2008 PLP 619 (YLR)

IJAZ AHMAD CHAUDHRY, J.

Muhammad Arif appellant was convicted for an offence under section 302(b), P.P.C. vide judgment, dated 6-10-2000 rendered by the learned Additional Sessions Judge, Gujranwala and was sentenced to death. Muhammad Arif appellant was ordered to pay a sum of Rs.1,00,000 to the heirs of Muhammad Zaman deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to further undergo imprisonment for six months. The appellant was further convicted under section 337-A(i), P.P.C. and sentenced to pay daman of Rs.30,000 to Muhammad Sharif complainant (P.W.5). He has challenged his conviction and sentenced before this Court through the present appeal which has been heard by us along with Murder Reference No.600 of 2000 seeking confirmation of the sentence of death passed by the learned trial Court against him. We propose to decide both these matters together through the present consolidated judgment.

2. The prosecution's case unfolded in the F.I.R. (Exh.PB/1) got lodged by Muhammad Sharif complainant (P.W.5) was that on 27-12-1995 at about 10-00 a.m. Muhammad Sharif complainant (P.W.5) went to Sada Bahar Nursery situated near office of Dy. Director (T) Agricultural, Gujranwala, which was being run by his son Muhammad Zaman deceased. At that time, Muhammad Ramzan was already present there and meanwhile, Ijaz and Muhammad Hanif P.Ws. also reached in the Nursery. Muhammad Ijaz was telling them that Muhammad Arif appellant had made a fire shot on the person of Anwar. Suddenly, Muhammad Arif appellant armed with rifle .222 emerged there and made a fire shot at Muhammad Zaman deceased son of the complainant, which hit him on his head. Complainant, Ijaz and Muhammad Hanif P.Ws. apprehended the accused-appellant, who caused injuries with scissors on the head of the complainant. Muhammad Arif appellant along with rifle was handed over to the staff of said agricultural office. The complainant and his son Muhammad Zaman in injured condition were brought to Hospital. The complainant was admitted there while Muhammad Zaman was referred to Mayo Hospital, Lahore.

3. The motive behind the occurrence was alleged to be that Nadeem son of Muhammad Arif appellant died six months prior to the present incident by drowning into canal. Muhammad Arif appellant suspected that his son was murdered by Muhammad Zaman deceased. The complainant had produced his as well as his son's MLRs claiming that the occurrence had been witnessed by Ijaz and Hanif besides him.

4. The investigation of this case was conducted by Muhammad Ashraf Khan, S.I. who died before the commencement of trial and Muhammad Yaqoob S.-I. (P. W.12) was produced as a secondary evidence being acquainted with the handwriting of Muhammad Ashraf Khan, S.I. and during the investigation the place of occurrence was inspected, blood-stained earth was secured, a rough site-plan of the place of occurrence was prepared, the dead body was sent to the mortuary for autopsy, an empty of rifle .222 bore was recovered from the spot, the last-worn clothes of the deceased were received a formal site-plan of the place of occurrence was got prepared, the appellant was arrested recovery of rifle .222 bore from the appellant's possession was effected and after completion of the investigation a challan was submitted.

5. At the commencement of the trial the learned trial Court framed a charge under sections 302/324, P.P.C. against the appellant to which he pleaded not guilty and claimed a trial.

6. During the trial the prosecution produced as many as thirteen witnesses in support of its case. The ocular account of the incident in question was furnished by Muhammad Sharif complainant (P.W.5) and Muhammad Hanif (P.W.6) who also deposed about the motive. P. W.6 also stated about the production of .222 bore rifle before the police and the recovery of the empty of .222 bore rifle from the spot. The medical evidence was provided by Dr. Abdul Ghaffar (P. W.7) and Dr. Shabbir Hussain (P. W.8) while on behalf Muhammad Ashraf Khan, S.I., Muhammad Yaqoob S.I. (P.W.12) was produced in secondary evidence, who stated about the various slaps taken by the I.O. during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.

