Kh. Muhammad Sharif, J.--Appellant was tried by Additional Sessions Judge, Attock for the murder of Nisar Ahmed in case FIR No, $2/96 dated 29.4.1996 for the offence under Section 302 PPC registered at Police Station Saddar Attock, who vide judgment dated 31.1.2000 convicted appellant under Section 302(b) PPC and sentenced to death. Appellant was also directed to pay Rs, 50,000/- as compensation to the legal heirs of the deceased as required under Section 544-A Cr.P.C. or in default whereof to undergo six months SI.
Feeling aggrieved by the impugned judgment appellant has filed the instant appeal and learned trial Court has made a reference i,e, M.R. No, 75/2000 seeking confirmation of death sentence of appellant. Both these matters are being disposed of by this single judgment.
2. In brief the case of the prosecution as set down in the FIR is that Malik Qurban Elahi complainant is the resident of Shakardara and serving as Professor Gordon College Rawalpindi for the last 20/22 years and that his nephew (Bhanja) Nisar Ahmed is residing with him since his childhood and now a days he is studying in Gordon College whose examination of B.A. has to be started on 29.5.1996 and he had come to celebrate Eid-ul-Azha since Thursday at Shakardara. Thereafter, complainant himself came in the village on Friday. On 29.4.1996 the complainant alongwith his family members and Nisar Ahmed were present in their house at Shakardara, when news at T.V. were over, Nisar Ahmed went outside to answer the call of nature and complainant when upon the roof. In the meanwhile Zulfiqar Ahmed (appellant) who is also nephew Bhanja) of, the complainant also came in their house and told that he had heard voices of fire and the word "Bachao The voice seems to be of Nisar Ahmed so they have come to know about Nisar Ahmed whether he is in the house or not. On this woman folk told that he had left the house so the complainant alongwith others went outside in search of Nisar Ahmed and at about 11:30 p.m. at night they found dead body of Nisar Ahmed in the filed of Iqbal Ahmed Khan alias Bali Khan near poultry form of Ch. Sulaiman. The complainant further reported that some one had murdered his nephew (Bhanja) Nisar Ahmed by firing.
3. After complying with the legal formalities, the Investigating Agency submitted challan before the trial Court where prosecution produced fifteen witnesses to prove the charge against the appellant.
Dr. Muhammad Zubair PW.1 conducted the postmortem examination on the person of Nisar Ahmed deceased. Fateh Khan Constable PW.2 was handed over one sealed parcel of blood stained earth and one sealed parcel containing empty cartridges by Muhammad Afzal H.C. which he deposited the same with the relevant offices intact. Muhammad Afzal H.C. PW.3 handed over the above said sealed parcels to Fateh Khan Constable: He also handed over parcel of .12 bore gun alongwith four live cartridges to Shaukat Ali Constable for its onward transmission to the office of Forensic Science Laboratory. Muhammad Habib Patwari PW.4 prepared the sealed site-plan. Khalil Ahmed Constable PW.5 took the dead body of Nisar Ahmed to the mortuary for post-mortem examination.
Muhammad, Abdullah ASI PW.6 entered formal FIR Ex. PD/1 upon the receipt of the complaint Ex. PD.
Shaukat All Shah Constable PW.8 was handed over one sealed parcel of .12 bore gun for its onward transmission to the office of Forensic Science Laboratory which he delivered the same is the said office intact. Khan Bahadur PW.9 is father of the deceased. He joined the investigation and signed the recovery memo of gun. Aalam Khan PW.10 and Mehrban PW.14 are the witnesses of last seen.
Mehrban Elahi PW.11 also witnessed the recovery proceedings of gun .12 bore Hawaldar Zulfiqar Ali PW.12 is the dog handler and conducted the proceedings by the dog. Malik Qurban Elahi PW. 13 is the complainant of this case Riffat Abbas SI PW.7. Saad Anwar SI/SHO PW. 14 Muhammad Asghar Hussain. SI PW.15 investigated the instant case and submitted challan.
