Sh. Abdul Rashid, J.--Sh. Shahid Shafique son of Sh. Muhammad Shafique caste Sheikh, resident of Satiana Road Faisalabad (appellant) had been tried by learned Addl. Sessions Judge, Sialkot in case FIR Bi, 213 dated 17.7.1996 under Sections 302, 324, 449/34 PPC registered at Police Station Kotwali, Sialkot, who vide judgment dated 7.10.2000 had convicted the appellant under Section 302 PPC and sentenced him to death subject to confirmation by the Lahore High Court, to pay a sum of Rs, 25,000/- as compensation to the legal heirs of the deceased in default in the payment of which to further undergo 6 months R.I. and also convicted him under Sections 324 and 449 PPC and sentenced him to 7 years R.I. in each. Both the said sentences were ordered to run concurrently in case the death sentence was not confirmed.
2. Feeling aggrieved by the said conviction and sentence the appellant has filed this Crl. Appeal No, 249-J of 2000 whereas Murder Reference No, 606 of 2000 has been received for confirmation of death penalty. Both the murder reference and the Crl. Appeal are being jointly disposed of by this order.
3. Briefly stated the facts of the prosecution case as couched in the FIR Ex. PA lodged by Sh. Iftikhar Hussain complainant are that his father Sh. Altaf Hussain carried on cloth business at Gujranwala whereas after completion of his education he was residing at Sialkot. Sh. Shafique Saithi father of the 'appellant' resident of Satiana Road, Faisalabad was "Tayazad" of the complainant with whom the complainant's family had severed their bonds. Some time prior to the occurrence said Sh.
Shafique Saithi came to the house of the complainant and proposed for the hand of Mst. Sumaira Altaf Sister of complainant for marriage with his son Shahid Shafique (appellant) and the said proposal was scouted by the complainant's parents to which the appellant and his father took scunner at and considered it as their insult and started extending life threats to the complainant's family. Father of the complainant then sent Sh. Muhammad Athar maternal uncle of the complainant to the appellant's father with the message that he would not agree to give the hand of Mst. Sumaira Altaf in marriage to his sou (appellant) and that they should stop extending threats. On 17.7.1996 at about 7 a.m. Iftikhar Hussain complainant alongwith his mother Bushra Begum, his brothers Tahir Hussain, Sh. Bilal Hussain and maternal uncle Sh. Muhammad Athar were present in their house; a bell at the outer door of their house rang. Sh. Tahir Hussain had gone to open the gate and he found Sh. Shahid Shafique (appellant) alongwith his cousin Ghulam Khalil residents of Satiana Road, Faisalabad, standing there and they expressed the desire to meet the complainant's mother and entered the house. When Mst. Bushra Bibi came out in the Veranda the appellant took out his pistol and fired at her hitting her on the back of left ear. The complainant and the PWs rushed to rescue her upon which Shahid Shafique made a second fire shot at Tahir Hussain hitting him on the right side of neck and his co-accused Ghulam Khalil then took out his pistol and fired at Sh. Athar maternal uncle of the complainant hitting him in front of his belly and right flank. Thereafter the appellant and his co-accused made good their escape raising Lalkaras.
Mst. Bushra Begum died at the spot. The accused had committed the occurrence because of their grouse against refusal of giving the hand of Mst. Sumaira Altaf in marriage with the appellant. Tahir Hussain and Sh. Akhtar Hussain were removed to the hospital by Sh. Bilal Hussain PW, while complainant remained present with the dead body at his house.
4. Javaid Aslam S.I. SHO Police Station Kotwali upon receiving an information about the occurrence reached the house of the complainant at about 8.30 a.m. The complainant got recorded his statement Ex. PA which was read over to him and he signed the same in token of its correctness.
The complaint Ex. PA was sent to the police station Kotwali through Shahbaz Ahmad Constable No, 278 for registration of the case and Zia Ullah Head Constable recorded formal FIR Ex. PA/1 on the basis of the same.
5. Javaid Aslam S.I. prepared the inquest report Ex. PF and injury statement Ex. PG of Mst. Bushra Begum and entrusted the dead body to Muhammad Arif and Muhammad Afzal Constables for postmortem examination. He carried out spot inspection. He took into possession blood stained earth vide memo Ex. PM. He recorded the statement of the injured PWs in the hospital.
6. On 17.7.1996 Lady Dr. Rahat Firdaus Medical Officer performed post-mortem examination on the dead body of Mst. Bushra Begum wife of Sh. Altaf aged 55 years and she found the following injuries on her person:--
1. Black coloured circular 1 cm x 1 cm wound present behind the right ear.
On dissection it was observed that Injury No, 1 was the entrance wound. The bullet after injuring facia, had fractured the mastroid process of the right side and injured the carotid vessels and trachea and had been lodged in the soft tissue below the mandible in front of neck. There was no exit wound. The bullet was recovered from the soft tissue of the neck. All other organs were found to be healthy.
In the opinion of the medical officer the Injury No, 1 which had been caused by fire-arm was ante- mortem. It had caused cut in the trachea and damaged the great vessels of the neck leading to haemorrhage and shock resulting in death. It was sufficient to cause death in the ordinary course of nature. The death had occurred instantaneously as a result of Injury No, 1 and the time between death and post-mortem examination was about 6 to 10 hours.
