2004 PLP 723 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been filed seeking leave to appeal against the judgment dated 5-12-2001 passed by a Division Bench of Lahore High Court, Lahore, through which Criminal Appeal No.310 of 1997 filed by the petitioner against his conviction and sentence and Murder Reference No. 151 of 1997 sent by the trial Court for confirmation of sentence of death were disposed of.

2. The occurrence in the present case had taken place in Chak No.81/NB at 9-00 a.m. on 8-7-1994, the report of which was lodged by Muhammad Manzoor, real brother of Muhammad Hussain deceased at Police Station Jhal Chakkian, District Sargodha, at 10-00 a.m. on the same day -and a case under sections 302/324/34, P.P.C. was registered against the petitioner and his co-accused namely, Mukhtar Ahmed, his real brother. The petitioner and Mukhtar Ahmed, his co-accused, since acquitted, were tried by a learned, Additional Sessions Judge, Sargodha, for the charge of committing .the murder of Muhammad Hussain and for causing murderous assault on Mst. Munawar Bibi wife of Muhammad Hussain. The learned trial Judge having found the petitioner guilty of the charge convicted and sentenced him vide judgment dated 2-6-1997 as under:-- (a) Under section 302(a), P.P.C.: Death as Qisas. (b) Under section 324, P.P.C.: R.I. for ten years with fine of Rs.20,000 and in default of payment of fine to suffer R.I. for two years; and (c) Under section 337-D, P.P.C.: Three years R.I. and payment of Rs.80,000 as Arsh to Mst. Munawar Bibi.

3. The learned Division Bench of the Lahore High Court in appeal while convening the conviction of the petitioner from section 302(a), P.P.C. to 302(b), P.P.C. maintained the sentence of death awarded to him by the trial Court and directed him for payment of Rs.50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default of payment of compensation to undergo S.I. for six months.

4. The prosecution case as unfolded in the F.I.R. is that on the fateful day at 9-00 a. m. Muhammad Hussain, deceased, alongwith his wife Mst. Munawar Bibi (P.W.2) with their two kids were proceeding towards Chak No.84/NB on a Tanga whereas Muhammad Manzoor, first informant (P.W.1) and Muhammad Ramzan (not produced) were following them on a bicycle, Mukhatar Hussain the petitioner armed with rifle, suddenly while raising Lalkara fired one shot each at Muhammad Hussain and Mst. Munawar Bibi. Muhammad Hussain succumbed to the injuries sustained by him at the spot whereas Mst. Munawar Bibi was taken to the hospital in injured condition.

5. The motive for the occurrence was that Mst. Mehr Khatoon, sister of Muhammad Hussain deceased was married with Muhammad Amin and was childless. Muhammad Amin contracted second marriage with Mst. Azizan Bibi, sister of the accused and she gave birth to two babies. The accused were demanding that Muhammad Amin should divorce Mst. Mehr Khatoon which resulted into an exchange of hot words between the parties. Prior to the occurrence the accused had also extended threats to Muhammad Hussain deceased.

6. Muhammad Manzoor complainant (P.W.1), Mst. Munawar Bibi (P.W.2) and Ghulam Hussain (P.W.5) were produced as eye-witnesses of the occurrence who narrated the prosecution story as contained in the F.I.R. without any describable contradiction and discrepancy and corroborated each other on each material point. Fatch Muhammad (P.W.3) identified the dead body of Muhammad Hussain. Ahmed Sher, Halqa Patwari, prepared site-plan Exh.P.E. and P. E.1 at the direction of police and on pointation of the eye-witnesses. Ghulam Hussain and Allah Ditta (P W.6) escorted the dead body to the mortuary post-mortem examination delivered the last worn clothes of the to the Investigating Officer. Dr. Tariq Mahmood, Medical Officer (P.W.7) medically examined Mst. Munawar Bibi and traced following injuries on her person:-- "(1) A badly shattered fire-arm wound of entry 8.5 x 3.5 c.m. on dorsal aspect of left fore-arm close to wrist joint. Muscles and tendons were torn. (2) A badly shattered and torn fire-arm wound of exit on ventromedial aspect of left fore-arm close to wrist 7.5 x 4 c.m. incised, muscle torn and tendons were protruding out of the wound. (3) A torn shattered-fire-arm wound of entry 3.25 x 1.25 c.m. on palmer aspect of middle phalanx of right ring finger. (4) A fire-arm wound of exit 1.5 x 7.5 c. m. with averted margins on tip of terminal phalanx of right ring finger on palmer aspect. (5) A fire-arm wound of exit 1 c.m. 3 c.m. on back of proximal I.P. joint of right ring finger."

