1988 P Cr (PLP)

AFRASIAB KHAN, J.‑‑The appellant, Muhammad Nazir son of Muhammad Afsar, aged 22 years was convicted by the learned Additional Sessions Judge, Rawalpindi under section 302 P.P.C. for the murder of Muhammad Iqbal son of Feroze Khan, aged 45 years, on 23‑12‑1984 and was sentenced to death plus a fine of Rs.10,00, and in default thereof to suffer further six months' R.I. It was directed that the fine, if recovered, shall be paid as compensation to the legal heirs of the deceased under section 544‑A, Cr.P.C. The co‑accused, Mansabdar son of Muhammad Afsar was acquitted by the learned trial Court vide the same judgment by giving him the benefit of doubt. The appellant has challenged his conviction and sentence by filing this Criminal Appeal No. 4 of 1985. The proceedings regarding the confirmation of death sentence have also been sent to us under section 374, Cr.P.C by the learned trial Court. We propose to dispose of both the matters together by our consolidated judgment.

2. The prosecution case in brief is that Abdul Hameed son of Sultan Khan is the resident of village Data Bhal and that he is an agriculturist by profession. On 19‑11‑1980, Muhammad Zaman, real uncle of the complainant was murdered by his another uncle Muhammad Afsar and his two sons Muhammad Bashir and Abdul Aziz and as a consequence thereof F.I.R. No. 138/80 was registered against the accused at Police Station Jatli. Muhammad Iqbal, uncle of the complainant, used to pursue that murder case. Muhammad Afsar Muhammad Bashir and Abdul Aziz were challaned in that case. In the month of March, 1981, Muhammad Afsar, one of the accused in the above‑referred case, was released on bail. However, Muhammad Bashir and Abdul Aziz were still in Jail. The murder case was being tried by Mr. Sabah‑Mohyud Din, learned Additional Sessions Judge, Rawalpindi and that 30‑4‑1983 was the date fixed in the case for its hearing. Muhammad Afsar had been trying and putting pressure upon Muhammad Iqbal so that the murder case may be compromised. On 30‑4‑1983 early in the morning. the complainant alongwith Muhammad Iqbal, Sher Zaman and Abdul Hakeem sons of Feroze Khan started on foot towards the Bus Stop of Mauza Bhal, P.S. Chauntra in order to go to Rawalpindi. At about 6‑30 a.m. when they reached near a place known as Hadanwali Charhi within the area of village Bhal and Muhammad Iqbal was going ahead of them, all of a sudden on the western side from behind the sand dune, acquitted co‑accused Mansabdar armed with .12 bore gun and the appellant armed with a hatchet emerged. The appellant shouted that they will not allow Muhammad Iqbal to go alive today and that he will be taught a lesson for pursuing the murder case. Muhammad Iqbal, in order to save his life started running on the path. Mansabdar fired with his gun which hit Muhammad Iqbal on his back. In the meantime, the appellant came running in front of Muhammad Iqbal and gave him a hatchet blow which hit him on his head. On the receipt of the injury Muhammad Iqbal fell down. The appellant gave successive hatchet blows which landed on the face and head of Muhammad Iqbal. The acquitted co‑accused continued shouting and issuing threats that if anybody came near, he will also be done to death. The witnesses were so frightened that they climbed up a hill nearby and they saw the whole occurrence with their own eyes. Muhammad Iqbal died at the spot on account of the injuries received by him in the occurrence. The appellant as well as Mansabdar acquitted co‑accused dragged the dead body of Muhammad Iqbal and brought the same to a depression. Muhammad Iqbal, deceased, was made naked by removing his clothes from his person. The shoes and clothes of the deceased were removed and were taken away by them. The motive for the commission of the murder is that Muhammad Iqbal deceased was pursuing the murder case of Muhammad Zaman, mentioned above, and on account of this grudge, he was done to death by the appellant and his co‑accused, in the execution of their common intention.

