2003 P Cr (PLP)

ASIF SAEED KHAN KHOSA, J.

Muhammad Hussain appellant was convicted for an offence under section 302(a), P.P.C. vide judgment dated 7-9-1998 handed down by the learned Additional Sessions Judge, Sheikhupura and was sentenced to death and to pay a fine of Rs.50,000 or in default of payment thereof to undergo rigorous imprisonment for six months. It was ordered by the learned trial Court that half of the fine, if recovered, shall be paid to the heirs of Irshad Ali deceased by way of compensation under section 544-A, Cr.P.C. However, through the same judgment the learned trial Court acquitted three co-accused of the appellant. The appellant has challenged his conviction and sentence before this Court through Criminal Appeal No.881 of 1998 which has been heard by us alongwith Murder Reference No. 4 of 1999 seeking confirmation of the sentence of death passed against the appellant. We propose to decide both these matters together through the present consolidated judgment.

2. The prosecution's case unfolded in the F.I.R was that Zulfiqar Ali complainant was resident of a Chak Nadara situated within the area of Police Station Sadar, Farooqabad, District Sheikhupura and was an agriculturist by profession. In the evening of 4-4-1995 the complainant and his brother namely Irshad Ali were proceeding from their Dera towards their house and when they reached near Haji Siddique Wali Mosque they met Sanatta, Talib Hussain and Ashiq P.Ws. on the way and the complainant got busy in talking to them. In the meanwhile the complainant's brother namely Irshad Ali, who was carrying his licensed rifle 8MM on his shoulder, had proceeded further. At about 5-30 p.m. during the same evening when the complainant and others reached near a Chowk having shops around it and when Irshad Ali had already crossed that Chowk suddenly Muhammad Hussain appellant, armed with a .12 bore gun, Shahbaz accused armed wit a rifle 7MM, Hayat accused armed with .a .12 bore gun and Ismail accused armed with rifle 7MM alongwith two unknown persons emerged therefrom behind a tree and launched an assault upon Irshad Ali. Muhammad Hussain appellant fired at Irshad Ali hitting on his back and left upper arm. When the complainant and others tried to handle Irshad Ali the appellant and his co-accused started raising Lalkaras and indulged in aerial firing deterring the complainant party from going. near the injured Irshad Ali. Shahbaz accused then took the rifle of Irshad Ali and thereafter the appellant and his co-accused decamped from the spot while raising Lalkaras Irshad Ali succumbed to his injuries and died at the spot. The motive set up in the F.I.R. was that the appellant and his co-accused were inimical towards the complainant party on account of two criminal cases pending between them and it was in the sad background of animosity that Irshad Ali deceased had been done to death. It was maintained by the complainant in the F.I.R. that he could identify the unknown culprits mentioned above if they were brought before him. Leaving the dead body of Irshad Ali deceased at the spot in the care of the other witnesses the complainant proceeded to report the matter to the police but on his way he met with Muhammad Yaqub, S.-I. (P.W.7) at Check Post Sucha Sauda and made a statement before him in. respect of the said incident at 8-45 p.m. on 4-4-1995. Formal F.I.R. No.71 was registered in that regard at Police Station Sadar, Farooqabad, District Sheikhupura at 9-05 p.m. during the same night for offences under sections 148/302/149, P.P.C.

3. The investigation of this case was conducted by Muhammad Yaqub, S.-I. (P.W.7) and then by Muhammad Saleem Butt, S.-I. (P.W.10) who got the dead body of Irshad Ali deceased subjected to post mortem examination, arrested the appellant and his co-accused, effected recoveries from the spot as well as from Ismail co-accused and after completion of investigation submitted a challan.

