2003 PLP 932 (SCMR)

D NAWAZ ADBASI, J.

This petition under Constitution of Islamic Republic of Pakistan has the judgment, dated 13-7-2001 passed by a learned Division Bench of Lahore High Court, Bahawalpur Bench, in Murder Refernce No .3 of 1999 sent by learned Additional Sessions Judge, Chishtian under section 374, Cr.P.C. to the Hiizh Court and the Criminal Appeal No.14 of 1999 filed by the petitioner against his conviction and sentence. The relevant facts of the case as contained in the report lodged by Muhammad Bakhsh at Police Station Shahar Farid, Bahawalpur, on 26-6-1996 at 6-45 p.m., on the basis of which a case under section 302(b), P.P.C. was registered against the petitioner, are that petitioner was a tenant in the land of Bhaini Walidad Lakhvcca in village Meero Balloch and was neighbour of Muhammad Bakhsh complainant, who alongwith his family members was in self-cultivation of the land owned by him in the village. About y4 days prior to the occurrence a buffalo from herd of cattle being driven by Muhammad Iqbal (deceased) trespassed into the wheat crop of Sarfraz, petitioner as a result of which the deceased and petitioner exchanged trot words and the matter was patched up but the petitioner having borne grudge in his mind was revengeful. On the fateful day at about 5 p.m. the petitioner while armed with 12 bore gun challenged Muhammad Iqbal who was proceeding to his house with herd of cattle, when the petitioner while using abusive language fired at Muhammad Iqbal which hit on his legs. The complainant to save himself took shelter behind a tree and on the report of gun shot, Shaheen younger brother of the first informant and Ghulam Farid (P.W.6) also attracted to the place of occurrence. In the meantime the petitioner fired a second shot which hit Muhammad Iqbal at his neck and face and he fell on the ground. The petitioner then fired a third shot at Muhammad Iqbal from a close range which hit on his head. The petitioner after firing at Muhammad Iqbal escaped from the place of occurrence and Muhammad Iqbal succumbed to the injuries at the spot. Zahid Majid S.-I (P.W.3) after registration of the case, reached at the spot and prepared rough site-plan, secured blood stained earth in a sealed parcel and took into possession three crime empties from the place of occurrence. The Sub-Inspector, having prepared inquest report and injury statement of the deceased dispatched the dead body to mortuary for post-mortem under escort of a police constable. The post-mortem on the dead body was conducted by Dr. Shaukat Rifat Mirza (P.W.2) who found the following injuries on the person of deceased:-- (1) Minute wound with blackening of margin on the right thigh above the knee-joint. (2) Minute wound with blackening of margin on the left thigh outer side above the knee-joint. (3) A spherical wound with inverted and blackening of margin below the chin on the neck. (4) An oval wound on right side of neck with blackening (5) A tiny wound with black margin on the cheek, (6) An oval sperture with black margin on vertex of skull. In the opinion of the doctor, death was caused due to injuries Nos.3 to 6 which were found sufficient to cause death in the ordinary course of nature. The accused was arrested on 28-2-1996 and he led to recovery of .12 bore gun (P.4) on 29-2-1996. The Sub-Inspector on completion of formal investigation submitted the challan against the petitioner. The prosecution in addition to the eye-witnesses, namely, Muhammad Bakhsh (P.W.5) and Ghulam Farid (P.W.6) also produced the doctor who conducted post-mortem upon the dead body, the Investigating Officer and police officials who remained associated with the investigation. The eye-witnesses in their deposition have fully supported the prosecution case as narrated in the F.I.R. and corroborated each other on each material point without any describable discrepancy or contradiction. They having witnessed the recovery of gun from the petitioner also deposed in proof of recovery and motive part of the prosecution story. The accused in his statement under section 342, Cr.P.C. denied the allegation and pleaded innocence. The learned trial Judge having discussed the evidence in detail came to the conclusion that prosecution was successful in proving the charge against the petitioner and consequently while convicting him under section 302(b), P.P.C. vide judgment, dated 28-1-1999 awarded him sentence- of death. Additionally, the petitioner was also directed to pay Rs.20,000 as compensation to the legal heirs of the deceased and in default of payment of compensation he was directed to suffer S.I. for three months. The amount of compensation payable to the legal heirs of deceased was made recoverable as arrears of land revenue. The petitioner challenged his conviction and sentence before the learned Lahore High Court, Bahawalpur Bench through, Criminal Appeal No. 14 of 1999 and a learned Division Bench while maintaining the conviction and sentence awarded to him by the trial Court vide judgment, dated 13-7-2001 dismissed the criminal appeal and answered the murder reference in affirmative. Learned counsel for the petitioner has sought leave to appeal on the following grounds:

