2005 PLP 1431 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Petitioner Muhammad Yaqub was tried for the murder of Hafiz Muhammad Latif (F.I.R. No.45 of 1996 registered on 28-4-1996 at Police Station Kirana, District Sargodha under section 302, P.P.C.) and vide judgment, dated 2-10-1997 he was convicted under section 302, P.P.C. by Sessions Judge, Sargodha and sentenced to death with a fine of Rs.25,000 and in case of default in payment of fine to undergo further imprisonment for two years. He was also burdened with compensation of Rs.20,000 to be paid to the legal heirs of deceased under section 544-A, Cr.P.C. His appeal was dismissed by a Division Bench of the Lahore High Court vide judgment, dated 19-2-2004 but the sentence of fine was set aside being not warranted in law. Through this petition leave is sought against the afore-referred judgment.

2. Facts as alleged in the F.I.R. registered on the statement of Mst. Manzoor Fatima (P.W.8) widow of Hafiz Muhammad Latif (deceased) are that her deceased husband was Imam Masjid, that one Shakil Ahmad and his mother Mst. Naziran Bibi used to live in the house adjacent to the Mosque, as the former was working as Khadim in the Mosque, that latter's mother namely Mst. Naziran Bibi was a woman of bad character and had developed illicit relations with Muhammad Yaqub petitioner. On that account, according to the complainant her husband had forbidden the petitioner/convict from visiting the house of Shakil Ahmad which was disliked by Muhammad Yaqub and a few days prior to the occurrence the latter had threatened her husband to kill. The issue of Naziran's character engaged the attention of the respectables of the village and they expelled both Shakil and his mother from the village. On the fateful day and time when the husband of the complainant Hafiz Muhammad Latif after having led the prayers in the Mosque came out and was standing at the western corner of the Chowk, the complainant and her son Abdul Ghaffar were standing in front of their house, suddenly Muhammad Yaqoob petitioner armed with .12 bore gun came at the spot and after raising Lalkaras fired a short at her husband which hit him on the upper part of his right arm. This was followed by a second shot which hit him on his chest. P.Ws. Muhammad Hussain and Naveed Ahmad were attracted to the spot. In the meanwhile Muhammad Yaqub who had come from the side of Khurshid Anwar's house decamped from the spot and entered the house of said Khurshid Ashraf. Hafiz Muhammad Latif succumbed to the injuries and died at the spot.

3. During trial the prosecution produced 12 witnesses including the doctor and the Investigating Officer. The accused when examined under section 342, Cr.P.C. denied the prosecution case and attributed false implication due to enmity. P.W.8 Mst. Manzoor Fatima and P.W.9 Muhammad Hussain furnished the ocular account.

4. Learned counsel for the petitioner sought leave to appeal on the ground that it was an unwitnessed occurrence, that the ocular account of prosecution evidence consists of interested witnesses i.e. wife of the deceased and Muhammad Hussain who was close to the complainant party and it is in evidence that he and the petitioner/convict had strained relations. He further submitted that the medical evidence belies the ocular account inasmuch as; as per the ocular account only two shots were fired whereas as per Dr. Muhammad Yousuf P.W.10 there were three entry wounds. He further contended that although the prosecution relies on the report of Forensic Science Expert, according to which one empty was found wedded with the gun recovered at the instance of the petitioner but there is no evidence to show that the empty was taken to the Forensic Science Expert by any official.

5. We have gone through the evidence on record, the impugned judgment and have given anxious considerations to the submissions made by petitioners learned counsel.

6. The occurrence as per the F.I.R. took place at 7-30 p.m. and the report was lodged at 9-00 p.m. Keeping in view the distance between the police station from the place of occurrence (7 kilo meters) and the fact that the head of the family of the complainant was murdered the F.I.R. was lodged without unnecessary delay. The complainant narrated the graphic details of the occurrence, which were corroborated by P.W.9 Muhammad Hussain. Both these witnesses were subjected to lengthy cross-examination but they remained consistent on all material particulars i.e. the time of the occurrence, the manner of attack and the receipt of injuries by the deceased.

7. The learned counsel for the petitioner attempted to demolish the report of the Forensic Science Expert with reference to the statements of P.W.2 Muhammad Ayub and P.W.7 Muhammad Ali. He contended that as per P.W.7 he handed over parcels containing crime empties to Muhammad Ali constable on 7-5-1996 whereas Muhammad Ali P.W.7/while appearing as witness has not mentioned having received the parcel containing empties and delivery thereof to the office of Forensic Science Expert. It is true that P.W.7 did not mention that he received the parcel containing the empties but a careful look at the report of Forensic Science Expert Exh.P.L. would show that in the first column of the said report there is an endorsement that on 8-5-1996 and 30-5-1996 two crime-empties of .12 bore gun and one double barrel shot gun of .12 bore were brought to the office by Muhammad Ali 414/C and Sher Ali No.450/C respectively. A presumption of truth is attached to these entries and unless the said presumption is rebutted the entries made cannot be disbelieved. Not to speak of leading any evidence, petitioner never challenged these entries during the trial. In the face of this documentary evidence and the statement of P.W.2 Muhammad Ayub it appears that P.W.7 Muhammad Ali made a dishonest concession by withholding the fact that he had delivered the parcel to the office of Forensic Science Expert. The report of this office (Exh.P.L.) corroborates that the empty recovered from the spot was fired from the gun recovered at the instance of the petitioner.

8. In the aforereferred circumstances we are of the considered view that the finding of conviction upheld by a Division Bench of Lahore High Court is unexceptionable and no interference is warranted. No question of law of public importance has been raised either. In these circumstances the petition fails and is dismissed accordingly. Leave refused. M.H./M-279/S Leave refused. ***