3. Mulazam Hussain A.S.I. P.W. 9 was posted at Police Station Chauntra on 18‑5‑‑1983. He arrested the acquitted co‑accused Mansabdar on that date. The witness got prepared the site plan of the place of occurrence from .All Bahadur Patwari P.W. 7 vide Exh.P.F. and Exh.P.F./1. Abdul Hafeez, Inspector P.W. 10 was the S.H.O. Police Station Chauntra on 30‑4‑1983. He recorded the statement of the complainant and accordingly registered a case under section 302/34, P.P.C. He visited the spot and prepared the inquest report Exh.P.G. The dead body of Muhammad Iqbal was sent to mortuary for post‑mortem examination. Rough site plan of the place of occurrence Exh . P.H. was prepared by the witness. The witness took into possession the blood‑stained earth vide memo Exh.P.B. He recovered a pellet P.1 and took the same into possession vide memo Exh.P.E. The appellant was arrested by the witnesses on 6‑5‑1983. The appellant led to the recovery of hatchet P.2, Dhoti P.3 and a pair of shoes P.4/1‑2 and the same were taken into possession vide memo Exh.P.C. The hatchet P.2 was sealed into a parcel by the witness. Mansabdar acquitted co‑accused led to the recovery of .12 bore gun P.5 and blood‑stained clothes of the deceased‑Qameez P.6, Shalwar P.7 and Identity Card P.8 which were taken into possession by the witness vide memo Exh.P.D. The reports of the Chemical Examiner vide Exhs. P.M., P.N. and P.O. disclosed that the articles, clothes (shirt and Shalwar), hatchet and earth, respectively, were stained with blood and the reports of the Serologist vide Exhs.P.Q., P.R. and P.S. showed that the articles sent to him were stained with human blood.

4. Dr. Mahmood Khan, Medical Officer, D.H.Q. Hospital, Rawalpindi P.W.11 on 1‑5‑1983 at 9‑00 a.m. conducted the post‑mortem examination on the dead body of Muhammad Iqbal and found the following injuries on his person:‑ (1) Incised wound 12 cm x 4 cm brain deep on left side of head, 3 cm above left ear. (2) Incised wound 1 cm x 2 cm brain deep about 2 cm above injury No.1. (3) Incised wound 9 cm x 2 cm brain deep on left side front of head, extending to middle left side of forehead. (4) Incised wound 10 cm brain deep on right side of head, 3 cm above right ear. (5) An incised wound 12 cm x mouth cavity deep on right side of face, extending from front of right ear, cutting right maxilla, mandible and mouth and nose from its middle through and through. (6) Incised wound 1 cm x muscle deep and bone deep on back middle part and in mid‑line cutting underlying lumber muscles and vertebra. (7) Incised wound 3 cm x bone deep on back of ring finger left hand. (8) Multiple abrasion on back of chest. (9) Abrasion on left upper arm. (10) Abrasion in front of right chest. The head‑scalp was cut under injuries Nos.1 to

4. The skull was found fractured under injuries Nos.1 to

4. Brain was crushed under these injuries. In the opinion of the Doctor, death occurred due to shock and haemorrhage on account of injuries Nos.1 to 6 which were sufficient to cause death in the ordinary course of nature. Injuries Nos.1 to 7 are by sharp‑edged weapon whereas injuries Nos.8 to 10 are caused by a blunt weapon. All the injuries were anti‑mortem. The probable time between injuries and death was immediate and that between the death and post‑mortem examination was about 26 to 29 hours.