(a) That witnesses being closely related to the deceased were interested and not trustworthy, therefore, their testimony without independent corroboration was not reliable. (b) That according to eye-witnesses shots we:e tired at the deceased from a reasonable distance whereas injuries on his person were found with blackening which would show that the shots were fired from a close range and thus the ocular account was in conflict to the medical evidence. (c) That the evidence of recovery was disbelieved by the learned trial Judge and the motive part of the prosecution story was not established beyond doubt, therefore, it can safely be concluded that the occurrence was unseen and did not take place in the manner as suggested by the prosecution. The learned counsel concluded that in the given situation the prosecution story being cloudy, was not free from doubt and petitioner would be entitled to acquittal. The prosecution case mainly rests upon. the evidence of Muhammad Bakhsh (P.W.5) real brother of deceased and Ghulam Farid (P.W.6) brother-in-law of the complainant who being eye-witness of the occurrence supported the prosecution case as contained in the F.I.R. without any exaggeration. The parties belong to same village and there was no enmity between them before the incident of exchange of hot words between the deceased and the .petitioner 2/3 days prior to the occurrence on trespassing of buffalo of the deceased in the wheat crops of the petitioner which led to the fateful occurrence. It is in the evidence of eye-witnesses that petitioner while armed with .12 bore gun, fired three shots successively at the deceased as a result of which deceased sustained , six injuries on different parts of his body and there was blackening around all injuries. The different locale of the injuries would suggest that the same were the result of more than one shots, therefore, the eye-witness account would not be in conflict to the medical evidence. The perusal of statement of Ghulam Farid (P.W.6) would show that there was reasonable distance between the accused and the petitioner at the time of alleged occurrence and if shot was fired from the said distance the blackening around the injuries would not be possible. We may point out that Muhammad Bakhsh (P. W.5) in an unequivocal words stated that the petitioner fired at the deceased from a distance of five feet and thus in the light of statement of Muhammad Bakhsh (P. W.5) it can be visualized that (P.W.6) had a mistaken idea of distance therefore, it would not be a valid ground to contend that either medical evidence was in conflict to the ocular account or the occurrence was unseen and had not taken place in the manner as stated by the witnesses. The motive relating to quarrel between the deceased ad petitioner a day earlier was in the direct knowledge of Muhammad Bakhsh, real brother of the deceased, as both brothers were living under joint family system. This is important to note that except the quarrel in question between the deceased and the petitioner 2/3 days prior to the occurrence, they had no grudge or enmity against each other, therefore, this petty matter would not provide a strong reason to falsely implicate the petitioner. The witnesses were entirely independent and nothing was brought on record that either they were partial or not trustworthy and their deposition was not independent. The perusal of record would show that ocular account of unimpeachable character in the present case was seeking sufficient corroboration from the medical evidence and motive and in the given facts, the exclusion of evidence of recovery from consideration by the trial Court would not affect the prosecution case against the petitioner. For what has been discussed above, we are of the considered view that the charge against the petitioner of committing murder of Muhammad Iqbal was proved beyond all reasonable doubts and the finding of guilt arrived at by the learned trial Judge and affirmed by the learned High Court would not call for interference. We, therefore while maintaining the conviction and sentence awarded to the petitioner dismiss this petition. Leave refused.