1999 PLP 1943 (SCMR)

ABDUR RAHMAN KHAN, J.

The factual aspect that resulted into filing of the Criminal petition, which was converted into the present appeal, is that the appellant alongwith five others, was charged for the murder of Mian Muhammad Aasim in F.I.R. No. 264, lodged in Police Station Sadar Sargodha, on 23-5-198&. They were tried by a learned Judge, Punjab Special Court for Speedy Trials and by judgment dated 19-12-1988, the appellant was held guilty and while convicting him under section 302, P.P.C, sentenced him to death and fine of Rs.30,000 or in case of non-payment of fine to remain in prison for more five years. The remaining five accused who were acquitted, two of them i.e. Shaukat and Ashraf were charged only for raising lalkara while the other three were implicated in the crime for abetting/conspiring the murder.

2. First information report of this case was made by (P.W.8) Mian Muhammad Mumtaz on 23-5-1988, at 8-00 p.m. wherein he narrated the incident of murder of Muhammad Asim, which had occurred the same day at 6-30 p.m. It was stated in the report that the deceased had some money deal with Muhammad Ramzan, a confectioner. He went towards the shop of Muhammad Ramzan for the purpose and he was accompanied by Fatch Khan and Atta Muhammad. At 6-30 p.m. they reached the shop of Muhammad Ramzan and found him in his shop. When Muhammad Asim kept his step on the platform in front of the shop of Muhammad Ranizan, then at that time Liaqat (appellant) armed with revolver, 'his brother Shaukat (acquitted accused) armed with bandook and Muhammad Ashraf armed with stick, came from their shop and raised lalkara that Asim would not escape. Liaqat fired at Muhammad Asim from nearby with his pistol hitting him on back and as a result, he fell down and while in lying position, he was fired at more shots which hit him on his chest and various parts of the body. Shaukat and Muhammad Ashraf threatened the people not to come near. ??????????? This murder was committed because the deceased was an organizer of "Urs" of Habib Sultan Nangiana and 21st May was reserved for the visit of women-folk. On the said day, Shaukat had disgraced some ladies for which he was slapped and insulted by the deceased and on that count the accused at the instigation of Babu, Ashraf and Abdul committed the crime.

3. The learned trial Judge found the appellant guilty as it was held that motive for the offence was proved and that the ocular account was furnished by independent unbiased and reliable source which was in consonance with the medical evidence. It was also held that Liaqat appellant had admitted his presence on the spot and that his plea was entirely irrational and illogical. Shaukat and Ashraf, who were alleged to have incited Liaqat, were acquitted and so were those who were charged for abetting the crime.

4. The appellant challenged his conviction in the High Court through appeal and the State also appealed, as it felt aggrieved of the acquittal of the co-?accused. The learned Division Bench, by the impugned judgment dated 18-4-1993, dismissed both the appeals. Leave to appeal was granted in the following terms:-- "In support of this petition, it is contended that the conviction is based upon the testimony of the complainant Muhammad Mumtaz P.W.8, a brother of the wife of the deceased and also 'Khalazad' and on the testimony of Muhammad Ramzan, P.W,9, a shop keeper. It was further contended before us that the testimony of these two eye-witnesses has been disbelieved qua the acquitted accused and, therefore, it is not safe to rely upon the testimony of these two witnesses to maintain the conviction and particularly so, when both these eye-witnesses are hostile, inimical and partisan. With the assistance of the learned counsel for the petitioner, we have, gone through the testimony of both the eye-witnesses and other- facts and circumstances of this case. Prima facie, P.W.9 Muhammad Ramzan also seems to be a partisan; antecedents of both P.W.9 Muhammad Ramzan and the complainant are not above board. For safe dispensation of criminal justice, we are of the view that the case requires further probe and reappraisal of evidence.

