2009 P Cr (PLP)

TARIQ SHAMIM, J.

This judgment shall dispose of Criminal Appeal No.2161 of 2002 filed by Muhammad Akhtar and Muhammad Asghar alias Midda appellants and Murder Reference No.874 of 2002 submitted by the learned trial Court for confirmation or otherwise of sentence of death awarded to Muhammad Akhtar, appellant, as both the matters arise out of the same judgment, dated 13-12-2002.

2. Muhammad Akhtar and Muhammad Asghar sons of Nazim Din, appellants, have challenged the judgment passed by the learned Additional Sessions Judge, Depalpur, in case bearing F.I.R. No.590 of 2001, registered with Police Station Haveli Lakha, Tehsil Depalpur, District Okara, for offence under section 302/34, P.P.C. whereby he convicted and sentenced the appellants as under:-- Muhammad Akhtar Under section 302(b)/ 34, P.P.C. Sentenced to death with a direction to pay Rs.1,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default thereof to undergo simple imprisonment for six months. Muhammad Asghar Under section 302(b)/ 34, P.P.C. Imprisonment for life with a direction to pay Rs.1,00,000 as compensation to the legal heirs of the deceased and in default thereof to undergo simple imprisonment for six months. Muhammad Asghar appellant was extended the benefit of section 382-B, Cr.P.C.

3. The prosecution story in brief is that on 10-9-2001, at about 12-30 p.m. Muhammad Yasin, complainant (P.W.1) along with Ghulam Mustafa, Riaz Ahmad alias Boota (P.W.3) and Riaz Ahmad (deceased) were sitting on a cot in front of the house of Sahib Nishan. Muhammad Akhtar appellant passed in front of the house of the sister of the deceased while whistling. Riaz Ahmad (deceased) admonished him. Muhammad Akhtar appellant and Riaz Ahmad (deceased) scuffled with each other and Riaz Ahmad (deceased) slapped Muhammad Akhtar appellant upon which he left the place of occurrence extending threats to him. Shortly thereafter, Muhammad Akhtar appellant armed with a .12 bore double-barrel gun and Muhammad Asghar alias Midda appellant armed with a carbine along with Muhammad Anwar and Lashker armed with Sotas came to the place of occurrence. Muhammad Anwar raised a Lalkara whereupon Muhammad Akhtar appellant fired two shots from his double-barrel shotgun which landed on the back and arms of the deceased who on receiving the same fell on the ground. Mst. Shaheen Akhtar (P.W.2) came forward in order to save her brother Riaz Ahmad (deceased) from the clutches of the accused whereupon Muhammad Asghar appellant inflicted an injury on her forehead and nose with the butt of his gun. She was also injured by Lashker with a Sota. Anwar and Lashker inflicted injuries on the person of the complainant. All the accused fled away after the occurrence. Riaz Ahmad succumbed to the injuries at the spot.

4. After investigation, report under section 173, Cr.P.C. was submitted in the learned trial Court. The prosecution produced as many as 10 witnesses including Muhammad Yasin (P.W.1) and Mst. Shaheen Akhtar (P.W.2) and Riaz alias Boota (P.W.3) as eye-witnesses of the occurrence. At the conclusion of the prosecution evidence the appellants were examined under section 342, Cr.P.C. In response to the question as to why the case against him and why the witnesses had deposed against him, Muhammad Akhtar appellant replied as under:-- . "All the P.Ws. are related inter se. The P.Ws. were not present at the place of occurrence, due to their close relation with the deceased they became as witnesses in this case and appeared in the Court to prove the false and concocted story of prosecution. The real facts are that on the day of occurrence, at the time of occurrence one Zahoor alias Boba brother of Riaz P.W., Yasin Wattu, Sajjad Tajeka, myself, Murtaza brother of Mustafa P:W. and Riaz deceased were gambling in the Baithak of Riaz deceased. I won the money from above said persons and Zahoor alias Boba etc. above said wanted to snatch the money from me. I ran towards my house while Zahoor alias Boba and above said persons were chasing me, Riaz deceased was ahead of his companion, Murtaza brother of Mustafa P.W. took his licensed gun from his house and also chased me, said Murtaza made one fire with the gun .12 bore on me which hit Riaz deceased on his back accidentally, who was after me. The P.Ws. cooked up false story and saved Murtaza brother of Mustafa P.W. who is closely related with all the P.Ws. and involved me in this ease due to winning the gambling money from Zahoor alias Boba etc. and also involved me' in this case by fabricating a false motive along with my other co-accused, who are my real brothers. I and my co-accused are innocent in this case." In response to the question as to why the case against him and why the witnesses had deposed against him, Muhammad Asghar appellant replied as under:

