' MUHAMMAD FARRUKH MAHMUD, J.--- Sikandar Hayat appellant was tried by Mr. Asghar Ali Faheem Bhatti, learned Additional Sessions Judge, Bhalwal, District Sargodha, in case F.I.R. No,758 registered at Police Station Kot Moman on 8-12-1998 for offences under sections 302/324/337-A(ii)(iv), P.P.C.
Vide judgment dated 5-3-2002, the learned trial Court convicted and sentenced him as follows:---
(I) for offence under section 302(b), P.P.C. To death plus payment of Rs,50,000 as compensation, in default whereof to further undergo S.I.; for six months;
(II) for offence under section 324, P.P.C. To undergo R.I. For ten years and also to pay a fine of Rs,20,000, in default whereof to suffer further S.I. For three months.
2. Sikandar 'Hayat, convict/appellant, has challenged his above noted convictions and sentences by filing the instant appeal. Murder Reference No,309 of 2002 seeking conformation or otherwise of death sentence inflicted upon the appellant has also been placed before us. Both these matters are being decided through this judgment.
3. The brief facts of the case per F.I.R. Exh.P.C. Recorded at the instance of Ahmad, complainant/P.W.2, are that his daughter Mst: Kausar was married to Sikandar appellant three years prior to the occurrence and their wedlock gave birth to one daughter aged about two years and a son aged about six months. Twenty days prior to the occurrence, Sikandar appellant divorced Mst. Kausar. On 8-12-1998 at about Ishawela, the complainant his wife Mst. Fatima deceased, son Mushtaq Ahmad/P.W.4 and daughter-in-law Mst. Kausar wife of Raman Javed/P.W.3 were present in their house. Electric bulb was on. They heard a knock at the door. The complainant came out of the room and asked as to who was knocking at the door. The accused told that he was Sikandar and had come to see, his children. The complainant replied him that he had no relation with them, so he would not open the door and that the accused should go back. In the meanwhile, Mst. Fatima and Mst. Kausar also came in the courtyard from the room. On seeing them, the accused, who was armed with a .12 bore gun, shot a fire, hitting Mst. Fatima on the right side of her chest and left arm. The second fire shot by him hit Mst. Kausar on her both arms and chest. On hearing the alarm and fire reports, complainant's nephew Shaukat Ali also came there from the adjoining house and saw the occurrence, Mst. Fatima succumbed to the injured at the spot, while Mst. Kausar in injured condition was taken to Ciyil Hospital, Kotmoman, by Mushtaq.
' The motive, as alleged in the F.I.R., was that the appellant, who had divorced his wife, came to forcibly take away his children but upon refusal/resistance by the complainant party caused murder of Fatima and injuries to Mst. Kausar.
4. After registration of the F.I.R., the case was thoroughly investigated, the appellant was arrested and after effecting the recovery of weapon of offence he was sent up to face trial.
5. To support its case at the trial, the prosecution produced eleven witnesses. Ocular account was furnished by Ahmad/P.W.2, Mst. Kausar/P.W.3 and Mushtaq/P.W.4. In addition to that, all the three witnesses also stated about the motive. Dr. Ghulam Hussain Faizi, Surgeon-Radiologist/P.W.7, took X-ray of Mst. Kausar Parveen/injured P.W. In his opinion, there was fracture of right radious with metallic foreign body in lower of right forearm. She was also having fracture of fifth metacarpal bone with metallic foreign body of her left forearm and wrist. Dr. Nayyar Abbas/P.W.8, who, on 9-12- 1998, conducted postmortem on the dead body of Mst. Fatima (deceased), while observing ten lacerated wounds and one abrasion on her person, opined that death had occurred, due to excessive haemorrhage and shock; injuries Nos.1, 2, 4, 5, 8 and 9 were sufficient to cause death in the ordinary course of nature and all the injuries contributed in death process. According to the doctor, all the injuries were ante-mortem and were caused by fire-arm. Probable duration between injuries and death was immediate, while between death and post-mortem it was within 13 hours.
Bashir Ahmad/S.-I. (since dead) investigated the case. Sajjad Ahmad, A.S.-I./P.W.10, who had been working with the aforesaid deceased Investigating Officer, appeared in secondary evidence and identified the writings and signatures of Bashir Ahmad, the deceased Investigating Officer, on all the relevant documents/memos. Matah Muhammad, A.S.-I./P.W.11, arrested the appellant on 4-8- 2000; recovered .12 bore gun P.1 along with 4 live cartridges P.2/1-4 at the instance of the appellant and took the same into possession vide memo. Exh.P.D. Muhammad Mushtaq, A.S.-I./P.W., who was entrusted the warrant of arrest (Mark "A") of the appellant, submitted his report Mark "B". The rest of the evidence, being formal in nature, need not be discussed.
6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication by stating that he had not divorced his wife Mst. Kausar Bibi; the complainant party got registered the instant case against him for her second marriage and that he was innocent. However, neither the appellant appeared as his own' witness under section 340(2), Cr.P.C.
Nor did he produced any witness in his defence.
