2006 PLP 664 (SCMR)

TANVIR AHMED KHAN, J.

This appeal with leave of the Court is directed against the judgment, dated 5-11-2002 whereby a learned Division Bench of the Lahore High Court, Lahore, dismissed Criminal Appeal No.120-J of 1996 filed by the appellant and the Murder Reference No.16 of 1997 sent by the trial Court was answered in the affirmative by confirming his death sentence. F.I.R. No.372 was got recorded at the instance of Muhammad Yaqoob (P.W.4) on 3.12-1993 at Police Station Nekaputa, Sialkot, at 5-45 a.m. for an occurrence stated to have taken place at 2-30 midnight. It was his case that on the fateful night he along with his wife Mst. Sharifan Bibi was sleeping in the Verandah of his house and an electric bulb was on. At about 2-30 a.m. the appellant woke him up and placed a pistol at his temporal region. He was identified by the complainant, in the light of electric bulb. The complainant tried to apprehend the appellant whereupon he inflicted Butt blows on his head with his pistol. Hearing the shrieks, his wife Mst. Sharifan Bibi, who was sleeping nearby, woke up and she too tried to apprehend the appellant who started indiscriminate firing on her person. The complainant also sustained fire-arm injuries at the hands of the appellant. On the hue and cry raised by them Muhammad Rafique (P.W.) and Muhammad Asif (given up P.W.) were attracted to the spot, who succeeded in overpowering the appellant along with the incriminating weapon. The complainant's wife Mst. Sharifan Bibi died at the spot due to the injuries suffered by her while the complainant, in an injured condition, was removed to the hospital. The motive behind the occurrence as alleged in the P.J.R. was that 2-3 days earlier to the incident the deceased lady had reprimanded the appellant from blowing "Patakhas" on which there took place an altercation between both of them but the respectables of the locality separated them. The appellant threatened her of dire consequences. After usual investigation the challan against the appellant was submitted in the Court. The prosecution, in order to establish its case, produced 12 witnesses. The ocular version had been furnished by Muhammad Yaqoob (P.W.4) who too got injuries during the course of occurrence at the hands of the appellant. Muhammad Rafique (P.W.5), who was having a common wall being neighbour, was attracted to the place of occurrence along with given up witness Muhammad Asif had corroborated his stance. The medical account in this case was furnished by Dr. Aqeel-ur-Rehman (P.W.10) who conducted the autopsy of the deceased on 3-124993 and found the following injuries on her person: External injuries (1) Two lacerated penetrating wounds of about 3/4 can. in diameter each on the sole of left foot. Wound was bone deep. Dissection of the wound from sole to dorsem, margins of the wound were inverted. Burning and blackening around the wounds were present. No exit wound. On dissection Pellets penetrated from sole to dorsem and fractured the bone behind the big toe of left foot and found inner aspect of left foot under the skin. Pellets removed, sealed and handed over to the police. (2) A lacerated penetrating wound of 3/4 c.m. in diameter on the left temporal region 3 c.m. in front of left car. Margins inverted. Blackening and burning around the wound present. No exit wound. On dissection Bullet penetrated the scalp, then fractured the skull bone. Under the wound (temporal bone), then piercing the brain membranes and brain tissues and was found in the posterior lobe of brain. Bullet found, sealed and handed over to the police. Two lacerated wounds about 3/4 c.m. one in diameter on the upper part of back of chest in between both scapular bones just below (0.5 can. below) of the neck. No exit wound. Bullets found under the skin. Bullet sealed, signed, handed over to the police. Other organs were healthy." P.W.10 also medically examined Muhammad Yaqoob (P.W.4) who received the following injuries on his person:-- (1) A lacerated wound 5 c.m. x 1 c.m. muscle deep on right side of head, 6 c.m. above from the right ear and 1 c.m. away from the hair line of the forehead. (2) A lacerated wound 6 can. x 1/2 x muscle deep 1.5 c.m. posterior to injury No.1 (on head). (3) A lacerated Y-shape wound 6 c.m. x 1 c.um x muscle deep 6 can. posterior to injury No.2 (on head). (4) A circular punctured wound 3/4 c.m. in dia depth not probed with averted margins 5 c.m. medial to acromial end of right clavical on top of right superior calvicular fossa. (5) A circular punctured wound 1/2 c.m. in dia depth not probed with inverted margins 0.3 c.m. below the injury No.4. (6) Swelling around the injuries Nos.4 5 and 6 c.m. x 5 c.m. corresponding hole through the injuries Nos.4 and 5 were present on blood-stained white Kurti which was encircled, signed and handed over to the police through the party. After evaluating the entire material brought