1998 P Cr (PLP)

GHULAM SARWAR SHEIKH, J.

Upon commencement of trial of case vide F.I.R. No.302 of 1992, dated 30-10-1992 registered at Police Station Yazman District Bahawalpur, appellant was charged for causing intentional murder (Qatl-e-Amd) of Urjana son of Malhoo by firing a shot with pistol. Ultimately, he was found guilty, convicted and sentenced under section 302(b), P.P.C. to death, to be hanged by neck till he is dead. He was also held liable to pay a sum of Rs.15,000 as compensation to legal heirs of Urjana deceased as envisaged by section 544-A, Cr.P.C. or in default to undergo R.I. for a term of six months.

2. Criminal Appeal No.26 of 1994 challenging and assailing conviction and sentence of appellant and Murder Reference No. 19 of 1994 under section 374, Cr.P.C, for confirmation of Death sentence are being disposed of by this judgment.

3. Brief facts, as unfolded, embodied in and reflected by F.I.R. Exh.P.A. lodged by Heera P.W., are that on eventful and fateful day, he alongwith his brother Urjana (deceased), Sarnia, Roopa and his niece Mst. Laloo, P.Ws., was thrashing rice crop of Bashir Ahmad Butt in his lands, situated in Chak No.52/D.B. On previous evening to the occurrence, appellant Muhammad Ali son of Umar Ali Caste Jat Dhilloon resident of Chak No.52/DB, a tractor driver of Bashir Ahmad Butt, cut filthy jokes with his niece Mst, Laloo aged 12/13 years, upon which, his brother Urjana (deceased) abused him and said Muhammad Ali threatened to teach a lesson for the said insult; on 30-10-1992 it the morning, when he (complainant), his brother Urjana deceased alongwith Sarnia (P.W.4) Roopa (P.W.2) and Mst. Laloo (P.W.3) were thrashing rice crop at about 7-15 a.m., said Muhammad Ali appellant, who, was watering in the nearby fields, came near them and fired a shot at Urjana (deceased), which, hi: him on the back of his chest and he fell there and then. Muhammad Ali appellant alongwith pistol tried to run away, but, was apprehended by P.Ws. alongwith pistol and, thereafter, the complainant checked his brother Urjana deceased, who, had succumbed to the injuries at the spot. Leaving Sarnia and Roopa, P.Ws., with the dead body and the accused/appellant, the complainant reached the police station alongwith Rahman, Councillor of the village, and reported the matter to police. Motive for the occurrence was stated to be incident of cutting filthy jokes with Mst. Laloo, niece of the complainant as indicated above.

4. Investigation was carried out by Muhammad Ramzan Bhatti, Inspector/S.H.O., who, as P.W.9, narrated various steps with regard thereto Autopsy on dead body of Urjana deceased was conducted by Dr. Habib-ur Rahman, whose report Exh.P.J. and Exh.P.J./l, were proved by P.W.10 Faiz Ahmad Faiz, Dispenser. Details of medical evidence need not be recapitulated as fact of murder of Urjana has not been disputed by the accused. His defence rather is that same was committed by Bashir Ahmad Butt, for whom he had been substituted. Besides then eight witnesses were produced by the prosecution. Ocular account was furnished by Heera complainant P.W.1 Roopa P.W.2, Mst. Laloo P.W.3, and Sarnia P.W.4, who, even, testified the incident of cutting jokes and threats hurled by the accused to provide motive for the incident.

5. When examined under section 342, Cr.P.C. appellant denied all the incriminating circumstances figuring against him in the prosecution evidence and took the plea that Bashir Ahmad Butt was the real culprit and he was substituted. He described P.Ws. to be under his influence and to have deposed against him falsely at his instance. He did not opt to appear as witness to disprove the allegations against him, as envisaged by section 340(2), Cr.P.C. and led no evidence in his defence.

6. Upon appraisal and appreciation of evidence, adduced on record, taking into consideration entire data and material and placing divergent claims in juxtaposition, learned Additional Sessions Judge, seized of the matter, came to the conclusion that the prosecution had succeeded in proving its case/version beyond any shadow of doubt. As a sequence thereto, appellant was convicted and sentenced as indicated above.

