2007 PLP 2420 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Crimina. Appeal No.235 of 2000 filed by Abdul Ghafoor appellant against his conviction and sentence along with Murder Reference No.525 of 2000 sent by the learned trial Court under section 374, Cr.P.C. for confirmation of death sentence as both these matters have arisen from the same judgment dated 30-5-2000 passed by the learned Additional Sessions Judge, Rawalpindi through which he had convicted the said appellant under section 302(b), P.P.C. and sentenced him to death with compensation of Rs.1,00,000 disbursable to the heirs of both the deceased in equal share under section 544-A, Cr.P.C. or in default of payment thereof to undergo S.-I. for six months etc. The appellant was also convicted under section 324, P.P.C. and sentenced to 10 years' R.I. with a fine of Rs.20,000 for attempt to commit Qatl-e-Amd of Mahboob Hussain P.W. or in default of payment thereof to undergo S.I. for two months.

2. The occurrence in the present case was alleged to take place on .22-6-1997 at 7-00 a.m: at Mauza Mughal within the area of Dhok Feroze, 4 kilometer away from Police Station Rawat - District Rawalpindi while the matter was reported by Zairaf Ali (P.W.1) real son of the deceased Saif Ali through statement (Exh.P.C.) recorded under section 154, Cr.P.C. by Zairaf Ali S.-I. (P.W.10) at.Dhok Feroze at 8-15 a.m. on the basis of which formal F.I.R. (Exh.P.C./1) was drafted by'. Sanaullah A.S.-I./Moharrar (P.W.2) on the same day at 9-15 a.m.

3. The brief facts as narrated in the F.I.R. (Exh.P.C.1) by Zairaf Ali (P.W.10) real son of the deceased Saif Ali are that on 22-6-1997 at 7-00 a.m. he along with his father Saif Ali were ploughing in the fields, Muhammad Hussain son of Gulab Khan and his son Manzoor Hussain were going to attend a Jinaza at Miana Thub after coming out of their house.. When they reached at a distance of 50 yards, Abdul Ghafoor son of Gulab Khan appellant came while armed with .12 bore carbine and alarmed Muhammad Hussain that he would not be left alive. Simultaneously, he fired a shot of .12 bore carbine upon Muhammad Hussain deceased and the pellets hit him on the upper side of the right eye, forehead and nose. Muhammad Hussain fell down and succumbed .,to the injuries. Manzoor Hussain, to save himself, ran towards the complainant. Abdul Ghafoor appellant chased him. Saif Ali father of the complainant asked the appellant not to be cruel. Thereupon, the appellant replied that he also used to help Muhammad Hussain deceased and, therefore, he would also not be left alive. Then he fired a shot of carbine on Saif Ali deceased, which hit him in the chest and face. Saif Ali deceased also fell down and succumbed to the injuries. The complainant and Manzoor Hussain went towards Dhoke for safety when Abdul Ghafoor appellant chased them. Meanwhile Mahboob Hussain, who was coming out of his house, was alarmed by Abdul Ghafoor appellant that he had committed the murder of his father and he would not leave him alive. Abdul Ghafoor appellant fired a shot with carbine at Mahboob Hussain, which hit .him on the left knee, who fell there. Abdul Ghafoor appellant went to the fields while raising lalkaras and brandishing carbine.

4. The motive behind the occurrence .was alleged that Abdul Ghafoor appellant and Muhammad Hussain deceased were real brothers, who were having a dispute of land. The appellant also used to extend threats to Sail' Ali deceased that he had already murdered Ghulam Muhammad brother of the appellant about 20/21 years before and now he would also not be left alive.