4. Learned trial Court also examined appellant under Section 342 Cr.P.C. While answering to the question "Why this case is against you and why the PWs have deposed against your, appellant replied as under:-- "On account of strained relations with the complainant party about the excessive land which I possess there was consistent dispute between my father and the complainant as well as my uncle.
I have been roped in as the maternal uncle of Nisar Ahmed deceased was jealous of the fact that my father being the only member in the family have grown up sons while all others have grown up daughters".
Neither the appellant made any statement under Section 340(2) Cr.P.C. nor produced any evidence in his defence.
Learned trial Court after appraisal of evidence vide judgment dated 31.1.2000 convicted and sentenced the appellants as narrated earlier.
5. Learned counsel for the appellant in support of this appeal submits that nobody was named in the FIR; that it was an unseen occurrence; that motive was introduced later on for the first time after four years by the complainant which was never mentioned by him in the FIR or later on in any supplementary statement. Submits that learned trial Court has placed reliance on the statement of dog handler i,e, Hawaldar Zulfiqar PW.12 according to his statement uncle of the deceased told that house, where the dog had gone, which was locked, belongs to the appellant but that uncle of the appellant has not been produced and said statement was improved one and on reliance can be placed on such an improved statement. Learned counsel submits that as far as evidence of last seen is concerned two real brothers of complainant Alam Khan PW.10 and Meharban Elahi PW.11 appeared before the trial Court, they are the real brothers of the complainant, their evidence is not plausible and natural one because according to them on the night falling in between 28/29.4.1996 they were going to Kahoota from their village in order to make payment to the labourers because Meharban Elahi was contractor and on the next day there was Eid-u1-.Ezha. Learned counsel submits that they had gone on foot from village and they had to proceed to Kahtooa, according to them they had seen the deceased in the company of the appellant. Learned counsel submits that it is impossible that when the next day was Eid-ul-Ezha whey these two Pws would go through their village having Rs, 25,000/- in their pocket of Kahoota. Further submits that last seen evidence is a very weak type of evidence.
As far recovery of crime weapon is concerned, learned counsel submits that. Moharar Muhammad Afzal who was examined as PW. 3 had received the parcel of empty cartridges on the same day he said nothing about that. Further submits that according to fire-arm expert it was Fateh Khan who took both the parcels i,e, parcels of empties first on 23.5.96 and then took the parcel of .12 bore gun on 26.5.1996. Learned counsel submits that Shaukat Ali Constable PW.8 who had stated that he had taken the parcel of .12 bore gun as mentioned above is not correct and in fact Fateh Khan PW.2 took the same as has been mentioned in Forensic Science Laboratory Report. Learned counsel submits that there is no evidence on the record that with whom the parcels remained from 29.4.1996 to 25.5.1996. Submits that merely on the basis positive report of fire-arm export when there is no other reliable evidence to connect the appellant with the murder of deceased conviction cannot be awarded or maintained. Reliance has been placed on PLD 1991 SC 448.
Learned counsel submits that prosecution has failed to prove its case against the appellant and he is entitled to acquittal.
On the other hand, learned Assistant Advocate General submits that the appellant was also the maternal nephew of the complainant, he had first informed the complainant about the injuries on the person of Nisar Ahmed deceased. Learned Assistant Advocate General referred to Question No, 6 and answer of the same in the statement of the appellant recorded under Section 342 Cr.P.C.
Learned AAG has also referred page 43 of the paper book i,e, statement of PW.9 father of the deceased namely Khan Bahadur specially fourth and fifth line which reads as follows:-- "It is correct that Zulfiqar has committed the murder of the deceased only to grab the entire land"
At this stage, Jearned AAG has also referred two judgments i,e, PLJ 1996 SC 1596 and 1998 P.Cr.L.J.
