2006 PLP 2402 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.480 of 2001 filed by Muhammad Yaqoob, appellant, who was convicted under section 302(b), P.P.C. and sentenced to Death with further direction to pay Rs.50,000 as compensation, in default six months' S.I. The conviction and sentence was recorded vide judgment dated 7-6-2001 rendered by learned Additional Sessions Judge, Vehari. Murder Reference No.481 of 2001 for confirmation of otherwise of death sentence of convict appellant shall also be answered through this single judgment.

2. Occurrence in this case had taken place at 7-30 p.m. on 10-9-2000 within the revenue estate of Chak No.323/EB which is at a distance of 10 miles from Police Station Fateh Shah, District Vehari while the matter was reported to the Police by Muhammad Iqbal on the same night and formal F.I.R. Exh.PG was recorded at 12-10 midnight by Zafar ul Hassan S.-I.

3. Brief facts of the case as stated in the F.I.R. Exh.PG are that on 10-9-2000 at about 7-30 p.m. Muhammad Iqbal, complainant along with Muhammad Hassan (father) and Muhammad Iqbal son of Jan Muhammad (brother-in-law) was present in his house; Mst. Yasmeen, sister of the complainant was also present there when in the meanwhile Muhammad Yaqoob armed with a carbine came, raised Lakara for teaching a lesson for not giving him the hand of Mst. Yasmeen and simultaneously fired a shot which landed on the left back side of her shoulder and she succumbed to the injury at the spot. The motive set up was that accused Muhammad Yaqoob was asking for the hand of Mst. Yasmeen but her parents were not agreeing to it. The accused had a grudge in his mind and due to this grudge, murdered Mst. Yasmeen.

4. Zafar ul Hassan S.-I. (P.W.10) took over the investigation. He after recording the formal F.I.R., went to the place of occurrence, took into possession the dead body of deceased; prepared inquest report Exh.PD; secured blood-stained earth vide memo. Exh.PH; carried out formal investigation and on 19-10-2000 arrested the accused. The accused while in custody got recovered a .12 bore pistol P.5 which was taken into possession vide memo. Exh.PF. On conclusion of the investigation, the accused was sent to face the trial.

5. At the trial prosecution in order to prove its case produced 10 witnesses in all. The eye-witnesses account was furnished by Muhammad Iqbal, real brother of the complainant and Muhammad Iqbal son of Jan Muhammad, brother-in-law of the complainant, P.Ws. 6 and 7 respectively. The post-mortem examination on the dead body of the deceased was conducted by Dr. Aafia Naz Alam (P.W.2). The learned District Attorney tendered in evidence reports of the Chemical Examiner (Exh.PK and Exh.PM), report of the Serologist (Exh.PL) report of the Fire-arms Expert (Exh.PN) and closed the case of prosecution. After conclusion of the trial, the accused was convicted and sentenced as stated above.

6. Learned counsel for the appellant submits that occurrence took place one hour after the sunset; no electric bulb was shown either by the Investigating Officer or the Patwari in the site plans prepared by them, so it was not possible for the eye-witnesses to have identified the accused. According to learned counsel, both the eye-witnesses being closely related to deceased were interested witnesses. Further submits that motive though was asserted by complainant P.W .6 Muhammad Iqbal but P.W.7 Muhammad Iqbal son of Jan Muhammad did not say any word about it. Adds that Muhammad Iqbal son of Jan Muhammad P.W.7 being resident of a place 10/12 kilometers from the place of occurrence, his presence at the spot was unnatural and in fact he was a chance witness and that the pretext for his being present at the place of occurrence is highly unbelievable because if his mother-in-law was ill, then wife of the P.W. and daughter of the ailing mother should have accompanied him. Further adds that P.W.7 has not mentioned anywhere the presence of his mother-in-law in the house at the time of occurrence. It is next submitted that the trial Court has disbelieved the recoveries. With this background, learned counsel for the appellant submits that the prosecution has miserably failed to prove its case and the appellant deserves acquittal.

7. Learned counsel for the State opposes the submissions made by learned counsel for the appellant and supports the judgment of trial Court by submitting that it is a case of promptly lodged F.I.R.; the eye-witnesses being inmates of the house where the occurrence had taken place are natural and that both the parties being known to each other, there was no question of mistaken identity or substitution.

8. We have heard learned counsel for the parties and have gone through the record with their able assistance. In the instant case the occurrence had taken place at 7-30 p.m. on 10-9-2000 and the matter was reported to the police at 12-10 midnight in the police station though distance between the place of occurrence and the police station is 10 miles. The name of the appellant, the weapon of offence which he was carrying at the time of occurrence and the role played by him is stated in the F.I.R. The eye-witness account was furnished by Muhammad Iqbal son of Muhammad Hassan (P.W.6) and Muhammad Iqbal son of Jan Muhammad (P.W.7) brother and brother-in-law of the deceased. The occurrence had taken place in the house of complainant. If for the sake of arguments, Muhammad Iqbal P.W.7 is held to be a chance witness; even then, the evidence of P.W.6 Jan Muhammad, real brother of the deceased is there. He being inmate of the house where the occurrence had taken place, his presence at the spot by no stretch of imagination can be ruled out of consideration. The settled law is that Court has to see the quality and not the quantity of evidence and even in a case of capital punishment, conviction can be maintained on the solitary statement of a witness, if it is otherwise trustworthy and has come from an unimpeachable source. Not a single question was put to any of the P. Ws. as to why the appellant was being falsely implicated. It is a case of single accused. The parties were known to each other so there was no question of mistaken identity. A suggestion was put by the defence that Mst. Yasmeen had illicit relations with Gulzar Shah and that when both were found in an objectionable position, Yasmeen was murdered but it was denied and it is further negated from the fact that according to report of the Chemical Examiner vaginal swabs taken from the vagina of Mst. Yasmeen were not stained with semen. Having analyzed the prosecution case from all angles, we are of the considered opinion that the prosecution has proved its case against the appellant beyond any shadow of doubt. There is no mitigating circumstance in favour of the appellant and in such an eventuality; the only penalty provided under the law is death. Resultantly, criminal appeal filed by the appellant is dismissed. The conviction and sentence recorded against him vide the impugned judgment is maintained in toto. The death sentence of Muhammad Yaqoob appellant is confirmed and Murder Reference is answered in the affirmative. H.B.T./M-294/L Appeal dismissed.