Asif Saeed Khan Khosa, J.--Waseem alias Butt appellant was convicted for an offence under Section 302(b), P.P.C. vide judgment dated 7.4.1999 handed down by the learned Additional Sessions Judge, Sialkot and was sentenced to death and to pay a sum of Rs, 50,000/-to the heirs of. Zulfiqar Ahmad deceased by way of compensation under Section 544-A, Cr.P.C. or in default of payment thereof to undergo rigorous imprisonment for two years. The appellant has challenged his conviction and sentence before this Court through the present appeal which has been heard by us alongwith Murder Reference No, 202 of 1999 seeking confirmation of the sentence of death passed against the appellant by the learned trial Court. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution's case detailed in the F.I.R. was that Mst. Rukhsana Nazir complainant was a resident of Gali Khanqah Wali, Mohallah Shuja Abad, Sialkot and her husband namely Muhammad Nazir was employed in Kuwait. The complainant's daughter namely Ghazala Nazir was a student of 9th Class at the Girls High School, Habibpura. Waseem alias Butt appellant, who rant a shop on the route between the complainant's house and the school of the complainant's daughter, and Abid alias Abbi co-accused used to tease the complainant's above mentioned daughter whereupon the complainant had requested her brother namely Zulfiqar Ahmad to live with the complainant so as to look after the safety of the complainant's house and also to go with the complainant's daughter to the school for her protection. On many a previous occasion the complainant's brother namely Zulfiqar Ahmad and Waseem alias Butt appellant and Abid co-accused had exchanged hot words and abuses with each other and Waseem alias Butt appellant had also threatened Zulfiqar Ahrnad that the latter would be killed. At about 9.30 p.m. on 4.11.1994 there was a knock at the door of the complainant's house and upon opening of that door the complainant saw Waseem alias Butt and Abid co-accused to be present there armed with pistols. Wasim alias Butt appellant asked the complainant about the whereabouts of her brother namely Zulfiqar Ahmad and the complainant told him that her brother was not home whereupon the appellant and his co- accused went towards the southern part of the street. The complainant also went after them and saw her brother Zulfiqar Ahmad coming towards the complainant's house in that street which was lit by, an electric bulb. Upon seeing Zulfiqar Ahmad approaching Abid co-accused exhorted Waseem alias Butt appellant to fire at Zulfiqar Ahmad and then the appellant put the barrel of his pistol on the abdomen of Zulfiqar Ahmad and fired at him. Upon receipt of that injury Zulfiqar Ahmad fell on the ground and the appellant and his co-accused fled from the spot. At that time the complainant's another brother namely Imtiaz Ahmad and the complainant's brother-in-law namely Saghir Afzal were coming towards the house of the complainant to inform the complainant about the arrival of the complainant's elder brother namely Iftikliar who had returned from Khuwait on that very day. The said Imtiaz Ahmad and Saghir Afzal also saw the occurrence. Upon the hue and cry raised by the complainant party a lot of people belonging to that Mohallah also gathered at the spot. Thereafter Zulfiqar Ahmad was taken to the hospital in an injured condition and was admitted for treatment but soon thereafter he succumbed to his injury and died in the hospital. It was mentioned in the F.I.R. that Waseem alias Butt appellant and Abid co-accused had murdered Zulfiqar Ahmad because the latter used to forbid them from teasing the complainant's daughter.
Upon receiving an information about the said incident Muhammad Asghar, A.S.I. (PW 8) reached the hospital and recorded a statement of the complainant whereafter a formal F.I.R. No, 292 was registered at Police Station Naikapura, Sialkot in that regard at 12.30 a.m. on 5.11.1994 for an offence under Section 302/34, P.P.C.
3. This case was investigated by Muhammad Asghar, A.S.I. (PW-8), Sohail Ahmad, S.I./S.H.O. (PW-12) and Riaz Ahmad, A.S.I. who had subsequently died and the steps taken by him during his investigation were proved before the learned trial Court through Muhammad Iqbal, A.S.I. (PW-14).
During the investigation the deadbody of Zulfiqar Ahmad deceased was got subjected to post- mortem examination, the appellant and Abid co-accused were arrested, a pistol was recovered from the appellant's possession and then, upon completion of investigation, a challan was submitted before the learned trial Court.
4. At the commencement of the trial the learned trial Court framed a Charge under Section 302/34, P.P.C. against the appellant and his co-accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced fourteen witnesses before the learned trial Court in support of its case against the appellant and his co-accused. Mst. Rukhsana Nazir complainant (PW-3) and Imtiaz Ahmad (PW-4) furnished the ocular account of the incident in question and they also deposed about the motive. Dr. Sohail Uppal (PW-6) and Dr. Syed Sajid Ali (PW-7) provided the medical evidence. Muhammad Parvaiz, L.S.C. (PW-10) deposed about absconscion of the appellant. Muhammad Asghar, A.S.I. (PW-8), Sohail Ahmad, S.I./S.H.O. (PW-12) and Muhammad Iqbal, A.S.I. (PW 14) stated about the various steps taken during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
6. In their statements recorded under Section 342, Cr.P.C. the appellant and his co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. While responding to a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him the appellant had maintained that a daughter of the complainant was maintaining a liaison with some person and the appellant had been falsely implicated in this case because he resembled that person. The appellant and his co-accused opted not to make any statement on oath under Section 340(2), Cr.P.C. but they produced two witnesses in their defence.
7. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, convicted and sentenced the appellant as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court. It may be mentioned here that the appellant's co-accused namely Abid alias Abbi was also convicted and sentenced by the learned trial Court and he had preferred Criminal Appeal No, 414 of 1999 before this Court but during the pendency of this appeal before this Court he died in jail on 10.11.2000. His appeal before this Court has been disposed of by us today as having abated.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, therefore, the learned trial Court was not justified in convicting and sentencing the appellant. It has also been argued by him in the alternative that the case in hand is not fit for awarding a sentence of death against the appellant. As against that the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, the conviction and sentence of the appellant recorded by the learned trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record we have noticed that although the occurrence in this case had taken place during a night yet it had been .mentioned in the F.I.R. itself that electric light was available at the place of occurrence facilitating the eyewitnesses in recognizing the culprits. Availability of such electric light had also been shown in the site-plan (Exh-PA) of the place of occurrence. The F.I.R. in this case had been lodged with reasonable promptitude and the appellant had been specifically nominated therein as the culprit who had fired the fatal shot at Zulfiqar Ahmad deceased Mst. Rukhsana Nazir complainant (PW 3) was a natural witness as the occurrence had taken place in the street outside her house and at a time when she was expected to be present at her house in the normal circumstances. Although Imtiaz Ahmad (PW 4) was admittedly a chance witness who lived about one mile away from the place of occurrence yet he had advanced a specific reason for his presence at the place of occurrence at the relevant time and that reason had not been seriously questioned by the defence during his cross-examination. It may be true that Mst. Rukhsana Nazir complainant (PW 3) and Imtiaz Ahmad (PW 4) are sister and brother of Zulfiqar Ahmad deceased, respectively but at the same time it is equally true that mere relationship of a witness with the deceased does not by itself disqualify such a witness from being a competent and reliable witness. Both these eye-witnesses had no enmity or animus of such a nature against the appellant so as to prompt them to falsely implicate the appellant in a case of this nature involving the murder of their brother. Both these eye-witnesses had made consistent statements before the learned trial Court regarding the main incident and their forthright and straightforward statements had not only impressed the leaned trial Court but they have also inspired our confidence. Thus, we have found no reason for not placing implicit reliance upon the statements of these eye-witnesses regarding culpability of the appellant.
10.The motive set up by the prosecution had been proved in this case through Mst. Rukhsana complainant (PW 3) and Imtiaz Ahmad (PW 4) who, on account of their very close relationship with the complainant's daughter, were even otherwise expected to be involved in the matter of teasing of the complainant's daughter by the appellant and his co-accused and also in the matter of the accused party's altercation with Zulfiqar Ahmad deceased in that connection. The complainant had stated before the learned trial Court that she had herself gone and met the appellant's father and had complained before him regarding the conduct of the appellant. Such personal knowledge and involvement of the complainant in the matter of teasing of her daughter by the appellant and his co-accused were nothing but natural and expected leaving no scope for raising an eyebrow in that regard by us. It may not be out of place to mention here that the statements of the complainant and the other witness regarding the said motive and not been seriously questioned by the defence during the cross-examination of these witnesses before the learned trial Court. In these circumstances the motive set up by the prosecution has been found by 'us to have been sufficiently established providing corroboration to the ocular account.
11.It is not disputed that the appellant had made himself scarce for over a year after the present incident and had opted to become a fugitive from law. His absconscion and publication of a proclamation in that regard had been duly proved before the learned trial Court by Muhammad Parvaiz L.S.C. (PW 10). Even otherwise in his statement recorded under Section 342, Cr.P.C. the appellant had admitted of his becoming a fugitive. Such a conduct displayed by the appellant surely went a long way in providing further corroboration qua his guilt.
12.The medical evidence produced by the prosecution before the learned trial. Court had also provided ample support to the ocular account inasmuch as the date and time of occurrence, the weapon used and the locale of the injury sustained by the deceased stated by the eye-witnesses had all been confirmed by the medical evidence.
13.Although the alleged recovery of a pistol from the appellant's possession during the investigation of this case had remained unconnected with the alleged offence yet we have not found this aspect of the matter to be sufficient to discard the other pieces of evidence available against the appellant in the present case.
14.The appellant had produced Khalid Mehmood (DW2) before the learned trial Court in order to establish that the murder of Zulfiqar Ahmad deceased had not been witnessed by the complainant and the other eyewitness produced before the learned trial Court but we have not found the statement of DW2 to be worthy of any serious consideration. He had claimed that he lived in a rented house in the street in question but had failed to produce any rent deed in that regard. He had never appeared before the investigation officer during the investigation of this case. His appearance before the learned trial Court as DW2 has, therefore, been found by us to be an afterthought and a last-ditch effort to save the appellant from the consequences of his misdeed.
We have thus, felt no hesitation in outrightly discarding the statement of this defence witness.
15. For what has been discussed above a conclusion is inescapable that the prosecution had succeeded in proving the guilt of the appellant beyond reasonable doubt. We have failed to find any mitigating circumstance in this case for reducing the appellant's sentence. In this context it may be observed that he had done an innocent man to death only because he used to object to the appellant's teasing of the deceased's young niece. The appellant had committed the said murder in furtherance of an immoral purpose disentitling him to any sympathy towards him in the matter of sentence. The normal wages of a crime of murder is death and in the circumstances of this case the appellant deserves no less.
16.Pursuant to the discussion made above Criminal Appeal No, 263 of 1999 filed by Waseem alias Butt appellant before this Court is hereby dismissed, his conviction and sentence recorded by the leaned trial Court are upheld and maintained with a slight modification that in case of his failure to pay the amount of compensation to the heirs of the deceased he shall suffer simple imprisonment for six months and not rigorous imprisonment for two years as ordered by the learned trial Court.
17.Murder Reference No, 202 of 1999 is answered in the affirmative.
18. The sentence of death passed against Waseem alias Butt appellant by the learned trial Court is confirmed.