"All the P.Ws. are related inter se. I was not present at the spot. I have been falsely involved in this case being the real brother of Akhtar co-accused. I did not cause any injury to Mst. Shaheen P.W. nor I was present at the time of occurrence. I rely on the detailed answer of Akhtar co-accused given by him in the reply to his question."

5. The appellants neither opted to appear as their own witnesses in disproof of the allegations levelled against them as required under section 340(2), Cr.P.C. nor did they adduce any defence evidence. The learned trial Court after hearing the learned counsel for the parties, convicted the appellants and sentenced them as stated earlier which has been assailed through this criminal appeal.

6. The learned counsel for the appellants contended that F.I.R. in the case was lodged after due deliberation by the complainant who had motive to falsely implicate the appellants; that the eye-witnesses of the occurrence were related to the deceased, therefore, their evidence could not be relied upon; that the prosecution had failed to prove its case through any independent witnesses from the locality; that the presence of the eye-witnesses at the spot was doubtful; that there were material contradictions in the statements made by the witnesses at the trial; that the injuries on the persons of Mst. Shaheen (P.W.2) and Muhammad Yasin (P.W.1), the complainant, were fabricated; that the motive was weak and could not be proved by the prosecution and that the prosecution had failed to prove its case against the appellants beyond any shadow of doubt, who, therefore, deserved to be acquitted.

7. On the other hand, the learned Deputy Prosecutor-General appearing on behalf of the State contended that eye-witness account furnished by the P.Ws. was creditworthy and being injured their presence at the place of occurrence could not be doubted; that the evidence of recovery of weapon from the appellant was credible; that the medical evidence was in line with the ocular account; that the motive for the occurrence stood proved at the trial and that the conviction and sentence of the appellants was based on proper appraisal of evidence, therefore, the same did not call for any interference by this Court.

8. We have heard the learned counsel for the appellants, the learned Deputy Prosecutor-General and have gone through the paper book with their able assistance.