7. After the post-mortem examination the last worn clothes of the deceased, a sealed bottle containing bullet and other police papers were given to the police Ex. PE is the correct carbon copy of the post-mortem examination and Ex. PE/1 is the pictorial diagram depicting location of the injury which are in the handwriting of the medical officer and bear his signatures.
8. On 17.7.1996 at 8 a.m. Dr. Maqsood Siddique Chaudhry, Medical Officer medically examined Sh.
Tahir Hussain PW vide Ex. PJ and found one lacerated circular wound 1 cm in diameter on the right side of neck. The wound had burnt and torn margins.
On the same day the Medical Officer Dr. Maqsood Sadiq Chaudhry also examined Athar Hussain PW vide medico legal report Ex. PK and found the following injuries on his person:--
1. A lacerated circular wound 3/4 cm in diameter in the apigaster area of the abdomen. Margins of the wound were torn' and burnt.
2. A lacerated circular wound 3/4 cm in diameter and depth not probed on the right lateral borders of abdomen in upper part. Margins of the wound were torn and burnt.
9. On 19.7.1996 Javed Aslam S.I./SHO directed Masood Ahmad Bhatti, Draftsman to prepare the scaled site-plan of the place of occurrence who on the pointation of the PWs prepared site-plan Ex.
PH and its copy Exp. PH/1. The Sub Inspector/SHO gave his notes in red ink and signed the same.
10. On 27.7.1996 Javed Aslam S.I. SHO arrested Ghulam Khalil the co-accused. The appellant had absconded and could not be arrested. The warrant of his arrest Ex. PN were obtained which were marked to Liaqat Ali Constable for execution on 1.8.1996. The prociamation Ex. PO was issued by the Illaqa Magistrate which was marked to Liaqat Ali. Constable for execution on 6.8.1996. The appellant was not declared P.O. and challan against him was submitted under Section 512 Cr.P.C. on 4.9.1996.
11. On 23.8.1998 on spy information Muhammad Faiz ASI of Police Station Saddar Sialkot arrested the appellant from Katchery road near Railway-gate and sent him up for trial.
12. The appellant had been charged under Section 302, 324/34:and Section 449 PPC which was read over and explained in the language which he understood and he pleaded not guilty and claimed to be tried.
13. The prosecution produced Sh. Iftikhar Hussain complainant PW 1, Sh. Tahir Hussain Tahir Hussain (eye witness) PW2, Sh. Muhammad Athar (eye witness) PW3, Muhammad Afzal PW4, Muhammad Iqbal PW5, Shahbaz Javaid PW6, Dr. Rahit Firdaus PW7, Zia Ullah PW8., Muhammad Arshad ASI, PW9, Sharif Masih PW 10, Liaqat Ali PW11, Masood Ahmad Bhatti, PW12, Rana Ehsan Elahi PW 13, Muhammad Faiz, ASI PW 14, Liaqat Ali PW 15 and Javaid Aslam S.I. PW 16 in support of its case. The learned A.D.A. gave up the remaining PWs and tendered in evidence report of Chemical Examiner Ex. PQ, report of Serologist Ex. PR and that of Forensic Science Laboratory Ex. PS and closed the prosecution case.
14. The statement of the appellant under Section 342 Cr.P.C. was recorded and all the incriminating prosecution evidence was put to him which he refuted and stated that the complainant party was closely related to him. He had developed affection with Sumaira Altaf daughter of Sh. Altaf and entered into a love marriage without the blessing of her parents to, much of their annoyance. The complainant party had got a sum of Rs, 8,00,000/- on loan for business which they neither returned in principal nor paid its profit and on his demand from the complainant party for payment of the said amount it turned inimical; that he had a dispute with the complainant party on the said issue and they had promised to pay Rs, 5,00,000/- to him and he deputed Ghularn Khalil convict co- accused to collect this amount from the complainant party at their house. In the meantime the complainant party had hatched a conspiracy to falsely implicate him and Ghulam Khalil in a robbery case. On entering into their house the complainant party wanted to over power Ghulam Khalil with pistol. A fight ensued between them in which they sustained bullet injuries; that the complainant party had only summoned Ghulam Khalil through him on the pretext of the aforesaid payment. He was at Rawalpindi on the day and time of occurrence. The complainant party falsely implicated him and got him declared PO by fabricating evidence. He surrendered before the police on coming to know about his false implication. The defence version furnished by him before Faiz Ahmad ASI PW at the time of his arrest was an integral part of his statement in defence. He also submitted a written statement Ex. PA, which was in his handwriting and bore his signatures which he also placed on record to be read as integral part of his defence version. He opted to produce defence evidence and then also opted to appear on oath as his witness under Section 340(2)
Cr.P.C. in disproof of the prosecution allegations. He produced Arshad Mehmood Asim Muhammad Shafique DW2, Munawar Hussain DW3, Naseer Haider DW4, Kamran Zafar DW5, Muhammad Faiz ASI DW6 and himself appeared as DW7.
15. Upon conclusion of the trial the appellant had been convicted and sentenced as mentioned above. Feeling aggrieved by which he has filed this appeal.
