2006 P Cr (PLP)

KHAWAJA MUHAMMAD SHARIF, J:

This judgment will dispose of Criminal Appeal No.708 of 2001 filed by Muhammad Anwar, appellant, who was convicted under section 302(b), P.P.C. and sentenced to death with further direction to pay Rs.50,000 as compensation, in default six months' R.I. The conviction and sentence was recorded by learned Sessions Judge, Lodhran vide judgment dated 24-9-2001. Murder Reference No.757 of 2001 for confirmation or otherwise of death sentence of convict appellant shall also be replied through this single judgment.

2. Occurrence in this case had taken place at 5 p.m. on 22-2-1999 within the revenue estate of Mauza Kundi which is at a distance of 3 kilometers from Police Station City Lodhran while the matter was reported to the police by Allah Bukhsh in the police station on the same day and formal FIR. R. Exh.P.G. was recorded at 5-45 p.m. by Muhammad Iqbal, S.-I.

3. Briefly stated the facts of the case are that Allah Bukhsh complainant (P.W.5) are five brothers; Allah Ditta, his elder brother, had entered into an agreement to sell one Kanal of land for a consideration of Rs.80,000 with Muhammad Rustam his younger brother (P.W.6); out of the settled consideration, Rs.40,000 had been paid and the remaining amount was to be paid at the time of attestation of mutation; the complainant was guarantor of said transaction; on 22-2-1999 at about 5 p.m., the complainant and Muhammad Rustam, his brother, went to Allah Ditta along with money and asked him to take the money and got enter the mutation; parlays were going on when Muhammad Anwar son of Allah Ditta armed with a pistol came there on a motorcycle and shouted that the transaction would not be allowed to be completed and a quarrel ensued between Muhammad Anwar on the one side and Allah Ditta, his father and Muhammad Rustam on the other side; on hearing the noise of quarrel, Muhammad Nawaz son of Sarwar Khan also attracted who too beseeched Muhammad Anwar but Anwar by taking out a pistol from his Dub fired a shot into the abdomen of his father Allah Ditta who succumbed to the injury at the spot. Accused Muhammad Anwar managed his escape by leaving the motorcycle. The motive alleged was that Muhammad Anwar had a grudge of selling the land to Muhammad Rustam.

4. Muhammad Iqbal, S.-I. (P.W.7) took over the investigation. He after registration of the formal F.I.R. Exh.P.G., went to the place of occurrence; prepared site plan Exh. P. t. ; prepared injury statement (Exh.P.C.) and inquest report (Exh.P.D.) in respect of dead body of deceased; motorcycle was also secured vide memo. Exh.P.H. and on 17-4-1999 upon information, Naka was arranged at Railway Station, the accused was coming along with the railway track and when he saw the police, he ran away and threw the pistol which was taken into possession vide memo. Exh.P.F. After completion of all the formal investigation, the accused was sent to face the trial.

5. At the trial, prosecution in order to prove its case produced seven witnesses in all. The eye-witness account was furnished by Allah Bukhsh and Rustam, P.Ws.5 and 6 respectively. Dr. Altaf Ahmad Khan P.W.1 conducted post-mortem examination on the dead body of deceased. The learned D.D.A. closed the case of prosecution and thereafter the accused in his statement under section 342, Cr.P.C. pleaded innocence and in his defence produced 2 D.Ws . After conclusion of the trial, the accused was convicted and sentenced as stated above.

6. Learned counsel for the appellant after having read the prosecution evidence and statement of the appellant under section 342, Cr.P.C. submits that appellant has been falsely implicated in this case rather he has been made a scapegoat. Further submits that there is conflict between ocular account and the medical evidence inasmuch as according to eye-witnesses, the accused fired the shot from a distance of 2 feet while according to the doctor who conducted post-mortem examination on the dead body of the deceased, the shot was fired from a distance of 20 feet. According to learned counsel, the Investigating Officer while getting the site plan prepared has changed venue of the occurrence. Next submits that it is a case of two versions and if both the versions are put in juxta position, the version of the appellant seems to be more probable and rings true. Learned counsel lastly submits that two legal heirs namely, Muhammad Asghar and Mst.' Nasreen Bibi, D.Ws.1 and 2 of the deceased have compounded the offence with convict appellant and this composition coupled with the fact that it is a case of single shot, the death sentence is not called for and by taking these factors to be extenuating, the sentence may be converted to imprisonment for life.

7. On the other hand, learned counsel for the State submits that appellant is named in the F.I.R. with specific role; he is real son of the deceased so there was no question of mistaken identity and that the eye-witnesses being related to appellant and the deceased, there was no question of false implication. Further submits that occurrence having taken place in the Haveli, presence of the eye-witnesses being inmates was natural. With regard to submission of learned counsel for the appellant that the appellant acted in exercise of right of self-defence, learned counsel submits that the appellant did not receive even a single scratch on his body so the defence is merely a bald assertion of the appellant and is afterthought.

