2002 PLP 1806 (SCMR)

Date of hearing: 9th April, 2002. MUNIR A. SHEIKH, J.‑‑‑This petition is directed against the judgment dated 23‑1‑2002 of a Division Bench of the Lahore High Court through which appeal filed by the petitioner against his conviction under section 302, P.P.C. for commission of murder of Muhammad Rashid and sentence of death awarded to him by the learned Additional Sessions Judge, Gujranwala through judgment dated 26‑3‑1996 has been dismissed and murder reference answered in the affirmative.

2. The petitioner was tried for the murder of Muhammad Rashid in the Court of learned Additional Sessions Judge, Gujranwala. According to the facts given in F.I.R. No.151 (Exh.P‑1) recorded at Police Station Kot Laddah, District Gujranwala on the statement of Muhammad Rafiq/P.W.10 nephew of the deceased, the incident took place at.2‑30 p.m. on 9‑11‑1994. According to the complainant, he was cultivator by profession and had purchased straws (Parali) from one Noor Din Gujjar and in order to look after the same, two days prior thereto, he alongwith his brother's son Muhammad Rashid (deceased) had gone where Arshad Ali alias Achhu, the present petitioner who was servant of Ghulam Ali had a quarrel with Muhammad. Rashid alleging that he had come to that place for the purpose of Mukhbari against Ghulam Ali who had enmity with Barkat Ali Rajput on which deceased gave beating to the petitioner and petitioner had extended threats to Muhammad Rashid deceased that, he would take revenge of this insult. On the fateful day, at 2‑30 p.m., the complainant alongwith Muhammad Rashid deceased, Faqir Muhammad and Muhammad Akram, P.W.11 were collecting raw straws when Arshad Ali alias Achhu, the‑ present petitioner armed with .12 bore shotgun double‑barrel arrived there and after abusing Muhammad Rashid, raised Lalkara that he had come to take revenge. Muhammad Rashid returned the abuse. The present petitioner, all of a sudden, fired at Muhammad Rashid hitting at his front left side of abdomen, who after receiving injury fell on the ground. The complainant and the P.Ws. rushed towards him (Muhammad Rashid) and accused/petitioner fled away brandishing his gun. Muhammad Rashid was taken to R.C‑H. at Qila Deedar Singh in injured condition where he was examined by the medical officer and was referred to Civil Hospital, Gujranwala, due to his serious condition where he succumbed to the injuries at 6‑55 p.m.

3. The ocular account was furnished by Muhammad Rafique, complainant as P.W.10 and Muhammad Akram who appeared as P.W.11. The investigation was conducted by Hameed Ullah, A.S.‑I., P.W.12. The petitioner in his statement under section 342, Cr.P.C. took the following stand:‑‑ Ilyas alias Tonda resident of Soorat Abad is maternal nephew of Barkat Ali mentioned in F.I.R. My maternal grandparents and my paternal grandmother were residents of village Bago Dial, Police Station Narang Mandi, District Sheikhupura, Akhtar and Asghar, since murdered sons of Sharaf Din are my maternal cousin. A sister of said Akhtar is married to my brother. Karamat son of Fareed Bukhsh is first cousin and brother‑in‑law of Akhtar and Asghar. Akhtar etc. have land dispute with Akbar Ali etc. Karamat Ali made a murderous assault on said Asghar as a result of which I sustained injuries. Thereafter, Asghar was murdered by Karamat Ali. I was pursuing the murder case of Asghar alongwith Akhtar. The paternal grandmother of Ilyas Toilda namely Mst. Sabi also belongs to village Bago Dial. Mushtaq is the son of paternal aunt of Karamat Ali and is related to Ilyas Tonda. Ilyas Tonda was involved in murderous cases, and has committed various crimes alongwith Mushtaq etc. In their area and Mushtaq were committing crimes in the company of Ilyas Tonda in his area. Ilyas Tonda was helping the accused in the murder case of Asghar at Sheikhupura. I had given beating to Ilyas Tonda at Sheikhupura and also in village Bago Dial and forbade him for pursuing the case of Karamat Ali as he was visiting of our village in the company of notorious persons and even at Sheikhupura. Karamat Ali was sentenced to death for the murder of Asghar by the Additional Sessions Judge, Sheikhupura and Ilyas Tonda was heir of Karamat Ali threatened me to punish me because Karamat Ali has been sentenced due to my efforts. Ilyas Tonda, Mushtaq and Barkat Rajput above mentioned have involved me falsely in this case in connivance with the complainant party. I was not present at the spot, nor any gun was recovered from me. Police had challaned me against facts after arresting from my village. "

4. In support of the defence plea raised by him, the petitioner examined Manzoor Ahmed, Akhtar Ali and Muhammad Yaqoob as D.W.1, D.W.2 and D.W.3 respectively. It appears from the evidence of the defence witnesses that plea which the petitioner wanted to raise at that stage was of alibi.

