1992 PLP I2196 (MLD)

JUSTICE ABDUL MAJID TIWANA (MEMBER).‑‑This judgment shall deal with and dispose of the appeal of Qamar appellant, a convict in the murder case, as also the State appeal for the enhancement of his sentence, both arising out of the judgment, dated 13‑5‑1992, delivered by the learned Judge of Special Court for Speedy Trial, Multan. By this judgment lie appellant has been convicted under section 302(b), P.P.C. and sentenced to imprisonment for life for committing murder of Ali Raza Advocate on 7‑10‑1990 at about mid‑day in the area of Qadirpur Rawan, a town in District Multan.

2. The brief facts of the case are that Ali Raza (deceased) wars a practising lawyer ‑at Multan. He had friendly relation with Qamar appellant who was resident of Qadirpur Rawan, a small town situated a few miles away from Multan Town. However, the appellant suspected the deceased for having illicit relations with his sister Mst. Nuihat and on that account he had '', a grievance against him. In this background, on 7‑10‑1990 at about mid‑day Ali Raza (deceased) accompanied by his brother Tauqeer Hussain and a relation Ursh Muhammad besides his driver Yaqub Masih went to Oadirpur Rawan in his own car. Reaching there, he and his companions came across Qamar appellant near Zaheer Hospital. He offered him and his companions a cup of tea in a nearby hotel and then drove all of them towards his house. After parking the car on the roadside, Qamar appellant took Ali Raza (deceased) to his house situated at a short distance, on some pretext, while the latter's companions kept sitting in the vehicle. Ten or fifteen minutes later when it was about 12‑30 p.m., Ali Raza (deceased) was seen running towards his car followed by Qamar appellant armed with a .12 bore gun in his hot pursuit. In that formation when Ali Raza (deceased) reached at some distance from his vehicle, Qamar appellant fired at him but the former hurriedly sat down and the shot missed him. Meanwhile Qamar appellant reached close to his victim and with the second shot, which hit him on the neck, killed him on the spot. All the three companions of the deceased not only witnessed the occurrence but also chased the assailant upto his house but could not catch hold of him as after entering the house he hurriedly bolted the door from inside. However, while present outside his house they‑ heard two or three gunshots from inside and it subsequently transpired that the appellant had injured his sister Mst. Nuzhat by shooting at her. Tauqeer Hussain P.W., leaving Ursh Muhammad and Yaqub Masih near the dead body, went to Police Station Qadirpur Rawan and reported the incident to the Police, vide FIR Exh.PM.

3. After the registration of the case the Police reached the spot, seized two empties from it and collected blood‑stained earth. The Investigator went to the house of the appellant and, after collecting blood‑stained earth from it, also took into possession two empties. He also seized a blood‑stained cot and a pillow. He took into possession the car of deceased and recorded the statements of the witnesses. He despatched the dead body for post‑mortem examination and got the autopsy carried out.

4. On the following day i.e. on 8‑10‑1990, the police arrested the appellant from Pull Shak Madina and seized the gun P‑9 from his possession. In this way he completed the investigation and submitted the challan.

5. On the commencement of trial the prosecution, on the repudiation of the charge by the appellant for committing murder of Ali Raza (deceased) and attempted murder of his sister Mst. Nuzhat, produced as many as 13 witnesses. Out of them, excepting Dr. Abdul Aziz Shah Bokhari (P.W.7), Dr. Azfer Shabbir (P.W.8), Ursh Muhammad (P.W.11), Tauqeer Hussain (P.W.12) and S.I./S.H.O., Rabnawaz Tariq (P.W.13), the rest are formal. To be a little more precise, Dr. Abdul Aziz Shah Bokhari (P.W.7) deposed that on 7‑10‑1990 at 5.10 p.m. he had conducted post‑mortem examination on the dead body of Ali Raza and found big lacerated wound with inverted edges 5 cm x 3 cm on the frontolateral aspect of the lower part of the right side of neck going down to the right side of chest cavity, with three exit/lacerated wounds, one with everted margin 1.5 cm x 0.3 cm on the back of right side of chest just near the posterior axiliary line; second, with everted margins 1 cm x 1/2 cm on the postero‑lateral aspect of the left side of chest near posterior axiliary line and third with averted edges 1 cm x 0.3 cm on the posterior‑lateral aspect of the left side of chest.

