have four daughters and one son. My son is aged about two years. I am a poor person. I am Jat by caste and only one family Jats i.e. my family reside in Chak No.378 JB. Bashir Ahmad deceased belonged to Mashki caste. There are 12 or 13 families of Mashki caste in Chak No.378-JB. Aforementioned Ali Raza alias Zafar Iqbal has four brothers. They are person of impeachable character. The inmates of Chak No.378-JB are victim of their atrocities. I have been falsely implicated in this case."

9. The versions i.e. of the appellant and the eye-witnesses when put in juxta-position, the version of the prosecution seems to be more plausible and convincing one. It is settled law that in taking the special plea, the onus lies on the accused to discharge the same under Article 121 of the Qanoon-e-Shahadat Order, 1984. The appellant failed to substantiate his version either before the police or before the trial Court. He even failed to produce his wife and daughter before the trial Court to support his version. Moreover, his version was that he had heard from somebody that his daughter was being abducted and put in Dala. There was cross-firing between the parties and the deceased Bashir received a fire shot. This version has got no support whatsoever. So, in the circumstances of the case, we discard the version of the appellant. Moreover the occurrence had taken place on 8-6-1998 but the appellant was arrested on 22-7-1999 i.e. one year and one month after the occurrence. He was declared proclaimed offender. This abscondence of the appellant for such a long period also gives corroboration to the eye-witness account. As far as the motive is concerned, it has been held by the Apex Court that mere insufficiency of motive is no ground for mitigation. In this regard reference is made to 1999 SCMR 1668.

10. We, therefore are of the opinion that the prosecution has proved it's case against the appellant beyond any shadow of reasonable doubt. His appeal, therefore, is dismissed. There is no mitigating circumstances in this case. The death sentence is hereby confirmed. Murder Reference is answered in affirmative.

11. As far as the appeal against Acquittal (No. 262 of 2000) Muhammad Iqbal, it was ordered to be heard along with the present appeal and the murder reference. Only Lalkara is attributed to Muhammad Iqbal. He, thus was rightly acquitted by the learned trial, Court. The above-mentioned appeal, therefore, is dismissed. H.B.T./N-72/L Appeal dismissed.