on record, the learned Additional Sessions Judge, Sialkot, through his judgment, dated 19-11-1996 convicted and sentenced the appellant as under:- (i) Under section 460, P.P.C. to undergo 10 years' R.I. and a fine of Rs.10,000 and in default of payment of fine' to further undergo one year's R.I. (ii) Under section 324, P.P.C. was convicted and sentenced to 10 years' R.I. and a fine of Rs.10,000 and in default thereof to further undergo one year's R.I. (iii) Under section 337-A(i), P.P.C. to two years' A.I. and also to pay Daman of Rs:10,000 to be paid to Muhammad Yaqub complainant and in default to further undergo six months' R.I. (iv) Under section 337-F(ii), P.P.C. to two years' R.I. and a Daman of Rs.10,000 to be paid to Muhammad Yaqub complainant and in default to further undergo six months' R.I. and (v) Under section 302(b), P.P.C. Muhammad Akram appellant was convicted and sentenced to death as Ta'zir and to pay Rs.20,000 as compensation to the legal heirs of the deceased and in default to further undergo R.I. for six months. The appellant preferred an appeal before the Lahore High Court, Lahore, assailing the aforesaid judgment of the trial Court, while the latter Court sent the aforesaid Murder Reference for confirmation or otherwise of the death sentence imposed upon the appellant. A learned Division Bench of the Lahore High Court through its judgment, dated 5-11-2001, impugned herein, confirmed the sentence of death of the appellant by answering the murder reference in affirmative. Hence, this appeal with leave of the Court. We have considered the contentions advanced by the learned counsel for the parties and have gone through the entire material placed on record with their assistance It is reflected from the perusal thereof that in the present case F.I.R. was recorded with promptitude. The occurrence is stated to have taken place at 2-30 a.m. (midnight) while the F.I.R. was got recorded at 5-45 a.m. with detailed role of the appellant. His apprehension along with the incriminating weapon had also been mentioned therein. The ocular account in this case has been stated in its material particulars by Muhammad Yaqoob (P.W.4) who also sustained six injuries on his person during this unfortunate incident. His presence at the spot cannot be doubted. His version gets ample support from the testimony of Muhammad Rafique (P.W.5) whose presence at the place of occurrence, being a neighbour having common wall, was also natural. The appellant was arrested from the spot with incriminating weapon. Even the witnesses produced by the appellant had admitted his apprehension from the place of occurrence although they had given different versions saying that the appellant just went there to find out the cause of the occurrence etc. The motive in the case in hand has been established beyond doubt and even it has come from the mouth of the defence witnesses who too had deposed that 3-4 days prior to the occurrence, an altercation took place between the deceased lady and the appellant on the blowing of "Patakhas". The plea of the learned counsel for the appellant that the empties were recovered from the spot but the same were not sent to the expert would not change the fate of the case in presence of confidence inspiring evidence, apprehension of the appellant from the place of occurrence with incriminating weapon and the motive coupled with medical evidence. The other plea of the learned counsel for the appellant, that the ocular version is not in line with the medical evidence as there is mention of word "pellets" during the course of dissection instead of "bullets" in the statement of the doctor, also does not carry any force. This point has been elaborately dealt with by the learned Judges of the Division Bench in paragraph 21 of their judgment, which is as under:- "(21) Last of all, the statement of P.W.10 Dr. Aqil-ur-Rehman needs deeper examination because he mentioned at trial that en dissection 'pellets' penetrating from sole to dorsem fractured the bone behind the big toe of left foot. The question arises that if the pistol was used in the commission of offence then wherefrom 'pellet' came. If in this regard evidence recorded in Urdu is examined it would look that there is reference of `bullets' and not pellets; meaning thereby, the use of the word pellet in English is nothing but the typographical mistake. Therefore, even on this point it cannot be argued that ocular account is belied by the medical evidence. Arguments advanced by the learned counsel for the appellant carries no force. We-have gone through the judgment, dated 19-11-1996 passed by the learned trial Court which calls for no interference and the same is upheld." The upshot of the above discussion is that the present appeal being devoid of any merit is dismissed. N.H.Q./M-839/SC????????????????????????????????????????????????????????????????????????????? Appeal dismissed.