2006 PLP 1810 (YLR)

ASIF SAEED KHAN KHOSA, J.

Muhammad Nawaz appellant was convicted for an offence under section 302(b), P.P.C. vide judgment dated 30-11-2000 handed down by the learned Sessions Judge, Jhang and was sentenced to death as Ta'zir and to pay a sum of Rs.20,000 to the heirs of Noor Iqbal deceased by way of compensation under section 544-A, Cr.P.C., or in default of payment thereof to undergo rigorous imprisonment for six months. Through the same judgment the learned trial Court had acquitted the appellant's father and co-accused namely Haider. The appellant has challenged his conviction and sentence before this Court through Criminal Appeal No.1907 of 2000 which has been heard by us along with Murder Reference No.25 of 2001 seeking confirmation of the sentence of death passed by the learned trial Court against the appellant. We propose to decide both these matters together through the present consolidated judgment.

2. According to the prosecution's case unfolded in the F.I.R. Zahoor Ahmad complainant was a resident of village Jhallar Yarayki situated within the area of Police Station Barana, District Jhang and was an agriculturist by profession. During the night between 28/29-5-1998 the complainant along with his father namely Ahmad Yar, his maternal uncle namely Allah Yar and his brother namely Noor Iqbal were sleeping in the compound of their house as usual and an electric bulb was alight nearby. At about 12-30 a.m. Haider accused came to that compound along with the present appellant and raised a Lalkara that Noor Iqbal was to be taught a lesson for not leaving possession of the land. Upon hearing that Lalkara the complainant and other woke up and within their view Muhammad Nawaz appellant fired at Noor Iqbal from his gun hitting Noor Iqbal on the right side of his head. The appellant also raised a Lalkara to the effect that if anybody came near him then he would also be treated in the same fashion. Thereafter the appellant and his co-accused left the place of occurrence. The complainant and others handled the injured Noor Iqbal but Noor Iqbal succumbed to his injury and died at the spot. The motive set up in the F.I.R. was that about three years ago two Kanals of agricultural property jointly belonging 'to the father of the complainant as well as the father of Muhammad Nawaz appellant had been transferred in the name of the complainant's father through consolidation proceedings and the same was in possession of the complainant party but the appellant and his co-accused wanted to get possession of that property back and it was on account of that grievance that the complainant's brother namely Noor Iqbal had been done to death by the appellant and his father. Leaving the dead body of Noor Iqbal deceased at the place of occurrence Zahoor Ahmad complainant proceeded to report the matter to the police and on the basis of his statement F.I.R. No.100 was registered at Police Station Barana, District Jhang at 4-00 a.m. on 29-5-1998 in respect of an offence under section 302, P.P.C. read with section 34, P.P.C.

3. After registration of the F.I.R. the investigation of this case was conducted by Saeed Anwar Khan, S.H.O. who got the dead body of the deceased subjected to post-mortem examination, inspected the place of occurrence, recorded the statements of witnesses and later on arrested the appellant and his co-accused and recovered a gun from the appellant's possession. Upon completion of the investigation a Challan was submitted before the learned trial Court.

4. At the commencement of the trial the learned trial Court framed a charge with one. head under section 302, P.P.C. read with section 34, P.P.C. against the appellant and his co-accused to which they pleaded not guilty and claimed a trial.

5. During the trial the prosecution produced eleven witnesses in support of its case against the appellant and his co-accused. Zahoor Ahmad complainant (P.W.4) and Allah Yar (P.W.5) furnished the ocular account of the incident in question and they also deposed about the motive. Rab Nawaz (P.W.2) stated about recovery of a gun from the appellant's possession during the investigation of this case. The medical evidence was provided by Dr. Muhammad Yousaf Mughal (P.W.9). Saeed Anwar Khan, S.H.O., the Investigating Officer, had become a Proclaimed Offender in some other case and, thus, he could not be produced by the prosecution before the learned trial Court but the steps taken by him during the investigation of this case were proved before the learned trial Court by Jafar Ali, A.S.-I. (P.W.11). The remaining evidence produced by the prosecution was more or less formal in nature.

6. In their statements recorded under section 342, Cr.P.C. the appellant and his co-accused denied and controverted all the allegations of fact levelled against him by the prosecution and professed their innocence. They, however, opted not to make statements on oath under section 340(2), Cr.P.C. and did not produce any witness in their defence.

7. At the conclusion of the trial the learned trial Court acquitted Haider accused by extending the benefit of doubt to him but after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt it convicted and sentenced the appellant as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.

8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the occurrence in this case had taken place in the middle of a night; the source of light at the place of occurrence had never been established by the prosecution; both the eye-witnesses were planted in this case and they did not reside in the house where the alleged occurrence had taken place; the motive set up by the prosecution had remained far from being established; the alleged recovery of a gun from the appellant's possession was legally inconsequential; and the medical evidence did not provide support to the ocular account. It has, thus, been maintained by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. As against that the learned counsel for the State as well as the learned counsel for the complainant have maintained in unison that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, therefore, his conviction and sentence recorded by the learned trial Court do not warrant any interference by this Court.

9. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has straightaway been noticed by us that Zahoor Ahmad complainant (P.W.4) and Allah Yar (P.W.5), both the eye-witnesses produced by the prosecution in this case, are very closely related to Muhammad Nawaz appellant inasmuch as it is admitted at all hands that the father of the appellant and the father of the complainant are real brothers and Allah Yar (P.W.5) happens to be a maternal uncle of the complainant. We have further noticed that Zahoor Ahmad complainant (P.W.4), being a brother of Noor Iqbal deceased, was a natural witness of the alleged occurrence as he lived with the deceased in the same house wherein this occurrence had taken place. The time of the occurrence, i.e. about midnight was such A that the complainant was ordinarily expected to be sleeping in the same house where the deceased was done to death. We have also pertinently observed that the F.I.R. in this case had been lodged with sufficient promptitude inasmuch as the occurrence had taken place at 12-30 a.m. and the F.I.R. had been lodged by the complainant ' at 4-00 a.m. in the same morning at the Police Station which was situated 24 kilometres away from the place of occurrence. In that promptly lodged F.I.R. the present appellant had been duly nominated as the principal accused who was saddled with the responsibility of causing the solitary and fatal fire-arm injury to the deceased. It is difficult to believe that within this short span of time the complainant had conjured and cooked up a false story and had implicated his first paternal cousin falsely for the murder of the complainant's real brother.

10. It had clearly been mentioned in the F.I.R. that an electric bulb was alight at the place of occurrence at the time of the occurrence and even in the site-plan A (Exh.PE) the place of availability of such an electric bulb had specifically been pointed out. Both the eye-witnesses produced in the case by the prosecution had also categorically claimed availability of electric light at the spot. It is true that Zahoor Ahmad complainant (P.W.4) had conceded before the learned trial Court that he had no electricity connection for his house, i.e. the place of occurrence but at the same time he had claimed that he and some others had made arrangements for supply of electricity to their respective houses from a tubewell installed in the land owned by one Azhar which was situated near the complainant's house. This claim of the complainant had not been refuted or proved to be false by the defence through any material whatsoever. The learned counsel for the appellant has stressed that no electric bulb had been secured from the place of occurrence but in this connection we have noticed that the investigation of this case had been conducted by Saeed Anwar Khan, S.H.O. who could not be produced before the learned trial Court due to his absconscion in some other criminal case and the steps taken by him during the investigation of the case had been proved by Jafar Ali, A.S.-I. -(P.W.11) by recognizing his handwriting. It is, thus, not clear from the judicial record as to whether the relevant electric bulb had in fact been secured by the Investigating Officer or not. In that peculiar backdrop we are in no position to hold that it is the prosecution which is to be blamed for absence of evidence on the judicial record regarding recovery of an electric bulb by the Investigating Officer. Be that as it may the fact remains that Zahoor Ahmed complainant (P.W.4) and Muhammad Nawaz appellant happen to be first paternal cousins of each other and they lived in the same village. It is, thus, quite believable that even in the absence of the electric light the complainant could be in a good position to identify the appellant after waking up at the spot.

11. We have already observed above that Zahoor Ahmed complainant (P.W.4) is a real brother of Noor Iqbal deceased and was a resident of the same house where the occurrence had taken place and also that Muhammad Nawaz appellant happens to be a first paternal cousin of the complainant. The complainant was a natural witness of the occurrence and it is difficult to believe that he would substitute the real murderer of his brother and falsely implicate his first paternal cousin for the same. We have, however, entertained some doubt regarding the claimed presence of Allah Yar (P.W.5) at the scene of the crime at the relevant time. Allah Yar (P.W.5) was maternal uncle of Noor Iqbal. deceased and he had admitted before the learned trial Court that he had his own separate house in the same village where the occurrence had taken place. This witness had advanced no reason whatsoever for his sleeping in the house of the complainant during the fateful night. Thus, by way of abundant caution, we have decided not to place a whole-hearted reliance upon the statement made by Allah Yar (P.W.5) but at the same time we have found the statement made by Zahoor Ahmad complainant (P.W.4) to be worthy of implicit reliance.

12. The motive set up by the prosecution had sufficiently been proved before the learned trial Court through documentary evidence in the shape of Exh.PN to Exh.PR/1 which clearly established a prolonged litigation between the parties emanating from dissatisfaction of the accused party with some consolidation proceedings through which some property jointly owned by the parties was transferred in favour of the complainant party. The defence in this case was in no position to controvert or contradict the said documentary evidence produced by the prosecution. The motive set up by the prosecution, thus, stood amply established and the same provided corroboration to the ocular account furnished by Zahoor Ahmad complainant (P. W.4).

13. Admittedly no crime-empty had been recovered from the place of occurrence and, thus, the gun .12 bore recovered from the appellant's possession during the investigation of this case did not stand connected with the murder in issue. It, however, cannot be lost sight of by us that the medical evidence had provided support to the account furnished by the complainant inasmuch as the date and time of occurrence, the weapon used and the locale of the injury stated by the complainant had all been confirmed by the medical evidence.

14. For what has been discussed above we have entertained no manner of doubt that it was the appellant and none else who had committed the murder of Noor Iqbal deceased at the time and place and in the manner alleged by the prosecution. It may be mentioned by us here that by virtue of the provisions of section 172(2), Cr.P.C., it is permissible for us to use the police-diaries of this case not as evidence but to aid us in arriving at a just, fair and correct conclusion and, thus, we have perused such police-diaries of this case for our own satisfaction. For whatever its legal worth and evidentiary value the statement made by Muhammad Nawaz appellant before the Investigating Officer on 28-6-1998 immediately after his arrest in connection with this case has been found by us to be going a long way in confirming our conclusion about his guilt which we have already arrived at above on the basis of the judicial record of this case.

15. As a sequel to the discussion made above Criminal Appeal No.1907 of 2000 filed before this Court by Muhammad Nawaz appellant is hereby dismissed and his conviction and sentence recorded by the learned trial Court are maintained and upheld with a slight modification that in case of default in payment of compensation the appellant shall undergo simple imprisonment for six months instead of rigorous imprisonment for six months as ordered by the learned trial Court.

16. Murder Reference No.25 of 2001 is answered in the affirmative and the sentence of death passed by the learned trial Court against Muhammad Nawaz appellant is hereby confirmed. H.B.T. /M-224/L???????????????????????????????????????????????????????????????????????????????? Appeal dismissed.