16. It has been mainly argued on behalf of the appellant that he had given loan of Rs, 5,00,000/- to Sh. Altaf Hussain father of the complainant in the year 1991 regarding which an agreement Ex. DB was recorded and that subsequently he had given in the year 1995 another loan of Rs, 3,00,000/- to Sh. Iftikhar Hussain complainant regarding which receipt Ex. PC was executed and both the said documents have been validly proved on the file and that the appellant had developed affection for Mst. Sumaira Altaf and had contracted love marriage with her against the wishes of her parents which annoyed the complainant party and that when the appellant demanded the return of his loan amount from the complainant party then to deprive the appellant of his loan amount and also to sever his relationship with Mst. Sumaira Altaf the complainant party invited the appellant to visit their house on 17.7.1996 to receive the payment of Rs, 5,00,000/- and. that the appellant had sent his cousin and trusted friend Ghulam Khalil to receive the said amount and there according to the planned conspiracy the complainant party took out pistol and tried to overpower him to involve him in a robbery case and that Ghulam Khalil had resisted their plan and in the scuffle three fire shots had been fired accidentally hitting Mst. Bushra, Tahir Hussain and Athar Hussain and thereafter the said Ghulam Khalil escaped from the complainant's house and that the appellant had been falsely implicated in the case on account of the complainant party's animus against the appellant for his secret love marriage with Sumaira Altaf and as well as his demand for return of the loan amount. It has been argued that the appellant had produced reliable evidence to support the factum that he had contracted marriage with Sumaira Altaf who had been living with him as his wife at Faisalabad and that the prosecution version about the refusal of marriage proposal of Sumaira Altaf with the appellant being motive for the occurrence was unfounded. It has also been argued that the appellant soon after his arrest had consistently put forth his defence version before every competent authority and that the PWs are related inter se and as well as with the deceased and are inimical to the appellant and that no independent person from the area has been produced in support of the prosecution case. It is further argued that at the time of the alleged occurrence the appellant was at Rawalpindi with his uncle Sh. Shafique DW4 and .he has been implicated in this case on account of malice and enmity.
17. The appellant has produced defence evidence in this case and himself appeared as DW7 on oath in disproof of the prosecution allegations and took up the plea that he was not present at the place of occurrence and was present at Rawalpindi and that the occurrence had resulted during the scuffle between Ghulam Khalil convict co-accused and the injured PWs when the former had gone to the house of the complainant party on his Lidding to receive part of the loan amount. He stated that after the occurrence he came to know that Mst. Bushra deceased, her brother named Athar Hussain and her. son Tahir Hussain had received injuries: The husband of Mst. Bushra Begum namely Sh. Altaf is the real uncle of his father. Prior to the occurrence he had good relations with the complainant party. He had lent a sum of Rs, 8,00,000/- on loan to Sh. Altaf and on his demand for return of the loan amount the complainant developed enmity with him. Receipt Ex. DC was got recorded by Iftikhar Hussain son of Sh. Altaf Hussain and the latter also executed Iqrarnama Ex. DB in his favour. He due to good relations with the complainant party used to visit their house and during that period he developed love with Sumaira Altaf daughter of Sh. Altaf. On 1.5.1993 he performed 'Shari Nikah' with Mst. Sumaira which was not got registered and after nikah he alongwith Mst Sumaira resided in Faisalabad from December 1994 to May 1995. The parents of Mst.
Sumaira took ill of her nikah with him and got annoyed. Mst. Sumaira also obtained NIC No, 244666-7584-2 showing herself to be his wife and he produced its copy as Mark I. This NIC was issued from Faisalabad. He further stated.that Ghulam Khalil the convict accused is the son of his real uncle and prior to the occurrence he used to live at Rawalpindi with his maternal uncle Sh.
Shafique. About 2(1/2) months prior to the occurrence in the presence of Arshad Mahmood DW, Sh.
Altaf, promised to pay loan amount to him in two months. On 16.7.1996, he went to the house of Shafique DW alongwith Ghulam Khalil and he told Ghulam Khalil to go to the house of his parent- in-law and get whatever amount they gave. Ghulam Khalil on'the same day at about 7 p.m. left for Sialkot. On 17.7.1996 Ghulam Khalil returned to Rawalpindi and met him at about 8 p.m. and informed him that when he went to the house of Sh. Altaf Hussain, Athar and Tahir met him at the gate of the house and after shaking hands took him inside the house and when he reached the veranda, Mst. Bushra Begum deceased started abusing him and then Mst. Bushra Begum, Tahir and Athar tried to over power him and they were armed with pistols. Ghulam Khalil further told him that he tried to snatch the pistol from Athar and during the said struggle the pistol went off and all the said three persons namely Mst. Bushra Begum, Athar and Tahir received injuries and thereafter he having rescued himself from them succeeded in escaping from the spot. He further stated that he had no knowledge that he had been got declared as P.O. in the present case and that he came to know in June 1998 through Naseer Haider DW that the police intended to arrest him in the instant case. He then himself surrendered before the police of police station Kotwali in August 1998. During investigation he got recorded his defence version before Muhammad 'Faiz ASI and Sabir Hussain Chatha SHO.
18. Arshad Mehmood DW1 narrated about the appellant having married Mst. Surnaira Altaf on 1:5.1993 and then he also witnessed Iqrarnama Ex. DB allegedly executed by Sh. Altaf Hussain at Faisalabad on 7.11.1991 for the loan amount of Rs, 5,00,000/- in favour of the appellant and he also witnessed the receipt for loan amount of Rs, 3,00,000/- allegedly executed by Iftikhar Hussain PW on 10.1.1995. He also narrated about the appellants going to the house of Mst. Bushra Begum 21/2 months prior to the occurrence to make demand for return of the loan amount to which the deceased responded that she was not in a position to pay the amount.