7. In his statement recorded under section 342, Cr.P.C., the appellant had denied and controverted all the allegations of fact levelled against him by the prosecution and had professed his innocence. However, to a question that "Why this case against you and why the P.Ws. have deposed against you? Muhammad Arif appellant replied as under:- "It was an un-witnessed occurrence. The P.Ws. were not present at the spot at the time of occurrence nor had seen it. Muhammad Zaman deceased was a desperate and hardened criminal. He was an unauthorized occupant of land of Sada Bahar Nursery which belongs to Highway Department. He was not paying any rent to the Highway Department nor he was vacating the aforesaid land. He had dispute with so many other persons and had so many enemies and has been murdered by them. I and Muhammad Zaman deceased used to say our prayer in the same mosque and in the same Eidgah. My suspicion was removed and a compromise was effected and I had no grudge against Muhammad Zaman deceased. There was no civil or criminal litigation between myself and the deceased. We used to meet each other often. I had a money dispute with Muhammad Sharif complainant and for that reason he had falsely implicated me in this case. The injuries of Muhammad Sharif complainant are self suffered and the same were caused by friendly hand to show him as an injured P.W. And that is why he has not got his injures X-rayed. I am innocent. The P.Ws. have falsely deposed against me being related to the complainant and being inimical towards me." The appellant, however, opted not to make statement on oath under section 340(2), Cr.P.C. and he did not produce any witness in his defence.

8. Upon conclusion of the trial the learned trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, he was convicted and sentenced by it as mentioned and detailed above. Hence the present appeal and the connected murder reference before this Court.

9. The learned counsel for the appellant contends that Muhammad Sharif complainant (P.W.5) was employed as Baildar in Municipal Corporation Gujranwala and on the day of occurrence he was working in Gulshan-e-Iqbal Park, whose working hours were 8-00 a.m. to 3-00 p.m., thus he remained present at Gulshan-e-Iqbal Park in between the time of occurrence and as such he had not seen the incident but as against this he had become a complainant and had introduced the story which otherwise is incorrect, false and fabricated one, that Muhammad Hanif (P.W.6) was not resident of the same locality whose place of residence was 1-1/2 Kms. away from Kamonke, who was labourer and his duty hours were not fixed, so his presence at the spot was doubtful too as he had not stated that he was serving in the nursery of the deceased; that Muhammad Hanif (P.W.6) and Ijaz given up P.W.. were sons of real brothers of Muhammad Sharif complainant (P.W.S) and being closely related inter se and with the deceased they were interested witnesses whose statements may be discarded; that there were contradictions in the statements of the eye-witnesses and the prosecution had not been able to prove the case against the appellant beyond any shadow of doubt; that the deceased was a desperate person who had forcibly taken the possession of' the plot where he was running a nursery in the name and style as "Sada Bahar Nursery"; that no civil or criminal litigation was pending between the parties; that motive was also not proved as the complainant himself had admitted that a compromise was arrived at between the appellant and the deceased and suspicion was removed; that recovery of rifle was useless as the empty and the weapon of offence were sent on the same day to the office Forensic Science Laboratory and as such the report thereof is legally inconsequential; that according to the complainant and the eye-witnesses the office of Deputy Director Agricultural Department and Quaid-e-Azam Divisional Public School were open and the people were also present near the place of occurrence but in spite of that no independent person was joined in the investigation and also had not been produced in the Court. It has, thus, been canvassed by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond' reasonable doubt entitling him to acquittal by this Court.

10. On the contrary, learned counsel for the complainant and the State have maintained in unison that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, therefore, the convictions and sentences of the appellant recorded by the learned trial Court do not warrant any interference by this Court as the witnesses had no previous enmity, ill-will or grudge to falsely implicate him in the present case; that the appellant was apprehended at the spot and weapon was also recovered from his possession, who, then was handed over to the police on the same day by Muhammad Hanif (P.W.6); that it makes no difference that the weapon of offence and the empty were sent jointly to the office of Forensic Science Laboratory as the recovery thereof was effected the same day at the place of occurrence. Hence this appeal is liable to be dismissed.

11. We have heard the learned counsel for the parties at some length and have gone through the record of this case with due care and caution.