6. On dissection, he found big metallic pellet from the subcutaneous tissue just 1 cm below injury No.3. He noticed muscles of right side of neck, arch of aorta; right superior venae cavae, right lungs including upper middle lower lobe, all injured. He also found third and fourth ribs fractured and a plastic card in the area of fracture of left side of chest. In his opinion, death occurred due to injury No.1 on the neck, resulting in shock and internal haemorrhage, which were sufficient in the ordinary course of nature to cause death. It was anti‑mortem and caused by a fire‑arm, resulting in immediate death. He proved post‑mortem, report (Exh.PC,) and diagram of injuries (Exh.PC/1).

7. The next witness was Dr. Azfer Shabbir of Nishtar Hospital, Multan (P.W: 8):P He testified about the injuries of Nuzhat alias Momi, the injured sister of the appellant, but his testimony needs no discussion as she was neither produced as a prosecution witness nor she .was examined as a defence witness. Suffice is here to say that she had suffered 10 injuries on face and upper part of chest, all excepting one, caused by gun pellets. She was in semi‑conscious condition. He could not assess the nature of the injuries.

8. Ursh Muhammad (P.W.‑11) and Tauqeer Hussain (P.W.‑12) gave the eye‑witness account. Their testimony finds reflection in the above narration of the prosecution story and may be subjected to detailed analysis, .where necessary, in due course. The last witness was S.I./S.H.O. Rabnawaz Tariq (P.W.‑13). The part played by him as Investigating Officer has already been outlined.

9. On the completion of the prosecution evidence, the learned prosecutor gave up Mst. Nuzhat and Yaqub Masih P.Ws. as having been won over and Muhammad Iqbal and Saeed Ahmad P.Ws. as unnecessary. He tendered in evidence the report of Chemical Examiner (Exh.PC), report of Serologist (Exh. PV) and report of Forensic Science Laboratory (Exh. P W ).

10. Qamar appellant, while examined under section 342, Cr.P.C., denied all the incriminating circumstances figuring against him in the prosecution evidence and, alleging his false implication on account of enmity, professed innocence. He, however, did not elaborate the nature of animosity nor did he produce any evidence in defence. He, also declined to appear as his own witness under section 340(2), Cr.P.C.

11. On the conclusion of the trial, the learned trial Judge vide his judgment, dated 13‑5‑1992, after acquitting the appellant of the charge under section 324, P.P.C., convicted and sentenced him for the murder of Ali Raza in the manner aforesaid and aggrieved by it, where he came up in appeal, the State has also filed an appeal for the enhancement of his sentence from imprisonment for life to that of death.

12. It was contended on behalf of Qamar appellant that the ocular evidence produced by the prosecution was not of the kind and character for placing implicit reliance because both the eye‑witnesses were closely related to the deceased and there was no occasion for them to have accompanied him (deceased) to a distant place where he had gone to meet his beloved at about mid‑day when the male members of the family were generally away. According to the learned counsel for the appellant, the natural witness in this case was Yaqub Masih P.W., the driver of the deceased's car, but he was not produced by the prosecution on account of his having been allegedly won over by the defence, nor Mst. Nuzhat alias Momi, who too was cited as a prosecution witness, was brought in the witness‑box out of the apprehension of her not supporting the prosecution case. In his opinion, the prosecution withheld the best evidence available to it and it sought to prove its improbable story by producing the chance witnesses, namely, Ursh Muhammad and Tauqeer Hussain P.Ws. who were in fact summoned from their houses at Multan by the Police after the occurrence and were cited as eye‑witnesses. He contended that the collection of blood‑stained cot and the pillow by the police from the house of the appellant coupled with the injuries suffered by his sister Mst. Nuzhat alias Momi by fire‑arm, allegedly at the hands of the appellant, suggested that she was most probably seen in the compromising position with the deceased and some member of her family under grave and sudden provocation attacked them with a gun, as a result of which both of them suffered injuries but the deceased fatal ones causing his death and in these circumstances the incident remained unwitnessed but to make it a case of ocular evidence he was falsely shown to have killed on the road near the place where his car stood parked. In his view, it was possible that the deceased, after having suffered injuries in the house, might have run away from there towards his car and in an injured condition he might have succumbed to his injuries near the vehicle and for that reason the blood collected by the police might have been also available at that place.

