2006 PLP 2165 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.1168 of 1999 filed by Muhammad Afzal, convict appellant who was convicted under section 302(b), P.P.C. and sentenced to death with further direction to pay rupees one lac, as compensation in default six months vide judgment dated 13-11-1999 rendered by learned Additional Sessions Judge, Gujrat. Murder Reference No.2 of 2000 for confirmation or otherwise of death sentence of convict appellant shall also be answered through this single judgment.

2. Occurrence in this case had taken place at 11-00 a.m. on 12-5-1992, within the Revenue Estate of Mauza Roopokey which is at a distance of 8 miles from Police Station, Kunjah, District Gujrat, while the matter was reported to the Police by Muhammad Pervaiz, complainant through written complaint Exh.P.K. at 2-00 p.m. on the same day at Aziz Bhatti Shaheed Hospital, and formal F.I.R. Exh.P.K./1 was recorded by Muhammad Nawaz, H.C.

3. Briefly stated the facts of the case are that on 12-5-1992 at 11-00 a.m., Muhammad Pervaiz, complainant along with Aurangzeb, his real brother, Ghulam Abbass and Riasat Ali, were going to village Roopkey from Keeranwala Adda and when they reached near the crop of barseen of Khan Muhammad, they found Muhammad Afzal, accused armed with rifle .7 mm, Shafqat armed with .12 bore gun, Muhammad Arshad, Muhammad Ashraf, Safdar, Sarfraz, Muhammad Nawaz, Muhammad Faiz and Muhammad Asghar all armed with fire-arms and Lal Khan empty-handed coming in furtherance of their common intention from the under construction bungalow of Muhammad Mushtaq. Muhammad Asghar raised a Lalkara that Muhammad Pervaiz etc. had come and they be killed. Upon this, Muhammad Afzal fired at rifle shot which hit on the left flank of Aurangzeb, who fell down, the second shot fired by Muhammad Raza with .12 bore gun hit on the abdomen of Muhammad Abbas, Shafqat made a fire which hit on the left thigh of Riasat Ali, thereafter all the accused started firing. Both Aurangzeb and Ghulam Abbas injured were taken to hospital. The motive alleged was that Muhammad Nawaz resident of Keeranwala was party man of the complainant and upon the dispute of use of soling road an appeal was pending before the Consolidation authorities that he would not give way through his land and that the complainant party was helping Muhammad Nawaz so due to that grudge, the accused murdered Aurangzeb and injured Ghulam Abbas and Riasat Ali.

4. Muhammad Afzal, S.-I. (P.W.8) took over the investigation. He, after registration of the case, reached at the place of occurrence, prepared injury statement Exh.P.G., inquest report Exh.P.J of Aurangzeb and blood-stained earth was taken into possession vide memo. Exh.P.J. Inspector Safdar Mahmood P.W.10, on 2-6-1992 arrested Safdar, Sarfraz, Asghar, Nawaz, Muhammad Ashraf, Muhammad Hayat, Lal Khan and Sardar Muhammad. He also on 10-6-1992 arrested Muhammad Raza along with a .12 bore gun. Sarfraz accused also got recovered a gun. Muhammad Afzal and Shafqat Shah accused could not be arrested. After completion of investigation, incomplete challan was submitted. Except the present appellant, all the remaining accused were tried earlier. In the earlier trial, except Shafqat and Muhammad Raza, all the accused were acquitted. Shafqat was convicted and sentenced under sections 337-F (ii) and 337-D, P.P.C. the present appellant was a P.O. hence his case under section 512, Cr.P.C. was separated. Muhammad Afzal was arrested and after completion of the investigation, was challaned to face the trial.

5. At the trial, prosecution in order to prove its case produced 16 witnesses in all. The learned DDA tendered in evidence report of the Chemical Examiner Exh.P.T. report of the Serologist Exh.P.U. and closed the case of prosecution.

