2007 PLP 1153 (YLR)

M. A. SHAHID SIDDIQUI, J.

Zulfiqar Ali appellant was convicted under section 302(b), P.P.C. for committing Qatl-i-amad of Mst. Safia Bibi wife of Muhammad Nawaz complainant and her unborn child vide judgment dated 31-10-2001 rendered by a learned Additional Sessions Judge at Faisalabad in case F.I.R. No.545 of 1999 Police Station Thikriwala. He was sentenced to death and directed to pay Rs.50,000 as compensation to the legal heirs of the deceased or in default of payment thereof to undergo S.I. for six months.

2. There is also a reference (Murder Reference No.26 of 2002) made by the learned trial Court seeking confirmation of death sentence awarded to the appellant, which we propose to dispose of through this consolidated judgment.

3. The occurrence took place on the night between 30-9-1999 and 1-10-1999 in the house of Muhammad Nawaz complainant in Chak No.74/JB at a distance of one kilometer towards East from the Police Station Thikriwala. According to the prosecution's case unfolded in the F.I.R. Muhammad Nawaz, complainant P.W.6, his brother-in-law (Ham Zulaf) Muhammad Ashraf P.W.7 and Muhammad Hussain (given up P.W.) besides other family members were sitting in the courtyard of the house and talking to each other. In the meantime Muhammad Nawaz complainant went inside the room to change his dress. The moment he put the light on he found Zulfiqar Ali appellant hiding himself in the room. He picked up a Danda and gave 3/4 blows. The appellant took out a revolver from the fold of his shalwar and started brandishing. The complainant and other witnesses retreated. Mst. Safia Bibi wife of Muhammad Nawaz complainant tried to intercept the appellant at the door when he was running away. The appellant fired with his revolver hitting Mst. Safia Bibi on her chest. The appellant decamped. Muhammad Nawaz complainant went to the Police Station and lodged the F.I.R. Exh.PE. While reporting the matter to the police Muhammad Nawaz complainant alleged that Zulfiqar Ali appellant had entered his house and hidden himself in the room with evil intentions.

4. After the registration of the case "the investigation was carried out by Zafar Ali S.-I. P.W.9. He got the dead body of the deceased dispatched to the hospital for autopsy, recorded the statements of the P.Ws. under section 161, Cr.P.C. and got prepared the site plans Exh.PC and PC/1 by Aurangzeb Draftsman P.W.5. He arrested the appellant on 18-10-1999 and recovered the revolver from his possession Exh.P

4. After the completion of the investigation the challan was submitted before the learned trial Court.

5. At the commencement of the trial the appellant was formally charge-sheeted on 3-9-2001 under sections 458/302, P.P.C. He pleaded got guilty and claimed trial.

6. The prosecution produced nine witnesses in order to prove the charge against the appellant. Muhammad Nawaz P.W.6 and Muhammad Ashraf P.W.7 furnished the ocular account of the occurrence. Muhammad Nawaz P.W.6 also stated about the purpose for which the appellant had entered in his house. Dr. Kausar Parveen P.W.10 testified the post-mortem examination report Exh.PH and sketch of the injuries Exh.PH/1 prepared by Dr. Shahida Arshad M.O. She disclosed that Dr. Shahida Arshad was on Ex-Pakistan leave.

7. Zafar Ali S.-I. P.W.9 stated about the registration of the F.I.R. and various steps which he took during the investigation of the case. The statements of the remaining witnesses were of formal nature.

8. The accused in his statement under section 342, Cr.P.C. denied and controverted all the allegations of fact levelled against him by the prosecution and pleaded his innocence. However, he admitted his entry in the house of the complainant at the relevant time. In order to fully appreciate the plea of the appellant we consider it proper to re-produce his answer to Question No.9 which is as under: "This is false case against me. The P.Ws. are closely related inter se and had not eye-witnessed the occurrence. Because of close relationship with the complainant. they have made false statements against me. I was on visiting terms with Mst. Shaista and both of us had planned to marry. It was well within the knowledge of Mst. Safia. I was gossiping around with Mst. Shaista in the presence of Mst. Safia. In the meantime, Muhammad Nawaz returned to home. Mst. Safia and Mst. Shahida provided me a hide out in the room. After long time Nawaz caught me in the house because I could not escape due to his continued presence in the house. He thrashed me severely and I fell unconscious. Nawaz had suspicion of my illicit connections with Mst. Shaista. When I gained sense I was in the police station. I learnt it from the other neighbouring people that Nawaz wanted to kill Shaista, but Mst. Safia intervened to shield her and was hit thereby. I had been administered treatment by the police. I sustained head injuries and my clothes became smeared with blood. My arrest was shown by the police only, when my injuries had withered away." At the end of the trial the learned trial Court found the prosecution's case to have been proved beyond any doubt and thus the appellant was convicted and sentenced as mentioned and detailed in the opening paragraph of this judgment. Hence, the present appeal and the connected Murder Reference before this Court.

9. Learned counsel for the appellant while assailing the conviction and sentence inter alia argued that presence of Muhammad Ashraf P.W.7 at the time of occurrence is open to doubt; that Muhammad Nawaz complainant P.W.6 has not stated the truth, he had in fact given merciless beatings to the appellant as a result of which he had become unconscious and taken to hospital by the I.O. for treatment but his arrest had not been shown by the I.O. in order to dislodge the plea of the appellant; that the learned trial Court has discarded the evidence of the recovery of pistol from the possession of the appellant on the ground that the same had not been sent to the Forensic Science Laboratory and this finding of the learned trial Court fully supports the plea of the appellant that Mst. Safia Bibi had died as a result of firing made by Muhammad Nawaz complainant.

10. Learned counsel appearing on behalf of the State has supported the judgment. He argued that Muhammad Ashraf P.W.7 is the husband of the sister of the deceased, his presence at the place of occurrence was natural.

11. We have made reappraisal of the entire material brought on the record. Admittedly name of the father of Muhammad Ashraf P.W.7 is not Sardar Ali as had been mentioned by the I.O. while recording statements under section 161, Cr.P.C. The occurrence took place in the house of Muhammad Nawaz complainant in which his presence at the relevant time has not been disputed even by the appellant. The presence of Muhammad Ashraf P.W.7 as a measure of abandoned care and caution may be discarded but the presence of Muhammad Nawaz complainant is not in dispute. He denied the suggestion that he had a pistol in his hand at the time of occurrence with which he fired a shot at his daughter Mst. Shaista which hit his wife Mst. Safia deceased. We have considered the plea of the accused in juxtaposition. He pleaded that due to mercilessly beatings given by the complainant he was lying unconscious when the police arrived at the spot. Had the complainant any pistol with him and fired at his daughter which un luckily had hit Mst. Safia Bibi deceased? The complainant could have easily fired a second shot and killed the appellant in anger. There is absolutely no evidence that the appellant had become unconscious after receiving injuries at the hands of the complainant. The suggestions given by the appellant does not find support from the attending circumstances. The statement of Muhammad Nawaz complainant alone is sufficient to prove the case against the appellant beyond any doubt. There is sufficient material to show that the appellant was spoiled young man of 20 years of age who was so daring that he entered into the house of the complainant with evil intentions. We have found no reason to take exception to the findings of the learned trial Court. In the absence of any mitigating circumstance the learned trial Court has rightly awarded the normal penalty of death to the appellant.

12. As a sequel of the above discussion this criminal appeal fails and is hereby dismissed. The death sentence awarded to the appellant is confirmed. Murder Reference is answered in affirmative. N.H. Q. /Z-3/L Appeal dismissed.