' HASNAT AHMAD KHAN, J.- This judgment shall dispose of Murder Reference No.749 of 2001 and Criminal Appeal No.742 of 2001 filed by Asghar Ali appellant who vide judgment dated 9-10-2001 passed by learned Sessions Judge, Layyah, was found guilty under section 302(b), P.P.C. For the murder of Muhammad Yasin and sentenced to death. He was further directed to pay sum of Rs.
100,000 (one lac) as compensation to the legal heirs of the deceased and in default whereof, to suffer R.I.. For six months.
2. Brief facts of the case which was registered on the statement of Mst. Aziz Bibi, complainant, P.W.5, vide F.I.R. No.749 of 2001 (Exh. PB/1) dated 15-4-2000 are that on the night between 15/16-4-2000 at about 8-00/9-00 p.m. Muhammad Yasin deceased was lying on a cot in the courtyard of his house and his wife Mst. Mumtaz Bibi, P.W.6, while sitting on a cot was talking to him. Maqbool and Mushtaq sons of Bashir Ahmad along with Muhammad Abbas were also sitting in the house after having their meals. In the meanwhile, Asghar Ali appellant while armed with rifle allegedly entered into the courtyard of said house and after raising Lalkara started firing with his rifle upon Muhammad Yasin deceased, who received fire-arm injuries on different parts of his body. Occurrence was allegedly seen by the above mentioned witnesses. The complainant and the eye-witnesses tried to apprehend the appellant but could not succeed in their mission as the appellant had extended threats to kill them also in case of attempt to nab him. After resorting to firing for quite some time, he left the scene of occurrence. Muhammad Yasin deceased succumbed to said fire-arm injuries.
2. Motive of the occurrence, according to the prosecution was that the appellant wanted the hand of Mst. Mumtaz Bibi for his brother-in-law, but she married Muhammad Yasin deceased.
3. On the basis of the statement (Exh.PB) of Mst. Aziz Bibi, P.W.5, above mentioned case was registered with the Police Station Chobara, District Layyah, vide F.I.R. No.56 of 2000 (Exh.PB/1) dated 16-4-2000, under section 302, P.P.C.
5. The statement of the complainant was recorded by Saif Ulah, S.-I. P.W.11. After sending the complaint to the police station for registration of case, said S.I. Proceeded to the spot and prepared injury statement Exh.PB and inquest report Exh.PD of Muhammad Yasin deceased and sent the dead body to the mortuary. Thereafter, he collected blood stained earth from the spot and took the same into possession vide Exh.PF. Apart from that, he picked up five crime empties lying near the dead body which were secured through memo. Exh.PG. Subsequently, he prepared rough site-plan Exh.PJ. According to him, on the same day Abdul Rehman constable after post-mortem examination conducted upon the dead body of Muhammad Yasin deceased, produced before him last worn cloths of deceased, Shirt P.1, Chadar P.2, which were taken into his possession vide Exh.PA.
The appellant was arrested by said S.I. While he was carrying his licensed rifle Exh.PH. On 8-5-2000 he got prepared site-plan of the occurrence. After thorough investigation, he submitted challan against the appellant who was charged and tried by the learned Sessions Judge, Layyah.
6. During the trial, the prosecution produced 11 witnesses to bring whom the guilt of the appellant.
Dr. Ghulam Abbas, who had conducted autopsy on the dead body of Muhammad Yasin deceased appeared as P.W.2. Details of injuries as given by said Doctor is as under:-
(1) A wound of entry, a lacerated wound 2 c.m. x 1.5 c.m. Oval in shape with blackening of margins muscle deep and bone was crushed. The wound was about 7 c.m. From left elbow on the inner side of arm. The edges were inverted. Wound of exit. A lacerated wound with averted edges 6 c.m. x 4 c.m. Oval in shape, muscle deep and bone deep 3 c.m. From left elbow on the outer aspect of left forearm. On corresponding the clothes were also cut and hole marks were also present. Fracture of femour was also present.
(2) Wound of entry. A lacerated wound 1.5 c.m. x 1 c.m oval in shape with inverted edges, blackening of margins was present. The wound was introducing into abdominal cavity.
(3) Wound of entry. = A lacerated wound 2 e.m. x 1 c.m, oval in shape with inverted edges, blackening of margins of would was present. The wound was introduced into abdominal cavity. 6 c.m. From ambilicus and 9 c.m. From midline of the abdomen on the right side of abdomen.