5. The eye‑witness account has been provided by Abdul Hameed complainant P.W.5 and Sher Zaman P.W.6. Abdul Hameed is the complainant in the case. He has supported the prosecution version from beginning to the end. He said Abdul Aziz and Muhammad Bashir, who murdered Muhammad Zaman earlier, were the nephews of the deceased Muhammad Zaman. He disclosed that Muhammad Zaman was done to death by Abdul Aziz and Muhammad Bashir under the instigation of their father. He reiterated that the above‑said murder case was fixed for hearing on 30‑4‑1983 and, therefore, he alongwith his uncle Sher Zaman started for Rawalpindi, to attend that case early in the morning. He admitted in cross‑examination that Sher Zaman P.W.6 is his uncle and Abdul Hakeem P.W. is the brother of Sher Zaman P.W.6. He conceded that his wife Mst. Hafeez Akhtar instituted a criminal complaint against his uncle Sher Zaman which is pending adjudication before the learned Additional Sessions Judge, Rawalpindi. He further conceded that Mst. Hafeez Akhtar is the sister of the accused. He said that his real sister is married with one Bashir who is brother of the accused and that his sister has been deserted by Bashir, brother of the accused, for the last four years. He admitted the suggestion as correct that he was a prosecution witness in the murder case against Bashir and Aziz, real brothers of the present accused. He also admitted that his evidence has been recorded in the murder case referred to above and further that the statement of the deceased Muhammad Iqbal was also recorded in the case. To the same effect is the statement made by Sher Zaman P.W.6. This witness stated that after Muhammad Iqbal was done to death, he straightaway went to Rawalpindi to inform the Court about the tragedy which had happened in the way and further that P.W.5 Abdul Hameed went to the Police Station in order to lodge the F.I.R. The appellant while making a statement under section 342, Cr.P.C. denied the allegation levelled against him. He pleaded that he is innocent and that he has falsely been implicated in the case on account of enmity. The appellant admitted that the murder case against his brother Bashir and Aziz was fixed for hearing on 30‑4‑1983. He in reply to question No.4 said that the deceased Muhammad Iqbal was a witness in the above‑said murder case. He admitted in his statement that his sister is married with Abdul Hameed P.W.5 and in return the sister of Abdul Hameed is married with his brother Bashir. Both these ladies are living in the houses of their respective parents on account of the differences which have arisen between the couples. He candidly admitted that the relations between him and the prosecution witnesses are inimical. The appellant was also subjected to examination on oath under section 340, Cr.P.C.

6. Learned counsel for the appellant contended that there is inordinate delay in lodging the F.I.R. and that the F.I.R. was prepared after the preliminary investigation in the case. Learned counsel urged that the medical evidence is not in line with the eye‑witness account. He stated that this is an unwitnessed occurrence. Learned counsel stressed that the evidence of P.W.5 and P.W.6 does not inspire confidence inasmuch as both the witnesses are highly interested and related to the deceased and that there is no independent corroboration to their statements. Learned counsel pointed out that the prosecution evidence has been disbelieved qua the acquitted co‑accused Mansabdar and that no conviction and sentence can be based on the same set of evidence qua the appellant. The learned State counsel while replying to the arguments of the learned counsel for the appellant submitted that in fact there is no delay in lodging the F.I.R. He stated that the prosecution evidence inspires confidence. Learned counsel contended that there is a deep‑rooted enmity existing between the parties and as a result thereof the appellant has committed the murder of Muhammad Iqbal.

