2005 P Cr (PLP)

(1) 1997 PCr.LJ 229, (2) 1996 PLJ Sh. Court (AJ&K) 145 and (3) 1970 SCMR

432. Mr. Shahid Bahar, the learned counsel for the convict‑appellant has owned the arguments of Kh. Muhammad Nasim. However, he submitted that all the witnesses of the occurrence are closely related to the deceased and no independent witness appeared before the trial Court while independent witnesses were present at the place of occurrence, therefore, it was not, at all, a case of death sentence. While controverting the arguments of the learned Advocates for the convict‑appellant, Mr. Tayyab Gillani, the learned Assistant Advocate‑General, argued that there is no contradiction among the statements of the witnesses regarding the time, place and manner of occurrence. He submitted that presence of the witnesses was admitted by the convict‑appellant during the course of cross‑examination. It was suggested to one of the eye‑witnesses, Muhammad Shafique, that is it correct that except you three brothers, no other person was present at the place of occurrence? Muhammad Shafique owned the suggestion. Therefore, it was an admitted fact, that eye‑witnesses were present at the place of occurrence and they have witnessed the same. It was further maintained by the learned counsel that there are three eye‑witnesses in this case who have seen Fazal Din while committing the crime. It was further maintained that, even Nisar Ahmed tried to run away, but Fazal Din chased and fired on him due to which Nisar Ahmed died on the spot. The gun, along with empty cartridge, was recovered at the instance of Fazal Din. It was sent to Fire‑arm Expert who reported that empty cartridge was fired from the same gun. The post‑mortem report fully corroborates the version of the prosecution, therefore, it was a case of death sentence and the lower Court has rightly awarded the same to the convict‑appellant. We have heard the learned counsel for the parties, perused the file and have given our passionate thoughts to the arguments advanced by the learned Advocates. In the instant case, there are three eye‑witnesses namely Muhammad Shafique, Muhammad Saleem Khan and Qari Abdul Karim. Muhammad Saleem appeared as a witness on September 20, 2004. His statement was recorded. He stated before the Court that he knows the accused person, who is present in the Court. He also knows Nisar Ahmed (now deceased). He (now deceased) was a teacher in the school. He (now deceased) was murdered by Fazal Din. On July 14, 2004, he along with Qari Abdul Karim and Muhammad Shafique were pulling the wires of the electricity. Nisar Ahmed also came there and participated with them as the electricity was being installed in the Mohalla. There was a dispute of Khalsa land between the convict appellant and Nisar Ahmed. He saw the convict‑appellant while abusing Nisar Ahmed and opening attack on him. He asked the convict‑appellant that he should not kill Nisar Ahmed and tried to intervene. When convict appellant went near Master Nisar, he started running away, but the convict‑appellant took the aim and fired a bullet which hit on the head of Nisar Ahmed. Nisar Ahmed fell down and died instantaneously on the spot. Muhammad Shafique also appeared as a witness. He deposed that he knows the convict‑Fazal Din. He also knows Master Nisar Ahmed. On 14‑7‑2004, at the time of evening, the convict‑appellant fired a bullet on Master Nisar Ahmed. The bullet hit the left side of ‑the head of Nisar Ahmed. He fell down and died on the spot. This occurrence was witnessed by Muhammad Saleem and Qari Abdul Karim. When this occurrence took place, he, Haji Muhammad Saleem and Qari Abdul Karim were pulling the wires of the electricity. At about 5‑45 p.m., Master Nisar Ahmed also came to assist them. Fazal Din saw Nisar Ahmed from the roof of his house and started abusing him. There was some dispute of Khalsa land between Nisar Ahmed and Fazal Din, so Fazal Din committed the instant crime. Apart from him, Qari Abdul Karim also appeared as a witness. He deposed that he knows Fazal Din. He is Hafiz‑e‑Qar'an. He taught the Qur'an in mosque. On 14‑7‑2004, he was pulling the wires of electricity along with Saleem and Shafique. At about 4‑45 p.m., Nisar also came there to assist them. Haji Saleem raised a noise as he saw a gun in the hands of the convict appellant. Haji Saleem was requesting the accused‑appellant that he should not commit any offence; but accused did not care Master Nisar also started running, but the present convict‑appellant chased him and fired a bullet from the pun which hit the left side of the head of Nisar Ahmed. Nisar Ahmed fell down and died on the spot. This occurrence was witnessed by Shafique and Saleem. There was a dispute between Nisar Ahmed and Fazal Din, so he committed the instant