9. In the instant case the occurrence took place at 12-30 a.m. and the F.I.R. (Exh.P.A.) was lodged by Muhammad Yasin complainant (P.W.1) at 1-25 p.m. The distance of police station from the place of occurrence is approximately 3 Kms., thus, it can be said that it was lodged with reasonable promptitude which excludes the possibility of deliberation or tutoring of the witness. The occurrence took place at about mid-day and it is in evidence that the accused were known to Muhammad Yasin (P.W; 1), Mst. Shaheen (P.W.2) and Riaz alias Boota (P.W.3) prior to the occurrence. The question of false implication or substitution therefore, does not arise which even otherwise is a rare phenomenon. The complainant and uncle of the deceased Muhammad Yasin (P.W.1), Mst. Shaheen (P.W.2), sister of the deceased and Riaz alias Boota (P.W.3) have given a detailed account of events leading to the murder of Riaz Ahmad deceased. According to the witnesses, on 10-9-2001, at 12-30 p.m. Muhammad Akhtar appellant while passing from in front of the house of the sister of the deceased was whistling and was consequently rebuked by the deceased for doing so. A quarrel ensued in which the deceased gave slaps to Muhammad Akhtar appellant, who left the place of occurrence extending threats. Shortly thereafter, Muhammad Akhtar appellant armed with a .12 bore double-barrel gun, Muhammad Asghar appellant armed with a carbine and Muhammad Anwar and Lashker armed with Sotas arrived at the place of occurrence. Muhammad Anwar raised a Lalkara whereupon Muhammad Akhtar appellant fired two shots with his double-barrel gun which landed on the back and arms of the deceased who on receiving the same fell on the ground. Mst. Shaheen (P.W.2) came forward to save the deceased from the clutches of the accused whereupon Muhammad Asghar appellant inflicted an injury on her forehead and nose with the butt of his gun whereas Lashker also gave a Sota blow to her. Both the acquitted accused Anwar and Lashkar inflicted injuries with their respective weapons on the person of the complainant as well. It has been observed that the appellant and the eye-witnesses belong to the same village and are known to each other. The presence of the eye-witnesses at the place of occurrence at the relevant time is natural and well-explained. The injured eye-witnesses were examined by Dr. Abid Mahmood Shah (P.W.5) on 10-9-2001 who in reply to a question by the defence stated that the injuries on the person of Muhammad Yasin (P.W.1) were not self-suffered and that it was incorrect that he had given the result of injuries of Mst. Shaheen and Yasin P.Ws. in connivance with the complainant party to show their presence at the spot. It, therefore, follows that Muhammad Yasin (P.W.1) and Mst. Shaheen (P.W.2) had received injuries in the occurrence and that being so, the murder of the deceased was committed in their view. Although some discrepancies were pointed out by the learned counsel for the appellants in the statements made by these witnesses, however, we have observed that the same are minor in nature and do not in any manner have any negative impact on the veracity of evidence furnished by them. The other argument advanced by the learned counsel that since the eye-witnesses were closely related to the deceased, therefore, no reliance could be placed on their evidence, is also without any substance as mere relationship of the witnesses with the deceased is not a valid ground for excluding their testimony from consideration, particularly, in the- instant case where the witnesses have furnished a credible and trustworthy account of the occurrence and despite being subjected to lengthy cross-examination have remained steadfast in their stand. The learned counsel for the appellants has failed to point out any strong enmity between the parties which could have prompted the witnesses to let off the real culprits in order to falsely implicate Muhammad Akhtar appellant. There is nothing on the record to even remotely suggest that prior to the occurrence the parties were inimical towards each other. For the foregoing reasons we are of the opinion that all the three eye-witnesses have furnished a credible account of the occurrence and have corroborated each other in all material aspects of the case.

10. The autopsy on the dead body of the deceased was conducted by Dr. Abid Mahmood Shah (P.W.5) who also medically examined the complainant (P.W.1) and Mst. Shaheen (P.W.2). On examination of the dead body the Medical Officer found the following injuries:

(1) Whole of the back of chest and left as well as right side was full of numerous small round lacerated wounds, each measuring 1/2 c.m. x 1/2 c.m. in size with inverted margins. At various points two or more injuries joint together, to make bigger wounds. (2) Multiple small lacerated wounds each about 1/2 c.m. x 1/2 c.m. with inverted margins on the back of right arm in area of about 15 x 9 c.m. (3) Multiple small lacerated wounds 1/2 c.m. x 1/2 c.m. each in size with inverted margins on the back of left arm, close to the elbow in area of 12 x 10 c.m. Pellets were recovered by the doctor from injuries Nos.1 and 8 which obviously reflect that the weapon used by the appellant Muhammad Akhtar was a .12 bore gun, which coincides with the description of weapon used by the appellant in the crime. All the injuries were stated to be ante-mortem and injury No.1 attributed to Muhammad Akhtar appellant was declared as sufficient to cause death in the ordinary course of nature. The time between the injuries and death was stated as within a few minute whereas between death and post-mortem within 4 to 8 hours. This also corresponds with the time of occurrence as mentioned by the witnesses. Thus, from the statement made by Dr. Abid Mahmood (P.W.5) before the learned trial Court it is manifest that the version of the incident advanced by the eye-witnesses is credible as to the time of occurrence, the locale of injuries suffered by the deceased and the weapon used in the occurrence.

