2007 PLP 1535 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, L.-Muhammad Waris son of Muhammad Saleem of Ghakkar Mandi, Gujranwala, was tried by learned Additional Sessions Judge XIII, Peshawar and convicted under section 302/324/337, P.P.C. He was variously sentenced including imprisonment for life, for causing murder of Atta Ullah, vide judgment, dated 6-4-2005.

2. The learned Peshawar High Court upheld the conviction as well as the principal sentence with slight modification in the sentence of other offences. Muhammad Waris seeks leave to appeal from such judgment, dated 24-1-2007.

3. Muhammad Waris and his absconding co-accused Nadeem were running a butcher shop in Gulbahar No.1, Peshawar. They had some dispute with Anwar Shah of the same vicinity. On the night of 17-10-2002, Anwar Shah along with his family and another Atta Ullah (35), a nephew of his wife Mst. Parveen Nazli, were all asleep. Atta Ullah was on the ground floor while the other family was at the upper floor. At past mid-night someone rang the door bell. Mst. Parveen Nazli woke up and looked through window. She saw Nadeem and Waris standing by the door of the house. Mst. Parveen Nazli asked them the reason for being there at such odd hour of the night. Nadeem replied that he had some important business with Anwar Shah. The latter was awakened by his wife and he proceeded down stairs. After some time, she heard hue and cry whereupon she rushed to the spot and saw that her husband Anwar Shah and her nephew Atta Ullah were lying injured in pool of blood. The assailants had tried to slaughter both Atta Ullah succumbed to his injuries while Anwar Shah survived stab injuries on his neck. Parveen Nazli took both of them to the casualty of Lady Reading Hospital where she lodged the report at 0120 hours, of occurrence that had taken place at 0005 hours.

4. So far as the prosecution case is concerned, it originates from a promptly lodged F.I.R., keeping in view the odd hour of the night. The testimony of Anwar Shah injured witness and Mst. Parveen Nazli, the complainant is relied upon as ocular. It gets strong support from the post-mortem report of Atta Ullah deceased coupled with the medico-legal report of Anwar Shah. The inmates of the house at such hours of the A night are the most natural witnesses whose presence cannot be doubted. The prosecution has given a motive to kill while there is no motive at all for false implication. Co-accused Nadeem, the brother of petitioner, is an absconder even today. While agreeing with the learned High Court as well as the trial Court, we hold that the prosecution has proved its .case beyond any shadow of doubt. In the given circumstances, the conviction is-also proper.

5. Learned counsel for the petitioner opened his case by arguing that Parveen Nazli, according to her own version in the F.I.R. was not an eye-witness. That Anwar Shah who, as per his statement, had gone upstairs to fetch a glass of water, was also not an eye-witness because by the time he came back Atta Ullah deceased had stood slaughtered and Anwar Shah had not seen the two "accused actually slaughtering him.

6. Not only that we do not agree with the learned counsel but would rather observe that the testimony of Parveen Nazli and Anwar Shah, in the given circumstances, was so true and so natural that it provided a strong and infalliable circumstantial evidence, better than any evidence which the learned defence counsel dubs as ocular.

7. Farveen Nazli, complainant is an eye-witness to the presence of Nadeem and Waris on the main door when she answered the call. Not only that she saw them but she also talked to them and thereafter awoke her husband. It was Anwar Shah who went downstairs, opened the door and received the two accused who were made to sit in the room where Atta Ullah was asleep. If he goes to fetch a glass of water and on his return in a short time finds Atta Ulah butchered and the two accused present in the room with daggers, no one can deny this to be a strong piece of circumstantial evidence, particularly, when the odd hour of the night is throughout kept in mind. Moreover, when Anwar Shah returned to the room in a very short time, the two accused had not decamped but were still present in the roam. They launched an attack on Anwar Shah as well, injured him at the vital part and his hue and cry attracted the wire as well: It was only then that the assailants took to their heels. Nothing could be more abrupt and more natural than what happened on the spot and what- the inmates witnessed. To say that no one from the neighbourhood was attracted, is to ask too much and too rare especially at mid-night. The assailants had completed their job within minutes and by the time any neighbour would have got attracted, they had gone and disappeared.

8. The next objection of the learned counsel was that why the report was lodged by Parveen Nazli when, according. to doctor, her husband Anwar Shah was conscious in the hospital. This too is not reasonable because there is no hard and fast rule as to who among those, claiming to be eye-witness, should or must lodge the report. Anyone of them would have been equally better. Rather, we have observed that Parveen Nazli was a better complainant because she had confronted certain strong facts that had happened prior to her husband's getting up from sleep. The objection is without force.

9. The learned counsel for the petitioner, like it was before the High Court, also expected from us to draw an inference about some immoral connection between the complainant and her nephew Atta Uliah aged 35, and that, Anwar Shah having seen them in a compromising position, had killed Atta Ullah. That the present accused were involved due to some previous dispute. This manner of appreciation of evidence is totally unheard of in the realm of criminal jurisprudence. Such eventuality was never even suggested during trial. It sounds funny that the husband would find his wife in compromising position, would kill her partner, would spare his wife and the report would be lodged by the same woman against innocent strangers.

10. The contradiction in evidence that there was some loan dispute firstly alleged about Nadeem and later in evidence, about Waris is too minor to be called a contradiction. Both the assailants are working in the same place. They might have had some dispute with Anwar Shah, which might have been known to his wife in general terms about which Anwar Shah subsequently, became specific. Anyhow, the learned High Court was right in turning down this objection by observing that in the given circumstances where the assailants stand strongly connected with the commission of offence, the proof or non-proof of motive becomes irrelevant.

11. As a sequel to what is discussed above, we find no merit in petitioner's case. There is no misappreciation or non-appreciation of evidence in the concurrent finding of the two Courts, warranting interference by this Court. The petition is hereby dismissed and leave to appeal declined. N.H.Q./M-67/SC Leave refused.