' CH. IFTIKHAR HUSSAIN, J.--Shafaqat alias Ashfaq alias Shaki and Liaqat Ali, sons of Inayat Ali caste Ansari, residents of Kot Noor Shah Police Station Factory Area District Sheikhupura were tried under section 302 read with section 34, P.P.C. In case F.I.R. No, 504 of 1998 registered with Police Station Factory Area, Sheikhupura for on 3-7-1998 at about 11-00 a.m. In the area of Mauza Chahar falling within the jurisdiction of the aforesaid police station in furtherance of their common intention, committing the Qatl-eAmd deceased Nisar Ahmad by causing his death as a result of four .30 bore pistol shots at him.
2. On the conclusion of their trial Shafaqat Ali alias Ashfaq alias Shaki was found guilty of the Qatl- e-Amd of the deceased while not his brother Liaqat Ali.
3. Shafaqat Ali alias Ashfaq alias Shaki vide the judgment rendered on 22-5-1999 by Mr. Arshad Javed Meer, learned Additional Sessions Judge.
' Sheikhupura was convicted of the offence under section 302(b), P.P.C. And sentenced to death subject to confirmation by this Court. He was also ordered to pay Rs'.30,000 as compensation to the legal heirs of the deceased and in default thereof to further suffer six months rigorous imprisonment, whereas, Liaqat Ali was acquitted of the charge by giving him the benefit of doubt.
4. Shafaqat Ali alias Ashfaq alias Shaki has challenged his conviction and sentence by way of Criminal. Appeal No,547 of 1999, whereas the learned trial Court has submitted Murder Reference No,310 of 1999 for confirmation of his sentence of death as required under section 374, Cr.P.C.
5. Complainant Riaz Ahmad, the father of the deceased has brought Criminal Appeal No, 625 of 1999 challenging the acquittal of Liaqat Ali.
6. As all the three matters have arisen out of one and the same judgment and under common sets of facts. Hence these are being disposed of by this single judgment.
7. Briefly the facts relevant for the disposal of these are that the said case was registered on the statement Exh.PA of complainant Riaz Ahmad (P.W.4).
8. He has mentioned therein that this land is in Mauza Chahar. A tubewell has been installed therein. About 3/4 days ago there had been exchange of abuses between his son Nisar Ahmad and Shafaqat Ali alias Ashfaq alias Shaki and Liaqat Ali, sons of Inayat, caste Jolaha resident of Nai Abadi of his village over the turn of water but the same was hushed up. Shafaqat Ali alias Ashfaq alias Shaki and Liaqat Ali had said that they would avenge their insult.
' On 3-7-1998, at about 11-00 a.m. He along with Bashir Ahmad son of Charagh Din, Hafiz Ahmad son of Muhammad Rafique caste Rajpoot residents of the village and Nisar Ahmad were working in the fields near the tubewell. Ashfaq alias Shaki armed with .30 bore pistol and Liaqat Ali with .7 mm rifle came there. Liaqat Ali raised Lalkara that Nisar Ahmad be taught lesson for their insult. He pointed out .7 mm rifle towards them and said that whosoever came near would be killed. Ashfaq alias Shaki with the same fired four consecutive shots with .30 bore pistol at Nisar Ahmad in order to kill him. These fires hit at his left side of the abdomen, front right thigh, shin of the left leg and thigh, who fell down. He and his companions remained beseeching the accused. On the noise and the report of fires many men and women ran towards them. Ashfaq alias Shaki and his brother decamped from the scene while firing. He along with Bashir Ahmad took Nisar Ahmad to Mayo Hospital, Lahore in injured condition for his treatment, who is admitted there and lying unconscious.
He had remained with him to look after him. Shafaqat All alias Ashfaq alias Shaki and Liaqat Ali, in furtherance of their common intention have attempted his murder.
9. Appellant Shafaqat alias Ashfaq alias Shaki and his brother Liaqat Ali after investigation were challaned to the Court.