5. The trial Court after considering the evidence of the prosecution, and the defence witnesses, examined by the petitioner came to the conclusion that the. defence plea as given by the said witnesses of the petitioner was not creditworthy, therefore, the wine was rejected. The evidence of the prosecution as found by the trial Court sufficient to bring home guilt to the petitioner beyond reasonable shadow of doubt, for the presence of P.W.10 and P.W.11 at the spot was held to have been proved and the medical evidence was found to have corroborated their ocular account. The petitioner was convicted under section 302, R.P.C. and sentenced to death with a compensation of Rs.50,000 to be paid to the legal heirs of the deceased, Muhammad Rashid under section 544‑A, Cr.P.C., in default whereof to undergo six months' R.I. through judgment dated 26‑3‑1996. The appeal tiled by the petitioner has been dismissed through the impugned judgment dated 23‑1‑2002 by a Division Bench of the Lahore High Court by which the murder reference was answered in affirmative, against which leave is sought.

6. Learned counsel for the petitioner, in the first instance, maintained that the learned Judges of the High Court did not discuss the merits of the evidence of defence witnesses produced by the petitioner, therefore, the judgment was violative of provisions of section 3‑67, Cr.P.C. as such it was outrightly a case of remand to the High Court for re‑writing the judgment afresh after considering the said evidence.

7. We find that in. the impugned judgment, after appraising the plea raised by the petitioner in his statement under 342, Cr.P.C., learned Judges of the High Court have taken note of tote fact that the petitioner also examined Manzoor Ahmed, Akhtar Ali and Muhammad Yaqoob as D.W.1, D.W.2 and D.W.3 respectively in his defence to prove his innocence. Though in the concluding para. of the judgment, the evidence of these witnesses has not been discussed but the fact remains that the learned Judges of the High Court were very much conscious about the evidence of these witnesses in defence. The question which arises is whether merely on this technical ground, the case. should be remanded as claimed by the learned counsel for the petitioner or this Court, in order to do complete justice should examine the said evidence and find whether it was necessary to do so. We with the assistance of the learned counsel for the petitioner have examined the entire record, scrutinized the evidence produced by the prosecution and the evidence of the witnesses examined by the petitioner in his defence namely D.W.1, D.W.2 and D.W.3 and find that the judgment of, the High Court impugned in this petition even if the evidence of the said defence witnesses is considered would not in any manner be adversely affected, for the said evidence as held by the trial Court for the reasons recorded therein could not be given any credence to dislodge the prosecution evidence which has proved the case against the petitioner beyond reasonable shadow of doubt.

8. Through the evidence of D.W.1, D. W.2 and D.W.3, the petitioner attempted to make out a case of alibi. In order to determine whether the evidence of these witnesses as regard this plea can be given any credence, we have examined the record as a .whole in order to find out as to at what stage of the investigation of the case after registration of F.I.R., this plea was raised, for according to the well‑settled law, such a plea if was truthful should have been taken at the earliest possible stage i.e., during the investigation of the case. According to the evidence of D.W.1 he allegedly appeared before the Investigating Officer and. wanted to get his statement recorded on behalf of the petitioner regarding plea of alibi. We have gone through the statement of Hameed Ullah (P.W.12)/Investigating Officer and find that no suggestion was made to him that any witness was produced by the petitioner in support of his plea of alibi rather no case of plea of alibi was made out in the cross‑examination. It may be mentioned here that incident took place in the village Sooratabad whereas the petitioner is resident of Thatha Rao, Police Station Wahndo, This witness when examined, clearly stated that he was told by the people that the petitioner was not present in village Thatha Rao on the day of occurrence and was further told by the people that he was not available in the said village before the occurrence took place. When questioned, he unequivocally stated that no one told him that petitioner was present in village Thatha Rao on the day of occurrence. In this view of the matter the plea of alibi which the petitioner attempted to prove through the evidence of D.Ws. was rightly held to be of no creditworthy and had been raised as an afterthought. Coming to the evidence of the prosecution, it may be mentioned here that the complainant party was resident of village Jalhan, District Gujranwala and they had purchased Parali in village Sooratabad and on the day of occurrence, they had gone there alongwith the deceased to look after the said Parali where the incident took place. It is in evidence that village Jalhan is situated only at a distance of 1‑1/2 miles from village Sooratabad, therefore, the presence of P.W.10 and P.W.11 at the spot at that time for the said purpose stands proved.