7. The post-mortem of the dead body of Muhammad Hussain conducted by Dr. Muhammad Afzal (P.W.11) revealed the following injures on the person of Muhammad Hussain deceased:-- "(1) A fire-arm wound of entry measuring 1/2 c.m. x 1/2 c.m. with burnt margin on the left lateral chest on the upper part of the posterior axillary line. (Adjacent arm also showed burnt). (2) Exit wound was oval in shape measuring 2-1/2 c.m. x 1-1/2 c.m. on the front of medial to shoulder wound was directed inward, downward and lateral wards going into chest cavity". In the opinion of doctor, Injury No. 1 was sufficient to cause death in the ordinary course of nature.

8. Muhammad Latif, Inspector/S.H.O. Jhal Chakkian, the Investigating Officer of the case, having prepared the injury statement Exh.P.H. and inquest report Exh.P.I. of Muhammad Hussain deceased sent the dead body to Civil Hospital, Sargodha and also prepared rough site-plan, secured the blood-stained earth from the place of occurrence and took into possession the Tanga in which the deceased and injured witnesses, were travelling. The Investigating Officer also took into possession the last-worn clothes of the deceased produced before him by Allah Dad, Constable and recorded statements of witnesses. The petitioner was arrested on 3-8-1994 by Amir Abdullah, Inspector/S.H.O., Satellite Town, Sargodha and while in police custody led to the recovery of .7 MM rifle with its licence which was used by him as weapon of offence.

9. Learned counsel for the petitioner with reference to the minor contradictions and the discrepancies in the statements of the eye-witnesses Contended that they being closely related to the deceased were interested and not truthful, therefore, no implicit reliance can be placed on their evidence without independent corroboration but no such evidence was available on the record as the motive set up by the prosecution was shrouded in mystery and the recovery of gun was of no use to the prosecution as no empty was occurrence and that the medical evidence would have r o corroborative value. In nutshell, learned counsel argued that the injuries on the person of witnesses at the most can establish their presence at the spot but they may or may not be telling the truth and that if the evidence of eye witnesses in the present case is judged in the light of attending circumstances, a reasonable doubt would be seen in the manner of taking place of the occurrence and the guilt of petitioner. The learned counsel added that as per prosecution story, the children were also boarding on Tanga would not be out of the range of firing but the evidence is silent on this aspect of the case.

10. We having gone through the record with the assistance of the learned counsel for the petitioner, find no substance in the above contentions. The parties were closely related to each other and the relations between the two families were normal but after the second marriage of Muhammad Amin, they developed hatred against each other which led to an abnormal situation as a result of which the accused demanded Muhammad Amin to divorce Mst. Mehr Khatoon which ultimately led to the fateful incident. The occurrence to the present case took place in the broad daylight on a kacha path on which deceased and Mst. Munawar Bibi while boarded in a Tanga, were going to their Chak and the first informant and Muhammad Ramzan were following them on a bicycle. The presence of first informant and Mst. Munawar Bibi, who also sustained injuries in the occurrence, at the spot was free from any doubt and except the strained relations due to the second marriage of Muhammad Amin, the parties were not inimical to each other; therefore, there could not be even a remote possibility of false implication or substitution of petitioner. The natural eye-witnesses have d-posed in a straightforward manner without any material contradiction and discrepancy or improvement in their statements and the minor discrepancies in the statement of Muhammad Manzoor pointed out by the learned counsel would not effect the prosecution case in substance.' The report of the occurrence was lodged at the police station at a distance of 12 kilometers from the place of occurrence within one hour and the petitioner was nominated as the main accused being responsible for causing fire-arm injuries to the deceased and Mst. Munawar Bibi. The scanning of the evidence on record would satisfy the mind that the eye witnesses were truthful and their evident; being of unimpeachable character, would alone be sufficient to sustain the conviction. The learned counsel emphasized that it was not safe to rely upon the testimony of interested and inimical witnesses for conviction on a capital charge without independent corroboration. We may observe that the rule of corroboration is not an inflexible rule which must be applied in all cases and in all circumstances rather it being rule of abundant caution, is invoked in the cases in which direct evidence is not of the standard to satisfy the mind of the Court. In the present case, as observed earlier, the parties were closely related to each other and there was no background of serious enmity between them to suggest even a remote, possibility of false implication or substitution of the accused in an occurrence which took place in the broad-daylight and in any case, the medical evidence coupled with the motive for the occurrence given by the prosecution, would provide sufficient corroboration to the ocular account of the natural witnesses. We having considered all aspects of the case in each detail, have not been able to find out any convincing ground for interference and we also could not find out any mitigation in favour of petitioner for lesser punishment.

11. For the foregoing reasons, we, while upholding the conviction and sentence awarded to the petitioner, dismiss this petition. Leave to appeal is refused. N.H.Q./M-750/S Leave refused.