10. They were formally charged under sectidn 302 read with section 34, P.P.C. By the learned trial Court. They denied the charge.
11. The prosecution at their trial had examined it's following 14 witnesses; Nazir Ahmad, A.S.-I. (P.W.1), Dr. Zulfiqar Ali (P.W.2), Zubair Hussain (P.W.3), complainant Riaz Ahamd Hafiz Ahmad (P.W.5), Amjad Husain (P.W.6), Ibrar Khan-H.C. (P.W.7), Muhammad Rafique-C (P.W.8)., Muhammad Shakeel (P.W.9), Syed Sarfraz Trimzi (P.W.10), Muhammad Ashraf-MHC (P.W.11), Muhammad Aslam-C (P.W.12), Abdul Rashid-A.S.-I./I.O. (P.W.13) and Dr. Muhammad Obaidullah (P.W.14).
12. The report of Forensic Science Laboratory was tendered in the evidence as Exh. PP.
13. Appellant Shafaqat Ali alias Ashfaq alias Shaki and his brother Liaqat Ali in their examination under section 342, Cr. P. C . Have denied the allegation appearing against them in the prosecution evidence. Appellant Shafaqat Ali alias Ashfaq alias Shaki had pleaded grave and provocation in the following words: "The P.Ws. Have deposed falsely being related with the deceased and they are also interested witnesses. On the day of occurrence I was working in the fields. My sister had come to me to give me meal. When she reached near Guava orchard, I heard her shrieks. On hearing the same I attracted to that side and rushed and saw that Nisar Ahmad deceased was pulling my sister from her arm for committing Zina-bil-Jabr with her. Nisar Ahmad deceased had already committed Zina-bil-Jabr with my sister prior to the occurrence in question. When I reached near the deceased, he fired at me but I luckily escaped. I snatched from Nisar Ahmad his pistol and fired at him with his pistol at the spot. To save the honour of my sister in sudden provocation I fired at Nisar Ahmad deceased without any intention to kill him. My brother Liaqat Ali was not present at the time of occurrence."
' Whereas Liaqat Ali pleaded alibi.
14. They produced their real sister Mst. Shehnaz Bibi (D.W.1) in their defence. They both, however, have declined to depose on oath in disproof of the allegation appearing against them in the prosecution evidence.
15. The learned trial Court after hearing the parties came to the conclusion that the charge of Qatl- e-Amd of the deceased stood roved against appellant Shafaqat alias Ashfaq alias Shaki beyond any shadow of reasonable doubt but not against his brother Liaqat Ali. It has convicted and sentenced appellant Shafaqat alias Ashfaq alias Shaki and acquitted his brother Liaqat Ali as mentioned above.
16. It has been contended on behalf of the appellant Shafaqat alias Ashfaq alias Shaki that the prosecution could not prove the charge against him beyond any shadow of reasonable doubt as both the eyewitnesses appeared to have not been present at the spot at the relevant time and this is so evident from the fact that the incident had taken place at 11-00 a.m. On 3-7-1998 while the report regarding the same was made on the next day i.e, 4-7-1998 at about 5-5 p.m. That such delay of about .30 hours in lodging the F.I.R. Speaks volume about the fact that these eye-witnesses were not present at the spot and had it been so P.W. Riaz Ahmad, the father of the deceased would have lodged the report with the police much earlier to that; that this fact is further established from the entry in the MLR Exh. PN of the deceased which shows that one Muhammad Junaid Khan had accompanied him to the hospital and the same did not contain the name of the complainant as the person who had brought him there; that such position is also established from the, fact in the evidence of Muhammad Shakeel Patwari that the land of the complainant party was under the cultivation of one Aslam and Nazir and this suggests that the complainant and his companions had no occasion to work in the fields as is their version; that the learned trial Court did not believe the motive set up by the prosecution against them which again in suggestive of the fact that the prosecution has not come forward with true story and the story of the motive was created to support the ocular version; that in these circumstances, the defence version of grave and sudden provocation is more probable and plausible than that of the prosecution; that this defence version gets support from the facts in the evidence that their existed a guava orchard near the place of occurrence and the deceased even about a year prior to the occurrence had committed Zina-bil- Jabr with the sister of the appellant and he on the fateful day again had attempted to commit such act with her and the appellant on hearing her shrieks and reached here and snatched pistol from the deceased and fired at him; that in presence of all such facts the learned trial Court has erred in rejecting the plea of the appellant and convicting and sentencing him; and that in any case, if at all it may be believed that he had committed the Qatl-eAmd of the deceased, it then was on the commandment of his elder brother Liaqat Ali and so he deserved lesser penalty than death and in this regard reliance has been placed upon the cases of Noor Muhammad v. The State (1988 SCM R 1640), Liaqat Shah and others v. The State (1985 SCM R 1415), Tariq and 2 others v. The State (1995 SCM R 168), Zia Ullah v. The State (1993 SCM R 155), Shana and 2 others v. The State (1999 SCM R 1507) and Ballia and others v. The State (1985 SCM R 854).
