2011 PLP 447 (YLR)

RAUF AHMAD SHEIKH, J.--Muhammad Altaf alias Sheikh appellant has challenged the judgment dated 23-5-2006 passed by the learned Sessions Judge, Attack in case F.I.R. No. 49 dated 12-6-2005 under section 302, P.P.C. Police Station Basal whereby he was convicted under section 302, P.P.C. and was sentenced to death as Tazir and was also ordered to pay an amount of Rs.2,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in case of default to undergo S.I. for six months. The learned trial Court has also submitted Murder Reference bearing No.496 of 2006 under section 374, Cr.P.C. seeking confirmation or otherwise of the capital punishment awarded to the appellant. Both the matters are interlinked and connected, so are being decided through this single judgment.

2. Briefly stated the prosecution version as set forth in the F.I.R. (Exh.PD/1) recorded on the statement (Exh.PD) of Naeem Akhtar son of Aslam Caste Awan, aged 32/33 years, cultivator, resident of Domeil is that his brother Wahid Iqbal had installed a flour machine in the house of one Azmat Khan son of Muhammad Khan residents of Tammna Domed. On 12-6-2005 at about 8-00 a.m. the complainant was present at the flour machine of his brother Wahid Iqbal. In the meantime his mother's brother Muhammad Nawaz son of Ghulam Ali and Sajjad Khan son of Azmat Khan residents of the same village also came there. He, his mother's brother Muhammad Nawaz and Sajjad Khan were sitting on a cot lying in the room where machine was installed. His brother Wahid Iqbal was just to start the machine, when at about 8 a.m. Muhammad Altaf alias Sheikh appellant armed with .12 bore repeater entered the room and challenged Wahid Iqbal that he would teach a lesson for hurling the abuses on the previous day. Muhammad Altaf made straight fire which hit Wahid Iqbal on his neck. Wahia Iqbal fell down and died at the spot. Due to fear of the arm, they could not apprehend Muhammad Altaf who fled away along with the gun. The motive was stated to be suspicion of Muhammad Altaf that Wahid Iqbal had administered 'Tawiz' to the members of his family and for this reason, he had engaged in altercation with the deceased on the preceding night at about 7-00 p.m. in the presence of Muhammad Nawaz son of Ghulam Muhammad and Muhammad Iqbal son of Aitbaz Khan.

3. The appellant was sent up to face the trial after investigation, He was charged under section 302, P.P.C. He pleaded not guilty and claimed trial.

4. The prosecution has examined 12 witnesses in support of its allegation, The medical evidence has been adduced through Dr. Zafar Iqbal P.W.2 who had conducted the autopsy of the dead body of Wahid Iqbal deceased on 12-6-2005 at abut 11-30 a.m., in THQ Hospital Jhand. He found following injuries on his person:-- (1) A fire-arm wound of entry 3 cm x 2 cm on front of the neck slightly on the right from middle line. Slight blackening was present. (2) A fire-arm wound of exit 1 x 1 cm on the left side of the neck. (3) A fire-arm wound of exit 1 x 1 cm on the left shoulder upper part.

5. He recovered one wad from the neck of the deceased and three foreign bodies (pellets) from backside of the left shoulder. He opined that the cause of death was due to Injury No. 1 leading to hemorrhage shock and death. All the injuries were anti-mortem and caused with fire-arm. The Injury No. 1 was sufficient to cause death in ordinary course of nature. The probable time which elapsed between injuries and death was within 15 minutes, while the time between death and post mortem was about four hours. He proved carbon copy of the postmortem Exh. PB and pictorial diagram Exh. PB/1.

6. The ocular account was furnished by Naeem Akhtar P.W.10 and Muhammad Nawaz P.W.11. The complainant has almost reiterated the contents of his statement Exh. PD/1 and stated that it bears his signature. Muhammad Nawaz P.W.11 stated that Wahid Iqbal was his sister's son, whereas appellant Altaf is son of his niece. On 12-6-2005 he, Naeem Akhtar and Sajjad were sitting on a cot in the flour machine room of Wahid Iqbal deceased at about 8-00 a.m. when the appellant armed with .12 bore repeater gun entered therein and challenged Wahid Iqbal that he would give a lesson to him for abusing in the previous evening. Soon after raising lalkara he fired at the deceased with repeater gun which hit him on his neck. Wahid Iqbal fell down and succumbed at the spot. The accused fled away. He further stated that in the evening on 11-6-2005 an altercation took place between the accused and the deceased in presence of this witness and Muhammad Iqbal. The accused had suspicion that deceased had administered some 'Tawiz' to his family.