7. We have heard the learned counsel for the parties and have perused the record. The learned trial Court has convicted and sentenced the appellant by placing reliance on the ocular account of the eye‑witnesses, namely, Abdul Hameed P.W.5 and Sher Zaman P.W.6, the medical evidence of Dr. Mahmood Khan P.W.11, recovery of hatchet P.2 and other articles plus the motive. The evidence deposed by P.W.5 and P.W.6 inspires confidence inasmuch as both the witnesses early in the morning on 30‑4‑1983 started towards Rawalpindi to attend the murder case of Muhammad Zaman. The appellant has admitted in his statement that the murder case of Muhammad Zaman was fixed for hearing on 30‑4‑1983 and further that the deceased Muhammad Iqbal was a prosecution witness in that case. Under the circumstances, on 30‑4‑1983 it was natural for the deceased Muhammad Iqbal to go to Rawalpindi to attend the murder case. Further, it was also natural that Abdul Hameed P.W.5 should accompany the deceased to attend the murder case of his uncle Muhammad Zaman. It is true that Abdul Hameed P.W.5 is the nephew of the deceased Muhammad Iqbal but in such like situation he was expected to accompany his uncle for attending the murder case. Similarly, Sher Zaman is the uncle of Abdul Hameed P.W.5. The appellant is also his nephew. He deposed in his statement that he accompanied the deceased Muhammad Iqbal and Abdul Hameed in order to attend the murder case. These two witnesses P.W.5 and P.W.6 appear to be the truthful witnesses in the case inasmuch as they were expected under the facts and circumstances of the case to accompany the deceased Muhammad lqbal to Rawalpindi in order to attend the above‑referred murder case, because of their close relationship with the deceased. Both the parties are closely related inter se and were arrayed against each other because of their deep rooted enmity. These two witnesses have been subjected to lengthy cross‑examination by the defence but their evidence remained intact throughout. We are not persuaded by the learned counsel to disbelieve their natural and truthful evidence deposed by them in the case.' The mere fact that these two witnesses are closely related to the deceased will not at all lessen their importance in the case. This is in the evidence that the occurrence has taken place at a distance of about 1 miles away from the village. If the eye‑witnesses were not accompanying the deceased, in our view, the F.I.R, could not be so promptly lodged with the police station which is at a distance of about five miles away from the place of occurrence. The learned counsel has failed to persuade us to believe that these two witnesses did not witness the occurrence. The facts and circumstances of the case show beyond shadow of doubt that Abdul Hameed P.W.5 and Sher Zaman P.W.6 were going in the company of Muhammad Iqbal deceased on the day of occurrence in order to attend the murder case of Muhammad Zaman in the Court of Mr. Sabah Mohyud Din, learned Additional Sessions Judge, Rawalpindi. It is a common knowledge that in the murder case like that of Muhammad Zaman, close relatives in large numbers do go to the trial court to look after the interest of their near and dear ones who are involved it such cases. The fact of the pendency of the murder case on 30‑4‑1983 has clearly been admitted by the appellant while making statement wider section 342 Cr.P.C. He further admitted that the deceased was a prosecution witness in the case. Thus, the presence of P.W.5 and P.W.6 at the place of occurrence is established beyond doubt. Even otherwise, because of admitted enmity between the parties the deceased cannot at all be expected to go to Rawalpindi all alone. Both the parties come of one family and further the family is bitterly divided into two warring factions. The evidence deposed by Abdul Hameed P.W.5 and Sher Zaman P.W.6 has been wholly supported by Dr. Mahmood Khan P.W.11. The witness stated in his evidence that first injury was inflicted on the head of the deceased. Similarly, the other injuries by sharp‑edged weapon were inflicted on the forehead, right side of head, right side of face extending from front of right ear cutting right maxilla, mandible and mouth and nose from its middle. An incised wound 1 cm x muscle deep and bone deep on back middle part and in mid‑line cutting underlying lumber muscles and vertebra and also an injury on the back of ring finger of left hand. The description of all these, injuries was given to minor details by P.W.5 and P.W.6. Therefore, the medical evidence has completely supported the ocular account. There is absolutely no force in the contention of the learned counsel that the medical evidence has negated the ocular account. We are not convinced to agree with the contention of the learned counsel as the close scrutiny of the eye‑witness account given by P.W.5 and P.W.6 read with the medical evidence deposed by Dr. Mahmood Khan P.W.11 will show that the medical evidence has vividly supported the ocular account. The contention of the learned counsel for the appellant is, therefore, repelled. There