7. Plea of substitution does not inspire confidence from any angle. It was neither taken up at the inception nor pleaded by convict that he was being made scape-goat. Seemingly, it is an afterthought affair and figment of his imaginations. Moreover, no bad blood existed between complainant party and convict. It was a broad daylight occurrence. Hence, detection of real culprit at the spot was not difficult and no haze or mist emerged to impede this exercise. Even P.Ws. do not look obliged and indebted to Bashir Ahmad Butt to the extent of letting him free and plant another person instead.

8. Learned counsel for the appellant has endeavoured to dispute about weapon of offence, i.e. pistol in the light of report of Forensic Science Laboratory. According to him, weapon was not the same, which, was allegedly used at the time of incident. But mere misdescription, about design, its prospective range or using formula other than the prevalent do not make the occurrence doubtful. Needless to say that recovery is a corroborative piece of evidence, never considered as mainstay of prosecution case and even in its absence conviction can be made, provided ocular account leaves no room for doubt about the involvement of the culprit in the commission of offence. Similarly, minor discrepancies in testimony of various P.Ws. do emerge with the passage of time. Human memory does fade thereby. If an account is free from discrepancies it rather looks tailored, tutored and unnatural. Learned counsel for the appellant has further canvassed that demeanour of P.Ws. at the time of occurrence and soon after the incident was not natural. They preferred dogging the appellant to attending their dear one, who, required immediate treatment. Fallacy of the argument is too apparent to dilate P.Ws. well-knew the damage done and to avert another damage of letting the appellant to escape or slink from the scene, P.Ws. rightly chased the appellant and succeeded in apprehending him.

9. Pursuit of watering the fields for a tractor driver has been described to be against prevalent custom. But this argument too looks outcome of lack of appreciation of prevalent practice in its true perspective. While watering the fields, one has to keep in view smooth soil free from lumps of clay for even flow of water. If ground level is uneven, only a driver can set it right by applying mechanism attached with the tractor and there is no need to employ a second person as a helper. In wake thereof, presence and pursuit of appellant as ascribed to him is quite justified.

10. We also fail to find any divergence and conflict in the evidence adduced by the prosecution, which leaves no room of suspicions about callous act of appellant, who, undoubtedly, 'was apprehended at the spot. There is no ambiguity about his identity, medical evidence also fully supports the prosecution version and lacuna attributed therein is negligible. In these circumstances, guilt of appellant stands established to the hilt excluding an iota of suspicion as to how and in what manner the incident took place as remarked I by learned counsel for the appellant.

11. Reliance has been placed upon Munawar Ali alias Munawar Hussain v. The State PLD 1993 SC 251, Talib Hussain and another v. The State PLD 1994 Lah. 43, Abdul Haque v. The State and another PLD 1996 SC 1 and Ghulam Hussain alias Hussain Bakhsh and 4 others v. The State and another PLD 1994 SC 31, to contend that medical evidence simply establishes infliction of injuries upon the person of the deceased and gives out number of the assailants, prosecution is to stand on its own legs and cannot take benefit of weakness of defence plea; burden of proof never shifts and in case of two probable versions, one favourable to accused is to be preferred. But in the instant case, medical evidence supports the prosecution version in its entirety, same cannot be taken as two versions case and prosecution has led overwhelming evidence, not shattered in any manner, to prove its case. As such the principles of law enunciated in authorities referred to above and called in aid of the appellant are neither applicable to the facts of the instant case nor can be stretched to it by any imagination or under any canon of law.

12. Suffice it to say that the present case stands proved to the hilt not only, by unimpeachable ocular account, but also factum of apprehension of appellant/ accused alongwith weapon of offence at the scene of occurrence and by other overwhelming evidence in respect of other factors as well.

13. Resultantly, appeal fails and is hereby dismissed, conviction and sentence awarded to appellant on 27-2-1994 by learned Additional Sessions Judge is upheld, Death sentence is hereby confirmed and reference is answered accordingly. N.H.Q./M-545/L Appeal dismissed.