5. After the registration of the case Abu Zar S.-I. (P.W.13) reached the spot and prepared the inquest report of Muhammad Hussain deceased Exh.P.O. He also prepared the inquest report of Saif All deceased which is Exh.P.P. He prepared the injury statement of Mahboob Hussain injured Exh.P.Q. and sent the injured to Bagga Sheikhan Hospital. Zairaf Ali complainant also made a supplementary statement under section 161, Cr.P.C. He recorded the statement of Manzoor Hussain P.W. under section 161, Cr.P.C. He was informed there that Abdul Ghafoor appellant was coming, by an informer. The appellant then appeared before him holding a carbine in his hand. He took into possession the carbine P.9 and secured vide memo. Exh.P.L. The same was sealed into parcel. The appellant could not produce licence and a separate case of 13/20/65 of Arms Ordinance was registered. He recorded the statement of the witnesses of recovery. He inspected the spot and collected blood-stained earth, which was sealed into parcel and secured vide memo. Exh.P.M. He also collected three crime empties from different places and secured vide memo. Exh.P.N. after sealing into parcel. Then he collected blood-stained earth from the place of dead body of said deceased. and sealed it into parcel and secured the same vide Exh.P.M. He prepared site-plan without scale Exh.P.B. He recorded the statements of recovery witnesses. Muhammad Idress H.C. handed over to him Shalwar P.8 of Mahboob P.W. after his medical examination, which was taken into possession vide memo. Exh.P.G. He recorded the statement of Idrees. Sardar Ahmad Constable P.W. produced before him post-mortem reports of both the deceased after their post-mortem examination. He also produced before him last-worn clothes of Muhammad Hussain shirt P.2, Shalwar P.3, Bunyan P.4 and a sealed phial, which he secured vide memo. Exh.P.E. Said Sardar Muhammad P.W. also produced before him last-worn clothes of Saif Ali deceased viz. shirt P.5, Shalwar P.6, Bunyan P.7 and a sealed phial which he secured vide memo. Exh.?.F. The statements of different witnesses' were recorded. He got Abdul Ghafoor appellant medically examined through Abdul Rehman A.S.-I. and Talib Hussain Constable. He left for Civil Hospital, Rawalpindi where he recorded the statement of Mahboob P.W. He then returned to P.S. where A.S.-I. Abdul Rehman produced medical report of Mahoob. Talib Hussain P.W. produced shirt P.1 of the appellant after rriedical examination, which he took into custody vide memo. Exh.P.D. He recorded the statement of Talib Hussain. On 23-6-1997, Abdul Ghafoor appellant was sent to judicial lock up. On 24-6-1997 he took Qazi Iftikhar Ahmad Patwari at the spot and he took notes for preparation of site-plan. He also recorded the statement of Liaqat Ali. On 26-6-1997 said Qazi Iftikhar produced before him site-plans Exh.P.K., Exh.P.K/l and Exh.P.K./2. He recorded the statement of Qazi Iftikhar Ahmad P.W. On 28-6-1997 he prepared the incomplete challan. On 11-9-1997 he received the report of Chemical Examiner and on 23-9-1997 he received report of Serologist.

6. After the completion of the investigation report under section 173, Cr.P.C. was submitted in the Court. Then copies of the documents required under section 265-C, Cr.P.C. were supplied to the appellant, the charge was framed, which was denied by him and he claimed to be tried. The prosecution in order to prove its case produced as many as 13 witnesses. The ocular account had been provided by Ziaraf Ali (P.W.10), Mansoor Hussain (P.W.11) and Mehboob Hussain (P.W.12). The medical evidence was furnished by Dr. Muhammad Tariq (P.W.7) who had conducted the post-mortem examination of both the deceased. Dr. Pardeep Kumar (P.W.1), who had medically examined Mahboob Hussain P.W. and Abdul Ghafoor appellant. The investigation had been conducted by Abu Zar S.-I. (P.W.13). The remaining witnesses are of formal nature and need not to discuss here.

7. After the close of the prosecution evidence the statement of the appellant was recorded under section 342, Cr.P.C1 in which he denied the allegations and professed his innocence. The appellant, however, did not opt to make statement under section 340(2), Cr.P.C. and also denied to produce the defence evidence.

8. The learned trial Court after hearing the arguments of both the parties had passed the impugned judgment of conviction and sentence against 'the appellant, which is being assailed through the instant appeal.

9. Learned counsel for the appellant in support of this appeal submits that the place of occurrence had been changed by the prosecution as was admitted by Iftikhar Ahmad (P.W.8), who had prepared the site-plan with scale; that the appellant had no occasion to give his version to the police in his defence as he was arrested on the same day of the occurrence and on the next .day he was set to judicial lockup; that the appellant was got medically examined by the police through Dr. Pardeep Kumar (P.W.1) on 22-6-1997 and the said doctor during the cross-examination admitted that he did not know what was lying under the skin on which the appellant had received the injuries. The learned counsel has referred to the statement of Ziaraf Ali complainant (P.W.10) of this case to show that the prosecution had failed to prove the motive .against the appellant. Refers to the statement of Mahboob Hussain 'injured (P.W.12) at page 59 of the Paper Book. Also referred to the statement of this P.W. at page 67 second paragraph third line. Also contends that in spite of the fact that this witness was the first cousin of the deceased, but he could not tell the age of the daughter of the appellant and they all used to reside in the adjacent houses; that this witness admitted that he did not point out about the disputed wall to the police; that if both the versions are put in juxtaposition, the story given by the prosecution does not appeal to prudent mind.