is a very strong motive with the appellant to make a short work of the deceased Muhammad Iqbal because this is in the evidence of P.W.5 and P.W.6 that Muhammad Iqbal deceased was the star witness of the murder case of Muhammad Zaman and that the appellant wanted to enter into a compromise with the deceased in that murder cease but the deceased did not agree. It is, therefore, clear that the appellant wanted to remove the deceased from the way because he was adamant to pursue the murder case of Muhammad Zaman and was not ready to compromise the case with the accused party. The appellant has admitted the enmity in reply to question No.9 in his statement under section 342, Cr.P.C. This existing enmity between the parties strongly motivated the appellant to sit in ambush and to do away with the deceased. The defence has tried to put suggestion to the prosecution witnesses that there were other enemies of the deceased in the village but there is not an iota of evidence available on record to prove the contention as to who were those enemies of the deceased in the village. The said suggestion of the defence was repelled by P.W.5 and P.W.6 in their evidence. The recovery of hatchet P.2 plus the other articles belonging to the deceased at the pointing of the appellant will also give sufficient support to the case of the prosecution. The appellant was arrested by Abdul Hafeez Inspector P.W.10 on 6‑5‑1983. He led to the recovery of hatchet P.2, Dhoti P.3 and a pair of shoes, P.4/1‑2 vide recovery memo Exh.P.C. It may be observed that Dhoti P.3 and Shoes P.4/1‑2 belonged to the deceased. Hatchet P.2 was found stained with human blood as is evident from Exh.P.R, the report of Serologist. These recoveries have, afforded a solid corroboration to the eye‑witness account. This is a broad daylight occurrence and as such, there is no possibility of the substitution for the real culprits. Learned counsel forcefully submitted that it is admitted that at the time of occurrence several other independent witnesses were available and they were not produced by the prosecution. It is true that Abdul Hameed P.W.5 admitted in cross‑examination that at the time of occurrence 5/6 persons were attracted at the spot and that Bahadur and Qurban co‑villagers were amongst them. The learned counsel argued that these persons should have been produced by the prosecution and their non‑production in the case as witnesses has created considerable doubt in the truthfulness of the prosecution story. There is no substance in the argument of the learned counsel because on account of the deep‑rooted enmity between the parties, we believe, that no other person, from the village could dare to become a witness in the case. The learned trial Court has sifted the chaff from the grain. We cannot agree with the learned counsel that the co‑accused Mansabdar has been acquitted by the trial Court by disbelieving the same evidence and as such the appellant should also be acquitted as a consequence thereof. The case of the appellant proceeds altogether on a different set of evidence which has nothing to do with the case of the acquitted co‑accused. As already observed above, there is overwhelming evidence available against the appellant and, therefore, both the accused cannot at all be treated at par. Thus, the argument of the learned counsel is without any substance on the face of it. We are further fortified by the consistent view of the Hon ble Supreme Court of Pakistan that in such like situation, the prosecution cannot be compelled to come with other independent witnesses in support of its case. Reliance in that behalf is respectfully placed on the dictum laid down in the following authorities: Wasiullah v. Mirza Ali and others P L D 1963 SC 25, Habibullah and others v. The State P L D 1969 SC 127, Saindad and 2 others v. The State 1972 S C M R 74, Shamsher and another v. The State etc. 1973 SCMR 69, Bagh Ali and 4 others v. The State P L D 1973 SC 321, Muhammad Sharif etc. v. The State P L D 1976 SC 452, Ghulam Mustafa v. The State 1968 P Cr. L J 1525, Mansab Khan v. The State 1974 P Cr. L J 416 and Sher Dil alias Sher Gul and another v. The State 1973 P Cr. L J

802. The upshot of the above discussion is that the prosecution has been able to prove its case beyond any shadow of doubt against the appellant by producing reliable evidence of Abdul Hameed P.W.5 and Sher Zaman P.W.6 duly supported by the medical evidence of Dr. Mahmood Khan P.W.11 and further corroborated by the evidence of motive as well as the recoveries of hatchet P.2 etc. at the pointing of the appellant. We, therefore, have come to the conclusion that the appellant has correctly been convicted under section 302, P.P.C. The learned counsel has not been able to show us any mitigating circumstances in the case for the grant of lesser penalty to the appellant nor he has addressed us on this point. We, therefore, find no substance in the appeal which is accordingly dismissed. The death sentence awarded to the appellant by the learned trial Court is, therefore, confirmed. S.A./M‑913/L Death confirmed.