P L D 1997 Lahore 202 (PLP)

RAJA MUHAMMAD KHURSHID, J.

The appellant was convicted under section 302, P.P.C. and sentenced to death by Qisas for the murder of Muhammad Sharif and Malik Muhammad on each count vide judgment dated 10-2-1993 passed by Mian Subah Sadiq, the then learned Additional Sessions Judge, Sahiwal.

2. The brief facts are that on 2-7-1991 Muhammad Hafeez complainant lodged a report at about 10-30 p.m.. for an occurrence, which took place on the, same day at 8-45 p.m. in the area of Chak No.155/EB, Police Station, Sadar, Arifwala, District Sahiwal in which two persons namely Muhammad Sharif and Malik Muhammad were murdered by Muhammad Anwar appellant by firing at them with his .12 bore gun P.6 from the top of his house while they were sitting alongwith other P.Ws. in a Punchayat convened for the purpose of appeasing the appellant, who got offended from a decision given earlier by the deceased persons in a meeting of the Punchayat held about 15 days prior to the murder.

3. The motive was that the appellant while abroad had remitted some money, a T.V. and a Refrigerator to his father in Pakistan. After his return from abroad, he demanded for the money and the aforesaid articles,, which led to a dispute between them for which a Punchayat was convened to settle the controversy on the subject. The Punchayat had decided the issue against the appellant. The verdict was pronounced by the deceased persons whereafter the appellant turned against them and held out many threats to finish them.

4. On the day of occurrence, the appellant was invited to attend Punchayat meeting, which was being held in front of the house of his father Habib at about 8-45 p.m. At that time the complainant Muhammad Hafeez, his father Muhammad Sharif deceased, Malik Muhammad deceased, Kanwar Muhammad Ayyub, Advocate, Muhammad Siddique, Fayyas, Qayyum and Habib i.e. father of the appellant were present in that meeting. The appellant, however, declined to come to the meeting eon the ground that he would not join any such proceedings in the presence of the deceased persons and Kanwar Muhammad Ayyub as all of them were "Beghairat". Whereafter, the appellant went to the top of his house with a .12 bore gun and fired at Malik Muhammad hitting him at his abdomen, right chest and hand. Simultaneously the fire made by the appellant also injured Muhammad Sharif deceased on his forehead, left eye and the face. Both of them were taken to the Civil Hospital, Arifwala but Malik Muhammad succumbed to the injuries on way whereas Muhammad Sharif was advised by the Doctors to be shifted to the District Headquarters Hospital, Sahiwal. He was being shifted that he also died on way'.

5. The police recovered crime empty P.1 from the roof of the house of the appellant on 2-7-1991 and took the same into possession vide recovery memo. Exh. PE attested by Manzoor Hussain, Rao Muhammad Aslarn P. W . 4 and Rao Shafqat Ali given up P.W.

6. The accused was arrested on 15-8-1991 and he led to the recovery of his licensed .12 bore gun P.6 from within the stack of chaff lying in the Kotha of his residential house. The gun aforesaid was taken into possession vide memo. Exh.Pk attested by the witnesses, who had attested the recovery memo. Exh.PE relating to crime empty. The gun and the crime empty were sent to the Technical Services, Crime Branch, Punjab, Lahore for Expert opinion. It was examined by the Experts, who came to the conclusion that the crime empty was wedded to the shot gun of .12 bore recovered from the appellant. The report of the Expert was brought on record as Exh.PW.

7. The medical evidence was brought on record by examining Abdul Jabbar Dispenser, Civil Hospital, Arifwala as P.W.

5. The post-mortem on the dead bodies of Muhammad Sharif and Malik Muhammad was conducted by Dr. Tanweer Ahmad, who was working as Medical Officer on 3-7-1991 at the Civil Hospital, Arifwala. The aforesaid Doctor had gone to London on long leave and there was no likelihood of his repatriation to Pakistan in the near future, therefore, Abdul Jabbar, Dispenser was called to give evidence as he had been working under the aforesaid Doctor and used to see him writing and as such was in a position to identify his handwriting. The aforesaid Dispenser stated that he had seen the post-mortem reports of Muhammad Sharif and Malik Muhammad which were in the handwriting of Dr. Tanweer Ahmad aforesaid. The post mortem report relating to Muhammad Sharif deceased was brought on record as Exh.PL whereas the diagram of injuries was proved as Exh.PL/1. The post mortem report Exh.PM was also stated to be in the hand of aforesaid Doctor and related to Malik Muhammad deceased whereas pictorial diagram of injuries was proved as Exh.PM/1.