11. Insofar as recovery of gun .12 bore double-barrel P.1 from Muhammad Akhtar appellant is concerned, it has been observed that no empty was recovered from the place of occurrence, thus, none was wedded with the gun. Admittedly, the house of Akhtar from where on his pointation gun P.1 was recovered, is surrounded by other houses and despite there being a number of persons from the locality present at the place of recovery, in complete disregard of the provisions of section 103, Cr.P.C., none was associated with the proceedings by the Investigating Officer. Further, the witness of recovery Boota (P.W.3) in his statement before the trial Court has taken a wavering stand in respect of arrest of Muhammad Akhtar appellant and recovery of gun on his pointation. In view of the infirmities in the recovery proceedings discussed above, we feel that this piece of evidence is not worthy of any credit and has rightly been excluded from consideration by the learned trial Court.

12. Now adverting to the motive behind the occurrence it was stated by the complainant (P.W.1) and Riaz alias Boota (P.W.3) that the appellant was slapped by the deceased for blowing whistle while passing from in front of the house of his sister. The witnesses are consistent in their stand as to the motive behind the occurrence and have corroborated each other in material particulars. Although the witnesses were cross-examined at length on the point of motive but nothing favourable could be extracted by the defence. It was, however, vehemently argued by the learned counsel for the appellants that the motive was weak and could not be proved at the trial. Contrary to what has asserted by the learned counsel, we are of the opinion that the prosecution has succeeded in proving the motive behind the occurrence, however, even if we assume just for the sake of argument that the same was lacking or not proved, suffice to say that motive relates to the state of mind of an accused and can be formed at the spur of the moment.

13. Now adverting to the plea taken by the appellant at the trial, we have noted that the same could not be substantiated by the appellants through any cogent evidence. Keeping the prosecution case and the defence version in juxtaposition we have come to an inescapable conclusion that the prosecution version has a ring of truth whereas the defence plea is preposterous.

14. Insofar as the case of Muhammad Asghar appellant is concerned, two of his co-accused namely Anwar and Lashker who had also caused injuries to Mst. Shaheen (P.W.2) and the complainant (P.W.1), were acquitted by the learned trial Court. Further, there are material contradictions in the statements of the witnesses to the extent of injury suffered by Mst. Shaheen and the weapon used. The complainant Muhammad Yasin (P.W.1) stated that Asghar appellant caused an injury on the head of Mst. Shaheen (P.W.2) with the butt of a carbine whereas Mst. Shaheen in her statement before the trial Court mentioned injuries on her head and nose caused by Asghar appellant with the butt of a pistol. The Medical Officer Dr. Abid Mahmood (P.W.5) in his statement mentioned that the injury on the head of Mst. Shaheen could be the result of a fall on a hard surface. This obviously leads to a logical conclusion that the injury attributed to Asghar appellant being not free from doubt, has not been conclusively proved. Needless to add that only a solitary blow was given by the appellant to Mst. Shaheen (P.W.2) which resulted in a simple injury. Further, the culpability of Asghar appellant is also not aboveboard as he was armed with a fire-arm weapon and although there was no impediment, he did not choose to fire the weapon. Therefore, we feel that in the given circumstances, his conviction and sentence is not sustainable and he deserves to be acquitted. As a sequel to the discussion made above, we acquit Muhammad Asghar appellant of all charges and accept the appeal to his extent. He shall be released forthwith if not required in any other case. Insofar as Muhammad Akhtar appellant is concerned, we are convinced that prosecution has succeeded in proving its case against him beyond the shadow of doubt through unimpeachable ocular account and other supporting evidence discussed above. Consequently, we dismiss the appeal to his extent and, maintain the conviction and sentence of death awarded to him by the learned trial Court. The murder reference is answered in Affirmative. N.H.Q./M-435/L Order accordingl