2006 PLP 672 (SCMR)

QAZI MUHAMMAD FAROOQ, J.

This appeal by leave of the Court, granted on a jail petition, is directed against the judgment, dated 27-7-2001 of a learned Division Bench of the Lahore High Court, Multan Bench whereby the appellants' conviction under section 302, P.P.C. on the charge of committing murder of one Khalid Iqbal, recorded by the learned Sessions Judge, Layyah vide judgment, dated 12-10-1998, was maintained and the .sentence of death awarded to him was confirmed.

2. The deceased was gunned down on 22-10-1996 at about 9-45 a.m. within the limits of Chak No.225 T.D.A. The F.I.R. was lodged by Abdul Sattar, father of the deceased, at 11-00 a.m. at Police Station Fateh Pur located at a distance of five miles from the spot of occurrence.

3. It was alleged in the F.I.R. that the complainant had prepared his land measuring 17-1/2 acres for cultivating grams crop. On the eventful day the deceased Khalid Iqbal, aged about 19/20 years, had gone to the said land to cut Gawara crop. The complainant along with his son Tufail and Muhammad Irshad also set out for his land to check "Roni". When they reached there at about 9-45 a.m. they heard the alarm of the deceased and saw that he was being chased by the appellant who was armed with a pistol. They tried to apprehended the appellant but he made firing at the deceased as a result of which he lost his life.

4. The motive for the occurrence was that the appellant wanted to commit sodomy with Khalid Iqbal and in that context the complainant had admonished him two days prior to the occurrence.

5. Leave was granted to consider whether appraisal of evidence undertaken by the Courts below is in accordance with the principles laid down by the superior Courts for safe administration of justice.

6. The prosecution with a view to establishing its case against the appellant has relied upon the ocular evidence furnished by the complainant Abdul Sattar (P. W.5) and Muhammad Irshad (P. W.6), motive, recovery of two crime-empties of .30 bore pistol from the spot as well as recovery of .30 bore pistol on the pointation of the appellant, the positive report of the Fire-Ann Expert and the medical evidence according to which four fire-arm entrance and three exit wounds were found on the dead body of the deceased by Dr. Mukhtar Hussain (P.W.3). The plea of the appellant is one of complete denial of the occurrence and false implication. .His statement under section 342, Cr.P.C. discloses that during investigation of the case the complainant party had suspected one Muhammad Tufail Arain to be the culprit and that he was implicated in the case due to a dispute with the complainant's son Muhammad Tufail over the earnings of a Dala (pick-up) in Karachi which was purchased by them jointly.

7. It was contended by the learned counsel for the appellant that conviction and sentence of the appellant were not sustainable as the ocular evidence has been furnished by close relatives of the deceased who are also not natural witnesses, the ocular evidence is not in line with the medical evidence as injury No.6 on the left thumb of the deceased was caused by blunt means as opined by Dr. Mukhtar Hussain (P.W.3), there were four fire-arm entrance wounds on the dead body of the deceased whereas two empties were recovered from the spot and no explanation has been furnished about the missing empties, the recovery of the so-called weapon of crime was doubtful on account of non-association of witnesses from the public. It was lastly contended that the motive set up by the prosecution in the F.I.R. was not established, therefore, a case for lesser sentence was made out in view of the observations made in Manzoor Ahmed v. The State PLD 1983 SC 197 and Anar Gul v. The State 1999 SCMR 2303.

8. The learned counsel for the State defended the impugned judgment by contending that mere relationship of the eye-witnesses with the deceased is not sufficient for discarding their testimony particularly when it is confidence inspiring and corroborated by the motive, the medical evidence, recovery of the weapon of crime on the pointation of the appellant and the positive report of the Fire-arm Expert. He further submitted that being a case of a single accused substitution was out of question.

9. The contentions raised by the learned counsel for the appellant cannot prevail. It is by now firmly settled that evidence of the eye-witnesses related to the deceased can sustain conviction if it is worthy of B reliance and is corroborated by any independent piece of evidence. The occurrence had taken place in the fields of the complainant, therefore, his presence as well as that of his close relative Muhammad Irshad on the spot is not doubtful. Both of them are, therefore, natural and probable witnesses. The eye-witness account furnished by them is consistent and straightforward and does not suffer from any serious infirmity. Their statements are not only sound and C consistent but are also amply corroborated by the medical evidence, the motive, promptly lodged F.I.R., recovery of the weapon of crime on the pointation of the appellant and positive report of the Fire-arms Expert. Besides, it is a case of single accused and it does not stand to reason that an innocent person was substituted for the real culprit by the deceased's father.

10. The inconsistency between the ocular and the medical evidence pointed out by the learned counsel for the appellant is too trivial to demolish the prosecution case because according to Modis' Medical Jurisprudence and Toxicology (Chapter X) a lacerated wound can be caused by a violent fall on hard projecting surface. Besides, this possibility cannot be excluded that there was a scuffle between the appellant and the deceased before the latter had taken to his heels to foil the sinister design of the appellant and in that scuffle he had sustained a lacerated wound on his left thumb. The contention in regard to non-association of public witnesses with the recovery of the weapon of crime overlooks this glaring circumstance that the recovery was effected on appellant's pointation when he was in police custody. In such an eventuality a police official is as good a recovery witness as any other person and his testimony is acceptable if free from any legal infirmity. The occurrence had taken place in a field, therefore, non-recovery of some of the crime-empties cannot be blown out of proportion. As regards the motive, suffice it to say that the evil design of the appellant was in exclusive knowledge of the complainant, having been brought to his D notice by the deceased, therefore, it stands established on record in the light of his statement. The motive stands to reason also as the deceased was 19/20 years of age. The case-law cited by the learned counsel for the appellant thus does not apply to the facts of this case and the sentence of death awarded to the appellant does not warrant interference for want of a mitigating circumstance. For the reasons staled above, the appeal is dismissed. N.H.Q./M-844/SC????????????????????????????????????????????????????????????????????????????? Appeal dismissed.