2010 PLP 1676 (MLD)

MRS. SYEDA TAHIRA SAFDAR, J.

Instant appeal is a jail appeal wherein the convict is aggrieved of judgment dated 18-3-2009 of Additional Sessions Judge, Lasbella at Hub, whereby he has been convicted for the offence punishable under section 302(b), P.P.C., while sentenced to suffer imprisonment for life with fine of Rs.100,000 to legal heirs of deceased Haji Muhammad Ramzan in terms of section 545 Cr.P.0 and in case of default further suffer simple imprisonment for one year. It is contention of the appellant that he has no knowledge about commission of the offence, he being falsely involved in the case, no recovery of arms was effected from him, while no eye-witness is produced against him, rather interested witnesses have been produced. It is further his contention that the victim was his brother-in-law, while there was no previous enmity between them. Further, the complainant party had previous enmity with him; the deceased was residing with him on last seven days from the incident at his home at Wadh Khuzdar. Furthermore, the widow of the victim was ready to appear in the court from his (appellant's) side but the trial court refused the same, he was also not allowed to produce four witnesses. He has been involved in the case falsely. The appellant prayed for setting aside of the conviction order and his acquittal of the charge or reduction be made in the sentence. As per record an incident was reported on 19-11-2008 by one Gul Hassan with averments that his brother Muhammad Ramzan was got killed near his house situated at Jam Yousaf Colony at 9-00 a.m. by Khair Muhammad son of Khamiso and Iqbal son of Muhammad Aslam by making firing at him, who died at the spot due to firearms injuries. It was further alleged in the report that said Khair Muhammad, who was brother-in-law of the deceased, killed him on occasion of dispute existed between them in respect of proposal of marriage. F.I.R. No.207 of 2008 Police Station Hub City District Lasbella dated 19-11-2008 was lodged; nominating therein Khair Muhammad (present appellant) and lqbal son of Muhammad Aslam (absconding accused). The appellant was thereafter, arrested on 25-11-2008, while said Iqbal was not arrested and remained absconder. On completion of investigation the case was challaned to the extent of appellant. Charge was framed on 17-1-2009 for the offence of committing Qatl-e-Amd of Muhammad Ramzan by making firing at him with pistol along with co-accused, thus committed offence punishable under sections 302, 34, P.P.C. On his denial evidence was called. Ten witnesses appeared from side of prosecution, while in defence the appellant only produced two witnesses, but refused to record his own statement on oath. On completion of trial, the trial Court while finding him guilty of the charge punished him for the offence under section 302(b), P.P.C. thereby sentenced him for life imprisonment and fine of Rs.100,000 required to be paid to the legal heirs of the victim. Being aggrieved of the same instant appeal has been filed. The counsel for the appellant mainly contended that there is no recovery from the appellant, while there is contradiction in statements of the prosecution witnesses which are not considered by the trial court, nor benefit of the same was given to the appellant. While in rebuttal it is contention of State Counsel that appellant is nominated in F.I.R., while specific role has been assigned to him, further, motive is also established. As per appellant he has been falsely involved in commission of the offence due to previous enmity between him and the complainant party, who were unhappy with marriage of his sister with the victim Muhammad Ramzan. It is further his assertion that the victim was residing in his house at Khuzdar Wadh, for seven days before occurrence of incident. The victim being his brother-in-law having no enmity with him, while on the other hand the prosecution tried to establish that as there exists dispute in respect of engagement and solemnizing of marriage between the appellant and one Mst. Rubina, the marriage was allegedly not effected due to intervention of Muhammad Ramzan, the appellant feeling aggrieved of the same threatened him for dire consequences, thereafter killed him by making firing at him. The private witnesses appeared from side of prosecution tried to establish the above mentioned facts. P.W. Gul Hassan is the complainant also brother of the victim, while producing the written report exhibited as Exh.P/1-A, only stated that he got information about killing of his brother by one Noor Muhammad. He is not eye-witness, he, in his statement, did not depose about the alleged motive, rather in his report he has asserted that accused Khair Muhammad is brother-in-law of his brother (victim) who along with Iqbal killed him on occasion of dispute in respect of proposal for marriage. P.W.2 Mst. Shahnaz, is also not an eye-witness, rather she also deposed about existence of dispute between the parties. She is mother of said Mst. Rubina. According to her, her daughter Rubina was engaged with the appellant, who thereafter refused to marry him, while the appellant used to visit her house and demanded for effecting of marriage, further