1987 PLP 524 (SCMR)

Khakan Babar, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioners. Nemo for the State. Date of hearing: 12th January, 1987. MIAN BURHANUDDIN KHAN, J.‑‑Muhammad Afzal and his brother Muhammad Asghar, Sikandar alias Kandoo and Muhammad Iqbal were tried by the learned Sessions Judge, Gujrat for the murder of Muhammad Arshad. Sikandar alias Kandoo and Muhammad Asghar were convicted under section 302/34, P.P.C. and. were sentenced to death and a fine of Rs.5,000 each; Muhammad Afzal was awarded life imprisonment and fine of Rs.5,000 while Muhammad Iqbal was acquitted vide judgment, dated 1‑6‑1983. On appeal by the convicts the learned High Court maintained the conviction of the accused /petitioners under section 302/34, P.P.C. but altered the death sentence, awarded to Sikandar alias Kandoo, to imprisonment: for life; while death sentence, awarded to Muhammad Asghar was maintained and murder reference was answered accordingly.

2. According to the prosecution version Muhammad Afzal accused/ petitioner had abducted Mst. Shamim Akhtar wife of one lqbal Butt of village Chokori Bheekoo, whereafter said Muhammad Iqbal Butt sold his house for Rs.12,000 to Muhammad Arshad deceased and himself shifted to village Gulliana, within the limits of Police Station, Kharian. However, Iqbal Butt continued visiting Muhammad Arhsad deceased to seek his help for the recovery of his wife Mst. Shamim Akhtar. On 1‑3‑1982 Muhammad Iqbal Butt came to see Muhammad Arshad at about Dupahar Vela. This fact came to the knowledge of Muhammad Afzal accused who was also a resident of the same village. On 2‑3‑1982 at about 4 p.m. Nazar Muhammad P.W. 7 father of Muhammad Arshad deceased and Mst. Razia Begum P.W. 8 wife of Muhammad Arshad deceased were present in their house, when Muhammad Asghar and Sikandar accused/ petitioners came to Muhammad Arshad deceased and took him from his house on the pretext of some urgent work with him. Nazar Muhammad P. W. 7 sensed danger and followed his son at a short distance alongwith Mst. Razia. He saw that Muhammad Afzal, accused/ petitioner empty handed and Muhammad Iqbal, the acquitted accused, armed with 7 m.m. rifle present in the field of Manzoor Hussain about 100 yards from his house. The moment Muhammad Arshad reached near them Muhammad Afzal accused /petitioner shouted a Lalkara that they would teach him a lesson for inviting Muhammad Iqbal Butt to plan for the recovery of Mst. Shamim Akhtar. Immediately thereafter, Sikandar accused took out a pistol from his trouser and fired which hit Muhammad Arshad deceased on his back, he staggered and fell down in the field of Manzoor Hussain; Muhammad Asghar also took out .12 bore gun from beneath the Chaddar on his body, and fired hitting the deceased on his chest; then Sikandar accused /petitioner fired a second shot which also hit the deceased on the chest while Muhammad Iqbal continued exhorting his co‑accused. Alarm raised by the witnesses attracted Muhammad Yousuf P. W. 9 and Ghulam Haider. Nazar Muhammad P.W. 7 then proceeded to the police station. On his way he met Akhtar Hussain S.I. P.W. 10 near Octroi Post Nagrianwala and made report Exh. P. B.

3. Learned counsel for the petitioners contended that the statements of the eye‑witnesses are not corroborated by the medical evidence; they have failed to mention in their statements injuries 3 to 6 on the person of the deceased; had they really been present on the spot, they could have not omitted at least to mention these injuries and the persons who caused them, and, therefore, this omission amounts to contradiction and is fatal for the prosecution case; that no weapon of crime has been recovered from the accused/ petitioners; that the recovery of the carbine has not been supported by any witness from the public and as such the recovery is not proved according to law; that the learned Courts below have erred in believing the version of interested witnesses on the point of motive; that non‑production of Muhammad Iqbal Butt or Mst. Shamim Akhtar is fatal for the prosecution case on the point of motive as there is no independent evidence regarding the motive nor the prosecution has explained as to why at least Muhammad Iqbal Butt had not been produced although it is admitted that he was present in the village with the complainant party a few hours before the occurrence.

4. We have gone through the evidence and have examined the questions raised before us by the learned counsel for the petitioners. The evidence against the accused /petitioners is consistent and without any blemishes. Equally, there is no reason for the complainant to press the charge against the accused /petitioners unless they were really the culprits and had committed the offence. Learned counsel's last contention, however, is with regard to? the question of sentence. His emphasis is on the point that Muhammad Asghar accused/ petitioner who is condemned to death had no motive whatsoever and that Muhammad Afzal was the person who was involved in the abduction of Mst. Shamim Akhtar, and, therefore, there was no reason for the penalty of death in Asghar's case; that all the accused /petitioners are equally involved in the commission of the offence and there is no distinction discernible from the evidence regarding the role attributed to Muhammad Asghar. We have considered these arguments. We grant leave on the question of sentence awarded to Muhammad Asghar, accused. In case of the remaining accused/ petitioners we find that life imprisonment had been awarded to them which needs no interference. Therefore, this petition is dismissed as regards Muhammad Afzal and Sikandar alias Kandoo accused/ petitioners. M.I./M‑2/S????????????????????????????????????????????????????????????????????????????????????????? Order accordingly.