13. There seems to be no substance in the above contentions of the learned counsel. No doubt, the prosecution could, not produce Yaqub Masih and Mst. Nuzhat alias Momi P.W.s, who were important witnesses, but their non‑production did not impair the prosecution case, particularly when other reliable evidence was still available with the police in the form of two other eye‑witnesses. Yaqub Masih was the driver of the deceased and belonging to a minority community he might have not dared to depose against the appellant in view of the present day atmosphere of threats and violence, especially against the witnesses. Mst. Nuzhat alias Momi P.W., being the sister of the appellant, was not expected to depose against him and in fact there was no point in citing her as a prosecution witness. She had to be discarded.

14. Arshad Muhammad and Tauqeer Hussain P.Ws. were no doubt near relations of the deceased but in the absence of any previous animosity between the complainant party and the appellant, it was difficult to discard their testimony which was otherwise cogent and consistent. There was no reason for them to have falsely implicated the appellant in a serious crime like murder if l r he had not committed the crime.

15. The deceased was owning a chauffeur driven car and there was nothing unusual or improbable if they happened to accompany him (deceased) to the village of the appellant, may be for their having no special business. Friends and relations often accompany the persons owning cars to some destination merely for the sake of company, gossip or a joy ride, having no special purpose to go there. Therefore, there was nothing improbable if Ursh Muhammad and Tauqeer Hussain P.Ws. accompanied the deceased to Qadirpur Rawan where the deceased went for some purpose. If his purpose was immoral i.e. to meet his beloved, they could not be aware of it nor it was necessary for him to tell them, nor it was necessary for them to ascertain it. 'they went to Qadirpur Rawan at about mid‑day and stayed at some distance from the house of the appellant when he took the deceased to his house on some pretext. The time of occurrence and the location of the appellant's house was such that it could not be an opportune time for the deceased to meet appellant's sister. It was the time when all the members of her family could be available in the house and he could not meet her for sexual purpose. The‑ real story seems to be the one as put forth by the prosecution and as testified by the two eye‑witnesses, that is to say, the appellant's taking the deceased to his house on some pretext in order to kill him and after taking his life in a hot pursuit when he (deceased) was running for his life towards his vehicle parked on the busy thoroughfare, then he went to his house and caused injuries to his sister. Perhaps he wanted to make out a case of sudden provocation, but due to the recent introduction of Qisas and Diyat Law, he could not take up the plea H of grave and sudden provocation which an accused now has to prove, instead of only hinting at, if he chose to take up.

16. For various reasons stated above, there is no substance in Qamar's appeal and the same is dismissed.

17. Now a few words about the State appeal, seeking to award death penalty to the appellant instead of imprisonment for life awarded to him by the Trial Court. Learned counsel appearing on behalf of the State, with reference to recent judgment of this Court reported as The State v. Abdul Waheed alias Waheed and another 1992 PCr.LJ 1596, argued that in the circumstances of this case, which were similar to that of the reported one, the appellant must have been awarded death penalty as he took the deceased on a pretext to his house by professing friendship with him and took his life in a cruel manner, simply because he suspected his liaison with his sister. We do not agree with this argument. There was no similarity of facts and circumstances of the case in hand with that of the precedent case. In that case the accused had admitted having killed his adversary on grave and sudden provocation on account of the deceased's committing zina with his sister, but in this case the appellant has resorted to a total denial. Besides, in the precedent case the accused, in the light of facts and circumstances, was not found to be entitled to avail of the plea of grave and sudden provocation because no such circumstances were found to exist and it was a cold‑blooded murder.

18. It may be noted here that the case under consideration is that of Tazir punishable under section 302(b), P.P.C. This newly‑introduced provision of penal law gives discretion to the Court either to award death penalty to the offender or the lesser penalty of imprisonment for life according to the circumstances of the case: The learned Trial Judge seems to have rightly awarded the sentence of‑ imprisonment for life to the appellant as the deceased's own conduct of alleged immorality led to the mishap. There is, therefore, no force in this appeal either and the same is also dismissed. N.H.Q./66/SAC Appeals dismissed.