crime. It is pertinent to note that during the cross‑examination, it was suggested to Muhammad Shafique as under:‑‑ It means that it was admitted to the defence that all the three brothers, Muhammad Saleem, Muhammad Shafique and Qari Abdul Karim were present at the place of occurrence and they have witnessed the same. Thus, their presence at the place of occurrence was admitted. During the cross‑examination, it was suggested to Muhammad Saleem that is it wrong that at the time of fire, deceased was not running? Which means that fire was admitted by the defence. The plain reading of the statements of these witnesses clearly shows that their presence was not denied by the defence. Rather their presence was admitted by the defence. There is no contradiction among these three witnesses regarding the place, time and manner of occurrence. There is complete concordance among these three witnesses. They have seen the occurrence. The statement of the aforesaid three eye‑witnesses is further corroborated from the recovery of gun and the empty. The gun was recovered at the instance of convict‑appellant, in presence of Muhammad Iqbal and Abdul Jabbar. A recovery memo. Exh.P.E. was prepared. Muhammad Iqbal and Abdul Jabbar appeared as witnesses. Muhammad Iqbal appeared as witness on September 24, 2004. He deposed that gun was recovered at the instance of the accused (present‑appellant) on July 15, 2004 in his presence. The accused stated that he committed the murder with this gun. This gun was recovered from the house of the accused, from a box of tin. An empty cartridge was also recovered from there. Fazal Din also told that he fired the bullet from this gun and committed the murder of Nisar Ahmed. Abdul Jabbar also witnessed the recovery memo. The gun was identified by him. The empty cartridge was also shown to Abdul Jabbar who identified the same and stated that it is the same. It was handed over to the police by Fazal Din along with the' gun. He also stated in the cross‑examination that he along with Abdul Jabbar went inside the house. He further deposed that he has no relations with the deceased. Abdul Jabbar also appeared as a witness. He deposed that .12 bore gun was recovered at the instance of the convict‑appellant. The gun was recovered from a room where it was lying in a box of tin. An empty cartridge was also recovered from the room. A recovery memo. was prepared upon which Iqbal put his signatures. He has seen the gun Exh.P.2. It is the same. It was recovered from the accused. Both the witnesses deposed that tile gun was recovered in their presence. There is no contradiction between them regarding the time, place and manner of recovery of the gun and empty. There is complete unison between both the witnesses. The defence .has failed to point out any contradiction between both the witnesses, thus, recovery of the gun is proved beyond any doubt. It is pertinent to note that gun, along with the empty, was sent to Fire‑arm Expert who reported that this empty was fired from the same gun, therefore, the version of the prosecution that bullet was fired from the gun is corroborated from the report of Fire‑arm Expert. It would also not be out of place to mention here that version of the eye‑witnesses that Nisar Ahmed was murdered with the fire of .12 bore gun finds full and strong corroboration from the post‑mortem report and evidence of Dr. Zahid Hussain Abbas, who conducted the post‑mortem on the dead body and also appeared as a witness and proved the post‑mortem report. The post‑mortem report contains that the deceased was killed with a fire‑arm weapon. Pellets were recovered from the dead body; thus, the version of the prosecution is corroborated from the statement of Doctor and the post‑mortem report. The prosecution has proved his case beyond any doubt on the basis of statements of:‑‑ (i) three eye‑witnesses; (ii) recovery of gun; (iii) two witnesses of the recovery of gun and empty; (iv) Report of the Fire‑arm Expert and (v) Post‑mortem report and the statement of the Doctor. Three eye‑witnesses namely Muhammad Saleem, Muhammad Shafique and Qari Abdul Karim appeared before the trial Court. Their statements were recorded. Their presence, at the place of occurrence was not denied, rather, as stated in the earlier part of this judgment, during the course of cross‑examination, their presence at the place of occurrence was admitted by the defence. All of them deposed that convict‑appellant fired a bullet from the gun which hit the left side of head of Nisar Ahmed who died on the spot. This portion of their statements is fully corroborated from the post‑mortem report. According to the post‑mortem report, Nisar Ahmed (deceased) sustained injuries on his head. Doctor also recovered pellets during the post‑mortem, from the