2006 PLP 1174 (YLR)

ASIF SAEED KHAN KHOSA, J.

Shaukat Ali appellant was convicted of an offence under section 302(b), P.P.C. vide judgment dated 29-6-2000 handed down by the learned Sessions Judge, Gujranwala and was sentenced to death as Ta'zir and to pay a sum of Rs.1,00,000 to the heirs of Abdul Hameed deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months. Through the same judgment the learned trial Court acquitted the appellant's co-accused and brother namely Asghar Ali. The appellant has challenged his conviction and sentence before this Court through Criminal Appeal No.1048 of 2000 which has been heard of us along with Murder Reference No.476 of 2000 seeking confirmation of the sentence of death passed against the appellant by the learned trial Court. We propose to decide both these matters together through the present consolidated judgment.

2. According to the prosecution case unfolded in the F.I.R. Manzoor Hussain complainant was a resident of Umar Colony situated within the area of Police Station, Sadar, Gujranwala and was a labourer by profession. About eleven years prior to the present occurrence the complainant got married to one Mst. Iqbal Bibi a sister of Shaukat All appellant. In exchange for that marriage a sister of the complainant namely Mst. Najma Bibi was given in marriage to the appellant. This Watta Satta arrangement was under some strain for some time. About 15/16 days prior to the present occurrence the appellant had come to the complainant's house in the complainant's absence and had taken away the complainant's licensed repeater gull. Upon the complainant's return to his house he came to know of such taking away of his gun by the appellant and he asked his wife to get the said gun returned from her brother. The complainant's wife picked up a quarrel with the complainant on that score, left the house of the complainant and went to live with her parents. After the Maghrib prayers on 17-4-1997 Shaukat Ali appellant and his brother namely Asghar Ali came to the complainant's house. Asghar All accused was armed with a gun .12 bore whereas Shaukat Ali appellant was armed with a carbine .12 bore. Asghar Ali raised a Lalkara exhorting Shaukat Ali appellant to fire at the complainant's father namely Abdul Hameed who was standing in front of the appellant and his brother upon which Shaukat Ali appellant fired at Abdul Hameed from his carbine .12 bore and two of the pallets of that fire hit Abdul Hameed on the left and right side of his forehead. Upon receipt of those injuries Abdul Hameed fell down there and then. The hue and cry raised by the complainant and others attracted their neighbours to the spot and upon seeing them the appellant and his co-accused ran away from the place of occurrence. The witnesses gathered at the spot gave a chase to the appellant and his co-accused but they were warded off by Asghar Ali co-accused by firing a shot from his gun in the air and, thus, the appellant and his co-accused managed to flee from there. The complainant and others then handed the complainant's father who was in a precarious condition and they took him to Civil Hospital, Gujranwala for treatment but after reaching the hospital and getting? some emergency treatment the complainant's father succumbed to his injuries and died. The said incident had also been witnessed by Tariq Mehmood and the complainant's mother namely Mst. Hakim Bibi. Upon receiving information about the said incident the local police reached Civil Hospital, Gujranwala at 1-30 a.m. on 18-4-1997 and recorded the statement of the complainant in respect of that incident. Subsequently, on the basis of that statement of the complainant formal F.I.R. No.325 was registered at Police Station, Sadar, Gujranwala at 1-50 a.m. on 18-4-1997 in respect of an offence under section 302, P.P.C. read with section 34, P.P.C.

3. The investigation of this case was conducted by Dil Muhammad, S.-I. (P.W.13) got the dead body subjected to post-mortem examination, inspected the? place of occurrence, recorded the statements of witnesses, arrested the appellant and his co-accused, recovered carbine with five live cartridges from the appellant's possession and upon completion of the investigation he submitted a challan.

4. At the commencement of the trial the learned trial Court framed a charge with one head under section 302/34, P.P.C. against the appellant and his co-accused to which they pleaded not guilty and claimed a trial.

5. During the trial the prosecution produced thirteen witnesses in support of its case against the appellant and his co-accused. Manzoor Hussain complainant (P.W.4) and Mst. Hakim Bibi (P.W.5) furnished the ocular account of the incident in issue and also deposed about the motive. Rana Muhammad Nawaz (P.W.1) and Syed Muhammad Afzal (P.W.9) stated about recovery of weapons from the possession of the appellant and his co-accused during the investigation of this case. The medical evidence was provided by Dr. Muhammad Fayyaz (P.W.7) and Dr. Naseer Ahmad (P,W.10). Dil Muhammad, S.-I. (P.W.13) stated about the various steps taken by him during the investigation of his case. The remaining evidence produced by the prosecution was more or less formal in nature.

6. In their statements recorded under section 342, Cr.P.C. the appellant and his co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They opted not to make statements on oath under section 340(2), Cr.P.C. but they produced two witnesses in their defence.

7. At the conclusion of the trial the learned trial Court acquitted the appellant's co-accused namely Asghar Ali, but after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt it convicted and sentenced the appellant as mentioned and detailed above. Hence, the present appeal and the, connected Murder Reference before this Court.

8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and in the alternative the appellant did not deserve a capital sentence. As against that the learned counsel for the State have maintained that the guilt of the appellant had successfully been brought home by the prosecution and thus, his conviction and sentence recorded by the learned trial Court do not warrant any interference by this Court.

9. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has been observed by us that although the F.I.R. in this case had been lodged with some delay yet the reason for that delay had been explained by the complainant in the F.I.R. itself. He had maintained that he had remained busy in the treatment of his father and this stand taken by him is borne out from the medical evidence which shows that it was the complainant who had taken A his injured father to the relevant hospital for emergency medical treatment. The F.I.R. in this case had been lodged at Civil Hospital, Gujranwala where the complainant was present with the dead body of his father when the local police had reached the said hospital. We have, therefore, felt satisfied regarding the explanation offered by the complainant for the delay in lodging of the F.I.R. by him.

