2000SCMR741 (PLP)

SH. RIAZ AHMED, J.

The petitioner was tried by an Additional Sessions Judge at Chichawatni on charges under sections 302 and 324 read with section 337-D, P.P.C. for having committed the murder of Shahzad Farid and for causing murderous assault upon Mahboob Farid, real brother of the deceased. Vide judgment, dated 4-1-1995 the Additional Sessions Judge found the petitioner guilty on the charges under sections 302 and 324, P.P.C. On the charge under section 302, P.P.C. the petitioner was sentenced to death and was directed to pay compensation of Rs.1,00,000 to the legal heirs of the deceased or in default thereof to undergo R.I. for six months. On the second charge under section 324, P.P.C. the petitioner was sentenced to undergo R.I. for a term of 10 years and to pay a fine of Rs.20,000 or in default thereof to suffer further R.I. for a term of two years. On this charge the petitioner was also directed to pay Rs.20,000 as compensation to Mahboob Farid injured P.W. or in default thereof to suffer further R.I. for a term of six months. The learned Additional Sessions Judge referred the case to the High Court under section 374, Cr.P.C. and the petitioner also filed an appeal and vide judgment, dated 9-12-1998 a Division Bench, of the Lahore High Court dismissed the appeal preferred by the petitioner and his conviction and sentence was maintained on both charges and the reference made by the Additional Sessions Judge was answered in affirmative. The petitioner seeks leave to appeal against the aforesaid judgments.

2. The prosecution case in brief as narrated by the complainant in the F.I.R. lodged at the police station was that the petitioner Muhammad Ashraf was residing in a house situated in Babu Town adjacent to the land of the, complainant and the sullage water of the house of the petitioner used to come to the land of the complainant. The complainant and his son Mahboob Farid injured P.W. and Shahzad Farid deceased on a number of occasions asked the petitioner to stop the flow of sullage water from their house, which flows into the land of the complainant. According to the complainant they had also asked the petitioner to clean the drain of sullage water and divert the same towards the main watercourse so that the sullage water does not flow into the land of the complainant causing damage to the fodder and the vegetables According to the complainant deaf ear was turned to his request on all such occasions. On the fateful day at about 10-00 a.m. the complainant along with his sons Mahboob Farid P.W.8 and deceased Shahzad Farid were present in their lands when Muhammad Afzal son of the petitioner started cleaning the sullage water coming out of the house of the petitioner. Mahboob Farid the injured witness asked Muhammad Afzal to clean the entire drain of sullage water and to divert its direction to watercourse, but Muhammad Afzal left the drain after cleaning half 9f it whereupon an altercation took lace between Muhammad Afzal and Mahboob Farid. Muhammad Afzal then left the spot and went to the clinic of his father. The petitioner who also reached the scene of occurrence, Mahboob Farid again asked the petitioner to clean the drain completely and divert it to the main Khala upon which the petitioner boiled with rage went to his house and brought a .30 bore pistol and pointing the same towards Mahboob Farid asked him as to what was his demand and thereafter fired two shots at Shahzad Farid deceased hitting on his chest, who on receipt of the same fell down. The petitioner then fired another shot at Mahboob Farid hitting the right side of his chest, who also fell down. The petitioner then fired a second shot hitting right side of buttock of Mahboob Farid. The petitioner allegedly attempted to fire the fifth shot, but the same missed. In the meantime, the petitioner then picked up a Kassi from the spot and caused two blows from its wrong side on the head of the deceased. On the hue and cry raised by the complainant and the injured P.W. Muhammad Younas Rehmani, Abdul, Shakoor and Munir Ahmed P.Ws. were attracted to the scene of occurrence, which also saw the petitioner causing injuries to the deceased and his brother. The petitioner after the incident succeeded to decamp from the scene of occurrence. Shahzad Farid succumbed to the injuries at the spot while Mahboob Farid was removed to the hospital. The complainant leaving the witnesses to guard the dead bodies left for police station where he lodged the F.I.R. at 10-30 a.m. which was recorded by Abdul Majid, Inspector P.W.10 and thus the investigation commenced. During the spot inspection the investigating officer recovered 4 empties P.4/1, 4, which were taken into possession. On 20-3-1994 the petitioner was arrested and on 23-3-1994 the petitioner led to the recovery of .30 bore pistol P.8 alongwith two magazines, four live cartridges and licence. On the same day the petitioner also led to the recovery of Kassi from his residential house. The crime empties and the pistol were sent to the Forensic Science Laboratory and vide its report the empties matched with the .30 bore pistol.

