' M.A. SHAHID SIDDIQUI, J.---Muhammad Ilyas, appellant was tried by learned Sessions Judge, Gujranwala, in case F.I.R. No, 37 of 2000, dated 5-2-2000, registered with Police Station, Garjakh, District Gujranwala under section 302, P.P.C. Vide judgment, dated 19-6-2001 the learned Sessions Judge convicted the appellant under section 302(b), P.P.C. And sentenced him to death. The appellant was also directed to pay Rs,3,00,000 to Barkat Ali and Muhammad Shafique, P.Ws. In default of payment of the compensation the appellant was ordered to undergo further six months' simple imprisonment with the benefit of section 382-B, Cr. .P. C.
2. The occurrence took place on 5-2-2000 at 5-00 p.m. In the house of appellant situated in Mohallah Tajpura, which is located at a distance of 2 furlongs on southern side of Police Station, Garjakh, Gujranwala. The complaint (Exh.PE/1) was lodged by Muhammad Shafique son of Barkat Ali, caste Malik resident of Mohallah Sultanpura, Gujranwala on the same day at 6.20 p.m. As per F.I.R. Mst. Mukhtar Bibi, paternal aunt (Phoophi) of the complainant had been married with Muhammad Ilyas, appellant. A daughter Mst. Shakeela Bibi (deceased) and a son Shahid (given up P.W.) were born out of this wedlock, who were 17/18 and 15/16 years of age respectively at the time of occurrence. Muhammad Ilyas appellant divorced Mukhtar Bibi about 13/14 years prior to the occurrence. Thereafter Mukhtar Bibi along with her children started living with his brother Muhammad Bashir uncle of the complainant. Mst. Mukhtar Bibi contracted second marriage with someone else. However, her two children remained with Muhammad Bashir, who liter on died and the children came in the custody of the parents of the complainant. It is alleged that the appellant had been demanding the custody of his children, but the complainant's side did not agree. The appellant approached the Civil Court for obtaining the custody but remained unsuccessful. The appellant then established contacts with is children secretly and both the children started visiting the appellant frequently. In the meantime, parents ofcomplainant had settled engagement of the said children of appellant with some of their relatives, which annoyed the appellant, who wanted to marry them in his own family. The complainant party had been trying to persuade him. On the day of occurrence the complainant, his father Barkat Ali, Shahid and Shakeela Bibi went to the house of appellant to persuade him to approve the engagements of his children, but he remained adamant and shouted that he would kill them if they did not marry as he desired. He rushed into the room and came out with a .30 bore pistol with which he fired successively at Shakeela Bibi, which hit on different parts of her body. On the report of firing many people gathered there and the accused decamped. Shakeela Bibi was taken to the Hospital in injured condition and was admitted therein.
Muhammad Shafique (D.W.10) met Ahmad Khan, S.-I., at Crown Chowk and made statement Exh.PE/1 which formed basis of formal F.I.R. (Exh.PE). After recording Exh.PE/1 Ahmad Khan (P.W.13) rushed to the spot recorded the statements of eyewitnesses, secured the blood from the spot and completed other formalities. He arrested the accused on 7-2-2000 and got the accused challaned.
3. The appellant was charge-sheeted on 3-5-2001 to which he pleaded not guilty and claimed trial.
The prosecution in order to prove its case got examined as many as thirteen P.Ws. The medical evidence has been provided by Dr. Mubasshar Yaqoob (P.W.7), Dr. Abid Zia (P.W.12) and Lady Dr. Robina Muzaffar (P.W.14). The ocular account had been furnished by the complainant (P.W.10) and his father Barkat Ali (P.W.11). The learned Trial Court after appreciating the entire material brought on record came to the conclusion that the prosecution had succeeded in proving its case against the appellant beyond any doubt. Consequently the appellant was convicted and sentenced as detailed in the opening paragraph of this judgment.
4. The learned defence counsel appearing on behalf of the appellant in support of this appeal has submitted that the P.Ws. Had neither given the number of shots fired by the appellant nor had they specified the seats of injuries in the F.I.R. And also before the Trial Court, as such their presence at the spot of highly doubtful. It is further submitted that the fires were shot from a distance of 2/3 feet, but there was no blackening; that the P.Ws. Are inimical towards the appellant, therefore, their testimony cannot be implicitly relied upon for convicting the appellant on a capital charge; that the occurrence had not been witnessed by the eye-witnesses and that the ocular account is in conflict with the medical evidence. It is further submitted that Shahid, brother of the deceased and son of the appellant, was also present at the time of occurrence, but he has not been produced to support the prosecutioncase, therefore, adverse inference has to be drawn against the prosecution.