9. Learned counsel for the petitioner submitted that neither P.W.10 nor P.W.11 were present at the spot which fact is substantiated by the circumstance that according to the hospital record, it was one Muhammad Rafi who brought the deceased in the hospital and not P.W.10 who was his real uncle and P.W.11, who was his real nephew, therefore, their presence at the spot was highly doubtful, for instead of sending the dead body of the deceased through Muhammad Rafi one of them as a natural course of events should have brought the dead body to the hospital had they been present there. 10: It is in the evidence of Muhammad Rafiq, P.W.10 that Faqir Muhammad (given up) and Muhammad Akram, P. W. 11, both were standing beside him when occurrence took place and a period of about one hour was taken to take the injured Muhammad Rashid from the place of occurrence to Jhallan More from where he was transported to the Civil Hospital, Qila Deedar Singh where they reached at about 4 p.m. He also stated that he remained in Civil Hospital, Qila Deedar Singh, for about 10/15 minutes. He further stated that they reached the Civil Hospital, Gujranwala at about 6‑00 p.m. where deceased Muhammad Rashid succumbed to the injuries at about 7 p.m. It is in the evidence of P.W.11 Muhammad Akram that Muhammad Rafiq P.W.10, Faqir Muhammad (given up) and he himself took the injured Muhammad Rashid to Civil Hospital, Qila Deedar Singh and it was there that Muhammad Rafi joined them. Presence of Muhammad Raft in the hospital has been proved by Muhammad Rafiq and Muhammad Akram and it does not matter much if in the record, name of Muhammad Rafi was written as a person who had brought injured to the hospital instead of P.W.10 and P.W.11. The evidence on this point of P.W.10 and P.W.11 inspires confidence and being quite natural, therefore, the credibility of their evidence about their presence at the place and as such having seen the occurrence had not been adversely affected by the fact that in the record of the hospital, name of none of them was entered as a person who had brought dead body of the deceased in the hospital.

11. We have also noticed that to none of P.Ws.10 and 11, suggestion was made in the cross‑examination challenging the correctness of their statement that they were present at the spot and seen the occurrence, rather it appears that suggestions were made that while they were looking after Parali, the incident took place in a different manner, therefore, their presence at the spot was in this manner not disputed even by the petitioner, therefore, the defence plea which the petitioner wanted to prove was rightly held to be of not creditworthy by the High Court, and we also find that the evidence of D.W.1, D.W.2 and D.W.3 is of not evidentiary value, therefore, the same cannot be made the basis for remand of the case on technical ground merely because learned Judges of the High Court did not in detail discuss the same, for it can safely be presumed that by not doing so, they had concurred with the reasonings of the trial Court and did not feel it necessary to discuss the same, to avoid repetition.

12. In the cross‑examination, strangely a suggestion was made to P.Ws. that they had falsely implicated the petitioner in this case and the real culprits substituted at the instance of Barkat Ali Rajput, who had enmity with Ghulam Muhammad of whom the petitioner was servant. There is nothing on the record that complainant party had relation with either Ghulam Muhammad or Barkat Ali Rajput, therefore, they were not in any manner concerned with their enmity inter se as such, there was no reason as to why at the instance of Barkat Ali Rajput, the complainant party would substitute the real culprits and falsely involve the petitioner. On the other hand, the motive which has been disclosed in F.I.R. that petitioner being servant of, Ghulam Muhammad who admittedly according to the petitioner himself had enmity with Barkat Ali Rajput entertained a doubt that deceased was doing Mukhbari against Ghulam Muhammad which led to this incident, appear to be more plausible, for the petitioner on that account as observed earlier being servant of Ghulam Muhammad could very well have strong motive against the deceased.

13. The evidence in this case led by the prosecution and the petitioner in defence has not been shown to have either been misread or misconstrued therefore, the findings recorded by both the Courts below about the guilt of the petitioner do not suffer from any legal infirmity, for reappraisal of evidence satisfies the principles laid down by the superior Courts regarding appraisal of evidence in criminal case for safe administration of criminal justice. .

14. Lastly, learned counsel for the petitioner, submitted that the question of quantum of sentence may be considered, for according to him the incident took place at the spur of moment and according to the prosecution version, after one shot, the same was not repeated. The argument has no force. The petitioner was armed with double‑barrel gun at the spot, therefore, it is clearly established that he had come there fully prepared and merely because according to prosecution, shot was not repeated is no ground, for petitioner caused injury on the vital part of the deceased, which is sufficient to hold that he intended to cause his death, therefore, no case has been made out for lesser sentence.

15. For the foregoing reasons, this petition has no merits which is accordingly, dismissed and leave refused. Q.M.H./A‑223/S . Petition dismissed.