dead body. Both the witnesses of recovery of gun also appeared before the trial Court and deposed that gun was recovered at the instance of the convict‑appellant. Along with the gun, an empty cartridge was also recovered which was sent to the Fire‑arm Expert. According to the report of the Fire‑arm Expert, empty cartridge was fired from the same gun. There is strong incriminating evidence against the convict‑appellant. The prosecution has proved the case beyond any doubt. As the contention of the learned counsel for the convict‑appellant is concerned that no purgation of the witnesses was conducted by the District Criminal Court, Bagh, therefore, sentence of Qisas or death could not be awarded to the convict‑appellant, has no substance. In the instant case, the purgation of the eye‑witnesses was conducted which is attached with the file in an envelope. According to the purgation, all three eye‑witnesses were found of good reputation. They were never found involved in any false evidence. They offer their prayers for five times. Therefore, the contention of the learned counsel for the convict appellant, that purgation of the eye‑witnesses was not conducted, is without any substance. As the next contention of the learned counsel for the convict appellant is concerned that no person from the Electricity Department was present at the time of occurrence, while according to the prosecution story, there should have been some official of the Electricity Department. This contention of the learned counsel for the convict‑appellant is without any substance for the reason that village was being electrified and only, wires were to be pulled and for this very purpose, presence of some person from the Electricity Department was not necessary. The people of the village were working only for the reason that their village was being electrified, therefore, if at all there was no person from the Electricity Department, it would not make any difference, because, no technical work was in process and only wires were to be pulled. Thus, it was not a work of such a nature for which the presence of a person from the Electricity Department was necessary. As the third contention of the learned counsel for the convict appellant is concerned that all the three eye-witnesses were brothers. No doubt, they were brothers, but they were not brothers of the deceased. Their presence at the place of occurrence was not denied by the defence. They were even not suggested that they were not present at the place of occurrence and have not seen the same. Rather they were suggested that no other than those three brothers was present at the place of occurrence. As stated in the earlier part of this judgment, their presence at the place of occurrence is not denied by the defence. Mere relationship of the witnesses is no reason for disbelieving their evidence, until and unless it is not established that they have any enmity with the accused and have some motive for false implication of the accused committing the offence. In the instant case, when the eye‑witnesses have no enmity with the convict‑appellant, then there is no reason for disbelieving their statements. Their evidence cannot be rejected for the reason that all of them were brothers. Same like proposition arose before the Lahore High Court in a case titled Zahur Ahmed v. The State 1978 PCLLJ 227, and it was held as under:‑‑ "It is no doubt correct that Muhammad Ishaq (P.W.7) was the father of Muhammad Ashfaq (deceased) while Muhammad Rafique (P.W.8) was his maternal‑uncle, but their evidence could not be discarded merely on account of this relationship, especially when they are not shown to have any motive of their own to falsely implicate the appellant in this case." In the instant case, no such enmity or motive was suggested to three eye‑witnesses. There is nothing on the record to show as to why the prosecution witnesses would falsely implicate the accused in the commission of offence? When there is nothing like such then their evidence could not be disbelieved. This view finds support from 1978 PCr.LJ