10. The ocular account furnished in this case by Manzoor Hussain complainant (P.W.4) and Mst. Hakim Bibi (P.W.5) has inspired our full confidence. Both the said eye-witnesses were natural witnesses who lived in the same house where the deceased had received the fire-arm injuries and the time of the day when such injuries were given to the deceased was such that both the said eye-witnesses were expected to be present inside that house. Manzoor Hussain complainant (P.W.4) is the son of Abdul Hameed deceased and Mst. Hakim Bibi (P.W.5) is the widow of the deceased and, thus, their presence in the house of the deceased at the relevant time was nothing but natural and probable. It is of critical importance to mention here that apart from being closely related to Abdul Hameed deceased both the said eye-witnesses were also closely related to Shaukat Ali appellant as well. It has not been disputed before us that Manzoor Hussain complainant (P.W.4) is married to a sister of Shaukat Ali appellant and by way of Watta Satta arrangement Shaukat Ali appellant is married to a sister of Manzoor Hussain complainant. Apart from that the real mother of Manzoor Hussain complainant happened to be a sister of Shaukat Ali appellant's father. It is also available on the record that daughter of Mst. Hakim Bibi (P.W.5) was married to Shaukat All appellant before her death whereafter a sister of Manoor Hussain complainant was given in marriage to Shaukat Ali appellant. All this clearly shows that both the above mentioned eye-witnesses were not only natural witnesses but they were also closely and sensitively related to the appellant and it was quite unlikely that they would falsely implicate the appellant for the murder of Manzoor Hussain complainant's father and Mst. Hakim Bibi's husband. Mst. Hakim Bibi (P.W.5) had conceded that her marriagae with Abdul Hameed deceased was not an arranged marriage but was a "love marriage" and Abdul Hameed deceased had not married her once but twice! In that backdrop Mst. Hakim Bibi was not expected to spare the real culprit of her beloved husband by substituting him by the present appellant. Both the above mentioned eye-witnesses had made straightforward and consistent statements before the learned trial Court regarding the main learned trial Court qua the appellant but they have also inspired our full confidence.

11. The motive set up the prosecution revolved around a gun of the complainant taken away by the appellant from the former's house a few days prior to the present occurrence. Both Manzoor Hussain complainant (P.W.4) and Mst. Hakim Bibi (P.W.5) had not only stated about such taking away of the gun by the appellant but had also stated about recovery of the same by the local police from the appellant acquitted co-accused and brother namely Asghar Ali during the investigation of this case. They had further maintained that after recovery of the said gun the same was given to the complainant on Superdari. Even Dil Muhammad S.-I. (P.W.13), the Investigating Officer, had stated recovery of the complainant's gun and its delivery to the complainant on Superdari and he had not even been cross-examined by the defence on this aspect of the matter. We have, therefore, felt that the motive set up by the prosecution stood fully established in this case and the same provided corroboration to the ocular account.

12. The alleged recovery of a carbine and five live cartridges from the appellant's possession during the investigation of this case was legally inconsequential as no crime-empty had been recovered from the place of occurrence so as to connect the recovered carbine with the offence in issue. We have, however, found that such lack of corroboration from the alleged recovery does not in any manner react against the ocular account which had received corroboration from the motive. Apart from that the ocular account furnished in this case had received ample support from the medical evidence inasmuch as the date and time of occurrence, the weapon used and the locale of the injuries stated by the eye-witnesses had all been confirmed by the medical evidence.

13. The appellant had produced Hassan Din (D.W.1) and Muhammad Shafi (D.W.2) before the learned trial Court in his defence. Hassan Din (D.W.1) happened to be the paternal grandfather of the appellant whereas Muhammad Shafi (D.W.2) happened to be the real father of the appellant. Both the said witnesses had never claimed to by eye-witnesses of the incident of murder and they had only maintained that at the time of the said murder the present appellant was available with them in their house and he was not present at the scene of the crime. Both the said witnesses had conceded before the learned trial Court that they had never got their statements recorded in that regard by the Investigating Officer and they had also failed to agitate the matter of innocence of the appellant before any higher police authority. Both these witnesses had surfaced in this case for the first time before the learned trial Court. Upon a careful scrutiny of the statements made by these witnesses before the learned trial Court we have felt that these witnesses had been produced by the defence before the learned trial Court, only by way of an afterthought. We have, therefore, found no hesitation in discarding and rejecting the defence evidence produced by the appellant.

14. For what has been discussed above we have arrived at an inescapable and irresistible conclusion that the prosecution had?????? succeeded??????? in????????? establishing?????? the appellant's guilt to the hilt. As regards the question of the appellant's sentence we have noticed that the appellant had committed a cold-blooded murder of his innocent father-in-law in the latter's own house and that too with the use of a fire-arm. There is nothing available on the record to show that the appellant's co-accused was in any manner connected with the motive established in this case. This shows that the appellant had killed his innocent father-in-law for no ostensible rhyme or reason and such conduct of the appellant portrays his desperate character. The normal wages of a crime of murder is death and in the peculiar circumstances of this case the appellant deserves no less.

15. As a sequel to the discussion made above Criminal Appeal No.1048 of 2000 is dismissed and the conviction and sentence of the appellant recorded by he learned trial Court are upheld and maintained.

16. Murder Reference No.476 of 2000 is answered in the affirmative and the sentence of death passed by the learned trial Court against Shaukat Ali appellant is hereby confirmed. H.B.T./S-446/L??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.