12. The occurrence in the present case had taken place on 27-12-1995 at 10-00 a.m., while the matter was reported by Muhammad Sharif complainant (P.W.S) through his statement (Exh.PB) the same day at 11-45 a.m. on the basis of which formal F.I.R. (Exh.PB/1) was registered at 12-00 noon at the police station. In the F.I.R. which was lodged with promptitude and also without any inordinate delay, the name of the appellant was mentioned as a single accused. It was also mentioned there in that the appellant had fired at Muhammad Zaman deceased hitting on his head and the occurrence was witnessed by Muhammad Sharif complainant (P. W.5), Muhammad Hanif (P.W.6) and Ijaz (given up P.W.). It was also mentioned therein that the appellant was apprehended at the spot by the witnesses and rifle was also recovered from his possession. According to P.W.6 Muhammad Hanif at the time of visit of the police official/I.O. the weapon of offence recovered from the appellant was handed over to the police which fact was supported by the evidence on the record.

13. To prove the ocular account the prosecution had produced Muhammad Sharif complainant (P.W.5) and Muhammad Hanif (P.W.6). Muhammad Sharif complainant (P.W.5) is father of Muhammad Zaman deceased and he had also received injuries during the incident while P.W.6 Muhammad Hanif was son of brother of the complainant and was first cousin of Muhammad Zaman deceased. No doubt both the eye-witnesses were related inter se and with the deceased, but mere relationship is not sufficient to declare them as interested witnesses unless they had previously ill-will, grudge or enmity to falsely implicate the appellant in a criminal case. In the present case it was admitted by Muhammad Sharif complainant (P.W.5) during the cross-examination that no civil or criminal litigation was pending between the deceased and the appellant and they had no previous enmity with each other. In such circumstances the eye-witnesses, cannot be termed as interested witnesses. Both the eye-witnesses had established their presence at the spot as Muhammad Sharif complainant (P.W.5) was father of the deceased who had given sufficient reason for his visit to the place of occurrence at the relevant time that he had taken the meal for his son of Muhammad Zaman deceased. His presence at the spot is further stamped by the receiving injuries on his person. Similarly, Muhammad Hanif (P.W.6) stated that he was serving as a labourer' in 'Sada Bahar Nursery' owned by the deceased. Both these eye-witnesses were cross-examined on this point in detail as complainant Muhammad Sharif (P.W.5) had been working as Baildar in Gulshan-e-Iqbal Park, whose duty hours being from 8-00 a.m. to 3-00 p.m. he should have remained present there during that time but the defence failed to shatter their evidence. Moreover, Dr. Abdul Ghaffar P.W.7 had medically examined Muhammad Sharif complainant (P.W. 5) on 27-12-1995 at 10-15 a.m. about 15 minutes after the incident and had found three blunt weapon injuries on the person of Muhammad Sharif complainant (P.W.5). It cannot be said that during such a short period Muhammad Sharif complainant (P.W.5) could have managed receiving of said injuries through friendly hand only to become a witness in this case and was medically examined, if he was not present at the spot and summoned later on. No mala fide was suggested to the doctor that he was in league with the complainant party to create such an evidence P.W.7 also medically examined Muhammad Zaman deceased in injured condition at 10-15 a. m. and found one entry wound and the other exit wound, who died later on and on the next day at 11-15 a.m. the post-mortem examination on the dead body of Muhammad Zaman deceased was conducted by Dr. Shabbir Hussain (P.W.8), who also fund one exit wound and other entry wound on the same locale which was noted by the doctor (P.W.7) at the time of the medical examination of the deceased Muhammad Zaman and described by complainant Muhammad Sharif (P.W.5). Muhammad Sharif complainant (P.W.5) was subjected to lengthy cross-examination but we find that he remained consistent with his previous statement regarding the time, place, and the manner in which the deceased had received injuries from the hands of the appellant who was armed with rifle.