216. Relevant observation is at page 222 of the report, which is as under:‑‑ "Nothing has been brought in the cross‑examination of these witnesses to shake their credibility or otherwise to induce them to falsely implicate the appellants." According to the aforesaid report, it was the duty of the defence to establish that eye‑witnesses have reason or motive for false implication of accused (convict‑appellant). In the instant case, nothing like such was suggested to the witnesses during the cross examination. Thus, this contention of the learned counsel has no substance at all. As the next contention of the learned counsel for the convict appellant is concerned that there is nothing on the record on the basis of which it could be said that there was any dispute regarding the Khalsa land between Nisar Ahmed (deceased) and the convict‑appellant Fazal Din, therefore, prosecution has failed to prove the motive beyond any doubt? It is also without any substance. Muhammad Saleem appeared as a witness and deposed that there was a‑ dispute of some Khalsa land between Nisar Ahmed (now deceased) and accused Fazal Din. The accused Fazal Din cut trees from the Khalsa land due to which some acrimony took place between them. This portion of his statement was not challenged during the cross‑examination. Apart from him, Muhammad Shafique also appeared as a witness. He deposed that convict appellant (accused) cut some grass and trees from the Khalsa land under the possession of Master Nisar Ahmed (now deceased). Few days before the occurrence, Master Nisar complained before the wife of the accused Fazal Din. This portion of the statement of Muhammad Shafique was also not challenged during the course of cross‑examination. Even, he was not suggested that there was no dispute of some Khalsa land between Nisar Ahmed (now deceased) and convict‑appellant. Apart from above, Qari Abdul Karim also appeared as a witness and deposed that there was a dispute of some Khalsa land between Fazal Din accused and Nisar Ahmed (now deceased). His statement to this extent was also not challenged during the course of cross‑examination. Even he was not suggested that it is wrong that there was any dispute regarding some Khalsa land between the convict‑appellant (accused) and the deceased: Thus, it is an admitted fact that there was a dispute between the parties regarding some Khalsa land. Therefore, the prosecution has proved the motive 'beyond any doubt. As the contention of the learned counsel for the convict‑appellant is concerned that eye‑witnesses were close relatives of the deceased, therefore, their evidence could not be believed. It has also no substance for the reason that mere relationship of the witnesses is no ground for disbelieving them, unless and until some enmity is not established with the accused. In the instant case, even during the course of cross examination, no enmity with the convict‑appellant was suggested to the witnesses and nothing like such is on the record on the basis of which it could be said that these witnesses were inimical towards the convict appellant. When no such enmity was established, then their evidence could not be disbelieved only for the reason that they were close relatives of the deceased. From the entire evidence, it is proved that the murder has been committed by the present appellant Fazal Din. Now the question emerges that which sentence should be awarded to the convict‑appellant. The question of sentence is always determined on the basis of gravity of the offence. The question of the sentence demands utmost care and caution on the part of the Court dealing with life and. liberty of the people. The sentence must be weighed in golden scales. It must be properly balanced because the basic object of the sentence is‑to create a P deterrence in the society and while awarding the sentence all the circumstances surrounding the guilt must be carefully born in mind and in determining the sentence overriding consideration must be that it should be fair and produce the correct results in the given case. The normal sentence which must be passed in a case of murder is that of death. This view finds support from PLD 1979 Kar.

286. The relevant observation reads as under:‑‑ "It is well‑settled that the extreme penalty of death is the normal sentence for murder and that while awarding this sentence the Judge does not have to give reasons for doing so; it is only when the lesser penalty is proposed to be awarded that the Judge has to ask himself whether there are reasons for abstaining from awarding the death sentence (1902) LBL

216. In cases of premeditated and deliberate murder it has been consistently held that no grounds exist to award the lesser penalty." In the instant case, 'the accused‑appellant committed a brutal murder. He came with a gun on the 'scene of occurrence. Nisar Ahmed (now deceased) tried to run away; but even then, the accused took the aim of his head and fired a bullet which hit the left side of head of Nisar Ahmed due to which he fell down and died on the spot. The convict appellant ‑came with an intention to commit the murder and fired the bullet on the vital part (head) of the body of the deceased and committed the slay of a young man. Therefore, the convict‑appellant does not deserve for any leniency. The lower Court has rightly awarded sentence of death which is hereby confirmed and the appeal filed by the convict‑appellant is dismissed. H.B.T./6/Sh.C. (AJK) Appeal dismissed.