2011 PLP 1335 (SCMR)

SARDAR MUHAMMAD ASLAM, J.

The appellant has assailed, through leave of this Court, his conviction under section 302(b), P.P.C. and sentence to death awarded by the trial Court which was maintained on appeal by the High Court in a case registered vide F.I.R. No.336 dated 21-12-2001, in Police Station Saddar Chishtian, District Bahawalnagar.

2. Precisely, facts narrated in the F.I.R. lodged by Muhammad Yasin, complainant, are that he was engaged with Mst.Shahida Bibi, daughter of Muhammad Sadiq, uncle of the complainant and after Eid-ul-Fitr on 21-12-2001, the nikah ceremony was to be performed. On 20-12-2001, complainant, his father Muhammad Yousaf deceased accompanied by Fayyaz Ahmad P.W.8, Riyasat Ali and Muhammad Javed given up P.Ws. went to the house of Muhammad Sadiq. Appellant, son-in-law of Muhammad Sadiq was also present there. He was not happy to the proposed marriage and nikah ceremony. On the evening of day of occurrence, an altercation took place between the appellant and complainant's side on this issue. The complainant along with deceased Muhammad Yousaf, Fayyaz Ahmad and Riyasat Ali went to sleep in the veranda of house of Muhammad Sadiq, after having dinner. Qamar Abbas, slept in another room. Hearing the shrieks of deceased Muhammad Yousaf at 11/12 night, the complainant woke up and saw the appellant armed with iron toka, inflicting blows on his father Fayyaz Ahmad and Riyasat Ali also woke up and saw the appellant causing injuries on the deceased. They tried to apprehend the appellant but he succeeded in fleeing away from the place of occurrence. The motive behind the occurrence statedly was annoyance of appellant over the proposed marriage of his sister-in-law with the complainant.

3. After formal registration of the F.I.R., investigation was set in motion. The Investigating Officer inspected the place of occurrence, took over the dead body, prepared injury statement and inquest report, obtained blood-stained earth from the spot. On 9-1-2002, he arrested the appellant, who led to the recovery of blood-stained crime-weapon. After completion of investigation, the challan was sent. The appellant was charge-sheeted to which he pleaded not guilty. The prosecution evidence was summoned.

4. The prosecution produced 10 witnesses to prove its case. Deputy District Attorney, representing the prosecution tendered in evidence reports of Chemical Examiner and Serologist and closed the case of prosecution. The appellant was examined under section 342, Cr.P.C. He claimed grave and sudden provocation and appeared as his own witness under section 340(2), Cr.P.C. The appellant was convicted and sentenced to death by the trial Court. He preferred an appeal before the Lahore High Court, Bahawalpur Bench, where a learned Division Bench dismissed his appeal and maintained the conviction recorded by the learned trial Court.

5. Learned counsel for the appellant contends that the F.I.R. was lodged with a delay after conducting preliminary investigation; that the ocular account has been furnished by chance witnesses, whose presence was improbable and that the learned Courts below acted as a spectator and did not summon, by exercising power under section 540, Cr.P.C. either father-in-law of the appellant or inmates of the house, whose presence could not have been doubted. He relied upon the case of "Ata Muhammad and another v. The State" (1995 SCMR 599), Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 SC 95) and Ashiq Hussain alias Muhammad Ashraf v. The State (PLD 1994 SC 879) in support of his arguments. On the other hand, learned Deputy Prosecutor-General, Punjab, argued that the prosecution case finds support from the ocular account and their presence cannot be doubted and that the appellant himself has admitted the murder of the deceased but failed to prove the reasons advanced by him.

6. We have heard learned counsel for the parties and perused the record with their able assistance. Both the trial Court and learned High Court believed the prosecution evidence, rejected the version of the appellant and passed sentence of death. The appellant was son-in-law of Muhammad Sadiq, who was also uncle of the complainant and Mst. Shahida Bibi, daughter of Muhammad Sadiq was engaged with the complainant. Eid-ul-Fitr was to be celebrated on 21-12-2001 and a day prior to Eid-ul-Fitr, the complainant along with Muhammad Yousaf, his deceased father, P.W.8 Fayyaz Ahmad, his first cousin and other given up witnesses, had arrived at the house of Muhammad Sadiq. Their presence in the house of Muhammad Sadiq cannot be doubted in any manner; firstly, for the reason that Muhammad Sadiq was uncle of the complainant and secondly; the witnesses were present there for nikah ceremony which was to take place after Eid-ul-Fitr on 21-12-2001. The presence of the P.Ws., therefore, at such an important occasion was natural one and cannot be doubted by any stretch of imagination.

7. The eye-witnesses being present in the house of the deceased, hearing his shrieks, woke up and rushed towards him and saw the appellant causing successive blows with a toka on the deceased. He fled away from the spot when P.Ws. tried to apprehend him. The prosecution witnesses were cross-examined at length but they remained strict to their statements and were not shaken. The ocular evidence is thus reliable, trustworthy and cogent. The post-mortem of the deceased was conducted by the Medical Officer, who found the following injuries on his person with a sharp-edged weapon:-- "INJURY NO.1: There was an incised wound present on the right side of the neck and scalp 20 x 8 cm cutting of neck, muscle, veins, arteries even scalp below the right ear, also cutting of spinal cord and stem of brain. INJURY NO.2: There was an incised wound 15 x 15 cm present on the right side of the face cutting of right ear. There was also cutting of right upper jaw, clotted blood present. INJURY NO.3: There were two incised wounds present at the lower 1/3 of right side of neck 10 x 2 cm, 11 x 2 cm, muscle also cut. INJURY NO.4: There was an incised wound present on the right shoulder at the medial 1/3 of the right clavicle also skin and muscle cut." The injuries suffered by the deceased are in line with the ocular account. The ocular evidence is corroborated by medical evidence. The recovery of the crime-weapon from the person of the appellant lends corroboration to the prosecution case. It was blood-stained and report of Serologist certified it to be stained with human blood.