14. Similarly, Muhammad Hanif (P.W.6) though had admitted that he was resident of Tibba Muhammad Nagar Kamonke and his place of residence was 1-1/2 Kms. away from the place of occurrence yet he explained his presence at the spot that he was serving as labourer with the deceased and he used to come to the Nursery sometimes at 8-00 a.m. and sometimes at 11-00 a.m. Hence, his presence at the spot at 10-00 a.m. was quite natural. He was also subject to lengthy cross-examination but to dispute his presence at the spot nothing could be gained by the defence and his presence at the spot at the time of occurrence stood established beyond any shadow of doubt. He had also given the details of the incident. P.W.6 also claimed that he and other witnesses had overpowered the appellant at the spot, who then was confined, in a room in the office of Deputy Director Agricultural. According to him, the lock was opened on the arrival of the Investigating Officer at the time of his first visit at the place of occurrence. The factum of arrest of the appellant at the spot in duly mentioned in F.I.R., which provides independent corroboration to the ocular account that the appellant had committed this occurrence. The weapon of offence used by the appellant was also taken into possession by Muhammad Sharif complainant and the same was presented before the Investigating Officer on the same day.

15. After perusal of the statements of both the eye-witnesses we have no hesitation in relying upon their statements and also to hold that, they while present at the spot had witnessed the occurrence. Both the eye-witnesses admittedly had no previous ill-will, grudge or enmity to falsely implicate the appellant in the present case as according to the defence version there was no civil or criminal litigation pending between the parties and both the eye-witnesses were independent witnesses, who had succeeded in proving that they were present at the time of incident and we see no reason for disbelieving their statements as there does not appear any reason for substitution of the appellant by letting off the real culprit, if the appellant had not committed the said offence, who even otherwise was apprehended at the spot. The empty was also recovered from the spot which was sent to the office of Forensic Science Laboratory and according to its report (Exh.PP), it had matched with the rifle. The argument of the learned counsel for the appellant that report of 'Forensic Science Laboratory cannot be relied upon as the empty and weapon of offence were sent to the office of Forensic Science Laboratory jointly the same day is repelled as the empty was recovered along with the weapon of offence which could be sent on the same day and no illegality was committed. Even otherwise, the prosecution had no motive to falsely implicate the appellant by concocting false story and also fabricating recovery from the appellant. In such circumstances, we find that report of Forensic Science Laboratory (Exh. PB) fully corroborates the ocular account and it is strong circumstances against the appellant as well. On the other hand, the medical evidence also fully supports the ocular account.

16. So far as the motive set up by the prosecution is concerned, it was alleged by Muhammad Sharif complainant (P.W.5) while according his statement under section 154, Cr.P.C. that he had a: suspicion that the deceased had drowned his son in the canal. Though both the complainant and the appellant claimed that the said matter was settled subsequently and on account of compromise the suspicion was removed, yet it cannot be said that the appellant had no motive against the deceased. Even otherwise; the motive is always hidden in the minds of the accused and it cannot be expected that in each case the witness must have knowledge thereof. The intention of the appellant was clear, who had come at the place of incident while armed with rifle which was his licensed weapon and had fired at the deceased on his head, which crossed through and through. It does not appeal to mind that when the previous matter regarding drowning of the appellant's son was already patched up, the complainant could have falsely implicated the appellant in the present case only due to some money dispute with the appellant by letting off the real culprit of committing Qatl-i-Amd of his son. On the other hand the appellant could be expected to have nourished grudge against the deceased due to his aforesaid suspicion against him. As such the prosecution had established the motive, which further corroborated' the ocular account.

17. In view of above discussion we have no hesitation in holding that the prosecution had been able to bring home guilt to appellant beyond any shadow of doubt for committing Qatl-i-Amd of Muhammad Zaman deceased and causing of injuries to Muhammad Sharif complainant (P.W.5). We do not find any mitigating circumstances for awarding lesser sentence to the appellant by withholding the normal penalty of death provided by the Statute for such an offence. The appellant had caused single fire shot on the head of the deceased, which proved fatal and the appellant cannot be benefited solely for the reason that he had achieved his goal by making single shot. Hence, the impugned judgment of convictions and sentences recorded by the learned trial Court is maintained, the death sentence awarded to Muhammad Arif appellant is confirmed and this criminal appeal being devoid of any merit is dismissed.

18. Murder Reference No.600 of 2000 is answered in the affirmative and the sentence of death passed by the learned trial Court against Muhammad Arif appellant is hereby confirmed. H.B.T./M-316/L????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.