7. The evidence regarding recovery of weapon of offence has been led through Khan Badshah S.-I./P.W.12 and Muhammad Sabir. P.W.9. Khan Badshah S.-I. stated that he arrested the appellant on 20-6-2005. On 23-6-2005 the appellant while in police custody made a disclosure and led to the recovery of .12 bore repeater P-4 and on unloading the .same five live cartridges P.5/1-5 was found. The repeater gun along with cartridges was secured through memo of recovery Exh. PG attested by the P.Ws. Muhammad Sabir P.W.9 has corroborated his statement and stated that memo of recovery Exh.PG was attested by him and Ashraf P.W. Khan Badshah P. W.12 and Banaras Khan P.W.7 have proved securing of blood-stained earth from the place of occurrence through memo of recovery Exh. PE and empty cartridges from the place of occurrence on 12-6-2005 through memo of recover/Exh.PF Faiz Muhammad MHC P.W.4 stated that the Investigating Officer gave him scaled parcel containing blood-stained earth and empties on 12-6-2005 which he gave to Abdul Sattar P.W.3 who stated that he delivered these parcels in the office of Chemical Examiner and FSL intact on the next day i.e. 16-6-2002. Similarly P.W.4 also stated that Investigating Officer gave him sealed paracel containing repeater gun .12 bore on 23-6-2009, which he gave to Abdul Sattar P.W.3 on 29-6-2009, who has stated that he delivered it in the office on 30-6-2009. P.W.5 prepared site plan Exh. PC/1. P.W.6 has proved F.I.R. Exh.PD/1. The prosecution also produced the report of the Chemical Examiner Exh.PK, report of Serologist Ex.PL and report of FSL Lahore Exh.PM.

8. The appellant in his statement under section 342, Cr.P.C. denied the correctness of the allegations levelled by the prosecution and truthfulness of the witnesses produced by it. He also contended that the prosecution version regarding motive was false and concocted as he had no reason to cause murder of the deceased. He asserted that the P.Ws are inter se related and he has been falsely implicated at the behest of Sardar Amir Ex-Nazim, who was inimical towards him as he had opposed him in the election. He stated that Wahid Iqbal deceased was not a person of a good moral character and the people of the village often made complaints about his interference in their privacy. The deceased was murdered by some unknown person in the last hour of the night and in the early morning in the room of his flour machine, where he used to sleep. Complainant was inimical towards him and in connivance with Sardar Amir Ex-Nazim, fabricated concocted and false motive and false story of the occurrence. He further contended that the repeater gun P-4 along with 5 cartridges P-5/1-5 was not recovered at his instance and that no empty was recovered on the day of occurrence and same was prepared after the gun had been planted in order to procure the false report

9. After conclusion of the trial, the learned trial Court proceeded on to convict and sentence the' appellant as mentioned above.

10. We have heard the arguments advanced by Mr. Sadaqat Ali Khan and Syeda B.H. Shah learned counsel for the appellant and Mr. Kashif Saleem Urfa Law Officer.

11. Learned counsel for the appellant vehemently contended that no independent witness was produced by the prosecution during the trial and Muhammad Sajjad who was allegedly present at the time of occurrence was given up; that P.W.10 and P.W.11 are related to the deceased and intense and as such they do not inspire confidence; that the F.I.R. was lodged after inquiry; that the motive is not proved; had P.W.10 and P.W.11 were present at the spot, the appellant would have not left them alive as he had dispute over a wall with P.W. 11 Muhammad Nawaz and had no ill-will against the deceased; that according to the Dr.Zafar Iqbal P.W.2 a wad was recovered from the neck of the deceased whereas according to the P.W. the fire was made from a distance of 5 feet so there is a vital discrepancy between the ocular account and the medical evidence as presence of the wad shows that the fire was made after putting the arm on the body or from the maximum distance of one feet; that P.W.12 did not make any entry in the roznamcha before his departure so recording of the proceedings at 9-30 a.m. at the spot becomes doubtful and cannot be believed and that the deceased was a person of had character and had involved in quarrel with many persons including Muhammad Ashraf P.W. (since given up) so some unknown person had killed him. In support of the contention reliance is placed on PLJ 2010 SC

877. It is further contended that only a single fire was made so the capital punishment was not warranted. Reliance is placed on 2010 SCMR 641.