19. Muhammad Shafique who is real maternal uncle of the appellant while appearing as DW2 stated that the appellant had contracted love marriage with Mst. Sumaira against the wishes of her parents which annoyed them and that the father of Mst. Sumaira had borrowed Rs, 8,00,000/- from the appellant for business and the said amount was not returned to the appellant which was a cause of rift between the appellant and the parents of Mst. Sumaira. Ghulam Khalil the convict co-accused, a cousin of the appellant, was his worker. On 16.7.1996 he met the appellant at Rawalpindi where the latter had been doing business for the last two years prior to 16.6.1996 and the appellant told Ghulam Khalil to contact Sh. Altaf at Sialkot and collect some amount from him who then left for Sialkot and then returned to Rawalpindi on the next day at about 8 p.m. and intimated to the appellant in his presence what had transpired at the house of the complainant party.
20. Munawar Hussain while appearing as DW3 stated that the appellant alongwith his wife Mst.
Sumaira had resided in Fatehabad in peoples colony Faisalabad for about 5/6 months and they were his neighbours and thereafter the appellant left with his wife for Lahore.
21.Naseer Haider while appearing as DW4 stated that on 17.7.1996 he went to the house of Sh. Altaf Hussain to give him the message and there he learnt that some dacoity had taken place and he had seen Mst. Bushra Begum, Athar and the brother of Bushra Begum having scuffle with. Ghulam Khalil who was armed with a pistol whereas Mst. Bushra Begum and her brother and son were empty handed. During the scuffle the fires .went off and the said three persons got injured. The occurrence was witnessed by 15/20 persons from the vicinity. Ghulam Khalil thereafter ran away.
22. Kamran Zafar, a cousin as well as brother-in-law of the appellant, while appearing as PW5 witnessed the Ex. DC a receipt of a sum of Rs, 3,00,000/- allegedly executed by Sh. Iftikhar Hussain and then he also stated that on 16.6.1996 Ghulam Khalil convict co-accused came to Rawalpindi at the house of Shafique DW and met the appellant who told him to go to Sialkot to receive his money from Sh. Altaf and on 17.7.1996 said Ghulam Khalil returned to Rawalpindi and met the appellant at 8 p.m. and informed that Sheikh Altaf Hussain instead of making the payment had whipped out pistols at him and due to the scuffle the pistol went off and the fire shots had hit Mst. Bushra Begum, her brother Sh. Athar and son Sh. Tahir Hussain. Ghulam Khalil after narrating about the incident left the house and that on 17.7.1996 the appellant was present at Rawalpindi.
23. Muhammad Faiz ASI while appearing as DW 6 produced on the file case Diary No, 22 dated 29.8.1998 and case Diary No, 23 dated 30.8.1998 having recorded and signed by Sabir Hussain Chatha S.I./SHO police station Kotwali.
24. From the defence evidence of DW1 to DW6 statement on oath of the appellant as DW7, statement under Section 342 Cr.P.C. alongwith written statement Ex..DA of the appellant and his first version recorded by Muhammad Faiz ASI, the defence version for discussion and analysis can be divided into the following parts:--
1. Giving of loan of Rs, 5,00,000/- by the appellant to Sh. Altaf Hussain father of Sumaira Altaf on 7.11.1991 vide Ex. DB' and giving of loan of Rs, 3,00,000/- by the appellant to Sh. Iftikhar Hussain brother of Sumaira on 10.1.1995 vide Ex. DC.
2. The love marriage of the appellant with Sumaira Altaf and their living as husband and wife.
3. Demand by the appellant of his loan amount from the complainant party.
4. Conspiracy hatched by the complainant side against' the appellant to get rid of the loan amount and also to sever his ties with Sumaira Altaf.
5. Call by the complainant side to the appellant for part payment of the loan amount; the appellant's deputing Ghulam Khalil, his cousin, to go to Sialkot on 17.7.1996 to receive the part payment.
6. Return of Ghulam Khalil to Rawalpindi at the house of Shafique maternal uncle of the appellant and narration of the event that took place at the house of Sh. Altaf Hussain at Sialkot.
7. Conduct of the appellant after the occurrence.
25. The appellant claims to have given a loan amount of Rs, 5,00,000/- to Sh. Altaf Hussain on 7.11.1991 at Faisalabad vide Ex:. DB which was allegedly witnessed by Arshad Mehmood Asim DW1 and one Azhar Ali. He also claims to have given a loan amount of Rs: 3,00,000/- to Sh. Iftikhar Hussain complainant, brother of Sumaira vide Ex. DC on 10.1.1995 which was allegedly witnessed by Arshad Mehmood Asim and Kamran Zafar DW5. Thus in all the appellant gave Rs, 8,00,000/- to the family of Sh. Altaf Hussain as loan for business in the year 1991 and 1995 and at that time the said amount was considerably huge in value. The appellant had not produced any material on the record to show that he had the said amount with him or to show his financial capability to loan the said amount. Arshad Mehmood Asim DW1 stated in his cross-examination that the appellant had his independent business apart from his father and that he had a rented shop in cloth market Faisalabad and that the appellant had started his independent business 2/3 years prior to the marriage of his sister which he had attended in the year 1991. Only a person having huge business could lend the said amount as loan. The appellant was neither an income-tax assessee or payee and no proof to that effect has been brought, on the file. DW1 further stated that the appellant hired a house consisting of 2/3 rooms in Peoples Colony Faisalabad where he lived with his wife Mst.