8. We have heard learned counsel for the parties at length and have gone through the record with their able assistance. Before proceeding any further, first of all we would like to highlight the relationship of the deceased with the appellant. Allah Ditta the deceased is real father of Muhammad Anwar, appellant. In the instant case, the occurrence had taken place at .5 p.m. on 22-2-1999 within the revenue estate of Mauza Kundi which is at a distance of 3 kilometers from Police Station City Lodhran while the matter was reported to the police by Allah Bukhsh in the police station on the same day and formal F.I.R. Exh.P.G. was recorded at 5-45 p.m. by Muhammad Iqbal, S.-I. So it is a case of promptly lodged F.1.R. and there is no element of deliberation and consultation. Three persons namely Allah Bukhsh, Rustam and Muhammad Nawaz were cited as eye-witnesses in the F.I.R. Muhammad Nawaz expired before commencement or the trial, as such; he was given up by the prosecution. Allah Bukhsh appeared as P.W.5 while Rustam as P.W.6. They both are real brothers of deceased Allah Ditta. Both these A P.Ws. have fully supported the case of prosecution and the defence despite lengthy cross-examination could not create any dent in the prosecution story narrated by these two eye-witnesses. The occurrence admittedly having taken place in the house of Rustam, P.W. he was the most natural witness of the occurrence. He had no ill-will or motive to falsely implicate the appellant who is none else but his real nephew. The ocular account furnished by two eye-witnesses is fully corroborated by medical evidence inasmuch as according to the doctor (P.W.2) who conducted post-mortem examination on the dead body of the deceased, there was a fire-arm injury on the front and middle of abdomen of the deceased. The occurrence had taken place at 5 p.m. on 22-2-1999 and the post-mortem examination was conducted at 8 a.m. on 23-2-1999. The duration given by the doctor between death and post-mortem to be within 24 hours also fits in with the time of occurrence given by the prosecution. Now, we take up the defence version of the appellant which he has coined up while giving reply to question No.6 "why this case against you and why the P.Ws. have deposed against you". For the just decision of the controversy, the same is reproduced:-- "I am falsely involved in this case. In fact it was agreed that Zareena the daughter of Mst. Janat would be married with me but subsequently, I refused to marry Zareena due to which relation of my family including my father became strained in all brothers and sisters. Thereafter, my marriage was settled and my father Allah Ditta deceased also went to Allah Bukhsh and Rustam P.Ws. and other brothers and sisters for compromise and to invite them to attend my marriage but they refused to attend my marriage and on the day of occurrence, guests started coming to our home but Allah Bux insulted them. Due to the said insult of Allah Bux the hot words were exchanged between me and Allah Bux at the shop of Abdul Majid and thereafter Allah Bux came to the house while I went to the shop and after some time when 1 came home Rustam, legal, Altaf, Mushtay and other women caught hold of me and started giving beating to me with Sotas and upon alarm Allah Ditta and my mother attracted to the spot to rescue me but Rustam P.W. took out pistol and fired upon Allah Ditta when he was trying to rescue me. I have been involved falsely in this case since the P.Ws. want to usurp the land left my father and our land is still in their possession and everything belonging to us is in the possession of the P.Ws." The defence set up by the appellant in the above quoted reply is that he was given beating with Sotas by more than five persons at the time of occurrence but there is nothing on the record that the appellant was ever got medically examined or there was even a scratch on his person. None amongst the guests who have allegedly come to participate in the marriage ceremony of the appellant has been produced to support B the version of the appellant. The two D.Ws. produced by the appellant to support his defence version are real brother and sister of the convict appellant. It is important to note that they both have compounded the offence with the appellant, so ever otherwise their statements are not worthy of credence. The defence plea therefore, is ruled out or consideration. So far as compromise is concerned, we may state that admittedly the deceased Allah Ditta was survived by Muhammad Anwar (appellant), Muhammad Asghar, brother (D.W.1), Mst. Nasreen Bibi (D.W.2) sister and Mst. Perveen, the minor sister. Both Muhammad Asghar and Mst. Perveen Bibi had compounded the offence after waiving their right of Qisas and Diyat but the minor daughter remains in the field and admittedly no Diyat amount falling to her share has been deposited. So it is a partial compromise having not been entered into by all legal heirs of the deceased and such a compromise cannot be blessed by the Court. The occurrence had taken place in the month of February, 1999 and the appellant was arrested on 20-10-1999 so he also remained, fugitive from law for long eight months. This also lends support the guilty conscience of the appellant. After having analyzed the case of prosecution as also of the defence, we are of the considered opinion that it was the appellant who committed the intentional murder of his real father in broad-daylight in a callous manner. The appellant seems to be an unscrupulous person. He does not deserve any leniency in the quantum of sentence. Resultantly, the appeal filed by Muhammad Anwar, appellant is dismissed. The conviction and sentence recorded against him by the trial Court vide impugned judgment is maintained in toto. The death sentence of Muhammad Anwar appellant is confirmed and Murder Reference is answered in the affirmative. H.B.T./M-179/L????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.