4. At the commencement of the trial the learned trial Court framed a charge against the appellant and his co-accused to which they pleaded not guilty and claimed a trial. During the trial the prosecution produced ten witnesses in support of its case against the appellant and his co accused. Zulfiqar Ali complainant (P.W.5) and Sanatta (P.W.6) furnished the ocular account of the incident in question and also deposed about the motive. The medical evidence was provided by Dr. Muhammad Aslam Hameed (P.W.4). Muhammad Yaqub, S.-I. (P.W.7) and Muhammad Saleem Butt, S.-I. (P.W.10) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was `more or less of formal nature. In their statements recorded under section 342, Cr.P.C. the appellant and his co-accused denied and controverted all the allegations of fact leveled against them by the prosecution and professed their innocence. The appellant took up a plea of alibi whereas Ismail co-accused admitted killing Irshad Ali deceased in exercise of his right of private defence. The other co-accused of the appellant denied their presence at the spot at the relevant time. The appellant made his statement on oath under section 340(2), Cr.P.C. and appeared before the learned trial Court as D.W.1. He also produced Abdul Sattar (D.W.2) in support of his plea of alibi. The appellant's co accused, however opted not to make any statement on oath under section 340(2), Cr.P.C. and also failed to produce any witness in their defence. At the conclusion of the trial the learned trial Court acquitted the appellant's three co-accused but, after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt, convicted and sentenced the appellant as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.

5. 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 prosecution had failed to prove its case against the appellant beyond reasonable doubt. The main thrust of the arguments advanced by the learned counsel for the appellant has been that the eye-witnesses produced by the prosecution were inimically disposed towards the appellant and they had not been relied upon by the learned trial Court to the extent of the appellant's co-accused and, thus, the conviction of the appellant could not be recorded by the learned trial Court in the absence of any independent corroboration which was non-existent in this case. It has also been argued by him that Ismail co-accused had admitted killing Irshad Ali deceased, the weapon of offence had been recovered from his possession and the Investigating Officer had also concluded that it was Ismail co-accused alone who had committed the murder of Irshad Ali deceased. Thus, according to the learned counsel for the appellant, the learned trial Court was not justified in convicting the appellant while acquitting Ismail co-accused. As against that the learned counsel for the State maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, his conviction and sentence recorded by the learned trial Court do not warrant any interference by this Court. She has further maintained that the investigation of this case had not been conducted honestly and a malicious attempt had been made by the Investigating Officer to save the appellant at the cost of Ismail co-accused who happens to be a servant of the appellant.

6. After hearing the learned counsel for the parties and going through the record we have noticed that the occurrence in this case had taken place during daylight and the F.I.R. in that respect had been lodged by the complainant with reasonable promptitude containing therein all the necessary details about the offences as well as the offenders. Apart from that the murder in this case had taken place in the main Chowk of the relevant village rendering it well nigh impossible to believe that the occurrence in question could have remained unwitnessed and the perpetrator of the same would have gone unnoticed or unidentified. The claim of Zulifqar Ali complainant (P.W.5) and Sanatta (P.W.6) regarding their presence at the spot at the relevant time has not been found by us to be unreasonable or unbelievable as they were statedly proceeding at that time from their Dera to their house in the village. It was nowhere disputed by the defence that the route being followed by the said eye witnesses was the normal route between their Dera and their house and even otherwise proceeding of such persons from their Dera to their house in the evening was neither unnatural nor unusual. Both the said eye witnesses had made consistent statement regarding the main incident and their forthright and straightforward statements had not only impressed the trial Court but the same have also inspired our confidence. It may be true that both these eye-witnesses are closely related to Irshad Ali deceased but at the same time it is equally true that mere relationship with the deceased is never to be considered as a sufficient ground per se for discarding testimonies of eye-witnesses 'on that score alone. We may add here that we are conscious of the fact that the parties to this case were inimical towards each other and that is why we have scrutinized the statements of these witnesses with the necessary care and caution. In this respect we have noticed that it was Ismail co-accused who had been injured in the motive incident and was the star witness against the complainant party of this case in the criminal case based upon that incident and, thus, if the eye witnesses in this case were to get even with him in connection with the motive case then they could have conveniently attributed the main role in the present case to Ismail co-accused but they did not do so and to us this is an indication of truthfulness of the eye-witnesses produced by the prosecution in this case.