3. The autopsy conducted on the dead body of Shahzad Farid revealed two fire-arm punctured entry wounds on the left side of the chest of the deceased and also two lacerated wounds both on the right side of the head 10 c.m. from the right eyebrow and 13 c.m. from right ear. In the opinion of the doctor, the death occurred on account of the fire-arm wounds, which were grievous and fatal individually as well as collectively and were sufficient to cause death in the orgkary course of nature. The injured witness Mahboob Farid was also examined and two fire-arm entry wounds and two existing wounds were also noted.

4. To prove its case at the trial the prosecution placed reliance upon the ocular testimony furnished by Muhammad Rafiq Shah complainant P.W.7 and Mahboob Farid injured witness. In addition thereto the prosecution also relied upon the recoveries and the report of the Forensic Science Laboratory, the matching of the empties with .30 bore pistol recovered from the petitioner as corroborative evidence and the medical evidence.

5. When examined under section 342, Cr.P.C. the petitioner made the following statement:-- ??????????? "I am innocent. I have been falsely involved in this case after fabricating facts and the actual fact leading to this occurrence have been suppressed by the complainant party in collusion with the police. A drain of sullage water through which sullage water of my house used to pass existed since long and its water did not go into the field. On the day of occurrence my son Muhammad Afzal was cleaning the said drain in my absence and the deceased and his brother Mahboob Farid insisted upon him to divert the drain from the street and dig out further drain which he refused whereupon the deceased and Mahboob Farid P.W. had a quarrel with him and exchanged abuses. I was informed at the clinic about this incident by some one and whereupon I came to my house where I found that the deceased and his brother Mahboob Farid were abusing my wife and my young daughter and were also dragging them by pulling from their hair. I asked the deceased and his brother to desist whereupon they also abused me and pulled my wife and my daughter by catching hold of their hair, I had lost self-control seeing the ladies being insulted and dragged and also because I was abused. I had my licenced pistol with me already. The deceased and his brother also assaulted me whereupon I fired in self-defence." The petitioner did not enter the witness-box under section 340(2), Cr.P.C. nor led any defence evidence to prove the said plea.

6. With the assistance of the learned counsel for the petitioner we have carefully perused the entire record of the case and we have also heard the learned counsel at length. It was contended by the learned counsel for the petitioner that the petitioner had acted under grave and sudden provocation when he noticed that his wife and daughter were being assaulted and humiliated and, therefore, in fury he had caused the death of the deceased and injured his brother. It was further contended by the learned counsel for the petitioner that it was not a case for awarding extreme penalty because what immediately preceded the occurrence is shorouded in mystery. It was also contended before us that the two independent witnesses named in the F.I.R. having been produced and therefore, the prosecution case was doubtful because it rested upon the testimony of the father and brother of the deceased. We have examined these contentions, but we are of the view that these contentions are devoid of force. No iota of evidence exists on the record to show that the deceased and his brother had been dragging out the wife and daughter of the petitioner by catching their hair. If that was so, the petitioner ought to have produced his wife and daughter in the witness-box, but no step had been taken by the defence in this behalf and therefore, we are not prepared to believe that the same had been rightly discarded from consideration by the Courts below. As far as non-production of the witnesses named in the F.I.R. is concerned, nothing turns upon it because the prosecution is not bound to produce all the witnesses. In this case the father has appeared as an eye-witness and we have no doubt in our mind about the truthfulness of the account of occurrence narrated by him in Court. The F. I. R. in this case had been lodged by the father of the deceased with promptitude. The occurrence had taken place at 10-00 a.m. and within A half an hour the F.I.R. was lodged. We are not prepared to believe that he substituted the real culprit responsible for the murder of his son and being real father of the deceased he cannot be expected to allow the real culprit to go scot-free. As far as Mahboob Farid is concerned, he is an injured witness and therefore, his presence cannot be doubted. He had seen the occurrence and was consistent in his statement and corroborated the statement of his father, the complainant on all material aspects of the case. In addition thereto the prosecution case stands corroborated through the report of the Forensic Science Laboratory according to which the empties preserved from the scene of occurrence matched with the .30 bore pistol recovered at the instance of the petitioner. It is not at all a case of grave and sudden provocation, but it is a brutal murder committed in cold blood. Look at the manner in which the occurrence took place. Two shots were fired at the deceased, two shots were fired at the injured witness, fifth missed and then not contented with the same, a Kassi was picked up with which two blows were caused from its wrong side on the head of the deceased. It was dastardly act on the part of the petitioner and the petitioner deserves no leniency in awarding the sentence. He seems to be of a desperate character and therefore, we would also uphold his conviction and sentence. The petition is dismissed and leave to appeal is declined. N.H.Q/M-13/S ?????????????????????????????????????????????????????????? Leave refused.