8. The appellant pleaded a different case and his version contained in reply to question No.10 is reproduced below for facility of its examination:-- "Yes, I am innocent. I did not cause injuries to the deceased in the manner and in the circumstances alleged by the prosecution. In fact, on the night of occurrence deceased Muhammad Yousaf had come to the house of my father-in-law Sadiq on a non-specific visit being relative of my father-in-law. I slept in the nearby room and my wife slept in the verandah along with other members of the family of my father-in-law. We had a programme of having sex in the room and my wife had planned to come on my bed on mid-night time and that is why she had slept in the verandah along with our children. I woke up at about 1-00 a.m. in the night and went to the verandah to ask my wife to come in the room. I saw Yousaf deceased lying with my wife on her cot and trying to persuade my wife to allow him committing zina and my wife was resisting physically and with low voice lest other members of the family should learn about it. On seeing me the deceased immediately left the cot of my wife and lay on his cot which was nearby. Under these circumstances, I lost my control, picked up a nearby lying Toki and caused injuries to Muhammad Yousaf under impulse of grave and sudden provocation. At that time Yasin, Fiaz, Riasat Ali and Javed were not present there at all and the family members of my father-in-law Muhammad Sadiq had seen this incident. The matter was reported to the police truthfully but the police did not record the information given to it by us correctly and summoned Yasin and other relatives of Yousaf deceased from Mecleod Gunj Tehsil Minchinabad and thereafter registered this case by concocting and twisting and distorting the facts and circumstances in collusion with the complainant party. I had surrendered myself with the Toki with which I had caused the injuries to Yousaf on the same day but police, dishonestly, showed my arrest on subsequent date and also falsely planted upon me the Toki about which the recovery memo has been forged. I committed no offence and I had no option except what I did during the night of occurrence when Yousaf deceased tried to molest and disgrace my wife".

9. The deceased was a person of 50 years of age, there is no allegation of any previous intimacy by him with the appellant's wife. The deceased had gone to the house of Muhammad Sadiq, father-in-law of the appellant, for nikah ceremony. The deceased was closely related to Muhammad Sadiq. The deceased along with the complainant and P.Ws. were sleeping in veranda. The females in no case were supposed to be sleeping near the complainant side. The appellant was also present in the house of his father-in-law. Her wife was to sleep around her husband and with her children. This plea was absolutely absurd and coined to scandalize the family. Had there been a little truth in the plea raised by the appellant, his father-in-law or any other inmate of the house including his mother-in-law, brother-in-law, sister-in-law and his own wife at the most would have entered in the witness box to vouchsafe the innocence of the appellant. Their non- appearance before the police in the investigation or in the trial Court and even before the learned High Court negates very correctness of the pleaded version.

10. Law cited by the learned counsel for the appellant is distinguishable on factual basis. In Muhammad Azam's case supra, this Court while dealing with a case of offence of zina, where defence of a valid marriage was pleaded desired that the Court should have been vigilant to secure the presence of the witnesses under section 540, Cr.P.C. whose evidence is essential for announcement of just decision to do complete justice between the parties. However, in the instant case, the appellant was provided an opportunity of producing evidence. The presence of witnesses admittedly available in the house on the day of occurrence could have been secured by the accused through the process of Court, if they were reluctant to come at his instance, privately. The Court has to act as an impartial arbiter and has not to create evidence for one or the other party. In the case of Nawaz Ali and others this Court allowed the appeal against the concurrent finding recorded by both the learned Courts below on the ground that ocular account was contradicted by medical evidence, which is not the case herein. Case of Ata Muhammad and another supra, also render no support to the appellant. In the said case eye-witnesses were disbelieved by this Court, having shown reckless disregard for the truth, throwing net wide enough to implicate too many persons. The eye-witnesses implicated 10 persons and out of them 8 earned acquittal, including the one who had injured prosecution witnesses with his gun fire-shot. This factum also contributed in concluding that witnesses have exaggerated in implicating persons according to their choice, more particularly when they were on inimical terms. Ashiq Hussain's case relied upon by the learned counsel does not support him at all. In this case ocular account of occurrence narrated by the prosecution witnesses was believed being confidence inspiring.

11. The appellant is a single nominated accused. The F.I.R. contained recital of the appellant, the eye-witnesses and the motive. The venue of the occurrence is neither disputed in the statement under section 342, Cr.P.C. nor the statements of the eye-witnesses, in this regard, were challenged. The motive part of the prosecution story of displeasure of the appellant to the proposed marriage between complainant and Mst. Shahida Bibi is also proved on record. The appellant is guilty of premeditated and unjustified murder. Inflicting of the lesser punishment purely as a grace is not justifiable in the absence of any extenuating circumstances. The appellant, thus, under the circumstances of the case whereby he committed the gruesome and brutal murder cannot escape the capital punishment.

12. For the above discussion, we do not find any merit in this appeal which is hereby dismissed. N.H.Q./Q-6/SC Appeal dismissed.