Sumaira and thereafter he shifted to Lahore and it is also in the evidence that 2 years prior to the occurrence the appellant shifted his residence to Rawalpindi and resided with his uncle Shafique DW2. The appellant had no shop or office and he simply used to purchase cloth and sell to retailers.
If the appellant had a business of the volume at Faisalabad which enabled him to dole out Rs, 8,00,000/- to Sh. Altaf Hussain then it was unlikely that he would be living in a house consisting of 2/3 rooms in a Mohallah and then would be giving up his business at Faisalabad and he would shift to Lahore and thereafter would shift to Rawalpindi and then put himself at the mercy of his maternal uncle. Sh. Altaf Hussain had been living abroad for a number of years and it has been admitted by Naseer Haider DW4 that he had been in Kuwait and his financial position was very strong thus firstly, the appellant had no financial position to dole but Rs, 8,00,000/- as loan to Sh.
Altaf Hussain and secondly, there was no need for the latter to receive any loan amount from the appellant.
26. The appellant allegedly gave Rs, 5,00,000/- to Sh. Altaf in the year 1991 vide Ex. DB and did not receive any amount in principal or in profit from him. It is unlikely that after the said experience the appellant would again dole out Rs, 3,00,000/- to Sh. Iftikhar Hussain complainant in the year 1995.
Furthermore Sh. Iftikhar Hussain complainant is an engineer and in the year 1995 he was posted at Muzaffarbad Azad Kashmir and was in service and therefore, there was no occasion or need for him to receive the loan amount to carry on business.
27. According to appellant he had contracted love marriage with Sumaira Altaf in the year 1993 which had annoyed her family. In view of that even it would be highly improbable that Sh. Iftikhar Hussain would be receiving any loan amount from the appellant in the year 1995 vide Ex. PC or the appellant would be willing to dole out the same.
28. Arshad .Mehmood Asim DW1 ironically is witness of both Ex. DB allegedly executed on 7.11.1991 at Faisalabad and Ex. DC also executed at Faisalabad on 10.1.1995. Said Arshad Mehmood Asim is resident of Tehsil Daska and apparently had no business to be at Faisalabad to witness the execution of both the documents. He admitted in his cross examination that Ex. DB was recorded by some other person whose name he did not know and likewise Ex. DC was also recorded by some one else whose name he did not know. Had these documents been genuine then there was no reason for DW1 to forget the names of their scribe. Thus DW 1 admitted in his cross examination that he had been friend of the appellant for the last 12/13 years and then, he was arrested in a zina case and was in jail from 21.10.1998 alongwith the appellant. The moral credentials of this witness speak volumes about his nature and character. Kamran Zafar DW5 had also witnessed the Ex. DC. This PW is husband of the sister of the appellant besides being his cousin. He admitted that Ex. DC was recorded by one Farooq who is alive and was related to him and he had good relations with him.
However, said Farooq had not been produced to prove the fact that Ex. DC was recorded by him on behalf of Sh. Iftikhar Hussain. It is to be noted that Sh. Iftikhar Hussain complainant is an engineer and educated person and if at all a receipt of the amount was to be recorded then he could have given it in his own handwriting.
29. The appellant while appearing as DW7 admitted in his cross-examination that both Ex. DB and DC were dug out from his record lying at his father's house at Faisalabad by Kamran Zafar DW5 in order to produce them on the file. However, Kamran Zafar in his evidence did not state that he had found the said two documents from his record- lying at the house of his father at Faisalabad. Thus the defence evidence produced in respect of the loan amount of Rs, 8,00,000/- being given by the appellant to the complainant side is extremely dubious and faulty and thus does not inspire confidence.
30.The appellant as DW7 stated that when he enjoyed good relations with the complainant party he used to visit their house and he developed love with Sumaira Altaf and he performed Shari Nikah with her on 1.5.1993. The parents of Mst. Sumaira took ill of her nikah with him and got annoyed and that his nikah was neither registered nor recorded. In his statement under Section 342 Cr.P.C he also reiterated that he entered into a love marriage with Sumaira Altaf without the blessing of her parents too much of their annoyance. Similarly the suggestions of the defence to. the complainant and the eye-witnesses and as well as from the first statement of appellant before Muhammad Faiz ASI PW14 it is borne that the appellant allegedly contracted love marriage with Sumaira Altaf furtively without the knowledge of her family members. However in his statement Ex.
DA which is in his own handwriting, which the appellant tendered as part of his statement under Section 342 Cr.P.C. he incorporated that on 1.5.1993 he contracted Shari Nikah with Sumaira Altaf with the consent of Mst. Bushra Begum, her mother, and except for Sh. Altaf Hussain all other family members participated in the marriage. Similarly, Arshad Mehmood Asim while appearing as DW1 stated that on 1.5.1993 Shari Nikah of Mst. Sumaira was held with the appellant at the house of her father in which he participated in the presence of Mst. Khazina, the sister of Mst. Sumaira, Mst.
