2003 PLP 1759 (MLD)

On the fateful day at 9-15 a.m. complainant alongwith his brother Mehmood-ul-Hassan and Muhammad Akhtar Mehmood was available at Mian Optical Service. Ijaz Ahmed, Rawal by Caste was also present at his wrist watch stall which is close to the shop of the complainant. Just then Del.4war Khan appellant armed with a .12 bore gun alongwith two others namely Mosawir armed with pistol and Sultan alias Tani carrying a mauser came from the side of Sarafa Bazar Chowk while riding an motorcycle. They parked their motorcycle in front of shop of the complainant and came at its door. Delawar Khan made fire at Mahmood-ul-Hassan. It was followed by another shot by Mosawir hitting on right flank of Muhammad Akhtar Mehmood. Delawar Khan appellant then made another shot which struck on the right axilla. Accused after achieving their goal left towards post office road by the same motorcyle. Complainant immediately transported the victims to Gojra Hospital but Mehmood-ul-Hassan succumbed to his injuries before reaching the hospital. Muhammad Akhtar Mehmood and Ijaz Ahmad left in the hospital to guard against the dead body. Noor Ahmad Khan S.I./S.H.O. (P.W.13) drew up complainant (Exh.P.F.) at 10-15 a.m. in the hospital and despatched the same through a constable to the police station for formal registration of a case against the accused. Accordingly on receipt of complaint (Exh.P.F.) Muhammad Rasheed MHC reduced into writing formal F.I.R. (Exh.P.F./1) at 10-30 a.m. Prior to the occurrence Delawar Khan appellant picked up a quarrel over boarding of passengers with Maqbool Ahmed, brother of the complainant and feeling aggrieved of the earlier dispute, committed the crime in question.

5. Investigation into the crime commenced forthwith after registration of the case. The police after investigation found the appellant guilty and challaned him to the Court to face his trial. The prosecution in order to establish charge against the accused. produced as many as thirteen witnesses in all. Dr. Muhammad Aslam (P.W.1) medically examined Muhammad Akhtar Mehmood and found one lacerated wound on his person. It was fire-arm injury Exh.P.A. is report of the Doctor. Dr. Muhammad Ashraf (P.W.2) performed autopsy on dead body of Mehmood-ul-Hassan and found three injuries on his person. In his opinion the cause of death was shock and haemorrhage due to injuries Nos. 1, 2 and 3 collectively which were sufficient to cause death in the ordinary course of nature. Muhammad Arshad complainant (P.W.11) and Mehmood Akhter injured (P.W.12) are eye-witnesses of the occurrence. They in a nutshell reiterated story of the F.I.R. They fully supported the prosecution version.

6. Learned prosecutor after tendering in evidence report of Chemical Examiner (Exh.P.O.), and report of Serologist (Exh.PP), copy F.I.R. No.147/95 (Exh.PN) and copy of report under section 173, Cr.P.C. declared the prosecution case close.

7. Now trial shifted to next important phase, in which the appellant was called upon to make his statement under section 342, Cr.P.C. to explain all incriminating evidence adduced against him. He proclaimed his absolute innocence, in the matter and alleged his false involvement in the case. He opted neither to appear as his own witness under section 340(2), Cr.P.C. nor produced any evidence in defence.

8. The learned trial Judge after considering totality of facts and circumstances revolving around this matter, pronounced verdict of guilt against the appellant and punished him as aforementioned.

9. The way in which learned counsel for the appellant in his attractive arguments to this Court has put the matter is as follows: "He submits that F.I.R. was recorded by the police after preliminary investigation containing a fictitious tale of occurrence; that P.Ws. namely Muhammad Arshad (P.W.11), Muhammad Akhter (P.W.12) and Ijaz Ahmad were neither present at the spot nor had seen the; occurrence. They are not truthful witnesses and the trial Court has wrongly acted on their testimony; that the eye-witnesses are real brothers of the deceased and that the appellant had no reason to kill the deceased."