8. The learned counsel for the appellant has contended that it was an unseen occurrence, but a false case was set up against the appellant at the instance of Kanwar Muhammad Ayyub P.W. 2, who had allegedly demanded Rs.50,000 from the appellant to clear the debt of the Agricultural Development Bank. In this context, it was contended that the aforesaid Kanwar Muhammad Ayyub was involved in litigation with the aforesaid Bank and since the appellant had refused to help him by giving a loan to him, therefore, he turned against him, i.e. the appellant. The motive was also allegedly invented in order to involve the appellant falsely in this case; that the witnesses were related inter se and inimical to the appellant though related to the deceased; that recovery of gun P.6 was false and the crime empty was fabricated to create circumstantial evidence in order to corroborate the inimical and interested witnesses; that the Medical Officer, who had performed the autopsy on the dead bodies of the deceased persons was never put in the witness-box nor his evidence was brought on record in accordance with law, and that the deceased were killed as they had illicit liaison with the sisters of Akbar son of Amanat who was working as tenant under Muhammad Hafeez complainant and that they had gone to their house at mid-night and were killed by some unknown persons.

9. The learned counsel for the appellant further contended that the appellant had given a reasonable defence in his favour by. producing his father namely Habib to whom the motive related. The aforesaid witness while appearing as D.W. 1 totally denied the story of motive as set up by the prosecution and as such the case against the appellant had become doubtful from its very start. Similarly the aforesaid witness denied that any Punchayat was ever held in front of his house to settle the controversy regarding return of money-or other articles as detailed in the F.I.R. It was, therefore, urged that the story given in defence was more convincing than revealed in the F.I.R. and as such the case against the appellant had become sufficiently doubtful.

10. The learned State Counsel contended that all the eye-witnesses were truthful as well as natural to support the occurrence alleged in the F.I.R.; that though all of them were related inter se but were also closely related to the appellant and since they had no enmity with him, therefore, there was no occasion to implicate him falsely in this case; that no corroboration of such witnesses was required, but if any was needed it was provided by the recovery of the weapon of offence i.e. .12 bore gun P.6, which matched with the crime empty picked up from the roof of the house of the appellant from where he had made fire at the deceased persons. The medical evidence was also stated to be in accord with the ocular account of occurrence regarding the seats of injuries found on the persons of the deceased and that those injuries were caused by the fire-arm. The defence story was alleged to be most improbable and contradictory. In this regard it was pointed out that according to the appellant, the deceased were killed, when they had gone to the house of Amanat in pursuance of illicit relations with the daughters of Amanat and were killed by the paramour of those girls. The father of the appellant while appearing as D.W.1 stated that the deceased persons were like sons to him and that they were of good character. It was, therefore, urged that the prosecution case was fool proof and as such did not admit any doubt regarding its veracity and truthfulness.