17. As against the same, the learned State counsel assisted by the learned counsel for the complainant has supported the impugned judgment saying that the prosecution as per it's ocular testimony against appellant Shafaqat alias Ashfaq alias Shaki corroborated by the medical evidence and his own admission of having killed the deceased at the given date, time and place, as is in the eye-witness account of the prosecution, stood succ'eded in bringing home the quilt to him beyond any shadow of reasonable doubt; that the appellant in broad-daylight had fired four consecutive pistol' shots at the deceased resulting into his death and he in order to save his skin has fabricated a false story of having acted in the matter under grave and sudden provocation and his such plea, therefore, was rightly rejected by the learned trial Court; that he himself came armed at the spot with intention to kill the deceased and had fired four consecutive shots at him which resulted into his death and the same shows that he himself had acted voluntarily to take away the life of the deceased and it was all in a callous manner and so he could not have the benefi, of the authorities referred to his side and in this regard reliance has also been placed upon the case of Muhammad Nasrullah v. State (2003 SCM R 189).
18. The learned counsel for the complainant Riaz Ahmad/appellant in (Criminal Appeal No,625 of 1999) has submitted that acquittal of Liaqat Ali is not based on the sound reasons available from the evidence on the record and so interference with the same by this Court is necessary.
19. We have carefully considered the submissions made from both the sides with the help of the available record.
20. The prosecution in support of it's case mainly has relied upon it's ocular testimony, medical evidence, recovery of crime weapon .30-bore pistol and .7 mm rifle and the motive.
21. The learned trial Court has believed its ocular account and received the medical evidence as corroborative to the same. It, however, did not believe the motive part of the prosecution story and also not received the evidence of the recoveries of the aforementioned weapons as of corroborative value to the ocular testimony.. It, however, has rejected the defence plea of grave and sudden provocation.
22. We now examine the ocular testimony rendered by the prosecution as well as the medical evidence.
22-A. The. Ocular account of the prosecution has been unfolded by -Riaz Ahmad (P.W.4) and [4afiz Ahmad They have given the details of the incident. Their evidence is to the effect that on 3-7-1998 at about 11-00 a.m. They along with the deceased and Bashir Ahmad were working in the fields near the tubewell. Appellant Shafaqat alias Ashfaq alias Shaki armed with .30 bore pistol along with his brother Liaqat Ali armed with .7 mm rifle came there. Liaqat Ali raised Lalkara that Nisar Ahmad be taught lesson for their In the meanwhile Shafaqat fired four suecessiN e pistol shots at deceased Nisar Ahmad, which hit upon the above mentioned parts of his body and he fell down and the accused thereafter on the arrival of the villagers fled away from the scene while firing.