Bushra Begum, her mother, Iftikhar Hussain, Bilal .Hussain and Tahir Hussain, her brothers and thus the defence version completely contradict each other regarding the alleged factum of marriage of Mst. Sumaira with the appellant. If the appellant had contracted a secret love marriage with Sumaira Altaf then presence of her family members would be unlikely and if they were present and the marriage ceremony took place at her father's house then the marriage cannot be termed a secret love marriage being source of annoyance to the family members. Thus if marriage of.
Sumaira with the appellant whether secret or with the consent of family members, had taken place then such a glaring contradiction would not have occurred on the record.
31. According to the appellant he contracted secret and Shari marriage and it was not registered.
Mst. Sumaira Altaf was an educated lady. and it would be unlikely that she could have subscribed to the idea of Shari Nikah without its being registered if at all any marriage had taken place.
However, the appellant in his statement Ex. PA himself incorporated that after nikah he went to Faisalabad alongwith his wife and friends and thereafter he demanded from Mst. Bushra Begum the copy of Nikahnama for preparation of NIC card of Sumaira Begum but she did not give the copy of nikahnama despite his repeated demands. This insertion in Ex.: DA recorded in the appellant's own handwriting, is indicative of the fact that the appellant's nikah with Sumaira was registered and therefore, it belies all the defence version that it was a Shari Nikah and had not been registered. Admittedly no nikahnama had been brought on the file. If the family members of Sumaira Altaf had attended the nikah ceremony at their house then it must have been registered.
The non-registration of nikah of the appellant is clearly reflective of the fact that no such nikah of appellant with Sumaira whether secretive or with the participation of family members was ever performed. Therefore, the defence version about the alleged nikah of appellant with Sumaira stands arrant falsified.
32. The appellant as DW7 stated that about (2/1) months prior to the occurrence in the presence of Arshad Mehmood Asim DWI Sh. Altaf promised to repay loan to him in two months. However, Arshad Mehmood Asim DW1 completely belies him on the said score as he stated in his evidence that about (1/2) months prior to the occurrence the appellant came to the house of Bushra Begum for demanding money and he was called by Bushra Begum deceased and in his presence she told the present appellant that she was not in a position to repay the loan and she requested the appellant for some time for payment of the loan amount. Thus the defence version on the aspect of demand of loan amount by the appellant is also repugnant to each other.
33. According to the defence version the complainant party had hatched a conspiracy to invite the appellant and Ghulam Khalil to their house at Sialkot on 17.7.1996 on the pretext to make payment of part of loan amount and then to involve them in a robbery case by planting pistols on them. No evidence regarding the factum of said conspiracy has been produced by the defence side and it has been merely brought on the file as a guess or imagination of the appellant which is inadmissible in evidence.
34. The defence has not led positive evidence as to who had called the appellant at Sialkot on 16.7.1996 for receipt of the partial loan amount. The DW7 in his cross-examination stated that Mst.
Sumaira, had on 15.7.1996 informed him on telephone that she would herself bring the amount from her parents and would reach Rawalpindi on 16.7.1996 but she did not reach and told him either to come himself or send some one else to collect the amount. If any conspiracy had been hatched to involve the appellant then he would have been told to come himself to collect the amount and would not have been required to send some one else. The complainant side had no motive whatsoever against. Ghulam Khalil convict co-accused and in case he had come alone to fetch the money there was no need to overpower him and attack him. He could have been simply told to leave the house and send the appellant for the needful. The complainant side allegedly bore animus against the appellant and not against Ghulam Khalil co-accused and no purpose could have been served by involvement of Ghulam Khalil in any dacoity incident. The suggestion put to the complainant and the eye-witnesses spell out that when the appellant was informed to collect the loan amount he apprehended foul play and did not go the house of the complainant himself and instead sent his trusted friend Ghulam Khalil to receive part of the loan amount. If the appellant apprehended foul plat at the hands of the complainant party then there was no need for him to send his trusted friend Ghiilam Khalil and make him fall prey to any conspiracy which had been allegedly hatched for him. However, the appellant in his Ex. DA contradicted the said apprehension of foul play and he stated that being unaware of any conspiracy he sent his trusted worker to fetch the loan amount because he himself had some business engagement at Rawalpindi. The appellant while appearing as DW7 also stated in his cross-examination that on 16.7.1996 he alongwith Ghulam Khalil went to Rawalpindi from Faisalabad on coach via Gujranwala and upon reaching there he told Ghulam Khalil to go to Sialkot to fetch the part loan amount. If the appellant was not willing to go to Sialkot himself then there was no need for him to make Ghulam Khalil accompany him to Rawalpindi and then tell him to go to Sialkot. Ghulam Khalil could have very conveniently gone to Sialkot from Gujranwala instead of traveling to Rawalpindi and thereafter from Rawalpindi to Sialkot. Muhammad Shafique DW2 and Kamran Zafar DW5 have contradicted the appellant DW7 by stating that on 16.6.1996. Ghulam Khalil met the appellant at the house of Muhammad Shafique at Rawalpindi and then the appellant told him to go to Sialkot to collect some loan amount. From their evidence it is borne out that the appellant was already at Rawalpindi and Ghulam Khalil came to him there, thus, the evidence of DW7 that he alongwith Ghulam Khalil both came from Faisalabad to Rawalpindi on the same day stands belied by the said DWs. All these facts about the summoning call from the complainant side to the appellant and the appellant not going to Sialkot himself and sending Ghulam Khalil are all replete with doubts and improbabilities and as such do not inspire confidence.