10. Conversely, learned counsel for the State assisted by learned counsel for the complainant forcefully repelled contentions raised by learned counsel for the appellant by submitting that the eye-witnesses had no animus against the appellant to furnish false voucher against him to implicate him falsely in a case involving capital punishment. The trial Court has rightly believed their testimony. Motive is fully proved and ocular account is in line with the medical evidence. Prosecution has successfully established murder charge against the appellant who stood rightly convicted and punished by the learned trial Court.

11. We have very carefully attended to the submissions made by the learned counsel for both the sides and have gone through the evidence. We have already furnished prosecution story in the preceding paragraphs of this judgment. Both the eye-witnesses have consistently adhered to the prosecution version word by word, any, letter by letter. It is broad daylight occurrence taking place in a Bazar of Gojra Town. This occurrence could not have been remained unnoticed. Both the witnesses knew Delawar Khan appellant fully well so, there could be no question of mistaken identity. Ijaz Ahmad who was an injured witness was won over and for that reason prosecution wisely did not produce him before the trial Court. Although he fully supported prosecution version during course of investigation. There is no material dispute with regard to date, time and place of occurrence Delawar had sufficient reasons at his end towards killing the deceased. Mehmood Akhter is an injured eye-witness of the occurrence. Presence of both the eye-witnesses is natural because the occurrence had taken place just outside of their shop. Manner and mode of occurrence has been consistently described by the witnesses. They were cross-examined at a considerable length by the defence but miserably failed to derive any advantage out of the whole exercise Aimless cross-examination exacted upon them failed to bring fruit into their laps. Their testimony remained unshaken. We have no hesitation to hold that they are natural witnesses of the occurrence. They are not actuated with malice aforethought to wish the appellant maximum harm by deposing falsely in a case involving capital punishment. How brothers could join hand with each other to accused innocent persons for the murder of then real brother. There was no formidable hindrance in their way to visualise the occurrence and whatever they saw, narrated the same before the police expeditiously. In this case there was no need to enter into deliberation and consultations with other to build up a story to implicate the appellant and other falsely in this case. Expeditious registrations of case against the appellant and others is a handsome proof of the fact that the complainant side did not counsel with anyone to fabricate a fictitious tale of occurrence. After all real brother of the eye witnesses had been killed by the appellant and other in a most barbaric manner, so how could they let this murder go waste by wrongly involving the innocent persons. Mehmood Akhter is an injured eye witness. His presence cannot be doubted at the spot by any stretch of imagination. We have X-ray the whole evidence more especially in respect of Mehmood-ul-Hassan deceased. Ocular account is in consonance with the medical evidence. Background of hostility is also available on the surface of evidence. The appellant has lawfully failed to plead single circumstance relying on which we may infer his false implication in the case. Strangely enough no representation seems to have made by the appellant or others before any forum tending to show that they were victims of malicious prosecution. None from the locality of occurrence appeared before the police or before the trial Court to state that the appellant or others were not responsible for the crime imputed to them and they had been wrongly implicated.

12. Report of Forensic Science Laboratory is in the negative so recovery of gun (P.5) from the appellant is inconsequential.

13. In the instant case, no extenuating circumstances in the matter of sentence could be located by us from evidence, so we have no other option but to maintain convictions and sentences passed against the appellant while dismissing this appeal. Death sentence awarded to Delawar Khan appellant is confirmed and murder reference is answered into affirmative.

14. We find that the learned trial Judge has used word "fine" instead of compensation to be paid to legal heirs of the deceased. Word "fine" shall be substituted by compensation. In default of payment of compensation, the appellant shall undergo simple imprisonment for six months instead of rigorous imprisonment for two years: Likewise order relating to the payment of compensation of Rs.3,000 to injured Muhammad Akhter Mehmood is also illegal and is accordingly, set aside. Only Daman could be ordered to be paid to Muhammad Akhter Mehmood, victim of assault which has already been done in this matter.

15. With the above modifications this appeal is dismissed. H.B.T./D-60/L Order accordingly.