suspected that refusal was made due to intervention of victim Muhammad Ramzan. He (appellant) also advanced threats for killing the victim, if she failed to arrange marriage of her daughter with him. P.W.7 Muhammad Saleem son of victim is also not an eye-witness, but he stated about an occasion occurred on 16-11-2008 when appellant and co-accused visited their house, threatened them for dire consequences on occasion of allegation that his father was not allowing the marriage of Mst. Rubina to be held with the appellant. Only prosecution witness No.3 Noor Muhammad and Muhammad Anwar are the eye-witnesses of the incident. As per P.W.3 he along with Muhammad Anwar (P.W.4) were drinking tea at hotel, while the victim was standing at corner of the street, on noise of firing he saw appellant Khair Muhammad making firing on Muhammad Ramzan, while Iqbal was boarding on motorcycle. P.W.4 deposed that he along with Noor Muhammad P.W. were drinking tea on 19-11-2008 at Hotel, on noise of firing he saw that appellant was making firing on Muhammad Ramzan with pistol, while co-accused Iqbal was boarded on the motorcycle in ready position, both of them left towards west. The remaining prosecution witnesses are police officials recorded their statements in respect of proceedings held during course of investigation and submission of challan. Medical Officer Dr. Zahid Hussain appeared as P. W.9 confirming the unnatural death of the victim. P.W.6 Mahiwal Khan S.-I. deposed about the disclosure made by the appellant on his arrest, about commission of offence. According to him the appellant on 26-11-2008 disclosed that as his marriage with Mst. Rubina was not allowed by Mst. Shazia and Muhammad Ramzan, whereupon he along with co-accused planned to get rid of Muhammad Ramzan, on day of incident they reached at site, where victim was standing at end of the lane, whereby he fired at him 3/4 times, who got injured and fell down, while he along with co-accused left the site, he handed over the pistol to Iqbal, who went to Sakaran, while he himself went to his village Wadh. The appellant also made pointation of the site. To rebut the prosecution version the appellant took plea of his absence from the site. It has been suggested to the prosecution witnesses that at the time of incident he was at Wadh. He produced two witnesses in his defence. D.W.1 Muhammad Ismail stated that on 19-11-2008 in between 9/10 hours the appellant was sitting with him having tea at Wadh. While D.W.2 Abdul Ghani deposed that on 19-11-2008 the appellant was sitting with him in a vegetable shop situated at Wadh, when on phone he (appellant) received information about murder of his brother-in-law, on which he left. It is to be observed that a specific motive is asserted for commission of the offence, while on the other hand the appellant though not specifically denied the existence of said dispute between the parties, rather raised plea of his absence from the site at the time of incident. He claimed himself to be at Wadh, his native village. Though both the defence witnesses asserted presence of the appellant with them on day of incident without confirming presence of each other. Furthermore, the appellant asserted that there exists no enmity between him and the victim despite the same there is nothing on record that on receiving information about murder of his brother-in-law he went to his (victim's) house, to participate in his burial. Rather he was arrested from Wadh on 25-11-2008. Furthermore, in instant appeal the appellant asserted existence of previous enmity between him and brothers of the deceased, who being complainant falsely involved him in the case. But while one of them appearing as P.W. got recorded his statement, no such suggestion was made to him. Though in present case disclosure is alleged to be made by the appellant, while pointation of the site was also allegedly made by him, but the crime weapon is not recovered by the Investigation authorities. In the circumstances though the disclosure made by the appellant before police is of less value, but the eye-witnesses of the occasion, appeared as P.W.3 and P.W.4, fully implicated the appellant in commission of the offence, while there is no contradiction in statements of both the witnesses recorded before the court during trial. There is sufficient evidence against the appellant to implicate him in commission of the offence. Further, there is nothing on record from which it can be ascertained that the trial court restrained the appellant from producing evidence in his defence. The trial Court has properly assessed the material placed on record and also arrived to correct conclusion. The appellant has failed to establish any ground on basis of which interference can be made in the judgment impugned before this Court. As far as request of moderate reduction is concerned, as a lenient view is already taken by the trial Court, therefore, no further reduction is required in the matter. In view of above discussion the appellant has failed to make out any case in his favour, therefore, the appeal is hereby dismissed. The impugned judgment dated 18.3.2009 of Additional Sessions Judge, Lasbella is upheld. H.B.T./84/Q Appeal dismissed.