2006 PLP 1387 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Sultan Mehmood son of Sher Afzal convict has filed this petition through Superintendent Central Jail, Rawalpindi seeking leave to appeal against the judgment, dated 6-6-2005 of a learned Division Bench of Lahore High Court, Rawalpindi Circuit, whereby his appeal was dismissed, the death sentence awarded to him by learned Additional Sessions Judge, Rawalpindi vide judgment, dated 12-9-2000, was maintained and murder reference under section 374, Cr.P.C. was answered in the affirmative.

2. The petitioner stood convicted under section 302, P.P.C. and sentenced to death. He was also convicted under sections 324/337-F(i)/ 337-F(iii), P.P.C. and sentenced to imprisonment for ten years, three years and one year respectively, in addition to a compensation of Rs.2,00,000 (Rupees two lac) to be paid to the legal heirs of the deceased and to the injured prosecution witnesses, in equal shares.

3. The background is given in F.I.R. 185 dated 3-3-1998 of Police Station Wah Cantt. District Rawalpindi, lodged by Mst. Rafia Begum, the wife of convict Sultan Mehmood. Mst. Rafia Begum had previously been married to one Abdul Hameed, the union having resulted into the birth of two sons and two daughters. Five to six years prior to the occurrence she got divorced and joined service in Pakistan Ordnance Factory Hospital. She started residing in House No.25-G/69 Wah Cantt. along with one daughter and two sons.

4. About four years prior to the occurrence she married Sultan Mehmood convict, a colleague in the hospital who already was married and had children living in House No.25-G/63, Wah Cantt. As desired by Sultan Mehmood, she got her daughter Mst. Nagina Bibi married. For the last about six months Sultan Mehmood ousted her son Aamer Shahzad from her house.

5. On the day of occurrence (3-3-1998), she, after duty hours, was present in the hospital gate when her son Aamer Shahzad and her son-in-law Allah Ditta came there. They all started for the house and reached there at 1430 hours to find her husband Sultan Mehmood and her younger son Tamour Shahzad already present. When Sultan Mehmood saw Aamer Shahzad and Allah Ditta, he started hurling abuses at them as to why they had come to that house. This resulted into scuffle between Aamer Shahzad and Allah Ditta on the one hand and her husband Sultan Mehmood on the other. Mst. Rafia Begum managed to separate them and thus, Sultan Mehmood left for the house where his first wife resided. He returned after some time duly armed with a .12 bore shotgun. Aiming the gun at Aamer Shahzad, Tamour Shahzad and Allah Ditta, he fired a shot that hit at the chest of Tamour Shahzad while the pallets injured Aamer Shahzad and Allah Ditta, standing close by. The accused ran away from the spot. On the hue and cry of the complainant lady, people from Muhallah got attracted with whose help she took her injured son Tamour Shahzad to POF Hospital where he succumbed to the fatal injury. Motive for the occurrence is that Sultan Mehmood did not like Aamer Shahzad and Tamour Shahzad, the sons of complainant to live with her in her house. Shaukat Ali, Sub-Inspector along with other police party reached the hospital where the aforesaid F.I.R. was registered after one hour and thirty minutes.

6. The accused during his statement under section 342, Cr.P.C. pleaded innocent, saying that all the witnesses were closely related inter se and had falsely involved the accused because divorce was demanded for Mst. Rafia Begum which was refused by him.

7. The occurrence has taken place in the residential house of Mst. Rafia Begum after the close of duty hours. P.W. Allah Ditta is the son-in-law of the complainant lady while Aamer Shahzad and deceased Tamour Shahzad are her sons living with her in that very house. The presence of all the four on the spot is most natural phenomena and hence the three eye-witnesses Mst. Rafia Begum, Aamer Shahzad and Allah Ditta are the natural witnesses. One has no reason to doubt their presence. P.W. Aamer Shahzad and P.W. Allah Ditta both are provenly injured, by pallets from a .12 bore shotgun. Being injured witnesses, their presence is all the more fortified.