10. Thereafter learned counsel for the appellant has referred to the statement of Abu Zar S.-I./Investigating Officer (P.W.13) and also submits that the Investigation Officer failed to tell the Court that who had informed the above-said occurrence and on what place he was informed; that in fact it was the appellant who appeared before the police and told about the occurrence; that according to the opinion of the doctor in the case of Muhammad Hussain deceased, the time between death and post-mortem was 4 to 6 hours and in the case of Sail' All deceased it was .opined to be 6 to 8 hours while as regards injured P.W. Mahboob Hussain the time between the injury and medical examination was given as 12 hours, which show that all of them had not received the injuries at the same place during the instantoccurrence, which had not taken place in the manner narrated by the prosecution.

11. Learned counsel has then referred to the statement of Talab Hussain FC (P.W.4) made during the cross-examination of the said P.W. post-mortem to show that the time given by the prosecution about the arrest of the appellant was not correct.

12. Learned counsel has also referred to the statement of Makhdoom Azam (P.W.9) and according to him it has belied the prosecution story because that witness had joined the investigation at 10-00 a.m. when the appellant surrendered himself before the police but, his medical examination had taken place at 4-00 p.m. on the same day. Learned counsel at this stage refers to Ahmad Yar and another v. The State (PLD 1997 Lah.110). Also submits that at the most it is a case falling under section 303(a), P.P.C. even if the prosecution story is believed in totality and the defence version is borne out from the same.

13. Learned counsel for the complainant submits that relationship between the parties was an admitted fact. Also referred to the site-plan (Exh.P.K.) at page 138 of the Paper Book, which shows that the distance between the dead bodies of the two deceased was 3/4 feet; also pointed out points Nos.1 and 2 at page 138 of the Paper Book where the dead-body of Muhammad Hussain was lying and then Points Nos.3 and 4 where the dead-body of Saif Ali was lying; also submits that the distance was 110 karams; that the venue of the occurrence was never changed by the prosecution; also submits that Ghulam Hussain deceased was a married man and the version of the appellant was that he had. a bad eye on his daughter was totallyincorrect; also referred to the statement of Mahboob Hussain (P.W.12) at page 62 of the Paper Book and the statement of Makhdoom Azam (P.W.9) at page 53 of the Paper Book and according to this witness he proceeded to the Police Station Rewat and he reached the Police Station after about 15/20 minutes of seeing the dead bodies. He went to the P.S. on his own car driven by him and. informed S.-I. Abu Zar, which falsifies the version of the appellant that he had gone to the Police Station and informed the police about the occurrence. Also submits that Mahboob Hussain (P.W.12) is the star witness being an injured P.W. and that Ziaraf All (P.W.10) and Mansoor Hussain (P.W.11) went unchallenged by the prosecution though at least 10 opportunities were granted for cross-examination and even no application was submitted under section 540, Cr.P.C. for this purpose.

14. Learned Additional Prosecutor General submits that it was a broad-daylight occurrence, the F.I.R. was got registered with promptitude and the ocular account is consistent, which is supported by the medical evidence and corroborated by the recovery. He has referred to Exh.D.C. and Exh.D.D., which being the photocopies of' the medical examination of the appellant only are inadmissible in evidence; and that the occurrence was admitted one. .He has referred to Yara v. The State (2005 SCMR 829) and Kameer v. The State (PLD 1982 FSC 21) in support of his contentions. Both the learned counsel for the complainant and the Additional Prosecutor General have supported the judgment of the learned trial Court.

15. We have heard the arguments of the learned counsel for both the parties and also perused the record. The occurrence in',this case has taken place on 22-6-1997 at 7-00 a.m. and the matter was reported to the police on the same day at Dhok Feroze at 8-15 a.m. while formal F.I.R. was' recorded at 9-15 a.m. The distance between the police station and the place of occurrence was four kilometers. There are two deceased in this case namely Muhammad Hussain and Sail' Ali. Muhammad Hussain deceased was the real brother of the appellant while Saif Ali was the first cousin of the appellant and the injured P.W. Mahboob Hussain is first cousin of the appellant.