35. After the alleged incident that took place with Ghulam Khalil co-accused at the house of the complainant at Sialkot, said Ghulam Khalil then allegedly goes to the house of Shafique DW2 and where Kamran Zafar PW5 and appellant were present and there he narrates what transpired with him at Sialkot. The evidence of appellant as DW7, Muhammad Sahfique DW2 and Kamran Zafar DW5 regarding the details of the occurrence is based on their hearsay from Ghulam Khalil convict co-accused who is still alive. He has not been produced as a DW to support the said details of the occurrence, which allegedly took place at the house of the complainant. Thus all the details of the occurrence deposed by the DWs are inadmissible in evidence being hearsay. The defence version thus brought on the file that Ghulam Khalil Khalil went alone to the house of complainant and seeing him Mst. Bushra started abusing him and the PWs took out pistols and attempted to over power him and that he resisted their attempt and in the struggle three pistol shots went off accidentally hitting Mst Bushra Begum, Tahir Hussain and Athar Hussain, thus cannot be considered, being inadmissible in evidence. Ghulam Khalil convict co-accused has not come forward to support the defence version. The statement of the DWs that two PWs took out pistols and aimed at Ghulam Khalil but strangely he did not receive any injury, Ghulam Khalil convict co- accused could only grapple with one PW at a time while the second PW was free to fire at him but it was a queer co-incidence that Ghulam Khalil convict co-accused while grappling with both the PWs holding pistols resisted their attempt to fire and the three fire shots went off accidentally hitting only PWs and Mst. Bushra Begum deceased leaving the convict co-accused unscathed. This defence version besides being inadmissible in evidence even otherwise is too fanciful to be believed.. Furthermore, according to the appellant DW7, his defence version Ex. DA, his statement before Muhammad Faiz ASI PW14 at the time of his arrest, and the evidence of DWs, when Ghulam Khalil convict co-accused went to the house of complainant party at Sialkot only two PWs namely Tahir Hussain and Sh. Athar took out pistols and attempted to fire at him and Ghulam Khalil convict co-accused was able to resist their efforts. However, this part of the defence version had been completely belied by Kamran Zafar DW5 who is husband of the sister of the appellant and his first cousin as he stated in his evidence that Ghulam Khalil convict co-accused informed that Sh. Altaf Hussain instead of making the payment had whipped the pistols at the convict co-accused.
According to the entire defence version Sh. Altaf was not present at this house at the time of alleged occurrence but according to DW5 it was Sh. Altaf Hussain and not Tahir Hussain and Sh.
Athar PWs who took out the pistols. This is a material conflict and discrepancy in the defence version regarding the alleged occurrence which took place at the . house of the complainant party.
Thus the description of the facts of actual occurrence in the entire defence version besides being inadmissible are improbable and in material conflict with each other which make them incredible and unbelievable.
36. The conduct of the present appellant after the convict co-accused had informed him about what transpired at Sialkot is also pertinent regarding assessment of credibility of his defence version. Admittedly according to the appellant's defence version Ghulam Khalil convict co- accused had gone to the house of the -complainant party on the direction of the appellant to bring loan amount for him. The convict co-accused had been friend of the appellant and his trusted worker. He landed into the occurrence on account of the present appellant'who in his cross-examination as DW7 admitted that he came to know about the arrest of Ghulam Khalil within one month of the occurrence. According to him he had gone to the house of his parents who told him that Ghulam Khalil had been involved in this case on his account and they told him not to involve himself in the matter and expressed their design to pursue the case themselves. The convict co-accused had been tried and sentenced to life imprisonment and during this entire period the appellant did not bother to even see him in the jail or lend any kind of help to him. His said conduct is extremely improbable and against the normal course of human conduct. The appellant or any of the DWs appearing on behalf of the appellant did not appear in defence of Ghulam Khalil convict co-accused to narrate the alleged truth. The reason for this conduct of the appellant is quite obvious that after the occurrence he became an absconder and fugitive from justice. In his examination-in-chief as DW7 he stated that he had no knowledge that he had been good declared P.O. in the present case and he came to know in June 1998 through Naseer Haider DW4 that the police intended to arrest him in this case and then he surrendered himself before the police in August 1998. Had it been so or had he not absconded deliberately then he would have definitely pursued the case of his convict co-accused who landed into trouble on his account.
However, the said version of the appellant that he had no knowledge that he had been declared P.O. or that he had been implicated in the case stands belied by his own DW4 Naseer Haider who in his cross-examination admitted that 2/3 days after the occurrence he came to know that the appellant had been named as an accused in his case and then he had informed the appellant that his name has been mentioned in the case. DW4 subsequently also came to know that the present accused has been proceeded against as proclaimed offender and he further volunteered that very person knew about the said fact. Thus the appellant had come to know about his involvement in the case immediately after the occurrence through Naseer Haider DW4 and did not came to know about the said fact as stated by him in his evidence as DW7 two years after the occurrence.
37. Appellant after coming to know about the occurrence from his convict co-accused that Sh.
Athar, Sh. Tahir and Mst. Bushra Begum had received the bullet injuries did not make any effort to find out the facts. Had the appellant not participated in the occurrence then in the normal course of human conduct he would have made an effort to know about the facts. He would have felt concerned about Sumaira whom he claimed to be his wife who was also present at the scene of occurrence but the appellant in his cross-examination as DW7 admitted that he made no such effort to find what transpired at the scene of occurrence. Had the appellant not participated in the occurrence or had he no knowledge that he had also been named as an accused in the present case, he would have definitely made efforts to find the truth as to what happened at the house of the complainant party. The fact that he participated in the occurrence and had knowledge that he had been named as an accused and his absconsion after the occurrence had only prevented him from finding the facts at the scene of occurrence and helping his convict co-accused after his arrest.