11. We have considered the arguments addressed from both sides. There is a clear cut motive for the occurrence. The appellant had been sending money to his father and had also sent some articles while he was living abroad. He demanded for the return of the money and the articles from his father after coming to Pakistan. However, his father refused to repay money or the articles whereupon a dispute arose between them. It necessitated the convening of a meeting of the Punchayat about 15 days prior to the occurrence in which a decision was given by the deceased persons and Kanwar Muhammad Ayyub against the appellant. This offended the appellant and he held out threats on several occasions to the deceased persons for finishing them. It is an admitted fact that all the members of the Punchayat were closely related inter se and also to both the sides. It is thus obvious that in case of a dispute of this nature, the members of the family or brotherhood would normally pool their heads together to settle the matter within the family. The participation of the deceased and other members of Punchayat to settle such a controversy was, therefore, quite probable under the situation. Since a decision had gone against the appellant, therefore, he got annoyed with the deceased persons, who were related to him in a close degree besides being his brothers-in-law (Hum Zulf). It was also natural on the part of the deceased persons and other members of the Punchayat to reassemble to appease the appellant to avoid any untoward incident. However, the appellant did not participate in the Punchayat proceedings by saying that he would not join any such meeting where "Beghairat" like Muhammad Sharif and Malik Muhammad deceased were present. After uttering these words, he went to the top of his house and made fire upon the deceased persons while they were sitting in a meeting of the Punchayat in front of the house of his father. The injuries caused by these fires proved fatal and were sufficient to cause death in the ordinary course of nature according to the respective post-mortem reports. The crime empty was recovered from the place of firing which matched with the licensed gun P.6 recovered at the instance of the appellant/accused. These factors are sufficient to prove the prosecution case against the appellant. The mere fact that witnesses were related to each other could not be sufficient to discard their testimony because admittedly they were not inimical, as there was no enmity between the parties in the past nor there could be any other cause for the murder of the deceased except the motive which stood proved through the evidence of the prosecution' brought on record. In this regard, the evidence of Muhammad Hafeez P.W. 3 and that of Kanwar Muhammad Ayyub P.W. 2 are very important. Both of them are related in close degree with the appellant and they have no end or design to falsely implicate the appellant in this case.

12. An attempt has been made to invent a story that Kanwar Muhammad Ayyub had demanded Rs.50,000 or at least Rs.25,000 from the appellant to clear his debt of Agricultural Development Bank with whom he had litigation. Similarly an unfounded story has been cooked up for the first time during the trial that the deceased persons were of bad character and due to their illicit relation with the daughters of one Amanat, had visited the house of said Amanat at mid-night and were killed by some unknown persons. The hollowness of this defence version becomes apparent even from the statement of D.W. 1 i.e. the father of the appellant who clearly said that both the deceased persons enjoyed good reputation and were of good character. Though he stated that they were killed while they were guarding the girls of Amanat but there appears to be no truth in this version and this statement was made by the D.W. only to save the skin of the appellant, who was his real son. Likewise the story about the demand of Rs.50,000 or Rs.25,000 by Kanwar Muhammad Ayyub P.W. 2 to clear off his debt appears to be meritless because it was never taken up as first plea when the appellant was arrested by the police. Had there been any truth in any of the two versions, the same should have been impleaded forthwith at the earliest occasion by the appellant. These stories were introduced at the time of the trial which are nothing but an invention of some fertile mind. The eye-witnesses or the recovery witnesses do not require any sort of corroboration because they are neither inimical nor interested so as to implicate the accused in this case falsely. Anyhow if any corroboration is required, the same is provided by the scientific analysis of the Ballistic Expert, who found the crime empty wedded with the gun P.6 recovered from the appellant. This type of corroboration makes the ocular, account of occurrence very trustworthy and unimpeachable. The same is the position with the medical evidence, which supports the version of the eye witnesses regarding the seats of injuries on the dead bodies of the deceased persons during the post-mortem examination. Though the Medical Officer was not available as he had left for England and his repatriation was not possible in the near future, therefore, the post-mortem reports prepared by him were brought on record through Dispenser who used to work with him and saw him writing and as such was well-conversant with the handwriting of the Doctor. Such type of evidence is sufficient to meet the legal requirements that in case a witness is not available in the near future, his evidence may be brought on record in the manner stated above.

13. In view of our above discussion, it is found that the prosecution has, been successful to prove its case beyond any reasonable doubt. The defence version advanced by the appellant is meritless and is highly improbable so as to create any doubt in the prosecution case.

14. The appeal is accordingly dismissed and the conviction and sentence of death of the appellant under section 302, P.P.C. on each count for the murder of p Muhammad Sharif and Malik Muhammad is upheld. Murder Reference No.55 of 1993 is answered in affirmative. Death sentence of appellant on each count is confirmed. N. H. Q./M.251/L Appeal dismissed