23. As against such version appellant Shafaqat alias Ashfaq alias Shaki has pleaded grave and sudden provocation while Liaqat Ali alibi. The plea of appellant Shafaqat alias Ashfaq alias Shaki stands mentioned above. Liaqat Ali has pleaded that he was not present at the spot at the relevant time.
24. The definite plea of appellant Shafaqat alias Ashfaq alias Shaki and that of alibi of his brother Liaqat Ali is to be examined in juxta-position to the prosecution version. We will first discuss the ocular version of the prosecution against them and then the defence version in comparison or parallel to the same.
25. The two eye-witnesses named above have consistently rendered the account of occurrence.
According to them, they were working in the fields at the relevant time when the appellant Shafaqat alias Ashfaq alias Shaki and his brother Liaqat Ali came there. The learned defence counsel has submitted that the complainant party had leased out their land to some other persons and hence, there was no question with them to have worked there at the relevant time and this is a mere made up story and in this regard has made reference to the fact in the cross-examination of Muhammad Shakeel Patwari that in the days of occurrence the land of the complainant party was under the cultivation of one Aslam and Nazir. This fact no doubt is there in the crossexammat im of the said Patwari but complainant Riaz Ahmad had stated alai they were working in the fields near the tubewell. He nowhere had said that they were working in their own land. So, it does not make any difference that if the Patwari has said that their land was under the cultivation of the aforesaid persons.
26. Riaz Ahmad has very clearly explained that he was doing Godi in a Litchi Garden at that time, which is at a distance of about 150 feet from the place of occurrence. So, he has made it clear that he was working in the said garden, which is close to the place of occurrence. The. Place of occurrence is situated in the land owned by Safdar and others. He has nowhere said that the land where the occurrence had taken place belonged to him. So, the plea of the appellant's side that the witnesses have no occasion to work in the fields near the place of occurrence is without force.
27. It was a day time and the month of March on the relevant day. They both are cultivators by profession. So, it is not at all strange or abnormal that if they had been working in the fields.
28. As regards the delay in lodging the F.I.R., the same no doubt is there but it fully stands explained in the evidence on the record. The two eye-witnesses as per their showing had carried the deceased to Mayo Hospital, Lahore in an injured condition. It is in the evidence that the deceased was unconscious at the time of his admission there. He had received number of injuries on his person. The complainant is his father. He definitely could be interested in saving his life first and then to attend any other matter, It is in his evidence that he remained attending his injured son till the next day when he went to the police to report the matter. This was quite a natural conduct on the Ran of a father to be more concerned about the safety of the life of his son and then to look for any other matter. So. The delay in lodging the F.1 .R., in the above circumstances of the case, stood' fully explained on the record with all reasonableness: It. Has no adverse effect qua the veracity of the version of the eyewitnesses.
29. It has also been argued from the appellant's side that the name of the complainant did not figure in the MLR of the deceased and this suggests that he was not present at the spot and had he been present there, he would have accompanied the deceased to the hospital and his name figured in the MLR as the person, who brought him to the hospital. This contention is based upon mere supposition. The name of one Junaid, who is said to be the maternal nephew of the deceased is recorded in the initial MLR of the deceased as the person who brought him to the hospital. This does not necessarily mean that the complainant was not accompanying his son at that time.. Muhammad Junaid Khan being close relative of the deceased might have got mentioned his own name as the person, who brought him to the hospital. The mentioning of his name in that context does not necessarily exclude the possibility of Riaz Ahmad complainant having accompanied his injured son to the hospital. This contention, therefore, is without force and the same is repelled.
30. There is complete harmony in the testimony of the eye-witnesses as regards all the material and major details of the incident like the day, time, venue and the manner of happening of the incident. There E has not been pointed out any material or significant discrepancy or contradiction in them on any such aspect of their testimony. This fact has inspired confidence with us as regards the probability of their presence at the spot and having witnessed the occurrence themselves. The contention that they were not present at the spot and had not witnessed the occurrence, thus is not without any basis or at least is not supported from any evidence on the record. The contention, therefore, is repelled being without force.