' Wound of exit. A lacerated wound 3 c.m. x 2 c.m. Oval in shape with averted margins, muscle deep on the right lumber region 6 c.m. From vertebral column.
(4) Wound of entry. A lacerated wound 4 c.m. x 3 c.m. Oval in shape with inverted edges, bone deep introducing into left knee avity 6 c.m.. From knee joint.
' Fracture of femour was present.
' The intestines were cut through on three sides in abdomen and lower abdominal cavity was full of blood. Right kidney was crushed. A little blood was present in, the heart cavity, otherwise normal.
The stomach was empty. The bladder was also empty. The other organs were healthy and normal.
' In this opinion the cause of death was due to excessive haemorrhage, shock and bleeding from body due to the injuries mentioned above which were ante mortem. The probable time between the injuries and death was within two to three hours and between death and post-mortem examination was 12 to 13 hours.
7, Zulfiqar Ali, who identified the dead body of Muhammad Yasin appeared as P.W,1, while Umer Hayat, Patwari, appeared as P.W.3 and proved the site-plans Exh.PA/1, Exh.PA/2 and Exh.PA/3.
Shabbir Ahmad, constable, who had received and delivered sealed parcels in the office of Chemical. Examiner and Forensic Science Laboratory appeared as P.W.4. Mst. Aziz Bibi, complainant of this case appeared as P.W.5 and reiterated the details of occurrence as mentioned in the F.I.R.
She supported her assertions regarding motive of the occurrence also. Mst. Mumtaz Bibi widow of Muhammad Yasin deceased appeared as P.W.6 and made a similar statement. Allah Yar, Head Constable, who had recorded the formal .F.I.R., appeared as P.W.7. He deposed the details of receiving and sending the relevant parcels to the concerned authorities also. The prosecution produced yet another eyewitness namely Mushtaq Ahmad, who appeared as P.W.9 and apart from furnishing ocular evidence, he proved the recoveries of crime empties and blood stained earth from the spot. Nazir Ahmad, Head Constable, appeared as P.W.10 and proved recovery of rifle, along with live cartridges, effected from the appellant. Lastly Saif. Ullah, S.I. Who had investigated the case appeared as P.W.11. Thereafter, the learned D.D.A. After tendering the reports of Chemical Examiner and Serologist, closed the prosecution case.
8. After closure of the prosecution case, the appellant was examined under section 342, Cr.P.C. The appellant denied the prosecution version and put forward his own version regarding the occurrence, while replying to Question No.8 he stated as under:-- "One Ghulam Rasool had developed illicit intimacy with my mother-in-law Mst. Amin Bibi. As such I stopped Ghulam Rasool . From this illicit relations and due to which he became inimical towards me. Subsequently he managed hired persons for my murder and on 16-4-2000 I was present in my house where I came to know that aforesaid Ghulam Rasool had reached in our Chak along with hired persons for the commission of my murder. As such, no male member was present at my house. Yaseen deceased who was my close relative, I went to his house to ask him for looking after my house and my cattle as I was going to chase the aforesaid Ghulam Rasool and his hired persons. In the meanwhile, my licensed rifle which was in my hand had went off accidently and by chance, which caused injuries on the person of Muhammad Yaseen deceased. It is correct to this extent that Mst. Mumtaz Bibi is the wife of Muhammad Yaseen deceased but I was never interested of her marriage with my brother-in-law Riaz nor I was inimical towards Yaseen and his family. As against it, I and they were on visiting terms with each other and on the day of occurrence, I went to his house so that I may ask him for looking after my house and cattle. Neither I had any intention to commit his murder nor I committed murder of the deceased. He died as a result of injuries caused accidently. I myself had produced my gun (licensed) along with live bullets and licence at Police Station. Investigating Officer in my presence made certain shots from my rifl and fabricated crime empties and subsequently dispatched the same along with my rifle. All the witnesses are closely related and they have deposed against me falsely."
9. Learned trial Court was not impressed by the defence version and while relying upon the prosecution evidence, the appellant was convicted and sentenced as mentioned above.