16. The prosecution in order to prove its case produced three eye-witnesses, namely Ziaraf Ali complainant son of Saif Ali deceased, Mansoor Hussain (P.W.11) and Mahboob Hussain (P.W.12) injured eye-witness. Dr. Muhammad Tariq (P.W.7) had conducted the post-mortem examination on the dead body of Muhammad Hussain deceased on 22-6-1997 at 11-00 a.m. and found seven injuries with fire-arm. The time between injury and death was immediate and between death and post-mortem was 4 to 6 hours. He also conduced the post-mortem examination of Saif Ali deceased on the same day at 1-00 p.m. There were 24 fire-arm injuries on his person. The time between injury and death was immediate and time between death and post-mortem was 6 to 8 hours. 16-A. Then another doctor namely Dr. Pardeep Kumar (P.W.1) had conducted the medical examination of Mahboob Hussain P.W.12 on the same day at 9-45 a.m. and found five fire-arm injuries on his person. The same doctor also medically examined Abdul Ghafoor appellant at about 5-00 p.m. and found the following injuries on his persdii:-- "(1) Abrasion .25 x .25 c.m. at left side of forehead. Wound is skin deep. No blood at the time of the examination (black spot). (2) Abrasion .25 x .25 .c.m. At posterior surface of left fore-arm 4 c.m. below the left elbow the left elbow joint. Wound is skin deep. No blood at the time of examination (black spot). (3) Abrasson .25 x.25 c.m. at right index finger. Wound is skin deep, advised Radiogram of skull." Three crime empties were recovered from the spot. The appellant was also apprehended on the same day of the occurrence and carbine was recovered from the appellant. Both were sent to the office of Forensic Science Laboratory and the report of the FSL was found positive in nature. It was a case of broad daylight occurrence. The parties were closely related to each other and there was no possibility of false implication of the appellant or his misidentity during the occurrence. We may also mention that the examination-in-chief of the two eye-witnesses namely Ziaraf Ali (P.W.10) and Mansoor Hussain (P.W.11) was recorded on 24-11-1998 and thereafter at least 10 opportunities were granted to the defence, which failed to cross-examine the said witnesses and even no application under section 540, Cr.P.C. was ever moved to the learned trial Court for re-summoning these two eye-witnesses for the purpose of cross-examination. Even no application was moved before this Court for the said purpose although seven years have already passed when the impugned judgment was passed. So this Court cannot discard the statements of both P.Ws.10 and 11, which t have gone unchallenged while the presence of P.W.12 at the spot was stamped by the injuries sustained by him during the C occurrence, which cannot be doubted.

17. The appellant has tried to make it a case of two versions. The first version of the appellant had come on the record only in reply to Question No.12 which is reproduced here for ready reference: "The witnesses are interested, closely related inter se and in order to suppress the actual version in .which they could have been booked and punished, they made false deposition against me. This case was lodged against me in order to suppress the actual version against the culprits including Mahboob Hussain and others on the latter part of night between 21/22 June, 1997 after making preparation have attacked upon my house and dishonoring my daughter Robina surrounded my house in the darkness, I on search of said Robina got up and tried to save her life while taking her in the room, I was hit by a fire shot on my back side, however, I managed my kids to hide under cots in the room which I bolted from inside then started firing from window panes in the meanwhile, I also received injuries at the hands of the complainant party in the darkness. My injuries were suppressed by the prosecution through making fabricated medico legal report, injury statement and F.I.R. and others. On account of this highhandedness, I requested the jail authorities to carry out my medical examination in order to establish the fact that I received fire-arm injuries in the occurrence of cross-firing and the pellets/foreign body item are lying in my body bur of no avail. Copy of my application in this regard is Exhs.D.C./1 and

2. Thereafter being deprived of justice, I also moved an application before the Anti-Terrorism Court but of no consequence. Copy of the application is Exhs.DD/I and

2. The case is a counter blast of the actual occurrence." A bare perusal of the above-said reply would show that eight persons while armed with fire-arm had allegedly attacked at his house and in fact it was Mahboob Hussain injured P.W., who is nephew of the appellant, had. a bad eye on his daughter. After perusal of the said version, we are not in agreement with the same and the same is rejected being an afterthought story. It is improbable and unnatural story I and in order to make out two versions it does not appeal to a prudent mind. We cannot accept that it was a case of two versions.

18. There are two deceased and one injured P.W. Mahboob Hussain was the star witness of the prosecution, who fully supported the prosecution case. The statements of the other two eye-witnesses went unchallenged as discussed above. It was not a ease falling under section 303(a), P.P.C. as has been submitted before this Court by the learned counsel for the appellant. The appellant even failed to produce any D.W. or his daughter on whom he alleged that Mahboob Hussain P.W. had a bad eye in order to bring the case under one of the exceptions given under section 300, P.P.C. or under section 302(c), P.P.C. It was incumbent upon the appellant under Article 121 of Qanun-e-Shahadat to prove the defence plea, which he failed to discharge by producing any type of evidence in this I regard and the defence plea is not borne out from the prosecution evidence in any manner. 18-A. The result of the above discussion is that the prosecution had proved its case against the appellant beyond any shadow of doubt. We have found no mitigating circumstances in favour of the appellant, who had acted in a brutal manner while making fire-arm injuries to the two 1 deceased and one injured P.W. The learned trial Court was quite justified in awarding death penalty to the appellant on two counts along with sentence under section 324, P.P.C., which is maintained. Resultantly, the appeal filed by the appellant is dismissed having no merits.

19. Murder Reference No.525 of 2000 is replied in the affirmative and death sentence on two counts awarded by the learned trial Court to the appellant is hereby confirmed. N.H.Q./A-128/L????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.