31. They have appeared us to be the reliable witnesses. They, therefore, have rightly been relied upon by the learned trial Court.
32. As regards the plea of sudden grave and sudden provocation of appellant Shafaqat Ali alias Ashfaq alias Shaki, the same seemingly is devoid of force.
33. The appellant did not stick to one version at the trial. He is a way has also taken the plea of self- defence. It was suggested to the eye-witnesses that the deceased had intended to fire at him and he but had snatched the pistol from him and fired at him. He on the other hand has also stated to have acted under grave and sudden provocation. According to him, he seeing the deceased attempting to commit Zina-bilJabr with his sister had fired at him.
34. He in order to support his such plea had produced his sister Mst. Shahnaz Bibi (D.W.1), who has deposed on the similar lines. This plea and her evidence, when had been examined, it has appeared that her version was not based on truth. It is because of the fact that none else than her has come forward to support her in that regard. She is the only witness in support of her such story.
She neither herself nor any of her relative had reported that matter to the police, I.O. Abdul Rashid, S.-I. Has denied that the deceased had attempted to commit Zina-bil-Jabr with her on the elevant day. This was his opinion as a result of the investigation by him in the matter. So, this is her mere bald and bare assertion and without any substantiation or corroboration from any other material or circumstances in the evidence on the record. This, thus appears to be a made up story just to save the skin of the appellant. She appears to have given the sacrifice of her grace and honour by narrating such story to save the life of her brother. Anyway, the story narrated by her in the given facts and circumstances of the case has appeared us to be not appealing. This plea, therefore, was liable to rejection and the same has rightly been rejected by the learned trial Court. In this regard reliance has .Been placed upon the case of Muhammad Nasrullah v. The State (2003 SCM R 189).
35. Appellant Shafaqat alias Ashfaq alias Shaki had killed the deceased at the given date, time and place as has appeared from the testimony of the eye-witnesses. According to them, he had fired four successive shots at the deceased hitting on the above mentioned parts of his body.
36. Dr. Muhammad Obaidullah (P.W.14), who initially had examined the deceased had found following the injuries on his person.
(i) One lacerated wound 1-1/2 c.m. x DNP on front of the left knee. Wound was bleeding, corresponding hole on white Shalwar was present. X-Ray was advised.
(ii) one lacerated wound 1-1/2 c.m x 1-1/2 c.m. x DNP on the front of the lower most part of the left thigh. X-Ray was advised.
(iii) One lacerated wound 1 c.m. x 1 c.m. x DNP on the inner part of the left thigh lower part.
(iv) One lacerated wound 1 c.m. x 1 c.m .x DNP front of upper most part of the right thigh. X-Ray was advised.
(v) One lacerated wound 1 c.m. x 1 c.m. x DNP on upper part of right thing. X-Ray was advised.
(vi) Lacerated wound 1-1/2 c.m. x 1-1/2 c.m. x DNP on left side of abdomen. Corresponding hole on the shirt was present.
(vii) Lacerated wound 1-1/2 c.m. x 1-1/2 c.m. x DNP on the back of the lower part of the left side of chest. X-Ray was advised.
' These according to him were with fire-arm.
37. Similarly Dr. Zulfiqar Ali, had found the following injuries on the dead body of the deceased:
(i) A wound 1 x 1 c.m. Below left costal margin approximately six inches away from the mid line.
(ii) A wound 5 x 5 c.m. Just below hip case posteriorly on the left side approximately 7 inches away from mid line.
(iii) A wound 1 x 1 cm on the outer aspect of gluteel region on right side.
(iv) A wound 1.5 x 1 c.m. On the upper of right thigh on antrolateral aspect.
(v) A wound 1 x 1 c.m. On middle of right thigh on posterior aspect.
(vi) A wound on lower part of left thigh anter-material aspect 1 x 1 c.m.
