1994 P Cr (PLP)

SH. RIAZ AHMAD, J.

Appellant Bashir Khan son of Sadiq Khan aged 23 years was tried alongwith Altaf alias Papu, Abdul Majid Khan and Asghar Khan by the learned Sessions Judge, Toba Tek Singh on the charge under section 302/34, P.P.C. for having committed the murder of Muhammad Anwar. Vide judgment dated 19th of February, 1990, the learned Sessions Judge, found only the appellant guilty on the charge under section 302, P.P.C. while rest of the co-accused were acquitted The appellant was convicted and sentenced to death and to pay a fine of Rs.20,000 or in default thereof to suffer rigorous imprisonment for a term of two years. It was also directed that in the even of the recovery of the fine, the same shall be paid as compensation to the heirs of the deceased under section 544-A, Cr.P.C. The appellant has assailed his conviction while the case has also been referred to us by the learned Sessions Judge under section 374, Cr.P.C. and this judgment shall dispose of the aforesaid Reference as well as the appeal. The unfortunate occurrence resulting into the death of Muhammad Anwar took place on 29th September, 1988 at about 11 a.m. in front of the house of Nazir son of Karam Din in Chak No. 519, G.B. Tehsil Toba Tek Singh situated at a distance of 12 miles from Police Station Sadar. The occurrence was reported at the police station vide F.I.R. Exh.P.E. by Sarwar Khan real brother of the deceased and the same was recorded at 12-30 p.m. by Ijaz Hussain, Sub-Inspector, P.W.8. The prosecution case in brief as disclosed by the complainant in the F.I.R. was that a month before the occurrence, Siddique son of Sultan Ali a resident of the village and others were assaulted by Bootey Khan etc. whereupon a case under section 307/325 read with section 148/149, P.P.C. was registered against Bootey Khan and others and they were challaned in the aforesaid case. According to the complainant, deceased Anwar Khan supported Bootey Khan which was resented to by Bashir Khan son of Siddique Khan appellant and Altaf alias Papu. On the fateful day at 11 a.m. deceased Muhammad Anwar Khan was proceeding to attend the "Dars" of Holy Qur'an in Chak No. 519-GB and he was being followed by the complainant, Mushtaq Ahmad and Asghar Khan at some distance. When the deceased reached near the house of Nazir son of Karam Din then from a narrow lane, appellant Bashir Khan armed with revolver alongwith other co-accused allegedly emerged while raising Lalkaras that the deceased would be taught a lesson for helping Bootey Khan. The complainant further disclosed that in his sight, Altaf alias Papu held him in a Japha and felled him on the ground; while Bashir Khan fired two successive shots with his revolver at Muhammad Anwar hitting him on the right side of the head and near the left eye. The complainant alongwith Mushtaq and others tried to rescue Muhammad Anwar but the appellant raising a Lalkara threatened them with dice consequences and thereafter all the assailants escaped from the scene of the occurrence while Muhammad Anwar succumbed to the injuries at the spot. On 29th of September, 1988 at about 11 a.m. P.W.1 Dr. Nawazish Ali, Medical Officer, D.H.Q. Hospital. Toba Tek Singh conducted the autopsy on the dead body of the deceased and the following injuries were noticed:-- (1) A fire-arm wound of entrance 0.5 cm. diameter edges blackened and inverted on the right side of the head 5 c.m. above the right ear. (2) A fire-arm entrance wound OS cm. diameter edges blackened and inverted on the left side of the face, just below the left eye. (3) An abrasion 7 c.m. x 3 c.m. on the back of right shoulder. In the carimum and spinal cord, there was skull fracture under injury No.l and fracture of left maxilla under injury No.2 Brain was also injured. In the opinion of the doctor, the death occurred due to shock and internal and external haemorrhage caused by injuries 1 and 2 which were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 and 2 were caused by a fire-arm while injury No.3 was with blunt weapon. On 5th of October, 1988, the appellant appeared before the S.I. Ijaz Hussain, P.W.8 and produced revolver P.7 alongwith three bullets P.8/1-3 which were taken into possession vide memo. Exh.P.I. attested by Mushtaq Ahmad, P.W.6 and Sarwar Khan, P.W.9 besides S.I. Ijaz Hussain, P.W.8. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by P.W.9 Sarwar Khan complainant, a real brother of deceased, Asghar Khan, P.W.10, a cousin as well as a brother of the wife of the deceased and P.W.6 Mushtaq Ahmad, Head Lumberdar of the village. It may be stated here that Mushtaq Ahmad, P.W.6, did not support the prosecution version and was declared hostile. When examined under section 342, Cr.P.C. the appellant denied the charge and pleaded innocence. With the assistance of the learned counsel for the appellant, the complainant and the State, we have carefully perused the entire evidence on the record of the case and we have also heard the various contentions raised by the learned counsel. The learned counsel for the appellant mainly argued that as far as P.W.10 Asghar Khan is concerned, he was not at all cross-examined, therefore, it has caused miscarriage of justice. It is further contended that in this case, the witnesses could not have seen the occurrence, inasmuch as the dead body was received at the mortuary at 11. am. while the occurrence had also taken place at the same time and it was not possible to transport the dead body without loss of time and, therefore, this factum alone falsities the prosecution case. It is next contended that no motive was attributable to the appellant and, therefore, the appellant could not have committed this crime. The learned counsel for the appellant also argued that the occurrence took place in a largerly inhabited area and no one from the spot appeared or was made to join the investigation in this case. It is urged with vehemence that the refusal to appear on the part of Mushtaq, an independent witness clearly shows that the prosecution case is doubtful. We have carefully considered all the aspects of the case. Unfortunately, all the contentions are devoid of force because right from lodging the F.I.R. till the examination of the eye-witnesses in Court, it has been consistently stated that deceased was helping Bootey Khan and his associates in the assault case which was registered against Bootey Khan and others at the instance of Siddique Khan and there was a grouse as against the help and support of the deceased. This aspect of the statement was not challenged in cross-examination. Not a single question was put to doubt the genuineness of the statements of the witnesses. It is also interesting to note that no enmity worth the name has been suggested or brought on the record to show the false implication of the appellant nor any material exists on the record to disbelieve that the witnesses could not have been present at the scene of the occurrence. No doubt, Sarwar Khan and Asghar Khan, P.Ws were closely related to the deceased but that by itself is no ground to discard their testimony from consideration. Strangely enough, Asghar P.W. was not at all cross-examined by the learned counsel for the defence and, therefore, it is now settled that unchallenged statement of a witness cannot be brushed aside and has to be taken into consideration as true. After very anxious consideration, we are of the view that there is no other material on the record to disbelieve the prosecution case. No mitigating circumstances exists on the record to consider the question of quantum of sentence in this case, therefore, we hold that the prosecution case has successfully brought home guilt to the appellant and thus, this appeal fails and is hereby dismissed. The death sentence awarded to the appellant is confirmed. The Reference is answered accordingly. N.H.Q./B-95/L Appeal dismissed.