38. The appellant remained absconder for almost two years and his defence version had been thus put forth after a delay of two years. The defence version, which is extremely belated is in consistent with the normal G course of human conduct and is replete with infirmities and contradictions cannot be believed. Therefore, the defence version as put forth by the appellant through his DWs does not inspire any confidence and as such is disbelieved.
39. The prosecution evidence against the appellant consists of Sh. Iftikhar Hussain complainant PW1, Sh. Tahir Hussain (injured eye-witness) PW2, and Sh. Muhammad Athar (injured eye-witness)
PW3. Tahir Hussain-PW1 stated that he was electrical engineer, Bushra Begum deceased was his real mother. Shahid Shafique appellant was the grandson of Sh. Manzoor Hussain who was his paternal uncle. On 17.7.1996 at about 7 a.m. he alongwith his mother. Mst. Bushra Begum deceased, his brothers Tahir Hussain, Bilal Hussain, his maternal uncle Sh. Muhammad Athar and his sisters Khazina and Sumaira were, present at their house while his father was away to Gujranwala, the bell of the outer gate rang and his brother Tahir went to open the gate and found that Shahid Shafique appellant and Ghulam Khalil convict co-accused were standing on the gate and they expressed their desire to meet Bushra Beg-um. Tahir told his mother that they wanted to see her to which she responded that she had already directed Shahid Shafique appellant not to visit her house and that why he had turned up again. The complainant alongwith his mother and brother Tahir Hussain proceeded towards gate and when they had reached the veranda Shahid Shafique appellant and Ghulam Khalil convict co-accused had already reached the car porch. His mother told Shahid Shafique appellant that as he had refused to give him the hand of her daughter Sumaira Altaf in marriage why he had turned up again and when she turned back Shahid Shafique appellant and Ghulam Khalil convict co-accused took out pistols. Shahid Shafique appellant fired with his pistol hitting his mother on the back side of her head near right ear and she fell down. Thereafter Tahir Hussain PW stepped ahead upon which the appellant fired at him hitting him on the right side of the neck. Sh. Muhammad Athar then also stepped ahead and was fired at by Ghulam Khalil which hit him in his abdomen. Both the appellant and convict co-accused decamped from the spot.
Bushra Begum mother of the complainant had sccumbed to the injuries at the spot. Sh. Bilal Hussain brother of the complainant removed Tahir Hussain and Sh. Athar to the hospital. He further stated that the motive for the occurrence was that Shahid Shafique appellant was adamant to marry his sister Sumaira Altaf but his mother Mst. Bushra Begum had scouted his desire and did not agree to the proposal and due to the said grouse the appellant had killed his mother. He further stated that both the appellant and his convict co-accused are resident of Faisalabad and had come from there. After short while the SHO reached the spot and recorded his statement Ex. PA which was read over to him and he signed the same in token of its correctness.
40.Sh. Tahir Hussain and Sh. Muhammad Athar injured PWs also narrated the same facts which had been deposed by Sh. Iftikhar Hussain PW1 in all material particulars.
41. It is borne out from the version of the appellant himself that he had developed affection and love for Sumaira Altaf sister of the complainant and had intended to marry her. Mst. Bushra Begum did not agree to the demand of the appellant, therefore, it is obvious that the appellant entertained grouse against her and considered her to be an obstacle in the achievement of his desire. The refusal by Mst. Bushra Begum to marry her daughter Sumaira Altaf with the appellant thus furnished an intense motive to the appellant to remove Mst. Bushra Begum from the scene.
Ghulam Khalil convict co-accused was his trusted friend and as well as his cousin and the appellant took him into confidence and they both in their youthful indiscretion planned to commit this occurrence and came all the way from Faisalabad to Sialkot.
42. The occurrence took place, at about morning time when it was daylight, in the house of the complainant party. The presence of the complainant and the injured PWs at their house is an admitted factum. The appellant and his convict co-accused where related to the PWs and as such there was no identification problem in this case. The PWs had no enmity or motive whatsoever to falsely implicate the appellant in this case. The evidence of the appellant is also corroborated by the medical evidence which found bullet injuries on the persons of the deceased and as well as the two injured PWs.
43. The appellant absconded after the occurrence and remained absconder for almost two years.
His non-bailable warrants were got issued which were entrusted for execution to Liaqat Ali Constable PW 15 who reported that the appellant had absconded and thereafter his proclamation was also got issued which was also entrusted to PW15 for execution and PW15 pasted its copy in the District Court premises and residence of the appellant. The testimony of PW15 had not been challaned in the cross-examination.
44. The prosecution has thus fully succeeded in establishing motive, against the appellant. The eye-witnesses besides being natural are independent and have no motive whatsoever to falsely implicate the appellant, therefore, the prosecution has succeeded in proving its case against the appellant and the learned trial Court thus has rightly recorded the appellant's conviction and sentence.
47. In view of the aforementioned facts we find no force in this appeal. It is consequently dismissed.
48. The murder reference is answered in the affirmative.