(vii) 5 x 5 c.m. Wound on internal aspect of left thigh just above knee joint.
(viii) A wound 1 x 1.5 c.m. On posterior aspect of left calf just below knee joint.
(ix) Clinical and biological evidence of fracture of lower part of left femur.
(x) No distal pulsation on left leg and no destial sensations left leg and thigh was tend.
' This is all incomplete harmony and corroboration to the ocular testimony as regards the infliction of injuries by the appellant to the deceased. The learned counsel for the appellant has not thrown any challenge to the medical evidence. The same, therefore, was rightly received as corroborative to the ocular testimony. This was a correct approach towards the matter. The same is endorsable and we endorse the same.
38. In the above circumstances, when the ocular testimony has appeared to us to be confidence- inspiring and reliable, the factum of motive having not been believed by the learned trial Court or not proved is hardly of an adverse effect to the prosecution because motive or not motive or weak motive or absence of motive hardly makes any difference when the other reliable evidence may be available on record against accused. It is clear from the above position that such evidence is available against the appellant. The contention of the appellant's side in this regard is without force and the same is repelled.
39. We are, therefore, from the above discussion fully convinced that the prosecution has brought home the guilt to the appellant beyond any shadow of reasonable doubt. He, therefore, was rightly convicted.
40. As regards the contention regarding the award of lesser penalty than death to him, we have examined this aspect of the matter with all care. The learned counsel for the appellant has in the alternative contended that he had acted under the commandment of his elder brother and so he deserved lesser penalty and in this regard the reference has been made to the above referred esteemed authorities.
41 he presence and participation of his brother Liaqat Ali in the occurrence has been found to be doubtful. He was acquitted of the charge by giving him the benefit of doubt. In such circumstances, it does not appear that he had acted under the commandment of his elder brother. He as per the ocular evidence on the record has appeared to have come to the spot armed with a weapon like the .30 bore pistol with all intention to kill the deceased and had fired four successive shots at him resulting into his ultimate death. It appears to us to be his own act and not under the command of his elder brother He had acted in a callous manner in that regard. He, therefore did not deserve any leniency in the matter of sentence. The sentence of death, thus was rightly awarded to him. The esteemed authorities referred to above, with all respect, are not aptly applicable to his case due to the said distinguishable reasons. The sentence of death awarded to him, thus is also maintained.
42. However, it is here made clear that the learned trial Court has mentioned that he in the event of failure to pay compensation to the legal heirs of the L deceased shall suffer rigorous imprisonment for six months, while rigorous imprisonment in such an eventuality is not provided in the relevant law. He, therefore, shall suffer six months simple imprisonment in the event of his failure to pay the compensation instead of six months rigorous imprisonment sentence awarded to him is confirmed.
43. As a result of above position, the appeal (Criminal Appeal No, 544 of 1999) brought by appellant Shafaqat alias Ashfaq alias Shaki fails and the same is dismissed. The Murder Reference is answered in the affirmative. The death sentence awarded to him is confirmed.
44. As regards the case of Liaqat Ali, he was not attributed any overt act qua the deceased. He allegedly had merely raised Lalkara at the time of occurrence. The 1.0 had opined that he was not present at the spot at the relevant time as per his investigation. Though this is mere his opinion and can't be given much weight too but this as a fact when seen in conjunction with his role of raising mere Lalkara and being brother of the main accused Shafaqat Ali alias Ashfaq alias Shaki. His involvement in the case seems not above doubt. Because it is matter of common observation that there is growing tendency in our rural society to rope in maximum family members of accused to wreak vengeance.
45. We, therefore, find that the learned trial Court has rightly exercised care and caution in the matter of his acquittal. The impugned judgment to the extent of his acquittal seems unexceptionable.
' The appeal (Criminal Appeal No, 625 of 1999) brought by complainant Riaz Ahmad against his acquittal, therefore, fails and the same is dismissed. accordingly.