8. Without abandoning anyone, the prosecution has examined all the three eye-witnesses against the appellant. They have been consistent throughout in supporting the facts having already been narrated in the F.I..R. which, in the given circumstances, was the most promptly lodged report. Any chances of false involvement, concoctions and deliberations are altogether excluded. The testimony could not be shattered at all in the cross-examination. We are satisfied that the case of prosecution is squarely proved by the mere examination of as many as three eye- witnesses who were most natural and out of whom two were injured bearing the marks of occurrence on their person. The testimony, the status and credibility of the eye-witnesses is such that it does not even need corroboration. No doubt they are related to the complainant as well as the deceased but the convict Sultan Mehmood equally carries the status of being the husband of Rafia Begum, complainant and the stepfather of Aamer Shahzad and the stepfather-in?law of Allah Ditta. But for the murder of Tamour Shahzad, the witnesses have no enmity whatsoever with the accused to the extent of involving him in an offence of capital charge. The two Courts have rightly believed such evidence which, at the first instance, does not require corroboration.

9. The convict has taken the plea that Mst. Rafia Begum demanded divorce, which was refused by him and hence, because of such ill-will, he was falsely involved. To us, it sounds not only unnatural but also ridiculous. If the complainant lady and her sons wanted to get rid of the convict, it could very well have been done by asking for divorce through legal process. It does not appeal to reason that Tamour Shahzad was murdered by somebody else who was spared to go scot-free and Sultan Mehmood was dishonestly involved merely because lady wanted a divorce. The risk involved in the substitution is too high to be true. The accused has failed to prove any demand of divorce by or on behalf of the lady.

10. In a case supported by as many as. three natural eye-witnesses including the two injured, one does not normally require corroboration and conviction can be based solely on such testimony. When we say that conviction can be based on the testimony of three eye-witnesses without corroboration, it is only with reference to a principle of appreciation of evidence in criminal justice and it does not at all mean that, in the present circumstances, there is no corroboration.

11. The ocular. testimony is fully supported by post-mortem report indicating pallet injuries on the front chest area of deceased Tamour Shahzad. It is further supported by the medico-legal reports of Aamer Shahzad (P.W.10) and Allah Ditta (P.W.11) who have sustained injuries that could well be caused by natural spread of pellets. The distance involved between the assailant and the victims is again relevant in connection with the spread of pellets, seen in view of the site plan where the three victims are standing next and close to each other.

12. Further corroboration is sought from the gun recovered at the instance of the accused and the empty of .12 bore that matched with the gun and was fired therefrom.

13. The convict never denied in his statement under section 342, A Cr.P.C. in specific, that at the day, time and place of occurrence, he was not present at all. The plea of divorce is totally uncorroborated as well as fake. The occurrence also has not taken place at the spur of the moment because on the spot the accused and the victims had grappled with each other and were separated by the wife of the accused. The matter had ended up there and then but the accused went to his house and again arrived at the spot by fetching a shotgun. His second appearance with shotgun is a clear indicator of his premeditated design. The motive, because of previous occurrence on the spot, seems to have aggravated and he attempted to eliminate, may be, Aamer Shahzad whom he had already turned out of the house of his second wife. The shot hit Tamour Shahzad instead which, by all means is a murder of the first degree.

14. In the instant case, the petitioner is the single accused charged by his own wife where the possibility of substitution, in the circumstance, is highly improbable. The instant prosecution version initiated by the eye-witnesses is fully supported by independent evidence as well as strong attending circumstances, including the motive.

15. After having thoroughly gone through the case record, we are convinced that the prosecution has successfully brought home the guilt to the petitioners' doorstep. It was a case of premeditated murder and hence required the imposition of normal penalty of death. There being no force in the petition, it is hereby dismissed and leave to appeal refused. M.B.A./S-39/SC????????????????????????????????????????????????????????????????????????????????? Petition dismissed.