7. The ocular account furnished by the prosecution in this case has received sufficient corroboration from the motive set up by the prosecution inasmuch as pitched enmity between the parties to this case had been sufficiently established on the record and in the criminal case forming the motive for the present occurrence the appellant was the complainant and Irshad Ali deceased was one of the accused persons. Ismail co-accused was the injured 'victim -in that motive case and it is available on the record that the said Ismail is a servant of the present appellant. It is, therefore, quite clear that it was the present appellant who was the main defender of Ismail co-accused and others and in the past too it was he who was championing and espousing their cause and grievance. In this background motivation on the part of the appellant to commit the murder of Irshad Ali deceased has not appeared to us to be in serious doubt. It is also available on the record, that that throughout the year following the motive incident altercations had been taking place between the complainant party and the accused party of this case keeping the flame of hatred and enmity burning. Apart from that the injured victim of the motive case was a servant of the present appellant and keeping in view the notions of prestige and honour of landlords in this part of the world it is quite believable that the appellant had taken upon himself to vindicate his prestige and honour in the village by himself avenging the injury and insult of his servant.

8. The eye-witnesses produced by the prosecution in this case had also received ample support from the medical evidence inasmuch as the same had confirmed the time of occurrence, the weapon used and the locale of injuries sustained by the deceased as stated by the eye witnesses.

9. Although no weapon had been recovered from the appellant's possession during the investigation of this case yet we have felt that such failure on the part of the Investigating Officer was a part of his manifest design to screen the appellant by shifting the burden on to his servant namely Ismail co-accused from whom a fire-arm had been recovered in this case. It appears that during the investigation of this case Ismail co accused, established to be a servant of the present appellant, had made an attempt to come to the rescue of his master by volunteering and. coming forward with a stand that it was he and not the appellant who had fired) the fatal shot at Irshad Ali deceased. However, the circumstances in which such a stand had been taken by Ismail co-accused before the Investigating Officer and subsequently before the learned trial Court have appeared to us to be indicative of a wicked stratagem on the part of the Investigating Officer of this case to screen the appellant from the grave charge in this case and to pass on the burden in that regard to his volunteering servant which contrivance too, unfortunately, is not an unusual phenomenon in this part of the world. More often than not such a ruse is employed for deflecting the course of justice and it is for this obvious reason that the learned trial Court had discarded this aspect of the matter and we too are not ready to accept any of this.

10. The plea of alibi advanced by the appellant had not been established through any independent or reliable evidence inasmuch as the same had been supported not by any documentary evidence but only by the oral testimony of Abdul Sattar (D.W.2) who had admitted being a fast friend of the appellant. In the absence of any other independent confirmatory evidence or circumstance in that regard we have not found the said plea of the appellant to be worthy of any serious consideration.

11. For what has been discussed above we have arrived at confident conclusion that the prosecution had indeed succeeded in proving its case against the appellant beyond reasonable doubt. The appellant had not only done the deceased to death in colic blood after sitting in ambush but had also tried to deflect the course of justice by setting tip his own servant as the main culprit in this case. We have failed to find any mitigating circumstance in this case so as to warrant reduction of the appellant's sentence. The normal wages of a crime of murder is death and in the circumstances of this case the appellant deserves no less.

12. As a sequel to the discussion made above Criminal Appeal. No.881 of 1998 is dismissed and the conviction and sentence of the appellant recorded by the learned trial Court are upheld and maintained with a modification that instead of section 302(a), P.P.C. the appellant's conviction shall be deemed to be a conviction under section 302(b), P.P.C. by way of Ta'zir and the sentence of fine passed by the learned trial Court against the appellant shall be treated as an order regarding payment of compensation by the appellant to the heirs of Irshad Ali deceased and in case of failure of the appellant to pay the same he shall suffer simple imprisonment for six months instead of rigorous imprisonment for six months ordered by the learned trial Court.

13. Murder Reference No 4 of 1999 is answered in the affirmative.

14. The sentence of death passed against Muhammad Hussain appellant by the learned trial Court is confirmed. M.B.A./M-1851/L Order accordingly.