216. Learned AAG submits that in the said judgments 'passed by the Apex Court and this Court it has been held that when a witness being cross-examined gives some reply in affirmative, on the basis of said reply conviction can be awarded and maintained. Learned AAG referred to report of fire-arm expert. He submits that both the parcels of empties of cartridges and .12 bore gun were sent on different dates and it was a clerical mistake on the part of the fire-arm expert that it has not given the name of Shaukat Ali and has mentioned the name of Fateh Khan.
6. We have heard learned counsel for the parties, .gone through the First Information Report and evidence recorded by the trial Court. It, is correct that in the FIR no body was named as accused.
Motive was also not present but fact remains that Malik Qurban Elahi PW. 12 was not only the maternal uncle of Nisar Ahmed deceased but also Zulfiqar Appellant. It has been mentioned in the FIR that it was Zulfiqar appellant who came to the house of the complainant and told him that there were fire shots and then hue and cry was also heard which seems to be of Nisar Ahmed.
Thereafter they went outside and saw that dead body of Nisar Ahmed lying in the pool of blood.
Had the complainant any motive to falsely implicate the appellant who was the dose relative he could have named him in the First Information Report. On the next morning Havaldar Zulfiqar Ali who was examined as PW.12 came there alongwith dogs of the army. According to his statement the dog has 90,000 times stronger sme ll power than that of human being. The dog climbed about 400 meters. The dog then punched upon the door of the horse. The door of the house was locked the same was unlocked. Dog entered the room in which a cot was lying. The dog climbed over the cot and sat there. Zulfiqar Havaldar PW ordered the dog to come down the cot. and the dog accordingly came down but the dog sat by the side of the cot in a position that its front paws were placed on the cot. Zulfiqar Havaldar PW asked'some person, amongst them, uncle of the owner of the house told that-name of the owner of the house was that of Zulfiqar appellant. The said person also told the cot in the house was used by Zulfiqar. Beside that evidence there is evidence of last seen furnished by Alam Khan PW.10 and Mehrban Elahi PW-11. They have got some relationship with the appellant because they were the real brothers of the complainant. Then there is evidence of recovery of four empty cartridges. The same were recovered from the spot on 29.4.1996, the same were sent to the fire-arm expert on 23.5.1996. Appellant was arrested on 18.6.1996. He (appellant) got recovered .12 bore gun underneath of Sheesham trees garden belonged to the appellant or his near relative. The said gun was sent to the fire-arm expert on 23.6.1996. According to fire-arm expert Ex. PK at page 29 of the paper book the same is positive. Learned counsel for the appellant has made much stress that in fact the gun was taken by Shaukat Constable and in the report only name of Fateh Khan PW has been mentioned. This can be the clerical mistake on the part of the fire-arm expert but the fact remains that both these articles were sent to the office of fire-arm expert on different dates and report is positive.
During the course of arguments, learned Assistant Advocate General -has referred to page 43 i,e, statement of Khan Bahadur' father of deceased. We would like to mention six/seven lines here which reads as follows: "Father of accused have 10 sons and daughters, I have four' daughters and had only one son who is the deceased in this case. Ghulam Qadir has five daughters. It is correct that Zulfiqar has committed the murder of the deceased only to grab the entire land. My both the statements are correct'. We were astonished to go through the said statement and was not believing that such a question could have been put to the witness by the defence counsel. We then checked the Urdu record if there can be some mistake on the part of the Stenographer who was getting dictation from the learned trial Court but we found that the Urdu version of this statement was totally correct. When the learned defence counsel himself had got admitted that it was the appellant who had committed the murder of deceased due to grabbing of the land for the reason that he had no male issue, we have no other option but to maintain the conviction of the appellant not only on the basis of above said circumstantial evidence corroborated by a very strong piece of evidence, we cannot reject the same. In this view of the matter, we are sure in our minds that he was the appellant who had committed the murder of deceased. This appeal stands dismissed, murder reference i,e, M.R. No, 75/2000 is answered in the affirmative and death sentenced awarded to appellant is confirmed.