12. Controverting this arguments, the learned Law Officer that both the P.Ws. lived in the same vicinity and were present at the place of occurrence as per routine; that it was a broad-daylight occurrence; mere relationship of the deceased with P.W.10 and P.W.11 or inter se is no ground to disbelieve them because they had no motive to falsely implicate the appellant in the case; that substitution not known in our society and there was no reason for the real brother of the deceased and the maternal uncle to let some one to go escort free and to implicate the appellant who is their relative and that though single fire was made but the appellant had targeted the neck with the sole object to kill the deceased so no mitigating circumstance is available.

13. The star witness of this case is Muhammad Nawaz P.W.11 who is close relative to the deceased and the appellant. He is mother's brother of the deceased and maternal uncle of the mother of the appellant. He has stated that he had gone to the flour machine of the deceased as per routine as he used to go there daily. His house is at a distance coverable in 1 and 1/2 minutes. He was the most natural and independent witness. There was no malice for him to involve the son of his niece in the false case. The so called dispute over wall between him and the appellant is not proved. There is no reason to disbelieve him. He has not only proved that the appellant had made fire with repeater .12 bore gun on the neck of the deceased but it also proved that this unfortunate episode was result of an altercation, which took place on the preceding night. P.W.10 had also categorically stated that on 1-16-2006 when the deceased came to home, he told him about the altercation. The contention that why the matter was not complained to the father of the appellant does not disprove what happened on the next day. There may be many reasons for not making the complaint to the father of the appellant on the same night.

14. Even P.W.10 Naeem Akhtar had no reason to depose falsely and implicate the appellant in the false case because the appellant is related to him also. The mere tact that Sajjad Khan was given up does not adversely affect the case of the prosecution because in the administration of justice in B criminal cases the quality of evidence is kept in view and not the number, P.W.10 and P.W.11 have proved that altercation had taken place one day prior to the occurrence and the appellant nourished the grudge for the whole night, did not give up, anger and on the next morning came to the flour machine of the deceased and killed him by making the fire on his neck. The making of even single fire in these circumstances has no significance and cannot be considered as mitigating circumstance.

15. Learned counsel for the appellant has vehemently contended that the presence of wad in the injury shows that the fire was made from one feet or less, whereas the P.Ws. have stated that it was made from 5 feet so presence of P.Ws. becomes reasonably doubtful. Muhammad Nawaz P.W.11 has stated that the accused made fire from 5 feet after stretching his arm. If the gun powder of the cartridge is of good quality then the wad would make an entry in the wound even if the fire is made from a distance of 5 feet after stretching the arm. In case-law reported as 2010 SCMR 846, the fire was made from the distance of 3 karmas so same is not applicable to the facts of the present case. P.W.12 and P.W.9 have proved the recovery of the repeater gun .12 bore along with 5 cartridges through memo of recovery Exh.P-6 and P.W.12 and P.W.8 had proved the securing of empty cartridge through memo of recoveries Exh. PF. Safdar P.W.3 had proved that he delivered the parcel of empty in the office of F.S.L on 16-6-2005 whereas parcel containing .12 bore repeater gun along with 5 live cartridges was delivered on 30-6-2005. The report of F.S.L. Exh. PM shows that the test empty matched with the crime empty. The report of the Chemical Examiner Exh. PK shows that the cotton through which the blood was collected from the place of occurrence was actually stained with blood and report of Serologist Exh.PL shows that it was stained with human blood. So these reports provide necessary corroboration to strong ocular account.

16. No doubt is left in the truthfulness of prosecution version and it is proved that the appellant caused Qatl-e-amd of Wahid Iqbal at 8 a.m. on 12-6-2005 due to altercation which took place on the preceding night by making fire with .12 bore gun on the neck of the deceased. Learned counsel for the appellant has contended that the appellant is only 25 years of age so he deserves lenient view. He has caused qatl-e-amd of an innocent young man aged about 20/21 years. He was fully aware of the consequences of his act. He does not deserve any punishment except death, which has rightly been awarded to him by the learned trial Court on the basis of correct appraisal of evidence available on the record. The appeal is without merits and same is hereby dismissed. Resultantly, the murder reference is answered in the affirmative. A.R.K./M-613/L Appeal dismissed.