2012 PLP 593 (SCMR)

IJAZ AHMED CHAUDHRY, J.

This criminal appeal with leave of the Court is directed against the judgment dated 8-7-2009 passed by the Lahore High Court, Lahore, whereby Criminal Appeal No.777 of 2004 filed by the appellant was dismissed, however, sentence of death awarded by the Additional Sessions Judge, Sargodha under section 302, P.P.C. was altered to life imprisonment with benefit of section 382-B, Cr.P.C. Compensation of Rs. one lakh as ordered by the trial Court was maintained.

2. Appellant Muhammad Aslam along with two others had faced trial in a case F.I.R. No.169 dated 5-8-2003 registered at 7-00 a.m. with Police Station Shahpur Saddar, District Sargodha under section 302/109, P.P.C. on the application of Haq Nawaz (PW-6) for the incident which took place on the same day at 5-30 a.m. in Jehanabad, six miles from Police Station Shahpur Saddar.

3. Brief facts as stated by the complainant are that 40/42 years ago Mst. Zenab (paternal aunt of the complainant) contracted marriage with Ghulam Jillani and for the last about three years her whereabouts were not known to any one as she had left the house of her husband due to differences. Statedly Muhammad Aslam and Muhammad Akram both sons of Mst. Zainab Bibi and Ghulam Jillani accused suspected that she had been removed from the scene by Muhammad Nawaz deceased. On 5-8-2003 at about 5-30 a.m., complainant Haq Nawaz along with Ahmed Nawaz and Shaukat Iqbal P.Ws. was present at his plot when Muhammad Aslam armed with mouser also came there and while raising lalkara to teach a lesson to Muhammad Nawaz deceased for not disclosing the whereabouts of his mother, fired at Muhammad Nawaz which hit him on the chest who fell down, thereafter he also gave a blow with the butt of mouser at the back side of the right hand of Muhammad Nawaz. Muhammad Nawaz succumbed to the injuries at the spot.

4. After completion of investigation challan was submitted to the trial Court. The appellant and his co-accused were charge sheeted to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as 12 P.Ws. After closure of prosecution evidence, statements of accused persons were recorded under section 342, Cr.P.C. in which they pleaded not guilty and claimed trial. After conclusion of trial and hearing learned counsel for the parties, the learned trial Court acquitted co-accused Ghulam Jillani and Muhammad Akram while convicted the appellant Muhammad Aslam under section 302, P.P.C. and sentenced him to death with direction to pay Rs.1,00,000 (Rupees one lakh) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default to undergo further SI for six months. Benefit of section 382-B, Cr.P.C. was given to the appellant.

5. Criminal Appeal No.777 of 2004 was filed by the appellant Muhammad Aslam which had been dismissed by a learned Division Bench of the Lahore High Court, Lahore vide judgment dated 8-7-2009, however, sentence of death was altered to life imprisonment. Compensation of Rs. one lakh as ordered by the Trial Court was maintained. Against the said judgment Jail Petition No. 630 of 2009 was filed before this Court in which leave to appeal was granted on 9-9-2009.

6. Learned counsel for the appellant has contended that the eye-witnesses were not present at the spot and had made false statements; that there was no occasion for the P.Ws. to have seen the occurrence; that both the eye-witness have failed to show their presence at the spot and that the recovery was useless as the crime empty and the pistol of .30 bore were sent to the Forensic Science Laboratory for Expert Report with a considerable delay as the same were received in the office of FSL, Lahore on 27-9-2003. In the end learned counsel for the appellants submitted that the prosecution had failed to prove its case against the appellant beyond reasonable doubt, therefore, he may be acquitted. On the other hand, learned Additional Prosecutor-General has opposed the appeal on the ground that eye-witnesses were independent and their presence at the spot had been established beyond any shadow of doubt; that the prosecution had proved its case beyond any shadow of doubt and the conviction and sentence awarded to the appellant may be maintained as the learned High Court had already taken a lenient view in reducing the sentence from death to life imprisonment.

7. We have heard learned counsel for the parties and have perused the record. Incident in the present case had taken place at 5-30 a.m. when the complainant Haq Nawaz son of Muhammad Nawaz (deceased) was present along with his father Muhammad Nawaz at their plot and all of a sudden appellant while armed with a mouser came there and raised lalkara and fired at the deceased. According to the prosecution the matter was reported to the police immediately and F.I.R. was recorded at 7-00 a.m. Postmortem, according to the prosecution, had been conducted by Dr. Sahabzada Nadeem-ur-Rasool, Medical Officer, THQ Hospital, Shahpur Sadar on the same day at 10-00 a.m. which shows that the postmortem was conducted without any delay which fact also supports that the F.I.R. was recorded with promptitude and no time was left with the prosecution to concoct a false story. In the present case ocular version has been furnished through the statement of P.W.6 Haq Nawaz who is real son of the deceased Muhammad Nawaz and P.W.7 Ahmad Nawaz, the other eye-witness who is cousin of the complainant. So, both the eye-witnesses are closely related with each other and with the deceased inter se but mere relationship is not sufficient to term them as interested witnesses as there was no previous enmity between the parties. Both the eye-witnesses are residents of the same village where the incident took place and their presence at the spot has been established beyond any shadow of doubt. Both the eye-witnesses had made consistent statements against the appellant that he came at the spot duly armed with mouser and fired at the deceased. Appellant is real nephew (Bhanja) of the deceased who had murdered his maternal uncle. Both the eye-witnesses are also closely related to the appellant. A specific role of firing has been attributed to the appellant and there is no reason to falsely implicate the appellant by the eye-witnesses if he has not committed the offence. In the above circumstances and the close relationship of the appellant with the deceased and the P.Ws., involvement of appellant falsely, who is single accused, is a rare phenomena. Thus, there is no reason for discarding the prosecution evidence. Both the eye-witnesses were subjected to lengthy cross-examination but the defence had failed to gain anything. Rather there is no motive to falsely implicate the appellant if he had not committed the murder of deceased. The motive part is almost admitted by the appellant himself that his mother Mst. Zainab Bibi who was real sister of the deceased was missing for the last three years and there was suspicion in the mind of the appellant that she had been concealed somewhere by the deceased. This is an admitted fact and while answering question No.4 the appellant had stated that Mst. Zainab was missing and that she was abducted by Rabnawaz P.W. with the help of other persons. It has been argued by the learned counsel for the appellant that the deceased was involved in a number of cases. It is, however, observed that involvement of a person in criminal cases does not give a license to the general public to commit his murder.

8. In the above circumstances we find that both the eye-witnesses are consistent in their statements and the manner in which the incident had taken place. There is no contradiction in the statements of both the eye-witnesses on material points. Their statements are fully supported by the medical evidence. F.I.R. in the present case was recorded with a promptitude and in such circumstances prosecution has been able to prove the case against the appellant beyond any shadow of doubt.

9. Coming to the question of delay in sending crime weapon and crime empty, admittedly, the crime empty was recovered on the day of incident and the crime weapon was recovered on 15-8-2003. It appears that the same were, however, received in the office of Forensic Science Laboratory on 27-9-2003 with considerable delay but such delay shall not in the facts and circumstances of this case, overweigh the ocular evidence found in line with and supported by the medical evidence. Reference in this behalf is made to Nizamuddin v. The State (2010 SCMR 1752).

10. In view of above facts and circumstances, we do not find it a fit case for interference, therefore, this appeal is dismissed being devoid of merit. M.W.A./M-9/SC Appeal dismissed.