5. It was argued by the learned counsel appearing for the appellant that both the eye-witnesses were disbelieved by the trial Court and High Court as against the co-accused, therefore, no conviction. could be based on such discarded evidence. This is a general type of argument as it overlooks the role played by each of the accused in the commission of the offence. Those acquitted consisted of two sets; one set allegedly present on spot, but had not preformed any overt act and the other-was involved for abetting the crime. So, considering their role they were given benefit of doubt and acquitted. The case of the appellant stands on different footing as he has been charged for actual killing, therefore, it is fallacious to equate his part in the crime with those who were acquitted. It was next argued that the eye-witnesses could not be believed as they were interested. This argument is not correct, as interested witness is that who has some motive to falsely involved the accused, that is, who is inimical against the accused and may also be related to the complainant side. This is not the ?here. There is no denying the fact that both the witnesses had no enmity with any of the accused. Although Muhammad Mumtaz (P.W..8) was related to the deceased but perusal of his entire cross-examination would reveal that not a single question was put to him to show that he had any axe of his own to grind in the matter. In any case P.W.9 is entirely independent witness and it could not even remotely be suggested to him during his cross-examination that he was either related to the deceased or had motive of his own to involve the accused in the murder. The effort of the cross-examiner of these witnesses appeared td be to prove, that the deceased had many enemies who would have murdered him and not to prove that the witnesses were interested or making a false statement for some ulterior motive. Moreover, P.W.9 is entirely a natural witness as the occurrence took place at the 'Thara' of his shop. It was also argued that in absence of any corroboration of the testimony of eye-witnesses they could not have been relied on for conviction. It is neither the requirement of law nor there is any inflexible rule that no conviction can be founded on the uncorroborated testimony of an eye-witness. It is the intrinsic value of the testimony of a witness which is to be considered for determining guilt and if intrinsically it appears to be true, then irrespective of the fact that there is no corroboration, it can even then be relied for conviction. Moreover, the appellant does not deny the venue of crime which is near his shop. In order to appreciate his plea, it will be better to refer to the relevant portion of his statement. In question No.9, he was asked Have you got anything else to say?". His reply to this question was as under.

?I am innocent. At the time of the occurrence, Muhammad Asim deceased came our shop and wanted us to close the same forcibly. Many a persons collected there and one of the many enemies of the deceased, tired at and murdered Muhammad Asim deceased there." It is, thus, clear from this statement that the accused had not denied the murder of the deceased in that vicinity. However, the portion of his statement that the deceased had come to the shop of the accused to force him to close it, is neither supported by the site plan nor by logic and reason. In the site plan this place, where deceased was murdered, has been shown in front of the shop of P.W. Muhammad Ramzan, and if the statement of the accused had been correct, then it should have been in front of his shop or inside it. Moreover, "one of many enemies of the deceased" who allegedly fired at the deceased, could not be named. There is also no plausible reason for substitution of the appellant for the real assailant. It was in the end argued, that if at all the case against the accused has been proved, then the' offence committed by him would fall under section 304, P.P.C. as the accused ' re-acted to the act of the deceased of forcibly dispossessing him from the shop at the spur of moment under grave and sudden provocation and without premeditation. As has been observed above, the allegation of forcible dispossession of the accused by the deceased, could not be proved by any evidence or material on record, therefore, this argument has no force. The second argument in this context that the appellant would be liable to lesser penalty of life imprisonment under section 302, P.P.C., as he acted under the influence of his elder brother, is also devoid of substance. This can never be an inflexible rule of universal application that if any younger commits murder at the instance or under the influence of his elder relation then he must invariably be punished with lesser penalty provided for the offence. It is axiomatic and well established principle in dispensation of justice in criminal cases that every case is to be determined and adjudged on its own facts. In the present case, the age of the appellant at the time of recording of his statement under section 342, Cr.P.C. has been shown as 27 years which, at the time of commission of the offence would have been above 26 years. Therefore, he was a matured and grown up person. Motive for the crime as alleged was that Shaukat his brother was slapped and insulted by the deceased as he had disgraced some ladies at "Maila" on the day, which was exclusively reserved for ladies. This incident had occurred much before the murder of the deceased and at the time when the accused was not present; therefore, in the peculiar circumstances of this-case, the appellant had no justifiable reason to go to the extent of killing the deceased under the influence or at the behest of his brother. There is no mitigating circumstance to justify imposition of lesser penalty. No valid ground could be shown for interference. Accordingly, this appeal is dismissed. N.H.Q./L415/S ?????????????????????????????????????????????????????????? ??????????? Appeal dismissed.