6. Learned counsel for the appellant after having read the prosecution evidence submitted that F.I.R. was recorded after due deliberation and consultation and with a delay of 3 hours without any explanation in this regard and that Investigating Officer during cross-examination could not tell the name of the person who informed him about the occurrence. Further submitted that no crime empty was recovered from the spot though according to case of the prosecution 11 accused resorted to indiscriminate firing. Added that no weapon of offence was recovered on the pointation of the appellant. So far as motive is concerned, learned counsel submitted that no motive laid with the appellant to commit the murder of the deceased and that the motive if any was, that was with Muhammad Nawaz, who had litigation about passing of the path from his land and as such there was no occasion for the appellant on the day of occurrence to come armed at the spot. According to the learned counsel in fact the complainant party was aggressor inasmuch as three persons from the side of the appellant namely Ahmad Raza, Anar and Raza were injured. Learned counsel maintained that eye-witness account was furnished by Riasat Ali, Ghulam Abbas and Muhammad Pervaiz, P.Ws., all were from the one party and related to the deceased; the complainant in fact was not present at the spot and later on was made as first informant; P.Ws. 4 and 5 have sustained one injury each; they may be present at the spot but are not truthful witnesses and that statements of P.Ws. are in conflict with medical evidence. Added that there is no independent corroboration to the ocular account furnished by interested P.Ws. through medical evidence and the recoveries. Further added that on the same set of evidence, 8 co-accused of the appellant were acquitted by the trial Court while one was acquitted by the High Court and as such the same set of evidence may not be believed against that appellant. Learned counsel lastly submitted that if the submissions made by him do not find favour with the Court then there are mitigating circumstances in favour of the appellant for awarding the less penalty and those are that it is a case of single shot and the deceased was a person of bad character. He relied upon PLD 2004 SC 150 and 2003 SCMR 1164. Learned counsel for the complainant submitted that date, time and place of occurrence have been admitted by the appellant though with a different version; out of three, two eye-witnesses were injured so their presence at the spot cannot be doubted; the motive alleged by the prosecution stood proved, the appellant remained absconder for more than five years; the appellant was main accused and resident of the same village, as such could not claim ignorance about registration of the case, the defence version was not plausible and that injury on the person of D.W. 1, Ahmad Raza was fabricated and that even suggestion was put to the D.W. that the injury was self-suffered. He lastly submitted that to take single shot a mitigating circumstance would amount to giving premium to the absconders. Learned counsel for the State adopted the arguments advanced by learned counsel for the complainant. 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 11-00 a.m. on 12-5-1992 within the revenue estate of Mauza Roopokey which is at a distance of 8 miles from Police Station, Kunjah, District Gujrat, while the matter was reported to the Police by Muhammad Pervaiz, complainant through written complaint Exh.P.K. at 2-00 p.m. on the same day at Aziz Bhatti Shaheed Hospital, and formal F.I.R. Exh. P. B. / 1 was recorded by Muhammad Nawaz, H.C. In all 11 accused were named in the F.I.R. The appellant could not be arrested as such was declared as P.O. 10 accused were tried by the learned Additional Sessions Judge, 8 were acquitted, while two were convicted and sentenced under section 337-F(ii), P.P.C. etc. Out of two convicts, Shafqat Shah could not file appeal and was released from jail after serving out his sentence, while Raza convict was acquitted by this Court in appeal. The appellant was arrested on 30-5-1997, after full five years after the occurrence. He was declared fugitive from law and later on P.O. The prosecution produced three eye-witnesses. Riasat Ali and Ghulam Abbas P.Ws. 4 and 5 were injured. The complainant Muhammad Pervaiz did not receive any injury. All these three witnesses have appeared before the trial Court though after seven years but fully supported the case of prosecution. Dr. Abid Mahmood P.W.2, medically examined A both these injured witnesses on the day of occurrence. The ocular account furnished by the eye-witnesses is fully corroborated by medical evidence. Both the parties were known to each other so there was no question of mistaken identity. In fact the appellant Muhammad Afzal tried to make it a case of two versions. At this stage, we would like to reproduce answer to Question No.7 given by the appellant in his statement under section 342, Cr.P.C.:-- "The prosecution have distorted the real facts and manoeuvered a false story, as matter of fact is that consolidation operation took place in village Roopokey. A path was land of one Nawaz and others. In fact Rasta was formed, brick soling was also carried out by concerned authorities. On the day of occurrence deceased Aurang Zaib and another started removing the bricks. Ahmad Raza real brother of Muhammad Raza son of Lal Khan co-accused of this case along with Amjad son of Sanaullah and Anar resident of Phalia were available nearby. They objected to removal of bricks and damaging the Rasta Aurang Zaib and others opened firing at Ahmad Raza, Amjad and Anar abovementioned and as a result they reached fire-arms, they took shelter in the bungalow of Mushtaq where Muhammad Sharif son of Khan Muhammad, who was holder of a licensed rifle also came there. Thereafter Sharif opened firing to save the life of Ahmad Raza and others at the complainant party. During the course of firing Aurang Zaib was injured but I do not know fire of which hit Aurang Zaib. I was not present at the time of firing. I produced my defence before Investigating Officer in this regard and ultimately the Investigating Officer declared me innocent in this case. Ahmad Raza abovementioned was medically examined but the complainant party along with police prevailed upon the matter and this fact was not brought on the file of this case. Amjad and Anar also proceeded to the Doctor but the Doctor refused to examine them on account of influence of complainant party being influential party. The P. Ws. have deposed against me due to enmity." A bare perusal of the above reply shows that three persons from his side namely Ahmad Raza, Amjad and Anar were injured but neither Anar nor Amjad appeared before the trial Court nor their MLRs were produced before the trial Court. The doctor P.W.2 found the following injury on the person of Ahmad Raza:-- "A lacerated wound 1 x 1 c.m. with inverted edges on the lateral aspect of right leg about six inches from the ankle joint showing the wound of entry. The duration given by the doctor between the injury and the medical examination was within 12 hours when according to the time of occurrence and medical examination of the D.W., the duration should be 4/5 hours and the doctor could have stated as 6/7 hours. A suggestion was put to the D. W.1 that the injury was self-suffered and manufactured. The place and dimension of injury also proves the same. We therefore, rule out of consideration the defence version of the appellant. There was no question of recovery of any fire-arm on the pointation of the appellant because he was arrested long after five years. The appellant could not claim ignorance about registration of the case being from the same village. He did not give any satisfactory reply while replying the question relating to abscondence. The opinion of the police after nine years after the occurrence that the appellant was innocent has no evidentiary value because the occurrence had taken place in broad-daylight and two injured P.Ws. appeared before the trial Court and supported the case of prosecution. Further more, the opinion of the police is not binding upon the Courts. The ocular account is fully corroborated by medical evidence and long abscondence of the appellant spreading over five years lends further support to the case set up by the prosecution. We are thus satisfied in our mind that it was the appellant who committed the murder of the deceased and the prosecution has been successful in proving its case against the appellant to its hilt. There is no mitigating circumstances in favour of the appellant. In the case of Syed Haruki Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 inefficiency of motive, the occurrence having took place at the spur of the moment and the accused having not repeated the shot were not considered to be mitigating circumstance to award lesser penalty. For what has been stated above, we find no merit in this appeal and the same is dismissed. Resultantly, the conviction and sentence recorded against the convict appellant vide the impugned judgment rendered by the trial Court is maintained in toto. The death sentence of the appellant is confirmed and murder reference is answered in the affirmative. H.B.T./M-223/L????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.