7. Learned counsel for the appellant submits that the witnesses were inimical towards the appellant; that in case Ahmad complainant would have been present at the spot, then the assailant must have shot him first; that it was a night time occurrence and the prosecution has not proved whether electricity was available in the village or not; that the bulb has been inserted subsequently in the rough site plan; that the P.Ws. Have implicated the appellant only because of existing grudge and in order to remarry their daughter, who was, in fact, not divorced by the appellant; and that in any case it was not a case of capital sentence, as it was a case of grave provocation.
8. Conversely, the learned Additional Prosecutor-General for the State submits that the occurrence took place inside the house; that the witnesses, being inmates were natural witnesses; that Mst.
Kausar received injuries during the occurrence and her presence cannot be denied; that no reasons exist to falsely implicate the appellant; that the direct evidence is supported by the medical evidence and the circumstances of the case, like the medical examination of Mst. Kausar by the doctor soon after the occurrence.
9. We have heard the learned counsel for the parties at a great length and have also gone through the record.
10. The occurrence took place inside the compound of Haveli of the complainant at Ishawela. The presence of the P.Ws., being inmates of the house, was natural. Mst. Kausar wife of Raman, who is daughter-in-law of the complainant, received fire-arm injuries during the occurrence, so her presence cannot be denied. The matter was reported to the police at police station, which was at a distance of fourteen kilometers, at 9-00 p.m. The F.I.R. Was lodged promptly. It contained the details of the occurrence which indicates that Ahmad/P.W. Was present at the time of occurrence. All the witnesses have given consistent account of the occurrence and have corroborated each other on -all material points of the case. Mst. Kausar was a star-witness of the case, as she received fire- arm injuries at the hands of the appellant and luckily survived. She stated during cross- examination that after receiving the injury, she did not become unconscious. The appellant was known to the P.Ws., as Mst. Kausar daughter of complainant was married with the appellant three years prior to the occurrence and out of the wedlock a daughter aged two years and a son aged six months were born. All the witnesses have also stated that electric bulb was on, so the identity of the appellant was not in question. All the witnesses have stated that the fires were caused while the appellant was standing near the outer wall of the Haven. It has come in evidence that the outer wall was hardly 4/5 feet high and one could easily jump over it. Therefore, the witnesses while standing in the compound were visible and accessible to the assailant. Similarly, the P.Ws. Were in a position to see the assailant. There was no earthy reason for the P.Ws., especially Mst. Kausar, to falsely implicate the appellant and to substitute him for the real killer. The P.Ws. Stood the acid test of cross-examination and intrinsic value of their evidence could not be shaken. The statements of the P.Ws. Are fully supported by the medical evidence which was not challenged at all.
11. The prosecution has successfully proved the motive, as, undeniably, Mst. Kausar daughter of the complainant had left the house of the appellant prior to the occurrence and was living in the house of the complainant along with her children. The P.Ws. Stated that twenty days prior to the occurrence, the appellant orally divorced daughter of the complainant. During cross-examination, stand of the P.Ws. Remained consistent. It was suggested to the P.Ws . That daughter of the complainant was remarried with Nazir. However, the witnesses, while admitting the fact, explained that Mst. Kausar daughter of the complainant was not remarried during the abscondence of the appellant. According to the complainant, Mst. Kausar was remarried 3/4 months prior to 15-11-2001, when his statement was recorded by the learned trial Court. Similarly, Mushtaq P.W. Explained that the accused remained absconder for about 1-1/2 years and he did not marry his sister during abscondence of the accused. The plea taken by the accused in his statement recorded under section 342, Cr.P.C. That the complainant party got registered the instant case against him for second marriage of their daughter is baseless and revolting to common sense. It cannot be even conceived of that complainant would cause the death of his wife by causing fire-arm injuries and would seriously injure his daughter-in-law just to implicate the appellant in a false case.
12. The case was registered against the appellant on 8-12-1998. The appellant was arrested by P.W.11 Matah Muhammad/A.S.-I. On 4-8-2000, after about one year and eight months of the occurrence. Matah Muhammad stated before the learned trial Court that at the time of arrest, the appellant was a proclaimed offender. The witness was not cross-examined on this point. Inayat Ullah/P.W.1 appeared before the learned trial Court and stated that on 4-4-1999, proclamation of the said accused was entrusted to him for its execution. The relevant documents Exhs.P.A., P.A./1, P.B.
And P.B./1 were brought on the record of the case. No question was put to this witness. The abscondence of the appellant stands proved and corroborates the direct evidence.
13. As far as recovery of gun at the instance of the appellant is concerned, we are not inclined to use it against the appellant in the absence of report of Forensic Science Laboratory.
14. The upshot of the whole discussion is that the prosecution successfully proved its case against the appellant through natural, coherent and confidence-inspiring direct evidence, which was fully supported by the circumstances of the case like abscondence of the appellant, motive and lodging of the F.I.R. Promptly. The appellant, while armed with a gun, went to the house of the complainant and took the life of his mother-in-law, an innocent woman. He also caused serious fire-arm injuries to Mst. Kausar. No mitigating circumstances exist in his favour. This appeal is dismissed. The death sentence is confirmed. The murder reference is answered in the affirmative.