10. In support of this appeal, learned counsel for the appellant has contended that the prosecution had failed to prove its case beyond any shadow of doubt and the defence version being more plausible than the prosecution version is worthy of acceptance. On the basis of statement of the accused, learned counsel for the appellant has contended that in fact it was an accidental affair and the rifle of the appellant accidentally went off and per chance Muhammad Yasin received fire- arm injuries which caused his death. He has further contended that there was no immediate motive for the appellant to cause the murder of the deceased. Lastly he has contended that there are mitigating circumstances on the basis of which the appellant deserves to be awarded a lesser punishment.
11. While exercising the right of reply, learned counsel for the State has contended that the prosecution has proved its case beyond any shadow of doubt and the defence version being a cock and bull story is not plausible and it is an afterthought version. Lastly he has contended that there are no mitigating circumstances for awarding lesser penalty to the appellant.
12. After hearing the learned counsel for the parties and going through the record minutely, we have observed that the prosecution has proved its case beyond any shadow of doubt. While appearing as P.W.6, Mst. Aziz Bibi had fully supported the prosecution version. Her statement was further corroborated by Mst. Mumtaz Bibi P.Ws. And Mushtaq Ahmad P.W.9. Mst. Aziz Bibi and Mst Mumtaz Bibi being inmates of the house in which the occurrence took place, are natural witnesses and there presence at the spot is not open to any doubt. Learned counsel for the appellant could not point out any reason on the basis of which the eye-witnesses could have falsely implicated the appellant. During the cross examination of all the eyewitnesses, the appellant could not extract any supporting material in his favour. Evidence furnished by the eye-witnesses is straightforward and corroborative to each of other.
13. The prosecution had fully proved the motive part of the prosecution which even otherwise was not seriously challenged by the appellant. As a matter of fact, none of such suggestion was put to said witnesses. As such, we do not feel any hesitation to rely upon motive part of the prosecution version also. The prosecution version is further strengthened by the medic al evidence, recovery of crime weapon and positive report of Forensic Science Laboratory, according to which the crime empties recovered from the spot had wedded with the rifle recovered from the accused.
14. Apart from above mentioned 'reasons, we have also observed that neither the place of occurrence nor the time of occurrence has been denied and it is a case of two versions, one put forwards by the prosecution and the other by the accused. As narrated above, we have come to the conclusion that the prosecution version is more plausible and probable than the defence version and for holding so, we have got more than one reason. Firstly, according to the accused, he had gone to chase his enemies while arming himself with rifle but he went to the house of Muhammad Yasin, where, his rifle allegedly went off accidently. Going to the house of Muhammad Yasin deceased with whom he was not friendly terms, is not plausible especially keeping in view the motive of the occurrence. Secondly it is not a case of single injury and according to the doctor, the deceased had received four firearm injuries which show that it was not an accidental affair rather it was an intentional murder of the deceased, especially when according to the doctor, entry wounds had blackening which shows that the deceased was shot at from very close range. Thirdly the appellant though had raised a specific plea to bring his case under special exception provided under section 80, P.P.C. But he neither opted to appear himself in his defence under section 340(2), Cr.P.C. Nor he produced any defence witness to support his plea. Though after raising such plea, burden of proof to prove such plea has shifted towards him as enshrined under Article 121 of Qanun-eShahadat Order, 1984. Reliance in this regard is placed upon Yara v. The State (2005 SCM R 829); Feroze v. The State (2005 PSC (Crl.) 686) and Elahi Bux v. The State (2005 SCM R 810).
15. For all the reasons mentioned above, the defence version being devoid of any force is rejected and while relying upon consistent and natural testimony advanced by the eye-witnesses coupled with the F medical and recovery evidence, the conviction awarded to the appellant is maintained.
16. As far as the prayer for converting of death sentence into life imprisonment is concerned, in absence of any mitigating circumstance, same cannot be acceded to. The appellant had resorted to cause multiple fire-arm injuries to the deceased, whose only fault was that he had married Mst.
Mumtaz Bibi against the wishes of the appellant, who wanted the hand of said Mst. Mumtaz Bibi for his brother. The Honourable Supreme Court has deprecated the awarding of lesser penalty in cases of capital charge on laboured grounds. Reliance is placed upon 1998 SCM R 862.
17. Epitome of all the discussion made above is that the appeal being, devoid of any force is hereby dismissed and the death H sentence awarded to the appellant is confirmed and Murder Reference is answered in affirmative. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.