2006 PLP 1202 (MLD)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.94 of 2001 filed by Muhammad Akram, who, vide judgment dated 25-1-2001 handed down by the learned Sessions Judge, Sahiwal, stands convicted and sentenced for offence under section 302(b), P.P.C. to death. Murder Reference No.397 of 2001, seeking confirmation or otherwise of the death sentence, shall also be replied through this single judgment.

2. The facts of the case, in brief, as narrated by Pervez Iqbal complainant, are that on the fateful day (30-5-2000) at morning time, the complainant, his brother Javed Iqbal, brother-in-law Muhammad Hanif and maternal nephew Waheed Nadeem reached Caltex Petrol Pump near Mandi Chowk on a motor cycle rickshaw being driven by Javed Iqbal and were about to have fuel in the rickshaw, when at about 7-30 a.m. Muhammad Akram appellant, while armed with .30 bore pistol, came running behind them and raised Lalkara that he would teach a lesson to Javed Iqbal for abusing and giving beating to him. He fired a shot from his pistol, hitting Javed Iqbal on his left flank. Javed Iqbal tried to run away towards east when the accused fired second shot which hit on the left side of his left eye and passed through his head, as a result whereof Javed Iqbal fell down and sustained two more fire shots by the accused on his chest. Akram fled away from the scene of occurrence, along with his pistol. Due to fear none from the complainant side intervened. Javed Iqbal in injured condition was removed to the hospital and was succumbed to the injuries within one hour and fifteen minutes in emergency room of the hospital.

3. As to the motive, it was alleged in the F.I.R. that 25/30 days earlier, Javed Iqbal had gone to the house of his brother-in-law Muhammad Hanif in Abid Colony, where Muhammad Akram under the influence of drugs was abusing and was given beating by Javed Iqbal and on account of that grudge, the accused committed the murder of the deceased.

4. On 30-5-2000 at 8-15, Muhammad Raees S.-I./P.W.10, reached the hospital and recorded the statement (Exh.PC) of Pervez Iqbal P. W .7, which was sent to the Police Station Fateh Sher where formal F.I.R. was registered. The S.-I./Investigating Officer went to the place of occurrence, took into possession blood-stained earth vide memo. Exh.PG. He also took into possession four empties P-6/1-4 from the spot through memo Exh.PH. The motor cycle rickshaw was taken into possession through memo. Exh.PJ. He then proceeded to the hospital and prepared inquest report Exh.PB. After post-mortem examination, the last worn blood-stained clothes of the deceased, i.e. Shalwar P.1, Shirt P.2, Safa P.3 and vest P.4, were taken into possession through memo. Exh.PD. The Investigating Officer also prepared rough site-plan Exh.PK. Muhammad Akram was arrested on 3-6-2000. His motor cycle was taken into possession vide memo. Exh.PF. Pistol .30 bore was also taken into possession from the accused through memo. Exh.PE. Exh.PE./l site-plan of the place of recovery was prepared. After completion of investigation, the accused was challaned to face the trial.

5. In support of its version, the prosecution produced eleven witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.PM., Exh.PQ., Serologist Exh.PN. and Forensic Science Laboratory, Exh.PO. Muhammad Akram in his statements under sections 342, and 340 (2), Cr.P.C. admitted the commission of the murder of the deceased with the pistol on account of provocation, as the deceased had forcibly committed sodomy upon him on 29-5-2000 and run away. However, he stated that the witness were not present at the time of occurrence nor the recoveries were effected from him as alleged by the prosecution, rather it was he who himself had appeared before the police and produced the motor cycle and his licensed .30 bore pistol along with the licence.

6. Learned counsel for the appellant, in support of this appeal, submits that the prosecution failed to prove the motive; that the Investigating Officer did not probe into the motive during the course of investigation; that the Investigating Officer was a dishonest person; that the appellant had himself appeared before the police and handed over the pistol, while the police has shown his arrest otherwise. P.Ws.7 and 8, both; are real brothers of the deceased; that they are not the residents of the place where they claimed to live; that Munir Ahmad, nephew of the deceased, was given up by the prosecution; that not a single witness working at the petrol pump, where the occurrence took place, was cited by the prosecution or produced before the trial Court; that the version given by the appellant was never investigated into by the Investigating Officer. The main stress of the learned counsel is that the motive in the instant case shrouded in mystery and no one knows, what happened just before the occurrence and this is the mitigating circumstance in favour of the appellant for lesser sentence.

7. On the other hand, learned counsel for the State submits that the F.I.R., was lodged promptly; that the appellant is the sole accused; that the appellant was involved in a murder case earlier, as well, but was acquitted on the basis of compromise; that the prosecution fully proved its case against the appellant beyond any shadow of doubt through unimpeachable evidence brought on the record in the shape of ocular account, medical evidence, recoveries and the positive report of the Fire Arms Expert.

8. We have heard the learned counsel for the parties at length and gone through the entire record with their assistance.

9. The occurrence in this case took place on 30-5-2000 at 7-30 a.m. The matter was reported to the police on the same day at 8-45 a.m., after 1 hour and 15 minutes of the occurrence. Distance between the police station and the place of occurrence was two furlongs. It is a day light occurrence. Only single accused has been named. The accused/appellant made confession before the learned Sessions Judge at the time of framing of the charge, and had accepted to commit the murder of the deceased. The reasons given was that a day prior to the occurrence, sodomy was committed by the deceased with him so he committed his murder. At page 45 of the paper book, the learned Public A Prosecutor brought on record that the appellant had also got registered a case with regard to the commission of sodomy with him by the employees of the jail but ultimately the same was found to be false and was cancelled. It is significant to note that in his statement recorded under section 342, Cr.P.C., the appellant has given his age as fifty years, while the age of the deceased was thirty five years according to the post-mortem report. We do not believe that a day earlier to the occurrence, the appellant was subjected to commission of sodomy by the deceased. No case was got registered by the appellant against the deceased in that regard. The prosecution has proved its case against the appellant beyond any doubt. The ocular account is fully supported by medical evidence, corroborated by the evidence of recovery of motor cycle, pistol/crime weapon, four crime empties from the spot and the positive report of the Fire-Arm Expert that the four empties matched with the pistol. There is no mitigating circumstance in favour of the appellant. He has rightly been convicted and sentenced by the learned trial Court.

10. The result is that this appeal is dismissed. The death sentence is confirmed. The Murder Reference is answered in the Affirmative. H.B.T./M-185/L????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.