5. The learned counsel for State supported the impugned judgment. They, inter alia, argued that the occurrence had taken place in the courtyard of the house of the appellant at about 5-00 p.m, but there is nothing on the record to lend support to the appellant's plea that Mst. Shakeela was killed by unknown dacoits during a scuffle. The learned counsel has submitted that the F.I.R. Was lodged promptly and the prosecution version is fully supported by the medical evidence; that the P.Ws have no motive to falsely depose against the appellant. In these circumstances, it is argued that the prosecution has proved its case against the appellant beyond any shadow of doubt.
6. We have heard the learned counsel for parties and gone through the record. The occurrence took place on 5-2-2000 at 5-00 p.m. And it was reported at Crown Chowk at 6-00 p.m. By Muhammad Shafique, who is son of brother-in-law of the appellant. The appellant was the only accused in his case, who allegedly killed his real daughter in his own house. The son of the deceased Shahid aged 15/16 years was also present at the time of occurrence, but the appellant did not produce him in his defence to refute the prosecution version. The complainant, Muhammad Shafique (P.W.10) and his father Barkat (P.W.11) are the eye-witnesses. They took the deceased to Hospital in an injured condition. The deceased was first medically examined at 6-50 p.m. By Dr. Abid Zia (P.W.12), who had found nine entry wounds on the body of Mst. Shakeela Bibi, with fully support the prosecution case as alleged in the F.I.R. The deceased died with five hours after receiving the injuries. The postmortem was conducted at 4-30 a.m. On 6-2-2000. There were as many as sixteen fire-arm injuries on the person of the deceased. Therefore, the ocular account furnished by the eye-witnesses is not inconsistent with the medical evidence. The deceased had sustained several shots. It was not possible for the witnesses to specify the seats of injuries. Both the eyewitnesses are independent witnesses. They have no reason to falsely implicate the appellant. The appellant was arrested on 7-2-2000. The Pistol (P.6.) was recovered at his instance from his house on 11-2-2000. According to the report of Forensic Science Laboratory it was in working order. The appellant in his statement under section 342, Cr.P.C. In answer to question as to why he had been involved in this case and why the P.Ws. Had deposed against him replied as under:-- "In fact, Mst. Shakeela, deceased, against the will and wishes of her divorced mother and other maternal relatives including the complainant used to meet me and visit my house, on the fateful day when she was alone in my house where she had come tomeet me, she got injured in a scuffle and fighting with the, unknown dacoits in a blind and unseen occurrence and the complainant fabricated false evidence and false motive against me with due deliberation and consultation with much more delay than shown and to ventilate the previous enmity of divorcing Mst. Mukhtar Bibi, the sister of the complainant with a grudge of her (deceased) meetings with me, the complainant has falsely implicated me in this case, and the other P.Ws. Have deposed against me being close relatives of the complainant and inimical to me. In fact, when in the later part of the night of the fateful day I was in the police station in connection with the proceedings of this case, the I.O.
Arrested me and kept me in illegal custody and subsequently showed my formal arrest to strengthen the false prosecution case against me."
7. The version of appellant that the deceased was killed by the dacoits does not find support from any other circumstances. In order to appreciate the plea of appellant we also looked into the case diaries recorded by the Investigating Officer. We have found nothing in support of the appellant's plea. The appellant has also not produced any evidence to prove his version. According to the prosecution Muhammad Shahid the real son of appellant was also present in the same house. It was difficult for the prosecution to produce appellant's son to depose against him. But if the appellant was innocent he could have certainly come forward to save his innocent father.
Therefore, the failure of the prosecution to produce Muhammad Shahid does not given rise to any presumption against the prosecution. If the version of appellant is put in a juxtaposition to that of the prosecution, the version of prosecution is believable and convincing.
8. In view of the above discussion, we are of the considered view that the prosecution has proved its case against the appellant beyondany doubt. We, therefore, dismiss his appeal. The convition and sentence recorded by the learned Trial Court are maintained. The death sentence is confirmed. The Murder Reference is answered in affirmative.We, however, take exception to the award of compensation of Rs,3,00,000 to Muhammad Shafique and Barkat Ali, P.Ws, on the ground that both these witnesses are not the legal heirs of Mst. Shakeela Bibi, deceased, as such they are not entitled to any compensation under section 544-A, Cr.P.C. To this extent the impugned judgment is set. Aside. 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.